Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

MEMORANDUM^* 

Ray Land appeals his conviction for conspiracy to possess with the intent to distribute, and possession with the intent to distribute approximately 50 grams and 1003.3 grams of cocaine. Land raises numerous issues which we will consider in the order that he raised them. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

"The double jeopardy clause precludes the government from dividing a single conspiracy into multiple charges and pursuing successive prosecutions against the defendant." United States v. Guzman, 852 F.2d 1117, 1119-20 (9th Cir. 1988). Land contends that the double jeopardy clause precludes his prosecution in the Southern District of California because he previously had been prosecuted on conspiracy charges in the Central District of California. The indictment against him in the Central District was dismissed after a trial resulted in a hung jury and eventual mistrial, and the government failed to retry him within seventy days as required under the Speedy Trial Act.

The district court in the Southern District denied his motion to dismiss the indictment after it concluded that the conspiracies were separate. "We review the district court's decision de novo, viewing the evidence in the light most favorable to the prevailing party in the district court...." Id. at 1119 (citation omitted).

We analyze several factors to determine whether two conspiracy counts charge the same offense and so place the defendant in double jeopardy: 1) the periods of time covered by the alleged conspiracies; 2) the places where the conspiracies allegedly occurred; 3) the persons charged as co-conspirators; 4) the overt acts alleged; and 5) the statutes alleged to have been violated. United States v. Bendis, 681 F.2d 561, 565 (9th Cir. 1981), cert. denied, 459 U.S. 973 (1982), (quoting United States v. Mayo, 646 F.2d 369, 372 (9th Cir.) (per curiam), cert. denied, 454 U.S. 1127 (1981)).

The evidence establishes that two separate conspiracies existed. Although the time period covered by the two alleged conspiracies is roughly the same, and the statutes alleged to have been violated are the same, no single factor is dispositive of whether there was a single conspiracy. Guzman, 852 F.2d at 1121. The co-conspirators involved in the two conspiracies, with the exception of Land, are entirely different. The locations of the two conspiracies, although both within California, were in different parts of the state. See id. at 1120. Last, the overt acts alleged and proven in the Central District were distinct from the ones proven in the Southern District. The overt acts alleged in the Central District indictment all occurred within Los Angeles, and involved a drug sale to a DEA agent at the Los Angeles airport. The overt acts in the Southern District involved drug sales that occurred in San Diego. Although testimony regarding the events in San Diego was admitted into evidence in the trial in the Central District, it was admitted only to negate Land's entrapment defense by showing his criminal predisposition.

The burden of proving that the two conspiracies were the same is on Land. See id. at 1119. Land fails to meet this burden because the evidence establishes that the two conspiracies were separate.

Land also contends that the indictment in the Southern District should have been dismissed because the government was estopped from challenging his entrapment defense based on the prior trial in the Central District. Land contended at both trials that he was entrapped because a governmental informant, Larry Darnell, initiated the criminal design.

The doctrine of collateral estoppel does apply in criminal trials. See Ashe v. Swenson, 397 U.S. 436, 443-444 (1970). To invoke collateral estoppel in a criminal case, four requirements must be met: 1) the issues be sufficiently similar and material in both actions; 2) the issue be litigated in the first; 3) the issue necessarily has been decided in the first action; and 4) the first action resulted in a final and valid judgment. See United States v. Webbe, 755 F.2d 1387, 1388 (9th Cir. 1985) (discussing the first three requirements); United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988) (" 'when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.' " (quoting Ashe, 397 U.S. at 443) (emphasis added)).

In this case, Land has failed to establish that the first trial in the Central District resulted in a final and valid judgment on the merits. The trial resulted in a hung jury, and the district judge declared a mistrial. The indictment was eventually dismissed when the government failed to retry Land within seventy days as required under the Speedy Trial Act.

Even assuming arguendo that a hung jury could constitute a final judgment, there is no showing that the jury necessarily decided the entrapment issue in Land's favor. In the trial in the Central District, Land's defense consisted of two theories: 1) that he was not guilty because he was entrapped; and 2) that there was insufficient evidence that he participated in the conspiracy in the Central District. The jury could have been divided over whether the government had met its burden of proving beyond a reasonable doubt that Land participated in the conspiracy in the Central District. We conclude that Land has failed to establish that the issue of entrapment was necessarily decided in his favor at the first trial.

