U.S. v. Hernandez
| Decision Date | 07 March 1989 |
| Docket Number | Nos. 88-5259,s. 88-5259 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hector Jesus HERNANDEZ, aka: Mauricio Solis, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge Walter CARDONA, Defendant-Appellant. , * 88-5265. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael J. Treman, Santa Barbara, Cal., and John P. Martin, Deputy Federal Public Defender, Los Angeles, Cal., for defendants-appellants.
Stephen G. Wolfe, Asst. U.S. Atty., Major Narcotics Section, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before SNEED, FARRIS and PREGERSON, Circuit Judges.
Hernandez and Cardona appeal their convictions for conspiracy to possess and possession with intent to distribute cocaine. They argue (1) that the evidence is insufficient to prove the existence of a conspiracy; and (2) that there was insufficient evidence to support a finding of constructive possession. Hernandez also contends that the district court abused its discretion in refusing to admit allegedly exculpatory evidence. We affirm.
FBI Agent Guerrero, acting undercover began negotiating the sale of cocaine from codefendant Montilla. See United States v. Montilla, 870 F.2d 549, 550-51 (9th Cir.1989). Guerrero met with Montilla several times beginning in early September 1987. Montilla told Guerrero that her boyfriend "Hector," would help her and that she and Hector were in charge of the transaction. On September 17, Guerrero met Hernandez who was introduced as Hector. The two men discussed the details of the exchange of cash and cocaine. Guerrero had several other meetings with Montilla and Hernandez. Some of these conversations were recorded. The transcripts of these conversations were introduced into evidence. On September 21, the three met again to discuss the specifics of the exchange.
Montilla called Guerrero again on September 22 and told him that neither Hernandez nor his suppliers wanted to complete the deal. Montilla told Guerrero that she would find another supplier. On September 23, Montilla and Hernandez introduced Guerrero to Gonzalez. Gonzalez and After this meeting, Montilla became concerned that Gonzalez was trying to cut her out of the transaction. Guerrero assured Montilla that he would only deal with her and not directly with Gonzalez. The next day, she called Guerrero again to assure him that she was looking for another supplier. On September 29, Montilla indicated that she had found a new supplier. Guerrero and Montilla had several more conversations in early October. Finally, October 6 was set as the date of the transaction.
Guerrero discussed a possible sale. Gonzalez asked Guerrero for his beeper number.
On October 6, Montilla and Guerrero spoke at 3:15 p.m.; Montilla said she was waiting for the cocaine. Shortly after 4:00, an officer outside Montilla's apartment saw codefendants Cubero and Cardona arrive in a car that Cubero was driving. The officer saw them walk to the trunk of the car and then to Montilla's apartment. Ten to twenty minutes later, Cubero returned to the car, took a duffle bag from the trunk and carried it to the apartment. The observing officer believed the duffle bag was heavy. Between 4:20 and 4:30, the heretofore reluctant Hernandez arrived and entered the apartment. At 4:36, Montilla called Guerrero and said the "merchandise" had arrived and was ready for delivery.
Fifteen to twenty minutes later (shortly after 5:00), Cubero and Cardona left. Cardona was carrying two jackets; one rolled up and tucked beneath his arm, the other laid across his arm. He put the jackets in the car and both men left. Shortly thereafter, Hernandez also left. Between 5:30 and 6:00, all three returned to Montilla's apartment. At 6:45 all four defendants left together. Montilla carried a shoulder bag to her truck and left. Hernandez, Cubero, and Cardona got into their respective cars and drove away.
At 7:15, Guerrero met Montilla at a restaurant parking lot. Guerrero, with Montilla as his passenger, drove to a residential street where her truck was parked. Guerrero parked behind Montilla's truck and noticed Cubero and Cardona parked on the opposite side of the street. Guerrero asked Montilla who the men were. Montilla responded: Guerrero asked: "In which car?" Montilla: "Those that you're looking at." Guerrero testified that he understood Montilla to say that both men owned the cocaine. Two other officers spotted Hernandez on the same street.
