U.S. v. Mincoff

• Decision Date: 31 July 2009
• Docket Number: No. 08-50058.,08-50058.
• Citation: 574 F.3d 1186
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James MINCOFF, aka Jim, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

574 F.3d 1186

UNITED STATES of America, Plaintiff-Appellee, v. James MINCOFF, aka Jim, Defendant-Appellant.

No. 08-50058.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2009.

Filed July 31, 2009.

Charles M. Sevilla, San Diego, CA, for defendant-appellant James Mincoff.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, Todd W. Robinson (on the brief), Assistant United States Attorney, and David D. Leshner, Assistant United States Attorney (at argument), United States Attorney's Office, San Diego, CA, for plaintiff-appellee United States.

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. CR-06-01241-DMS-3.

Before: WILLIAM C. CANBY, JR., JOHNNIE B. RAWLINSON and N. RANDY SMITH, Circuit Judges.

RAWLINSON, Circuit Judge:

Appellant James Mincoff (Mincoff) challenges his conviction and sentence for conspiracy to distribute cocaine, attempt to distribute cocaine, and unlawful use of a communication facility in violation of 21 U.S.C. §§ 841(a)(1), 846, and 843(b).

I. BACKGROUND

Mincoff and Jessie Munoz (Munoz)¹ met through a mutual friend during the late 1990s. Mincoff called Munoz in April or May, 2004, to ask whether Munoz had access to cocaine. Mincoff ordered eight kilograms of cocaine from Munoz. Because Munoz had never dealt cocaine before, he called Kenny Vega (Vega), his "meth connection," to help him obtain the cocaine. Vega was only able to supply Munoz with five kilograms of cocaine rather than the requested eight. Two or three days after Mincoff placed the order, Vega's driver "the Engineer" delivered the cocaine to Munoz's home.

Munoz called Mincoff to inform him that the cocaine had arrived, and Mincoff arrived within the hour to retrieve the drugs. Mincoff and Munoz agreed that Mincoff would take the cocaine to his customer and return with payment, which he did. Once Munoz received the purchase money from Mincoff, he paid Vega's driver. Future transactions between Mincoff and Munoz remained a possibility, provided that Mincoff's buyers returned.

In the course of a different investigation, the government received court authorization to wiretap two of Munoz's cellular telephones. Multiple calls between Munoz and Mincoff were intercepted as a result of these wiretaps.

July 24, 2005 Telephone Call

Mincoff contacted Munoz about a cocaine sale at 2:18 p.m. Mincoff explained, "[m]y one buddy called me, he's gonna be in town this week ... [a]nd he is wondering if we can, uh, put like six of those together." FBI Special Agent Allan Vitkosky testified that this statement "means to attempt to obtain 6 kilograms of cocaine." Munoz also testified that he understood that Mincoff wanted to purchase six kilograms of cocaine on behalf of his buyer. Mincoff guaranteed Munoz that six of the kilograms would be sold, and maybe a seventh as well.

July 25, 2005 Telephone Calls

Munoz called Vega at 1:45 p.m. and asked whether he had been in touch with the Engineer because "[t]hey asked me for six of those things for this week." Munoz and Vega spoke again two minutes later, and Munoz affirmed that "they need 6 of them, maybe 7 but 6 for sure."

July 27, 2005 Telephone Calls

At 9:51 a.m., Mincoff informed Munoz that his "guy's here" and that he wanted to "knock [the transaction] out if not this afternoon, first thing in the morning." At 1:33 p.m., Mincoff pressured Munoz to complete the deal, "[`c]ause these guys got ants in their pants, they're wanting to do it like right now." In a 7:00 p.m. call, Mincoff indicated that "nobody's gonna wait much longer" and that "[t]wo different guys came together and one of them is already bailing." He also said, "[w]e'll do three of them, I mean if uh. I mean I need to try and do them tonight. Like now." In an 8:18 p.m. call, Mincoff instructed Munoz that "we can do three (3) of em right now" and "[c]all me in the morning, I'll be here and I got my guys here right now."

July 28, 2005 Telephone Calls

During a call at 10:40 a.m., Mincoff told Munoz, "my guy is sitting right here and we need those ... [h]e's got the paperwork for three (3), he's ready to roll." Munoz testified that he understood Mincoff to mean that his buyer had the money for three kilograms of cocaine. Munoz also understood that Mincoff was not purchasing the cocaine for his own use, but to fill the order placed by his customer. During a call at 1:28 p.m., Mincoff told Munoz "we're going to miss the boat" because "[t]his guy's got to leave." Mincoff directed Munoz to "lock on one for Tuesday, he's going to come back through ... [j]ust for one (1)." According to Munoz, this portion of the conversation referred to there being "one more guy that wanted 1 kilo left."

