Unpublished Disposition, 879 F.2d 866 (9th Cir. 1988)

MEMORANDUM^* 

Miguel Ochoa-Ceja, Rito Quintero and Epifanio Baldenegro were charged with possession of heroin and cocaine with intent to distribute. Ochoa-Ceja was also charged with possession of a firearm in relation to a narcotics trafficking offense. After a jury trial, Ochoa-Ceja was convicted on all counts, and Quintero and Baldenegro were convicted on the cocaine charge. All defendants appeal. We affirm.

FACTS

On January 11, 1988, informant Sergio Diaz, acting under the direction of Salem Police Department Narcotics Enforcement Unit Officer James Miller, arranged to purchase heroin and cocaine from persons suspected of dealing in narcotics. Officer Miller and Diaz obtained adjoining rooms at the Best Western Motel on Portland Road in Salem. Diaz used one room to make phone calls to Moises Rios-Ochoa and Ochoa-Ceja to arrange purchases of heroin and cocaine. Miller used the other room to listen to these phone conversations.

As part of the investigation, officers were ordered to maintain surveillance on the residences of Rios-Ochoa and Quintero. These officers were instructed to maintain surveillance on any vehicles leaving either residence after the calls arranging the sale had been made. One of the officers, Ronald Nelson, observed the arrival of a green Datsun at the residence of Rios-Ochoa. The driver remained at the residence for about twenty minutes. At approximately the time the Datsun left, a red compact car also left the residence. Both vehicles were followed. The Datsun was followed to the home of Quintero. The Datsun, now occupied by two people, left Quintero's residence after ten minutes. At approximately the same time, a cream-colored Cordoba, occupied by three people, left Quintero's residence.

The Cordoba and the Datsun went to the parking lot of a nearby Thriftway. Baldenegro got out of the Cordoba and into the Datsun. The Datsun then went to a restaurant called Brockman's. In the meantime, the red compact had gone to the Best Western where Diaz and Officer Miller were located. Rios-Ochoa got out of the red car, and met briefly with Diaz, who was in possession of the narcotics purchase money. Rios-Ochoa counted the money possessed by Diaz, then left. Rios-Ochoa then drove to where the Datsun was located. The cars were observed parked next to each other. Twenty minutes later, Rios-Ochoa returned to the motel with a cookie can containing heroin and cocaine. He was arrested and the can of drugs seized. The remaining defendants were then arrested. The fingerprints of Baldenegro were found inside the cookie can. The fingerprints of Quintero were found on plastic bags containing the cocaine found inside the can. When Ochoa-Ceja was arrested, he was found to be in possession of a loaded gun and two balloons containing heroin.

The defendants were each indicted on counts of distributing more than 100 grams each of heroin and cocaine in violation of 21 U.S.C. § 841(a) (1). Ochoa-Ceja was also charged with using a weapon during and in relation to drug trafficking in violation of 18 U.S.C. § 924(c) (1). The defendants were tried jointly, and each was convicted. Each defendant timely appeals. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Ochoa-Ceja's indictment recited allegations that he "did use and carry a firearm" in violation of 18 U.S.C Sec. 924(c) (1), which provides that " [w]hoever, during and in relation to any crime of violence or drug trafficking ... uses or carries a firearm, shall ... be sentenced to imprisonment for five years...." (emphasis added). However, after the evidence was presented to the jury, the district judge instructed the jury that it could find Ochoa-Ceja guilty of the firearm count if it found, inter alia, that Ochoa-Ceja knowingly did "carry" a firearm.¹  Ochoa-Ceja argues that the district judge's instruction was an impermissible constructive amendment of substantive elements of the indictment, violating Ochoa-Ceja's fifth amendment right to indictment by a grand jury. The issue of constructive amendment is reviewed de novo. United States v. Aguilar, 756 F.2d 1418, 1421 (9th Cir. 1985). This contention is without merit.

