U.S. v. Oropeza

• Citation: 564 F.2d 316
• Decision Date: 08 November 1977
• Docket Number: No. 77-1291,77-1291
• Parties: 2 Fed. R. Evid. Serv. 1170 UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis OROPEZA and Mark James Minton, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 316

564 F.2d 316

2 Fed. R. Evid. Serv. 1170

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis OROPEZA and Mark James Minton, Defendants-Appellants.

No. 77-1291.

United States Court of Appeals, Ninth Circuit.

Nov. 8, 1977.

William J. Tway (argued) of Tway & Rowe, Boise, Idaho, Michael L. Schindele (argued), Boise, Idaho, for defendants-appellants.

Leslie H. Rowe (argued) of Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before DUNIWAY and WRIGHT, Circuit Judges, and BATTIN, District Judge. ^*

I.

EUGENE A. WRIGHT, Circuit Judge:

INTRODUCTION

Oropeza and Minton appeal from convictions under a 16-count indictment for offenses arising from distribution of heroin. The government showed a conspiracy to distribute heroin between appellants and George Alan Heinze from about August 20 to October 15, 1976.

Heinze pleaded guilty to 13 counts and made no challenge to his conviction and sentence. Appellants were tried to a jury and convicted of multiple offenses.

Oropeza was convicted of conspiracy to distribute heroin (count 1), possession of heroin with intent to distribute (counts 4, 8, 11 and 16), and distribution of heroin (counts 5, 9 and 12). He received a ten year sentence on count 1 and five year sentences on each of counts 4, 5, 8, 9, and 11, all running concurrently with the sentence on count 1. In addition, he was given consecutive five year sentences for counts 12 and 16, for a total of 20 years imprisonment.

Minton was convicted of conspiracy (count 1), possession with intent to distribute (count 11), and distribution of heroin (count 12). He was convicted also as an ex-felon in receipt of a firearm (count 14) and acquitted of a charge of carrying a firearm (count 15). Minton received a six year sentence on count 1, three years on count 11 (concurrent with count 1), three years on count 12 (consecutive to count 1), and one year on count 14 (consecutive to other sentences). He faces ten years imprisonment.

Oropeza challenges the sufficiency of the evidence and urges that the offenses of possession and distribution be merged. Minton also challenges the sufficiency of the evidence and asks that we find merger.

Minton contends that the conduct from which his firearms conviction arises is outside the statute's reach. He also alleges that the trial court erred in refusing to admit a hearsay statement exculpating him, in admitting a photograph of a weapon, in refusing to sever his trial from Oropeza's, in allowing a government witness to testify, and in refusing to give a requested instruction.

II. FACTS ¹

A. The August 21 Sale.

Heinze telephoned undercover agent Cornell several times on August 20 and 21, 1976. The two made arrangements for a heroin sale. On August 21, after calling Cornell, Heinze drove to Oropeza's residence. A car registered to Oropeza arrived shortly thereafter. Heinze conversed with the driver who was not positively identified.

Heinze immediately traveled to meet Cornell and they consummated a heroin sale. When Cornell expressed dissatisfaction with the weight of the package, Heinze said he had weighed it at the home of his source, but said that he would check the scales. Heinze indicated that his source was a dealer and that sales of larger quantities could be arranged. The meeting ended about 7:25 p. m. and Heinze returned to Oropeza's home about 8:00 p. m., followed shortly by Oropeza. They conversed and entered the house.

B. The September 1 Sale.

Heinze and Cornell arranged another sale by telephone on August 31 and September 1. Heinze was at Oropeza's residence during the latter call and shortly thereafter Heinze met Cornell and a heroin sale was completed. Heinze returned later to the Oropeza house and Oropeza left shortly after Heinze arrived.

C. The October 15 Transaction.

On October 10 and 15 Heinze and Cornell negotiated for a sale of one pound of heroin. During one telephone conversation between them at 1:05 a. m. on October 15, Heinze told Cornell he was going to call his source. Evidence showed that Heinze called Oropeza's house at 1:07 a. m. Heinze called Cornell again at 1:10 a. m. and said that he could arrange the sale.

At 2:30 a. m. Cornell received another call from Heinze. At this time Heinze's van was at Oropeza's house and a call was made from Oropeza's phone to Cornell at that time. Shortly before noon the same day, Heinze called Cornell yet again. He said a "kid" (meaning Minton) would be along with him at the sale. Cornell objected, but Heinze, nervous because of the quantity of heroin involved, was insistent.

