Unpublished Disposition, 937 F.2d 614 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Benjamin HERRERA-ZULETA, Defendant-Appellant.

No. 89-10389.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.Decided July 16, 1991.

Before ALDISERT* , ALARCON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Benjamin Herrera-Zuleta was convicted of conspiracy and importation of more than one kilogram of cocaine under U.S.C. §§ 952(a), 960(a) (1), 960(b) (1) (B), and 963. The district court denied his Fed. R. Crim. P. 29 motion for acquittal. Herrera was sentenced to concurrent 40 year terms on each of the two counts in the indictment. Defendant appeals from the judgment of conviction and sentence.

In late 1984 and early 1985 the DEA organized a sting operation involving importation of cocaine from Colombia. In January 1985 DEA agents (including two drug-importers-turned-informants) flew to South Caicos Island to discuss the sale of an airplane with Leocadio Moreno. The plane was to be used to import a large amount of cocaine from Bolivia into the United States.

Moreno eventually purchased a aircraft from one of the government informants, Barry Seal, but the first three attempts to pick up the drugs in Bolivia were unsuccessful. Along with aircraft mechanical difficulties, a number of persons, both at the South Caicos airport and at a refueling point in Colombia, demanded payment in order for the plane to continue.

Eventually it was clear that an additional $40,000 was required to continue the effort. The government agents flew Moreno to south Florida where, he indicated, he could secure sufficient cash to carry out the plan. A January 10, 1990, meeting at the Opa Locka airport in Miami was set up to discuss the additional funds.

DEA agent Robert Joura, who apparently directed the operation, asked agent Victor Olivieri to attend the meeting to act as translator. After Olivieri arrived Moreno informed them that he would have to call his "partner" to get the $40,000 needed to continue the operation. Moreno called his own apartment in Miami and told the answering party that he needed $40,000 and "to bring the money over or to get the money ready."

Forty-five minutes later, after the group was joined by Benjamin Herrera and Francisco Montoya, a meeting was held in a conference room at the airport. Agent Olivieri testified at length as to the conversation (primarily in Spanish) that occurred. Moreno explained to Herrera that $40,000 was needed and Herrera responded that "he could come up with the money, with the forty thousand ..., but he ... needed--he had like twenty thousand; he needed a little more time to get the money."

Government informant Seal explained why the money was needed and said that he was concerned because on a former trip to Colombia William Bottoms (the intended pilot in this venture and a government informant) had been held at gun point by Colombian army members demanding bribes. Herrera responded that the Colombians should be no problem; "that the people down in Colombia had been paid off, that he had taken care of the problem himself." The defendant also stated that "he was going to send a pilot to guide Mr. Bottoms to the landing strip in Bolivia." Herrera continued that "he needed somebody to go to Bolivia to--for the smooth transaction of the cocaine down there. He needed one of his socios ... to go down with him--or to go down with Mr. Bottoms."

Finally, Olivieri testified that "Herrera asked if the cocaine could be delivered to either--somewhere on the West Coast rather than South Florida, ... Mr. Seal told him that, yes, he could do it to the West Coast. And Mr. Herrera said either Los Angeles or Las Vegas would be--it would be okay, and then he agreed ... that Las Vegas would be the place where he would deliver it."

The following day after a series of telephone conversations between Olivieri and Moreno, a meeting was held at an area restaurant. At the meeting Moreno represented that he had thirty-six of the required forty thousand dollars, but apparently the money was not turned over to the agents.1 

On January 15 agents Seal, Joura and Olivieri flew to Tyler, Texas, to meet a plane carrying cocaine from Bolivia. The plane landed as scheduled, refueled and flew to Las Vegas for off-loading of the drugs. The following day a number of conspirators were arrested in Las Vegas. Herrera was apprehended in Florida in December, 1987.

Appellant argues that the evidence presented to the jury was insufficient to convict him of conspiracy to distribute, and of distribution of at least a kilogram of cocaine. We consider the sufficiency of the evidence to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence and all reasonable inferences to be drawn therefrom are viewed in the light most favorable to the government. United States v. Adler, 879 F.2d 473, 495 (9th Cir. 1986) (citation omitted).

a. Conspiracy Count

To establish that appellant took part in a conspiracy the government must prove the following beyond a reasonable doubt: (1) the existence of an agreement to accomplish an illegal objective; (2) one or more acts by the defendant connecting him to the agreement and in furtherance of the illegal purpose; and (3) that appellant possessed the requisite intent necessary to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

There is no doubt that a conspiracy to import cocaine existed. The only issue is whether there was sufficient evidence to prove beyond a reasonable doubt that Herrera was member of the conspiracy. In Penagos, we held that

Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy. Penagos, 823 F.2d at 348.

