Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^* 

Ramon Magana-Rosales and Jorge Canchola-Larios appeal their convictions, following jury trial, of conspiracy to distribute and to possess with intent to distribute heroin and of possession of heroin with intent to distribute. We affirm.

Magana contends that the district court incorrectly instructed the jury concerning liability under Pinkerton v. United States, 328 U.S. 640, 647 (1946). Magana claims that the district court did not accurately set forth all of the elements of vicarious liability under Pinkerton. Although Magana objected at trial to the giving of any Pinkerton instruction, he did not distinctly object to the language of the instruction given by the court. We therefore review the instruction for plain error. See United States v. Kessi, 868 F.2d 1098, 1102 (9th Cir. 1989). Plain error is "highly prejudicial error affecting substantial rights [,] and is found only in exceptional circumstances." United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1987) (quoting United States v. Harris, 738 F.2d 1068, 1072 (9th Cir. 1984)). It must be highly probable that the error materially affected the verdict. Kessi, 868 F.2d at 1103 (citing Ramos, 861 F.2d at 230). Magana contends that the court failed to state: 1) that the substantive crime must have been committed by a member of the conspiracy; 2) that the substantive crime must have been committed pursuant to a conspiratorial plan; 3) that the substantive crime must have been reasonably foreseen to have been a crime that might have been committed by a co-conspirator. The court's instructions make the first two requirements clear. Failure to state the third requirement was not plain error. The substantive crime, possession of heroin with intent to distribute, was one of the objects of the conspiracy. It is unlikely that a differently instructed jury would have found that commission of that crime by co-conspirators was not foreseeable.

Magana also contends that the instruction on Pinkerton liability should not have been given at all. Because this claim was made at trial, we review for abuse of discretion. Kessi, 868 F.2d at 1097. Magana claims that the Pinkerton theory of liability may not be used to convict a defendant of possession with intent to distribute a controlled substance. Our decisions are to the contrary. See, e.g., United States v. Crespo De Llano, 838 F.2d 1006, 1019 (9th Cir. 1987).

Magana also claims that 21 U.S.C. § 841(b) (1) (A) is unconstitutional. The statute makes possession of more than one kilogram of heroin with intent to distribute punishable by a minimum ten year sentence. Magana claims that the provision violates the Equal Protection Clause, the Eighth Amendment, and the Constitution's separation of powers provisions. We considered and rejected each of these contentions in United States v. Kinsey, 843 F.2d 383, 392-394 (9th Cir.), cert. denied, 109 S. Ct. 99 (1988).

Magana and Canchola contend that the evidence was insufficient to convict them of possession of heroin with intent to distribute. We review this claim to determine whether "viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Calabrese, 825 F.2d 1342, 1348 (9th Cir. 1987). The evidence supports the convictions on either of two theories. First, a rational jury could have found that Magana and Canchola constructively possessed the heroin. "One has constructive possession of contraband if he knows of its presence and has power to exercise dominion and control over it." Williams v. United States, 418 F.2d 159, 162 (9th Cir. 1969), aff'd, 401 U.S. 646 (1971). The jury considered evidence that Magana arranged a heroin sale, met with drivers of a vehicle containing heroin before they transported the heroin to the scene of the sale, told a man posing as a buyer that the heroin was nearby, and accompanied a man carrying a portion of the heroin to the scene of the sale. Based on this evidence, a rational jury could have found beyond a reasonable doubt that Magana constructively possessed the heroin. The jury heard testimony that Canchola drove the car in which the heroin was transported. This was sufficient to suport a finding that Canchola constructively possessed the heroin. See United States v. Haro-Portillo, 531 F.2d 962, 963 (9th Cir. 1976). The jury could also have properly found Canchola and Magana guilty based a vicarious liability theory. See Crespo de Llano, 838 F.2d at 1019 (citing Pinkerton, 328 U.S. at 646-48).

Canchola also claims that even if there was sufficient evidence to convict him of possession of heroin, there was insufficient evidence to convict him of possession of more than one kilogram of heroin. A forensic chemist testified that the heroin taken from the vehicle Canchola was driving weighed 1006.3 grams on an electronic scale with an accuracy of plus or minus 0.1 gram. An agent had weighed the heroin on a mechanical scale prior to sending it to the laboratory and concluded that it weighed 925 grams. The agent testified that he believed he had made a mistake. A rational jury could have accepted the chemist's measurement rather than the agent's. There was insufficient evidence to support Chanchola's conviction of possession of more than one kilogram of heroin.

Canchola claims that the evidence was insufficient to convict him of conspiracy to distribute and to possess with intent to distribute heroin. There was evidence that Canchola drove a vehicle containing heroin to the scene of a heroin sale, met with the sellers when they were given a portion of the heroin, watched the parking lot where the sale was to occur, and attempted to drive away when the sellers were arrested. This evidence was sufficient to support Canchola's conspiracy conviction.

AFFIRMED.