U.S. v. Anguiano
| Decision Date | 05 May 1989 |
| Docket Number | No. 87-5319,87-5319 |
| Citation | 873 F.2d 1314 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Maria Velarde ANGUIANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth D. Noel, San Diego, Cal., for defendant-appellant Maria Velarde Anguiano.
Bruce R. Castetter, Asst. U.S. Atty., Chief, Appellate Section, Crim. Div., San Diego, Cal., for plaintiff-appellee U.S.
Appeal from the United States District Court for the Southern District of California.
Before NELSON, BEEZER and HALL, Circuit Judges.
Maria Velarde Anguiano appeals her conviction for conspiracy to possess marijuana with intent to distribute, a violation of 21 U.S.C. Secs. 841(a) & 846. For the reasons set forth below, we conclude that Anguiano's conviction must be affirmed.
During the spring of 1986, Anguiano spoke several times with a confidential government informant named Miguel Angel Nicholas. The purpose of these discussions was to arrange the sale of a large quantity of marijuana. The money for the purchase was to come from ten individuals, including Anguiano and an individual named Arturo ("Joe") Cuevas. Anguiano gave Nicholas $850 to purchase a sample before arranging the larger sale. Nicholas told Anguiano that he would arrange for her to meet with the owner of the marijuana.
The meeting took place on June 10, 1986. Anguiano and an associate ("Bernardo") met with Nicholas and undercover DEA agent Victor Wallace, who was posing as the owner of the marijuana. Agent Wallace told Anguiano that he had four tons of marijuana to sell, and that the price per kilo would vary depending on how much Anguiano wanted to buy. Anguiano offered to buy 200 pounds, but Wallace told her that he would not deal in such small quantities. Anguiano then agreed to purchase one ton of marijuana for $825,000.
On June 12, 1986, Anguiano again met with Agent Wallace. According to Agent Wallace, Anguiano told him that she had the $825,000, which she had collected from a group of people who had combined their money in order to finance the purchase. They arranged to complete the deal at Anguiano's home the next day.
Wallace arrived at Anguiano's home at about 1:30 PM on June 13. Anguiano told him that she had some people waiting in two nearby houses. She also told him that part of the money was in one of the nearby houses and that she was waiting for the rest to be delivered. While they were waiting, Bernardo arrived and said that the people with the money would not release it until they had first seen a sample of the Anguiano returned a few minutes later and said that the money had not yet arrived and that Arturo insisted on a sample. Agent Wallace produced a brown paper bag containing four ounces of marijuana. After examining the sample, Bernardo brought part of it over to Arturo, but he soon returned saying that Arturo wanted to see the whole sample. Agent Wallace became suspicious of what was going on and decided to leave. Anguiano said that she hoped to be able to put the deal together within a few days.
marijuana. Anguiano became upset and told Bernardo to "go check with Arturo about the money." Bernardo returned shortly thereafter and told Anguiano that Arturo said they would not release the money without a sample. Anguiano then left, saying she would speak to Arturo
On the morning of June 16, Wallace telephoned Anguiano, who said that everything was ready at her end. Wallace and Anguiano agreed to meet at a restaurant later that day. Anguiano went alone to the restaurant, where she spoke with Agents Wallace and Calderon. She told them that she was now ready to buy the ton and that two people would be at her house with the money. Wallace agreed to go to Anguiano's house that evening.
Wallace arrived at Anguiano's house at about 6:30 PM. Anguiano said that the people with the money were upstairs. She called upstairs for "Mike," and codefendant Miguel Reynoso came down. Miguel said that they had the money, but that they wanted to see the marijuana first. Mike called upstairs to his brother, codefendant Armando Reynoso, who came down with a briefcase and a shaving kit bag, both of which contained money. Wallace examined the bags and noted that they contained a total of $195,000 in cash.
