Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1396 (9th Cir. 1989)

No. 87-5345.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and FLETCHER, Circuit Judges, and C.A. MUECKE,*  District Judge.

MEMORANDUM

Santiago, a federal prisoner, challenges his convictions for conspiracy to possess, distribute, and aid and abet the possession and distribution of cocaine in violation of 21 U.S.C. § 846 (Count I) and for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (Count II). He raises numerous grounds: failure by the district court in non-jury trial to apply the "beyond a reasonable doubt" standard, failure to consider all the evidence, improper admission of foundationless expert testimony containing unsubstantiated hearsay, insufficient evidence of his connection to the conspiracy, that double jeopardy barred both his convictions, and that his conviction for Count II was improper under Pinkerton v. United States, 328 U.S. 640 (1946) (Pinkerton) . The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over Santiago's timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

* Pointing to the opinion issued by the court, Santiago argues that the court failed to apply properly the constitutionally mandated requirement of proof beyond a reasonable doubt. Santiago concedes that the district court explicitly stated that it was "satisfied beyond a reasonable doubt" that he was guilty of Count I, the predicate of Count II. Santiago claims that this formulation of the reasonable doubt standard pays only lip service to the constitutional standard, and that the district court's actual reasoning as revealed in its opinion failed to use that standard.

The court was not required to preface every sentence with recitation of the reasonable doubt standard. Read as a whole, the opinion applied the proper standard.

II

Santiago contends that the district court committed reversible error by failing to consider all the evidence in the case. The district judge indicated that he would not watch all the videotapes which were admitted into evidence, and requested that the parties play in open court whatever portions they wanted him see. Defense counsel made no objection. Thus, any objection is waived absent a showing of plain error. United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985) (Rogers) . Santiago does not make such a showing.

Pointing to our decision in United States v. Binder, 769 F.2d 595 (9th Cir. 1985), Santiago alleges that prejudice inherently results from viewing only a portion of videotaped evidence, because of the resulting overemphasis of those tape portions which are reviewed. But Binder did not establish a per se reversal rule where courts replay videotaped testimony. United States v. Sacco, 869 F.2d 499 (9th Cir. 1989), makes it clear that our review of whether undue emphasis occurred requires us to consider the context, the "particular facts and circumstances" which surrounded the viewing. Id. at 502. Here, the court allowed the parties to play whatever portions of the tapes they wished and to put those portions of the tapes into context. The court also read transcripts of the videotapes. There was no prejudice, let alone any plain error.

III

Santiago next contends that there was insufficient evidence to support his conviction under Count I. In analyzing the sufficiency of the evidence, we view the evidence in the light most favorable to the government, United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.) (Fleishman), cert. denied, 459 U.S. 1044 (1982), in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court must draw reasonable inferences from the facts by assuming the fact finder resolved all conflicts in favor of the verdict. Id. The evidence thus need not be wholly inconsistent with every reasonable hypothesis except that of guilt. Id. at 326. The standard is the same for jury and bench trials. United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980).

Once a conspiracy is shown, "evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict with knowing participation in the conspiracy." United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original). The existence of the narcotics conspiracy here is not disputed--the question is whether a slight connection between the defendant and the conspiracy was proven beyond a reasonable doubt. The district court acknowledged that the defendant was not actually seen distributing cocaine. The court stressed, however, the defendant's close proximity to several clandestine transactions, including at least one involving narcotics, his close connections with various people involved in the cocaine transactions, his involvement in delivering $1 million in cocaine proceeds over a five-day period for laundering, and his telephone conversations discussing various cocaine deals. The evidence, viewed in the light most favorable to the verdict, was sufficient.

IV

Santiago contends that the court improperly admitted foundationless expert testimony containing unsubstantiated hearsay. He complains first of a passage in which a narcotics agent, properly qualified as an expert in narcotics investigation, offered his expert interpretation that a telephone conversation involving Santiago was a conversation about a narcotics transaction. Santiago's assertion that this passage was admitted over defense objection is untrue. The government's first attempt was stricken by the court upon defense objection as speculative. The defense made no subsequent objection when the prosecutor laid a proper foundation. The agent again testified, this time without objection, that this was a cocaine or narcotics transaction.

Absent defense objection, we review only for plain error. Rogers, 769 F.2d at 1425. Here, a proper foundation was laid, as the agent compared this conversation to others he had heard "on numerous occasions whereby narcotics transactions are being arranged." There was no plain error.

Santiago raises a similar complaint about expert testimony regarding a conversation in which Santiago said "don't give directions on [the cellular car] telephone but on the public telephone." The expert testified that he based his opinion that this conversation was "that of a narcotics transaction" on the pattern of conversation: nothing was specific, everything was very general.

The same reasoning we applied to Santiago's first evidentiary complaint applies here as well. There was no objection, and a proper foundation was laid. There was no plain error.

