Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^** 

Aurelia Angulo-Rodriguez ("Angulo") appeals her conviction of conspiracy to possess with intent to distribute fifty kilograms of cocaine in violation of 21 U.S.C. §§ 841(a) and 846, possession with the intent to distribute nine kilograms of cocaine in violation of 21 U.S.C. § 841(a) (1), and four counts charging the unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). Jose Enrique Torres-Garcia ("Torres") appeals his conviction of possession with the intent to distribute nine kilograms of cocaine in violation of 21 U.S.C. § 841(a) (1). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

FACTS

Through the use of an informant, the government learned that Angulo wanted to purchase cocaine. The informant gave Angulo the phone number of an individual (undercover Drug Enforcement Agency ("DEA") Agent Hathaway) who would sell her cocaine. Angulo made arrangements with the undercover agent to meet in Salton City to consummate the purchase of fifty kilograms of cocaine. However, several telephone conversations later, Angulo indicated she would only buy eight kilograms initially, and that if everything turned out right the fifty kilogram deal would go through.

At the prearranged time and place, Angulo, Angulo's son, and Torres met Agent Hathaway at Salton City. Angulo told Hathaway that she had the money. They discussed the number of kilograms for sale. At this time, Torres asserts he first became aware that Angulo was going to buy cocaine. He testified that he only knew that Angulo was going to "do business" when she invited him along for the ride. Torres testified that once he became aware of the drug deal, he intended only to get a sample of the cocaine for his own personal use. The DEA agents showed the cocaine to Torres and Angulo. Torres visually examined a sample of the cocaine. Angulo indicated that she would buy the cocaine. Angulo counted out $81,000 in cash while Torres removed nine kilograms from the DEA agents' car and transferred the cocaine into the vehicle driven by Angulo. Angulo and Torres were then arrested.

Angulo asserted an entrapment defense. Torres argued that he was not guilty of the crimes charged because he did not have the requisite intent. Torres' counsel argued Torres was guilty of possession of the cocaine, and nothing more, because he never intended to distribute the cocaine himself, he was not to be involved with the distribution of the cocaine, he was not to get any money from the sale of cocaine, and he did not know what was going to happen to the cocaine.

The district judge instructed the jury on the lesser-included offense of possession and gave the jury an aiding and abetting instruction. After a period of deliberation, the jury returned to the courtroom and asked the judge: "Does mere knowledge of future distribution constitute intent to distribute? Please clarify. We have read your instructions." The judge told the jury:

The essential elements, in order to be proved to establish the offense of possession with intent to distribute are: First is that the defendant possessed with the intent to distribute a controlled substance and that the defendant did such act knowingly and intentionally, and an act or omission is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reason, and the question is ambiguous to us in that we don't know whether you're asking whether the knowledge of one of the defendants that the other one intends to deliver or transfer this cocaine to someone else--whether that constitutes intent, or whether the knowledge of either or both of them that somebody else is going to distribute it farther down the line is what you're asking, so we need to have your question clarified before I can give you any further answer.

Do you understand what I mean?

I think probably you'd better go back into the jury room where you can talk among yourselves and we'll wait right here to get another question from you.

The jury returned with a second question: "If a person is in possession of drugs and knows that another person has intent to distribute those drugs is that person also guilty of intent to distribute?" The district court answered the jury in the affirmative and both defendants were convicted. Both defendants appeal their convictions on the ground that, inter alia, the court's answer to the jury question was an incorrect statement of law.

DISCUSSION

Jury instructions must be reviewed as a whole. United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir. 1984). "Challenged error in the language of the trial judge's jury instructions will justify reversal only if abuse of discretion is shown." United States v. Patel, 762 F.2d 784, 790 (9th Cir. 1985). The standard of review is the same when reviewing supplemental jury instructions given in answer to a jury's question. United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987) ("district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue").

Torres contends that the district court's answer to the jury question was tantamount to a directed verdict because it purportedly eliminated the requirement of specific intent. The district court, in response to the jury's question, instructed the jury that a person who is in possession of drugs, knowing that another person has the intent to distribute those drugs, is also guilty of intent to distribute. Torres, in theory, argues that the district court should have told the jury that before it could find Torres guilty, even under an aiding and abetting theory, it first had to find that Torres had the same specific intent as his accomplice who did have specific intent to distribute.

