Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^* 

Victoria Rogel and Francisco Obregon-Rodriguez ("Rodriguez") were indicted for possession with intent to distribute cocaine and conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1). After a jury trial, each was convicted of both counts. The district court denied Rodriguez's posttrial motion for a new trial. The district court granted Rogel's motion for acquittal, made under Fed. R. Crim. P. 29(c). Rodriguez and the government appeal from the district court's orders.

* United States v. Obregon-Rodriguez, No. 87-1358

Rodriguez argues that the government's withholding of information relevant to his defense violates due process and the court's pretrial order. He also contends that the district court erred in failing to grant him a new trial, a continuance, or a severance. We disagree.

Under the due process clause a criminal defendant has a constitutional right of access to certain favorable evidence, including both exculpatory and impeachment evidence. See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963). However, unless the defendant's interest in a fair trial is infringed by the withholding of information, there is no constitutional violation. United States v. Agurs, 427 U.S. 97, 108 (1976).

Whether a delay in turning over evidence amounts to an unconstitutional suppression of it depends on whether the delay "substantially prejudiced" defendants. United States v. Baxter 492 F.2d 150, 174 (9th Cir.), appeal dismissed, 414 U.S. 801 (1973), cert. denied, 416 U.S. 940 (1974). Here, all of the withheld information was provided by the third day of trial and the vast majority of the information relating to the connection between Rodriguez, Trevino (one of the conspirators), and the Nizets (prosecution witnesses and associates of Trevino) was released on the first day of trial. In addition, the district court permitted defense counsel to interview the Nizets prior to trial. Rodriguez's counsel was thus given sufficient time to prepare a defense. The withheld information therefore did not substantially prejudice Rodriguez, and we find that there was no due process violation.

Rodriguez argues that the district court erred in refusing to impose any sanction for the government's admitted violation of the pretrial order by failure to disclose information regarding Trevino and the Nizets. We have held that "the sanctions to be imposed, if any, because of a failure to comply with a pretrial discovery order rest within the sound discretion of the trial court." Baxter 492 F.2d at 174.

We find that the district court did not abuse its discretion in failing to grant a new trial. As noted above, the information relevant to Rodriguez's defense was received by his counsel in sufficient time to prepare a defense, and the court took steps to delay the Nizets' testimony and to permit counsel to interview them, enabling Rodriguez to prepare an adequate defense.

Rodriguez next argues that the district court erred by failing to grant a severance or continuance. The denial of a motion for a continuance will not be reversed absent a clear abuse of discretion. United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988), cert. denied, 109 S. Ct. 1122 (1989). To demonstrate reversible error from the denial of a continuance, the defendant must show that the denial resulted in actual prejudice to his defense. The only prejudice that Rodriguez asserts resulted from the denial was that he was unable adequately to prepare his defense due to the failure to obtain sufficient information, primarily involving the Nizets. This is essentially the same claim asserted above in the discussion of due process and the court's pretrial order, and the same analysis applies. Rodriguez's ability to examine the relevant evidence and to prepare a defense was not compromised substantially by the procedures followed by the district court.

As for the motion to sever, we find that the record indicates that it was not preserved. Motions to sever must be timely made and properly maintained or they will be deemed waived. United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972). To preserve the point, the motion to sever must be renewed at the close of all evidence. Id. at 1057. Premature motions to sever not diligently pursued cannot serve as insurance against an adverse verdict. United States v. Gee, 695 F.2d 1165, 1170 (9th Cir. 1983). Since Rodriguez failed to renew the motion after the court denied a continuance, we deem it waived.

Finally, Rodriguez contends the district court's denial of his motion for a new trial was impermissibly based on his gender and nationality. We find no violation of the equal protection clause. Even if Rodriguez meets the initial burden by his assertion that he was punished more severely than his co-defendant, who was white and female, the record tends to rebut his prima facie case of discrimination. Rodriguez's differential treatment can be justified on the basis of his greater involvement in the conspiracy to distribute narcotics.

II

United States v. Rogel, No. 88-1015

The government argues that the district court erred in granting Rogel's motion for acquittal. We disagree.

Evidence of even a slight connection to an established conspiracy is sufficient to convict a defendant of knowing participation. United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987) (citation omitted); Cuevas, 847 F.2d at 1422; United States v. Penagos, 823 F.2d 346, 350 (9th Cir. 1987). However, the slight evidence must be "of the quality which will reasonably support a conclusion that the particular defendant in question wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy." United States v. Freie, 545 F.2d 1217, 1222 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977). Here, the evidence is insufficient to support a finding of such participation.

Of the long list of activities offered by the government, the ones most damaging to Rogel are (1) her alleged communication with the drug carrying plane; (2) the fact that someone was looking out the window; and (3) the fact that the lights were turned off and on following the unloading of the narcotics. Although counter-surveillance activities qualify as acts in furtherance of a conspiracy, see Penagos, 823 F.2d at 348, it is unclear that these alleged acts of counter-surveillance were undertaken by Rogel. Rogel did not testify and no evidence was apparently offered on this point. Even if these activities were undertaken by Rogel, they are insufficient to support the conclusion that Rogel wilfully participated in the conspiracy with intent to further its purpose. In several cases with fact patterns similar to the instant case, we have reversed convictions for conspiracy to possess and distribute even when the circumstantial evidence was stronger than that against Rogel. See, e.g., Penagos, 823 F.2d at 349-50 (describing cases). We therefore affirm the district court's determination that the evidence offered was insufficient to support the jury verdict.

The government relies on the same evidence to support the jury verdict on the possession count. Where, as here, the premises are shared by more than one person, mere proximity to contraband, presence on the property where it is found, and association with a person or persons having control of it are insufficient to establish constructive possession. See United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987). A person may not be convicted of illegal possession unless it has been shown that he knows contraband is present and he is capable of exercising dominion and control over the contraband. Id. at 1319.

The district court was correct in its determination that the evidence was insufficient to support the jury's conclusion.

AFFIRMED.