Santiago characterizes as summary hearsay the narcotics agent's expert testimony concerning operation Pisces (the government's undercover operation), as well as the money-laundering operations of various Colombian narcotics families. But experts may rely on hearsay in formulating opinions. United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988), cert. denied, 109 S. Ct. 1122 (1989); Fed.R.Evid. 703. There was no manifest error. United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.) (Kinsey), cert. denied, 108 S. Ct. 2882, 109 S. Ct. 99 (1988). Expert witnesses may properly testify as to the modus operandi of the scheme with which a defendant is involved, and the role of the defendant. Fleishman, 684 F.2d at 1335-36. In addition, government agents may testify as to the general practices of criminals to establish a defendant's modus operandi. Id. at 1335.

Testimony about the role of one family organization's role in money laundering was admitted over objection on relevancy grounds. There was no abuse of discretion in finding this testimony relevant. Other objections took no exception to the expert's general foundation for discussing the Colombian money laundering scheme, but challenged specific expert assertions as speculative and lacking specific foundation. The court did overrule one such objection, but we find no manifest error in this decision. See Kinsey, 843 F.2d at 388.

Santiago challenges admission of expert testimony by narcotics agent Gosnell as to the various "stages" of an alleged narcotics transaction involving Santiago. Gosnell was recognized by the court without defense objection as an expert in the narcotics field. Such an expert witness's testimony should not be excluded, even where the defense objects, unless inherently misleading or extremely prejudicial. See id. at 389. The court sustained numerous defense objections based on speculation and ambiguity. Although the court overruled other objections based on speculation, the court was clearly aware of the defendant's contentions, and presumably assigned the proper weight to Gosnell's testimony in light of other evidence. Santiago points to statements by Gosnell that he had no "rational reasoning" or "rational explanation" for parts of his testimony as proof of the speculative quality of this testimony. But the very fact that the agent admitted his uncertainty suggests that this testimony cannot have been very prejudicial, since the court was aware of this uncertainty. Moreover, this testimony concerned matters well within the agent's range of expertise. The decision to admit this testimony was not manifestly erroneous. See id. at 388.

Santiago next challenges the admission of expert agent testimony concerning his control or authority over Juan (another alleged member of the conspiracy), Juan's position as his employee, and Juan's involvement in cocaine activity. No objection was made to any of this testimony, and thus we cannot and will not disturb the trial court's decisions absent plain error. See Rogers, 769 F.2d at 1425. Santiago now contends that this testimony was speculative, without foundation in the facts. In each case, however, the agent explained in detail his foundation for these statements, allowing the court to make its own judgment as to the proper weight it should give the testimony. There was no plain error.

Santiago asserts that it was especially improper to admit the speculative testimony of expert narcotics agents because that alone connects him to the charged narcotics activities. There was, however, substantial other evidence including Santiago's own statements to support that connection. Because the experts here provided in detail the bases for their opinions, testimony about such opinions was neither "inherently misleading [n]or unfairly prejudicial." Kinsey, 843 F.2d at 389.

V

Santiago argues that his conviction on Count I was barred by double jeopardy, because this conviction was based on the same evidence used to convict him of the various money laundering offenses to which he pled guilty. He further argues that his conviction on Count II is similarly barred because it is predicated on his conviction on Count I.

Double jeopardy is a defense that must be pleaded. Failure to raise a double jeopardy claim against part or all of an indictment waives the right against double jeopardy. Fed. R. Crim. P. 12(b) (1); Haddad v. United States, 349 F.2d 511, 514 (9th Cir.), cert. denied, 382 U.S. 896 (1965). United States v. Blocker, 802 F.2d 1102 (9th Cir. 1986), provides no support to Santiago. Blocker involved a claim of double jeopardy challenging the imposition of multiple sentences, not the multiplicity of an indictment. Id. at 1103-04. While claims challenging the imposition of multiple sentences may be raised for the first time on appeal, id., claims such as Santiago's which challenge the indictment are waived unless raised at the trial court. We therefore reject Santiago's claim that his convictions were barred by double jeopardy.

VI

Finally, Santiago contends that Pinkerton does not support his conviction on Count II for possession of cocaine with intent to distribute. The district court found that Santiago had knowingly joined "a conspiracy to knowingly and intentionally possess with intent to distribute, and to distribute and to aid and abet the distribution of cocaine." Santiago does not dispute the court's finding that a member of the conspiracy possessed with intent to distribute at least 12 kilograms of cocaine. Rather, Santiago contends that even if he was properly convicted of membership in a conspiracy to aid and abet the possession or distribution of narcotics under Count I, the conspiracy he joined differs from the conspiracy to possess and distribute narcotics which possessed the cocaine involved in Count II. Put differently, he suggests that even if he made an agreement to join the conspiracy to aid and abet, such an agreement to aid and abet differs from the agreement made by members of the other conspiracy to possess and distribute.

Santiago's argument rests on his misunderstanding of the indictment and the district court's opinion. Under Count I, he was not merely convicted of conspiracy to aid and abet--he was convicted of conspiracy to possess, distribute, and aid and abet the possession and distribution of cocaine. The possession of the 12 kilograms of cocaine was clearly an overt act committed by Santiago's co-conspirator in furtherance of a conspiracy which the district court found that Santiago had jointed. See Pinkerton, 328 U.S. at 646-48.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

 *

Honorable C.A. Muecke, United States District Judge, District of Arizona, sitting by designation