Torres relies on two Ninth Circuit cases, United States v. Short, 493 F.2d 1170 (9th Cir.), cert. denied, 419 U.S. 1000 (1974), and United States v. Jones, 592 F.2d 1038 (9th Cir.), cert. denied, 441 U.S. 951 (1979). Neither of these cases involved refused jury instructions or clarifications. The bases for the reversals in Short and Jones were that the prosecution failed to present any evidence at all that the defendants knew of their accomplice's intent to use deadly weapons. Therefore, those two cases are not relevant to Torres' claim since sufficient evidence in the record showed that Torres did know that Angulo intended to distribute the nine kilograms of cocaine.

Although Torres may not have had the specific intent to distribute the drugs himself, the jury could have concluded that Torres aided and abetted Angulo who had specific intent to distribute the cocaine. Torres knew Angulo intended to distribute the nine kilograms of cocaine and the jury could have concluded that Torres intended to aid Angulo in obtaining the cocaine for that purpose. Torres was present during the drug negotiations, he examined a sample of the cocaine, he transferred and loaded the nine kilograms from the DEA agents' car into the vehicle driven by Angulo, and he was present at the drug sale at the request of Angulo.

In United States v. Wright, 742 F.2d 1215 (9th Cir. 1984), we considered whether the jury must be told that "there must be evidence connecting the defendant with both aspects of the crime, [that is,] possession and intent to distribute." Id. at 1221. We stated that this "proposed instruction made no substantive change in the standard instructions, but merely reformulated the requirements, [and that the instruction's] rejection ... was not an abuse of discretion." Id. at 1222. Where an "earlier instruction had correctly specified each of the elements of the charge of possession with intent to distribute ... [r]ead as a whole, ... [the instructions] properly conveyed to the jury the findings that were necessary to support a guilty verdict." Id. Moreover, "the trial judge is not required to give a requested instruction as long as the substance of the instruction is covered in the over-all charge." United States v. Marshall, 532 F.2d 1279, 1286 (9th Cir. 1976) (citations omitted).

A reading of the district court's instructions and clarifications as a whole does not reveal any reversible error. The court carefully instructed the jury on actual and constructive possession, intent to distribute, and the lesser-included offense of possession. The district court had previously informed the jury in explicit terms of each element of the crime with which Torres was charged and adequately instructed on the aiding and abetting theory. Evidence in the record sufficiently supports the jury's probable conclusion that Torres aided and abetted Angulo in the crime of possession with intent to distribute nine kilograms of cocaine. We conclude that the district court did not abuse its discretion in responding to the jury's question in the manner it did.

Angulo argues that, reading the jury's two questions together, the jury was having difficulty establishing that Angulo had the requisite intent to distribute the cocaine. We need not reach the merits of Angulo's argument because Angulo's failure to move for a mistrial when the district judge responded to the jury's questions waived any basis for appeal on this issue. See Thompson v. Commissioner, 631 F.2d 642, 649 (9th Cir.) (waiver of issue raised for first time in reply brief), cert. denied, 452 U.S. 961 (1980); United States v. Marshall, 532 F.2d 1279, 1287 (9th Cir. 1976) (objection to jury instructions raised for first time on appeal is waived).

Angulo also argues that the district court abused its discretion in denying her motion for a continuance. When deciding whether a motion for continuance is properly denied, we must determine whether the appellant has demonstrated an abuse of discretion resulting in specific substantial prejudice to the appellant's case. United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986).

On the morning of trial, Angulo requested transcripts of taped telephone conversations. She argues that she required time to review these taped conversations which would provide corroboration of her testimony that she was entrapped into the drug deal. However, evidence indicated that Angulo asked the DEA agent to sell her the cocaine some two or three days before the telephone call in which she claims the government informant asked her to carry out the drug deal. Therefore, even if such a taped conversation did exist (the record is silent on its existence), it would not show that Angulo was not predisposed to commit the crime. See United States v. Barry, 814 F.2d 1400, 1401 (9th Cir. 1987) (entrapment is a defense when the defendant has no predisposition to commit the crime). Moreover, Angulo did not know what the tapes would demonstrate and she made no showing of the content of the tapes; thus, she has not shown that she was prejudiced by not receiving them. We conclude that the district court did not abuse its discretion in denying Angulo's motion for a continuance.

Finally, Angulo argues that her counsel at trial was ineffective by failing to seek these taped conversations earlier in discovery. Whether Angulo received her sixth amendment right to effective assistance of counsel cannot be reached on direct appeal without the development of facts outside the record. United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988) (per curiam). This issue would be better addressed pursuant to 28 U.S.C. § 2255. See United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989).

AFFIRMED.