The sale was consummated and, after a prearranged arrest signal, officers arrested Montilla, Cubero, and Cardona. Hernandez had apparently fled, but was arrested later in the evening. Five kilograms of cocaine were found in Montilla's shoulder bag. A search of the car in which Cubero and Cardona were arrested turned up the jackets Cardona carried from Montilla's apartment. Several packets of currency, totaling $12,940, were found in the jackets.
Agents then returned to Montilla's apartment and searched it. They found the duffle bag Cubero had carried into the apartment with five kilograms of cocaine in the bedroom closet. Montilla's apartment had one bedroom. The closet in the bedroom had both men's and women's clothing in it. On the dresser, police found several letters to Hernandez at that address.
Cardona did not present any evidence at trial. To exculpate himself, Hernandez testified that Montilla requested his help in setting up the first cocaine deal; that he complied by introducing Montilla to Gonzalez as the supplier; that he knew nothing about the October 6 transaction; and that he did not park on the same street as Montilla. He admitted being at Montilla's apartment with the other three defendants but said cocaine was never mentioned. Hernandez also testified that during the week, he lived at Montilla's apartment and had clothes in the bedroom closet.
The defendants were charged in a four count indictment. The first count charged Montilla, Hernandez, and Gonzalez with conspiracy to possess cocaine with intent to distribute on September 23, 1987. 1 (Hernandez did not appeal this conviction.) See On June 3, 1988, a jury convicted Hernandez of count one, and Hernandez, Cardona, and Cubero of counts two and three. (Montilla pleaded guilty before trial.) Hernandez was sentenced to fifteen years on count three and five years on counts one and two, all sentences to run concurrently. Hernandez was also sentenced to a five year special parole term and given a special assessment of $150. Hernandez does not appeal his count one conviction. Cardona was sentenced to ten years on both counts two and three, to run concurrently.
21 U.S.C. Sec. 846 (1982). Count two charged Montilla, Hernandez, Cardona, and Cubero with conspiracy to possess cocaine with intent to distribute on October 6, 1987. Count three charged these same defendants with possession of 10,006.6 grams of cocaine with intent to distribute. See 21 U.S.C. Sec. 841(a)(1) (1982). The fourth count charged Montilla with possession of approximately $30,000 in counterfeit securities. See 18 U.S.C. Sec. 472 (1982).
The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1982). This court's jurisdiction rests on 28 U.S.C. Sec. 1291 (1982).
In reviewing the sufficiency of the evidence, this court must determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). A district court's admission of evidence is reviewed for abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir.1986), cert. denied, 479 U.S. 1104, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987).
Hernandez argues that the evidence is insufficient to support his count two conspiracy conviction because there was no evidence of an agreement among the coconspirators. The government responds that Hernandez has waived any error because he failed to raise this argument in his motion for acquittal. See Fed.R.Crim.P. 29.
We agree. Hernandez filed a motion for acquittal on count three but not count two. He, therefore, waived any error. See United States v. Roberts, 845 F.2d 226, 229 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 121, 102 L.Ed.2d 95 (1988); United States v. Curtis, 568 F.2d 643, 647 (9th Cir.1978); United States v. Czaplicki, 446 F.2d 640 (9th Cir.1971) (per curiam).
On occasion, this court has reviewed "waived" sufficiency of the evidence arguments under the plain error standard. See United States v. Rone, 598 F.2d 564, 572-73 (9th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Durcan, 539 F.2d 29, 31 (9th Cir.1976). " 'A plain error is a highly prejudicial error affecting substantial rights.' " United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979)). We shall so review Hernandez' sufficiency of the evidence claim.
To prove a conspiracy, the government must show (1) an agreement (2) to engage in criminal activity and (3) one or more overt acts in furtherance of the conspiracy. See United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977). Id.
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