Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Ernesto CARDENAS-VILLALBA and Sergio Rivas-Ramirez,Defendants-Appellants.

Nos. 87-1400, 87-1401.

United States Court of Appeals, Ninth Circuit.

Submitted*  Nov. 17, 1988.Decided March 27, 1989.

Before PREGERSON, CANBY and BEEZER, Circuit Judges.


MEMORANDUM** 

Ernesto Cardenas-Villalba appeals his conviction for possessing with intent to distribute approximately 200 grams of cocaine, 21 U.S.C. § 841, on the grounds that (1) the district court improperly admitted evidence under Fed.R.Evid. 801(d) (2), (2) that there was insufficient evidence to convict, and (3) that the district court abused its discretion in failing to grant a mistrial on the basis of alleged prosecutorial misconduct.

Sergio Rivas-Ramirez appeals his conviction for conspiracy to distribute cocaine, 21 U.S.C. § 846, and for possessing with intent to distribute approximately 200 grams of cocaine, 21 U.S.C. § 841 on the grounds that (1) the district court erred in denying Rivas's motion for judgment of acquittal on the conspiracy charge, and (2) that the district court erred in refusing Rivas's requested jury instruction for the lesser included offense of simple possession on the possession with intent to distribute charge.

Finding no merit in any of the above claims, we affirm the convictions.

* Cardenas-Villalba first objects to the trial court's admission of certain statements at trial regarding Cardenas-Villalba's carrying of cocaine from Mexico to the United States. The challenged testimony refers to a conversation in a lounge at the Tucson airport. Present during that conversation were Cardenas-Villalba, Rivas-Ramirez and government agents Randy Huling and Humberto Rodriguez. Rivas-Ramirez and Rodgriguez discussed the impending purchase of a large quantity of cocaine. There had earlier been a considerable delay in the delivery of a sample of the cocaine to the agents. Rodriguez asked Rivas-Ramirez if Cardenas-Villalba was the one who had earlier been sent to Mexico to pick up the approximately 200 gram sample of cocaine which was sold to the agents. Rivas-Ramirez responded that Cardenas-Villalba was the one and laughed. Rodriguez then said to Cardenas-Villalba: "so you are the one who did this?". Cardenas-Villalba laughed. This exchange occurred in Spanish. Rodriguez then related this conversation to Huling in English, saying that Cardenas-Villalba had been responsible for the delay and had carried the "mercancia" or "merchandise". Huling then asked Cardenas-Villalba "Tu?" (in English, "You?"). Cardenas-Villalba responded "Si" (in English, "Yes"). The district court admitted this evidence as an adoptive admission under Fed.R.Evid. 801(d) (2) (B).

In order to admit statements under 801(d) (2) (B) there must be evidence that the statement was made in the defendant's presence and hearing, that the defendant actually understood what was said, that a normal person would respond to the statement and that there was an opportunity to deny it. United States v. Monks, 774 F.2d 945, 950 (9th Cir. 1985). The jury is then responsible for determining whether the defendant actually heard, understood and acquiesced in the statement. Id. We review the admission for an abuse of discretion. Id.

Cardenas-Villalba argues that the facts that the conversation had to be translated to Huling, that the potentially innocuous word mercancia or merchandise was used, and that he was unable to understand the English conversation fatally infect any determination that he knew and understood that the conversation implicated him in a criminal act requiring his disavowal of that act. Cardenas-Villalba might have a better argument were it not for the conversation between Rivas-Ramirez and Rodriguez which implicated him in a criminal act. We need not reach the issue of whether the translated discussion would support admission in this case because the discussion between Rivas-Ramirez and Rodriguez was held in Spanish, Cardenas-Villalba's language. That discussion supports admission under 801(d) (2) (B). See also United States v. Wiseman, 814 F.2d 826 (1st Cir. 1987) (slang term for contraband does not preclude a finding of an adoptive admission so long as the defendant understood the term to be so used). The district court considered the relevant factors and the circumstances surrounding the statements and properly concluded that the statements were admissible under 801(d) (2) (B). We find no error.

Cardenas-Villalba's confrontation clause challenge to admission also fails. This court applies a two part Confrontation Clause analysis to adoptive admissions. Monks, 774 F.2d at 952. First, it is clear that Rivas-Ramirez was unavailable because he was a codefendant who did not testify. Id. Second, we look to "reliability suggested by the circumstances of the statement." Id. "The reliability inquiry requires us to balance the following factors: 1) whether the statements are assertions of past fact, 2) whether the declarant had personal knowledge of the facts he related, 3) the possibility of faulty recollection, and 4) whether the circumstances suggest that the declarant misrepresented the defendant's role." Id.

