U.S. v. Medrano

• Decision Date: 27 September 1993
• Docket Number: Nos. 91-50556,91-50616,s. 91-50556
• Citation: 5 F.3d 1214
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector MEDRANO, Defendant-Appellant (Two Cases).
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1214

5 F.3d 1214

UNITED STATES of America, Plaintiff-Appellee, v. Hector MEDRANO, Defendant-Appellant (Two Cases).

Nos. 91-50556, 91-50616.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 1992.

Opinion Filed Feb. 16, 1993.

Opinion Withdrawn Sept. 27, 1993.

Decided Sept. 27, 1993.

Phillip C. Nychay, La Jolla, CA, for defendant-appellant.

George Bennett, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: ALDISERT, ^* CANBY and THOMPSON, Circuit Judges.

ORDER

The government's petition for rehearing in Case No. 91-50616 is granted.

The opinion filed February 16, 1993, 986 F.2d 299, is withdrawn. A new opinion is filed with this order.

OPINION

DAVID R. THOMPSON, Circuit Judge:

Hector Medrano was charged with one count of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. Secs. 846 and 841(a)(1); one count of distribution of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1); and four counts of possession and distribution of ephedrine, a listed precursor chemical, "having reasonable cause to believe that [it] would be used in the manufacture of methamphetamine, in violation of 21 U.S.C. Secs. 841(d)(1) and 802(34)(C)." A jury convicted him on all counts. He was sentenced by United States District Judge Jack E. Tanner to 324 months imprisonment. Medrano appeals his convictions on two of the four counts which charged him with possession and distribution of ephedrine for the manufacture of methamphetamine. ¹ He also appeals his sentence. We have jurisdiction under 28 U.S.C. Sec. 1291. On the two contested counts of conviction, we affirm Medrano's conviction on count five, but reverse his conviction on count six. As to count six, the evidence of his possession was insufficient. We also vacate his sentence and remand to the district court for resentencing.

In a separate jury trial before United States District Judge Howard B. Turrentine, Medrano was convicted of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Judge Turrentine sentenced Medrano to a concurrent 324-month sentence, the same length of sentence imposed by Judge Tanner. Medrano appeals his conviction and sentence. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm Medrano's conviction, but we vacate his sentence and remand for resentencing because he was not afforded the right of allocution before sentencing as required by Federal Rule of Criminal Procedure 32(a)(1)(C). This rule provides that "[b]efore imposing sentence, the court shall ... address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(a)(1)(C).

We turn first to Medrano's two challenged convictions and his sentence in Judge Tanner's court in Case No. 91-50616. These convictions relate to events which occurred on July 12, 1990 (count five) and August 3, 1990 (count six).

Medrano argues the evidence was insufficient to support his convictions on these two counts. In considering this argument, we view the evidence in the "light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Viewed in this light, the facts are as follows.

On July 12, 1990, Medrano met two undercover officers at a restaurant to arrange the purchase of four barrels of ephedrine. He gave one of the officers the keys to his car, and went into the restaurant with the other. The officer with the keys to Medrano's car drove it to a place where the DEA had a stockpile of ephedrine, loaded four barrels of ephedrine into the trunk of the car, closed the trunk, and drove the car back to the restaurant. The officer in the restaurant went out to the car and obtained the keys from the driver. He returned to the restaurant and handed the keys to Medrano. Medrano then went to the car and inspected the barrels of ephedrine in the trunk. Having ascertained that the merchandise had been delivered, Medrano returned to the restaurant and handed the officer a bag containing over $72,000 in cash.

This sequence followed the protocol for Medrano's first two purchases of ephedrine. San Diego Police Detective Chacon, the undercover officer in the restaurant during the third transaction on July 12, 1990, was also involved in the first two transactions. He testified:

Q. On the final two transactions that occurred on July the 12th and on August the 3rd, the protocol was the same except for Medrano was not allowed to leave with the ephedrine; is that correct?

A. I believe on the second time he left with the ephedrine. It was on the third contact [July 12, 1990] that he was not allowed to leave.

