Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Reynaldo SOLIS-ORTIZ, Defendant-Appellant.

No. 88-1287.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1989.* Decided June 28, 1989.

D. Ariz.

AFFIRMED.

Appeal from the United States District Court for the District of Arizona. Honorable Richard M. Bilby, District Judge, Presiding.

Before BROWNING, FARRIS, and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

Overview

Reynaldo Solis-Ortiz appeals his conviction, following a jury trial, for conspiracy to transport illegal aliens, in violation of 8 U.S.C. 1324(a) (1) (b) and 18 U.S.C. 2. Solis-Ortiz contends that insufficient evidence supports his conviction because his codefendant at trial was acquitted of the conspiracy charge and there was no evidence that Solis-Ortiz had conspired with unindicted coconspirators or persons unknown to the grand jury.

We affirm.

Discussion

Viewing the evidence in the light most favorable to the government, see United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987), there was sufficient evidence to show beyond a reasonable doubt that Solis-Ortiz conspired with an unindicted coconspirator (who was convicted of the conspiracy to transport illegal aliens in a separate trial) and with other persons unknown to the grand jury. See United States v. Powell, 469 U.S. 57, 67 (1984); United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir.), modifying 811 F.2d 1232 (9th Cir. 1987). The rule requiring consistent verdicts in a joint conspiracy trial has been overruled. See Powell, 469 U.S. at 67; Valles-Valencia, 823 F.2d at 382.

The sole issue is whether Solis-Ortiz's conviction for conspiracy to transport illegal aliens is supported by sufficient evidence.

We normally review a sufficiency of the evidence challenge to determine whether proof beyond a reasonable doubt supports the conviction, considering all evidence in the light most favorable to the government. United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1977). Solis-Ortiz failed to move for a judgment of acquittal. He therefore effectively waived his objection to the sufficiency of the government's case. See United States v. Cromerford, 857 F.2d 1323, 1324 (9th Cir. 1988) (per curiam), cert. denied, 109 S. Ct. 812 (1989). In light of this waiver, we review for plain error to prevent a manifest injustice. Id; see Fed. R. Crim. P. 52(b). But by either test, the record compels affirmance.

Solis-Ortiz contends that, because his codefendant at trial was acquitted of the conspiracy charge and there was no evidence that he had conspired with unindicted coconspirators or persons unknown to the grand jury, his conviction must be reversed. We disagree.

Inconsistent verdicts involving two or more defendants need not be set aside. United States v. Powell, 469 U.S. 57 (1987) (per curiam); United States v. Brandon, 633 F.2d 773, 779 (9th Cir. 1960). However, before the Supreme Court's opinion in Powell, 469 U.S. 57, and our amended opinion in United States v. Valles-Valencia, 823 F.2d 381 (9th Cir.), modifying 811 F.2d 1232 (9th Cir. 1987), there existed a limited "rule of consistency" in this circuit. This limited rule required the acquittal of both conspirators, if either was acquitted. Lubin v. United States, 313 F.2d 419, 423 (9th Cir. 1963); United States v. Patterson, 678 F.2d 774, 781 (9th Cir.), cert. denied, 459 U.S. 911 (1982). The traditional "inconsistent verdicts" rule has been overruled. Valles-Valencia, 823 F.2d at 382.

To establish a conspiracy, the government must prove beyond a reasonable doubt, with either direct or circumstantial evidence; 1) an agreement to accomplish an illegal purpose, 2) an overt act in furtherance of the purpose, and 3) the intent required to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

Although Solis-Ortiz could not conspire with himself, and Cachu-Torres was acquitted of the conspiracy, there was sufficient evidence to prove beyond a reasonable doubt that Solis-Ortiz conspired with other persons to transport the aliens.

Solis-Ortiz's signed statement, detailing his involvement with Lopez-Silva in a scheme to transport illegal aliens from Arizona to Florida, was admitted against him at trial.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 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 Circuit Rule 36-3