65 F.3d 177 (9th Cir. 1995), 94-30326, U.S. v. Harris
| Citation | 65 F.3d 177 |
| Date | 16 August 1995 |
| Docket Number | 94-30326. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keith A. HARRIS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Page 177
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted June 7, 1995.
Appeal from the United States District Court, for the Eastern District of Washington, DC No. CR-94-00108-WFN; William Fremming Nielsen, District Judge, Presiding.
E.D.Wash.
REVERSED IN PART, AFFIRMED IN PART.
Before: BROWNING, BOOCHEVER, and T.G. NELSON, Circuit Judges.
MEMORANDUM [*]
Keith Harris was convicted after a jury trial of conspiracy to possess with intent to distribute heroin and one count of possession with intent to distribute, based largely on the testimony of Kathleen Lopez, a confidential informant. He appeals his conviction and sentence on multiple grounds.
I. Sufficiency of the evidence
"The evidence is sufficient to support a conviction as long as, viewing the evidence in the light most favorable to the government, a rational jury could have found the defendants guilty beyond a reasonable doubt of each element of the crime." United States v. Hegwood, 977 F.2d 492, 497 (9th Cir.1992),cert. denied, 113 S.Ct. 2348 (1993).
A. Possession with intent to distribute: Count 6
Harris argues that there was insufficient evidence that he possessed heroin with intent to distribute on October 8, 1993, the date of the transaction charged in Count 6, the only individual transaction of which the jury found him guilty. He points out that Lopez was unable to remember anything about the October 8 transaction.
There was other evidence in the record regarding the delivery of the heroin on October 8. The jury heard a taped telephone conversation on the morning of October 8, in which Lopez and Harris discussed their plans to meet that evening at a rest area, and Harris said he needed to collect some money from other people or "I'm gonna be a little short." A DEA agent surveilled the rest area that evening, and testified that he saw Harris arrive late and observed a "delivery" of heroin from Lopez and Lidio Mercado to Harris, although he did not testify about the details or that he actually saw heroin change hands. Viewing the evidence in the light most favorable to the government, we find there was sufficient evidence to sustain a conviction for a transaction on that date.
B. Conspiracy to possess with intent to distribute
Harris argues that the evidence establishes only a buyer-seller relationship between him and the two brothers Lidio and Santos Mercado. He points out that there was no direct evidence of an agreement between him and Lidio. Harris contends that his only contact was Lopez, and because Lopez was a government agent with whom he cannot conspire, there is insufficient evidence that he ever conspired with anyone to distribute the heroin.
The essential elements of conspiracy under 21 U.S.C. § 846 are an agreement to accomplish an illegal objective and the intent to commit the substantive offense. See United States v. Shabani, 115 S.Ct. 382, 384-85 (1994) (no overt act required for violation of drug conspiracy statute). "An agreement may be proven by circumstantial evidence that the defendants acted together with a common goal. Express agreement is not required; rather, agreement may be inferred from conduct." Hegwood, 977 F.2d at 497. The defendant must conspire with at least one bonafide coconspirator, and no true agreement exists when the only other person involved is a government agent. United States v. Schmidt, 947 F.2d 362, 367 (9th Cir.1991).
A simple buyer-seller relationship is not the same as a conspiracy to distribute. This court recently found that a defendant who grew marijuana on his own and then gave and sold some to friends had not been shown guilty of a conspiracy.
[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.... [C]onspiracy requires proof of an agreement to commit a crime other than the crime that consists of the sale itself. Were the rule otherwise, every narcotics sale would constitute a conspiracy.
United States v. Lennick, 18 F.3d 814, 819 (9th Cir.) (citations and quotations omitted), cert. denied, 115 S.Ct. 162 (1994). To show a conspiracy, the government would have to show that the defendant's friends further distributed the marijuana, or bought in a quantity sufficient to support an inference of further distribution, and that the defendant knew of and agreed to the planned distribution. Id.
In a conspiracy to sell drugs, the supplier must know he is supplying a dealer.... To show a conspiracy, the government must show not only that [the defendant] gave drugs to other people knowing that they would further distribute them, but also that he had an agreement with these individuals to so further distribute the drugs.
Id. (citations and quotations omitted) (emphasis in original).