Substantive amendment of an indictment is reversible error, because it violates a defendant's fifth amendment right to stand trial only for charges made by a grand jury in its indictment. Id. at 1423. However, to the extent that the language of the indictment goes beyond alleging the necessary elements of the crime, such language is "mere surplusage" which the trial court may "read out" of the indictment if the defendant is not prejudiced. United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855 (1986); United States v. Abascal, 564 F.2d 821, 832-33 (9th Cir. 1977), cert. denied, 435 U.S. 953 (1978).

In this case, the language "read out" of the indictment was not central to establishing a violation of section 924(c) (1). We have held that "a jury may convict on a finding of any of the elements of a disjunctively defined offense, despite the grand jury's choice of conjunctive language in the indictment." United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980). In such situations, it is clearly permissible for the court to instruct the jury accordingly. See Abascal, 564 F.2d at 832-33.

Ochoa-Ceja advances two reasons for his view that this case is unlike others in which surplusage was deleted. First, he contends that he was prejudiced in this case because his defense was based upon showing that he did not use a firearm. He contends that the change in the indictment deprived him of the opportunity to defend against the "carrying" claim.

This argument is without merit. The indictment was clearly sufficient to put Ochoa-Ceja on notice of the charges against him. His counsel should have been aware that the Government did not have to prove use of the firearm in order to establish a violation of section 924(c) (1). In addition, it is unclear what additional defense Ochoa-Ceja would have raised had the indictment been worded disjunctively in the first instance. It therefore is difficult to see how he was prejudiced.

Second, Ochoa-Ceja argues that the cases in which we have upheld rewording of indictments from conjunctive to disjunctive phrasing involved terms that were synonyms. This is not the case. Abascal, itself, involved deletion of the word "import" from an indictment charging that the defendant did intentionally "import, distribute and possess with intent to distribute LSD." 564 F.2d at 831-32. The term "import" clearly is not synonymous with "possess" or "distribute." See also United States v. Hobson, 519 F.2d 765, 744 (9th Cir.), cert. denied, 423 U.S. 931 (1975) (where indictment charged defendant with supplying food, clothing and gun to escaped prisoner, jury permissibly could convict for supplying food or clothing or a gun). The trial judge's constructive amendment of Ochoa-Ceja's indictment was permissible.

Ochoa-Ceja argues that because the trial court specifically mentioned three other defendants during a limiting instruction relating to aiding and abetting, "all eyes naturally turn on the Defendant as the principal." He argues that this unfairly prejudiced him by suggesting to the jury that the Government viewed him as the most culpable. We review the trial judge's formulation of jury instructions for abuse of discretion. United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986).

Ochoa-Ceja's argument is without merit. First, at the beginning of the aiding and abetting instruction, the judge referred to "these four defendants," suggesting that the instruction was applicable to Ochoa-Ceja as well as the others. RT at 369. In addition, the court instructed that "for the purposes of this aiding and abetting instruction, I further instruct you that Mr. Moises Rios-Ochoa is a defendant even though the Indictment form which you will have with you does not in fact have his name." Id. at 372. To the extent that the jury may tend to look for a principal offender, this strongly invites the jury to view Rios-Ochoa, not Ochoa-Ceja, as that principal. The instruction is consistent with the evidence that Rios-Ochoa actually delivered the narcotics. We find that Ochoa-Ceja was not prejudiced by any of these instructions. The trial judge did not abuse his discretion by giving them.

3. Defining "Facilitate"

The trial judge instructed the jury that, in order to convict Ochoa-Ceja on the section 924(c) (1) count, it had to find that his act of carrying the firearm "facilitated the commission of the [narcotics] crime charged in Count 2." RT at 373. During deliberation, the jury requested clarification of the meaning of "facilitate."²  The court supplied the jury with the following definition: " 'facilitate' means to make easier or less difficult." Id. at 398-99. Ochoa-Ceja contends that "facilitate" is a term within the realm of common knowledge, and that the court abused its discretion by providing a definition.

