U.S. v. Quinones, 93-10751
| Decision Date | 12 December 1994 |
| Docket Number | No. 93-10751,93-10751 |
| Citation | 46 F.3d 1148 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel QUINONES, Defendant-Appellant. . Argued and Submitted: |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: WALLACE, Chief Circuit Judge, PREGERSON and BEEZER, Circuit Judges.
Miguel Angel Quinones appeals his jury conviction for conspiring to distribute and possess cocaine with intent to distribute (21 U.S.C. Sec. 846), possession of cocaine with intent to distribute (18 U.S.C. Sec. 924(c)(1)), and use of a firearm during a drug trafficking crime (18 U.S.C. Sec. 924(c)(1)). We affirm.
This case involves three distinct challenges to Quinones' conviction. Because the facts necessary to assess each claim are distinct, we recite them separately below.
This case arises from a cocaine buy that Detective Canuto Garza, an undercover officer in the Tulare County Sheriff's Office, arranged with Quinones' co-defendant, Eduardo Corrales. Detective Garza set up a five-kilogram cocaine buy that was to take place at Corrales' house. Corrales told Garza that he had contacted a friend who lived in Tracy, California who was going to supply him with some cocaine.
On the morning of October 22, 1992, Corrales spoke to Garza and said "his people" were on their way. Early that afternoon, Corrales again called Garza and said that "his people" had arrived with the cocaine. At that same time, police watching Corrales' house noted that Gustavo Nunez's white Buick and Salvador Sanchez's brown Mazda were parked out front.
Nunez had called Corrales earlier that day and told him that everything was ready and that he would bring the cocaine to the house. Nunez arrived at Corrales' house early in the afternoon. Sanchez and Quinones arrived separately in Sanchez's car, and introduced themselves to Corrales. Corrales invited all three men into his home and offered them a beer while they waited for Garza to arrive in Merced.
While waiting in Corrales' house, Nunez explained that Sanchez was in charge of the merchandise. Quinones and Nunez were both present when Nunez made this statement. Also, again in the presence of Nunez and Quinones, Corrales discussed the possibility of acquiring more cocaine from Sanchez for future deals.
The deal was originally supposed to take place at Corrales' house. But late in the afternoon, Detective Garza called Corrales and asked him to meet him at the K-Mart parking lot in Merced. Corrales drove to the parking lot with his wife Georgette in their red Geo. Once they arrived, Detective Garza asked Corrales to bring one kilogram of cocaine to the parking lot. Corrales sent Georgette back to the house to retrieve it.
Georgette returned to the house where she told Nunez, Sanchez and Quinones that Corrales had asked her to bring a sample of the drug to the parking lot. One of the men then went into the house and retrieved the toolbox that Georgette had earlier seen Nunez unload from his car.
Nunez got into the red Geo with Georgette and the toolbox. Georgette then saw Quinones and Sanchez get into Sanchez's brown Mazda. The brown car, in which Quinones was a passenger, closely followed the red car from Corrales' house to the area near the K-Mart parking lot. When they arrived at the area near the K-Mart, the red car went into the parking lot. The brown car drove past the parking lot, turned around, and drove past the parking lot again.
After Georgette and Nunez arrived, Garza asked Nunez if he had the kilogram of cocaine. Nunez said that it was in a toolbox behind the seat. Garza opened the toolbox, saw the cocaine, and gave the arrest signal.
After the arrest signal came over the radio, a surveillance unit pursued the brown Mazda, which drove backwards down 14th Street through an intersection at approximately 25-30 miles per hour. The car then made a U-turn and drove down onto Highway 99, failing to stop at stop signs along the way. The brown Mazda drove down Highway 99, first in the fast lane going 50-55 miles an hour, then in the slow lane at 45-50 miles an hour. The passenger threw a paper bag out of the window when the car was in the fast lane, and then threw a handgun and another object out of the window when the car moved into the slow lane.
Traffic slowed at a controlled intersection in Livingston, California. Traffic had been stopped at this intersection to clear the way for the pursuit by the surveillance unit. The Mazda left the highway at Turlock, slowed rapidly and drove into a restaurant parking lot where the occupants were arrested.
