U.S. v. Rubio-Villareal

• Decision Date: 13 March 1991
• Docket Number: RUBIO-VILLAREA,No. 89-50655,D,89-50655
• Citation: 927 F.2d 1495
• Parties: 32 Fed. R. Evid. Serv. 621 UNITED STATES of America, Plaintiff-Appellee, v. Juanefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1495

927 F.2d 1495

32 Fed. R. Evid. Serv. 621

UNITED STATES of America, Plaintiff-Appellee, v. Juan RUBIO-VILLAREAL, Defendant-Appellant.

No. 89-50655.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 8, 1990.

Decided March 13, 1991.

Martha M. Hall, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Mary A. Schneider, Asst. U.S. Atty., argued; Nancy L. Worthington, on the brief; San Diego, Cal., for plaintiff-appellee.

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

Before REINHARDT and LEAVY, Circuit Judges, and KING, District Judge. ^*

SAMUEL P. KING, District Judge:

Juan Rubio-Villareal appeals his convictions for conspiracy to import 7.42 kilograms of cocaine, in violation of 21 U.S.C. Secs. 952, 960, and 963 (Count 1); importation of 7.42 kilograms of cocaine, in violation of 21 U.S.C. Secs. 952 and 960 (Count 2); conspiracy to possess cocaine for distribution, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count 3); and possession of cocaine for distribution, in violation of 21 U.S.C. Sec. 841(a)(1) (Count 4).

Appellant asserts several grounds for reversal. First, appellant argues that the evidence introduced at trial was insufficient to sustain a finding of guilt beyond a reasonable doubt. Second, appellant contends that the district court gave an improper jury instruction. Third, the appellant maintains that the district court abused its discretion in refusing to admit evidence from two proffered expert witnesses. And finally, appellant argues that the district court erred when it allowed the government to introduce evidence of a prior drug importation conviction and accompanying post-arrest statements.

We REVERSE the convictions as to Counts 1 and 3 because of insufficiency of the evidence and remand for DISMISSAL of those counts. We REVERSE the convictions as to Counts 2 and 4 because of the giving of an improper jury instruction and

remand for a NEW TRIAL or other proceedings consistent herewith.

Facts

At approximately 9:30 a.m. on March 9, 1989, appellant Rubio-Villareal approached the U.S. Customs primary inspection station at the San Ysidro Port of Entry. He was driving from Mexico into the United States in a pickup truck with a camper shell. He was accompanied by his twelve-year-old son, John, and an acquaintance, Jose Garcia.

Rubio-Villareal's behavior at the station caused the Customs Inspector to become suspicious. Rubio-Villareal repeatedly complimented the agent on her beauty during questioning. He initially did not respond to the agent's inquiries regarding the contents of the truck. Further, he claimed that he was driving his son, whom he claimed to be a United States citizen, to school in the United States. However, it was already late in the day for school, the boy's English was poor, and he had no citizenship documents and no birth certificate. The inspector also noticed that Rubio-Villareal was slouched down in his seat, staring at his steering wheel and making no eye contact with her. The inspector asked him to open the rear camper door, but he was unable to open the door with the key.

The inspector directed passenger Garcia to drive the truck to the secondary inspection station. After the truck had been moved, Rubio-Villareal and his companions went inside a building for interviews.

A narcotics detection dog alerted its handler to the area between the bed and cab. The officer saw a small false compartment wall. The compartment was well made to prevent odors from escaping easily, and to avoid easy detection by Customs agents knocking on the truck wall.

The agent broke into the compartment and found seven packages of cocaine. He restored the compartment and the camper shell to their original shape. Customs agents decided to surveil the vehicle in an effort to catch any contacts in the United States. Customs Special Agent Larry Latocki was assigned this duty.

Subsequently, Rubio-Villareal drove the pickup truck into the United States, dropped his friend at a trolley station, drove around for some time, made a few telephone calls and, at about 6:00 p.m., was picked up by someone, leaving the pickup behind in a parking lot. Rubio-Villareal returned to Mexico.

