U.S. v. Pemberton

Decision Date03 August 1988
Docket NumberNo. 87-1060,87-1060
Citation853 F.2d 730
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert B. PEMBERTON, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael H. Metzger, Sausalito, Cal., for defendant-appellant.

John Stephen Graham, and Dorothy Nash Holmes, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

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

Before SKOPIL, NELSON and BEEZER, * Circuit Judges.

PER CURIAM:

Robert Pemberton appeals his conviction on one count of conspiracy to possess more than 50 kilos of marijuana for sale and on three counts of using a phone to facilitate a narcotics offense. See 21 U.S.C. Secs. 846 and 843(b) (1982). He argues that there was insufficient evidence to convict him of conspiracy, that the district judge erred in instructing the jury, and that his conviction should be void because of alleged outrageous conduct on the part of the government. We conclude that sufficient evidence existed for the jury to find Pemberton participated in a conspiracy, that the jury instructions fairly stated the law and did not prejudice Pemberton's case, and that the government's conduct was not outrageous. Therefore, we affirm.

I

A government undercover operative, Bob Clark, was investigating a money-laundering scheme. He had told a third party, Sunny Collins, that he was planning to smuggle a shipment of marijuana into the United States. The shipment was a fiction. Sunny Collins arranged for Clark to meet with appellant Pemberton, who the government suspected to be a long-time drug dealer involved in the laundering operation. On June 5, 1986 Clark and Pemberton met at a restaurant to discuss a possible venture to import marijuana into northern California. They compared stories of their exploits in the drug trade, including their previous incarcerations in Mexico on drug charges. Later, it was Pemberton who first broached the subject of Clark's bringing in a load of marijuana.

After dinner Clark and Pemberton went to Pemberton's residence where they spent the next several hours discussing drug activities in general, their previous smuggling experiences, and Pemberton's participation with Clark in selling and distributing the fictional marijuana. Clark indicated he would need someone's assistance in the operation, and Pemberton indicated he was willing to supply "soldiers and trucks" and that he "had a few stash spots that were available that he had used before that were secure, and he definitely had a market that this marijuana could be entered into." The discussions then became more specific with respect to Pemberton's involvement. In exchange for one-third of the profits, Pemberton suggested, he could put together personnel, trucking, storage, and a market for the marijuana.

In the following days Pemberton sought out William Guinn as a potential ally in the storage and sale of the marijuana. Guinn expressed interest. In response to Pemberton's request for help in storing the drugs, Guinn agreed to check out potential storage places. He concluded that a large garage on his own property would suffice. Guinn then purchased garbage bags, smaller plastic baggies, and 2 X 12 pieces of lumber; he assembled tables in the garage and brought in scales for use in weighing, inspecting, and grading the marijuana.

Intermittent meetings and phone calls among the parties established that they were ready to receive the marijuana. On July 9, 1986 Clark and Pemberton met at a hotel, then drove to a shopping center where U.S. Customs agents had loaded a motor home with previously seized marijuana. Pemberton inspected the marijuana, and the parties discussed its quality and the likely profits it would bring. Clark requested "front money" from Pemberton to pay his "crew," but Pemberton said he could not get any cash until the drugs were sold. The understanding to that point had been that Clark would place the marijuana with Pemberton and Guinn on credit.

Pemberton left and went to meet with Guinn. They went to a nearby bar, where they received a phone call from Clark. Pemberton argued with Clark over the front money and made an arrangement to meet at Guinn's residence. Clark did not show. The last contact between the parties was a telephone conversation on July 13, 1986, in which Clark stated he had lost half his load, and Pemberton responded that he no longer wanted a part in the deal.

II

Pemberton argues that there was insufficient evidence to convict him of conspiracy. He contends that Clark as a government informant could not be a co-conspirator, and that there never was an agreement between Pemberton and Guinn sufficient to form a conspiracy. Pemberton argues that Guinn testified he would not agree to help store and sell the marijuana until he saw and tested it. The government counters that Guinn had agreed to participate, that he had made all the preparations to store the marijuana, and that he merely wanted to examine the drugs to determine how much they would bring upon sale.

