U.S. v. Buena-Lopez

• Decision Date: 09 March 1993
• Docket Number: BUENA-LOPEZ,No. 92-10326,92-10326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis, aka Jose Luis Buelna-Lopez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 657

987 F.2d 657

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis BUENA-LOPEZ, aka Jose Luis Buelna-Lopez Defendant-Appellant.

No. 92-10326.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 3, 1993.

Decided March 9, 1993.

Morton Rivkind, Phoenix, AZ, for defendant-appellant.

Vincent Q. Kirby, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: ALARCON, RYMER and T.G. NELSON, Circuit Judges.

ALARCON, Circuit Judge:

Jose Luis Buelna-Lopez appeals from the judgment entered following his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii) and 846, and possession with intent to distribute cocaine, and aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii) and 18 U.S.C. § 2. Buelna-Lopez contends the evidence presented at trial was insufficient to establish his knowledge of the conspiracy. He further argues that the district court erred in denying his motion for a severance. We affirm.

I. FACTUAL BACKGROUND

This case arises out of a drug transaction that took place on August 22, 1991. The four people present at that transaction were Jose Luis Buelna-Lopez, Jesus Ozuna Rodarte, undercover Drug Enforcement Agent James Brown, and Francisco Romaro, a confidential informant for the Drug Enforcement Administration.

The Government's evidence showed that Rodarte approached Romaro about selling narcotics to him. Romaro told him that he had a friend who would be interested in purchasing cocaine, and subsequently introduced Agent Brown to Rodarte. Rodarte sold Agent Brown one ounce of cocaine on August 9, 1991, and another ounce on August 19, 1991. At a meeting at Rodarte's residence on August 21, 1991, Rodarte agreed to sell Agent Brown one kilogram of cocaine on August 22, 1991.

On August 22, Rodarte drove with Romaro to an apartment complex to pick up the drugs. When they arrived at the apartment complex, Romaro saw Buelna-Lopez looking out the window. Upon seeing Romaro and Rodarte, Buelna-Lopez exited the apartment carrying a blue bag and entered Romaro's vehicle without a contemporaneous invitation. Once Buelna-Lopez had entered the vehicle, Rodarte told him, "[T]here's no problem--we're going after the money." Buelna-Lopez did not respond. Rodarte, Romaro, and Buelna-Lopez then drove to a K-mart parking lot to meet Agent Brown.

When they met Agent Brown at the parking lot, he stated "[L]et's see what it looks like." Buelna-Lopez responded by pointing to the blue bag. Agent Brown opened the blue bag and found approximately one kilogram of cocaine. Rodarte and Buelna-Lopez were arrested.

Rodarte testified that he was induced to sell cocaine to Agent Brown by Romaro. Buelna-Lopez's theory of defense was that he had no knowledge of the drug transaction and was merely present when the cocaine was delivered to Agent Brown. On the first day of trial, Buelna-Lopez moved for severance on the ground that the defenses of mere presence and entrapment are mutually antagonistic. The district court denied the motion. Buelna-Lopez unsuccessfully renewed his motion for severance several times during the trial. The jury found Buelna-Lopez and Rodarte guilty of the charged offenses.

II. SUFFICIENCY OF EVIDENCE

Buelna-Lopez contends that the evidence was insufficient to sustain his conviction for conspiracy to distribute cocaine. In determining whether evidence produced at trial is sufficient to support a conviction, we must decide "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Skillman, 922 F.2d 1370, 1372 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in the original)), cert. dismissed, --- U.S. ----, 112 S.Ct. 353, 116 L.Ed.2d 275 (1991). The government is entitled to all reasonable inferences that might be drawn from the evidence. United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir.1986).

Buelna-Lopez does not dispute the existence of a conspiracy to distribute cocaine. Rather, he maintains that the evidence presented at trial was insufficient to demonstrate his knowledge of the conspiracy.

