Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1989)

Nos. 90-10301, 90-1302.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the District of Arizona, No. CR-89-0190-CLH; Charles L. Hardy, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before BRUNETTI and RYMER, Circuit Judges, and WILSON,^**  District Judge.

MEMORANDUM^*** 

Francisco Lopez-Tomas and Jose Manuel Rayo-Bracamontes appeal their convictions following a jury trial for conspiracy to distribute heroin and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1) and 846. Lopez-Tomas and Rayo-Bracamontes contend that the district court erred by admitting into evidence hearsay statements made by an informant to government agents and by restricting cross-examination regarding a non-testifying witness. Additionally, Lopez-Tomas contends that the district court erred by (1) using the word "heroin," rather than the phrase "a mixture or substance containing a detectable amount of heroin," in its instructions to the jury, and (2) denying him the right to a speedy trial. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* Hearsay Statements

Lopez-Tomas and Rayo-Bracamontes contend the district court erred by admitting hearsay statements made by a government informant. The appellants argue that it was prejudicial error to allow government witnesses to testify to extrajudicial statements made by Leroy Leal, a government informant unavailable at the time of trial, regarding Lopez-Tomas's and Rayo-Bracamontes's participation in the offenses of conviction. The appellants also contend that the district court violated their rights under the confrontation clause of the Sixth Amendment by impermissibly restricting cross-examination of government witnesses on the issue of the hearsay declarant's credibility.

We review for abuse of discretion a trial court's decision to admit alleged hearsay evidence. United States v. Jones, 766 F.2d 412, 415 (9th Cir. 1985). "To determine whether the District Court abused its discretion, this court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984).

If the contested testimony was inadmissible hearsay, and the district court's limiting instructions to the jury were insufficient to cure the error, then admission of the hearsay statements was necessarily a violation of the appellants' rights under the confrontation clause of the Sixth Amendment. United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990). "Confrontation clause violations are subject to harmless error analysis. Reversal is not required if 'the error was harmless beyond a reasonable doubt.' " Id. (quoting Toolate v. Borg, 828 F.2d 571, 575 (9th Cir. 1987)); see also United States v. Kinsey, 843 F.2d 383, 388-389 (9th Cir.), cert. denied, 487 U.S. 1223 (1988); Jones, 766 F.2d at 414. Where, after setting aside any allegedly objectionable testimony, there still remains overwhelming and convincing evidence of a defendant's guilt, a court may find harmless error in the admission of that testimony. Kinsey, 843 F.2d at 389.

Assuming, arguendo, that the district court did err by admitting the alleged hearsay statements attributed to informant Leal, the issue is whether, absent the testimony as to Leal's statements, there was sufficient evidence to convict Lopez-Tomas and Rayo-Bracamontes. The Superseding Indictment charged appellants with conspiracy to possess with intent to distribute and possession with intent to distribute heroin on May 11, 1989. In order to convict appellants of the offense of conspiracy, the government had to prove that Lopez-Tomas and Rayo-Bracamontes (1) agreed to distribute heroin, (2) committed at least one overt act in furtherance of that purpose, and (3) intended to commit the crime of possession with intent to distribute heroin. See Magana-Olvera, 917 F.2d at 409; United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). "The government need not have shown an explicit agreement; it could have established it from the circumstances." Magana-Olvera, 917 F.2d at 409. To prove possession with intent to distribute narcotics, the government must show that the defendants knew contraband was present and were capable of exercising dominion and control over the contraband. United States v. Restrepo, 930 F.2d 705, 709 (9th Cir. 1991).

Here, the trial record indicates the government met its burden even without the benefit of Leal's alleged hearsay statements. The government introduced evidence to show that on May 11, 1989, Lopez-Tomas was observed meeting with Leal, the government informant, at a bar. Lopez-Tomas and Leal drove to an apartment complex, entered, and left again in Leal's pickup truck. When they left, another pickup truck containing two occupants was observed following them. Both Leal's vehicle and the one following it drove to a motel. At the motel, Leal, Lopez-Tomas and Rayo-Bracamontes, one of the occupants of the second pickup truck, entered a second floor motel room. Inside the motel room, Officers Wright and Miranda were posing as heroin buyers.

Officer Miranda testified that he asked Lopez-Tomas and Rayo-Bracamontes whether they had the heroin and that they both answered affirmatively. There was then some discussion between the undercover officers and Leal, after which Officer Miranda paged a third undercover officer, Officer Quezada, who arrived shortly thereafter with $14,000 in cash. Leal and Lopez-Tomas sat down at a table and began counting the cash. Officer Miranda further testified that Rayo-Bracamontes told Leal and Lopez-Tomas to "count for two," telling Officer Miranda he wanted money for only two ounces. When Officer Miranda indicated that he wanted five ounces, Rayo-Bracamontes responded that he would take money for two ounces and then go down and get an additional three ounces from a truck that was parked outside.

Officers Wright and Quezada testified that they observed Rayo-Bracamontes remove two plastic bags containing 50.1 grams of heroin from the waistband of his shorts. When Rayo-Bracamontes handed the plastic bags to Officer Quezada, the undercover officers arrested both Lopez-Tomas and Rayo-Bracamontes. A search of the truck in which Rayo-Bracamontes arrived revealed a plastic bag containing 74.1 grams of heroin under a T-shirt on the truck's seat. Following the arrests of Lopez-Tomas, Rayo-Bracamontes, and Silvano Diaz-Garcia, the person who had remained outside with the pickup trucks, Officer Miranda received permission from Lopez-Tomas to search Lopez-Tomas's house, where a further 37.9 grams of heroin was found in a plastic bag in the refrigerator.

