U.S. v. Medina

• Decision Date: 31 July 1991
• Docket Number: Nos. 89-10651,ROJAS-OQUITA,AGUILAR-CORREA,89-10653 and 90-10002,s. 89-10651
• Citation: 940 F.2d 1247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Martinez MEDINA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rodimiro, aka Rody, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Stephen, aka El Grande, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1247

940 F.2d 1247

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Martinez MEDINA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rodimiro ROJAS-OQUITA, aka Rody, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. George Stephen AGUILAR-CORREA, aka El Grande, Defendant-Appellant.

Nos. 89-10651, 89-10653 and 90-10002.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 11, 1991.

Decided July 31, 1991.

Edward H. Laber, Stephen G. Ralls and Sean Bruner, Ralls & Bruner, Michael J. Brady, Tucson, Ariz., for defendants-appellants.

David A. Kern, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Before BRUNETTI and RYMER, Circuit Judges, and WILSON, ^* District Judge.

RYMER, Circuit Judge:

These are three of the appeals arising out of a three-and-a-half-week drug conspiracy trial in Tucson, Arizona in August of 1989. Rodimiro Rojas-Oquita was indicted on 17 counts and convicted on 14. ¹ We vacate his two conspiracy convictions because they are lesser-included offenses of his conviction for engaging in a continuing criminal enterprise and we affirm his remaining counts of conviction. Martinez Medina was convicted on four counts and acquitted on another. ² We affirm his convictions. Aguilar-Correa was convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. Sec. 846. ³ We reverse that conviction because there was insufficient evidence to support it.

I. Sufficiency of the Indictment's Aiding and Abetting Counts

Count 5 charged Rojas-Oquita and Martinez Medina with aiding and abetting the importation of cocaine and count 8 charged them with aiding and abetting the distribution of cocaine. The jury found both defendants guilty on count 5. On count 8, the jury convicted Rojas-Oquita but acquitted Martinez Medina. They challenge the sufficiency of these two counts of the indictment.

The defendants rely on Londono-Gomez v. INS, 699 F.2d 475 (9th Cir.1983), which states that "[b]ecause the aiding and abetting statute does not define a separate offense, 'an indictment under [18 U.S.C. Sec. 2] must be accompanied by an indictment for a substantive offense.' " Id. at 477 (quoting United States v. Cowart, 595 F.2d 1023, 1031 n. 10 (5th Cir.1979)). They read this statement to mean that an indictment for aiding and abetting must also indict a principal.

Such a reading conflicts with the law of our circuit. See United States v. Mehrmanesh, 689 F.2d 822, 835 (9th Cir.1982) ("[defendant's] contention that the indictment was fatally defective because it did not name the principal whom he was charged with aiding and abetting ... is without merit.... [I]dentification of the principal is not an essential element of a conviction for aiding and abetting").

Londono-Gomez merely stands for the proposition that in order sufficiently to charge aiding and abetting under 18 U.S.C. Sec. 2, the count must allege a violation of some substantive statute along with 18 U.S.C. Sec. 2. "There can be no violation of section 2 alone...." Cowart, 595 F.2d at 1031 n. 10 (citing United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970)). An indictment for aiding and abetting may stand alone, so long as it recites the accompanying substantive statute along with Sec. 2 in the same count. That requirement was met in this case: count 5 alleged aiding and abetting the importation of cocaine in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 952(a), 960(a)(1) & 960(b)(2)(B)(ii); count 8 alleged aiding and abetting the distribution of cocaine in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 841(a)(1) & 841(b)(1)(B)(ii)(II). Therefore, counts 5 and 8 of the indictment were sufficient.

II. Sufficiency of the Evidence to Convict Aguilar-Correa

Aguilar-Correa's role in the events leading to this trial occurred in a subplot. He allegedly conspired to kidnap Anthony Vela, one of Rojas-Oquita's dealers, to pressure Vela to pay a cocaine debt of $34,000 owed to Rojas-Oquita. Hector Cotaque-Acosta, not an appellant here, and Aguilar-Correa allegedly kidnapped Vela at Rojas-Oquita's behest to facilitate collection of the drug debt. Aguilar-Correa contends that there was insufficient evidence to convict him of conspiring to distribute cocaine.