Land also moved to dismiss the indictment on the grounds of prosecutorial vindictiveness. He claimed the charges in the Southern District were brought in retaliation for his decision not to plead guilty to the Central District charges but to stand trial. In this case, Land has failed to establish vindictive prosecution no matter what standard of review is applied.

First, Land claims he was entitled to a presumption of vindictiveness. We disagree. The Supreme Court has emphasized that a presumption of prosecutorial vindictiveness is warranted "only in cases in which a reasonable likelihood of vindictiveness exists." United States v. Goodwin, 457 U.S. 368, 373 (1982). In Goodwin, the Supreme Court refused to apply a presumption of vindictiveness when the government modified charges against a criminal defendant after the defendant refused to plead guilty to a lesser offense. The Supreme Court emphasized that "a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision." Id. at 381.

Similarly, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court reversed a court of appeals decision that applied a presumption of vindictiveness when the government carried out its threat of indicting the defendant on more serious charges unless he pled guilty to the original indictment. The Supreme Court approved of the state court's holding that "the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process." Id. at 359. The Supreme Court stressed that because the prosecutor told the defendant that he would bring additional charges unless he pled guilty to the lesser ones, the defendant "was thus fully informed of the true terms of the offer when he made his decision to plead not guilty." Id. at 360.

Based on Goodwin and Hayes, we find that no presumption of vindictiveness was warranted. The outcome of the plea negotiations in the Central District would be a proper prosecutorial consideration. See Martinez, 785 F.2d at 670 (rejecting the argument that a presumption of vindictiveness was warranted when an indictment was brought after the defendant was acquitted on an unrelated charge in another state).

There is sufficient evidence to support a conviction if, "viewing the evidence in the light most favorable to the prosecution, 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).

B. Conspiracy to possess with the intent to distribute

Land contends that there was insufficient evidence to support his conviction for conspiracy to possess with the intent to distribute cocaine because the evidence established only that he was a member of a conspiracy to distribute cocaine. We disagree. The essential elements of a conspiracy are: 1) an agreement to accomplish an illegal objective; 2) an overt act in furtherance of the objective; and 3) the intent necessary to commit the underlying offense. See United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980).

Land contends that there was no evidence that he participated in any arrangements to possess cocaine, rather the overt act related only to arrangements to sell cocaine to Mavromatis. This is similar to an argument this court rejected in United States v. Testa, 548 F.2d 847, 855 (9th Cir. 1977) ("The fact that Testa directly participated in some aspects of the plan rather than others does not detract from his responsibility for the enterprise."). Although the co-conspirators' roles might have varied somewhat, with Torres being primarily responsible for procuring the cocaine, Land's role in the conspiracy, introducing the potential buyer, was a "crucial, integral part of the conspiracy." Id.

The evidence established that Land told Mavromatis that the cocaine was in San Diego, and that the transaction would take place on March 8. Mavromatis met with Alfred and Land in San Diego, and showed Alfred the purchase money as a preliminary step to the proposed drug sale. Land and Alfred then went to meet their source, co-defendant Torres, who had been unable to secure the promised cocaine that night. The evidence, viewed in the light most favorable to the prosecution, established that Land, Alfred, and Torres were involved in a conspiracy to obtain cocaine to sell to Mavromatis, which although unsuccessful on March 8 did finally succeed on March 20 and April 9.

Land was not present at the two transactions when Alfred and Torres sold cocaine to DEA agent Mavromatis. The jury was instructed that Land could be convicted of those two counts as either a co-conspirator or as an aider and abettor. Because the jury returned a general verdict, there must exist sufficient evidence to support both theories or the verdict must be set aside. See, e.g., Zant v. Stephens, 462 U.S. 862, 881-82 (1983); United States v. Lester, 749 F.2d 1288, 1291-92 n. 1 (9th Cir. 1984).

There is no merit to Land's contention that he could not be liable under Pinkerton v. United States, 328 U.S. 640 (1946), because the evidence established that he facilitated only a potential sale of cocaine. See Testa, 548 F.2d at 855 (rejecting defendant's argument that he could not be liable for a substantive count of possession because his involvement in the conspiracy was limited to negotiation of a "tribute payment"). "If the evidence is sufficient to support a guilty verdict as to the conspiracy, and if the acts are in furtherance of the conspiracy and committed by one or more members of a conspiracy, a co-conspirator may be found guilty of a substantive offense in which he does not participate." Id. (citing Pinkerton, 328 U.S. at 645-648)).

