U.S. v. Vgeri
| Decision Date | 07 April 1995 |
| Docket Number | 94-10146,Nos. 94-10058,s. 94-10058 |
| Citation | 51 F.3d 876 |
| Parties | 41 Fed. R. Evid. Serv. 1270 UNITED STATES of America, Plaintiff-Appellee, v. Leonid VGERI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ervin STRAMARKO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jan Rubinstein, Howard Trapp Inc., Agana, Guam, for defendant-appellant Vgeri.
Robert E. Hartsock, Moore Ching Boertzel Civille Dooley & Roberts, Agana, Guam, for defendant-appellant Stramarko.
Mark E. Kondas, Asst. U.S. Atty., Agana, Guam, for plaintiff-appellee.
Appeals from the United States District Court for the District of Guam.
Before: WALLACE, Chief Judge, HUG, and FARRIS, Circuit Judges.
Vgeri appeals his conviction and sentence for conspiracy to distribute cocaine. Stramarko appeals his conviction for possession of cocaine with intent to distribute. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm both convictions and Vgeri's sentence, and dismiss Vgeri's ineffective assistance of counsel claim.
On June 18, 1993, Maria Gogue, an informant, met DEA Special Agent Jonathan Anderson behind her residence. She told him that Ervin Stramarko would be bringing cocaine to Guam. Gogue also indicated that she was upset with Stramarko because he had not compensated her in connection with a previous cocaine transaction. Agent Anderson asked Gogue to get more information about the anticipated cocaine shipment.
Approximately a week later, Gogue called Agent Anderson and told him that a man named "Louie," later identified as Vgeri, had just arrived in Guam with a large quantity of cocaine. According to Gogue, Stramarko had driven Vgeri to her apartment. There, Vgeri showed her strapping marks on his body that he claimed were caused by taping the cocaine around his waist before boarding a flight to the island. She also told Agent Anderson that Vgeri was looking for potential buyers. Anderson asked Gogue to make arrangements for him to buy $5,000 worth of cocaine from Vgeri.
Three days later, Stramarko and Vgeri went to Gogue's residence. Stramarko returned to his hotel after about 20 minutes. Vgeri and Gogue remained and discussed selling cocaine to Anderson. Stramarko returned to Gogue's residence to pick up Vgeri, and both went back to their hotel. Gogue then spoke to Anderson, telling him that the transaction would occur at King's Restaurant at 6:00 that evening.
Prior to the scheduled transaction, Anderson met with Gogue. She was outfitted with a recording device and was given $5,000 to purchase the drugs. Gogue went to King's and met with Vgeri. After receiving the $5,000, Vgeri told Gogue that he would return with the cocaine. Fifteen minutes later, Vgeri returned with Stramarko. Vgeri gave Gogue five ziplock bags containing nearly 25 grams of cocaine. Agents arrested Vgeri and Stramarko as they attempted to leave the parking lot. The agents found a plastic packet containing 5 grams of cocaine in Stramarko's pocket.
A search of Vgeri and Stramarko's hotel room revealed a white plastic bag located inside a vent in the ceiling. The bag contained 172 small ziplock packets containing a total of 830 grams of cocaine. Subsequent tests showed Stramarko's left thumbprint on the bottom of the white plastic bag. The search also produced a small ziplock packet containing .46 grams of cocaine wrapped in magazine paper. Vgeri's right and left thumbprints were on the magazine paper. The agents also found a loaded semi-automatic pistol, ammunition, a white girdle, and a Northwest airline ticket belonging to Vgeri, white sanitary bags, and various identification documents belonging to Vgeri and Stramarko.
On July 2, 1993, a grand jury returned a four-count indictment charging Vgeri and Stramarko with: (1) conspiracy to distribute cocaine; (2) possession of cocaine with intent to distribute; (3) importation of cocaine; and (4) use of a firearm in connection with a controlled substance offense.
Trial commenced September 7, 1993. Vgeri was convicted on the conspiracy count but acquitted on the remaining counts. Stramarko was convicted of possession of cocaine with intent to distribute and acquitted on the remaining charges. Vgeri and Stramarko were each sentenced to 78 months in custody. Both filed timely notices of appeal.
