Unpublished Disposition, 927 F.2d 611 (9th Cir. 1988)

No. 88-5306.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court For the Central District of California, No. CR-88-01-AHS-4; Alicemarie H. Stotler, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before D.W. NELSON, and REINHARDT, Circuit Judges, and PRICE,^**  District Judge.

MEMORANDUM^*** 

Defendant-appellant Eugene William Foster appeals from his sentence following conviction by a jury of conspiring to distribute and possess cocaine with intent to distribute. The single overt act alleged in the superseding indictment filed on April 15, 1988 charges that "on or before January 8, 1988, Foster contacted co-defendants Robert A. Aceto and Charles Michael Anderson and arranged for the delivery of two kilograms of cocaine." Edward Robert Nigro, Jr. was also indicted as a member of the conspiracy.

Customs Special Agent Serge Duarte posed as a potential buyer and participant in a cocaine smuggling plan. The government's theory was that defendant's conversations with Aceto in which Foster negotiated for Duarte's purchase of cocaine, and the arrangements made to consummate that transaction constituted evidence from which a conspiracy between defendants could be inferred, as well as overt acts to carry out its objects.

Foster contends that the evidence is insufficient to support his conspiracy conviction because he had not agreed upon a firm price with co-defendant Aceto until after he was arrested. Foster also contends that the court erred in refusing to grant his proposed jury instruction about withdrawal from a conspiracy.

We hold that the evidence was sufficient to support his conspiracy conviction and agree with the district court's refusal to give the proffered instruction.

II. Suffiency of the Evidence for Conspiracy Conviction

In determining the sufficiency of the evidence, the appropriate standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). 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." United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir. 1982). The agreement need not be explicit, but may be inferred from circumstantial evidence. United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980). Once the existence of the conspiracy is proved beyond a reasonable doubt, even a slight connection to the conspiracy is sufficient to convict a defendant of knowing participation therein. United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987).

Foster contends that he did not enter into an agreement to purchase cocaine with intent to distribute until he agreed on a price with co-defendant Aceto during a government-taped telephone call he placed after he was arrested. The government contends that Aceto and Foster had agreed to purchase and distribute cocaine, though the price was still being worked out. It appears from the evidence that Foster and Aceto had agreed upon at least some specifics of their agreement to sell drugs and were looking to Duarte to offer a final price. U.S. v. Kiriki, 756 F.2d 1449, 1453-1454 (1985). This evidence is sufficient to sustain Foster's conspiracy conviction.

Foster mentioned to Duarte on several occasions that he had a domestic source for cocaine who was very interested in selling to him. Foster told Duarte that this source could supply the cocaine which Foster planned to sell on Duarte's behalf in Australia as part of a scheme to sell four kilograms of cocaine in Australia. After this trip, which was to take place within a week of their conversation on January 6, 1988, Foster planned to use some of the profits to outfit his boat for a future trip to smuggle more drugs.

Foster told Duarte that he had gotten commitments from his associates in Australia to sell up to four kilograms of cocaine. He also said that he "went ahead and made some arrangements" with his domestic source of cocaine, and that the price was $10,500 per kilogram if he purchased more than three kilograms. During his conversation with Agent Duarte before he was arrested, Foster said that his source "wants to use this for a future, cause he gets, he gets a hundred at a time," and wanted to know what kind of volume Duarte could handle "not counting this." A rational jury could infer that Foster's source, Aceto, was aware that he was supplying drugs for the Australian deal and knew that Foster had a local purchaser, Duarte, and an Australian distributor in mind.

The court in Kiriki, 756 F.2d at 1454 was presented with similar facts; the defendants had purchasers in mind who would know they were buying stolen merchandise and were prepared to take it to Japan. The court held that such evidence was sufficient to establish the existence of a conspiracy. That certain details were left to be negotiated did not negate the existence of a conspiracy. Id. Thus, the fact that Foster and Aceto did not agree on a price until later does not disprove the existence of an agreement to distribute and possess cocaine with intent to distribute. Based on these conversations, there was sufficient evidence for a jury to conclude that Foster and Aceto had agreed to distribute cocaine.