There is no question the jury reasonably could have connected Herrera to the conspiracy based on the evidence offered at trial.

In the light most favorable to the government, direct and circumstantial evidence demonstrated that Herrera: (a) was contacted by Moreno to provide cash for an ongoing attempt to import a large amount of cocaine from Bolivia; (b) stated at the Opa Locka meeting that given time he could come up with the forty thousand dollars to complete the financing; (c) stated that he had personally taken care of problems that were experienced earlier with the Colombian army; (d) chose the eventual off-loading site for the imported cocaine; and (e) was the source of funds delivered by Moreno to DEA agents after the Opa Locka meeting.

Appellant's assertion that this evidence was insufficient to establish Herrera's connection to the conspiracy is frivolous. Defendant relies on United States v. Esparza, 876 F.2d 1390 (9th Cir. 1989) (mere presence at the scene of a crime is not sufficient to connect a defendant to a conspiracy), and United States v. Ramirez, 880 F.2d 236 (9th Cir. 1989) (same). Herrera's reliance on these cases is misplaced. In both cases, the government failed to demonstrate any connection between an ongoing conspiracy and the defendant other than the defendant's presence at the scene of illegal activity.

There can be no assertion here that Herrera was "merely present" at the Opa Locka meeting: he asserted that he would provide up to $40,000; he directed the final destination of the cocaine; he claimed to have cleared up difficulties with the Colombian army; and there was strong circumstantial evidence that he was the source of funds eventually provided to government agents.

Thus, despite appellant's assertions, there was ample direct and circumstantial evidence of Herrera's knowledge of and participation in the conspiracy which ended with the arrival of eighty-six kilos of cocaine in Las Vegas. It follows also that given the evidence of Herrera's connection to the conspiracy, the jury could rationally find beyond a reasonable doubt that appellant was guilty of the underlying substantive offense of importation of at least a kilogram of cocaine.

a. Hearsay Testimony

Appellant next asserts that the trial court improperly allowed Agent Joura to testify regarding statements (i.e., translations) made by Agent Olivieri at the Opa Locka meeting. The trial judge earlier had excluded this kind of testimony. Later, Joura testified in rebuttal and over defense objections, that the court permitted testimony as to the conversation at the meeting.

We review a district court's decision to admit testimony over a hearsay objection for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988). Herrera argues that by permitting Joura to testify as to statements made by Olivieri about statements made by Herrera, Olivieri's testimony was strengthened. And if the statements were impermissibly admitted, they were sufficiently prejudicial to amount to an abuse of discretion.

The trial court permitted this testimony by Joura, as to statements made by agent Olivieri at the Opa Locka meeting, as evidence of prior consistent statements under Fed.R.Evid. 801(d) (1) (B).2  Because the defense challenged Agent Olivieri's veracity and his recall, the district court allowed this testimony by Agent Joura to rebut these charges rather than to buttress the substantive testimony of Agent Olivieri regarding Herrera's statements.

Rule 802(d) (1) was intended to permit testimony by a witness regarding prior statements by a declarant that are consistent with trial testimony and were made before the declarant had a motive to fabricate. In this case, in order to fit within the rule, Agent Joura would have to testify about statements made by Agent Olivieri at the Opa Locka meeting. While this is literally what happened, it is obvious from Joura's testimony that the government was attempting to revisit statements attributed by Olivieri to the defendant. Unless the testimony was admissible under some other theory, it should have been excluded. See United States v. Smith, 893 F.2d 1573, 1581 (9th Cir. 1990).

Nevertheless, the court did not abuse its discretion by allowing Joura to testify as to statements made by Olivieri. As a general matter, "the testimony of a witness concerning an extra-judicial statement made through an interpreter by another person in a conversation with the witness or with a third person in a conversation with the witness or with a third person is inadmissible as hearsay where the witness understood the statement, not as originally given, but as translated by the interpreter." 12 A.L.R. 4th 1020.

Two courts of appeal have, however, faced this issue and held that testimony by an agent in this context may be admitted. In United States v. Da Silva, 725 F.2d 828 (2nd Cir. 1983), an agent attempted to testify to statements made by a defendant through a translator. Both the agent and the translator were officers of the United States. The court held that

the translator is normally to be viewed as an agent of the defendant; hence the translation is attributable to the defendant as his own admission and is properly characterizable as non-hearsay under Rule 801(d) (2) (C) or (D) which provides

A statement is not hearsay if--

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* * *

(2) The statement is offered against a party and is ... (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.... Id. at 831.