Other officers searched the side of Highway 99 where the firearms were thrown from the Mazda. They found a Beretta, 9mm semi-automatic which was fully loaded with the hammer down. The officers also found a .22 semi-automatic handgun, also loaded.
Quinones claims that his convictions rest on insufficient evidence. We will uphold a conviction "if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Penagos, 823 F.2d 346 (9th Cir. 1986).
Quinones asserts that the evidence was insufficient as to two different charges for which he was convicted, the conspiracy to distribute cocaine charge, as well as the charge of possession of cocaine with intent to distribute.
To prove a conspiracy, the government must show an agreement to accomplish an illegal objective and the requisite intent necessary to commit the underlying offense. United States v. Shabani, 115 S. Ct. 382 (1994). Quinones does not dispute that a conspiracy to distribute and possess cocaine existed. Rather, he contends that the government failed to prove that he was even slightly connected to it.
Once the existence of the conspiracy is shown, "evidence establishing a defendant's slight connection with the conspiracy beyond a reasonable doubt is sufficient to convict the defendant of knowing participation in the conspiracy." United States v. Garza, 980 F.2d 546, 552 (9th Cir. 1992).
The government contends that Quinones' connection to the conspiracy was as a protector for Nunez, the supplier of the cocaine. According to the government, the evidence established that Quinones and Sanchez were involved in counter-surveillance activities. The government notes further that counter-surveillance activities qualify as acts in furtherance of a conspiracy. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991).
In United States v. Mares, we explained that counter-surveillance is most useful "'at times or places where the risk of detection and capture is greatest, i.e., at meetings between buyers and sellers and during actual transfer of drugs to buyers."' Id. at 459, quoting United States v. Penagos, 823 F.2d 346, 349 (9th Cir. 1987). The court found the fact that the appellants in Mares were present and watching at the time when the drugs were to be exchanged, "precisely the time that counter-surveillance is most helpful and most common," to be probative of their role as look-outs. Id.
The appellants' mere presence in Mares was not enough, in itself, to establish that they knew of the conspiracy and were acting in furtherance of it. The court found sufficient evidence, however, by considering the additional evidence that the appellants "spoke at some length with the drug courier minutes before the transaction was to occur, circled the site numerous times, ... and appeared to be watching the deal." Id.
In the present case, the jury heard similar testimony. Quinones was a passenger in a car that followed closely behind the car containing the drugs. Nunez, the supplier of the drugs, told Georgette, his fellow passenger in the front car, that Quinones and Sanchez would be following them. In addition, Sanchez drove past the K-Mart parking lot, turned around and was heading back towards the parking lot again at the time when police began pursuing Sanchez and Quinones. Moreover, Sanchez led the police on a lengthy chase, and a police witness testified that he saw Quinones himself throw two guns out the car window.
In Mares we found that "while no individual fact or inference is sufficient to establish the appellants' connection to the conspiracy, the facts within the record, when considered in their totality, create a rather persuasive case for guilt." Id. at 458. We believe that the evidence recited above supports the same conclusion.
Quinones argues that his case is controlled by United States v. Ramos-Rascon, 8 F.3d 704 (9th Cir. 1993), a recent case where we reversed after finding insufficient evidence to support a finding that appellants participated in a conspiracy. Quinones is correct that the facts in Ramos-Rascon are in many ways similar to the case at hand.
The appellants in Ramos-Rascon rode in a truck that followed closely behind the truck transporting the drugs. The appellants looked alertly around as they drove. Their truck overshot the entrance of the parking lot of the hotel where the deal was to take place, re-entered the lot at another entrance, and drove back through the lot, parking near the undercover agents' room. The appellants sat on a wall outside the hotel, "chatting desultorily," and watching passing cars intently, as the deal was consummated inside. One of the appellants tried to run away when pursued. Ramos-Rascon, 8 F.3d at 704.
The government's theory in Ramos-Rascon was that the appellants were engaged in counter-surveillance. But the Ramos-Rascon opinion notes that although the government's own witnesses...
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