* * * * * *

Q. All right. On the third transaction, was it the same situation, though where you would meet him inside, the keys would be exchanged, and the barrels would be put into his vehicle at some other location by the other agents?

A. Same scenario.

Q. And that was the same thing for all three deliveries that you were involved with?

A. Yes.

Medrano contends this testimony provides insufficient evidence to show that the keys to the car were returned to him after the ephedrine had been loaded in the trunk. He argues the testimony merely highlights certain elements of the transaction of July 12, and that it was impermissible for the jury to infer that all of the events were the same as the first two transactions. We disagree. According to the quoted testimony, and viewing it in the light most favorable to the government, a rational jury could have found that the "same scenario" was followed on July 12 as on the two previous occasions--the keys to the car were returned to Medrano when the car was brought back to the restaurant after the ephedrine had been loaded in the trunk.

After Medrano retrieved the keys to the car and paid for the ephedrine, he and the officer left the restaurant. As they did, a group of DEA agents, posing as Mexican federal officers, "arrested" the two undercover officers, seized Medrano's car, the money he had paid to the undercover officer, and the four barrels of ephedrine and drove away with the two undercover officers in tow. Medrano was left standing in the parking lot.

Undeterred, Medrano tried again to buy barrels of ephedrine. On August 3, 1990, he met a DEA informant at another restaurant. Detective Chacon, who had participated in the first three transactions, did not participate in this one. On this occasion, the trunk of the car was loaded with two barrels of ephedrine from the DEA stockpile. When the car was returned to the restaurant, Medrano paid the informant $34,460 in cash. As he left the restaurant he was arrested. There was no evidence from which a reasonable jury could conclude that the keys to the car had been returned to him.

SUFFICIENCY OF THE EVIDENCE

Medrano contends there was insufficient evidence to convict him of possession of either the four barrels of ephedrine involved in the July 12, 1990 transaction charged in count five, or the two barrels involved in the August 3, 1990 transaction charged in count six. In resolving these challenges, we view the evidence in the light most favorable to the government, Jackson, supra, and will affirm if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Mena, 925 F.2d 354, 356 (9th Cir.1991), quoting United States v. Gillock, 886 F.2d 220, 221-22 (9th Cir.1989).

A person has constructive possession of an object if the evidence shows "ownership, dominion or control over the contraband itself or the premises or vehicle in which the contraband is concealed." United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989). Medrano contends on both occasions he relinquished dominion and control of his car to the undercover agents who loaded the ephedrine into the trunk, and he never regained control of the car or the ephedrine.

The evidence shows that Medrano controlled each transaction by arranging the procedure for taking delivery of the ephedrine and that he paid for it. The government contends this is sufficient under two of our decisions to support Medrano's conviction.

The government argues that in Mena, the defendant never touched the contraband, but "cocaine was placed in Mena's van at a prearranged meeting after he showed the DEA agent the money with which he intended to pay for the cocaine," Mena, 925 F.2d at 356. In Shirley, an accomplice testified that he placed firearms in the trunk of a 1973 Dodge and the keys in the ashtray and "Shirley knew where the car and the guns were located," Shirley, 884 F.2d at 1134. In both cases the convictions for possession of contraband were affirmed. See also United States v. O'Connor, 737 F.2d 814, 819 (9th Cir.1984) (affirming a possession conviction even though, because of intense surveillance "there was scant, if any, chance that the government-supplied cocaine would find its way into distribution."), cert. denied, 469 U.S. 1218, 105 S.Ct. 1198, 84 L.Ed.2d 343 (1985).

The cases on which the government relies support Medrano's conviction on count five, the July 12, 1990 transaction. The facts of the August 3, 1990 transaction, however, are different. In that final transaction, Medrano never retrieved the keys to the car and without the keys to the car he did not have access to the ephedrine in the trunk. As to the August 3, 1990 transaction, Mena and Shirley are inapposite.

As other circuits have explained, when a defendant receives the keys to a vehicle or to a place where the contraband is located he has "dominion and control" over the contraband. In United States v. Martorano, 709 F.2d 863, 869 (3d Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983), the court held that the defendant took constructive...