Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 42 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Antonio Ortega TORRES, Francisco Jose Vieira, and BladimiroIgnacio Renteria, Defendants-Appellants.

Nos. 86-5191, 86-5201 and 86-5219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1989.Decided May 3, 1990.

Before GOODWIN, Chief Judge, SCHROEDER and BEEZER, Circuit Judges.


Antonio Torres, Francisco Vieira and Bladimiro Renteria appeal their convictions for conspiracy to possess with intent to distribute and to distribute a controlled substance, possession with intent to distribute cocaine, and aiding and abetting the intentional distribution of more than a kilogram of cocaine. Vieira appeals his conviction for traveling in interstate commerce to facilitate narcotics trafficking.

All three of these defendants transported a suitcase of cocaine from a restaurant to a hotel where a sale by Richard Jarvis of cocaine to undercover police agents had been arranged. These defendants were arrested in the hotel lobby soon after Jarvis opened the suitcase to reveal its cocaine contents to the undercover agents in Jarvis' room. Torres had carried the suitcase earlier in the day to that room, after flying to Los Angeles from Miami with Vieira.

Torres' Appeal

Torres argues that he was prejudiced by being tried jointly with Jarvis. Although Jarvis denied Torres' involvement on direct, the government was allowed to impeach this testimony with a prior inconsistent acknowledgment of Torres' involvement.

To justify a severance, a defendant has the burden of proving clear, manifest, or undue prejudice resulting from joinder. United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988). Severance is required "when co-conspirators' defenses are mutually exclusive; that is, when acquittal of one defendant necessarily results in the conviction of the other." Id. (citations omitted). Severance is not required when the defenses are merely inconsistent. Id.

Although Torres alleges facts that might have resulted in prejudice to him, United States v. Ramirez, 710 F.2d 535, 546-47 (9th Cir. 1983), is directly on point and contrary to his position.

In Ramirez, a co-defendant testified on his own behalf and repeatedly denied Ramirez's complicity in the crimes charged. As is the case here, the government was permitted to cross-examine the co-defendant and introduce prior inconsistent statements which implicated Ramirez. The court said:

[the codefendant's] testimony, and its impeachment by the government, perhaps reduced Ramirez' chance for acquittal. That does not demonstrate a need for severance, however. First, the same situation might have occurred at a separate trial of Ramirez; .... Moreover, even if it be assumed that Reynolds would not have testified at a separate trial, appellant still falls short of demonstrating abuse of discretion because he has failed to show that the joint trial led to violation of his substantive rights.

710 F.2d at 547 (citing United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980)). No severance was required.

Torres also contends that the district court violated Fed. R. Crim. P. 32 by failing to consider Torres' claims of factual inaccuracies in the presentence report. This case was filed prior to the adoption of the sentencing guidelines. We have carefully reviewed the transcript of Torres' sentencing. Both Torres and his counsel were permitted to address the court extensively, but neither claimed any specific factual inaccuracies in the presentence report. Rather, the principal challenge was to the government's characterization of Torres as the source of the cocaine. The underlying conduct was not disputed, only the conclusions to be drawn from it. Accordingly, there was no violation of Rule 32.

Torres also challenges the quality of the assistance of his counsel. His principal complaint is that the counsel did not adequately object to the introduction of photographic evidence of a pill vial allegedly with Torres' name on it that was found in the suitcase containing the cocaine. Torres on appeal contends that his counsel should have argued that the police were guilty of bad faith in failing to preserve the actual pill vial. Under Arizona v. Youngblood, 488 U.S. 51 (1988), bad faith on the part of police will violate due process only if exculpatory evidence is destroyed. Here the evidence was inculpatory, and the prosecution's witnesses established a sufficient foundation for the photo's introduction and no basis for a bad faith argument. Torres' other complaints concerning his counsel do not rise to the level of showing both deficient performance and prejudice to the defense as required by Strickland v. Washington, 446 U.S. 668 (1984).

Torres also suggests that he has been prejudiced because parts of the trial transcripts relating to side bar conferences are unintelligible. He does not contend that anything occurred during those conferences that undermines the essential fairness of the proceedings.