The pickup remained under surveillance in the parking lot until Rubio-Villareal returned with another person in a green car at about 10:00 p.m. After sitting in the lot for approximately an hour and a half, Rubio-Villareal drove the pickup to a nearby pay parking lot next to a Travelodge Hotel. He left the pickup in the lot, got back into the green car, and was driven to a pay phone where he placed a call. He then left the area in the car with the other person.

Agent Latocki maintained surveillance of the pickup truck, still loaded with drugs, continuously thereafter. On March 14, 1989, Rubio-Villareal returned to the Travelodge, paid the manager for parking fees of five dollars per day through the 15th, and said he would return the next day for his pickup. He failed to return on March 15, so on March 16, 1989, the manager, in cooperation with United States Customs, had the truck towed to a storage yard, whereupon the drugs were seized. The packages contained 7.3 kilograms of 91 percent pure cocaine with a street value estimated at 1.4 million dollars.

On March 16, 1989, Rubio-Villareal returned to the Travelodge and was referred to the towing yard for his truck. About a month later, on April 12 or 13, 1989, he arrived at the towing yard and was met by Agent Latocki, who was posing as an employee of the towing facility. Rubio-Villareal paid the towing fees and claimed the car had been his for several months, although the registration slip was not in his name and he had no pink slip. Latocki then identified himself as a federal agent and placed Rubio-Villareal under arrest.

DISCUSSION

I. Sufficiency of the Evidence

Appellant contends that the evidence adduced at trial was insufficient to convict him on any of the four counts.

Evidence presented at trial is sufficient to support a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). In making this determination, the evidence and all the inferences from the evidence must be viewed in the light most favorable to the government. United States v. Endicott, 803 F.2d 506, 514-515 (9th Cir.1986).

A. Possession Counts 2 and 4

Rubio-Villareal contends that the sole acceptable evidence of his drug possession was that he was the driver of a car in which drugs were hidden, and that this was an insufficient basis upon which to conclude that appellant knowingly possessed the cocaine.

However, there was other substantial evidence of his knowing importation besides the fact that he was the driver of the pickup truck. For the month following his border crossing, only he handled the truck and claimed it as his own. In addition, after his arrest, he fabricated a story to explain why he had left the pickup truck in a paid parking lot for an entire month. The jury could infer from this evidence that he was waiting to see if the coast was clear before returning for his vehicle.

Furthermore, even when a vehicle contains other passengers, it is reasonable to infer that the driver who had control of the car before the trip was the individual who made the necessary preparation to conceal the drugs in a secret compartment. ¹ United States v. Martinez, 514 F.2d 334, 339 (9th Cir.1975). Exclusive dominion over the property or vehicle in which contraband is found is strong circumstantial evidence of possession. United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988).

Accordingly, the appellant's first contention fails.

B. Conspiracy Counts 1 and 3

In order for this court to sustain a conviction for conspiracy, the government must have proved beyond a reasonable doubt three elements: (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. Penagos, 823 F.2d 346, 348 (9th Cir.1987); United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986).

Although an agreement may be established circumstantially, United States v. Indelicato, 800 F.2d at 1483, a conspiracy cannot be upheld when there is no evidence that the accused conspired with others. See United States v. Schorr, 462 F.2d 953, 959-960 (9th Cir.1972) (conviction for conspiracy reversed where there was no evidence that defendant even knew alleged co-conspirator, had ever talked with him, had ever worked together in any way whatsoever, or had ever made an agreement with him).

Here, the first element of the Penagos test has not been met. There was no evidence offered at trial that Rubio-Villareal conspired with another person, or that there was any agreement to accomplish an illegal objective. No evidence was submitted to show the identity of any co-conspirator; no evidence was presented which tended to show a close relationship between Rubio-Villareal and a co-conspirator; no evidence was presented indicating frequent contacts between Rubio-Villareal and anyone else; no evidence was offered of the same modus operandi being used by Rubio-Villareal and some other co-conspirators; and there could be no finding as to Accordingly, the appellant's conviction as to Counts 1 and 3 must be REVERSED and these counts must be DISMISSED.

the commonality of the acts of any co-conspirators since no evidence of any acts of alleged co-conspirators was ever presented.

II. The Jury Instructions

Rubio-Villareal submits that the district court gave a jury instruction which resulted in an impermissible shifting of the burden of proof.

Rubio-Villareal contends that the jury...