U.S. v. Iriarte-Ortega, IRIARTE-ORTEG

• Decision Date: 09 May 1997
• Docket Number: IRIARTE-ORTEG,No. 96-50151,D,96-50151
• Citation: 113 F.3d 1022
• Parties: 97 Cal. Daily Op. Serv. 3467, 97 Daily Journal D.A.R. 5973 UNITED STATES of America, Plaintiff-Appellee, v. Alfredoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1022

113 F.3d 1022

97 Cal. Daily Op. Serv. 3467, 97 Daily Journal

D.A.R. 5973

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo IRIARTE-ORTEGA, Defendant-Appellant.

No. 96-50151.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 6, 1997.

Decided May 9, 1997.

Rebecca P. Jones, Semel & Feldman, San Diego, California, for defendant-appellant Alfredo Iriarte-Ortega.

Bruce R. Castetter and Steve Miller, Assistant United States Attorneys, San Diego, California, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Southern District of California, William B. Enright, District Judge, Presiding. D.C. No. CR-95-01406-1-WBE.

Before BOOCHEVER, KOZINSKI and JOHN T. NOONAN, Jr., Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

Alfredo Iriarte-Ortega appeals his conviction and sentence for conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 960, 963, and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.

On August 17, 1995, Border Patrol Agent Martin Miles was flying over the Mexican border near Jacumba, California when he noticed two pickup trucks parked behind a house in Mexico. About an hour after the agent first noticed them, the trucks drove to the border, forded a ditch and continued north, driving in tandem. After the trucks made their way to a freeway, Miles radioed ground units to stop them.

One truck, driven by Iriarte, held 156 packages containing over a thousand pounds of marijuana. The other, driven by Mario Uriarte-Gonzales, contained 143 packages of marijuana, weighing 950 pounds. The marijuana in both trucks was similarly packaged in silver foil and plastic wrap. The two drivers were charged with conspiracy as well as the underlying offenses of possession and importation with intent to distribute. Uriarte pleaded guilty; Iriarte was convicted by a jury of the conspiracy charges and sentenced to fifteen years.

I

To establish a drug conspiracy, the government must prove: 1) an agreement to accomplish an illegal objective; and 2) the intent to commit the underlying offense. United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir.1995). ¹ Iriarte claims there was insufficient evidence to support his conspiracy conviction. ² Specifically, he contends, the government failed to prove an agreement.

The agreement is the essence of the crime. It not only constitutes the actus reus, but is "all-important ..., for one must look to the nature of the agreement to decide ... whether the requisite mental state is also present." 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.4(d), at 70-71 (1986). However, "[b]ecause most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement." Id. at 71; see also Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947) ("Secrecy and concealment are essential features of successful conspiracy."). Instead, most conspiracy convictions are based on circumstantial evidence, and we allow juries to draw inferences as to the existence of an agreement from the defendants' conduct. We have thus recognized that "[a] conspiracy may be proven by circumstantial evidence that the defendants acted together with a common goal." United States v. Disla, 805 F.2d 1340, 1348 (9th Cir.1986); see also United States v. Bibbero, 749 F.2d 581, 587 (9th Cir.1984).

Coordination between conspirators is strong circumstantial proof of agreement; as the degree of coordination between conspirators rises, the likelihood that their actions were driven by an agreement increases. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.1989); see also Mesa-Farias, 53 F.3d at 260 ("Agreement may be shown by evidence of coordinated activity between the defendant and the alleged coconspirators."); United States v. Hegwood, 977 F.2d 492, 497 (9th Cir.1992) ("The high degree of coordination between [defendants] is sufficient evidence from which a jury could find agreement."). Moreover, a jury may infer the existence of an agreement " 'if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.' " United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir.1980) (quoting United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir.1977)).

In this case, a jury could reasonably have inferred a conspiratorial agreement from the defendants' long list of coordinated actions. Two pickup trucks of identical make and model--one gray with a white camper shell one white with a gray shell--met behind a house south of the border. They drove from behind the house to a location near the border, where they stopped and waited together. Someone placed a ramp across a ditch positioned to prevent vehicles from crossing, and the trucks proceeded into the United States, the white truck preceding the gray truck by about a minute. The trucks took a dirt road to Highway 80 eastbound; proceeded north on Carrizo road; and turned onto Interstate 8 westbound. They contained roughly equal amounts of marijuana in packages as uniform as McDonald's french fries. The interchangeable camper shells were secured with matching hardware.

Iriarte seems to argue that it was all just a big coincidence, but the jury was entitled to conclude otherwise. Indeed, it's hard to see what other conclusion a rational jury might have reached. There was, therefore, more than sufficient evidence to support Iriarte's conspiracy conviction. ³

II

Iriarte claims the district court erred in allowing the government to bolster the credibility of two of its witnesses with inadmissible hearsay. The bolstering was a response to defense efforts to show that the agents had exaggerated the strength of the case at pre-trial proceedings and were, therefore, unreliable. We review decisions to admit evidence for abuse of discretion. United States v. Collicott, 92 F.3d 973, 978 (9th Cir.1996).

The first witness was Agent Miles, who described his surveillance of the trucks. On cross-examination, defense counsel focused on an apparent discrepancy between Miles' pre-trial hearing testimony and his account at trial. On redirect, the court asked Miles: "Do you recall testifying to any different statement of facts than you testified here today?" Miles--over Iriarte's objection--answered, "No, your honor."

The second witness was DEA Agent Donald Martin, who testified about the price of marijuana and the m.o. of drug smuggling organizations. ⁴ On cross-examination, defense counsel attempted to show that Martin testified falsely to the grand jury. For instance, Martin told the grand jury that Miles kept the gray pickup in sight from the time it crossed the border to the time it was apprehended by the Border Patrol; at trial, however, Miles testified to losing sight of the trucks on two occasions. On redirect, the government had Martin read--over Iriarte's objection--the portion of his incident report summarizing what Miles had told him.

Iriarte argues that Miles' statement "No, your honor," in response to the question whether he had testified differently before, should have been excluded as hearsay; ⁵ likewise for Martin's reading of the incident report. ⁶ The government argues that the testimony was properly admitted under Rule 801(d)(1)(B), which permits the introduction of prior consistent statements. ⁷

We need not decide this question, however, because any error was harmless. Iriarte attempted to show that the two witnesses had shaded their pre-trial testimony, and thus were not to be believed. ⁸ But if the witnesses were impeached at all, it was only slightly. The effect of the rehabilitation evidence (Miles' statement and Martin's reading of the report) was negligible at best. The testimony put no new facts before the jury, ⁹ nor did it have a significant effect on the credibility of either witness. Whatever we may think of the government's bolstering, it could not possibly have changed the outcome of the trial.

AFFIRMED.

1 Both the government and Iriarte include a third element: an overt act in furtherance of the conspiracy. See United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987). It is clear, however, that there is no overt act requirement for a violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute). See United States v. Shabani, 513 U.S. 10, 14-16, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994) ("In order to establish a violation of 21 U.S.C. § 846, the Government need not prove the commission of any overt acts in...