Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Benito GARCIA, Defendant-Appellant.

No. 88-1288.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1989.Decided Nov. 16, 1989.

Before GOODWIN, SCHROEDER and BEEZER, Circuit Judges.


Benito Garcia appeals his conviction, subsequent to a jury trial, for possession with intent to distribute 100-1000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a) (1) & 841(b) (1) (B) (vii), and conspiracy to possess with intent to distribute 100-1000 kilograms of marijuana in violation of 21 U.S.C. § 846.

Garcia was asked to find a young woman who, in return for $500, would be willing to accompany a driver to pick up a large load of marijuana from a location near the Mexican border to Douglas, Arizona. Garcia did what was asked, and did not participate further in the project.

Appellant's principal contention on appeal is that the district court should have given an instruction to the jury on withdrawal from the conspiracy. Withdrawal from a conspiracy " 'requires a disavowal of the conspiracy or an affirmative action that would have defeated the purpose of the conspiracy, or "definite, decisive and positive" steps to show that the conspirator's disassociation from the conspiracy is sufficient.' " United States v. Loya, 807 F.2d 1483, 1493 (9th Cir. 1987), quoting United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980). See also United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988) ("one must withdraw before any overt act is taken in furtherance of the agreement.") In this case, the evidence showed that the appellant did not "withdraw from the conspiracy." Rather, he simply completed his role in it.

In his pro se supplemental brief, the appellant also contends that there was insufficient evidence to convict him of aiding and abetting the possession of the marijuana by his co-conspirators. His theory is that his co-conspirators already constructively possessed the marijuana before appellant was contacted. The record does not support this contention. The entire purpose of the conspiracy was to pick up and deliver to Douglas marijuana that was sitting in a remote border area. Martinez, principal of the conspiracy, knew where the marijuana was located. However, it is undisputed that until Paredes and Lourdes crossed the Mexican border and physically took dominion over the contraband, it was beyond the control of any of the principals. Thus, neither Martinez nor any of the principals had possession before Garcia's involvement.

Garcia also raises, for the first time on appeal, the contention that the government did not prove any intent to distribute the marijuana. Intent may be inferred, however, from the circumstances of the case, including the fact that the amount of marijuana involved was 550 pounds and had a $275,000 wholesale value. See United States v. Stewart, 770 F.2d 825, 832 (9th Cir. 1985) (one ounce of cocaine sufficient to infer an intent to distribute), cert. denied, 474 U.S. 1103 (1986); United States v. Ramirez-Rodriguez, 552 F.2d 883, 885 (9th Cir. 1977) ($2,600 resale value of contraband sufficient to infer intent to distribute).



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