Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Gilbert Ledesma, Primintivo Aespuro and Jose Luis Beltran appeal their convictions of various drug-related charges stemming from a search of Aespuro and Beltran's apartment which led to the seizure of heroin, a large quantity of cash, and two loaded weapons. We affirm.

DISCUSSION

a. Sufficiency of evidence

Ledesma argues that there was insufficient evidence linking him to a drug conspiracy.¹  Instead, he argues that he was merely a buyer who was present in his sellers' apartment after having injected himself with heroin. While it is true that a drug addict cannot be convicted of conspiracy based on his relationship with his supplier, United States v. Martin, 599 F.2d 880, 888-89 (9th Cir.), cert. denied, 441 U.S. 962 (1979), there is sufficient, independent evidence linking Ledesma to the drug conspiracy.

We must view the evidence in the light most favorable to the government, determining whether " '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). Ledesma does not argue that the government did not establish the presence of a conspiracy; instead, he asserts that it did not establish his connection to the conspiracy. " [E]vidence of only a slight connection is necessary to support a conviction of knowing participation in [a] conspiracy." United States v. Sanchez-Mata, No. 87-5333, slip op. 1677, 1681 (9th Cir. Feb. 11, 1991). Thus, from the fact of the car purchase, although a jury could have inferred that Ledesma was merely helping a new friend buy a new car, an equally reasonable inference was that he was helping Beltran launder drug money. The method of purchase makes the latter inference more likely. They bought the car with approximately $25,000 in cash, using five and twenty dollar bills kept in plastic envelopes and brown paper bags. Beltran handed the money to Ledesma who in turn counted it out to the seller.

Moreover, based on Ledesma's various translation services for Aespuro and Beltran, it was reasonable for the jury to infer that Ledesma's other role was that of translator. Aside from his translation at the auto dealership, he was present in Aespuro and Beltran's apartment on one occasion when the sales manager called him there, and the numerous buyers who called while the officers were present in the apartment spoke in English, thereby implying that an English-speaking person served as the drug order-taker. In sum, there was sufficient evidence for the jury to find beyond a reasonable doubt that Ledesma was connected to the conspiracy.

b. Prosecutor's death penalty remark

Ledesma argues that the prosecutor's remark, "had one of these defendants shot one of those police officers, we'd be in state court seeking the death penalty for the murder of a peace officer in the commission of his duties," denied him a fair trial. We disagree. During the trial, Aespuro's opportunity to shoot Firenza was raised by the defense. The comment arguably was in response to that. Moreover, defense counsel failed to object to the remark. While it was unnecessary for the government to interject the possible penalty for such a crime in its response, and perhaps the entire comment was irrelevant, it was not plain error. Moreover, Ledesma was not convicted of the firearm charge. We conclude that no substantial right of Ledesma was affected by the remark and there thus was no plain error. Fed. R. Civ. P. 52(b).

Aespuro argues that his waiver was involuntary because the language difficulties prevented him from understanding the nature of his rights. There is no evidence in the record that his statement was involuntary. On the contrary, Officer Gayton, a Spanish-speaking officer, was very careful, using a Spanish language Miranda advisement form and repeating words and using different words when he thought Aespuro did not understand.

Beltran argues that all of the evidence that resulted from the officers' entry into the house should have been suppressed. We must decide whether the officers' suspicion that Wilcox might be there coupled with the loud noise heard coming from the bathroom created an exigent circumstance justifying a warrantless entry.²  See United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988) (citation omitted) ("Exigencies must be viewed from the totality of the circumstances known to the officer at the time of the warrantless entry."). We conclude it did.

Beltran argues that upon their arrival at the Marin Avenue address, the officers could not have reasonably believed that Wilcox was there because the officers were looking for several individuals, not just Wilcox, and the informant gave them numerous possible addresses for Wilcox. Thus, Beltran asserts, the officers' subsequent conclusion that the noise in the bathroom was made by an escaping Wilcox was also unreasonable. We disagree. Immediately before seeing a moving figure and hearing the noise of someone attempting to climb out the window, the officers had announced that they were looking for Wilcox. The district court's factual finding that the officers reasonably believed the fleeing person to be Wilcox is not clearly erroneous. Moreover, such a reasonable belief constituted an exigent circumstance. See United States v. Bustamante-Gamez, 488 F.2d 4, 8-9 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974) (exigency exists where there is possibility that suspect will escape); United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.), cert. denied, 469 U.S. 824 (1984) (exigency existed when officers knocked but did not await refusal of entry because they saw the sought-after individual inside and feared he might arm himself).

Alternatively, Beltran asserts that there was no chance of escape because the officers could have apprehended a fleeing fugitive outside. It appears from the record that five officers were present at the scene and only one was stationed away from the apartment door. He would not know through which window the person escaped. The case cited by Beltran, United States v. Pacheco-Ruiz, 549 F.2d 1204 (9th Cir. 1976), is inapposite. In that case, although the exact number of officers was not noted, the court found that " [t]here were enough officers present" to prevent the sought-after individuals from escaping a crawlspace underneath a house. Id. at 1207. Thus, Beltran's assertion that Wilcox, if Ledesma had been she, could have been apprehended outside of the apartment is unsupported.

Finally, Beltran weakly argues that Firenza's continued presence which led to the plain viewing of the two weapons was not justified. This argument is without merit. Firenza saw the guns in plain view almost immediately after running down the hall when he was legitimately still in the apartment. The subsequent protective sweep of the entire apartment was justified by the remaining uncertainty as to whether Wilcox was present and bolstered by the presence of two loaded weapons. United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985). The ultimate seizure of the evidence was justified by Aespuro's and Beltran's consents. Thus, the denial of the motion to suppress is affirmed.

CONCLUSION

Ledesma's Aespuro's, and Beltran's convictions are AFFIRMED.