Land's main argument is that there is insufficient evidence to show that the conspiracy extended beyond March 8, when the first transaction failed. There was evidence from which the jury could have found that the conspiracy continued until the transactions took place, and that Land was still a member of the conspiracy. On March 9, Mavromatis talked to Land on the phone and expressed his dissatisfaction with the failed deal, and they both talked about Torres' continued efforts to locate his source. During this call, Mavromatis told Land that he would like to obtain a sample and if he liked it "in a couple of weeks when these guys are ready to play ball, then give me a call. I mean don't sit and mess with me no more." Also during this call, Mavromatis told Land that he would call Alfred later in the day as planned, presumably for more discussions. This evidence, viewed in the light most favorable to the prosecution, is sufficient to demonstrate that Land knew that the transaction was not over on March 8, but rather that the negotiations were continuing. Consequently, since there was nothing in the evidence to indicate that Land had withdrawn from the conspiracy, there is sufficient evidence to uphold his convictions on the conspiracy counts based on Pinkerton.

Land contends there is insufficient evidence that he aided and abetted the possession of the cocaine with the intent to distribute, because he exercised no control over the cocaine and did not help Torres to obtain it. The Fifth Circuit has held that a defendant who helped to set up a drug transaction, but was not present at the event, could not be guilty of aiding and abetting the possession of cocaine with the intent to distribute, but could have been guilty of aiding and abetting the distribution of cocaine. United States v. Jackson, 526 F.2d 1236, 1237-38, (5th Cir. 1976). But see United States v. Manzella, 791 F.2d 1263, 1267 (7th Cir. 1986) (where defendant did not have constructive possession, aiding and abetting charge might "save the conviction"); United States v. Garrett, 720 F.2d 705, 713 n. 4 (D.C. Cir. 1983) (rejecting a reading of Jackson that would require that a defendant participate in every element of the substantive offense before a conviction for aiding and abetting could be sustained), cert. denied, 465 U.S. 1037 (1984).

There is sufficient evidence to convict Land as an aider and abettor. A person who "aids, abets, counsels, commands, induces or procures" the commission of an offense against the United States "is punishable as a principal." 18 U.S.C. § 2(a) (1982). "Aiding and abetting, as used in 18 U.S.C. § 2, means to assist the perpetrators of a crime." United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982) (quoting United States v. Lane, 514 F.2d 22, 26 (9th Cir. 1975)). Although an aider and abettor must share the criminal intent of the principal, "the government need not prove that the defendant was aware of every detail of the impending crime, nor that he be present at, or personally participate in, committing the substantive crime." United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987) (citations omitted) (emphasis added) (supplier of cocaine can be convicted for aiding and abetting the recepient's subsequent possession with intent to distribute).

Here Land set up a sale of cocaine that failed when Alfred and he were unable to obtain the cocaine from their source, Torres. When Torres came into possession of cocaine, however, he did supply Mavromatis with the drug, at two meetings at which Alfred was also present. (RT vol. I at pp. 67-71) The mere fact that Land was in Arizona at the time of the sales, which occurred two to three weeks after Land set up the initial contact, does not break the connection between the crimes and his arrangement of the sale. See id. at 1171. The drugs were procured and possessed by Alfred and Torres for sale to Mavromatis as the result of Land's introduction of the parties. His participation thus aided and abetted the possession as well as the distribution of the cocaine.

Last, Land contends that the district court erred in admitting Alfred's statement on March 20, 1987, to the effect that he would take care of Land. Land argues that the government failed to meet its threshold burden of proving Land's knowledge of and participation in the conspiracy to justify the admission of Alfred's statement under Fed.R.Evid. 801(d) (2) (E). This circuit has held that a co-conspirator's extrajudicial statement alone is insufficient to meet this burden. See, e.g., United States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988). However, at Land's trial the government introduced sufficient independent evidence such as Land's presence and participation at the first meeting and first attempted transaction, and his introduction of the other participants, to prove by a preponderance of the evidence that Land knew of and participated in the conspiracy.

Land also contends that Alfred's statement was improperly admitted because there was insufficient evidence that it was made in furtherance of the conspiracy. We review a district court's conclusion that a statement was made during the course of and in furtherance of the conspiracy for clear error. See United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986). The district court did not clearly err in admitting the statement. Agent Mavromatis introduced the subject of who was going to reimburse Land and Darnell at the March 20 transaction. Alfred's statement that he would take care of Land was in furtherance of the conspiracy because the parties were still negotiating how the proceeds from the drug sale would be distributed.

The judgment of conviction is AFFIRMED.