Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1987)

MEMORANDUM^** 

Idael Sablon and Antonio Gutierrez appeal convictions arising out of a large cocaine sale. Sablon and Gutierrez contend that the district court erred by admitting certain declarations of former co-defendant Pablo Garcia-Franco as statements of a co-conspirator. Gutierrez contends that his convictions are not supported by sufficient evidence. Despite these contentions, we affirm.

Background

Idael Sablon and Antonio Gutierrez were indicted and charged with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (1). Co-conspirator Garcia-Franco was indicted along with Sablon and Gutierrez on these two counts and an additional count of possession with intent to distribute cocaine. Garcia-Franco pleaded guilty to one possession count and then testified on behalf of Sablon and Gutierrez at their trial.

In June 1987, Drug Enforcement Administration Special Agent Javier Jaquez, working undercover, contacted Garcia-Franco to arrange for the purchase of five kilograms of cocaine in Los Angeles. Garcia-Franco telephoned his "source" in the presence of Agent Jaquez, and Agent Jaquez testified he heard Garcia-Franco ask for "Israel".¹  the "source" was unavailable and no transaction took place. Over the next two months, however, Agent Jaquez and Garcia-Franco spoke by telephone about arranging a cocaine deal.

On August 6, 1987, Garcia-Franco called Agent Jaquez to inform him that Garcia-Franco was in Sacramento as planned and could deliver seven kilograms of cocaine. Agent Jaquez, wearing a recording device, met Garcia-Franco and accompanied him to his motel room. During the drive to the motel room, Agent Jaquez asked Garcia-Franco who else was in the room. When Garcia-Franco responded that "two other friends" were with him, Agent Jaquez indicated repeatedly that he was worried about other people being in the room if they were not involved in the cocaine transaction. Garcia-Franco told Agent Jaquez not to worry about it and that his friends knew about the pending deal.

When Garcia-Franco and Agent Jaquez arrived, Sablon and Gutierrez were in the motel room. Agent Jaquez testified he heard Sablon introduced as "Israel". After a brief conversation, Sablon or Garcia-Franco produced seven kilograms of cocaine in seven separate packages.²  Sablon acknowledged that the appearance of the cocaine differed from package to package, but assured Agent Jaquez that it all came from down south. Gutierrez told Agent Jaquez the cocaine was of good quality. Agent Jaquez then tested the cocaine for purity, and reported that the cocaine from different packages appeared to be of different quality. Sablon commented that Agent Jaquez's cocaine testing device might not "work all that great." Gutierrez viewed the cocaine under a microscope and confirmed that the samples were different. However, he again assured Agent Jaquez that the cocaine was high quality and denied the suggestion that it might have been "cut".

The discussion then turned to future cocaine deals. Agent Jaquez stated he wanted to purchase four more kilograms, and Sablon told him that could be arranged within the hour. Gutierrez agreed. Sablon and Gutierrez also told Agent Jaquez that he could buy cocaine from them whenever he wanted.

Satisfied with the quality of the seven kilograms, Agent Jaquez stated that it would take approximately an hour and a half to get the money and count it. Garcia-Franco agreed to go with Agent Jaquez to pick up the money. Immediately after this discussion, Sablon, Gutierrez and Garcia-Franco were arrested.

At trial, Sablon and Gutierrez objected to admission of testimony regarding: (1) Garcia-Franco's statements to Agent Jaquez in the car on the way to the motel room, (2) the conversation in the motel room during the cocaine transaction, and (3) Garcia-Franco's statement on the telephone regarding "Israel" as his "source" during the unsuccessful transaction in Los Angeles. The district court initially sustained the objection to Garcia-Franco's statement about his "source," but overruled the other objections on the grounds that there was sufficient evidence of a conspiracy and that Sablon and Gutierrez were connected to the conspiracy. Later, after Garcia-Franco testified that "Ismial" was his Los Angeles source, the district court reversed its previous ruling and allowed Agent Jaquez to testify that he heard Garcia-Franco ask for "Israel".³ 

Sablon and Gutierrez were tried before a jury and found guilty on both counts. They now appeal.

