U.S. v. Talavera-Negrete
| Decision Date | 15 April 1992 |
| Docket Number | DOMINGUEZ-GUILLE,D,Nos. 91-50453,TALAVERA-NEGRET,91-50484,s. 91-50453 |
| 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NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Jose de Jesusefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before GOODWIN, WILLIAM A. NORRIS and NOONAN, Circuit Judges.
Talavera-Negrete and Dominguez-Guillen appeal their convictions for conspiracy to import marijuana, conspiracy to possess with intent to distribute marijuana, importation of marijuana, and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), 846, 457, 960, and 963, and 18 U.S.C. § 2. Both defendants challenge the sufficiency of the evidence in support of their convictions. Finding that the government presented ample evidence to support the conspiracy, possession, and importation charges, we affirm the convictions.
Defendants were arrested in the early morning hours of August 21, 1991, near the Imperial Beach Border Patrol Station. The station is located two miles north of the U.S.-Mexican border and is responsible for a five-mile stretch of the border extending from the San Ysidro port of entry and Interstate 5 west to the Pacific Ocean. The area is notorious for alien traffic and drug smuggling.
That night Border Patrol Agent Michael Gregg, using an infrared night vision scope mounted on the roof of the station, was surveying the area where the defendants were arrested. The infrared scope detects heat emitted by objects, including humans, and allows the scope operator to see the outline or "heat signature" of the object. The scope does not enable the operator to distinguish the clothing, facial characteristics, or measurements of individuals whose heat signatures are observed. Agent Gregg testified that he was familiar with the operation of the scope and that he had had over 150-200 hours of experience operating it. He also testified that he was familiar with the area south of the station and had travelled over it numerous times.
Agent Gregg began observing the area shortly after midnight on August 21. He saw no one in the area where defendants were apprehended until approximately 1:00 a.m. At that time, he observed three individuals walking west to east through an area known as the "17 ditch." Agent Gregg saw that the second and third individuals appeared to be carrying large, heavy bundles. Suspecting that the bundles might contain contraband, Agent Gregg radioed the sighting to other agents in the area. The three individuals frequently stopped, squatted down and waited. Agent Gregg occasionally lost sight of the individuals due to the thick vegetation along the edge of the 17 ditch. Over a period of about 35 minutes, he observed the individuals travel approximately 500 yards.
Agent Gregg observed the three individuals leave the 17 ditch, cross an area of open ground, and enter a baseball field that was also south of the station. The first individual walked north past the dugout area and out of Agent Gregg's field of vision. He or she was never located. The second and third individuals entered the dugout. Through holes in the side of the dugout, Agent Gregg was able to detect their heat signatures as they moved about. By this time, border patrol agents were approaching the baseball field from the north, northwest and southeast. Agent Gregg subsequently observed the two individuals leave the dugout without the bundles and run south across the ball diamond toward a brushy area.
At this point, Agent Gregg lost sight of the suspects, but he directed the other agents to the brushy area where he had last seen them. There an agent found defendant Talavera-Negrete lying face-down in the brush. Meanwhile, another agent searched the dugout and found a blue backpack and a green duffel bag, which together contained approximately 87 pounds of marijuana packaged in plastic. Another bundle containing a hand gun was found a few feet from the entrance to the dugout. Shortly thereafter, another border patrol agent discovered defendant Dominguez-Guillen lying face-down beneath some tumbleweeds in the brushy area not far from where Talavera-Negrete was arrested.
The defendants were indicted on five counts: (I) conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952, 960 and 963; (II) importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960; (III) conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (IV) possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (V) use of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). The defendants waived their jury rights and were tried together before Judge Keep on January 8-11, 1991. Each was convicted on Counts I-IV. The district court granted the defendants' motions for acquittal on Count V.
On April 8, 1991, the district court sentenced Talavera-Negrete and Dominguez-Guillen to concurrent 27-month sentences on each of the four counts, two years of supervised release, and a $200 special assessment. Talavera-Negrete and Dominguez-Guillen timely appealed.
Defendants appeal the district court's denial of their motions for a judgment of acquittal under Fed.R.Crim.P. 29. Decisions on motions for judgment of acquittal are reviewed to determine whether, viewing the evidence in the light most favorable to the government, there was substantial relevant evidence produced from which the trier reasonably could have found the defendant guilty beyond a reasonable doubt. United States v. Hunt, 893 F.2d 1028, 1032 (9th Cir.1990), amended, 925 F.2d 1191 (9th Cir.), cert. denied, 112 S.Ct. 107 (1991). Under this standard, the government is entitled to all reasonable inferences that may be drawn from the evidence. United States v. Disla, 805 F.2d 1340, 1348 (9th Cir.1986).
To sustain the conspiracy convictions, the government must establish that the defendants knowingly agreed to accomplish some illegal objective, committed one or more acts in furtherance of their illegal purpose, and had the requisite intent necessary to carry out the substantive offenses. See United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987). The existence of an agreement may be inferred entirely from circumstantial evidence, such as acts done in furtherance of a shared criminal purpose or, as we sometimes have...
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