"The necessity, extent and character of additional instructions are matters within the sound discretion of the trial court." United States v. Collom, 614 F.2d 624, 631 (9th Cir. 1979), cert. denied, 446 U.S. 923 (1980). The trial court has a responsibility to eliminate confusion when the jury asks for clarification of a particular issue. See United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987). Ochoa-Ceja does not attempt to explain why the definition provided is erroneous or misleading, or how the definition may have prejudiced him. The trial court's instruction fairly embodies the critical relational element of the crime. See Stewart, 779 F.2d at 540. Providing a definition of "facilitate" was not an abuse of discretion in this case.

During Ochoa-Ceja's arrest, an officer discovered two balloons containing a small amount of heroin in Ochoa-Ceja's pocket. The trial judge admitted this evidence, despite defense counsel's objection. Ochoa-Ceja contends that the evidence of personal possession of a small amount of heroin, contained in packaging dissimilar to that found in the cookie can, is not probative of intent to distribute, and is prejudicial. The trial court's decision to admit this evidence is reviewed for abuse of discretion. United States v. De Rosa, 783 F.2d 1401, 1408 (9th Cir.), cert. denied, 477 U.S. 908 (1986).

As the Government points out, Ochoa-Ceja's possession of heroin is probative of his familiarity with the drug and methods of obtaining it. Moises Rios-Ochoa testified that Ochoa-Ceja was the source of the narcotics that he delivered to the informant, Diaz. RT at 227. Ochoa-Ceja's possession of heroin tends to support this testimony. It was not an abuse of discretion to determine that the probative value of the heroin evidence outweighs its prejudicial effect.

Finally, Ochoa-Ceja argues that the district court abused its discretion in admitting testimony that the gun found on Ochoa-Ceja during his arrest was loaded. He contends that because the Government need not prove that the gun was loaded to convict under 18 U.S.C. § 924(c) (1), that evidence had no probative value, and should not have been admitted. However, as the Government points out, the fact that the gun was loaded was relevant to the "facilitation" aspect of the crime, because a loaded gun enhanced Ochoa-Ceja's ability to protect himself, the narcotics, and the proceeds of the transaction. See United States v. Mason, 658 F.2d 1263, 1271 (9th Cir. 1981); see also Stewart, 779 F.2d at 540 (suggesting that the statute contemplates situations in which possession of a firearm "embolden [s]" the defendant during commission of the underlying offense). Admission of this testimony does not constitute abuse of discretion.

Quintero's first argument is that his conviction should be reversed because the district court denied his motion to sever. The district court's decision to deny Quintero's motion for severance is reviewed for abuse of discretion. United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986).

Quintero first argues that severance should have been granted in this case because joint trial prevented him from introducing the exculpatory testimony of a codefendant. However, when the need for the testimony of a codefendant is asserted as a justification for severance, the "defendant must show that he would call the codefendant at a severed trial, that the codefendant would in fact testify, and that the testimony would be favorable to the moving party." Jenkins, 785 F.2d at 1393. No such showing has been made here. Quintero merely asserts that "cross-examination of the co-defendants Rafael Quintero and Miguel Ochoa-Ceja would have yielded exculpatory evidence." This is insufficient under Jenkins.

Quintero also argues that severance was warranted because the evidence relating to other defendants, particularly Ochoa-Ceja, was so great that the jury was unable to compartmentalize the evidence as it related to separate defendants. A party challenging denial of severance because of "spillover" effects bears "the difficult burden of demonstrating clear, manifest, or undue prejudice resulting from a joint trial." Jenkins, 785 F.2d at 1394 (quoting United States v. Sears, 663 F.2d 896, 901 (9th Cir. 1981), cert. denied, 455 U.S. 1027 (1982)).

Here, as in Jenkins, Quintero makes no particularized showing of prejudice, but merely emphasizes that he was a relatively minor actor in the scheme, and that the evidence against him was weaker than the evidence against Ochoa-Ceja. The court gave cautionary instructions, and there is nothing here to indicate that the jury was not able to obey those instructions. In fact, the jury found Quintero guilty on the cocaine count, but not the heroin count.³  This suggests that the jury properly compartmentalized the evidence. See, e.g., United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (the best evidence of a jury's ability to compartmentalize evidence is its failure to convict all defendants on all counts), cert. denied, 109 S. Ct. 513 (1988). The district court did not abuse its discretion in denying Quintero's motion to sever.