Police Detective Barry Sweeney (Sweeney) was performing surveillance on Mincoff's residence on the morning of July 28, 2005. Sweeney noticed an individual exit and reenter the residence. This individual was later identified as David Laverne Lincoln (Lincoln). Lincoln was probably one of Mincoff's buyers, because Mincoff indicated that his buyer was from Northern California, and Lincoln subscribed to a telephone number in Day, a town in the northern half of the state. Additionally, telephone records indicated that there were nine calls between Lincoln and Mincoff on July 27, 2005, which corresponds to the dates that Mincoff discussed the cocaine sale with Munoz.

July 29, 2005 Telephone Call

Vega's friend Shadow contacted Munoz at 12:48 p.m. to ask, "did you still need that or not?" Munoz replied that, "they said not until Tuesday."

August 3, 2005 Telephone Call

The deal appeared to be on between Mincoff and Munoz as long as Munoz's supplier could bring the drugs down from Los Angeles. At 10:39 a.m., Mincoff stated, "Yeah, if they'll bring one down we'll do it."

August 4, 2005 Telephone Calls

At 9:42 a.m., Munoz and Vega discussed whether the Engineer had "anything right now." In a 12:09 p.m. call, Munoz tells Mincoff that he will get back to him by 3:00 or 4:00 p.m. Munoz understood that the deal would take place if he obtained the cocaine. However, Munoz was not able to do so.

II. STANDARDS OF REVIEW

"We review de novo the district court's denial of a motion for judgment of acquittal based on insufficient evidence." United States v. Dearing, 504 F.3d 897, 900 (9th Cir.2007) (citation omitted). "The evidence is sufficient to support a conviction if, 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." Id. (citation, emphasis, and internal quotation marks omitted).

"Where the parties dispute whether the evidence supports a proposed instruction, we review a district court's rejection of the instruction for an abuse of discretion." United States v. Bello-Bahena, 411 F.3d 1083, 1089 (9th Cir.2005) (citation omitted). When there is a "question whether the district court's instructions adequately presented the defendant's theory of the case," the "district court's denial of a proposed jury instruction" is reviewed de novo. United States v. Somsamouth, 352 F.3d 1271, 1274 (9th Cir. 2003) (citations and internal quotation marks omitted).

"The district court's application of the STA[Speedy Trial Act] is reviewed de novo, and its factual findings are reviewed for clear error." United States v. Pete, 525 F.3d 844, 848 n. 3 (9th Cir.2008) (citation omitted).

"We review de novo an asserted Brady/Giglio violation." United States v. Blanco, 392 F.3d 382, 387 (9th Cir.2004) (citation omitted).

"We review a district court's denial of a motion to produce a witness' statement pursuant to the Jencks Act for abuse of discretion." United States v. Nash, 115 F.3d 1431, 1440 (9th Cir.1997) (citation omitted).

"Questions of statutory interpretation are reviewed de novo." United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir.2008) (citation omitted). "We review de novo whether a statute is unconstitutionally vague." United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir.2005) (citation omitted).

III. DISCUSSION

A. Sufficiency of Evidence of Conspiracy

"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. Barragan, 263 F.3d 919, 922 (9th Cir.2001) (citation omitted). The government "can prove the existence of a conspiracy through circumstantial evidence that defendants acted together in pursuit of a common illegal goal." United States v. Bishop, 1 F.3d 910, 911 (9th Cir.1993) (citation omitted). "Express agreement is not required; rather, agreement may be inferred from conduct." United States v. Hegwood, 977 F.2d 492, 497 (9th Cir.1992) (citation omitted).

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that Mincoff entered into a conspiracy to distribute cocaine, rather than merely making or attempting to make a purchase.

1. The 2004 Completed Transaction

Mincoff and Munoz agreed that Mincoff would take the cocaine to his source and return with the money. This type of arrangement is known as "fronting." "Fronting is a sales technique in which some or all of the drugs being sold are provided before payment is required." United States v. Ramirez-Robles 386 F.3d 1234, 1242 n. 2 (9th Cir.2004) (internal quotation marks omitted).

Although we have not specifically commented on the relationship between fronting and conspiracy, other circuits have credited evidence of fronting to establish a distribution conspiracy. In United States v. Pruett, 501 F.3d 976, 985-86 (8th Cir. 2007), vacated on other grounds, ___ U.S. ___, 128 S.Ct. 1473, 170 L.Ed.2d 294 (2008), the Eighth Circuit concluded that a reasonable jury could have found Pruett to be a knowing...