U.S. v. Vizcarra-Martinez, VIZCARRA-MARTINE

Decision Date21 September 1995
Docket NumberD,VIZCARRA-MARTINE,No. 94-50281,94-50281
Parties42 Fed. R. Evid. Serv. 215 UNITED STATES of America, Plaintiff-Appellee, v. Fernandoefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Lee Anne Mattson, San Diego, CA, for defendant-appellant.

Bruce R. Castetter, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before MONROE G. MCKAY, * REINHARDT, and FERNANDEZ, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.

ORDER

The opinion filed June 21, 1995, is amended as follows:

With these amendments to the opinion, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

REINHARDT, Circuit Judge:

This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant's invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car was improperly admitted, we conclude that the district court committed reversible error by admitting evidence of his drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine. Because we reverse on this ground, we do not consider Vizcarra-Martinez's remaining contentions regarding the district court's evidentiary rulings and its sentencing decision. 1

I.

Vizcarra-Martinez was indicted with six other defendants. He was charged in Count I with conspiracy to wrongfully possess a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. Secs. 841(d)(2), 802(33), 802(34), 802(34)(X), and 846; he was also charged in Count II with wrongful possession of a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. Secs. 841(d)(2), 802(33), and 802(34)(X). Vizcarra-Martinez moved to exclude evidence of his possession of a personal-use amount of methamphetamine and certain post-arrest statements. The motions were denied. After a trial, the jury returned a verdict of guilty on both counts. Vizcarra-Martinez was sentenced to concurrent sentences of 70 months, to be followed by a three-year term of supervised release.

II.

We first must evaluate whether there was sufficient evidence to convict Vizcarra-Martinez. In doing so, we must assume that the evidence at trial was properly admitted. Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988). We have consistently held that there is sufficient evidence to support a conviction if, "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) (citation omitted). Because the defendant failed to renew his objection based on the sufficiency of the evidence at the end of the trial, we may only review the denial of the motion to prevent a miscarriage of justice. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir.1988), cert. denied, 488 U.S. 1016, 109 S.Ct. 812, 102 L.Ed.2d 802 (1989). We note that the application of the miscarriage of justice standard to insufficiency of the evidence cases could lead to difficult problems for a court. We would certainly be reluctant to affirm a conviction and send a defendant to prison or his death if the record clearly showed that the evidence was insufficient. Yet, even under our ordinary test--the standard applicable when the defendant makes all the proper motions--we cannot reverse unless there is a clear showing as to insufficiency: we must affirm if any rational trier of fact could have found the evidence sufficient. Thus, it is difficult to imagine just what consequences flow from our application of the two different standards or to envision a case in which the result would be different because of the application of one rather than the other of the standards.

Here, however, we need not become entangled in a theoretical inquiry regarding standards of review because we conclude that there was adequate evidence to convict the defendant even under the standard we ordinarily use. Thus, it does not matter whether there is a practical difference between the standards or what the differences may be. In the case before us, there was clearly adequate evidence to establish that a conspiracy to manufacture methamphetamine existed and that the defendant possessed the hydriodic acid in question. It is a closer question as to (1) whether, having established the existence of a conspiracy, the government has proved beyond a reasonable doubt a connection between Vizcarra-Martinez and the conspiracy, see United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980), and (2) whether there was adequate evidence for the jury to conclude that the defendant knew or had reason to believe that the acid would be used to manufacture methamphetamine. The government produced no direct evidence tying Vizcarra-Martinez to the conspiracy or indicating that he had any knowledge of its scope; indeed, the leaders of the conspiracy and the DEA conceded that they had never encountered Vizcarra-Martinez before the day of the search.

However, our review of the record indicates that, although the case before us is a close one, there was sufficient evidence presented at trial to permit a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to infer the knowledge necessary to convict on both counts. In addition to the defendant's conduct at the scene of the offense, there was other circumstantial evidence in the record tending to show that the defendant knew of and was connected to the conspiracy. This case is therefore distinguishable from United States v. Umagat, 998 F.2d 770, 772-74 (9th Cir.1993), in which we held that when the government proves only that a defendant is involved in a single transaction that is but a part of a substantial ongoing conspiracy, and offers no other evidence as to the defendant's knowledge of the overall conspiracy, there is insufficient evidence to permit a factfinder to impute knowledge of the broad conspiracy. Accordingly, we decline the defendant's invitation to reverse the conviction on this ground.

III.

Vizcarra-Martinez also appeals the district court's decision to deny his motion to suppress the evidence seized during a search of his car. Between November, 1992 and April, 1993, special agents of the Drug Enforcement Administration (DEA) investigated the methamphetamine manufacturing and trafficking activity of Noe Bueno Perez. During that period, the DEA relied upon a confidential informant to infiltrate Perez's organization. Perez ultimately attempted to purchase large quantities of the precursor chemicals necessary to manufacture methamphetamine from the DEA agent.

On April 6, 1993, Perez purchased a thirty-gallon drum of hydriodic acid for $9,500 in cash from the DEA agent. The acid was loaded into a Chevrolet Blazer and ultimately traced to a residence at 725 Oak Tree Lane in San Marcos, California. During the DEA's surveillance of the residence, agents observed a red Ford Escort backing into the garage where the Blazer was parked. They observed several containers being placed in the car. The car remained in the garage for approximately ten minutes and then departed. Local police pulled the car over and searched it, discovering approximately ten gallons of hydriodic acid. Shortly after the Ford Escort had departed, the Blazer, which had delivered the acid to the garage, emerged from the garage and left the area. Again the local police department pulled over and searched the car. This time, no hydriodic acid was found.

A short time later, a brown Toyota sedan, driven by Vizcarra-Martinez, arrived at the garage and backed into it. The door was closed. Five minutes later, the garage door opened and the Toyota moved into a parking space across from the residence. After five or six minutes, the Toyota left the area and was pulled over by local police officers, who discovered hydriodic acid in the car. The defendant was subsequently arrested. He maintains that the search and subsequent arrest violated the Fourth Amendment because the police lacked probable cause to search the car.

On appeal, the government initially argues that Vizcarra-Martinez gave permission for the search to take place after he was pulled over and, thus, that all that was required was the reasonable suspicion necessary to support the investigatory stop that led to the search. While conceding that it failed to raise this argument below, the government asserts that this court may uphold the search on this ground, citing United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989).

The government mischaracterizes the Linn decision. In Linn, we held that a court of appeals may affirm a decision to admit evidence on a different ground than that relied upon by the district court as long as "the issue has been fully briefed on appeal, and there is sufficient basis in the record for us to address it." Linn, 880 F.2d at 214. In this case, the issue has not been fully briefed since Vizcarra-Martinez did not address it in his initial brief and did not file a reply brief. More...

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