Unpublished Disposition, 907 F.2d 155 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Edward Robert NIGRO, Defendant-Appellant.

No. 88-5411.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1990.Decided June 27, 1990.

Before GOODWIN, Chief Judge, and TANG and FERGUSON, Circuit Judges.


MEMORANDUM* 

Edward Robert Nigro appeals from his conviction for conspiracy to distribute and to possess with intent to distribute large quantities of cocaine, and for aiding and abetting the possession of two kilograms of cocaine. He challenges the denial of his motion for acquittal and the sufficiency of the evidence supporting his convictions.

We affirm.

BACKGROUND

The drug smuggling conspiracy at the heart of this case was uncovered in the course of an investigation by the United States Customs Office. The appellant concedes the existence of a conspiracy between Eugene Foster, Robert Aceto, and Charles Anderson. However, he argues that he only became involved after that conspiracy had ended and challenges the sufficiency of the evidence linking him to the conspiracy.

Undercover Customs Agent Serge Duarte spoke with Foster in October and December, 1987, regarding smuggling cocaine. On January 6, 1988, Foster was arrested. He promptly placed a call to Robert Aceto regarding the prices at which Aceto could obtain "two," "three," or "ten." The price, and their profit, would be lower if the quantity were greater. Aceto stated that his source had "two on him right now" and could get "ten" soon. That evening, Aceto was arrested with Charles Anderson. In their possession were two kilograms of cocaine. Anderson waived his Miranda rights, admitted the drugs were his, and telephoned appellant Nigro. The telephone calls which followed and Nigro's behavior later that evening provide the evidence against Nigro.

Their initial conversation revealed that the men knew each other and that Nigro was awaiting a telephone call from Anderson. They greeted each other without identifying themselves. Anderson said, "we're ready, all ten." They arranged a meeting at a hotel in Newport Beach and conducted a series of short telephone calls as Nigro drove in that direction. In these conversations, Nigro referred to Anderson as having "two" and himself as bringing "eight." Anderson made additional references to having "two gone," and to wanting "ten." There was expert testimony at trial that the references to "eight," "ten" and "two" were references to kilograms of drugs. In addition, while police observed Nigro in Newport Beach before his arrest, he engaged in behavior described at trial as "counter-surveillance," moving his car to different locations in a parking lot while observing the area.

Nigro's motion for acquittal was denied without argument. The jury convicted Nigro on both counts, and he appealed.

STANDARD OF REVIEW

We review the evidence supporting a conviction in the light most favorable to the government. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989). There is sufficient evidence to support a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (citation omitted). Circumstantial evidence is sufficient to sustain a conviction, and the government's evidence need not exclude every reasonable hypothesis consistent with innocence. United States v. Talbert, 710 F.2d 528 (9th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1052 (1984).

The denial of a motion for acquittal is reviewed to determine whether, viewing the evidence in the light most favorable to the government, there was substantial relevant evidence produced from which the jury reasonably could have found the defendant guilty beyond a reasonable doubt. United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). Legal issues raised in the motion for acquittal are reviewed de novo. United States v. Bonallo, 858 F.2d 1427 (9th Cir. 1988).

DISCUSSION

Nigro argues that there was insufficient evidence linking him with the conspiracy of which Foster, Aceto and Anderson were a part; even if he conspired with Anderson, he claims this was a separate conspiracy. The general test used to distinguish single from multiple conspiracies is whether there was a "single overall agreement to effectuate the conspiracy's objectives." United States v. Tille, 729 F.2d 615, 621 (9th Cir.) (quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980), cert. denied 450 U.S. 916 (1981)), cert. denied, 469 U.S. 845 (1984). A single conspiracy may involve subgroups or subagreements, and may be identified by examining characteristics including the nature of the scheme, identity of the participants, nature and frequency of each conspirator's involvement, and commonality of time and goals. Id.

