U.S. v. Conkins
| Decision Date | 18 February 1993 |
| Docket Number | 91-10323 and 91-10373,91-10322,SOTO-MENDOZ,91-10310,91-10307,D,91-10314,Nos. 91-10306,s. 91-10306 |
| Citation | 987 F.2d 564 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Linda Marie CONKINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Amador BARRAGAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alberto Valencia BARRAGAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Leroy SANDVIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Louise FOGEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Robert FARMER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Salvadorefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barry Nix, Fresno, CA, for defendant-appellant Conkins.
Margaret A. McKnight, Fresno, CA, for defendant-appellant Sandvig.
Anthony P. Capozzi, Fresno, CA, for defendant-appellant Fogel.
Stephen Mensel, Fresno, CA, for defendant-appellant Farmer.
Patrick K. Hanly and Kevin P. Rooney, Asst. U.S. Attys., Fresno, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before: HUG, PREGERSON, and WIGGINS, Circuit Judges.
Appellants were convicted of multiple counts of importation of a controlled substance, in violation of 21 U.S.C. § 952 and 18 U.S.C. § 2, and possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In addition, all appellants with the exception of Linda Conkins and Robert Sandvig were convicted of conspiracy to import and distribute a controlled substance, in violation of 21 U.S.C. §§ 952(a), 963, 841(a)(1), and 846.
Linda Conkins and Salvador Soto-Mendoza appeal their jury convictions. In addition, Alfredo Barragan, Jacqueline Fogel and Richard Farmer appeal their sentences under the Sentencing Guidelines. Alberto Barragan and Robert Sandvig appeal both their convictions and sentences.
We vacate the sentences of Alberto and Alfredo Barragan, Jacqueline Fogel, and Richard Farmer and remand to the District Court for resentencing in accordance with this opinion. We affirm the convictions and sentences on all other grounds.
According to evidence presented by the government at trial, all appellants were involved in a conspiracy to smuggle marijuana into the United States. The conspiracy spanned more than 18 months and included 26 separate shipments of marijuana.
Appellants Alfredo Barragan, his brother Alberto Barragan, and Salvador Soto-Mendoza organized the smuggling trips. They and others recruited couriers to travel to Mexico in motor homes, which were then loaded with marijuana and driven back into the United States. Appellants Richard Farmer, Jacqueline Fogel, and Linda Conkins made some of these trips. Appellant Robert Sandvig met the couriers in El Paso, Texas, where he helped them arrange their trips into Mexico.
Conkins and Sandvig were separately indicted in the Western District of Texas on multiple counts related to smuggling trips in June and July 1989. Each pleaded guilty to one substantive count. In exchange, the government dismissed the remaining counts, including all conspiracy charges.
After these pleas were entered, Conkins, Sandvig, and ten others were indicted in the Eastern District of California on importation, possession, and conspiracy charges. Five of these defendants agreed to testify for the government. Conkins and Sandvig moved successfully to dismiss the conspiracy charge on double jeopardy grounds, but were convicted on substantive charges. The remaining defendants were convicted on both substantive and conspiracy charges.
Conkins contends here, as she did below, that the filing of Counts 12 and 13 of the indictment (for importation and possession of marijuana) violates a plea agreement she entered in the related case from the Western District of Texas (the "Texas agreement"). The district court determined that it did not, and we review for clear error a district court's construction of a plea agreement. United States v. Fernandez, 960 F.2d 771, 772 (9th Cir.1991).
The Texas agreement provided that in return for Conkins's guilty plea on one substantive charge, a second substantive charge and two conspiracy charges would be dismissed. The agreement contains no mention of a bar to prosecutions for related conduct not charged in that first indictment. Thus, the district court properly concluded that the Texas agreement did not bar the charges filed against Conkins in the instant case.
In a similar vein, Sandvig contends that his prosecution under the entire indictment is barred by collateral estoppel. Specifically, he argues that the dismissal of two conspiracy counts pursuant to the Texas agreement constitutes a determination on the merits that now bars any prosecution for the constituent overt acts of those two conspiracies.
Sandvig did not raise this issue below. "As a general rule, we will not consider an issue raised for the first time on appeal." United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). However, because this issue presents a pure question of law, we can and do reach it. See id. (court of appeals will consider an issue raised for the first time on appeal when "the issue presented is purely one of law").
In some circumstances, the dismissal of an indictment may be a ruling on the merits that collaterally estops further prosecution under the same charge. United States v. Cejas, 817 F.2d 595, 598-99 (9th Cir.1987). However, this rule is inapplicable here because the conspiracy charges dismissed in the Texas case are distinct from the substantive charges under which Sandvig now stands convicted. See United States v. Felix, --- U.S. ----, ----, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992) ().
Thus, the doctrine of collateral estoppel does not bar Sandvig's prosecution under the substantive counts in this case.
Sandvig also contends that his indictment in this case was the result of "vindictive prosecution." Due process of law is violated when the government vindictively attempts to penalize a person for exercising a protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982).
In contrast with Sandvig's double jeopardy challenge, a claim of "vindictive prosecution" presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal. See Flores-Payon, 942 F.2d at 558 (). Accordingly, we do not reach this issue.
Alberto Barragan contends that the district court erred by admitting evidence of a recorded telephone conversation between two co-conspirators because the challenged statements were not made during or in furtherance of the conspiracy.
Even assuming the court erred by admitting this evidence, such error was harmless. The inculpatory statement, i.e., that a Barragan brother sent witness Kim Lavish to Mexico to import drugs, was introduced by the direct non-hearsay testimony of Lavish herself.
Sandvig contends that the district court erred in admitting evidence of other "bad acts" because (1) this evidence was not probative of any material issue and (2) the prejudicial effect of the evidence outweighed its probative value.
Because Sandvig objected to the introduction of this evidence, we review for abuse of discretion the trial court's decision to admit the evidence. United States v. Catabran, 836 F.2d 453, 459 (9th Cir.1988).
The district court applied the proper test and concluded that evidence of Sandvig's other marijuana smuggling conduct was admissible under Fed.R.Evid. 404(b) to establish knowledge, intent, and motive. The district court also expressly found that the prejudicial effect of the evidence did not substantially outweigh its probative value. The district court did not abuse its discretion in admitting this evidence.
Conkins, Alberto Barragan, Sandvig, and Soto-Mendoza challenge the sufficiency of the evidence to support their convictions. We must sustain a conviction if " 'after reviewing the evidence in the light most favorable to the prosecution, [we conclude that] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Conkins contends that there is insufficient evidence to support her convictions for possession and importation of marijuana in February or March 1989 (Counts 12 and 13). In particular, Conkins claims there is (1) no evidence that the motor home used on that trip carried marijuana and (2) only minimal evidence to establish that she knew the motor home was carrying marijuana on that trip.
The record contains circumstantial evidence that the motor home trips organized by the Barragans and Soto-Mendoza were made exclusively for the purpose of importing marijuana. This evidence, viewed in the light most favorable to the prosecution, was...
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