U.S. v. Umagat
| Citation | 998 F.2d 770 |
| Decision Date | 30 July 1993 |
| Docket Number | 92-10207,Nos. 92-10149,92-10173,92-10190,92-10174,s. 92-10149 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert John UMAGAT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Cassandra Pangelinan BELANGER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Diana M. ROBERTO, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Cassandra Pangelinan BELANGER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Diana M. ROBERTO, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Howard Trapp, Agana, Guam, for defendant-appellant Robert John Umagat.
Jerry E. Hogan, Agana, Guam, for defendant-appellee-cross-appellant Cassandra Pangelinan Belanger.
Kevin J. Fowler, McCully, Lannen, Beggs & Melancon, Agana, Guam, for defendant-appellee-cross-appellant Diana M. Roberto.
Karon V. Johnson, Asst. U.S. Atty., Agana, Guam, for plaintiff-appellant-cross-appellee U.S.
Appeal from the United States District Court for the District of Guam.
Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges.
Robert John Umagat, Cassandra Pangelinan Belanger, and Diana M. Roberto appeal on sufficiency grounds their convictions for conspiracy to smuggle marijuana. The United States appeals the sentences imposed on Belanger and Roberto. We reverse the convictions of Belanger and Roberto, and affirm those of Umagat. 1
Around August of 1989, Danilo Grantham ("Danny"), who had previously smuggled marijuana from the Philippines into Guam on Danny and Chris travelled to the Philippines to arrange the shipment of drugs to Guam, and returned separately. On Danny's return, Customs officials seized certain of his papers pertaining to the shipment. Concerned, Danny, Chris, and Aguon met with Umagat, who assured them that he could still pass the load through Customs undetected. Customs officials, however, alerted by the seized documents, placed the shipment under surveillance when it arrived. Umagat warned Aguon that the drugs had been discovered and suggested that the venture be abandoned. The Granthams and Aguon ignored Umagat's advice. Without his participation, they formulated a plan to recover the marijuana despite the surveillance. Aguon contacted appellant Diana Roberto, an employee of Dollar Rent-a-Car, and appellant Cassandra Belanger, Roberto's supervisor at Dollar Rent-a-Car. He told them that a friend of his had "some marijuana" arriving soon and that he needed an untraceable car. Belanger and Roberto agreed to furnish him with a car from Dollar in exchange for a small share of the marijuana or other compensation. The plan to retrieve the marijuana failed and the appellants were arrested.
at least three occasions, began making arrangements to import to Guam approximately three hundred pounds of marijuana, hidden inside several pieces of furniture. He asked Christopher Grantham ("Chris"), his half-brother and co-conspirator, who had assisted him with two previous transactions, to help in locating a compliant officer in the Customs Service. Chris in turn sought the assistance of Michael Aguon, the manager of the nightclub where he was employed. Aguon had not participated in any previous transactions but had agreed to participate in the planned importation. He introduced Chris to appellant Robert Umagat, a boyhood friend, who was at that time the only narcotics dog handler on Guam. For reasons unrelated to the Granthams' activities, Umagat had previously trained his dog not to alert to the odor of marijuana. However, he had had no prior contact with the Granthams or the ongoing conspiracy. After two meetings, including one with Danny, Umagat agreed to let the marijuana pass through Customs undetected. He was promised a quarter share of the proceeds, which he expected would amount to approximately $20,000
The indictment under which the appellants and their co-defendants were charged alleged a conspiracy to import marijuana, and a conspiracy to distribute it, that encompassed all four shipments of marijuana, not simply the last, unsuccessful transaction. In all, it alleged that at least fifteen people were involved in the two overall conspiracies. Umagat was found guilty of both conspiracies, and was sentenced to eighty-eight months in custody. Belanger and Roberto, who were not charged with the conspiracy to import, were found guilty of the conspiracy to distribute, and were sentenced to two months of home detention and three years of probation. 2
The appellants do not dispute the existence of an overall conspiracy to import marijuana, encompassing all four shipments, and an overall conspiracy to distribute that contraband. They contend, rather, that insufficient evidence exists to prove beyond a reasonable doubt the necessary slight connection between themselves and the conspiracies. United States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir.1991).