Foster also engaged in several other acts in furtherance of the conspiracy. He told Duarte that he had "committed today to ... couple of [airline] tickets" to be used in completing the Australian transaction. Earlier, Foster had told Duarte that the cocaine would be smuggled to Australia using scuba tanks with hidden compartments which could hold up to ten kilograms of cocaine each. Two such tanks with specially designed removable threaded plates for easy insertion of the cocaine were seized from defendant's garage pursuant to a search warrant executed on the day of his arrest.

On January 8, 1988, Foster met his Australian contact and Agent Duarte at a Howard Johnson's restaurant in Riverside, California. During this meeting, Foster said they were supposed to drive around the corner to meet their source and consummate the transaction. He also reiterated his source's willingness to sell cocaine to Duarte, and that the source wanted to know what volume Duarte could market after this transaction.

After that meeting, Foster was arrested. Foster waived his Miranda rights and agreed to place a series of recorded calls to his domestic source. Foster then called Aceto to make a deal for the cocaine. At the time of the telephone call, Aceto was an unarrested co-conspirator, still operating in furtherance of the ongoing conspiracy. As such, his statements may be used against Foster to prove the existence of an agreement. United States v. Taylor, 802 F.2d at 1117. During their conversation on January 8, 1988, Foster said, "he's got the money to buy three." Aceto seemed to understand what he was referring to and informed defendant that the price was being raised to $13,500 and that the seller could no longer "front" any cocaine because a separate transaction had fallen through. Aceto also said that his source had two kilograms of cocaine at present but could supply ten kilograms within a few days. A reasonable jury could infer from Aceto's statements that they previously agreed to a cocaine sale, and were only haggling over the price.

Foster relies on United States v. Melchor-Lopez, 627 F.2d 886, to support his contention that there was no agreement prior to his arrest. In Melchor-Lopez, the seller had imposed several pre-conditions on the sale which Melchor-Lopez refused to accept. The court found that there was insufficient evidence of a meeting of the minds between the defendant and the drug sellers. Id. at 891-892. In this case, Aceto had set no preconditions to the sale. It appears that there was an agreement to sell and distribute cocaine. The fact that Aceto changed the price during their last conversation does not negate the fact that they had agreed earlier to a sale with an identified buyer, distributer and at an identified price. The agreement on these specifics and the extent of their discussions was sufficient for a rational trier of fact to find an agreement between Foster and Aceto to engage in an illegal act. Kiriki, 756 F.2d at 1454-1455.

Following the conversation on January 8, 1988 between Foster and Aceto, Newport Beach Police stopped a truck occupied by co-defendants Anderson and Aceto. Approximately two kilograms of 94% pure cocaine were found in a maroon backpack inside the truck. Anderson and Aceto were arrested.

The possibility that Foster may not have met Anderson or even known his identity is irrelevant to whether or not he participated in the same conspiracy with him. The government is not required to prove direct contact or an explicit agreement among the co-conspirators. United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir. 1982). Neither is the government required to prove that each of the co-conspirators worked directly with each other or even knew each other. United States v. Perry, 550 F.2d 524, 528-29 (9th Cir. 1977), cert. denied, 434 U.S. 827 (1977). Moreover, Foster knew that Aceto was not the supplier but was acting on behalf of someone else. On January 6, Duarte asked Foster whether he had previously worked with the seller. Foster responded that he had not but that "the skipper" (Aceto) had known the seller for 15 years. From this evidence, a reasonable jury could conclude that Foster knew that Aceto was not the seller but was acting as an intermediary on behalf of another co-conspirator, Anderson.

After his arrest, Anderson waived his Miranda rights and agreed to cooperate by calling co-defendant Nigro. Nigro said he was on his way to Newport Beach to deliver eight additional kilograms of cocaine to Anderson and his colleagues. Nigro was arrested later that evening, shortly after leaving the appointed meeting place.

In consideration of the above, the evidence is sufficient to uphold Foster's convictions for conspiring with Aceto, Anderson and Nigro to distribute and possess cocaine with intent to distribute.

