U.S. v. Cruz
| Decision Date | 19 September 1997 |
| Docket Number | 96-10160,Nos. 96-10159,s. 96-10159 |
| Parties | 47 Fed. R. Evid. Serv. 1107, 97 Cal. Daily Op. Serv. 7488, 97 Daily Journal D.A.R. 12,080 UNITED STATES of America, Plaintiff-Appellee, v. Billy CRUZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joey MESA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Benjamin B. Cassiday, III, Honolulu, HI, for defendant-appellant Cruz.
Richard T. Pafundi, Honolulu, HI, for defendant-appellant Mesa.
Steven S. Alm, United States Attorney, Thomas J. Brady, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee.
Appeals from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CR 95-0287 HG.
Before: NORRIS, HALL, and TASHIMA, Circuit Judges.
Billy Cruz and Joey Mesa appeal from their convictions for conspiracy to distribute methamphetamine and possession with intent to distribute. 21 U.S.C. §§ 846, 841(a). Cruz also appeals his conviction for attempting to possess methamphetamine with intent to distribute. The district court had jurisdiction under 18 U.S.C. § 3231; we have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part and remand.
Mesa hired Peter Balajadia to carry 210.7 grams of methamphetamine from California to Guam in a pouch sewn into his underwear. In exchange, Balajadia was to be paid $1,500 and two small packets of methamphetamine. Mesa instructed Balajadia to deliver the drugs to Jaime Tenorio in Guam. Balajadia flew from San Francisco to Honolulu on his way to Guam, accompanied by Robert Taitano. Unfortunately for the conspirators, an anonymous tipster had informed Honolulu police detectives that Balajadia would be carrying methamphetamine on the flight. The detectives questioned Balajadia, conducted a consensual search, and found the methamphetamine. After Balajadia and Taitano were arrested, Balajadia agreed to cooperate with the government.
Balajadia initially told the detectives that Taitano had hired him to carry the drugs to Guam. He later admitted that he had lied in an effort to protect Mesa, his sister's fiance. A detective had Balajadia call Tenorio in Guam and tell him that Taitano had been arrested with Balajadia's ticket after drinking too much on the plane and getting in a fight. Balajadia claimed that he did not have enough money to get to Guam and deliver the drugs. Tenorio told Balajadia that either he or "Joey" would come to Honolulu and get the drugs.
Later that evening and after several phone calls between Balajadia, Mesa, and Tenorio, Mesa called Balajadia and informed him that Cruz would come to Honolulu and take the drugs to Guam. Cruz, Balajadia's cousin, agreed to transport the drugs in exchange for $3,000. Cruz then told Balajadia that he was coming and not to flush the drugs down the toilet. The next day, the detectives monitored and videotaped Cruz attempting to take possession of the methamphetamine (actually replaced by rock salt) from Balajadia. The officers found about one-half gram of methamphetamine on Cruz and plastic bags commonly used to hold small amounts of drugs, as well as the rock salt. 1
Cruz moved for a judgment of acquittal after the government completed its case-in-chief and again after the close of evidence. The trial court denied both motions. The district court's rulings are reviewed de novo. United States v. Bahena-Cardenas, 70 F.3d 1071, 1072 (9th Cir.1995). We must review the evidence in the light most favorable to the government and decide whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir.1994) (internal quotation omitted).
The most difficult issue on this appeal arises from Cruz's claim that the conspiracy had concluded by the time he became involved. A conspiracy is deemed to continue "until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy." United States v. Castro, 972 F.2d 1107, 1112 (9th Cir.1992). Cruz contends that the conspiracy for which he was convicted had concluded by the time he became involved-its objective had been defeated. The government does not dispute that Cruz was not involved at the conspiracy's inception and did not become involved until after Balajadia, who was already in custody at the time, called him from Hawaii, at which point Cruz agreed to take the drugs to Guam. At that time, the government had already seized the drugs and arrested Balajadia. Cruz contends that the object of the conspiracy-transportation of methamphetamine to Guam-was defeated when the drugs were seized and Balajadia and Taitano were arrested. On the other hand, the government contends that one may join a conspiracy already formed and that the conspiracy had not ended when Cruz became involved. We reject the government's contention and decline to extend liability for conspiracy to these facts. Under Castro, "the object of the conspiracy [had been] defeated." Id.
