U.S. v. Bautista-Avila

• Decision Date: 05 October 1993
• Docket Number: BAUTISTA-AVIL,D,FIGUEROA-LEVY,Nos. 92-10447,92-10450 and 92-10454,ARMENTA-ESTRAD,s. 92-10447
• Citation: 6 F.3d 1360
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlosefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gabrielefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1360

6 F.3d 1360

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos BAUTISTA-AVILA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel FIGUEROA-LEVYA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge ARMENTA-ESTRADA, Defendant-Appellant.

Nos. 92-10447, 92-10450 and 92-10454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 1993.

Decided Oct. 5, 1993.

Donald J. Green, Las Vegas, NV, for defendant-appellant Bautista-Avila.

Martin R. Boyers, Las Vegas, NV, for defendant-appellant Figueroa-Levya.

Douglas C. Crawford, Las Vegas, NV, for defendant-appellant Armenta-Estrada.

John E. Ham and Thomas M. O'Connell, Asst. U.S. Attys., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FAIRCHILD ^*, BEEZER, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Defendants Juan Carlos Bautista-Avila, Gabriel Figueroa-Levya, and Jorge Armenta-Estrada appeal their convictions for conspiracy and possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) & 846. We have jurisdiction over their timely appeals pursuant to 28 U.S.C. Sec. 1291. We reverse the convictions of Bautista-Avila and Figueroa-Levya and remand to the district court for a hearing to set bail and conditions pending further proceedings. We affirm the conviction of Armenta-Estrada.

I. Facts

As with all drug conspiracies, the facts of this case are voluminous, involving various phone calls and sundry meetings between the principal parties, DEA Agent Delgado, Jose Trinidad Quiroz-Sanchez, and Armenta-Estrada. Briefly, those facts demonstrate that Quiroz-Sanchez and Armenta-Estrada agreed to sell to Agent Delgado 100 kilograms of cocaine, 24.5 grams of which would be sold first as a pre-deal "test" of the parties. Ultimately, Quiroz-Sanchez instructed Armenta-Estrada to take Agent Delgado to Motel 6 Room # 1032 to consummate the deal. Previously that day, DEA agents had observed Quiroz-Sanchez and Armenta-Estrada visit Jose Luis Ibarra-Velasquez and Figueroa-Levya at the same room. The DEA agents also observed two cars, a black Volkswagen Jetta and a yellow Ford Granada parked directly in front of the room. It was later revealed that these cars had entered the United States at Calexico, CA, one minute apart on the previous night.

Upon arriving at the Motel 6 with Agent Delgado, Armenta-Estrada unlocked the Ford Granada and proceeded to remove the dashboard, apparently to retrieve hidden cocaine. Immediately thereafter, a bust signal was given, Armenta-Estrada was arrested, and a search of the dashboard revealed 24 kilograms of cocaine. DEA Agents Ramirez and McConnell then entered Room # 1032 and arrested Bautista-Avila, Figueroa-Levya, and Ibarra-Velasquez.

Bautista-Avila, Figueroa-Levya, and Armenta-Estrada were indicted, tried, and convicted. They now appeal, Bautista-Avila and Figueroa-Levya primarily on grounds of insufficiency of the evidence, and Armenta-Estrada on grounds that his post-arrest confession was coerced and that his Miranda waiver was not voluntary or knowing and intelligent.

II. Discussion

A. Sufficiency of the Evidence

Bautista-Avila and Figueroa-Levya challenge on sufficiency of the evidence grounds their convictions for conspiracy and possession with intent to distribute cocaine. In considering a challenge to the sufficiency of the evidence, we consider "whether, after viewing 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992).

1. Conspiracy to Distribute Cocaine

Defendants Bautista-Avila and Figueroa-Levya do not challenge the existence of a conspiracy to distribute cocaine in this case. Instead, they contend that the government failed to establish beyond a reasonable doubt their connection to the conspiracy involving Quiroz-Sanchez and Armenta-Estrada. We agree.

"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." United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987); see also United States v. Litteral, 910 F.2d 547, 550 (9th Cir.1990). "Evidence has to be produced to show that [Bautista-Avila and Figueroa-Levya] had knowledge of the conspiracy and acted in furtherance of it. Mere casual association with conspiring people is not enough." United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir.1977) (emphasis added).