Armando then told Wallace that he only wanted to buy 1,000 pounds of marijuana for $500,000. According to the government, Anguiano told Wallace that if he agreed to sell Armando the 1,000 pounds, then she would guarantee the money to buy the remaining 1,000. Wallace agreed to the sale. Wallace then telephoned Agent Calderon, who spoke with Anguiano. Calderon asked her why they only had $200,000. Anguiano said that the Reynoso brothers had gotten nervous and put some of the money somewhere else. According to the prosecution, she also said that if Calderon would agree to sell only $200,000 worth of marijuana, she would agree to buy the rest.
The Reynoso brothers, Anguiano, and Wallace then all drove to the parking lot of a local shopping center, where the DEA agents had parked a truck loaded with marijuana. When they arrived, Anguiano, Miguel, and Armando were all arrested.
On June 27, 1986, the government filed a two count indictment against Anguiano. The first count charged that Anguiano had conspired to possess marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) & 846. The second count charged Anguiano with attempted possession of marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) & 846.
At the close of the trial, Anguiano requested that the jury be instructed concerning multiple conspiracies. Specifically, Anguiano pointed out that the evidence supported the existence of two conspiracies, one relating to the June 13 deal with Arturo Cuevas and Bernardo, and one concerning the June 16 deal with the Reynoso brothers. Accordingly, Anguiano requested instructions to the effect that if the jury found that a particular defendant was a member of a conspiracy other than the one charged in the indictment, then that defendant must be acquitted. The government argued that the evidence indicated only one overall conspiracy, and that, at any rate, the indictment charged Anguiano with a conspiracy ending June 16, not one ending June 13. The trial court agreed with the government and refused to give the instructions.
The jury retired to deliberate on July 17, 1987, and returned a verdict on July 23, 1987. Anguiano was convicted on the conspiracy count, but she was acquitted on the charge of attempted possession. Anguiano has filed a timely appeal to this court.
A defendant is entitled to a multiple conspiracies instruction only if the defendant's theory of multiple conspiracies is "supported by law and has some foundation in the evidence." United States v. Linn, 862 F.2d 735, 743 (9th Cir.1988) (quoting United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985)). Although our previous cases have not explicitly stated the applicable standard of review, see, e.g., United States v. Rabb, 752 F.2d 1320, 1325 (9th Cir.1984) (), cert. denied, 471 U.S. 1019, 105 S.Ct. 2027, 85 L.Ed.2d 308 (1985), we conclude that the issue of whether the evidence was sufficient to support the giving of a multiple conspiracies instruction should be subject to de novo review. This conclusion is based on several considerations. First, we note that the issue of whether the evidence was sufficient to sustain an instruction concerning a particular defense theory is generally a question of law that is reviewed de novo. See United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir.1987). Second, our cases concerning the issue of multiple conspiracies have appeared to use implicitly a de novo standard of review. See, e.g., United States v. Eubanks, 591 F.2d 513, 517-18 (9th Cir.1979); Rabb, 752 F.2d at 1325.
Although we thus review de novo the trial court's refusal to give a multiple conspiracies instruction, we also note that even if the evidence would have supported such an instruction, the failure to give it is error only if the instructions as a whole, considered in the context of the entire trial, did not fairly and adequately cover the issues. Thus, the overall adequacy of the instructions is reviewed in light of "the entire charge in the context of the whole trial," Rabb, 752 F.2d at 1325, and so long as the instructions "fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion," United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985); see also Linn, 862 F.2d at 743. Accordingly, it is not error to reject a multiple conspiracies instruction "if the other instructions, when viewed in their entirety, cover that theory." Ibarra-Alcarez, 830 F.2d at 973. 1
We agree with Anguiano that the evidence presented at trial indicates the existence of two separate conspiracies. Indeed, the government appeared to concede as much when it acknowledged at oral argument that it could not name one individual (other than Anguiano or government agents) who participated in both the June 13 and June 16 transactions. Nonetheless, we conclude that the district court did not err in refusing to give an instruction concerning multiple conspiracies.
A multiple conspiracies instruction is generally required where the indictment charges several defendants with one overall conspiracy, but the proof at trial indicates that a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged...
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