959 F.2d 242 (9th Cir. 1992), 91-10219, U.S. v. Dabdoub-Canez
|Docket Nº:||91-10219, 91-10231 and 91-10309.|
|Citation:||959 F.2d 242|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Javier Aaron DABDOUB-CANEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francisco Pable CORTEZ-ESPINOZA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guillermo SOTO-ESQUER, Defendant-Appellant.|
|Case Date:||April 09, 1992|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 12, 1992.
Appeal from the United States District Court for the District of Arizona; No. CR-00350-ACM, Alfredo C. Marquez, District Judge, Presiding.
Before REINHARDT, NOONAN and DAVID R. THOMPSON, Circuit Judges.
In an opinion filed this date, we held that the district court properly sentenced appellant Javier Aaron Dabdoub-Canez to ten years in prison for his conviction for conspiracy to possess cocaine with intent to distribute. See 21 U.S.C. § 846. In this memorandum disposition we reject the appellants' remaining arguments.
SUFFICIENCY OF THE EVIDENCE
In determining whether evidence is sufficient to support a conviction, the standard is whether, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
"The elements of [a] conspiracy are (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 to commit the underlying substantive offense." United States v. Pemberton, 853 F.2d 730, 733 (9th Cir.1988). The agreement giving rise to the conspiracy may be either express or inferred from circumstantial evidence. See, e.g., United States v. Ray, 930 F.2d 1368, 1371 (9th Cir.1990), cert. denied, 111 S.Ct. 1084 (1991).
Neither Canez nor Espinoza has presented a credible argument that the evidence was insufficient to show they agreed or intended to furnish cocaine to Roth. Espinoza negotiated the sale to Roth during the August 21 meeting, and was present when the sale was completed a few days later. Canez also participated in both the negotiation and sale of the cocaine. At the August 21 meeting he delivered a brick of cocaine for Roth to test. At the second meeting he not only produced the suitcase containing the cocaine, but also assented to the price suggested by Roth and provided tools to help Roth sample the cocaine. When viewed in the light most favorable to the government, a reasonable jury could have found that Canez and Espinoza conspired to sell cocaine to Roth.
Under 21 U.S.C. § 841(a)(1), possession of a controlled substance may be either actual or constructive. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). Constructive possession may be demonstrated by direct or circumstantial evidence that the defendant: (1) had the power and authority to dispose of the drug, either personally or through agents, or (2) participated in a joint venture, thereby sharing dominion and control over the narcotics. United States v. Restrepo, 930 F.2d 705, 709-10 (9th Cir.1991).
Espinoza and Canez satisfied both tests. Based on their extensive involvement in the negotiation and sale of the cocaine, a reasonable jury could have concluded that both were active participants in a "joint venture" to sell narcotics. Further, Espinoza was the primary negotiator for the group, which indicated he had authority to dispose of the cocaine. While Canez did not actively negotiate with Roth, he did assent to Roth's proposed price of $19,500 per kilogram. This suggests that he also had authority to sell the cocaine.
Esquer contends he was simply an...
To continue readingFREE SIGN UP