U.S. v. Delgado

• Decision Date: 10 February 2004
• Docket Number: No. 02-30363.,02-30363.
• Citation: 357 F.3d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar Acosta DELGADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

357 F.3d 1061

UNITED STATES of America, Plaintiff-Appellee, v. Oscar Acosta DELGADO, Defendant-Appellant.

No. 02-30363.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2003.

Filed February 10, 2004.

COPYRIGHT MATERIAL OMITTED

John Lulejian, Assistant United States Attorney, Seattle, WA, for the appellee.

Beth M. Andrus, CJA, Seattle, WA, for the appellant.

Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, Senior Judge, Presiding. D.C. No. CR-02-05075-JET.

Before BRUNETTI, T.G. NELSON, and GRABER, Circuit Judges.

BRUNETTI, Circuit Judge:

Oscar Acosta Delgado appeals his conviction of and sentence for conspiracy to possess methamphetamine with intent to distribute, 21 U.S.C. §§ 841 and 846 (2003) (Count 1), and possession of methamphetamine with intent to distribute, 21 U.S.C. § 841 and 18 U.S.C. § 2 (2003) (Count 2).

FACTS AND PROCEEDINGS BELOW

On January 15, 2002, law enforcement officers served a search warrant on the residence of Jeffrey Shauers in an unincorporated area near Bremerton, Washington; there, they discovered large quantities of drugs and cash. Shauers was arrested and, immediately thereafter, agreed to cooperate with law enforcement. Shauers told agents that over the past eight months he had sold approximately 25 to 30 pounds of methamphetamine with most of his supply over the prior six weeks coming from two men he knew as "Pedichinny" and "Jose." At trial, Shauers identified Delgado as "Jose," and Delgado's friend Juan Vasquez-Santiago conceded that he went by the nickname "Pedichinny."

Shauers stated that he met with Delgado and Vasquez-Santiago approximately six times over the course of the prior six weeks to conduct drug transactions, during which they all freely discussed their drug dealings. Shauers testified also that, when he asked Vasquez-Santiago for a reduced price, Vasquez-Santiago would ask Jose for permission. Moreover, Shauers testified that all three men had used drugs recreationally together on several occasions.

On January 16, under the supervision of law enforcement, Shauers placed several tape-recorded calls to Vasquez-Santiago inquiring about drug supplies. The transcript of one of the calls shows that Vasquez-Santiago had to "check with [his] friend, Jose" about quantity. Vasquez-Santiago ultimately agreed to bring two to four pounds of methamphetamine to Shauers' home that evening. One agent testified that Shauers had indicated that he expected Delgado to drive Vasquez-Santiago to the scheduled drug deal in a blue Chevy Blazer. Prior to Vasquez-Santiago's arrival at Shauers' home that evening, law enforcement agents installed video surveillance equipment in Shauers' garage for the purpose of recording the drug transaction.

When the blue Blazer approached Shauers' residence, the driver initially passed Shauers' driveway, made a U-turn, and then pulled in. Delgado got out of the vehicle and stood for several minutes in front of it while Vasquez-Santiago went into Shauers' garage. According to the video recording, while Delgado was standing out front, Vasquez-Santiago and Shauers chatted in the garage.

Delgado was then observed approaching the garage for a moment and then returning to the vehicle, where he turned on the interior dome light and appeared to be working on something in the back. Delgado then brought a Wal-Mart bag, which was wrapped tightly in electrical tape, into the garage; moments later, Delgado walked out to the car once more and was almost immediately thereafter arrested.

In the Blazer, agents found a vehicle registration in Delgado's name and, in the back of the vehicle, they found two rolls of electrical tape. Agents also discovered that there was a panel removed from the car's interior disclosing an empty compartment; several screws and a matching screwdriver were also found near the compartment. Agents testified that the compartment smelled strongly of chemicals.