III. Foster's Proposed Jury Instruction on Withdrawal from

the Conspiracy

The Ninth Circuit has not resolved the issue of whether a district court's denial of a proposed jury instruction is reviewed de novo or for an abuse of discretion. United States v. Whitehead, 896 F.2d 432, 434 (9th Cir. 1990); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989) (citing conflicting cases). Regardless of which standard is applied here, the district court did not err in refusing defendant's proposed instruction. Since the case does not turn on this issue, we need not decide which standard is appropriate. Whitehead, 896 F.2d at 434; Sotelo-Murillo, 887 F.2d at 179.

Defendant contends that the court erred in refusing to give the following proposed jury instruction:

One of the defendants, EUGENE FOSTER, not only denies that he was a member of a conspiracy to distribute and to possess with intent to distribute large quantities of cocaine as alleged in Count 1 of the indictment, but also claims that he withdrew from any relationship that the government charges was a conspiracy before the crime was committed.

A person who becomes a member of a conspiracy remains a member unless he withdraws. A member of a conspiracy may withdraw by warning police officers about the conspiracy of [sic] making an effort to prevent other members from committing criminal acts or taking decisive action to separate himself from the conspiracy.

As I have told you, to find a defendant guilty of conspiracy as a member of a conspiracy, you must believe beyond a reasonable doubt that at the time [the] crime was committed, the defendant was a member of the same conspiracy as the person who actually committed the crime. If you have a reasonable doubt about this, you must find the defendant not guilty. It is for you to decide whether the defendant successfully withdrew from the conspiracy before the alleged overt act was committed, or whether you believe beyond a reasonable doubt that he was a member of the conspiracy when the crime was committed."

The district court rejected this proposed instruction as inaccurate, misleading, confusing to the jury, and not justified by the evidence.

A defendant is entitled to an instruction on his theory of the case if it is supported by law and has some foundation in the evidence. United States v. Knott, 894 F.2d 1119, 1121 (9th Cir. 1990). Defendant argues that the instruction focuses the jury's attention on the fact that he was arrested prior to the existence of any agreement among the co-conspirators or the commission of an overt act.

Defendant's proposed instruction rests on the same fallacy that forms the basis for his insufficiency of the evidence claim. As discussed above, there was sufficient evidence to show that Foster had entered into a conspiracy with Aceto and others to distribute drugs, prior to their January 8, 1988 discussion about price. Foster's conversations with Duarte and Aceto, his purchase of airplane tickets for the trip to Australia to smuggle drugs, and his possession of two scuba diving tanks with hidden compartments designed to conceal cocaine are overt acts supporting his conviction.

Furthermore, to avoid complicity in a conspiracy, one must withdraw before any overt act is taken in furtherance of the agreement. United States v. Loya, 807 F.2d 1483, 1493 (9th Cir. 1987). By the time of his arrest, defendant had performed at least one overt act in furtherance of his agreement. It was therefore too late for him to withdraw. United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). The first and second paragraph of his instruction were properly refused.

The third paragraph of the instruction erroneously suggests that in order to find the defendant guilty, the jury had to find that defendant was a member of the conspiracy at the time the substantive offense was committed. However, conspiracy is a crime in and of itself, separate and distinct from any substantive offenses which may be committed during the conspiracy's existence. United States v. Becker, 720 F.2d 1033, 1036 (9th Cir. 1983). The jury was charged (without objection) that if they should find beyond a reasonable doubt that the existence of the conspiracy had been proven, and that during the existence of the conspiracy an overt act was knowingly done by one of the conspirators in furtherance of some object or purposes of the conspiracy, then proof of the conspiracy charge was complete as to every person found by the jury to have willfully been a member of the conspiracy at the time the overt act was committed. This instruction correctly stated the law and adequately encompassed defendant's claim that he could not be convicted unless the conspiracy was in existence and an overt act was committed while he was still a member of the conspiracy.

Accordingly, the district court properly rejected defendant's proposed instruction.

AFFIRMED.