Unlike the defendant in Lennick, Harris was not the original source of the drugs. Instead, he was in the position of those who purchased the marijuana from a seller. Further, there was evidence in the record that Harris, unlike the buyers in Lennick, himself distributed the drugs he bought. Lopez testified that Harris told her he sold the heroin to "people at the college; that he sold it to people from out of state; that he had clients coming from Idaho and from Montana; truckers." Transcripts of taped telephone conversations played for the jury show that Harris waited for payment from others before purchasing the heroin.
In addition to the evidence of resale, there was testimony that the Mercados "fronted" drugs to Harris, delivering the drugs but waiting for later payment when Harris was unable to come up with the cash. This kind of credit arrangement is evidence supporting a finding of cooperation and partnership in a long-term distribution relationship. See United States v. Beasley, 2 F.3d 1551, 1560-61 (11th Cir.1993) ("fronting" is evidence of more than mere buyer-seller relationship), cert. denied, 114 S.Ct. 2751 (1994); United States v. Baker, 1 F.3d 596, 597 (7th Cir.) (credit transaction is strong evidence of membership in conspiracy), cert. denied, 114 S.Ct. 412 (1993); United States v. Casel, 995 F.2d 1299, 1306 (5th Cir.) (credit sales suggest stake in common enterprise), cert. denied, 114 S.Ct. 472 (1993); United States v. Sobamowo, 892 F.2d 90, 94 (D.C.Cir.1989) (deferred payment supports knowing involvement in single conspiracy to distribute), cert. denied, 498 U.S. 825 (1990). In one instance, Lidio accepted Harris' car in partial payment when Harris owed him money. The amounts purchased were substantial and the price Harris paid--$15,000 in two months--was consistent with the participation of more than one buyer.
Further, even though Harris insists his only "agreement" was with Lopez, circumstantial evidence exists from which a jury could conclude that he and Lidio had a common understanding. First, although much direct communication between Lidio and Harris was prevented by their language barrier, Harris would call Lidio, not Lopez, to set the individual transactions in motion. Second, the extension of credit to Harris was by Lidio, not Lopez, as Lopez gave the purchase money to the Mercados and received a separate fee for her services. For example, the car was intended for Lidio, not Lopez. Third, because Lopez did not drive, Lidio drove her to most of the transactions with Harris, although the actual delivery of the heroin was done by Lopez.
Lidio knew Harris, received calls from Harris, spoke of Harris, controlled the method of payment, fronted drugs to Harris, was aware of all the details of the transactions with Harris, and was present at many of the deliveries. While there is no direct evidence that Lidio knew Harris was distributing the heroin to others, Lopez testified directly that she knew, and she was in close contact with the Mercados as their go-between and translator. The circumstantial evidence supports an inference that Harris agreed with Lidio to distribute the heroin. "The high degree of coordination between [the defendant and his alleged coconspirator] is sufficient evidence from which a jury could find agreement." Hegwood, 977 F.2d at 497. See United States v. Kozinski, 16 F.3d 795, 808-09 (7th Cir.1994) (evidence necessary to support agreement to distribute includes transactions in large quantities of drugs, prolonged cooperation and "fronting," and standardized transactions); United States v. Medina, 944 F.2d 60, 65-66 (2d Cir.1991) (advance planning to deal in wholesale quantity of drugs supports broader conspiracy, not buyer-seller relationship), cert. denied, 503 U.S. 949 (1992).
The evidence shows the type of "chain" conspiracy common in drug distribution cases, in which each defendant, whether importer, supplier, or street distributor, "knew of each other's participation in the illegal enterprise and benefitted from it." United States v. Arbelaez, 719 F.2d 1453, 1459 (9th Cir.1983), cert. denied, 467 U.S. 1255 (1984). In such a case,
[t]he government need not show direct contact or explicit agreement between the defendants. It is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that [his] own benefits were dependent upon the success of the entire venture.
Id. at 1458-59 (quoting United States v. Kostoff, 585 F.2d 378, 380 (9th Cir.1978)). See Casel, 995 F.2d at 1306 (refusing to find buyer-seller relationship where defendant was acquainted only with one member of drug ring, because in a chain conspiracy a participant in a segment of the chain may be convicted of participating in the whole); Sobamowo, 892 F.2d at 94...
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