U.S. v. Savinovich

• Citation: 845 F.2d 834
• Decision Date: 06 July 1988
• Docket Number: No. 87-3049,87-3049
• Parties: 25 Fed. R. Evid. Serv. 1060 UNITED STATES of America, Plaintiff-Appellee, v. Narcisa SAVINOVICH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 834

845 F.2d 834

25 Fed. R. Evid. Serv. 1060

UNITED STATES of America, Plaintiff-Appellee, v. Narcisa SAVINOVICH, Defendant-Appellant.

No. 87-3049.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 5, 1988.

Decided April 26, 1988.

As Amended on Denial of Rehearing and Rehearing En Banc July 6, 1988.

Norman L. Lindstedt, Lindstedt & Buono, Portland, Or., for defendant-appellant.

Frank Noonan, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before HALL and O'SCANNLAIN, Circuit Judges, and KELLER, ^* District Judge.

O'SCANNLAIN, Circuit Judge:

Savinovich appeals her convictions for possession of cocaine with intent to distribute and for attempted distribution, raising evidentiary issues. Savinovich also argues that the statute under which she was sentenced is constitutionally infirm because it classifies punishment according to quantity of cocaine possessed without regard to its purity. Finally, she contends that her mandatory five year sentence is cruel and unusual

punishment. We disagree with her contentions and affirm the convictions.

BACKGROUND

Narcisa Savinovich and her husband, Rafael Villalobos-Padilla ("Villalobos") were charged in an indictment with (1) conspiracy to distribute cocaine; (2) possession of cocaine with intent to distribute; and (3) attempted distribution of cocaine, all in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Villalobos pleaded guilty and received a ten-year sentence. Savinovich pleaded not-guilty and was tried before a jury.

The jury heard testimony that a police informant agreed to buy two kilograms of cocaine from Villalobos and Gustavo Martinez, a waiter at a restaurant owned by Savinovich. The agreed price was $68,000. There was evidence that two kilograms of cocaine comprise 8,000 dosage units with a street value of approximately $100,000.

About fifteen minutes after the agreement was reached, police observed Villalobos enter a house he shared with Savinovich. Half an hour later, Villalobos and Savinovich were seen leaving the house. Savinovich carried a white shopping bag that "appeared to have some weight to it." She walked to the driver's side of a car, placed the bag on the seat, and got in behind the steering wheel. Villalobos entered the car on the passenger side. Later, police observed the same car arrive at Martinez's house. Savinovich got out on the driver's side and followed Villalobos into the house. She was seen carrying a white shopping bag that appeared to "contain something."

Shortly thereafter, police executed a search warrant on Martinez's house. They found a shopping bag, identified as the one Savinovich carried into the house, on a couch about two feet from where she was sitting. The shopping bag was partly tipped over, exposing a plastic bag full of a substance resembling cocaine. Another plastic bag of white powdery substance was found inside the shopping bag. One plastic bag contained 976 grams of 87% pure cocaine; the other contained 986 grams of 95% pure cocaine. ¹

At the same time, police executed a search warrant on the Villalobos-Savinovich house. In a closet adjoining the master bedroom, they found a balance beam scale set at 2,000 grams and $4,000 cash. There were men's and women's clothing in the closet. In another closet, police found a smaller gram scale with residue resembling cocaine on it. Both scales were admitted over defense counsel's objection. Beneath the kitchen sink, police also found packaging material that appeared to have contained at least a kilo of cocaine.

Testifying for the defense, Villalobos claimed that Savinovich did not know of the cocaine deal or that her shopping bag contained cocaine. Savinovich also testified that she knew nothing about the cocaine. She also denied knowledge of the scales or of several firearms found in her house.

In rebuttal, the government presented testimony that the scales were in plain view in both closets. Also, over objection, the government introduced two pistols found in the master bedroom closet and a sawed-off shotgun found in a kitchen cabinet.

At the close of the government's case in chief, the district court granted Savinovich's motion for a directed verdict on the conspiracy count, but denied it on the other two counts. The jury returned a guilty verdict on both remaining charges. Pursuant to 21 U.S.C. Sec. 841(b)(1)(B)(ii), the trial court sentenced Savinovich to five years in prison followed by a special parole term of five years.