Quoting 4 J. Weinstein & M. Berger, Evidence p 801(d) (2) (C), at 801-158 n. 34 (1981), the court continued:

[P]rovided the interpreter has a sufficient capacity, and there is no motive to misrepresent, the interpreter is treated as the agent of the party and the statement is admitted as an admission unless circumstances are present which would negate the presumption of agency.

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Where, however, there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship may properly be found to exist. In those circumstances the translator is no more than a "language conduit," and a testimonial identity between declarant and translator brings the declarant's admissions within Rule 801(d) (2) (C) or (D). Id. at 832 (citations omitted).

There are no circumstances in this case that would "negate the presumption of agency." Although the defense has questioned Agent Olivieri's recall and veracity since the Opa Locka meeting, there is no question that the translations he made at the time of the meeting were accurate. The testimony of agent Joura regarding Olivieri's translations at the meeting was not hearsay and thus the trial court did not abuse its discretion by admitting it. See also United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir. 1985).

b. Other Evidence

Herrera asserts that the trial court erred by refusing to admit one item of evidence, and in admitting another. "Questions of the admissibility of evidence which involve factual determinations, rather than questions of law, are reviewed for an abuse of discretion." United States v. Owens, 789 F.2d 750, 753 (9th Cir. 1986) (citations omitted), reversed on other grounds, 484 U.S. 554 (1988). There is no assertion that a question of law was involved here. The trial judge simply viewed the evidence and admitted it or refused to do so based on its apparent relevancy. For that reason we consider defendant's claims under an abuse of discretion standard.

Herrera first asserts that the trial court unfairly rejected its attempt to introduce evidence of a Warrant of Deportation issued in May, 1975. Upon arresting Herrera, agents recovered a Mexican passport bearing the name Francisco Renteria-Soto, and the picture of the defendant. Denying a motion in limine to exclude the passport, the trial court admitted the document "for the purpose of showing false identification as evidence of guilty knowledge." Because the passport was circumstantial evidence of an attempt to avoid capture, and thus of guilty knowledge, the trial court did not abuse its discretion by admitting this evidence.

Defense counsel then sought to negate the effect of the passport by introducing a May, 1975, deportation warrant for the purpose of demonstrating that Herrera had a false passport not because of guilty knowledge of the conspiracy, but because of an outstanding deportation order. Appellant asserts that the court rejected his attempt to introduce the warrant. In fact, the court tentatively admitted the document, but held that if the warrant could come in under an exception to the hearsay rule, the prosecution would be permitted to introduce other aspects of the deportation file. The file included evidence of a 1970 narcotics conviction which led to the deportation order.

Defense counsel argued that under Fed. R. Crim. P. 609(b), the evidence of the prior conviction could not be admitted because it occurred in 1970. The district court did not prohibit Herrera from offering the warrant, but ruled that in fairness to the prosecution, it could respond to the introduction of the warrant hearsay by offering evidence of the 1970 offense. Rule 609 prohibits evidence of more than ten year old convictions "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances outweighs its prejudicial effect."

The trial court reasonably determined that the probative value of evidence of conviction outweighed the prejudice to Herrera. Had the court only admitted the warrant, the jury might have received a skewed view of the meaning of the false passport. Also, no substantial right of the defendant was affected because the passport was only a small part of a damaging case against Herrera. See United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985) (" [a]n erroneous evidentiary ruling will be reversed if a defendant shows that a substantial right has been affected.").

Finally, defendant challenges the admission of a Colombian identification document for Hector Orozco. The document indicated that Orozco's mother had the same last name as defendant. The court ruled that the objection went to the weight, and not to the admissibility of the document which could tend to prove that Herrera was closely related to a person who was shown to be part of this conspiracy to import cocaine. The trial court did not abuse its discretion in making this relevancy determination. The document was obviously relevant to draw one of a series of connections between Herrera and the conspiracy.

c. Prosecutorial Misconduct

Herrera points to a number of alleged instances of prosecutorial misconduct and argues that because the evidence in this case is "thin" this misconduct should result in reversal. In fact, the conduct was either permissible or was not prejudicial and thus should not affect the verdict.

This court considers statements made by a prosecutor at trial, where there is a timely objection, to determine whether they were improper and, if so, whether the misconduct "materially affected the fairness of the trial." United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986) (quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985)). Where there is no objection made at trial, this court considers whether there was plain error. United States v. Feldman, 853 F.2d 648, 652 (9th Cir. 1988) cert. denied, 109 S. Ct. 1164 (1989).