Although court reporters are required to record verbatim "all proceedings in criminal cases had in open court," 28 U.S.C. § 753(b), "the failure to do so does not require a per se rule of reversal." United States v. Anzalone, 886 F.2d 229, 231 (9th Cir. 1989) (quoting United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir.), cert. denied, 479 U.S. 984 (1986)). Because Torres fails to allege any specific prejudice, no relief is warranted. See id. at 232 ("even assuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice").

The Vieira and Renteria Appeals

Appellants Vieira and Renteria both challenge the sufficiency of the evidence to support their convictions. The government presented the following evidence to connect Vieira with the attempted narcotics sale: (1) Airline tickets were found on Vieira's person, indicating that Vieira and co-defendant Torres flew on the same flight from southern Florida to Los Angeles on the day of the drug deal; (2) Vieira used an alias on his airline ticket, as did Torres; (3) Torres rented a room for Vieira at the Holiday Inn in Brentwood, and at the time of his arrest, Vieira had a key to one of the rooms rented by Torres; (4) at the time of his arrest, Vieira had Holiday Inn stationery on his person giving written directions to an El Torito Restaurant; (5) Vieira, Torres and Renteria arrived at the El Torito Restaurant, sat at a table in the bar area, were met by Soto, and entered into a lengthy discussion where calculations were made; (6) a suitcase, apparently identical to the one filled with cocaine, was lifted out of the car trunk by Vieira and given to Torres; finally, (7) Vieira accompanied Torres to the Marriott Hotel.

The evidence presented at trial supports a finding that Vieira was a member of the conspiracy to possess narcotics with the intent to distribute. As the Supreme Court found in Ianelli v. United States, 420 U.S. 770, 777 (1975), events too interlocked to constitute coincidence are sufficient to support a conviction on conspiracy charges. Further, the cases that Vieira cites are all distinguishable. In United States v. Soto, 716 F.2d 989, 991-92 (2d Cir. 1983), the defendant's only connection to the narcotics was being found in the same apartment as the drugs and having knowledge of a crime being committed there. In United States v. Pintado, 715 F.2d 1501, 1505 (11th Cir. 1983), the defendant's only connection to the conspiracy was being found, hiding in a closet, when the drug raid was made. In United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977), the defendant simply drove a car to a restaurant, used the bathroom, obtained some money from his co-defendants in the car and reentered the restaurant. There was no evidence that the defendant had acted in furtherance of the conspiracy. In United States v. Lopez, 625 F.2d 889 (9th Cir. 1980), the defendant was at the house of a major conspirator, and was arrested in the passenger front seat with a major conspirator driving and another sitting in the back with narcotics in her purse. The court noted that there was no evidence that the defendant had knowledge of their activities. Id. at 896.

In contrast to the cases upon which Vieira relies, the evidence against Vieira demonstrated a coordinated plan to further an attempted sale of narcotics to undercover policemen. When all the acts are taken together, the possibility that Vieira was an innocent bystander diminishes into nothingness. The government introduced evidence that Vieira traveled a considerable distance to the scene of the narcotics sale, actually handled the narcotics, and entered into negotiations to divide up profits. These activities, taken as a whole, exceed multifold the singular acts in the cited cases.

Appellant Renteria's challenges to the sufficiency of the evidence are similarly without merit. The evidence presented by the government against Renteria showed, inter alia, that (1) he entered into discussions with Jarvis and Torres in the Marriott Hotel; (2) Renteria left his beeper number with Jarvis; (3) Renteria went from the Marriott to the Holiday Inn in Westwood, with Torres close behind; (4) Renteria led Vieira and Torres to the El Toredo Restaurant; (5) Renteria participated in calculations and negotiations at the El Toredo, using his own calculator; (6) Torres walked towards Renteria with the suitcase, apparently giving it to him; (7) Renteria transported the cocaine from the El Toredo Restaurant to the Marriott Hotel; and (8) Renteria waited in the hotel lobby for Torres to return from delivering the cocaine to Jarvis. The acts taken together sufficiently show the furtherance of a conspiracy. See United States v. Fleishman, 684 F.2d 1329, 1341 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).

With respect to the possession count, the government introduced evidence that Renteria actually transported the cocaine from the El Toredo Restaurant to the Marriott Hotel. This evidence is sufficient to show possession under section 841(a) (1). The amount of cocaine--five kilograms--easily supports an inference of intent to distribute. See United States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985).



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