Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1988)

MEMORANDUM^*

Appellants Abelardo Bravo-Morales (Bravo) and Alberto Hernandez-Rodriguez (Hernandez) appeal their convictions for conspiracy to import cocaine and importation of cocaine in violation of 21 U.S.C. §§ 952, 960 and 963.

On October 16, 1987, U.S. Customs Service Agents were conducting a roving patrol program at the United States-Mexican border in San Ysidro, California. Pursuant to the roving patrol program, agents interview various individuals waiting in traffic lanes to cross the border, and if the patrolling agents become suspicious, the individual is directed to the secondary inspection area.

Hernandez was directed to the secondary inspection area where a narcotics dog alerted while checking his automobile (maroon Caprice). A hole was drilled by the gas tank and white powder came out; the gas tank was removed and a compartment was found that contained 75 kilograms of 94% pure cocaine. The cocaine wrappings were marked with the following initials: "CHA", "MIO", "AI".

Hernandez was questioned by various agents of the U.S. Customs Service after being advised he was under arrest for importing cocaine and after being advised of his constitutional rights. Hernandez agreed to waive these rights and to answer questions. Essentially, Hernandez not only denied knowledge of the cocaine but told the agents that he purchased the vehicle two weeks prior from an unknown Mexican male.

Later that day, codefendant Chig-Valenzuela (Chig) drove a brown truck into the primary inspection area. Chig was also directed to the secondary inspection area where a narcotics dog alerted while checking the automobile; forty-four kilograms of 96% pure cocaine was found behind the gas tank with the packages marked with the initials "CHA", "MIO" and "AI". After being informed of his constitutional rights, Chig waived these rights and answered questions. Chig informed the border patrol that Carl Yetrick offered him $1000 to drive this truck across the border. Carl allegedly informed Chig that the truck contained forty pounds of marijuana.

Ten days later, Bravo, driving a white Volkswagen, attempted to cross the border at San Ysidro. A computer alert indicated the car was stolen. Bravo was directed to the secondary inspection area where three suitcases and a gym bag were found in the back of the Volkswagen which contained sixty kilograms of 95% pure cocaine in wrappings marked with the initials "CHA", "MIO", and "AI".

Bravo was informed he was under arrest for importing narcotics and advised of his constitutional rights. Bravo waived his rights and agreed to answer questions. Bravo told the agents that his car "broke down" and "Rick" lent him the Volkswagen--but Bravo could not provide a physical description of Rick. Bravo also stated that he did not know that the cocaine was in the car. The agents asked Bravo to cooperate by delivering the cocaine as he had been instructed to do. Bravo refused to cooperate with the agents by delivering the cocaine because he feared for his life and his family's life.

Bravo, Chig and Hernandez were tried together. The jury convicted Bravo and Hernandez of conspiracy to import cocaine and importation of cocaine. On April 11, 1988, Bravo was sentenced to 15 years in custody and to consecutive 5 years' probation. On April 25, 1988, Hernandez was sentenced to 12 years in custody and to consecutive 5 years' probation.

DISCUSSION

Viewing the evidence in the light most favorable to the government, the court must decide whether any rational juror could have found a single conspiracy beyond a reasonable doubt. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). A single conspiracy exists where there is "an overall agreement to perform various functions to achieve the objectives of the conspiracy." United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984).

A single conspiracy may contain subgroups and subagreements; the evidence need not exclude every hypothesis but that of a single conspiracy. Patterson, 819 F.2d at 1502; see United States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986) (separate acts at separate times does not mean separate conspiracies).

In this circuit, a factors analysis has been used to distinguish single from multiple conspiracies. United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). The relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency and duration of each conspirator's transactions; and the commonality of time and goals. Id.

Contrary to appellants' suggestion, there is sufficient evidence in this case for the jury to find a single conspiracy. Chig and Hernandez attempted to cross the border in San Ysidro on the same day; each of their vehicles had the same Mexican provisional permit. Ten days later, Bravo also attempted to cross the border at San Ysidro. The purity levels in the three cocaine seizures were 94%, 96% and 95%. All three loads of cocaine were similarly wrapped and similarly packaged with the same initials in the same writing and with the same ink color. The similarity in packaging indicates a common source and the similarity in the initials indicates a common destination. A rational jury could have found that Bravo and Hernandez were part of a single common conspiracy.