In considering a challenge to the sufficiency of the evidence, we decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) (emphasis in original). The essential elements of a conspiracy are: "(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." United States v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir.1988). The government's case against Aguilar-Correa falters on the third element. See generally United States v. Krasovich, 819 F.2d 253, 255 (9th Cir.1987) ("Knowledge of the objective of the conspiracy is an essential element of a conspiracy conviction"); United States v. Vaughn, 797 F.2d 1485, 1492 (9th Cir.1986) ("the evidence must show that [defendant] 'had an intention and agreement to accomplish a specific illegal objective' " (emphasis added)) (quoting United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980)). The relevant substantive offense in this case is distribution of cocaine. There appears to be ample evidence showing that Aguilar-Correa is connected to such a conspiracy by acting, perhaps unwittingly, in furtherance of it, but the government produced no evidence to support an inference that he knew the objective of the conspiracy was the distribution of cocaine.

Taking the evidence in the light most favorable to the government, there is sufficient indication that Aguilar-Correa was involved in some attempt to collect money for Rojas-Oquita. Conspicuously absent from the record, however, is any indication that Aguilar-Correa was aware that drug distribution was the object that this episode was furthering or intended to further. The government points to the transcripts of four telephone conversations. These transcripts show that Aguilar-Correa plotted with Rojas-Oquita to collect a debt and apprised Rojas-Oquita of the progress of his actions on Rojas-Oquita's behalf, but nothing in them supports an inference that the Vela episode had anything to do with the distribution of cocaine. The jury could properly infer that Aguilar-Correa had the intent to commit some sort of illegal objective, but there does not appear to be any evidence that he had the intent to further the illegal objective charged in this indictment. The Supreme Court has warned, " 'Without the knowledge, the intent cannot exist.... Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal.... This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.' " Ingram v. United States, 360 U.S. 672, 680, 79 S.Ct. 1314, 1320, 3 L.Ed.2d 1503, 1509 (1959) (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943)). Aguilar-Correa, though perhaps guilty of some sort of conspiracy, was caught in an impermissible dragnet here because there is insufficient evidence that he had knowledge of the ultimate object of this conspiracy: to distribute cocaine. His conviction cannot stand. ⁴

III. Rojas-Oquita's Continuing Criminal Enterprise Conviction

Rojas-Oquita challenges the sufficiency of the evidence to convict him of engaging in a continuing criminal enterprise (CCE) and objects to the district court's jury instruction on this count. He argues that there is insufficient evidence to establish one of the elements of a CCE: that he engaged in an enterprise "from which [he] obtain[ed] substantial income or resources." 21 U.S.C. Sec. 848(c)(2)(B). He contends that the statute applies only to drug "kingpins" and that evidence showing his involvement in at most $33,000 of drug transactions cannot qualify him as a "kingpin." We disagree with Rojas-Oquita's characterization of the scope of the statute. The statute means what it says and there is no requirement that the government prove that a defendant is a kingpin.

The Supreme Court has stated that the language of the CCE statute "is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers." Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764, 773 (1985). The spectrum of drug dealers ranges from kingpins on the one end to small-time and occasional dealers on the other. In applying the CCE statute, other courts have wisely refrained from establishing a precise definition of what constitutes "substantial" income or resources. See United States v. Losada, 674 F.2d 167, 173 (2d Cir.) ("neither the statute nor the cases establish a minimum amount" required to make statute applicable; Congress would have provided for minimum if it had intended one), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982); United States v. Jeffers, 532 F.2d 1101, 1117 (7th Cir.1976) (no "definite amount of profits" need be proven to obtain CCE conviction), aff'd in part and vacated in part on other grounds, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).

The practical meaning of "substantial income or resources" will normally be a question for the trier of fact and its scope will develop case by case. We recognize that the statute's language should be understood to include extremely large-scale dealers, e.g., United States v. Zavala, 839 F.2d 523, 527 (9th Cir.) (per curiam) (defendant involved in drug conspiracy over several years involving...