Defendant asserts that the prosecutor impermissibly referred to the defendant as a "kingpin" in his closing argument. Herrera asserts that there was not sufficient evidence to support the view that Herrera was a leader in this venture. We have held that " [h]ard blows are permissible in closing arguments and even when statements go beyond reasonable inferences made from the evidence, reversal is proper only if they were likely to have prejudiced the defendant." Feldman, 853 F.2d at 665. Defendant did not object to this argument at trial and thus we consider whether argument amounted to plain error. Given the evidence against Herrera, it not possible that the prosecutor's conduct was sufficiently prejudicial to amount to plain error.

Defendant next asserts that the prosecution committed prejudicial misconduct by "vouching" for agents Joura, Reyes, and Bottoms. "The government may not vouch for the credibility of its witnesses, either by putting its prestige behind the witness, or by indicating that extrinsic information not presented in court supports the witness' testimony...." United States v. Sitomb, 901 F.2d 799, 805 (9th Cir. 1990). On the other hand, the issue is not whether the vouching occurred, but whether the conduct invites reversal because it is more probable that not that the conduct affected the jury's verdict. The statements cited by Herrera were either references to evidence elicited on direct examination, or had such a minimal effect in light of a six day trial that they could not be considered prejudicial. See id. at 806.

Herrera asserts that the prosecutor was guilty of misconduct in cross-examining Moreno and Raul Reyes. Herrera contends that the prosecutor impermissibly attempted to connect Moreno (who inevitably would be connected to the defendant) to well known Colombian drug lords and that the prosecutor attempted to imply by his questioning of Moreno and Reyes that defendant had threatened them. We have held that

Every slight excess of a prosecutor does not require that a verdict be overturned and a new trial ordered. Prosecutorial misconduct does not require reversal unless the misconduct deprives the defendant of a fair trial. The test for determining whether prosecutorial misconduct requires a mistrial is whether the remarks were improper and whether they prejudicially affected substantial rights of the defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988).

In light of the statements made by Herrera at the Opa Locka meeting and subsequent events tying him to the importation of nearly one hundred kilos of cocaine, even if the cross examination of these witnesses was improper, it did not prejudicially affect substantial rights of the defendant.

Herrera makes several challenges the "reasonable doubt" instruction read to the jury at the close of the trial. Defense counsel made no objection to the instruction at the time of trial and thus the instruction is reviewed for clear error. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989).

The trial court employed a jury instruction contained in the 1985 edition of the Manual of Model Criminal Jury Instructions for the 9th Circuit. Part of the instruction stated "You should return a guilty verdict if, but only if, you find the evidence so convincing that an ordinary person would be willing to make the most important decisions in his or her own life on the basis of such evidence." The 1989 edition of the Model Jury Instructions comments that the new instructions reject this statement because these "most important decisions ... may involve a heavy element of uncertainty and risk-taking and are wholly unlike the decisions jurors ought to make in criminal cases." Id. at 30.

Nevertheless, it was not plain error for the judge to use the old instruction. The 1989 version was not proposed by either side and no objection to the use of the 1985 model was made at trial. Since there is no evidence the court employed the old version of the Model Instruction with knowledge of the 1989 amendment, it did not plainly err in using the old instruction.

Herrera was sentenced to concurrent 40 year terms for two counts of conviction. Under 21 U.S.C. § 960(b) (2) the defendant was subject to a sentence of not more than twenty years for the substantive violation. For conspiracy, under 21 U.S.C. § 963, he was subject to the same sentence contained in the provision covering the substantive violation; namely, twenty years. 21 U.S.C. § 962 provides that if the offense is a second or subsequent offense the defendant is subject to twice the applicable sentence for each count.

The trial court found that Herrera had been convicted of a 1970 drug offense, and sentenced him to twice the maximum penalty for each count (i.e., two forty year terms to run concurrently).

a. Excessive Sentence

Herrera argues that the sentence was excessive. The legality of a sentence is reviewed de novo. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988). If the sentence is within statutory limits, it is generally not subject to review. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988).

Herrera asserts that the penalty imposed for the conspiracy count was excessive. 21 U.S.C. § 963, which sets out the approach to sentencing for conspiracy, was not reconsidered or altered when Congress increased sentences for substantive violations under 21 U.S.C. § 960. The applicable conspiracy penalty under the pre-amendment section 960 would have been 15, rather than 20 years. Although Herrera's offense took place after the amendments to section 960, he argues that application of the amended section 960 through section 963 is unconstitutional.

