Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

MEMORANDUM^* 

Patrick English, Derek Tano, and Lester Wilson were among eleven¹  defendants named in a nine-count indictment filed August 25, 1987. The indictment charged various defendants with conspiracy to distribute cocaine; distribution of cocaine; engaging in a criminal enterprise; conspiracy to launder money; and filing a false return with the Internal Revenue Service. More specifically, the indictment charged that members of the conspiracy group, headed by Steve F. Tozon, traveled from Hawaii to the U.S. mainland with cash for the purpose of bringing back cocaine for distribution. The only charge in the indictment against English, Tano, and Wilson was Count Six which charged all eleven defendants with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1), 846.

On February 2, 1988, a jury trial commenced against English, Tano, and Wilson. The eight other co-conspirators pleaded guilty or reached some other disposition of their case, and some of the co-conspirators agreed to provide testimony at trial. After the district court denied the defendants' Motions for Acquittal under Fed. R. Crim. P. 29, the jury found all three defendants guilty of conspiracy. English was sentenced to eight years imprisonment and was assessed a $50 fine pursuant to 18 U.S.C. § 3013. Tano was sentenced to three years imprisonment along with the $50 fine.

In this consolidated appeal, English and Tano both argue that the district court erred in denying their Motions for Acquittal because there was insufficient evidence to sustain their conviction. Tano also raises an issue concerning a jury instruction.² 

A defendant is entitled to a judgment of acquittal if the evidence produced against him or her is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). When reviewing sufficiency of the evidence, we must affirm if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

To sustain a conviction for conspiracy, the government must first show the existence of a conspiracy. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). At trial, considerable evidence was introduced concerning the existence of a conspiracy, and in fact, English and Tano do not dispute this. Then, " [o]nce existence of a conspiracy has been established, evidence of only a slight connection to the conspiracy is necessary in order to convict any one defendant of knowing participation in it." United States v. Berberian, 851 F.2d 236, 238 (9th Cir. 1988). "Circumstantial evidence is sufficient to sustain a conviction, and the government's evidence need not exclude every reasonable hypothesis consistent with innocence." United States v. Miller, 688 F.2d 652, 663 (9th Cir. 1982). Furthermore, we "must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977).

At trial, Tozon and other co-conspirators testified in detail as to the operation of the conspiracy as well as to the role of English and Tano in the group. Even though English and Tano now attempt to discount or discredit the testimony and other evidence which is adverse to them, after reviewing the evidence in the light most favorable to prosecution, we conclude that a rational trier of fact could have found the appellants guilty beyond a reasonable doubt.

During closing arguments, counsel for Tano argued that the jury should draw an inference favorable to the defense from the government's failure to call certain co-conspirators who had pleaded guilty. Specifically, Tano's counsel argued that the government did not call these "missing witnesses" because they would have contradicted other prosecution witnesses. Judge Tashima stated that Tano had raised an "improper inference" and instructed the jury as follows:

Several of the accomplices in this case have pleaded guilty and entered into a plea agreement in which they agreed to testify at this trial. Other accomplices have entered pleas of guilty, but may not have agreed to testify at trial and no inference may be drawn by reason of the government's failure to call that witness.

Tano argues that the giving of this instruction constitutes reversible error because the jury should have been allowed to draw an inference adverse to the prosecution from the government's failure to call these other co-conspirators.

We review the district court's formulation of jury instructions for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). Indeed, "the trial judge is given substantial latitude in tailoring the instructions." United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986). Furthermore, jury instructions must be analyzed in the context in which they are given. United States v. Rohrer, 708 F.2d 429, 431 (9th Cir. 1983).

In Kean v. Commissioner of Internal Revenue, 469 F.2d 1183 (9th Cir. 1972), we stated: "Where a potential witness is equally available to both parties, no inference should be drawn from the failure of a party to call such a witness." Kean is dispositive here.

Tano could have himself called the co-conspirators as witnesses. The government was under no obligation to do so. The jury instruction given by the trial judge was therefore proper, especially considering the fact that it was given in part to counteract the improper inference raised by Tano. The instruction did not constitute abuse of discretion.

The judgment of the district court is AFFIRMED.