The government offered no direct evidence, such as admissions or fingerprints, connecting Bautista-Avila and Figueroa-Levya to the conspiracy. Neither Bautista-Avila nor Figueroa-Levya was present at or involved with any of the various meetings and sundry phone calls between the DEA, Quiroz-Sanchez, and Armenta-Estrada. Moreover, neither Bautista-Avila nor Figueroa-Levya was involved with the procurement or attempted transfer of the cocaine from Quiroz-Sanchez and Armenta-Estrada to Agent Delgado on the day that the arrests in this case were made.

Nevertheless, the government contends that it showed that Bautista-Avila and Figueroa-Levya "had knowledge of the conspiracy and acted in furtherance of it" through its offer of circumstantial evidence. The most powerful evidence included in this offering includes evidence that Bautista-Avila and Figueroa-Levya entered the United States in the black Jetta only a minute apart from the yellow Granada, the car that carried the cocaine into the United States; that, on the day the drug transaction was to take place, Quiroz-Sanchez retrieved the keys to the yellow Granada from the Motel 6 room that Bautista-Avila had rented and where Bautista-Avila, Figueroa-Levya, and Ibarra-Velasquez were staying; that, upon his arrest, Armenta-Estrada confessed to DEA Agents that both the black Jetta and the yellow Granada were involved in the conspiracy; that Bautista-Avila admitted to giving Figueroa-Levya $5000 "to hold"; that Figueroa-Levya admitted to hiding the $5000 in the dashboard of the black Volkswagen Jetta; that $5000 was the exact amount Armenta-Estrada was to have received for his participation in the conspiracy; and that Bautista-Avila and Figueroa-Levya were arrested in the Motel 6 room where the drug transaction purportedly was to take place and directly in front of which the black Jetta and the yellow Granada were parked. ¹

Under the standard by which we review a challenge on sufficiency of the evidence grounds to a conviction, this is an extremely close case. Although we are loathe to reverse a trier of fact's conclusion that a defendant is guilty, based on the foregoing evidence, we simply cannot conclude that the government showed that Bautista-Avila and Figueroa-Levya "had knowledge of the conspiracy and acted in furtherance of it." Although Armenta-Estrada confessed that both the black Jetta and yellow Granada were part of the conspiracy, the government offered no evidence that either Bautista-Avila or Figueroa-Levya knew that the car in which they were riding was involved, especially considering that Armenta-Estrada subsequently denied that either Bautista-Avila or Figueroa-Levya were involved in the conspiracy. Moreover, the government offered no evidence that either Bautista-Avila or Figueroa-Levya knew that the Yellow Granada contained cocaine as it entered the United States or as it sat in front of their motel room. Finally, the government offered no evidence that either Bautista-Avila or Figueroa-Levya knew that the $5000 they were handling possibly could be involved in a drug conspiracy.

Admittedly, Bautista-Avila and Figueroa-Levya's conduct is consistent with that of people tangentially involved in a drug conspiracy. However, their behavior is also consistent with that of people who are unwittingly associating with individuals involved in a drug conspiracy. As we pointed out earlier, "mere casual association with conspiring people is not enough." Because we cannot conclude that the government has produced evidence that would allow a rational trier of fact to conclude beyond a reasonable doubt that the government's explanation of Bautista-Avila and Figueroa-Levya's actions, rather than their innocent explanation that they entered the United States solely to purchase a truck, ² is the correct one, we must reverse their convictions for conspiracy to distribute cocaine. See United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir.1992) ("When there is an innocent explanation for a defendant's conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one.").

2. Possession With Intent to Distribute Cocaine

Bautista-Avila and Figueroa-Levya also challenge on sufficiency of the evidence grounds their convictions for possession with intent to distribute cocaine. In support of their convictions, the government points only to the evidence that we detailed in section II.A.1., supra. However, as with the conspiracy convictions, we think this evidence is just too thin to support Bautista-Avila and Figueroa-Levya's convictions for possession with intent to distribute under a theory of vicarious or coconspirator liability, see, e.g., Pinkerton v. United States, 328 U.S. 640, 645-647, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946), aiding and abetting under 18 U.S.C. Sec. 2, see, e.g., Vasquez-Chan, 978 F.2d at 552, or dominion and control over the contraband, see, e.g., United States v. Restrepo, 930 F.2d 705, 709 (9th Cir.1991). Accordingly, we...