Heinze's van was at Oropeza's house from 9:45 a. m. on October 15 until he and Minton left the house around noon. Minton carried an orange knapsack. Oropeza left the house shortly after the others. After one brief stop, Heinze and Minton parked at a shopping center. Meanwhile, Oropeza arrived in the area and, ostensibly walking his dog, remained a short distance away. It was here that he was later arrested.

Cornell arrived and sat in the passenger seat of the van while Minton lay on a mattress in the rear. Heinze took a package of heroin from the knapsack and handed it to Cornell. Cornell said it felt light. Minton explained how the heroin could be cut to yield at least a pound. Evidence indicated that a book in the knapsack was likely Oropeza's. Cornell started toward his car as though to retrieve the purchase money, but returned to the van and arrested Minton and Heinze.

During the arrest Heinze told Cornell that he was "covered" and at the same time Minton moved his hands. Agents later found a .357 magnum pistol partially covered by a blanket on the mattress where Minton had lain. Minton's fingerprints were not found on the gun.

In a search of Oropeza's house, agents found spare parts and ammunition for a .357 magnum pistol, a quantity of baggies, lactose (a heroin cutting agent), two scales, a quarter ounce of heroin (concealed in a kitchen mitt), and $1,500 cash. The money from the house, as well as that from Oropeza's wallet, did not match marked money used by Cornell in earlier drug purchases.

III. SUFFICIENCY OF THE EVIDENCE

A. Conspiracy.

Conspiracy is established when there 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. United States v. Monroe, 552 F.2d 860 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977).

The government need not show an explicit agreement. Iannelli v. United States, 420 U.S. 770, 777 n.10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Monroe, supra.

The criminal scheme may be inferred from circumstantial evidence, which is as probative as direct evidence. Iannelli v. United States, supra ; United States v. Peterson, 549 F.2d 654, 657 (9th Cir. 1977).

Once a conspiracy is shown, there need be only slight evidence to link the defendant with it. United States v. Turner, 528 F.2d 143 (9th Cir.), cert. denied sub nom. Grimes, et al. v. United States, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975). The slight evidence

. . . must be of the quality which will reasonably support a conclusion that the particular defendant in question wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy.

United States v. Freie, 545 F.2d 1217, 1222 (9th Cir.), cert. denied sub nom. Gangadean v. United States, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976).

In reviewing the trial court's denial of a motion for acquittal the test we apply is the same as that of the trial court. United States v. Kaplan,554 F.2d 958, as amended (9th Cir. 1977); United States v. Leal, 509 F.2d 122 (9th Cir. 1975). Viewing the evidence in the light most favorable to the government, the court must be satisfied that the jurors could reasonably decide that they would not hesitate to act in their own affairs upon factual assumptions as probable as the conclusion that the defendant is guilty. United States v. Kaplan, supra ; United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969).

We apply this test to the appellants' contentions.

1. Oropeza. Oropeza attacks the trial court's refusal to grant his motion for acquittal on count 1. He contends the evidence was insufficient to show an existing conspiracy and his knowledge of and association with it.

Heinze indicated that he obtained heroin from one source. He admitted that he received only a small commission from each sale, the balance going to his source. The evidence clearly indicates existence of a conspiracy to distribute heroin between Heinze and another person at relevant times.

Furthermore, there is more than the requisite "slight evidence" to link Oropeza to the conspiracy. Oropeza knew Heinze and they spoke by telephone while Heinze was negotiating sales with Cornell. Heinze used Oropeza's telephone to set up one sale. Heinze set out from and returned to Oropeza's house before and after heroin sales. That house contained scales and other drug-related paraphernalia as well as spare parts for the .357 magnum pistol. Oropeza's book was in the knapsack with the heroin and he was in the immediate vicinity of the attempted sale on October 15.

There is sufficient evidence from which the jury could conclude that Oropeza participated in the conspiracy.

2. Minton. Minton also asserts error in the trial court's denial of his motion for acquittal on the conspiracy count.

On October 15, he was present at the Oropeza house immediately before the attempted heroin sale. He accompanied Heinze to the rendezvous with Cornell. He was in the rear of the van, near a pistol, during the transaction. When Cornell objected to the weight of the drugs, Minton volunteered his expertise on how the drug could be cut to yield more heroin.

One conspirator is liable for the...