882 F.2d 693 (2nd Cir. 1989), 1301, United States v. Sanchez Solis

Docket Nº:1301, Docket 88-1490.
Citation:882 F.2d 693
Party Name:UNITED STATES of America, Appellee, v. Jose DeLaCruz SANCHEZ SOLIS, Defendant-Appellant.
Case Date:August 15, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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882 F.2d 693 (2nd Cir. 1989)

UNITED STATES of America, Appellee,

v.

Jose DeLaCruz SANCHEZ SOLIS, Defendant-Appellant.

No. 1301, Docket 88-1490.

United States Court of Appeals, Second Circuit

August 15, 1989

Argued June 13, 1989.

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Helena Pichel Solleder, New York City, for appellant.

E. Scott Gilbert, Asst. U.S. Atty., S.D.N.Y. (Benito Romano, U.S. Atty., Vincent L. Briccetti, of counsel), New York City, for appellee.

Before OAKES, Chief Judge, and VAN GRAAFEILAND and PRATT, Circuit Judges.

OAKES, Chief Judge:

Jose DeLaCruz Sanchez Solis appeals a judgment of conviction and sentencing entered by the United States District Court for the Southern District of New York, Peter K. Leisure, Judge. Sanchez was convicted of conspiracy to distribute and to possess with intent to distribute more than five hundred grams of cocaine, and of distribution and possession of approximately one kilogram of cocaine. See 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(B) (1982 & Supp. V 1987). He appeals both his conviction and his sentence. We affirm the conviction but remand for resentencing.

Sanchez' conviction resulted from events that occurred on June 22, 1988 in Manhattan. Willie Gray, a Drug Enforcement Administration ("DEA") special agent, testified that he arranged with one Luis Gonzalez to buy a kilo of cocaine. Gonzalez stated that the cocaine would be delivered shortly in a blue car. Sanchez soon arrived in a blue car. Gonzalez called to him and followed the car on foot until Sanchez parked. Gonzalez retrieved a shopping bag from the car and gave the bag, which contained 999.6 grams of cocaine, to Gray. DEA agents then converged on Gray's vehicle. Sanchez fled, and he was found hiding in an apartment courtyard with a beeper device and keys for the blue car nearby.

Luis Pizarro, a DEA agent, testified that Sanchez made an oral statement to Pizarro after the arrest. According to Pizarro, Sanchez admitted that he knew that the package contained drugs. Sanchez testified at trial that he did not know what the package contained and that he had agreed to deliver it for a man he did not know.

A jury found Sanchez guilty of both of the counts charged in his indictment, and Judge Leisure sentenced him to concurrent terms of imprisonment for eight years on each count, concurrent ten-year terms of supervised release for each count, and the mandatory $50 assessment on each count. Sanchez now challenges both his conviction and his sentence.

Sanchez argues first that there was insufficient evidence of his guilt. As to the conspiracy charge, he argues that there was very little evidence that a conspiracy existed. His indictment accused him of conspiring with Gonzalez and others, but there was no evidence, other than the events of June 22, that he knew Gonzalez or that they had any common acquaintances. Two bystanders, he points out, testified that he attempted to deliver the package to them rather than to Gonzalez. The Government answers that Sanchez' delivery of the package and his post-arrest statement that he knew that the package contained drugs are evidence of guilt. Additional circumstantial evidence, the Government argues, is present: Sanchez carried a beeper, the jury might have found that he testified falsely, and his flight from

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the DEA agents might have demonstrated consciousness of guilt.

When an appellant challenges the sufficiency of the evidence, the conviction should be affirmed if, " 'after viewing the evidence in the light most favorable to the prosecution,' the reviewing court finds that 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Nusraty, 867 F.2d 759, 762 (2d Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). For a conspiracy conviction to be affirmed, there must be "some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it." United States v. Gaviria, 740 F.2d 174, 183 (2d Cir.1984) (citing United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)).

We agree with the Government that Sanchez' delivery of the drugs and his post-arrest statement provided sufficient evidence of his knowing participation in the conspiracy. Appellant's possession and delivery of the drugs distinguish this case from Nusraty, in which we reversed the conviction of a defendant who was merely...

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