Discussion

1. Admissibility of Co-conspirator's Statements.

The proper standard of review regarding the admission of co-conspirator statements under Fed.R.Evid. 801(d) (2) (E) is uncertain. United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988); United States v. Zavala-Serra, 853 F.2d 1512, 1514 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988).⁴  This court has utilized both the de novo and clearly erroneous standard to review a district court's determination that the Government has established the existence of a conspiracy and the defendant's involvement in the conspiracy as a factual predicate to admission of a co-conspirator's statements. See, e.g., Silverman, 861 F.2d at 576; Zavala-Serra, 853 F.2d at 1514; Gordon, 844 F.2d at 1402. Here, however, as in Silverman, Zavala-Serra, and Gordon, the proper standard of review need not be resolved. Under either a de novo or a clearly erroneous standard the conclusion would be the same.

We review the district court's determination that a statement was made in the course of and in furtherance of the conspiracy for clear error. Zavala-Serra, 853 F.2d at 1515.

"A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d) (2) (E); Silverman, 861 F.2d at 576; Zavala-Serra, 853 F.2d at 1515. Co-conspirator statements are admissible only if the district court determines that the government has established, by a preponderance of the evidence, the accused's knowledge of and participation in an existing conspiracy. Silverman, 861 F.2d at 576; Zavala-Serra, 853 F.2d at 1514; Gordon, 844 F.2d at 1402. Although the co-conspirator's statements may be used to prove these two preliminary facts, Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 2781-82 (1987), this circuit also requires some evidence of these facts that is independent of the co-conspirator's out-of-court statements. Silverman, 861 F.2d at 771; Gordon, 844 F.2d at 1402. Because of the presumptive unreliability of a co-conspirator's statement, this corroborating evidence must be "fairly incriminating," not merely "marginally corroborative." Silverman, 861 F.2d at 578-79. In addition, the statements must have been made "during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d) (2) (E).

Here, statements by Sablon and Gutierrez to Agent Jaquez in the motel room were independent of the declarations by Garcia-Franco, see Gordon, 844 F.2d at 1402, and establish a prima facie case that a conspiracy existed and that Sablon and Gutierrez were involved in it. See Zavala-Serra, 853 F.2d at 1514. Sablon and Gutierrez came to Sacramento from Los Angeles with Garcia-Franco. In the Sacramento motel room, they told Agent Jaquez that, although the seven packages of cocaine looked different, the cocaine was uniformly of good quality. Gutierrez even examined different samples of cocaine under a microscope before commenting on their quality. Sablon commented on the accuracy of Agent Jaquez's cocaine testing device. In addition, Sablon stated that he could deliver four more kilograms to Agent Jaquez within an hour, and Gutierrez agreed. These statements provide sufficient evidence, independent of Garcia-Franco's hearsay testimony, that a conspiracy to distribute cocaine existed and that Sablon and Gutierrez were connected to it. See Gordon, 844 F.2d at 1402.

Further, the district court did not commit clear error in determining that Garcia-Franco's statements to Agent Jaquez were made "during the course and in furtherance of the conspiracy." See Fed.R.Evid. 801(d) (2) (E). "To satisfy this requirement, the statements must "further the common objectives of the conspiracy,' or 'set in motion transactions that [are] an integral part of the [conspiracy].' ' " United States v. Paris, 827 F.2d 395, 400 (9th Cir. 1987) (citation omitted). Agent Jaquez's testimony that during the Los Angeles telephone call Garcia-Franco inquired whether "Israel" had arrived was clearly "in furtherance of" the conspiracy because the statement tended to identify Garcia-Franco's supply of cocaine and to ensure Agent Jaquez's continued interest in purchasing cocaine. See id. at 400.⁵  Similarly, Garcia-Franco's responses to Agent Jaquez's questions during the car ride to the motel room were made to further the conspiracy's objective of selling cocaine. Agent Jaquez asked whether anyone else would be present during the sale of the cocaine and Garcia-Franco responded that two friends of his would be there, but that they knew about the deal and everything would be all right. This statement was more than idle conversation; it was made to allay any fear Agent Jaquez might have had and to induce Agent Jaquez's continued participation. See United States v. Crespo de Llano, 838 F.2d 1006, 1017 (9th Cir. 1987); United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir. 1977), cert. denied, 435 U.S. 906 (1978) (case interpretingco-conspirator exception prior to Fed.R.Evid. 801(d) (2) (E)).⁶ 

2. Sufficiency of the Evidence to Support Gutierrez's Convictions.

Because Gutierrez failed to renew his motion for a judgment of acquittal at the close of his case, he effectively waived his objection to the sufficiency of the government's evidence. See United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, 109 S. Ct. 812 (1989). We therefore review the sufficiency of the government's evidence for plain error or to prevent manifest injustice. Id. See Fed. R. Crim. P. 52(b).