In addition to the testimony of the law enforcement personnel, Lopez-Tomas testified that Rayo-Bracamontes had approached him on May 8 or 9 to inquire if he knew anyone who was interested in buying heroin. Lopez asserted, however, that his involvement in the heroin sale was purely unintentional and coincidental. Both Rayo-Bracamontes and Diaz-Garcia testified that they were completely unaware of any attempts to sell heroin until they had arrived at the hotel and been arrested.

Nonetheless, despite Lopez-Tomas's and Rayo-Bracamontes's disclaimers, the jury was entitled to believe the officers' testimony over that of the defendants. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989). Thus, even in the absence of the statements attributed to Leal, there was ample evidence from which the jury could conclude beyond a reasonable doubt that Lopez-Tomas and Rayo-Bracamontes were involved in a conspiracy to possess with intent to distribute heroin. See Magana-Olvera, 917 F.2d at 409. The same evidence supports appellants' conviction for the underlying substantive offense. See Restrepo, 930 F.2d at 710. Disregarding the alleged hearsay statements, the government presented evidence sufficient to prove Lopez-Tomas's and Rayo-Bracamontes's guilt beyond a reasonable doubt. See Magana-Olvera, 917 F.2d at 409. Therefore, admission of the statements was harmless error.

Appellants also contend that the district court impermissibly restricted cross examination on the issue of the hearsay declarant's credibility in violation of Federal Rule of Evidence 806 and the confrontation clause. Having concluded that there was sufficient evidence to convict without the alleged hearsay testimony, this too is harmless error. Furthermore, sufficient evidence to impeach Leal was introduced at trial. The district court did not abuse its discretion by restricting repetitive testimony. See United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988).

II

Jury Instructions

Lopez-Tomas contends the district court erred by using the word "heroin," rather than the phrase "a mixture or substance containing a detectable amount of heroin," in its instructions to the jury. Lopez-Tomas argues that the evidence was insufficient to convict him of possession of 100 grams or more of pure heroin. Lopez-Tomas concedes that no objection to this jury instruction was raised below.

This court reviews for plain error whether jury instructions accurately state the law when no objection was raised below. United States v. Terry, 911 F.2d 272, 279 (9th Cir. 1990). " 'A plain error is a highly prejudicial error affecting substantial rights.' Plain error requires a reversal 'only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.' " United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir. 1990) (citations omitted). We consider " 'all circumstances at trial including the strength of the evidence against [the] defendant [ ]' " when applying the plain error standard. Id. at 1459 (citation omitted).

Here, the indictment charged Lopez with conspiracy to possess with intent to distribute and possession with intent to distribute 100 grams or more of a substance containing heroin, an offense carrying a minimum mandatory sentence of five years.¹  Lopez-Tomas does not contend that he was in possession of less than 100 grams of a substance containing heroin. Rather, he argues that the jury could not possibly have convicted him of possession of 100 grams of pure heroin because the government's expert testified that, in the approximately 162.1 grams of the mixture containing heroin which was seized, there were only about 31 grams of pure heroin. Throughout the trial, however, the word "heroin" was used by all parties to refer to the entire amount of the substance containing heroin rather than the relatively small amount of pure heroin contained within that substance. The prosecutor, in keeping with this semantic usage, stated during closing arguments:

[T]he evidence in this case established beyond a reasonable doubt that the amount of heroin involved was greater than 100 grams.... [The government chemist testified], I am reading from my notes, Exhibit 1, the exhibit that was seized in the hotel room, was 50.1 grams, and was 20% pure. Exhibit 2, which was the heroin seized from the truck, that was 74 grams. So right there, ... that is 120 grams right there.... The heroin that was found in the hotel room and the truck is more than 100 grams of heroin.

The district court gave the following jury instruction:

In each case you have to decide whether he is guilty or not guilty and if you find him guilty, you have to decide whether it was more or less than 100 grams of heroin.

Given the context within which this jury instruction was given, the clear conclusion is that the jury understood the word "heroin" to mean "a mixture or substance containing a detectable amount of heroin.² 

Therefore, considering all circumstances at trial, the district court did not plainly err by employing the word "heroin" in its instruction to the jury. See Chambers, 918 F.2d at 1459-60.

III

Right to a Speedy Trial

Lopez-Tomas contends that he was denied his right to a speedy trial under the Sixth Amendment and his right to be free from unnecessary delay under Fed. R. Crim. P. 48(b) due to the approximately ten month time span between the date of his arrest and the date on which his trial began. Lopez-Tomas did not raise this issue below.

"It is well settled that ' [a] party must raise an objection initially to the trial court to preserve it for appeal.' " United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990) (quoting United States v. Hayden, 860 F.2d 1483, 1485 (9th Cir. 1989).

We have held that we may consider an issue raised for the first time on appeal if

(1) there are "exceptional circumstances" why the issue was not raised in the trial court, (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue presented is purely one of law...."

Id. at 1302 (quoting United States v. Carlson, 900 F.2d 1346, 1349-50 (9th Cir. 1990)). None of these factors is present here.

The question of whether a defendant was denied his Sixth Amendment right to a speedy trial is necessarily a fact based inquiry, involving as it does the evaluation of at least four factors: (1) the length of delay; (2) the reason for the delay; (3) whether and how a defendant asserts his right; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530-33 (1972). Therefore, we decline to reach the merits of Lopez-Tomas's argument that he was denied his right to a speedy trial. See Smith, 905 F.2d at 1302.

AFFIRMED.