The statements are clearly assertions of past fact, i.e., who was the courier responsible for the earlier delay. The record is replete with evidence that Rivas-Ramirez was intimately involved with the negotiations and would have personal knowledge of the courier's identity. There is no evidence one way or the other as to whether Rivas-Ramirez's memory was faulty. Lastly, the circumstances indicate no reason why Rivas-Ramirez would falsely implicate Cardenas-Villalba. Further, the statements were against Rivas-Ramirez's own penal interest as they implicated him in the conspiracy. Because two of the four factors strongly indicate reliability, a third is neutral, and the assertion of past fact is not alone sufficient to defeat reliability, United States v. Snow, 521 F.2d 730, 735 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976), we hold that admission did not violate the Confrontation Clause. See Monks, 774 F.2d at 953.

Cardenas-Villalba's challenge to the sufficiency of the evidence also lacks merit. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984). We conclude that the evidence, including the statements discussed above, was clearly sufficient to meet that standard.

Cardenas-Villalba lastly challenges the fairness of the trial on the ground that the prosecution attempted to prejudice the jury by continuously trying to link up Cardenas-Villalba with notorious Mexican drug families. The district court failed to grant a mistrial on that basis. Viewed in the context of the entire trial, we reverse only if the misconduct denies the defendant a fair trial and it appears more probable than not that the governmental misconduct materially affected the jury's verdict. United States v. Christophe, 833 F.2d 1296, 1298-99 (9th Cir. 1987); United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987), cert. denied, 108 S. Ct. 726 (1988); United States v. Nadler, 698 F.2d 995, 1001 (9th Cir. 1983). We conclude that the evidence of guilt, particularly the statements made at the airport, was sufficiently strong to outweigh any possible prejudice to Cardenas-Villalba. Nor did the references to defendant's surname, in the context of the whole trial, render the trial unfair. Accordingly, we affirm the district court's denial of his motion for a mistrial.

II

Rivas-Ramirez challenges the district court's failure to charge the jury on the lesser included offense of simple possession. Whether a lesser included offense instruction must be given is a question of law reviewed de novo. United States v. Brown, 761 F.2d 1272, 1276 (9th Cir. 1985).

"A defendant is entitled to a lesser included offense instruction if: (1) the lesser included offense is identified within the offense charged; and (2) a rational jury could find the defendant guilty of the lesser offense but not the greater." United States v. Muniz, 684 F.2d 634, 636 (9th Cir. 1982). The defendant meets the first part of the test, United States v. Espinosa, 827 F.2d 604, 615 (9th Cir. 1987), cert. denied, 108 S. Ct. 1243 (1988), yet fails the second. We must focus upon the evidence at trial when considering the second part of the test. Muniz, 684 F.2d at 636.

In this case the only evidence connecting Rivas-Ramirez to the 200 grams of cocaine is testimony that while in a motel room with a coconspirator and government agents he took the cocaine out of his boot and handed it to a coconspirator who in turn sold it to the agents for $7000. It is inconceivable that a rational jury could find simple possession, but not possession with intent to distribute, when the only evidence adduced at trial shows that the defendant actually distributed the cocaine. Rivas-Ramirez's reliance on his alleged status as an addict is irrelevant when, as here, actual distribution is connected to the evidence of possession. See e.g., United States v. Burns, 624 F.2d 95, 104 (10th Cir. 1980), cert. denied, 449 U.S. 954 (1981) (When evidence showed that codefendants must have come into possession through distribution from defendant seeking lesser included offense instruction, no rational basis existed for the instruction for that defendant). We agree with the district court that no rational jury, based upon the evidence at trial, could have acquitted Rivas of the greater offense and convicted him of the lesser offense of simple possession. Thus, the district court did not err in refusing to give the requested lesser included offense instruction.

Rivas-Ramirez lastly challenges the district court's denial of his motion for acquittal on the conspiracy charge. We review motions for acquittal for sufficiency of the evidence. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987). Rivas-Ramirez argues that there was insufficient evidence tying him to the final agreement to sell cocaine in Los Angeles. Rivas misconceives the charge. He was simply charged with conspiring to distribute over five kilograms of cocaine. The evidence at trial, including Rivas' own statements, was clearly sufficient to permit the jury to find beyond a reasonable doubt that he had so conspired. His challenge based upon breakdowns in the terms of the agreement between the conspirators and the government agents is simply not material to proof of the charge that he conspired with approximately eight others to sell cocaine to those government agents. See Sharif, 817 F.2d at 1378. The evidence was sufficient and the district court did not err in failing to grant Rivas' motion for acquittal.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3