Vgeri contends that there was insufficient evidence to support his conviction for conspiracy to distribute cocaine. 1 When reviewing a challenge to the sufficiency of the evidence, we determine "whether, after reviewing '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.' " United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).
Vgeri argues that there is no evidence that Stramarko, who was acquitted on the conspiracy charge, or any other unnamed or unindicted co-conspirator agreed with Vgeri to distribute cocaine from June 24 to June 27, 1993. On that basis, he concludes that he cannot be properly convicted of conspiracy. We reject the argument.
To establish conspiracy under 21 U.S.C. Sec. 848, the government must show an agreement to engage in criminal activity. United States v. Shabani, --- U.S. ----, ----, 115 S.Ct. 382, 386, 130 L.Ed.2d 225 (1994). It need not prove a formal agreement. Rather, "the agreement may be inferred from the defendants' acts pursuant to the scheme, or other circumstantial evidence." United States v. Disla, 805 F.2d 1340, 1348 (9th Cir.1986).
The record reflects a wealth of evidence from which an agreement between Vgeri and Stramarko to distribute cocaine could reasonably be inferred by the trier of fact. They travelled to Guam on or about the same date. They shared a hotel room together, which was in Stramarko's name. Stramarko's thumbprint was found on the bag containing 830 grams of cocaine. Stramarko drove Vgeri to and was present during the cocaine sale to Agent Anderson. These and other facts presented at trial are more than sufficient for a rational juror to infer that Vgeri and Stramarko agreed to distribute cocaine as charged in Count I of the indictment.
Vgeri contends that the government improperly withheld information about Gogue in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We review de novo challenges to a conviction for alleged Brady violations. United States v. Woodley, 9 F.3d 774, 777 (9th Cir.1993).
The prosecution's obligations under Brady include the duty to produce impeachment evidence. Bagley v. Lumpkin, 798 F.2d 1297, 1301 (9th Cir.1986). Withheld impeachment evidence must be material such that "if disclosed and used effectively ... it may [have made] the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). We also "consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case" and assess that effect under the totality of the circumstances. Id. at 683, 105 S.Ct. at 3384.
Vgeri argues that the government failed to disclose Gogue's prior relationship with law enforcement officials and the fact that she had participated in the burglary of Stramarko's female companion's home.
There was no Brady violation. The jury heard extensive testimony regarding Gogue's cooperation with DEA, her considerable history of drug use, and her animosity toward Stramarko arising from their previous drug transaction. The disputed information concerning Gogue's alleged prior cooperation with law enforcement would not have been the difference between conviction and acquittal. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380.
During trial, the government disclosed that it had just learned that Gogue had been involved in a burglary of Stramarko's female companion's house. Vgeri's counsel cross-examined Gogue about the burglary. The government disclosed the information at a time when it was of value to Vgeri. United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir.1988) (); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir.1988) (same).
At the beginning of her cross-examination of Gogue, Vgeri's counsel requested leave to question her about a prior conviction for grand theft, which was 18-years old. The district court denied the motion, stating that counsel "should have brought [it] up earlier."
Evidentiary rulings are reviewed for an abuse of discretion. United States v. Blaylock, 20 F.3d 1458, 1462 (9th Cir.1994). A district court's interpretation of the Federal Rules of Evidence is a question of law and is reviewed de novo. United States v. Cuozzo, 962 F.2d 945, 947 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 475, 121 L.Ed.2d 381 (1992).
It is undisputed that Vgeri failed to comply with Fed.R.Evid. 609(b), which provides that, "evidence of a conviction more than 10 years old ... is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Fed.R.Evid. 609(b).
Vgeri argues that he was unable to comply with the advance written notice requirement under Rule 609(b) because he did not learn of Gogue's prior conviction until the Friday before trial. Gogue's testimony began on Wednesday, September 8, 1993. Vgeri had at least one full business day to provide the requisite written notice. It was not an abuse of discretion to deny Vgeri leave to cross-examine Gogue about the...
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