" 'One may join a conspiracy already formed and in existence, and be bound by all that has gone before in the conspiracy, even if unknown to him.' " United States v. Bibbero, 749 F.2d 581, 588 (9th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985) (quoting United States v. Knight, 416 F.2d 1181, 1184 (9th Cir.1969)). However, a defendant cannot be legally bound to a conspiracy unless his understanding with co-conspirators "was of sufficient scope to warrant the conclusion that he embraced the common purpose of the conspiracy." Id. at 587. Indicative of a defendant's understanding are the degree of his knowledge, actual or constructive, of the scope of the overall conspiracy, and the extent to which his own benefits depended on the success of the entire venture. Id. at 588; United States v. Brown, 912 F.2d 1040, 1043 (9th Cir.1990). We now consider the appellants' actions in light of this test. 3
The unlawful acts of Belanger and Roberto consisted of procuring an untraceable car for Aguon on a single occasion, in connection with the final shipment of marijuana. Yet Belanger and Roberto were charged with, and convicted of, the entire conspiracy to distribute marijuana--a conspiracy that encompassed the three prior distributions as well as the final, failed attempt. Neither the evidence adduced at trial nor the scope of their own actions suggests either that they possessed actual knowledge of the breadth of the overall conspiracy, or that we may attribute such knowledge to them.
The evidence presented at trial showed that Belanger and Roberto knew that Aguon and "a friend" of his would soon be smuggling marijuana to Guam. Their connection to the scheme was through Aguon, who had not himself been involved in prior transactions conducted by the enterprise. They furnished Aguon with a car with which he was to pick up the marijuana. Nothing indicates that either Belanger or Roberto expected her involvement in the enterprise to be ongoing. Furthermore, no evidence presented at trial suggests that their receipt of the ounce or so of marijuana, or the other compensation they expected to realize from the transaction, depended on the success of the entire overall smuggling operation, which encompassed all four transactions.
We find United States v. Brown, supra, controlling. There, several borrowers concealed from a bank the fact that they were alter egos for a man to whom the bank had already loaned the maximum permissible under federal regulations. 912 F.2d at 1041. Brown participated in one loan transaction on behalf of the true borrower. Nothing showed that he knew of other such transactions, or that he knew that there was an overall plan at all. We reversed his conviction for the overall conspiracy to defraud, stating, Id. at 1044. Our reasoning in Brown applies with equal force here. Belanger and Roberto cannot be held criminally responsible for an overall conspiracy to distribute marijuana of which they were ignorant and upon which their own benefits did not depend.
Nor may we infer the awareness of Belanger and Roberto of the entire operation from the level of their participation in the final transaction. It is true that in Bibbero, supra, we imputed knowledge to a defendant of an entire, overall marijuana-smuggling conspiracy, even though the defendant joined the ongoing enterprise after its inception, and participated only in the last few transactions. The differences between Bibbero and this case, however, are striking. Bibbero was involved in more than one shipment of marijuana, making it less likely that he had no actual knowledge of the overall operation. More important, Bibbero did not simply participate in the marijuana-smuggling enterprise. Once he joined the operation, he became its prime mover. Virtually every act performed in furtherance of the transactions in which he was involved was performed by him, at his direction, or under his supervision. He travelled to Thailand to buy the drugs, putting up half the cost of their purchase. He readied the loads for shipment to the United States. When the boat carrying the marijuana developed engine trouble near Japan, he advanced $25,000 to repair it. He ensured that one of his friends was hired to help off-load the drugs so that he could more closely supervise the off-loading. He oversaw an off-loading operation. After a successful importation, he attended a victory party. 749 F.2d at 582-83. We have...
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