A conspiracy consists of an agreement to engage in criminal activity coupled with one or more overt acts in furtherance of the conspiracy. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). An agreement may be inferred from the defendant's acts or other circumstantial evidence. Id. Once the existence of the conspiracy is demonstrated, evidence of even a slight connection with the conspiracy is sufficient to establish a defendant's knowing participation in a conspiracy. United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991). Although a defendant's mere proximity to the scene of a crime is insufficient to establish his knowing participation in a conspiracy, seemingly innocent acts, when viewed in their proper context, may support an inference of guilt. Id.

The evidence presented at trial was sufficient to demonstrate Buelna-Lopez's knowing participation in the conspiracy. Romaro testified that he thought he observed someone resembling Buelna-Lopez at Rodarte's apartment on the morning of August 22, 1991. Agent Brown testified that Buelna-Lopez fit the description Romaro gave to him earlier that morning of a man whom Romaro saw at Rodarte's residence and believed to be the source of the cocaine. Agent Brown also testified that Rodarte told him that because he and his source had become frightened after observing some suspicious vehicles near Rodarte's residence, they moved the cocaine from Rodarte's residence to its original storage place. Rodarte told Agent Brown that a dealer named "Juan" agreed to supply him with a kilogram of cocaine. Rodarte reported that he was instructed by Juan to pick up the narcotics at an apartment complex. Romaro testified that when he and Rodarte arrived at the designated apartment complex, they observed Buelna-Lopez looking out the window. As described above, when Buelna-Lopez saw Romaro and Rodarte, he immediately left the apartment and entered Romaro's van while Romaro and Rodarte remained in the vehicle. Romaro further testified that when Buelna-Lopez entered the van with the blue bag, Rodarte told Buelna-Lopez that everything was fine and that they were "going after the money." A rational jury could have inferred from the fact that Buelna-Lopez entered the vehicle without invitation that he had been previously instructed by someone to keep the cocaine in his presence until he received full payment.

Agent Brown testified that in response to his request to "see what it looks like," Buelna-Lopez pointed to the bag which was concealed between the wall of the van and the rear passenger seat. The bag contained a kilogram of cocaine. The jury could have reasonably inferred that Buelna-Lopez concealed the bag from plain view because he did not want to lose control of it without first obtaining the money. This evidence would support a finding that Buelna-Lopez was either the supplier of the cocaine, or a courier whose mission was to ensure that the drugs were not delivered to the purchaser until the money was received. Thus, when viewed as a whole and in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Buelna-Lopez knowingly participated in a conspiracy to distribute cocaine.

III. DENIAL OF SEVERANCE

Buelna-Lopez contends that the district court's denial of his severance motion denied him due process. He offers three arguments in support of this contention. First, Buelna-Lopez argues that he was entitled to a severance because the defenses of entrapment and mere presence are mutually antagonistic. He also claims that he was deprived of a fair trial because Rodarte's counsel acted as a "second prosecutor" in eliciting testimony from a government witness that was manifestly prejudicial to Buelna-Lopez's defense. Third, he asserts that the district court's refusal to grant a severance compromised his trial right to remain silent.

We review the denial of a severance motion for an abuse of discretion. United States v. Tootick, 952 F.2d 1078, 1080 (9th Cir.1991). A denial of a motion for a severance is rarely disturbed on appeal. United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). To establish abuse of discretion, the appellant must meet the very heavy burden of demonstrating that the joint trial "was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial." United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982).

Rule 8(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed.R.Crim.P. 8(b). Generally, defendants who are charged together should be jointly tried. Tootick, 952 F.2d at 1080. This is also the rule in conspiracy cases. Escalante, 637 F.2d at 1201. Joint trials promote efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209-210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). If, however, it "appears that a defendant or the government is prejudiced by a joinder," the court may grant a severance. Fed.R.Crim.P. 14.

Buelna-Lopez contends that we must reverse the district court's denial of...