Vasquez-Santiago testified at trial that, although he and Delgado were friends, Vasquez-Santiago had run into Delgado completely coincidentally in a store on January 16. Vasquez-Santiago stated that his car had broken down and that when he ran into Delgado, he asked Delgado if he could borrow Delgado's car. Delgado agreed, and Vasquez-Santiago took the car alone out to a logging road to pick up drugs from a third party. Vasquez-Santiago hid the drugs in the Blazer's hidden compartment using a screwdriver Vasquez-Santiago found in the car. Vasquez-Santiago then returned to town, met Delgado at a store, and asked Delgado if he would drive Vasquez-Santiago to a friend's house in Olympia. Again, Delgado agreed, and they drove together to Shauers' residence. Vasquez-Santiago maintained throughout his testimony that Delgado had never participated in any drug transactions with Vasquez-Santiago or Shauers and that Delgado knew nothing of the drug transaction on the night in question.

Delgado confirmed Vasquez-Santiago's rendition of the events, stating that he had no plan to meet Vasquez-Santiago that night. Delgado also testified that he did not know why Vasquez-Santiago needed a ride or where they were going. He stated further that he did not know what the bag contained; he testified that he merely grabbed the bag by the handles and handed it to Vasquez-Santiago upon Vasquez-Santiago's request. Delgado maintained throughout trial that he had never participated in drug transactions in the past and had not met Shauers until the night of the arrest. Delgado conceded, however, that at some point at Shauers' residence, it occurred to him that Vasquez-Santiago was doing something wrong.

Although Vasquez-Santiago pled guilty, Delgado opted to stand trial for possession of methamphetamine with intent to distribute and conspiracy to possess methamphetamine with intent to distribute. After two days of testimony, a jury returned a guilty verdict on each count. This timely appeal followed.

DISCUSSION

1. Jury Instructions

Delgado challenges the district court's Instruction Number 9, which defined when an act is done "knowingly"; among other aspects, the instruction specifically relieved the Government of its burden to prove that the defendant "knew that his acts or omissions were unlawful." Delgado contends that because (1) the crime of possession requires that the defendant knowingly possess a controlled substance, and (2) the crime of conspiracy requires that the defendant agree to commit an unlawful act, the court erred in relieving the Government of its burden to prove that Delgado knew that his acts were unlawful.

Because Delgado did not object to the jury instructions, we review their adequacy for plain error. United States v. Matsumaru, 244 F.3d 1092, 1102 (9th Cir. 2001). Plain error requires an "`(1) error, (2) that is plain, and (3) that affects substantial rights.'" Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). If these three conditions are met, we may exercise our discretion to notice the error but only if it "(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citing Johnson, 520 U.S. at 467, 117 S.Ct. 1544).

Delgado was tried for violations of 21 U.S.C. §§ 841 and 846 relating to the possession of methamphetamine with intent to distribute and conspiracy to possess methamphetamine with intent to distribute, respectively. Section 841(a)(1) provides: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance...." To properly convict for this crime, therefore, the Government must prove beyond a reasonable doubt that the defendant (1) knowingly, (2) possessed an illegal drug, (3) with the intent to distribute it. United States v. Ocampo, 937 F.2d 485, 488 (9th Cir.1991). Possession may be either actual or constructive, with the latter concept encompassing a defendant's power to exercise dominion and control over the narcotics as well as his or her participation in a "joint venture" to possess a controlled substance. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986).

A defendant also may be guilty of this provision if he or she aids or abets another in its commission; a conviction of aiding and abetting requires the Government to prove four elements:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988). Indeed, "[t]o aid and abet another to commit a crime, the government must show not only that the defendant participated in the criminal venture, but that he intentionally assisted the venture's illegal purpose." Disla, 805 F.2d at 1352 (citation and internal quotation marks omitted).

Section 846, in turn, provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846. A conspiracy is "`an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.'" Disla, 805 F.2d at 1348 (quoting United States v. Bibbero, 749 F.2d 581, 587 (9th Cir.1984)). Moreover, once a conspiracy exists, evidence establishing beyond a reasonable doubt a defendant's connection with the conspiracy, even though the connection is slight, is sufficient...