Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

MEMORANDUM^** 

Benjamin Miranda Valencia appeals his conviction, following a jury trial, for conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846, possession of heroin with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a) (1), and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). Valencia contends that the evidence is insufficient to support his conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part and reverse and remand in part.

We review the sufficiency of the evidence in the light most favorable to the government "respecting the exclusive province of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987) (quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977)). The conviction must be affirmed if any rational jury could find the essential elements of the crime beyond a reasonable doubt. United States v. Luttrell, 889 F.2d 806, 809 (9th Cir. 1989).

I. Conspiracy to Possess Heroin with Intent to Distribute

Valencia does not dispute that a conspiracy existed among the other defendants, but contends that the evidence is insufficient to prove that he knowingly participated in it. This contention lacks merit.

If the government proves that a conspiracy exists, "only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in it." United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988). Counter-surveillance activity can further a conspiracy, particularly when it occurs during the actual transfer of drugs. United States v. Hernandez, 876 F.2d 774, 779 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989).

Here, the evidence showed that three of Valencia's codefendants met with a DEA agent in a restaurant parking lot to negotiate the sale of approximately 251 grams of heroin. Codefendant Augustin Rubio drove to the restaurant in Valencia's truck, with the heroin behind the back seat. Valencia drove to the parking lot in a car he had gotten from Rubio's wife, who is also Valencia's sister. During the negotiation and sale of the heroin, Valencia sat in the car and watched the meeting from about 40-50 yards away. The car window was down and the motor was running. Valencia also had a loaded semiautomatic pistol in the waistband of his pants. Valencia focused his attention on the meeting and on one of the DEA agents who drove through the parking lot before the sale occurred.

This evidence is sufficient to support Valencia's conspiracy conviction. A rational jury could conclude that Valencia served as a lookout or a guard during the heroin sale, and therefore knowingly participated in the conspiracy. See Hernandez, 876 F.2d at 779; Guzman, 849 F.2d at 448. Although Valencia testified that his reason for being at the scene was unrelated to the heroin sale, it is the jury's function to determine the credibility of the witnesses and to resolve conflicting testimony. See Goode, 814 F.2d at 1355.

II. Possession with Intent to Distribute and Distribution

Valencia contends that the evidence is insufficient to support his conviction for possession of heroin with intent to distribute and distribution of heroin. Valencia argues that he did not exercise dominion and control over the heroin, or participate in its sale. This contention lacks merit.

To sustain a conviction for possession with intent to distribute, the evidence must establish "a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised a dominion and control over the substance." United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). "Constructive possession may also be proved by the defendant's participation in a 'joint venture' to possess a controlled substance." Id. (quoting United States v. Valentin, 569 F.2d 1069, 1071 (9th Cir. 1978)). Furthermore, courts have broadly interpreted the distribution provision "to criminalize 'participation in the transaction viewed as a whole.' " United States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir.) (quoting United States v. Brunty, 701 F.2d 1375, 1381 (11th Cir.), cert. denied, 464 U.S. 848 (1983)), cert. denied, 110 S. Ct. 118 (1989).

As discussed above, the evidence showed that the heroin was transported to the restaurant parking lot in Valencia's truck, and that Valencia sat in a nearby car and served as a lookout while his codefendants negotiated the heroin sale. This evidence establishes a sufficient connection between Valencia and the heroin to support an inference that he exercised dominion and control over it. See Disla, 805 F.2d at 1350. A rational jury also could infer that Valencia constructively possessed the heroin from the evidence that he participated in a joint venture with his codefendants. See id. Similarly, the evidence was sufficient to support Valencia's conviction for distribution of heroin because a rational jury could conclude that he participated in the transaction viewed as a whole. See Ahumada-Avalos, 875 F.2d at 683.

III. Carrying a Firearm During a Drug Trafficking Crime

Valencia contends that because the evidence is insufficient to support his conviction for the three drug trafficking counts, he cannot be convicted of carrying a firearm during a drug trafficking crime. Because we affirm his conviction for the drug trafficking counts, and the evidence shows that Valencia carried a firearm during these crimes, we also affirm his conviction on the firearm count. See 18 U.S.C. § 924(c) (1).

Finally, although Valencia did not raise the issue on appeal, we have held 18 U.S.C. § 3013, the statute authorizing imposition of a special assessment fee, to be unconstitutional. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We raise this issue sua sponte, and reverse and remand to the district court with instructions to vacate the special assessment fee of $200 included in Valencia's sentence. See United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir. 1989).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.