U.S. v. Yerli
| Decision Date | 12 September 1988 |
| Docket Number | No. 86-5293,86-5293 |
| Citation | 857 F.2d 1480 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Sami YERLI, aka: Sami Shefik Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before FLETCHER, CANBY and O'SCANNLAIN, Circuit Judges.
Appellant Sami Yerli appeals from his conviction of one count of conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 846, and two counts of unlawful use of a communication facility in violation of 21 U.S.C. Sec. 843(b). We affirm.
Yerli's challenge to the sufficiency of the evidence to connect him to a drug conspiracy requires us to examine the facts in some detail. In October of 1983, Ali Akensel attended his brother Billy's wedding in Los Angeles, California. Billy Akensel was marrying the sister of the co-defendant in this case, Pablo Penuela. During the course of Ali Akensel's visit to Los Angeles, he had several conversations with Penuela. Penuela told Akensel that he was in the narcotics business and could supply Akensel with any quantity of narcotics. Akensel requested and received a loan from Penuela for $15,000.
In December of 1985, Akensel was arrested in New York by the Nassau County Police Department and charged with possession of narcotics. Following his arrest, Akensel began cooperating with the police department and became a confidential informant.
In January of 1986, Penuela contacted Akensel and asked him to repay the $15,000 loan. Akensel told Penuela that he did not have the money but had a friend who was interested in buying cocaine. Akensel called the Nassau County police officers, who installed a recording device on Akensel's telephone. In the next couple of months, Penuela and Akensel had numerous telephone conversations regarding a possible cocaine deal.
In February of 1986, Akensel made several phone calls to appellant Sami Yerli, who was living in Los Angeles. Yerli and Akensel were from the same area of Cyprus and were family friends. It was in the course of these conversations that the subject of the cocaine deal between Penuela and Akensel first came up. Yerli told Akensel that he could get him the cocaine for a better price than what Penuela was offering, and agreed to call him back with more information.
Akensel and Yerli had three more telephone conversations on April 24th and 25th, 1986. Akensel tape recorded all of these conversations. In the first phone conversation, Yerli agreed to get the cocaine from Penuela and quoted a price of $27,000-$30,000 per kilogram. He also said that with a week's notice he could have the cocaine ready for pickup. In the second call, Yerli told Akensel that he had contacted Penuela, and that Penuela and Yerli would call Akensel later that night. Yerli said that he had "made" Penuela agree to forgive Akensel's loan, and that Penuela would go down to $31,000 per kilogram. Yerli also told Akensel to insist that Yerli be present for the deal. The third call consisted for the most part of a discussion between Penuela and Akensel, after which Yerli got on the line and assured Akensel that everything was fine and not to worry.
After a number of other phone conversations between Akensel and Penuela, Akensel flew to New York with three officers from the Nassau County Police Department to buy the five kilograms of cocaine.
On May 2, 1986, undercover officers arrested co-defendants Penuela and Jose Rodrigo Vasquez after Vasquez showed the undercover officer approximately five kilograms of cocaine. Vasquez consented to a search of his apartment, where police officers discovered approximately 30 kilograms of cocaine and other related evidence. The officers arrested co-defendant Gustavo Arias Gomez, who was present at the apartment.
On June 6, 1986, officers arrested Yerli. Yerli subsequently waived his Miranda rights, and told the officers that he had set up the cocaine deal and that it would never have gone through without him.
Yerli and the other defendants were indicted on June 17, 1986. The indictment charged Yerli with conspiracy to possess cocaine with the intent to distribute (Count 1), possession of cocaine with intent to distribute (Counts 12 and 13), and using a telephone to facilitate a narcotics transaction (Counts 6, 7 and 9). Yerli pled not guilty to all of the charges, and on July 24th his trial commenced.
On July 31, 1986, Yerli moved for a judgment of acquittal after the government's case in chief. The court granted Yerli's motion as to Count 6, but denied his motion as to the remaining counts.
On August 14, 1986, Yerli was found guilty on Counts 1, 7 and 9, and not guilty on Counts 12 and 13. Yerli was sentenced on October 7, 1986, to a $10,000 fine and a term of six years for Count 1 and two years for each of Counts 7 and 9, these last two to run concurrently with each other and with Count 1. The court also ordered Yerli to pay a special assessment of $50.00 per count for a total of $150.00. Yerli timely appeals.
In determining whether a jury verdict rests on sufficient evidence, the reviewing court must view the evidence in the light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original), reh'g denied, 444 U.S. 890 (1979); Glasser v. United States, 315 U.S. 60 80 (1942). It is the function of the jury to determine the credibility of witnesses, to resolve evidentiary conflicts, and to draw reasonable inferences from proven facts. We must assume that the jury resolved all such matters in a manner which would support the verdict. United States v. Barham, 466 F.2d 1138, 1140 (9th Cir.1972); and United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir.1969).
Yerli first contends that there is insufficient evidence to sustain his conviction for conspiracy under 21 U.S.C. Sec. 846. In order to establish the existence of a conspiracy, the government must show an agreement to accomplish an illegal objective coupled with one or more acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying offense. See United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983); United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir.1980). It is not necessary to prove direct contact between co-conspirators or the existence of a formal agreement. The agreement may be inferred from the acts of the parties and other circumstantial evidence indicating concert of action for accomplishment of a common illegal purpose. United States v. Everett, 692 F.2d 596, 601 (9th Cir.1982), cert. denied, 460 U.S. 1051 (1983); Melchor-Lopez, 627 F.2d 886, 891.
The evidence regarding Yerli's connection to the conspiracy consists of the three tape-recorded telephone calls that took place between Yerli and Akensel in April of 1986. Yerli contends that these calls do not evidence any agreement between him and Penuela. He argues that no such agreement was ever reached, because although he made several proposals to Penuela, none was accepted.
In the case of United States v. Melchor-Lopez, we held that a defendant could not be convicted of conspiracy when the parties involved made several proposals but failed to reach a final agreement. A significant factor of the case, however, was that the defendant's own objections to various proposals prevented agreement. In the present case, by contrast, Yerli indicated a willingness to go through with the deal at all times, although some of his proposals were rejected or ignored by the other parties. Agreement on the overall objective of the conspiracy was not precluded. Melchor-Lopez is therefore not controlling. See United States v. Sharif, 817 F.2d 1375, 1378 (9th Cir.1987).
The evidence is admittedly thin in this case, but sufficient that a reasonable juror could conclude beyond a reasonable doubt that Yerli was involved in the conspiracy. "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser, 315 U.S. at 80. Once the existence of a conspiracy is shown, "evidence establishing beyond a reasonable doubt a connection of a defendant with a conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy." Becker, 720 F.2d at 1035 (emphasis in original).
Here the jury heard tape recorded conversations in which Yerli discussed such particulars as prices and delivery dates with Akensel, and indicated that he was in close contact with Penuela and had dealt with Penuela before. Based on this and other evidence, a rational jury could find that Yerli implicitly had agreed with Penuela to further the sale of cocaine to Akensel. Viewing the evidence in the light most favorable to the government, we find that there was sufficient evidence to sustain Yerli's conviction for conspiracy.
Yerli also challenges the sufficiency of the evidence with regard to his conviction under 21 U.S.C. Sec. 843(b). In order to prove a violation under 21 U.S.C. Sec. 843(b), the Government must show (1) knowing or intentional (2) use of a communication facility (3) to aid or facilitate the felonious distribution of narcotics. United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir.1983). The facilitation element is proved by a showing that the telephone call comes within the common meaning of facilitate, that is, to make easier...
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