U.S. v. Rosales
| Decision Date | 13 February 2008 |
| Docket Number | No. 05-30260.,No. 05-30285.,05-30260.,05-30285. |
| Citation | 516 F.3d 749 |
| Parties | UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Jaime Flores ROSALES, Defendant-Appellant-Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Allen R. Bentley, Seattle, WA, for the defendant-appellant-cross-appellee.
Todd L. Greenberg and Sarah Y. Vogel, Assistant U.S. Attorneys, John McKay, United States Attorney, Seattle, WA, for the plaintiff-appellee-cross-appellant.
Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CR-03-00311-007-MJP.
Before: ALEX KOZINSKI, Chief Judge, RAYMOND C. FISHER, Circuit Judge, and ANDREW J. GUILFORD, District Judge.*
BACKGROUND
This appeal and cross-appeal arise from the conviction of Jaime Flores Rosales ("Rosales") for three drug offenses. After a long jury trial lasting most of June 2004, Rosales was convicted on one count of conspiring to distribute 500 grams or more of cocaine (Count 1), and two counts of possessing cocaine with the intent to distribute (Counts 5 and 6). In the same trial, the jury found that another defendant, co-conspirator Alfonso Allan Brooks ("Brooks"), was guilty of many drug offenses, after his lawyer conceded liability on three of those crimes. See United States v. Brooks, 508 F.3d 1205 (9th Cir. 2007).
Rosales appeals his conviction on only Counts 1 and 5. On. Count 1, he concedes that there was sufficient evidence to find that he was involved in a conspiracy to distribute cocaine. But he argues there was insufficient evidence that he could have reasonably foreseen that the quantity of cocaine involved in the conspiracy would be 500 grams or more. On Count 5, he argues there was insufficient evidence that he possessed cocaine on April 10, 2003, but on Count 6, he concedes that there was sufficient evidence that he possessed cocaine with intent to distribute on April 26 and 27, 2003. The government filed a cross-appeal challenging the district court's decision not to impose a sentencing enhancement under 21 U.S.C. § 841(b)(1)(B).
We conclude that there is sufficient evidence to affirm the convictions on Counts 1 and 5. We also conclude that the district court erred in failing to impose a sentencing enhancement under 21 U.S.C. § 841(b)(1)(B).
Rosales's sufficiency of `the evidence arguments focus on two points. The first, on Count 1, is whether it was reasonably foreseeable to Rosales that 500 grams or more of cocaine would be involved in the conceded conspiracy. The second, on Count 5, is whether a "corner" ("esquina" in Spanish), referenced in the April 10 transaction, was cocaine.
Twice at trial Rosales moved for acquittal under Federal Rule of. Criminal Procedure 29 asserting that there was insufficient evidence to convict, and twice the district court denied the motion. Although we apply a de novo standard when reviewing a decision on a Rule 29 motion, we must affirm the trial court 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 offenses charged beyond a reasonable doubt." United States v. Hinton, 222 F.3d 664, 669 (9th Cir.2000). Viewing the evidence in the light most favorable to the prosecution requires us to "`presume ... that the trier of fact resolved any ... conflict[ing inferences] in favor of the prosecution."' United States v. Johnson, 229 F.3d 891, 894 (9th Cir.2000) (quoting Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion)).
Evidence at trial must be considered as a whole. Trial evidence can be like abundant threads woven into a tapestry. An individual thread may mean very little until the tapestry is completed and a clear image appears beyond any reasonable doubt. Those at trial viewing the nature and quality of the different threads as they are presented are best able to evaluate the final picture. See House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2078, 165 L.Ed.2d 1 (2006) ().
In this trial, many wiretap conversations between men who were undeniably cocaine traffickers were presented, forming the warp in this tapestry's weave. The evidence sufficiently established that these men spoke the language of those engaged in trade, and specifically cocaine trade, using code words to express the key elements of trade: the cocaine, the quality, the quantity, and the price. Threads of otherwise meaningless conversations took on meaning only when tied together as cocaine merchants using code words when talking about their trade. Cf. United States a Griffith, 118 F.3d 318, 321 (5th Cir.1997) ( ).
This conclusion about code words was supported at trial in different ways. A co-conspirator testified that code was used to refer to drugs and money during telephone calls to avoid police detection, and there was expert testimony that drug dealers use code to avoid detection. Rosales concedes that the intercepted conversations "permitted a reasonable inference that the speakers were not discussing the difficulty of finding competent help or defects in certain legal documents, but rather, were using code words to avoid speaking explicitly about drugs." The subjects of "competent help" and "documents" were discussed on April 27. Rosales concedes that "the most striking aspect of the government's proof was the incongruous mixture of terms used in the intercepted calls on April 27th."
These "striking" April 27 conversations provide significant threads in the broader picture of cocaine traffickers plying their trade. This broader picture is relevant to both Counts 1 and 5, so we begin by reviewing the April 27 conversations before analyzing the specifics of Counts 1 and 5. Otherwise incongruous comments on April 27 make sense only when viewed in the context of a complaint about the need to replace low quality cocaine, and efforts to find satisfactory cocaine, with code words used to describe the cocaine and its quality.
The. April 27 exchanges began with Rosales and Manuel Garcia-Trujillo ("Garcia-Trujillo") talking about a "little friend" and exchanging an "old lady" who "doesn't even know how to cook."
. . .
A few minutes later Rosales appeared to be following up on his conversation with Garcia-Trujillo in a telephone call with Brooks. Rosales told Brooks that everything would be fine and that Brooks should call his friend, and Brooks replied that he would call his friend right away. Moments later, there was a call between Brooks and Ronald Harbin ("Harbin") discussing "documents" that "have not been notarized" and were "broke apart." Bricks of cocaine, of course, can be broken apart.
I just, ah ... I want to let you know . . . You know the documents I brought to you over last night?
. . . .
Later on April 27, Rosales told Brooks that they would be able to "exchange it right away," and that Brooks should give the "other one" so that Brooks could fulfill his "commitment." Later that evening Brooks called Saul Ruiz ("Ruiz") and left the message that follows about "documents."
Hey, old man, what's up? How are you doing? Good, or what? Look, old man, ah . . . I'm . . . I'm bringing you the documents over there at 6 pesos and they mark at 75. Is that all right? If anything comes up, I'll be calling you. Ah, I was waiting to solve a situation, and it/he didn't show up. In other words, well, that's where we are. Now if that's all right, or if it's not, then, let me know. I'll try to solve the situation one way or another, OK? So, we have to give a . . . We "have to give some documents at, like I told you, at 6 pesos and they mark at 75 to 80. You see, I mean, well you'll know if they pass the . . . the . . . the indicator test, and let me know. OK. Fine then, son. Take care.
Expert testimony established that for cocaine, the normal purity range at the distribution level is 70 to 80 percent. Thus a juror could infer that cocaine was the merchandise, and its purity was "75 to 80" percent. Rosales concedes that "[t]he jury could reasonably infer that Brooks sought to arrange to have Harbin return poor-quality drugs to him and that Rosales sought to arrange with Garcia-Trujillo to exchange those poor quality drugs for something better." We now review specific evidence concerning Counts 1 and 5 in the context of code being used to talk the language of cocaine trafficking.
Rosales concedes that he was properly...
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