We view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found a single conspiracy beyond a reasonable doubt. United States v. Arbalaez, 719 F.2d 1453, 1457 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984). The jury may find a common scheme if each defendant "knew or had reason to know that other [persons] were involved ... in a broad project...." Id. at 1458 (quoting United States v. Baxter, 492 F.2d 150, 158 (9th Cir. 1973), cert. denied, 416 U.S. 940 (1974)) (emphasis added). Knowledge can be inferred from "specific evidence of the nature of the criminal enterprise and the defendant's role in it." United States v. Bibbero, 749 F.2d 581, 588 (9th Cir. 1984), cert. denied, 471 U.S. 1103 (1985).

Viewed in the light most favorable to the government, the jury could have concluded that a single conspiracy was involved. The nature of the scheme required a source of cocaine as well as the capacity to distribute it. Anderson's telephone call showed that the attempted drug delivery had been prearranged; other conspirators knew that Aceto's source (Anderson) was going to another source for cocaine; the taped telephone calls show that Nigro knew Anderson was selling to others.

"Once the existence of a conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict [a person] of knowing participation in the conspiracy." United States v. Marsh, 894 F.2d 1035, 1039 (9th Cir. 1989) (quoting United States v. Meyers, 847 F.2d 1408, 1412-13) (9th Cir. 1988)), cert. denied, 110 S. Ct. 1143 (1990). The evidence was sufficient for the jury to find beyond a reasonable doubt that Nigro was part of the conspiracy.

Nigro raises the additional argument that the government only proved at trial a conspiracy to distribute two kilos of cocaine to Australia. However, a conspirator attempting to supply the conspiracy need not know the destination of the drugs. United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988) (indictment charged conspiracy to distribute rather than conspiracy to distribute in one particular destination). The evidence presented at trial included extensive discussion of transactions in various quantities of cocaine and the availability of "ten" as well as "two." This argument lacks merit.

Nigro also appeals his conviction on one count of aiding and abetting Aceto and Anderson in the possession of the two kilos of cocaine they held when arrested. Under Pinkerton v. United States, 328 U.S. 640 (1946), a conspirator can be convicted of a substantive offense in which he did not participate directly if the substantive offense was committed in furtherance of the conspiracy. 328 U.S. at 646-648. A defendant can be convicted under a Pinkerton theory when only aiding and abetting was charged in the indictment. United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924 (1971).

The judge instructed the jury that they could find Nigro guilty on count two if they found that the offense was committed pursuant to the conspiracy and that he was a member of the conspiracy at the time of the offense. Possession of the two kilos was an act in furtherance of the conspiracy. Nigro's prompt response to Anderson's call indicated prearrangement, and Anderson had been in police custody since his arrest with the two kilos. Therefore, the jury could find that Nigro was a member of the conspiracy at the time of the offense.

Nigro argues that his motion for acquittal should have been granted because his conspiratorial acts with Anderson took place after the conspiracy ended. He cites United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984) to argue that, since Anderson was now working as a government agent, there could be no conspiracy. In Escobar de Bright, the defendant was persuaded by the agent to join the conspiracy, which raised concerns similar to entrapment. Id. at 1200. Since one party never intended the conspiracy to succeed, there was no meeting of the minds. Id. at 1199.

A conspiracy has not ended when one co-conspirator is still trying to effectuate the goals of the conspiracy. United States v. Mason, 658 F.2d 1263, 1269-70 (9th Cir. 1981) (noting relevance of attempt to facilitate planned future deliveries). Nigro poses a legal question (could he have a meeting of the minds with a government agent?) when the question is essentially factual (was he already part of the conspiracy when Anderson telephoned him?). The evidence showed a preexisting relationship between Nigro and Anderson: Nigro was waiting for the call; neither man identified himself; there was no negotiation as to price of the drug.

We review the denial of a motion to acquit to determine if substantial relevant evidence existed upon which a jury could reasonably have found the defendant guilty beyond a reasonable doubt. Sarault, 840 F.2d at 1487. Such evidence existed here. The motion for acquittal was therefore properly denied.

AFFIRMED.

 *

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