At the close of the Government's case, Quintero moved for a judgment of acquittal. He appeals the trial court's denial of that motion. The denial of such a motion is reviewed under the same standards used by the district court in considering the motion. We must view the evidence in the light most favorable to the Government to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987).

Viewed in the light most favorable to the Government, the evidence suggests that Rios-Ochoa and Ochoa-Ceja, after arranging to deliver the narcotics to the police informant, went to Quintero's apartment, and that they all left the apartment at the same time in separate cars, meeting again in a supermarket parking lot. The evidence also indicates that Quintero followed Rios-Ochoa to the motel, checking out the spot of the transaction, and then returned to the parking lot. Most important, Quintero's fingerprints were found on the packages containing the cocaine. From this evidence, a rational fact-finder reasonably could infer that Quintero was the source of the cocaine delivered by Rios-Ochoa, and that he and the other defendants were involved in a conspiracy to deliver the cocaine. The trial court did not err in denying the motion for judgment of acquittal.

Baldenegro's claims overlap substantially with those made by Quintero. He contends that "cross-examination of the co-defendants, Rafael Quintero and Miguel Ochoa-Ceja would have yielded exculpatory evidence regarding appellant's lack of knowledge of the participants or involvement in the scheme." However, like Quintero, Baldenegro made no specific showing that the codefendants would have been willing and able to provide exculpatory testimony. Baldenegro's unsupported assertions are insufficient to warrant reversal of the trial court's decision. See Jenkins, 785 F.2d at 1394.

Like Quintero, Baldenegro also claims that severance is warranted due to the disparity in the evidence. Again, there is no reason to believe that the jury could not compartmentalize the evidence. The jury's acquittal of Quintero and Baldenegro on the heroin charge suggests that it was capable of compartmentalizing the evidence. See Unruh, 855 F.2d at 1374. The district judge did not abuse his discretion in denying Baldenegro's motion for severance.

Baldenegro also challenges the trial court's denial of his motion for judgment of acquittal. However, Baldenegro's fingerprints were found inside the cookie can containing the heroin and cocaine. He had been seen getting out of the Cordoba and getting into the green Datsun with Miguel Ochoa-Ceja before Rios-Ochoa received the cookie can. Again, a rational fact-finder could infer Baldenegro's involvement with the other defendants in a plan to deliver the narcotics. The facts presented by the Government are sufficient to warrant denial of Baldenegro's motion.

The jury found Baldenegro guilty of aiding and abetting distribution of cocaine, but not of heroin. Baldenegro argues that his conviction must be reversed, because the verdict is inconsistent. He argues that the inconsistency arises because his prints were found inside the cookie can containing both drugs. However, inconsistent verdicts do not require reversal of the conviction. United States v. Powell, 469 U.S. 57, 63 (1984); United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir. 1986).

In addition, the verdict is not necessarily inconsistent. The evidence indicated that Baldenegro was at Quintero's apartment when Ochoa-Ceja arrived. The evidence suggests that Ochoa-Ceja may have obtained the cocaine at Quintero's apartment. Neither Quintero's nor Baldenegro's fingerprints were on the packages of heroin. The jury may well have determined, in part on the basis of the fingerprint evidence, that there was sufficient evidence to convict with respect to the cocaine, but not the heroin.

Baldenegro argues that the Government failed to prove that the crime occurred within the District of Oregon. This argument is utterly without merit. There is considerable testimony relating to specific places within the City of Salem from which venue readily may be inferred. Cf. United States v. Lukenbill, 421 F.2d 849, 850 (9th Cir. 1970).

CONCLUSION

The defendants have raised numerous challenges to their convictions. None of the challenges, however, warrant reversal. The judgment below is

AFFIRMED.