The government relies on United States v. Bibbero, 749 F.2d 581 (9th Cir.1984), for the assertion that Cruz could join a conspiracy already in existence and be bound by the activity that has already taken place. However, Bibbero is clearly distinguishable. There, the defendant, although not involved in the conspiracy's first four marijuana smuggling operations, helped plan the fifth and sixth operations and acted as a supplier and distributor of the marijuana. 2 See id. at 588. The court noted that the defendant's responsibilities placed him at the core of the conspiracy during those two operations and, thus, it was reasonable for the jury to find that he was a member of the overall conspiracy. Id.
Here, the conspiracy-to distribute methamphetamine and to possess with intent to distribute-had been terminated by the government's seizure of the methamphetamine before Cruz became involved. Analogizing to the "last act" of payment for already-delivered cocaine in United States v. Mason, 658 F.2d 1263, 1269-70 (9th Cir.1981), the government contends that the conspiracy was still ongoing because Cruz had yet to be paid for transporting the methamphetamine. However, Mason is distinguishable.
First, Mason involves statements by a conspirator, Johns, made after the arrest of the other members of the conspiracy, not the liability of a person recruited after the arrest had occurred. At the time Johns made the statement implicating Mason, Johns had not yet been arrested and Mason was clearly already involved in the conspiracy. Indeed, liability for the original conspiracy on the basis posited by the government could be endless. 3 While Cruz may have attempted to deliver the methamphetamine to Guam, it is more reasonable to characterize his behavior as part of a new conspiracy with Mesa, rather than part of the original conspiracy. 4 Second, in Mason, the "last act of the conspiracy" the court referred to was payment for cocaine which Mason had already delivered. 5 658 F.2d at 1270. While a conspiracy may continue when payment is sought for already-delivered contraband, it extends conspiracy liability beyond reasonable limits to say the conspiracy continues when the product has not yet been delivered, can no longer be delivered, and all that remains is for a new recruit to be paid for his part in the delivery. Payment of the new recruit-courier for his part in the delivery of the drugs is not an object of the conspiracy; use of a courier to deliver the drugs is merely one of the means used to carry out the conspiracy's objectives. 6
We therefore find that the evidence was insufficient for any rational jury to have found beyond a reasonable doubt that the conspiracy was still in existence at the time Cruz became involved. His conviction for conspiracy must be reversed. 7
Cruz was convicted for possession under a Pinkerton theory of liability, under which his co-conspirators' possession of the methamphetamine was imputed to him. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (); United States v. Hegwood, 977 F.2d 492, 498 (9th Cir.1992). He is liable for any underlying substantive offenses committed by co-conspirators while he was a member of the conspiracy. However, Cruz "cannot be held liable for substantive offenses committed before joining ... [the] conspiracy." United States v. Lothian, 976 F.2d 1257, 1262 (9th Cir.1992) (citing Levine v Because we hold that Cruz's conspiracy conviction must be reversed, he cannot be held liable for the substantive offense under a Pinkerton theory. Even assuming, however, that Cruz was a conspirator, he did not join any conspiracy until after the methamphetamine was seized by the government. Therefore, he cannot be held accountable for its earlier possession by his co-conspirators. Accordingly, we reverse his conviction for possession.
United States, 383 U.S. 265, 266, 86 S.Ct. 925, 925, 15 L.Ed.2d 737 (1966)).
Cruz's conviction for attempted possession rested upon his meeting with Balajadia and taking from him the rock salt/methamphetamine to transport it to Guam. See United States v. Steward, 16 F.3d 317, 320 n. 4 (9th Cir.1994) (). Cruz conceded the essential elements of attempted possession when he testified in an effort to show he was entrapped. This count rests upon uncontested facts and is independent of the conspiracy and...
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