823 F.2d 346 (9th Cir. 1987), 85-5196, United States v. Penagos

Docket Nº:85-5196.
Citation:823 F.2d 346
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Rafael PENAGOS, Defendant-Appellant.
Case Date:July 29, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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823 F.2d 346 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Jose Rafael PENAGOS, Defendant-Appellant.

No. 85-5196.

United States Court of Appeals, Ninth Circuit

July 29, 1987

Argued and Submitted May 5, 1987.

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Stephen Clymer and Manuel A. Medrano, Los Angeles, Cal., for plaintiff-appellee.

Michael D. Abzug, Los Angeles, Cal., for defendant-appellant.

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

Before BEEZER, HALL and KOZINSKI, Circuit Judges.

BEEZER, Circuit Judge:

Jose Penagos appeals from convictions for 1) conspiracy to possess with intent to distribute narcotics, and 2) possession with intent to distribute narcotics. Viewed in the light most favorable to the government, evidence indicates that Penagos acted only as a passive bystander to drug transactions. Similarly, evidence does not indicate that Penagos had dominion or control over narcotics seized in drug raids or that he knew drugs were in the automobile in which he traveled. We reverse both convictions.

Standard of Review

Penagos (hereafter referred to as "defendant") claims that his convictions rest on insufficient evidence. The Court of Appeals will uphold a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir.1987), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).


The nature of this case requires us to recite in some detail events leading to the arrest of defendant. Viewed in the light most favorable to the government, evidence at trial showed the following:

On March 13, 1985, Reinaldo Guarin agreed to deliver ten kilograms of cocaine to an undercover narcotics agent at a designated location. Police followed Guarin to an apartment complex. Guarin removed two cardboard boxes from the trunk of the Chevrolet Monte Carlo he was driving and took the boxes inside. Guarin's name appeared on the mailbox for apartment 305.

Pedro Gonzalez arrived at the apartment complex approximately two hours later in a brown Plymouth Duster. Gonzalez entered the apartment complex.

Police first observed defendant shortly after Gonzalez' arrival, coming out of the apartment complex with Guarin and Gonzalez. Guarin carried a cardboard box, which he placed in the trunk of the Monte Carlo. Guarin then parked the Monte Carlo parallel with the Duster and transferred two objects from the trunk of the Monte Carlo to the trunk of the Duster. During the transfer, defendant stood nearby and appeared to be looking up and down the street. Gonzalez and defendant then reentered the apartment complex.

Guarin drove the Monte Carlo to Beverly Hills, where he removed a box from the trunk and delivered the box to an undercover Bureau of Narcotics agent. Guarin returned to the apartment complex. The box contained cocaine.

Gonzalez emerged from the apartment complex carrying another box, which he placed behind the driver's seat of the Monte Carlo. Gonzalez delivered two such boxes before he returned to the apartment complex. Police arrested the recipients and found cocaine in each of the boxes. Police also found a telephone pager in the automobile of one of the arrestees.

Next, Guarin drove the Duster to a Denny's restaurant. Defendant rode along as a passenger. After Guarin and defendant spent three minutes inside the restaurant, Guarin, defendant and Edgar Salazar left Denny's and entered the Duster. They drove to a gas station parking area next door. After a brief interval, Salazar emerged carrying a brown paper bag. Salazar placed the bag in his automobile. A

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subsequent search of Salazar's automobile uncovered a brown paper bag containing cocaine.

On their way back to the apartment complex, Guarin and defendant stopped and spent approximately 45 to 60 minutes placing and receiving calls at public telephones. One of the men wore a telephone pager. Guarin and defendant then returned to the apartment complex, where they met Gonzalez outside. The three spoke briefly before they entered the complex.

Police obtained warrants and arrested Gonzalez and defendant in apartment 301. Four telephone pagers were found in apartment 301. Police found a box containing cocaine in apartment 305 and a similar box in the trunk of the Duster. Guarin was arrested elsewhere.


  1. Conspiracy With Intent To Distribute Narcotics

    The elements of conspiracy are 1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986).

    1. Existence of Conspiracy

    The existence of a conspiracy may be proved by circumstantial evidence that defendants acted together for a common illegal goal. United States v. Disla, 805 F.2d 1340, 1348 (9th Cir.1986). The government produced ample evidence indicating the existence of an ongoing conspiracy between Guarin and Gonzalez to possess and distribute cocaine. Guarin and Gonzalez operated out of the same apartment complex, shared vehicles for delivery of cocaine, and obtained cocaine from a common source. In addition, each handled cocaine that the other delivered to buyers.

    2. Act In Furtherance of Conspiracy

    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. Taylor, 802 F.2d 1108, 1116 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987). 1 While mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence. United States v. Reese, 775 F.2d 1066, 1071-72 (9th Cir.1985). The government failed to produce sufficient evidence indicating that defendant took any action in furtherance of the conspiracy.

    The government asserts that defendant acted as a lookout while Guarin and Gonzalez loaded cocaine into automobiles. 2 Counter-surveillance activities qualify as acts in furtherance of a conspiracy. United States v. Perez, 491 F.2d 167, 171 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). The

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    government relies on Perez to support defendant's conviction. 3

    Police observed Perez in a parked car at an intersection where an undercover agent was to meet a conspirator for a heroin transaction. Perez watched the seller and another lookout parked across the street. When the agent arrived, the seller instructed him that plans had changed, and that the sale would occur a ranch approximately 2 1/2 miles away. When the agent and seller departed, the other lookout followed them. Police observed Perez looking over his shoulder, watching the other lookout drive away.

    As the other lookout passed Perez, Perez "looked around and followed the [other lookout's] vehicle in his [Perez'] line of sight...." Id. at 169. Perez then followed the other lookout to the ranch where the transaction and arrests occurred. Perez was arrested as he attempted to leave the ranch. The Court determined that Perez actively participated in the conspiracy by acting as a lookout and sustained Perez conviction for conspiracy to possess and distribute heroin. Id. at 171.

    Evidence against defendant differs from that against Perez in several crucial respects. First, defendant's alleged counter-surveillance activities did not occur at times or places where the risk of detection and capture is greatest, i.e. at meetings between buyers and sellers and during actual transfer of...

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