U.S. v. Taren-Palma

• Citation: 997 F.2d 525
• Decision Date: 10 June 1993
• Docket Number: TAREN-PALM,CALDERON-PERE,Nos. 92-10085,92-10110,D,s. 92-10085
• Parties: 37 Fed. R. Evid. Serv. 888 UNITED STATES of America, Plaintiff-Appellee, v. Rubenefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ismaelefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 525

997 F.2d 525

37 Fed. R. Evid. Serv. 888

UNITED STATES of America, Plaintiff-Appellee, v. Ruben TAREN-PALMA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ismael CALDERON-PEREZ, Defendant-Appellant.

Nos. 92-10085, 92-10110.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 2, 1993.

Decided June 10, 1993.

Jared O. Smith, Tempe, AZ, Craig Mehrens, Mehrens & Pearce, Phoenix, AZ, for defendants-appellants.

Peter Jarosz, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FARRIS, POOLE, and WIGGINS, Circuit Judges.

PER CURIAM:

Ruben Taren-Palma appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(ii). Ismael Calderon-Perez appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(ii), and for unlawfully carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

FACTS

On August 2, 1991, Drug Enforcement Administration Special Agent Yvonne Kaminski and Detective Larry Flick of the Phoenix Police Department, acting on information received from a confidential informant, Pat Seely, met with Taren-Palma and Seely at Taren-Palma's apartment in Phoenix, Arizona, to negotiate a cocaine purchase. Seely had met with Taren-Palma on July 31, 1991 and told Taren-Palma about out-of-state friends interested in purchasing ten kilograms of cocaine. Kaminski and Flick were operating undercover and posing as those friends. At the meeting, Kaminski and Flick told Taren-Palma that they were from Omaha, Nebraska and were in Phoenix that day to get a sample of the ten kilograms.

Taren-Palma showed Kaminski and Flick a quarter kilogram package of cocaine and opened it for their inspection. Kaminski and Flick offered to purchase: 1) two ounces immediately, and 2) ten to twelve kilograms later. Taren-Palma, along with two associates, sold Kaminski and Flick the two ounces for $1,500.00.

Kaminski and Flick told Taren-Palma that they would return to Phoenix next Thursday, but would call him the prior Monday to arrange their next purchase and would only consummate the purchase if they could obtain at least ten kilograms. Taren-Palma said he could produce that amount on three days notice and agreed to produce at least ten kilograms at $18,000 per kilogram. Kaminski and Flick tape recorded this meeting, and the tape was admitted at trial.

On August 8, 1991, Seely, Flick and Taren-Palma met at Seely's apartment in Phoenix to consummate the cocaine sale. As promised, Taren-Palma was taken from the apartment and shown the $180,000 Flick had brought to purchase the ten kilograms. The three then went back to Seely's apartment. Taren-Palma told Seely and Flick that it would take approximately 30 minutes to arrange for the delivery of the cocaine. Later that afternoon, Taren-Palma contacted Seely to notify him that the delivery had arrived.

Flick and Seely then went to Seely's apartment to meet Taren-Palma. Flick saw Taren-Palma and Calderon-Perez, who was unknown to Seely and Flick, sitting in front of the apartment. Taren-Palma said that he and Calderon-Perez had been let in the apartment by the manager and that the cocaine was already inside. The four then Flick left the apartment, telling Taren-Palma that he would only bring back $36,000 for the two kilograms. Taren-Palma and Calderon-Perez were then arrested by Phoenix Police officers. A loaded and cocked .38 caliber handgun was found concealed in the back of Calderon-Perez's pants upon his arrest.

                entered the apartment, and Flick retrieved a bag containing only two kilograms of cocaine.   Taren-Palma told Flick that the rest of the cocaine was not far away and that, if Flick gave him the money, it would be delivered.   As Flick simulated testing the cocaine in front of Taren-Palma and Calderon-Perez, Taren-Palma and Calderon-Perez had a conversation in Spanish.   Taren-Palma then told Flick that "he wants you to try it."   Flick was wearing a recording device during this meeting, and certain parts of the conversation were recorded.   At trial, Flick was able to identify Taren-Palma and Calderon-Perez's voices on the tape
                

DISCUSSION

I. TAREN-PALMA

A. Multiple Conspiracies Instruction

Taren-Palma argues that the district court erred in refusing to give a jury instruction concerning multiple conspiracies. We review the district court's determination whether there was a factual basis for giving an instruction for an abuse of discretion and review related issues of law de novo. United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992). If the evidence indicates two or more conspiracies may exist, a multiple conspiracies instruction must be given. United States v. Perry, 550 F.2d 524, 533 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977). However, "[a] trial court must instruct the jury on a defendant's theory of the case only if the evidence sufficiently supports the theory and the theory is supported by law." United States v. Ravel, 930 F.2d 721, 726 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 308, 116 L.Ed.2d 251 (1991) (citations omitted).

