Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Jorge Luis AVILA, Defendant-Appellant.

No. 88-5420.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 8, 1990.* Decided Jan. 19, 1990.

Before FARRIS, BOOCHEVER and NOONAN, Circuit Judges.


Jorge Luis Avila appeals his convictions for possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846. Avila raises two issues in this appeal: 1) whether the district court erred in denying his motion to suppress evidence on the grounds that the officers lacked probable cause to arrest him, and 2) whether the evidence admitted at trial was sufficient to support the jury's verdict. We find there was probable cause to arrest Avila and sufficient evidence to convict him of the offenses with which he was charged.

Arresting officers have probable cause to make warrantless arrests if, at the moment of arrest, facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). "An individual officer in a coordinated investigation need not have personal knowledge of all the relevant facts to effect an arrest. It is sufficient if the pool of objective data possessed by the group of agents acting in concert supplies the requisite probable cause." United States v. Lomas, 706 F.2d 886, 892 (9th Cir. 1983), cert. denied, 464 U.S. 1047 (1984).

We review a district court's finding of probable cause de novo. United States v. Arrellano-Rios, 799 F.2d 520, 522 (9th Cir. 1986). At the moment of arrest, the officers knew: 1) the silver Nissan had been driven from the Chevron station to the 7-11 by two individuals who were involved in a substantial cocaine sale and had picked up a different car to take to the apartment; 2) Avila lingered in front of the 7-11 looking out in several directions as if to see if anyone was watching, entered the silver Nissan, and started the engine; and 3) from their experience, the exchanges of cars and drivers are common in narcotics deliveries. Moreover, other officers in radio contact with the officers who arrested Avila knew that Pedro Espinoza had told the undercover agents that the cocaine they were purchasing was being driven to the vicinity by a third associate who would be meeting with the Bahamons to assist in the delivery of the cocaine, and that the blue Pontiac in which the Bahamons returned to the apartment complex contained fifteen kilograms of cocaine.

We agree with the district court that "these facts would lead a prudent person to believe that Avila was probably involved in an illegal conspiracy to possess and distribute the cocaine." Contrary to Avila's assertions, the arresting officers did not create a "probable cause zone." Rather, their "experience [with narcotics transactions] allowed [them] to recognize a pattern of criminal activity. [Avila] was not arrested because of his proximity to a suspected criminal, but because his behavior and that of [Espinoza and the Bahamons] suggested that he was playing a specific role within that pattern." Arrellano-Rios, 799 F.2d at 522-23; see United States v. Rodriguez, 869 F.2d 479, 482-83 (9th Cir. 1989); United States v. Howard, 758 F.2d 1318, 1320 (9th Cir. 1985) (per curiam); Hillison, 733 F.2d at 697-98; Lomas, 706 F.2d at 892. The officers had probable cause to arrest and search Avila. The district court properly denied his motion to suppress the evidence seized during that search.

Avila also claims the evidence was insufficient to support the jury's verdict. "This court must consider the evidence in the light most favorable to the Government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984).

The essential elements of conspiracy are "an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense." ....

It is clear that the agreement need not be explicit, but may be inferred from circumstantial evidence. "Once the existence of a conspiracy is established, 'evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.' "

United States v. Becker, 720 F.2d 1033, 1035 (9th Cir. 1983) (quoting United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir. 1982) and United States v. Bailey, 607 F.2d 237, 243 (9th Cir. 1979) (quoting United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977), cert. denied, 445 U.S. 934 (1980)) (emphasis in original and citations omitted).

In addition to the evidence discussed supra, the jury heard the following evidence:

At the time of their arrests, all four defendants were wearing pocket pagers with digital readouts. (2 R.T. 87, 124, 166-67). The pager carried by Avila was subsequently determined to be activated by a telephone number that the informant's telephone bill showed was called twice from the informant's apartment at 12:30 p.m. on December 10, in the midst of the negotiations for the delivery of the cocaine. (2 R.T. 177-78).

At the time of his arrest Avila was also carrying a scrap of paper with directions to the transaction location. (2 R.T. 166-67). The parking lot attendant at Avila's workplace identified the blue Pontiac as the car regularly used by Avila (2 R.T. 155-56), and a map book bearing the inscription "Jorge Luis" (Avila's name) was found under the driver's seat of the car (2 R.T. 14.). The trunk of the blue Pontiac contained fifteen kilograms of cocaine. (2 R.T. 169-73).

We believe that a rational trier of fact could have found the essential elements of Avila's crimes beyond a reasonable doubt. On the conspiracy charge, the evidence showed that Avila and the other three defendants agreed to possess cocaine with intent to distribute, Avila involved himself in the delivery of the cocaine to the distribution/sale point through one or more overt acts, and his connection with the conspiracy was sufficient to demonstrate his knowing participation in the conspiracy. As for the charge of possession with intent to distribute, once the conspiracy and Avila's participation in that conspiracy were proven, there was sufficient evidence to convict Avila of the substantive offense. E.g., United States v. Arbelaez, 719 F.2d 1453, 1459 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984).

The cases on which Avila relies are not inconsistent with our conclusion. All of them involve a much more attenuated connection between the defendant's activity and the criminal enterprise than the connection between Avila and the three co-conspirators here. See United States v. Penagos, 823 F.2d 346 (9th Cir. 1987); United States v. Lopez, 625 F.2d 889 (9th Cir. 1980); United States v. Cloughessy, 572 F.2d 190 (9th Cir. 1977). The Government in these three cases failed to introduce sufficient evidence that the defendants were acting as lookouts during drug transactions. This court in each case found that the "defendant [s'] behavior was perfectly consistent with that of an innocent person having no stake or interest in drug transactions." Penagos, 823 F.2d at 349; accord Lopez, 625 F.2d at 896-97; Cloughessy, 572 F.2d at 191.

Here, by contrast, the Government's evidence demonstrated Avila's participation in delivering the cocaine to the transaction site, not "mere proximity to the scene of illicit activity." Penagos, 823 F.2d at 348. We agree with the Government that " [a]n innocent person does not snoop around a convenience store parking lot and then enter a car shortly after it is abandoned by drug traffickers and attempt to drive away, wearing a digital pager recently called by the traffickers, while fifteen kilograms of cocaine are discovered across the street in the car he regularly drives to work."

The district court's denial of Avila's motions to suppress evidence and for a judgment of acquittal is



The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3