U.S. v. Mares

Decision Date29 July 1991
Docket NumberD,MARTINEZ-OSUN,Nos. 88-5318,88-5372,s. 88-5318
Citation940 F.2d 455
Parties33 Fed. R. Evid. Serv. 639 UNITED STATES of America, Plaintiff-Appellee, v. Gregorio de Jesus MARES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfredoefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen M. Hogg, Northridge, Cal., for defendant-appellant Alfredo de Jesus Mares.

David R. Evans, Pillsbury Madison & Sutro, Los Angeles, Cal., for defendant-appellant Alfredo Martinez-Osuna.

Pamela M. Heberton, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

WIGGINS, Circuit Judge:

Alfredo Martinez-Osuna and Gregorio de Jesus Mares appeal their convictions on a two-count indictment charging them with conspiracy to possess with intent to distribute and conspiracy to distribute 1002 grams of heroin (Count 1), and possession with intent to distribute and aiding and abetting the distribution of the heroin (Count 2).

The indictment alleged that the appellants engaged in counter-surveillance activities in furtherance of a transaction involving two codefendants and undercover DEA agents. Both Mares and Martinez-Osuna argue that there is insufficient evidence to support the convictions for conspiracy and possession. Mares separately challenges the propriety of the prosecutor's closing argument, and of the district judge's decision to admit certain expert testimony. Martinez-Osuna contends that the judge's admonishment of counsel during closing argument conveyed the appearance of partiality. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm the convictions.

BACKGROUND

On March 21, 1988, DEA Agent Abenicio Cordova received a phone call from an informant who reported that he knew an individual who wanted to sell one kilogram of heroin. Agent Cordova told the informant to arrange a meeting to conduct the At approximately 5:30 p.m., Cordova and another DEA agent went to Hirschel's Restaurant. There they were introduced by the informant to codefendant Rendon-Ramos, who told the agents that the kilogram of heroin was on the way from La Puente and would cost $160,000. Shortly after 5:30, Rendon-Ramos went outside and stood in front of the restaurant.

transaction that evening at a restaurant in Riverside, California. Cordova met that afternoon with other DEA agents and members of the Ontario (Calif.) Police Department to plan for surveillance of the meeting.

One hour later, at approximately 6:30 p.m., the informant, who had joined Rendon-Ramos outside, went inside the restaurant and summoned the two agents. Rendon-Ramos pointed to a white Chevrolet parked in the restaurant's lot, and indicated that the heroin was in that car. Rendon-Ramos introduced the undercover agents to codefendant Solorzano-Vega, 1 who walked with Agent Cordova over to the Chevrolet. Once the two men were inside the car, Solorzano-Vega produced a package of heroin from under the back seat. At that time, Cordova gave a prearranged arrest signal, and both Rendon-Ramos and Solorzano-Vega were arrested.

While this transaction was taking place, DEA Agents Benavente and Denley, and Sergeant Fryer and Officer Nottingham of the Ontario Police Department were conducting surveillance in the area surrounding Hirschel's. Agent Denley was positioned inside the restaurant, Agent Benavente was patrolling in a car, Sergeant Fryer was in a car parked in the lot of a Jack-in-the-Box adjacent to Hirschel's, and Officer Nottingham was located in a bank parking lot on the other side of the restaurant. Approximately one half-hour before the arrest, Sgt. Fryer noticed Solorzano-Vega standing in the Jack-in-the-Box parking lot, and glancing repeatedly at his watch. The white Chevrolet was parked nearby in the lot.

Soon thereafter, a gray Toyota with Mexican license plates pulled into the parking lot. The driver and a passenger (later identified to be Mares and Martinez-Osuna, respectively) got out of the car and walked over to talk to Solorzano-Vega. Though Sgt. Fryer could not hear anything the three men said, it appeared that Martinez-Osuna was doing most of the talking. After conversing for several minutes, the men walked over to the Chevrolet, Solorzano-Vega got in the car, and the appellants returned to the Toyota. As Solorzano-Vega drove past the Toyota on the way out of the lot, Martinez-Osuna got out of the car and spoke with him very briefly.

Both cars exited the lot, and Solorzano-Vega turned immediately into the parking lot of Hirschel's. While the agents were preparing to "close the deal," Sgt. Fryer monitored the movement of the Toyota. After passing through Hirschel's parking lot, it circled back past Jack-in-the-Box. The car then exited the lot, and proceeded to make three laps along the same route--through Hirschel's lot, past Jack-in-the-Box, and back onto the street. Sgt. Fryer and Officer Nottingham were in radio communication as the Toyota passed on the far side of the Jack-in-the-Box which blocked Sgt. Fryer's view. Sgt. Fryer noted that Martinez-Osuna, the passenger, turned around and looked out the rear window each time they passed the scene of the drug transaction.

After Rendon-Ramos and Solorzano-Vega were arrested, Agent Benavente located the appellants walking through the parking lot of a Photomat store adjacent to Hirschel's. Upon seeing the officers, the two men exchanged words and began walking in a different direction. When asked by the officers what they were doing, Martinez-Osuna responded that they were going to a restaurant, and Mares said they were going to make a phone call. After the officers placed the appellants under arrest, Mares gave them the keys to the Toyota; no weapons, binoculars, beepers or At trial, the government called as witnesses each of the DEA agents and police officers involved in the transaction. Officer Nottingham and a DEA agent, Stephen Georges, were both qualified as expert witnesses. Agent Georges testified at some length about the role of counter-surveillance in narcotics transactions, and they both testified--Nottingham based on what he had witnessed, and Georges based on the investigation reports and conversations with most of the officials involved--that they were "100% certain" that the appellants were engaged in counter-surveillance activities in connection with the heroin deal. Neither appellant testified in his own defense, and the only defense witness was Agent Denley, who was called very briefly by Mares' counsel. The jury found the appellants guilty on both the conspiracy and possession counts, and this appeal followed.

contraband of any kind was found in the car. The officers did find several documents in the car, including a temporary visa issued to Mares that expired on the day of the arrests, and two Mexican driver's licenses.

DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE

Both of the appellants argue that there is insufficient evidence to support their convictions for conspiracy and possession. In reviewing the sufficiency of the evidence supporting a conviction, we search the record to 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). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). With these principles in mind, we address the convictions for conspiracy and possession.

1. Conspiracy to possess with intent to distribute.

Mares and Martinez-Osuna do not dispute the existence of a conspiracy; rather, they argue that the government failed to prove beyond a reasonable doubt that they were connected to that conspiracy. And while the appellants recognize that counter-surveillance activities qualify as acts in furtherance of a conspiracy, United States v. Perez, 491 F.2d 167, 171 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974), they argue that there is insufficient evidence that they were engaged in such activities.

Evidence of even a slight connection, if proven beyond a reasonable doubt, is sufficient to convict a defendant of knowingly participating in an established conspiracy. United States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir.1991); United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987). Such connection to a conspiracy may be inferred from circumstantial evidence. United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980); Federico, 658 F.2d at 1344. Mere proximity to the scene of a crime is not sufficient to establish a connection to the conspiracy, but acts that otherwise appear innocent, when viewed in context, may support an inference of guilt. Id.; Batimana, 623 F.2d at 1368.

After carefully examining the record and drawing all reasonable inferences in favor of the verdict, we conclude that a reasonable jury could have found that the appellants were engaged in counter-surveillance activities in furtherance of the heroin-dealing conspiracy. While no individual fact or inference is sufficient to establish the appellants' connection to the conspiracy, the facts within the record, when considered in their totality, create a rather persuasive case for guilt.

Clearly the most inculpatory fact concerns the appellants' actual...

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