U.S. v. Ramirez, s. 98-50289

• Decision Date: 14 May 1999
• Docket Number: Nos. 98-50289,98-50295,s. 98-50289
• Parties: 99 Cal. Daily Op. Serv. 3526, 1999 Daily Journal D.A.R. 4531 UNITED STATES of America, Plaintiff-Appellee, v. Alvaro Daniel RAMIREZ, and Arthur Emmith Smith, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1179

176 F.3d 1179

99 Cal. Daily Op. Serv. 3526, 1999 Daily

Journal D.A.R. 4531

UNITED STATES of America, Plaintiff-Appellee, v. Alvaro Daniel RAMIREZ, and Arthur Emmith Smith, Jr. Defendants-Appellants.

Nos. 98-50289, 98-50295.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 1998.

Filed May 14, 1999.

Katherine Kimball, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant Ramirez.

Charles E. Duff, Jr., Vista, California, for defendant-appellant Smith.

Julie F. Puleo, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California; Barry Ted Moskowitz, District Judge, Presiding. D.C. No. 97-CR-2617-BTM.

Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and LOVELL, District Judge. ^*

LOVELL, District Judge:

Alvaro Daniel Ramirez and Arthur Emmith Smith, Jr., appeal their jury convictions for conspiracy to import marijuana (21 U.S.C. §§ 952, 960 and 963), importation of marijuana (21 U.S.C. §§ 952 and 960), and possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1)), and aiding and abetting (18 U.S.C. § 2). Appellant Ramirez contends that the district court erred by admitting prejudicial Rule 404(b) evidence, other irrelevant evidence, and by refusing to grant a mistrial for improper argument by the prosecutor. Appellant Smith contends that there was insufficient evidence to support his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm as to Ramirez and reverse as to Smith.

FACTUAL BACKGROUND

On September 14, 1997, Alvaro Ramirez drove a rented 1996 pickup truck carrying 46.4 pounds of marijuana in the spare tire into the United States from Mexico at the Calexico, California, Port of Entry. The rental contract was signed by James Evans, an alleged unindicted co-conspirator, and Ramirez was listed on the rental contract as an additional driver. Arthur United States Customs agents perceived Ramirez and Smith's behavior to be out of the ordinary: Ramirez appeared to be annoyed by the inspection, and Smith appeared to be exceedingly nervous. When Smith was asked to remove the pickup's ashtray, his hands trembled to such an extent that he was unable to remove the ashtray. There was no detectable odor of marijuana in or about the vehicle. The Customs agents referred the vehicle to a secondary inspection area, where a narcotic detector dog alerted to narcotics in the spare tire.

Smith, Jr., was the only passenger in the vehicle.

DISCUSSION

A. Insufficiency of the Evidence.

Appellant Smith's challenge to the sufficiency of the evidence requires us to consider whether, " 'after 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.' " United States v. Enriquez-Estrada, 999 F.2d 1355, 1358 (9th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). After careful consideration, we conclude that the evidence is not sufficient to support Smith's conviction. Smith was a mere passenger in the Ramirez vehicle, and no evidence presented by the government was sufficient to prove Smith's connection to the conspiracy to import marijuana, his intent to import marijuana, or his dominion and control over the marijuana.

Even if we deem the evidence of Smith's nervousness to reveal his knowledge of the presence of the marijuana in the vehicle, mere knowledge of the presence of contraband, without evidence suggesting a passenger's dominion or control of the contraband, is insufficient to prove possession. United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987). Smith is not connected to the marijuana by any fingerprint evidence. He has no connection to the rental vehicle other than as a mere passenger. No drugs or cash were found on his person. He did not attempt to evade arrest.

The government's reliance on the value of the marijuana is misplaced as to Smith. It may be reasonable to infer that a $37,120 shipment of marijuana would not be entrusted to the driver of the vehicle without the driver's knowledge. See United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997). However, the entrustment theory, when applied to a mere passenger, begs the question whether there was an entrustment.

We conclude that the friendship between Ramirez and Smith (consisting of visiting each other's homes, having dinner, going to movies, traveling to Mexico), without more, is insufficient to connect Smith to the Ramirez-Evans conspiracy. Smith's presence in the vehicle is explained entirely by his friendship with Ramirez, and there is no other evidence to show even a slight connection to the conspiracy. The government has failed to produce evidence that would permit a jury to find beyond a reasonable doubt that Smith's conduct was illegal instead of innocent. See United States v. Bishop, 959 F.2d 820, 831 (9th Cir.1992).

On these facts, no rational trier of fact could find the essential elements of crimes with which Smith was charged.

B. Admissibility of the Evidence and Prosecutorial Misstatement.

Appellant Ramirez claims that the district court erred when it (1) admitted evidence of a prior border crossing, (2) admitted evidence that Ramirez' sister registered title of his cars to her name six days after his arrest, and (3) denied his motion for mistrial based on the government's misstatement during closing argument.

1. Admission of Rule 404(b) Evidence.

Pursuant to Federal Rule of Evidence 404(b), the government introduced The government contends that evidence of a prior border crossing in a vehicle rented by James Evans is relevant and probative in connecting Ramirez to Evans in support of the conspiracy charge. The government cites United States v. Normandeau, 800 F.2d 953 (9th Cir.1986), for the proposition that evidence of prior association of co-conspirators under circumstances similar to the charged offense is admissible as evidence of the conspiracy. The government's position is that the July 1997 border crossing is similar to the prior acts admitted in Normandeau because in neither case were the prior acts shown to be illegal. The July 1997 border crossing is offered as circumstantial evidence of an ongoing conspiracy between Ramirez and Evans to import narcotics into the United States. Although this circumstantial evidence is weak, a repetition of similar border crossings does support the government's contention that an ongoing conspiracy existed between Ramirez and Evans. It is not necessary that the government show that Ramirez actually imported narcotics across the border in July, 1997, for that border crossing to be relevant to an alleged ongoing conspiracy. As in Normandeau, the government presented clear and convincing evidence that the July, 1997, border crossing occurred, that James Evans signed the rental contract, and that Alvaro Ramirez was listed as the designated driver, exactly as was the case in September, 1997, when marijuana was discovered in the vehicle rented by James Evans and driven by Ramirez. Moreover, as in Normandeau, appellant "was free at all times to argue to the jury his point that the evidence merely showed his involvement in a legal ... transaction and proved nothing about prior illicit dealings." Id. at 957.

evidence suggesting that in July, 1997, Ramirez had crossed the border in another vehicle rented by James Evans under a rental contract listing Ramirez as an additional driver. Ramirez contends that this evidence was highly prejudicial and should have been excluded. The trial judge found this evidence to be relevant pursuant to Rule 401 as circumstantial evidence tending to prove an element of the conspiracy-evidence of Ramirez' association and plan with James Evans. Such an evidentiary ruling is...