Appellant Bravo contends that the district court abused its discretion by denying his motion to sever the trial. Bravo argues that the evidence failed to connect him to Chig and Hernandez.

A denial of a severance motion is reviewed for abuse of discretion. Patterson, 819 F.2d at 1501. The test for abuse of discretion is whether a joint trial is so manifestly prejudiced that the district judge should exercise his discretion in one way, by ordering a separate trial. Id.

Because Bravo attempted to cross the border 10 days after Chig and Hernandez were arrested does not mean, as appellant Bravo attempts to argue, that the transactions are completely separate. Similar packaging and initialing suggests a similar source and common destination. The consistency of the method and type of operations militates against the separation of these smuggling operations into smaller, independent conspiracies. Id.

"Once the existence of the conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the correction is slight, is sufficient to convict him with knowing participation in the conspiracy, even if unknown to him." Bibbero, 749 F.2d at 587. The jury reasonably could have found that Bravo was a member of the overall conspiracy. While there is no evidence that Bravo had any connection with Chig and Hernandez during the earlier importation attempts, "one may join a conspiracy already formed and in existence, and be bound by all that has gone on before in the conspiracy, even if unknown to him." Bibbero, 749 F.2d at 588. The evidence establishes that Bravo was a key participant in the third smuggling attempt of cocaine from a single source to a common destination. There was sufficient evidence to connect each of the appellants to the overall conspiracy; therefore the district court did not abuse its discretion in denying Bravo's severance motion.

Bravo contends that he revoked his earlier waiver of the right to remain silent and therefore his later statements in response to custodial interrogation and other fruits should have been suppressed.

The question of whether a defendant waived his constitutional rights is reviewed under the clearly erroneous standard. United States v. Doe, 819 F.2d 206, 208-09 (9th Cir. 1985) (totality of circumstances test).

Both parties agree that Bravo was given the Miranda warning and that he validly waived his rights. Bravo contends that he revoked this earlier waiver when he told the agents he did not want to cooperate because he feared for his life. According to appellant Bravo, the agents should have recognized that he was asserting his Miranda rights.

As the government points out, however, Bravo did not want to cooperate by making the cocaine delivery because he feared for his life. "Cooperation" did not refer to answering questions, but referred to the delivering of the cocaine. Expressing fear for his safety if he cooperated with the government in delivering the cocaine cannot be construed as revoking Bravo's waiver of his right to remain silent.

Finally, Bravo argues that his statements were not a product of a rational intellect and free will. Townsend v. Sain, 372 U.S. 293 (1963). Contrary to Bravo's suggestion, nervousness does not equate with involuntariness. As the district court noted, "it sounds like [Bravo] got caught and he couldn't figure out how to get out of the mess." Based on the foregoing, the district court correctly found appellant Bravo had not revoked his waiver of his right to remain silent.

IV. Purposeful Discrimination: Jury Selection

Appellant Bravo argues that the prosecutor used peremptory challenges to successfully eliminate two of four Hispanic-surnamed potential jurors in violation of 18 U.S.C. § 1862 and the Fifth Amendment.

The district court's finding regarding purposeful discrimination in jury selection process are findings of fact which will be set aside only if clearly erroneous. Batson v. Kentucky, 476 U.S. 79, 91 n. 21 (1987); United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984), cert. denied, 471 U.S. 1019 (1985). The exercise of a peremptory challenge must withstand a Batson inquiry. United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987).

In Batson, the Court held that in order to establish a prima facie case of purposeful discrimination, the defendant first must show that he or she belongs to a cognizable racial group and that the prosecutor used a peremptory challenge to remove from the venire members of the defendant's race. Second, the defendant must show that the facts and circumstances raise an inference that the prosecution used the racially based preemptive challenges to exclude jurors on account of their race. Batson, 476 U.S. at 96; United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987). Once the defendant has established a prima facie case, the burden shifts to the government to articulate a neutral explanation for challenging black jurors. Batson, 476 U.S. at 97. Here, the defendant raised an objection when the prosecutor excused two of four Hispanic jurors.

To establish a Batson error, the appellant, a Hispanic, relies on one example provided by the Supreme Court, that of a pattern of strikes against venirepersons with Hispanic surnames. See id.

Relying on Vaccaro, the government argues that the striking of two jurors does not constitute a pattern of strikes against Hispanic members. 816 F.2d at 457. In Vaccaro, the court stated that striking the only two black veniremen does not constitute a pattern indicating a systematic exclusion of blacks. The pattern issue, however, was not dispositive because neither defendant was black, therefore they had failed to establish a prima facie case of discrimination in juror selection.