To establish a conspiracy the government must prove (1) an agreement to accomplish an illegal objective, (2) an act or acts in furtherance of the objective, and (3) the intent required to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

First, there was sufficient evidence that Gutierrez acted as part of a conspiracy to accomplish the illegal goal of possessing cocaine with intent to distribute. A conspiracy may be proved by circumstantial evidence that the defendant acted with another to accomplish the illegal purpose. See id. As discussed above, Gutierrez was present when the cocaine was produced and sampled by Agent Jaquez. Gutierrez participated in the negotiations to sell the cocaine. Although Gutierrez did not produce the cocaine and give it to Agent Jaquez, Gutierrez viewed the cocaine under a microscope and explained to Agent Jaquez that the cocaine was of good quality and uncut. Further, Gutierrez and Sablon told Agent Jaquez that more cocaine was available. This conversation is sufficient to show an agreement among Gutierrez, Sablon and Garcia-Franco to accomplish an illegal purpose. See Penagos, 823 F.2d at 348.

Second, sufficient evidence supports the jury's determination that Gutierrez acted in furtherance of the illegal purpose. See id. Gutierrez and Sablon traveled from Los Angeles to Sacramento with Garcia-Franco. Their presence in the motel room, when viewed in the context of their assurances that the cocaine was of good quality, may be reasonably construed as an attempt to induce Agent Jaquez to make the purchase of the cocaine. Id.

Finally, there is sufficient evidence to infer that Gutierrez had the requisite intent to commit the underlying crime of possession with intent to distribute cocaine. Sablon and Gutierrez engaged in a conversation with Agent Jaquez regarding the payment for the cocaine. This conversation creates a reasonable inference that Gutierrez intended to distribute the cocaine to Agent Jaquez. Further, the search following Gutierrez's arrest revealed a coded telephone directory and a telephone pager. Agent Jaquez testified that cocaine traffickers use coded telephone directories and pagers. The coded directory and the pager, as well as Gutierrez's statements regarding the quality of the cocaine, provide sufficient circumstantial evidence of Gutierrez's intent to sell the cocaine. In addition, Gutierrez's intent to distribute cocaine may be inferred from the large amount of cocaine in the motel room. See United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.), cert. denied, 109 S. Ct. 369 (1988).

Gutierrez's conviction for possession with intent to distribute cocaine must be upheld if the government proves that he (1) knowingly (2) possessed the cocaine (3) with the intent to distribute it. See United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir.), cert. denied, 481 U.S. 1023 (1987).

Here, there is sufficient evidence that Gutierrez knowingly possessed the cocaine in the motel room. Gutierrez was part of a conspiracy to distribute the cocaine, as evidenced by his statements about the quality of the drug and other evidence discussed above. Thus, Gutierrez is charged with possession of the cocaine in the motel room. See Crespo de Llano, 838 F.2d at 1019, 1020 (party to an unlawful conspiracy may be held responsible for substantive offenses committed by co-conspirators). See also Savinovich, 845 F.2d at 837 (" [I]f there is a rational basis for attributing interest in the contraband to one party because of relationship with another, a trier of fact can infer sufficient knowledge to sustain a conviction for possession"). Cf. United States v. O'Connor, 737 F.2d 814, 818 (9th Cir. 1984), cert. denied, 469 U.S. 1218 (1985) (controlling tests performed on cocaine and supervising secreting of cocaine constitutes constructive possession; performing tests on cocaine and handling over two-hour period is actual possession).

Furthermore, Gutierrez's knowledge that he possessed the cocaine may be inferred from the large quantity of cocaine present in the motel room. See Penagos, 823 F.2d at 351 (conviction reversed when there was no cocaine in apartment where defendant was arrested); Walitwarangkul, 808 F.2d at 1354 (Ferguson, J. concurring). In addition, Garcia-Franco's statements that his friends knew about the deal and Sablon's and Gutierrez's statements assuring Agent Jaquez that the cocaine was of good quality and that more cocaine could be available provide sufficient circumstantial evidence to support the finding that Gutierrez had knowledge that he possessed cocaine.

Finally, Gutierrez's intent to distribute may be inferred from the quantity of cocaine in the motel room and the price which was to be charged ($22,000 per kilogram). See Savinovich, 845 F.2d at 838; United States v. Valentin, 569 F.2d 1069, 1071 (9th Cir. 1978). There was therefore sufficient evidence to support Gutierrez's convictions.

Both convictions are AFFIRMED.