Taren-Palma argues that the potential existence of the following conspiracies required the district court to give a multiple conspiracies instruction: (1) a conspiracy among Taren-Palma and his two associates to sell two ounces of cocaine; (2) a conspiracy between Taren-Palma and unknown suppliers to sell ten kilograms of cocaine; and (3) a conspiracy between Taren-Palma and Calderon-Perez to sell the two kilograms of cocaine. Taren-Palma contends these three transactions were parts of separate conspiracies because the sales took place at different times with different people present and with no link shown among the participants.

A mere change in participants and a lapse of time, without more, are insufficient to support a finding of multiple conspiracies. See United States v. Castro, 629 F.2d 456, 465 (7th Cir.1980). Every member of the conspiracy need not know every other member nor be aware of all acts committed in furtherance of the conspiracy. See United States v. Camacho, 528 F.2d 464, 469, 470 (9th Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). Finding multiple conspiracies requires some evidence of separate agreements and purposes. See United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir.1987). There is no evidence in this case that there was any purpose or agreement other than to sell ten kilograms of cocaine. The district court did not abuse its discretion in refusing Taren-Palma's proposed multiple conspiracies instruction.

B. Jury Unanimity

Taren-Palma argues that the district court erred in refusing to instruct the jury: 1) that the government must prove an overt act in furtherance of the conspiracy, and 2) on multiple conspiracies. Taren-Palma suggests that the court's failure to so instruct the jury created the possibility that the jurors convicted him based on different conspiracies rather than the same conspiracy.

Proof of an overt act is necessary under 21 U.S.C. § 846. See Martinez v. Borg, 937 F.2d 422, 425 (9th Cir.1991). The district court failed to instruct the jury that proof of an overt act is necessary for conviction of a drug conspiracy under the statute. We must therefore determine whether the error is harmless. United States v. Baldwin, 987 F.2d 1432, 1438 (9th Cir.1993) (citing Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989)). The error is harmless if no rational jury could have made its findings without also finding the omitted or presumed fact to be true. Martinez, 937 F.2d at 425.

The jury was instructed that it had to find beyond a reasonable doubt that there was an agreement to distribute cocaine. There was no evidence showing an actual agreement. The jury could not have found Taren-Palma guilty of conspiracy under § 846 without inferring an agreement from the evidence presented at trial. See United States v. Thomas, 887 F.2d 1341, 1347-48 (9th Cir.1989) (holding that agreement may be inferred from the defendant's acts pursuant to the scheme, or other circumstantial evidence). The evidence showed that Taren-Palma: 1) attended meetings along with other members of the conspiracy and made telephone calls to set up a drug transaction; 2) provided samples of cocaine along with other members of the conspiracy in connection with setting up a drug transaction; and 3) provided cocaine along with other members of the conspiracy for the primary drug transaction.

The jury necessarily relied on one or more of these overt acts in finding there was an agreement. No rational jury could have convicted Taren-Palma without finding an overt act. The district court's instructional error was harmless beyond a reasonable doubt.

C. Coercive Jury Instructions

Taren-Palma argues that the district court's jury instructions were impermissibly coercive. Taren-Palma did not object. We review for plain error. United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir.1991).

The relevant instructions stated: "After you have reached a unanimous verdict, agreement on a verdict, your foreperson will fill out a form that will be given to you...." The court further cautioned the jury that "you are not to tell anyone, including me, how the jury stands, numerically or otherwise, on the question of guilt of the defendants until after you have reached a unanimous verdict and have been discharged." The court also instructed the jury that "[i]t is important that you attempt to reach a unanimous verdict, but only, of course, if each of you can do so after having made up your own conscientious decision....