U.S. v. O'Connor, ESPINOSA-VELE
| Decision Date | 12 July 1984 |
| Docket Number | Nos. 82-1566,D,CASTANO-MEDIN,82-1573,ESPINOSA-VELE,s. 82-1566 |
| Citation | 737 F.2d 814 |
| Parties | 15 Fed. R. Evid. Serv. 2021 UNITED STATES of America, Plaintiff-Appellee, v. Michael O'CONNOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario Leonefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis Eduardo CASTANEDA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Libardoefendant-Appellant. to 82-1575. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Negatu Molla, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Fredric F. Kay, Asst. Federal Public Defender, Alfred S. Donau III, Tucson, Ariz., for defendants-appellants.
Appeal from the United States District Court for the District of Arizona.
Before HUG and CANBY, Circuit Judges and BURNS, * District Judge.
Michael O'Connor, Mario Espinosa, Eduardo Castaneda, and Jose Castano appeal from judgments entered upon jury verdicts convicting them of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. They principally argue (1) that the undercover activities directed against them by the government constitute outrageous government conduct, (2) that the government introduced insufficient evidence to support a finding of possession under 21 U.S.C. Sec. 841(a)(1), and (3) that the trial court committed several important evidentiary errors. We find no grounds for reversal and accordingly affirm all of the convictions.
In 1980, in Panama, defendant Mario Espinosa, a citizen of Colombia, introduced Sonia Atala, a citizen of Bolivia, to Octavio Mejia, a citizen of Colombia. Subsequently, Atala, Mejia, and defendant Eduardo Castaneda, another citizen of Colombia, met in Colombia, where Mejia gave Atala jewels worth approximately $600,000. Mejia instructed Atala to trade the jewels in Bolivia for cocaine. The contemplated transaction aborted in late 1980 when Atala's Bolivian supplier kept the jewels without providing cocaine in return. Because Espinosa had introduced Atala to him, Mejia held Espinosa responsible for the loss he suffered.
Espinosa sent Atala a telegram in November 1981 which requested that Atala telephone him immediately. Atala had in the meantime become an informant for the Drug Enforcement Agency (DEA) and was residing in the United States. With DEA agents present, Atala called Espinosa as requested. Thereafter, in January and February 1982, Atala had a series of phone conversations with Espinosa and defendant Castaneda, whom Espinosa suggested she call. In each phone conversation, the defendants requested that Atala repay her "debt" to Mejia and expressed an interest in meeting with her to discuss repayment.
At some point during the January and February series of phone calls, DEA agents decided to use Atala's debt to Mejia as a basis for an undercover "sting." The DEA plan was that Atala would lure Espinosa, Castaneda, and Mejia to Tucson, where Atala now resided, with a promise of repaying her debt in cocaine. Then the DEA agents would arrest the defendants as they took possession of the government's cocaine.
DEA's plan proceeded as scheduled, although ultimately Mejia was never lured to Tucson. Atala offered to repay her debt with cocaine. Negotiations settled the value of Atala's debt at $1,200,000, which, the parties agreed, would be repaid with 30 kilograms of cocaine. Espinosa and Castaneda came to Tucson to accept the cocaine. They brought with them as assistants defendants O'Connor and Castano. DEA agents videotaped the delivery and then arrested all four defendants. 1
The Supreme Court has indicated that there may be situations "in which the conduct of law enforcement officials is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-1643, 36 L.Ed.2d 366 (1973); accord Hampton v. United States, 425 U.S. 484, 492-93, 96 S.Ct. 1646, 1651-1652, 48 L.Ed.2d 113 (1976) (Powell, J. concurring). We have stated that prosecution is barred " 'when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.' " United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)). The defendants argue that the government violated due process when its agents offered Espinosa and Castaneda cocaine in exchange for settlement of Atala's debt.
We need not rule on the due process implications of government overtures to persons the government has no reason to target, for that is not our case. Here the DEA agents knew that they were offering cocaine in payment of a debt that originally had called for payment in cocaine. They were offering it to the same principals. The transaction originally planned had been a large one, for $600,000 worth of cocaine. The DEA had nothing to do with its inception. It is true that the original transaction was to have been completed in Colombia and Bolivia, and that the actions of the DEA agents caused the aborted transaction to be completed within the United States. But the nature of the original transaction and the manner of its going awry do not suggest innocent behavior, nor is there any doubt that the defendants knew that their ultimate receipt of the cocaine in the United States was unlawful. This is not a situation where "government agents engineer and direct the criminal enterprise from start to finish." United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). The capacity of these defendants to engage in cocaine transactions did not depend wholly on the assistance of the government. See United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983). Under these circumstances, 2 we simply cannot conclude that the action of the DEA agents in offering cocaine to defendants Espinosa and Castaneda was " 'so grossly shocking and so outrageous as to violate the universal sense of justice.' " United States v. Ramirez, 710 F.2d at 539 (quoting United States v. Ryan, 548 F.2d at 789.)
Since we have concluded that there was no outrageous government conduct toward defendants Espinosa and Castaneda, it follows even more clearly that there was none toward defendants O'Connor and Castano, who came along to Tucson to assist in the receipt of the cocaine. At the time of the government's first contact with O'Connor and Castano, there was every reason to believe that those defendants were engaged at least in a conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. It was therefore not improper for the DEA agents to deliver cocaine to them.
The defendants contend that there existed insufficient evidence to support a finding of possession under 21 U.S.C. Sec. 841(a)(1). The defendants argue that no rational trier of fact could have found possession because the extent of the government surveillance during the delivery of the cocaine prevented the defendants from exercising dominion and control over the narcotic.
Putting the surveillance issue to one side, there can be no doubt that a rational jury could have found possession. The delivery of the cocaine took about two hours because Espinosa and Castaneda insisted that O'Connor and Castano evaluate the purity of each of the thirty one-kilo bags of cocaine. During that period, Espinosa and Castaneda controlled what tests were performed on the cocaine. Later, they supervised the secreting of the cocaine in their vehicle. Therefore, a rational jury could have found that, because Espinosa and Castaneda exercised " 'dominion and control ... so as to give power of disposal of the drug,' " they had constructive possession of the cocaine. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.1980) (quoting Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962)), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980). O'Connor and Castano performed the tests on the cocaine and consequently handled the cocaine extensively during the two-hour delivery. That exercise of control suffices to support a finding of actual possession. See United States v. Vomero, 567 F.2d 1315, 1316 (5th Cir.1978) (). Moreover, because the district court gave an aiding and abetting instruction, both O'Conner and Castano could have been found to have possessed the cocaine as aiders and abetters. See 18 U.S.C. Sec. 2.
We agree with the defendants that there was extensive government surveillance during the cocaine delivery and that there was scant, if any, chance that the government-supplied cocaine would find its way into distribution. We disagree, however, that this fact should have any relevance to the possession issue. Congress enacted 21 U.S.C. Sec. 841(a)(1) to reduce the distribution of narcotics in the United States. The defendants' narrow interpretation of "possession" conflicts with the congressional purpose because it would erect an impediment to the government's conduct of undercover operations. Therefore, we conclude, as have other circuits, see United States v. Jones, 676 F.2d 327, 332 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982); United States v. Martorano, 709 F.2d 863, 870-71 (3d Cir.1983), that the presence or absence of surveillance does not bear on the question of possession. 3
Because we reject the defendants' surveillance argument, we conclude that there existed sufficient evidence to...
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