Section 963 is unambiguous on its face, and appellant points to no authority indicating Congress did not intend to increase the penalty for conspiracy to violate section 960 when it increased the penalty for the substantive offense. Indeed, in 1988 Congress affirmed its commitment to this view. Referring to amendments to 21 U.S.C. § 846, a provision identical to section 963,3  Congress said that the intent of the amendment was "to make clear that any penalty that may be imposed for a substantive drug offense may be imposed for [a] conspiracy to commit that offense." 134 Cong.Rec. S17,366 (daily ed. Nov. 10, 1988), quoted in United States v. Montoya, 891 F.2d 1273 (7th Cir. 1988).

Both the amendments to section 960 increasing the applicable maximum penalty for the substantive violation to twenty years, and section 963, which ties the conspiracy sentence to amended section 960, were applicable at the time of Herrera's offense and thus he was sentenced within the statutory range. The trial court did not abuse its discretion in arriving at a sentence for the conspiracy count.

b. Applicability and Constitutionality of 21 U.S.C. § 962(a)

21 U.S.C. § 962(a) provides that " [a]ny person convicted of any offense under this subchapter is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that otherwise authorized...." The trial court found Herrera had been convicted of a 1970 drug offense and thus sentenced him to twice the maximum (i.e., to forty years) for each count.

Herrera sought to challenge the constitutionality validity of his 1970 conviction but the court prevented him from doing so. 21 U.S.C. § 851(e), which is applicable to enhancements under section 962, provides that "No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction." Citing this section, the court held that Herrera could not present evidence that the 1970 conviction was invalid, and applied the enhancement provision of Sec. 962 to each of the two counts.

Herrera first asserts that the section 853 limitation is not applicable to the 1970 conviction. He asserts that because the prior offense must have been charged under the same subchapter as section 962, and because the notes to section 962 state that "this subchapter" refers to a public law enacted in October 1970, and because Herrera's prior conviction was imposed in July 1970, section 962 should not apply.

This position has no merit because section 962(b), to which Herrera refers, also includes any felony conviction under the laws of the United States. The 1970 conviction was for importation of cocaine under 21 U.S.C. §§ 173, 174, and thus the enhancement provisions of section 962 are applicable.

Finally, appellant asserts that section 851(e) is unconstitutional because it prevents him from challenging a former illegal conviction which now results in an enhanced sentence. By precluding a hearing on the constitutionality of the 1970 conviction, in appellants view, section 851(e) denies effective assistance of counsel as required by the sixth amendment, leads to cruel and unusual punishment under the eighth amendment, and denies due process under the fifth amendment.

A similar challenge to section 851(e) was presented in United States v. Kinsey, 843 F.2d 383 (9th Cir. 1988). In that case, defendant challenged the application of section 851(e) and an enhancement provision (21 U.S.C. § 841(b)) like section 962 as a denial of his right to a jury trial. This court stated

We find the penalty provisions of Title 21 U.S.C. Section 841(b) (1) (A) analogous to a recidivist statute. The purpose underlying Congress' enactment of multiple offender penalties with respect to narcotics laws is to punish violators more severely, deter the criminal who engages in illicit drug traffic, and take habitual violators out of circulation. We hold that the sentence enhancement provisions of [Sec. 841] and related Section 851(e) do not deny a criminal defendant his or her constitutional right to a jury trial but merely set forth aggravating circumstances the presence of which require a trial court to increase the sentence of a habitual offender. Accordingly, we hold that [these provisions] do not create criminal charges which necessarily guarantee a person his or her right to a jury trial. 843 F.2d at 391-92 (citations omitted) (emphasis added).

The reasoning of the Kinsey court is applicable to this challenge to section 853 on constitutional grounds other than a denial of a right to a jury trial. There is no argument that Herrera has been denied assistance of counsel, equal protection or due process in this case. Because Kinsey dictates that no separate criminal charges are created by the enhancement provision, section 851(e) does not violate appellant's constitutional rights by precluding a reassessment of a now twenty-year-old criminal conviction.

CONCLUSION

Herrera has asserted no basis upon which his conviction or sentence can be disturbed and thus the judgment of the district court is

AFFIRMED.

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Honorable Ruggero J. Aldisert, United States Circuit Judge for the Third Circuit, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

Agent Olivieri testified that the entire forty thousand dollars was paid to agents on January 15, after the drug shipment had arrived in Las Vegas

 2

The rules states: "A statement is not hearsay if--(1).... The declarant testifies at the trial ... and is subject to cross examination concerning the statement, and the statement is ... (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive...."

 3

An identical amendment was made to Sec. 963 by the law amending Sec. 846