USA. v. Valenzuela

• Decision Date: 08 November 2000
• Docket Number: No. 99-10374,D,ALVAREZ-VALENZUEL,99-10374
• Citation: 231 F.3d 1198
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUELefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1198

231 F.3d 1198 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ALVAREZ-VALENZUELA, Defendant-Appellant.

No. 99-10374

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 2, 2000

Filed November 8, 2000

Michael P. Simon, Assistant Federal Public Defender, and Brian I. Rademacher, Office of the Federal Public Defender, Tucson, Arizona, for the defendant-appellant.

Robert Miskell and Christina M. Cabanillas, Assistant U.S. Attorneys, Appellate

Section, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding. D.C. No. CR-99-266-TUC-RCC

Before: Harlington Wood, Jr.,¹ Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

Opinion by Judge Harlington Wood, Jr.;: Dissent by Judge Kleinfeld

WOOD, Circuit Judge:

In June 1999 the grand jury returned an indictment charging defendant-appellant Miguel Alvarez-Valenzuela ("Alvarez") and two co-defendants with conspiracy to import marijuana; importation of marijuana; conspiracy to possess marijuana with intent to distribute; and use, carrying, or possession of a gun in relation to a drug-trafficking crime.² Alvarez and his co-defendants were arrested on January 29, 1999 by Border Patrol agents in the desert near Douglas, Arizona about two miles north of the United States-Mexico border. At the time of their arrest, the men were carrying eighty-three pounds of marijuana. Agents also discovered a .380 caliber pistol on the ground near the three men. In May 1999, Alvarez and co-defendant Francisco Martines-Renteria("Martines") were found guilty by a jury on all counts, but only the firearms charge was seriously contested. The third co-defendant, Rodolfo Bejarano-Ponce ("Bejarano"), pled guilty to all five counts pursuant to a plea agreement and testified as a government witness against Alvarez and Martines. Only Alvarez is involved in this appeal.³ No issue except the gun issue is raised. Alvarez first challenges the sufficiency of the evidence to support the firearms conviction and, second, the district court's response to a jury question regarding a jury instruction based on Pinkerton v. United States , 328 U.S. 640 (1946).

As we begin a review of the first challenge, it would be helpful to resolve our standard of review, which is disputed. Alvarez made a motion to dismiss at the end of the government's case, which the district court denied. His motion was not renewed at the end of trial. The motion was not identified as a motion for judgment of acquittal under Fed. R. Crim. P. 29(a), but the parties have treated it as one. In this situation of non-renewal the government argues that Alvarez has effectively waived his objection, relying on United States v. Kuball, 976 F.2d 529, 531 (9th Cir. 1992). Alvarez relies on United States v. Garcia-Guizar, 160 F.3d 511, 516-17 (9th Cir. 1998), and related cases to support his argument that a de novo standard of review applies.

Motions for acquittal are made pursuant to Rule 29(a), so we shall examine the rule first, but it is of little help in this situation. It provides in relevant part that a judgment of acquittal may be entered after the evidence on either side is closed if the evidence is insufficient to sustain a conviction. The rule does not mention any requirement that a motion made by a defendant at the close of the government's evidence must be renewed at the close of all the evidence or, if not, what effect nonrenewal may have on the standard of review.

After reviewing the cases cited by both parties, we interpret Rule 29(a) to suggest that failure to renew the motion at the end of trial does not mean that it has been waived, but only that a higher standard of review is to be imposed. This court may review an unrenewed motion for judgment of acquittal, but only to prevent a manifest miscarriage of justice, or for plain error. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995); see also Garcia-Guizer, 160 F.3d at 516. The cases of both parties support that interpretation, but the difficulty is in its application, as noted in VizcarraMartinez, 66 F.3d at 1010. The court would be reluctant to sustain a conviction if it could be clearly seen from the record that the evidence was insufficient. See id. at 1010. However, even in a case in which the defendant has made all the proper motions, this court will not reverse in the absence of a clear showing of insufficiency. See id. If any rational trier of fact could have found the evidence sufficient, we must affirm. See id. The court in Vizcarra-Martinez could not envision a case "in which the result would be different because of the application of one rather than the other of the standards of review." Id. That court escaped having to determine whether there may be any practical difference between the two standards because it found that the usual standard, which is applied when all appropriate motions are made, had been satisfied. See id.