DISCUSSION

Admission of Scales and Guns

Savinovich argues that the district court's admission of the scales and firearms into evidence was unfairly prejudicial under Fed.R.Evid. 403. We disagree. We review a trial court's admission or exclusion of evidence under Rule 403 for abuse of discretion. United States v. Crespo-de Llano, 830 F.2d 1532, 1544 (9th Cir.1987).

Rule 403 requires the proponent to show that the probative value of the offered evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987). Evidence creates unfair prejudice to the extent that the jury responds negatively to some aspect of the evidence unrelated to its tendency to make the contested fact more or less probable. United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir.1987).

Because scales constitute one of the tools of the drug trade, they are probative of intent to distribute. See, e.g., United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985). Accordingly, scales found in a defendant's home are admissible to prove intent to distribute, not just to possess, contraband. See United States v. Tebha, 770 F.2d 1454, 1457 (9th Cir.1985); United States v. Rohrer, 708 F.2d 429, 435 (9th Cir.1983). Here, the district court admitted two scales found in plain view in Savinovich's closets. One scale had drug residue on it; the other was set at 2,000 grams, the agreed-upon weight for the cocaine deal. From this evidence the jury could reasonably infer that Savinovich intended to distribute, as well as to possess, cocaine.

Because guns are used in many drug transactions, "[i]t may reasonably be inferred that an armed possessor of drugs has something more in mind than mere personal use." United States v. Cannon, 472 F.2d 144, 145 (9th Cir.1972). Thus, guns seized from a defendant's residence are admissible in a trial for possession of a controlled substance with intent to distribute. Crespo-de Llano, 830 F.2d at 1544; United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.1987); United States v. Issacs, 708 F.2d 1365, 1371 (9th Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 165, 78 L.Ed.2d 150 (1983). The firearms found in Savinovich's home were admissible under Rule 403.

Sufficiency of Evidence

Savinovich argues there is insufficient evidence to support her conviction. Specifically, she argues that (1) she did not know her bag contained cocaine; (2) her possessory interest in the cocaine was insufficient to support conviction; and (3) there was no basis for the inference that she intended to distribute the drug. Viewing the evidence in the light most favorable to the government, we review these allegations to determine whether a rational jury could find Savinovich guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).

1. Possession

A person may not be convicted of illegal possession of contraband unless she can exercise dominion and control over it. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). Mere proximity to the drug, presence on the property where it is located, or association with the person who controls the drug is insufficient to support conviction for possession. See id. at 1351. But if there is a rational basis for attributing interest in the contraband to one party because of relationship with another, a trier of fact can infer sufficient knowledge to support a conviction for possession. United States v. Hood, 493 F.2d 677, 681 (9th Cir.) (defendant was married to driver of drug-laden car and had reason to know his destination and criminal intent), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). Furthermore, a defendant's exclusive dominion over property on which contraband is found is strong circumstantial evidence of possession. See United States v. Walitwarangkul, 808 F.2d 1352, 1354 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1909, 95 L.Ed.2d 515 (1987).

Here, Savinovich exercised dominion and control over the cocaine when she carried it from her house to the car, drove it to Martinez's house, and carried it into his residence. Compare Disla, 805 F.2d at 1351. Moreover, there was thus a rational basis for the jury's association of Savinovich's interest in the cocaine with that of her husband. See Hood, 493 F.2d at 677.

2. Knowledge

Actual or positive knowledge is not necessary to support a conviction for possession of contraband if a defendant is aware of the high probability of possession and consciously disregards that possibility in an effort to remain ignorant. United States v. Valle-Valdez, 554 F.2d 911, 913 (9th Cir.1977). Moreover, possession of large quantities of narcotics may alone be sufficient to support the finding of knowing possession. Walitwarangkul, 808 F.2d at 1354; United States v. Collins, 764 F.2d 647, 652 (9th Cir.1985).

Here, Savinovich acknowledges carrying a bag containing almost two kilos of cocaine from her home to her car, driving it to Martinez's house, and carrying it inside. Possession of such a large quantity of cocaine under these circumstances is sufficient to support the jury's finding of knowing possession. See Walitwarangkul, 808 F.2d at 1354; United States v. Haro-Portillo, 531 F.2d 962, 963 (9th Cir.1976) (defendant driver's knowledge of possession could be inferred from driving vehicle laden with contraband)....