We will uphold a conviction if the evidence, when viewed in the light most favorable to the government, would support a finding by any rational trier of fact that the defendant was guilty of each essential element of the crime charged. United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987). The elements of conspiracy are 1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986). The agreement need not be explicit, and it may be inferred from circumstantial evidence. See United States v. Thomas, 586 F.2d 123, 132 (9th Cir.1978).

Contesting the existence of an agreement between him and Guinn, Pemberton places great reliance on United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir.1980). In that case we reversed convictions on the ground that appellants had agreed only to negotiate about a purchase, not to make a purchase. 627 F.2d at 892. Pemberton likens this case to Melchor-Lopez by asserting that Guinn would not agree to take part in the operation until he had inspected the marijuana.

The government relies on two more recent cases, United States v. Sharif, 817 F.2d 1375 (9th Cir.1987), and United States v. Kiriki, 756 F.2d 1449 (9th Cir.1985), to argue that preparations for carrying out the conspiracy are sufficient to show the agreement. The appellant in Sharif, like Pemberton here, relied heavily on Melchor-Lopez. We distinguished Melchor-Lopez as follows:

The defendant extrapolates from this case a general rule that as a matter of law there can be no conspiracy without proof of an agreement not merely to carry out an illegal objective but also on such terms as price, quantity, and time, place, and manner of delivery. Our decisions, however, do not create such a requirement, for we have held proof of conspiracy sufficient where the actual buyer and seller never agreed to such terms. We have recognized the existence of a conspiracy between intermediaries where the principal was a government agent and the contemplated transaction never transpired. In this light, Melchor-Lopez must be examined with some care.

817 F.2d at 1378 (citations omitted). In Kiriki the appellant argued along the same lines. Finding that an agreement did exist, we stated that the parties "did have at least some of those specifics worked out in their agreement to traffic in stolen jewelry, ... and purchasers in mind who would know they were buying stolen merchandise and who were prepared to take the jewelry to Japan and sell it." 756 F.2d at 1453-54.

Like the parties in Sharif and Kiriki, Pemberton and Guinn had worked out specifics, such as where to store and package the marijuana, and had purchasers in mind. Although Guinn did testify that he wanted to inspect the marijuana, the government's explanation that this was only to estimate what the drugs would bring upon final sale supports a jury finding that Guinn was in the conspiracy proper: after all, Guinn, in preparing to receive the marijuana, already had set up a processing plant in his garage. In Melchor-Lopez, by contrast, the appellant had "firmly refused to commit himself" to participate in the conspiracy until money for the drugs was delivered in advance, which did not occur. 627 F.2d at 891.

Considered in the light most favorable to the prosecution, the evidence would support any rational juror in finding that Guinn already had made up his mind to take part in the conspiracy, that he had done so believing the "stuff" would not be "garbage" based on his prior drug relationships with Pemberton, and that he only wished to inspect the drugs to get a feel for their value. Pemberton and Guinn entered into an agreement and hence into the conspiracy.

III

Pemberton next argues error in the conspiracy charge as submitted and error in that the charge submitted deviated from the one discussed in conference. Both arguments stem from the way the district judge phrased one sentence in the jury instruction. The judge charged the jury to consider "were they in agreement that, if the circumstances properly presented themselves, they would commit a criminal offense" (emphasis on added phrase). Pemberton claims he believed the judge would give an instruction that there had to be an "actual agreement to commit a criminal act." He contends not only that the added phrase resulted in an inaccurate statement of the law, but that the deviation undermined his defense. He argues prejudice from the instruction because he had presented a "morally guilty, but legally innocent" defense; according to Pemberton, the added phrase would cause the jury to convict for bad character even in the absence of an agreement.

Fed.R.Crim.P. 30 states:

[A]ny party...

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