Although Vaccaro may not be dispositive, other courts have not found a prima facie case when the government used its peremptory challenges to exclude several black venirepersons. See United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987), and United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986). Based on this authority, and considering all the relevant factors including the fact that the government accepted two Hispanics on the jury, the appellant has failed to establish a prima facie case of purposeful discrimination.

Even if a prima facie case was established, however, the government has expressed a neutral, reasonable basis for challenging the Hispanic jurors. The government challenged juror Piedad Garcia because she might have personal knowledge of some of the events that would arise at trial. Juror Rodolfo Sandoval was challenged because the government did not feel he was as good as some of the other jurors. The defendant argues that these explanations are not neutral.

In Vaccaro, this court concluded that a prosecutor may use peremptory challenges when the prosecutor has reason to question the impartiality of a juror due to his habits and associations. The prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. Batson, 476 U.S. at 97. "Excluding jurors because of their profession, or because they were acquitted in a prior case, or because of a poor attitude ... is wholly within the prosecutor's prerogative." Thompson, 827 F.2d at 1260. Reasons may not be logical, but that is what peremptory challenges are about. Id. Furthermore, the reasons are "often founded on nothing more than a trial lawyer's instinct about a prospective juror." Id. The government has stated a neutral reasonable basis for challenging each of the Hispanic jurors. Because the prosecutor's reasons are neutral, the reasons dispel the inference that the prosecutor acted from improper motives. Accordingly, the district court did not err in denying Bravo's motion to dismiss the jury panel.

Appellant Hernandez contends that the district court abused its discretion in not dismissing the indictment for alleged loss of evidence. The decision to impose sanctions or to dismiss the indictment is reviewed under an abuse of discretion standard. See United States v. Roberts, 779 F.2d 565, 568-69 (9th Cir.), cert. denied, 107 S. Ct. 142 (1986). The lost evidence was the maroon Caprice driven by Hernandez that contained 75 kilograms of cocaine and its original gas tank. According to the government, the car was sold by customs to an independent contractor who buys seized cars from United States Customs and resells them. The independent contractor in turn sold the car to Steen. The original gas tank has not been found. Pictures of the Caprice, including the trunk area and the gas tank were available at trial.

On February 16, 1987, appellant Hernandez' motion to dismiss the indictment was heard by the district court. At this proceeding the appellant argued that the unavailability of the car prohibited him from impeaching Inspector Cortez' statement that the trunk appeared too high which had initially caused him to become suspicious of Hernandez. The government stipulated that it would not introduce evidence about the suspicious appearance of the trunk, and an agent would testify that the trunk looked normal; the district court then denied appellant Hernandez's motion to dismiss the indictment.

Hernandez essentially relies on two cases: United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976), and United States v. Land Hawk, 628 F.2d 1139 (9th Cir. 1979).

In both cases this court set out factors to be weighed in determining whether a dismissal is warranted by destruction of evidence: (1) degree of negligence or bad faith on the part of the prosecutor, (2) the importance of the lost evidence, and (3) sufficiency of the remaining evidence. Higginbotham, 539 F.2d at 21; Land Hawk, 628 F.2d at 1146.

Hernandez argues that the car and the gas tank were important to show that Hernandez would not have seen the secret compartment viewing the trunk area from the top down. According to Hernandez this evidence supports his position that he had no knowledge of the cocaine. Appellant also contends that the federal authorities had sole custody of the evidence and were negligent in losing the gas tank and in selling the car.

Even assuming that federal authorities were negligent in "losing" the car and gas tank, the appellant has failed to establish the requisite degree of prejudice necessary to result in dismissal of the indictment. "The most important part of our analysis of the degree of prejudice in this case is an evaluation of the reliability or trustworthiness of the remaining secondary evidence." Land Hawk, 628 F.2d at 1155.

The secondary evidence, photographs of the car, including the trunk area and gas tank, is probative and reliable. Furthermore, the government stipulated that the trunk appeared normal. Accordingly, the defendant has not been prejudiced by the lost evidence and the district court did not abuse its discretion in refusing to dismiss the indictment.

Appellants Bravo and Hernandez contend that the district court erred in admitting expert testimony regarding the value of the seized cocaine. The trial court has broad discretion to admit or exclude expert testimony, and will be upheld unless manifestly erroneous. United States v. Langford, 802 F.2d 1176, 1180 (9th Cir. 1986).