There is another aspect of the non-renewal of the motion for acquittal raised by Alvarez. He claims, relying on United States v. Palmer, 3 F.3d 300, 304 (9th Cir. 1993), and United States v. Pennington, 20 F.3d 593, 597 n.2 (5th Cir. 1994), that if the record suggests that at the time the original motion was denied it would be futile to raise it again, it need not be renewed. The government points out that Palmer is inapposite because it concerned a party's failure to renew a pretrial motion under an evidentiary rule. We turn then to the Fifth Circuit's decision in Pennington, a sufficiency-of-the evidence case in which the defendants did not renew their motions for acquittal at the close of all the evidence. The Fifth Circuit held that the defendants had adequately preserved their objection despite the fact that their motions for acquittal were not renewed at the conclusion of the defense evidence, because the actions of the district court rendered the renewal of the motions an empty ritual. See Pennington , 20 F.3d at 597 n.2.

The record in the present case reveals that, at the close of the government's case, there was actually no motion made for acquittal on the basis of insufficiency of the evidence, only a perfunctory "motion to dismiss generally" made by counsel for Martines. Counsel for Alvarez joined the motion of the other counsel. Neither counsel advanced any argument on behalf of the motion.

In view of the perfunctory motion and its non-renewal, the district court was given little help. In this court, the arguments have been extensive, but the district court, not having the ben-efit of those arguments, leaves no record of its reasoning in denying the motion. As did the court in Vizcarra-Martinez, 66 F.3d at 1010, we will leave for another day any difference that there may be in the two standards of review. When ruling on the motion, the district judge stated, "I'll deny the motions, which preserves them anyway," suggesting that renewal would be unnecessary. Following this comment, the defense presented its evidence, which consisted solely of Alvarez's brief testimony in his own defense. In any event, because we conclude that there is adequate evidence to support Alvarez's conviction under the usual standard, our analysis is unaffected by any practical difference between the standards.

In reviewing the sufficiency of the evidence, there are certain ground rules that both parties acknowledge. The evidence is to be considered in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id. at 1009-10 (internal quotations and citations omitted). Further, all reasonable inferences are to be drawn in favor of the government, and any conflicts in the evidence are to be resolved in favor of the jury's verdict. See United States v. Laykin, 886 F.2d 1534,1539 (9th Cir. 1989).

The parties agree that the verdict against Alvarez on the firearms charge is based on a Pinkerton theory of liability. See Pinkerton, 328 U.S. at 647-48 (holding that a defendant could be held liable for a substantive offense committed by a coconspirator as long as the offense occurred within the course of the conspiracy, was within the scope of the agreement, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement). Alvarez argues that an erroneous view of Pinkerton liability was put before the jury by the government during trial and in the Pinkerton instruction given by the district court, erroneously turning the Pinkerton doctrine into a rule of strict liability. As part of his argument, Alvarez points to a question from the jury during deliberation as evidence of what he believes to be the jury's "total confusion and misunderstanding of the correct rule of law." During deliberation, the jury sent a note to the judge asking, "If one member of the conspiracy knowingly possesses a gun, are all members of the conspiracy guilty. [sic] This refers to the Pinkerton Charge item 5 beginning on line 18."

The judge, after a conference with all counsel, advised the jury as follows:

Now, I can't be a great deal of help to you . . . except to tell you to read the Pinkerton charge, keeping in mind, as the charge says, the government has to prove each of the five elements. It can't prove one, or two, or three, or four, it's got to prove all five elements beyond a reasonable doubt. Each one of the five. So you've got those five elements of the Pinkerton charge. If you find the government's proven each of those elements beyond a reasonable doubt, then you find guilt. If you find that any one of those elements has not been proven beyond a reasonable doubt, you don't. That's about all I can say to you. That's what the Pinkerton charge is. I can't really elaborate on it, because the ground rules prevent me from elaborating on...