U.S. v. Becker

Decision Date15 November 1983
Docket NumberNo. 82-1740,82-1740
Citation720 F.2d 1033
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Timothy BECKER, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Ron Howen, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

William J. Tway, Boise, Idaho, for defendant-appellant.

Appeal from the United States District Court District of Idaho.

Before KILKENNY and FLETCHER, Circuit Judges, and JAMESON, District Judge. *

KILKENNY, Circuit Judge:

Appellant Timothy Becker appeals from his conviction on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. We affirm.

FACTS

On January 26, 1982, Alan Caraway, an undercover agent working for the Drug Enforcement Agency (DEA), was introduced to Scott Sirles. Caraway represented himself as a cattle buyer interested in purchasing a quantity of cocaine. Sirles agreed to sell Caraway cocaine and indicated that he had been dealing with his source for approximately one year. Sirles, however, was unable to locate appellant to make the purchase. Therefore, he sold Caraway a quantity of methamphetamine which had been obtained from appellant earlier. Sirles and Caraway agreed to arrange for a later purchase of cocaine.

On February 1, 1982, Caraway met with Sirles at a local restaurant to discuss a cocaine sale. Sirles informed Caraway that he had made the arrangements for the purchase, but would need one-half of the purchase price fronted in advance of delivery. Caraway paid Sirles and then waited while Sirles left the restaurant, under surveillance, and travelled to a nearby pizza parlor where appellant was waiting. Appellant and Sirles went into the restroom to exchange the money for cocaine. After the exchange, Sirles returned to the restaurant and, upon receiving the balance of the purchase price, delivered the cocaine to Caraway. Sirles then returned to appellant with the rest of the money for the cocaine.

Sirles and Caraway continued to negotiate by telephone for cocaine purchases in quarter and one-half pound quantities. These conversations were recorded by the Government. In order to test the quality of the cocaine, Sirles and Caraway arranged to meet at a local truck stop where Caraway paid Sirles $100.00 to purchase a sample of the cocaine. Sirles took the money and delivered it to appellant in exchange for the sample. Shortly thereafter, Sirles and Caraway met again at Sirles' residence. Sirles gave Caraway the cocaine and some marijuana.

After several more telephone conversations, Caraway agreed to purchase a quarter pound of cocaine from Sirles. The purchase price was set at $9,600.00. Sirles told Caraway that it would be necessary for him to purchase the first ounce for $2,400.00, after which the other three ounces would be delivered. Caraway paid Sirles $2,400.00. Sirles delivered the money to appellant who said he needed time to deliver the cocaine. However, appellant apparently had problems acquiring the cocaine and did not return with it.

Caraway demanded that the money or the cocaine be delivered. Sirles offered to give him a check for $2,400.00 and the title to his automobile until the cocaine was delivered. Caraway accepted the check. Sirles was then arrested and later released pursuant to his agreement to cooperate in the recovery of the money or the cocaine.

Approximately ten days after Sirles' arrest, appellant contacted him and told him that there were some problems and that Caraway was probably a narcotics agent. Appellant, however, did not reveal his whereabouts.

On February 22, 1982, Caraway and Sirles met with Mark Becker, appellant's brother, to attempt to locate appellant. Mark Becker was also suspicious that Caraway was a narcotics agent. Two days later The Indictment charged appellant, Sirles and Mark Becker with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Sirles was also charged with distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Initially, all defendants pleaded not guilty. However, Sirles later changed his plea to guilty on the conspiracy charge. As a result, the distribution charge was dismissed. A jury trial was held as to appellant and Mark Becker on October 26, 1982. The jury returned a verdict of guilty as to both defendants.

Mark Becker and Sirles met at a truck stop. Becker gave Sirles a cigarette package containing pills and a package of white powder later identified as cocaine. Becker had obtained the drugs from appellant's trailer house and they were to be given to Caraway as partial payment. Sirles testified that he was unaware that Becker was going to bring the drugs to the truck stop. He also testified that Becker had not participated in any agreement between Sirles and appellant. On February 27, 1982, appellant finally delivered the balance of the cocaine and pills to Sirles. All further attempts at purchasing cocaine were futile.

ISSUES

I. Whether there was sufficient evidence of a conspiracy to distribute cocaine.

II. Whether a misstatement of law made by the Government during closing argument requires reversal.

III. Whether the district court erred in instructing the jury, over the defendant's objection, on the defendant's decision not to testify or offer any evidence during the trial.

DISCUSSION
I. Sufficiency of the Evidence.

Appellant contends that there was insufficient evidence of a conspiracy to distribute cocaine to overcome a motion for judgment of acquittal or to support a jury verdict of guilty.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, after "viewing the evidence in the light most favorable to the prosecution, any rational trier of the 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); United States v. Bailey, 607 F.2d 237, 243 (CA9 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980). The essential elements of conspiracy are "an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense." United States v. Sangmeister, 685 F.2d 1124, 1126 (CA9 1982); United States v. Melchor-Lopez, 627 F.2d 886, 890 (CA9 1980). In addition, the Government must prove that at least two persons were involved in the conspiracy. Sangmeister, supra, 685 F.2d at 1126.

It is clear that the agreement need not be explicit, but may be inferred from circumstantial evidence. Melchor-Lopez, supra, 627 F.2d at 891; United States v. Thomas, 586 F.2d 123, 132 (CA9 1978). "Once the existence of a conspiracy is established, 'evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.' " Bailey, supra, 607 F.2d at 243 (quoting United States v. Dunn, 564 F.2d 348, 357 (CA9 1977)).

We are convinced that the record contains ample evidence of a conspiracy to distribute cocaine. The Government's case relied principally upon the testimony of Scott Sirles and Alan Caraway. This testimony was, however, corroborated by physical evidence, primarily drugs exchanged between Sirles and Caraway, and testimony given by other narcotics agents who had participated in surveillance of the transactions.

The testimony, if believed, would have shown that appellant, Sirles, and perhaps Mark Becker were involved in a very sophisticated scheme for distributing cocaine. Testimony indicates that this scheme had been in existence for approximately one year. Appellant dictated the method by which "business" was conducted. Sirles was to be the only person to deal directly with the purchaser. After he located a suitable purchaser, he would contact appellant to arrange for delivery of the cocaine. Appellant would then obtain the cocaine from an unknown source. The purchaser was required to pay Sirles one-half of the purchase price prior to delivery. Sirles would take the money to appellant and make an exchange for the cocaine. After the cocaine was delivered to the purchaser, Sirles would return to appellant with the balance of the money due for the cocaine....

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    ...that the partners in a conspiracy [170 Wash.2d 736] “must agree to pursue the same criminal objective.”); United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983) (“The essential elements of conspiracy are ‘an agreement to accomplish an illegal objective, coupled with one or more overt a......
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