At trial, the government introduced testimony including a chart that the wholesale value of 75 kilograms of cocaine was $1.5 million and the "street" value was $22.5 million. Appellants first contend that the value of the cocaine was irrelevant because they were charged with possession, not with intent to distribute cocaine; for a possession charge the jury need only find that the appellants knowingly brought any quantity of cocaine into the United States. Appellants also maintain that the district court abused its discretion in balancing the probative value of the testimony and its potential for prejudice.

The government introduced the evidence of the values of cocaine to prove that it was unlikely for someone to entrust the appellants with such a valuable cargo without also informing them of the nature of the cargo. Since the evidence is probative of whether or not the appellants had knowledge of the cocaine, it is relevant. See Fed.R.Evid. 401. The testimony was sufficiently probative to outweigh the danger of unfair prejudice and the district court did not abuse its discretion in admitting it. See Lanford, 802 F.2d at 1179.

A defendant is entitled to a jury instruction on a theory of defense if the theory has a basis in law and in the record. United States v. Solomon, 825 F.2d 1292, 1295 (9th Cir. 1987). It is reversible error to refuse to charge on a defense theory for which there is an evidentiary foundation and which if believed by the jury would be legally sufficient to render the accused innocent. United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988). When reviewing a claim of error relating to the jury instructions, the instructions must be viewed as a whole. United States v. Lesina, 833 F.2d 156, 158 (9th Cir. 1987). The trial court has broad discretion in tailoring the precise language of jury instructions and even "imperfectly formulated jury instructions will serve as a basis for overturning a conviction only upon a showing of abuse of discretion." United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1983). Appellant Bravo contends that the district court's failure to instruct the jury according to his theory of the case constitutes reversible error.

Bravo contends that the court erred in denying the following instruction: "The defendant Mr. Abelardo Bravo-Morales has presented evidence of prior felony convictions for auto theft. This evidence may be considered to show a reasonable doubt as to Mr. Abelardo Bravo-Morales' intention as related to the charged offenses of conspiracy and importation." The defense theory of the case was that appellant Bravo only intended to steal the car and was unaware of the cocaine in the car.

The district court did instruct the jury as follows:

You are permitted to draw from the facts which you find to have been proved such reasonable inferences as you feel are justified in the light of experience.

Actual knowledge that the defendants brought into the country a controlled substance is an essential element of the offense charged. You may not find the defendant guilty ... unless you find beyond a reasonable doubt that that defendant knew that he brought into the country a controlled substance.

The crimes charged in this case are serious crimes which require proof of specific intent before a defendant can be convicted.... To establish specific intent, the Government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.

[Y]ou may infer the defendant's intent from [the] surrounding circumstances. You may consider any statement made or done or omitted by a defendant, and all facts and circumstances in evidence which would indicate his state of mind.

You should weigh all the evidence in this case. After weighing all the evidence, if you are not convinced of the guilt of the accused beyond a reasonable doubt, you must find him not guilty.

The district court did not abuse its discretion in denying the particular instruction requested by Bravo. First, the instructions that were given to the jury adequately instruct the jury that the government had to prove the requisite intent beyond a reasonable doubt and that all the evidence--including the three convictions--could be used to determine the intent. The instruction clearly requires the jury to find that the defendant knew that he brought a controlled substance into the country. This instruction precludes the possibility that the jury could have convicted Bravo of importation and conspiracy despite any belief that Bravo acted without knowledge of the cocaine's presence in the stolen car.

Second, it is true that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, "even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) (en banc). However, to be entitled to an instruction relating to a defense, the appellant must present sufficient evidence to go to the jury on that particular defense. United States v. Winn, 577 F.2d 86, 90 (9th Cir. 1978).

Here, defendant Bravo introduced into evidence certified copies of three prior convictions for stealing cars. Bravo did not testify at trial. The unexplained convictions supported defense counsel's opening and closing statements in which he referred to Bravo as a "poor, unsuspecting car thief." But, as the district court pointed out " [i]t makes a big jump from felony convictions, which is the only thing in front of the jury, to [raising a reasonable doubt as to appellants' intentions as related to the charged offenses]." R.T. 832. The district court did not abuse its discretion in denying the particular instruction.

We affirm the district court in all respects.

AFFIRMED.