Zuniga v. Com.
| Decision Date | 20 December 1988 |
| Docket Number | No. 1177-86-2,1177-86-2 |
| Citation | 375 S.E.2d 381,7 Va.App. 523 |
| Parties | Patrick Edward ZUNIGA v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Michael J. Knowles (Roger L. Gregory, Arnold R. Henderson, Wilder, Gregory & Martin, Richmond, on brief), for appellant.
Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BENTON, COLEMAN and COLE, JJ.
Patrick Edward Zuniga was convicted of conspiracy to distribute cocaine in violation of Code §§ 18.2-256 and 18.2-248. He was sentenced to forty years in the state penitentiary with twenty-two years suspended and was fined $10,000. Zuniga contends that his conviction should be overturned because (1) the evidence was not sufficient to show that he and Byron Samuels made an agreement to sell, give, or distribute cocaine in Virginia, (2) venue was improperly laid in Henrico County, where Samuels was arrested, and (3) the arrest warrant was defective. For the reasons that follow, we affirm the conviction.
On September 8, 1985, Zuniga arrived at a parking lot in Washington, D.C., in an automobile driven by Larry Smith. Zuniga and Samuels had previously arranged by telephone to meet at this location. Samuels got into the automobile and handed Zuniga approximately seven thousand dollars for eight ounces of cocaine. Zuniga counted the money and then handed it to Smith. Samuels did not have enough money and promised to pay Zuniga the additional sum of $3,000 "as soon as [he] sold [the cocaine]." Samuels told Zuniga that "[he] would have to sell the cocaine in Virginia" and that he would call him as soon as he got back to Washington the next day. That arrangement satisfied Zuniga.
The next day Samuels travelled with the cocaine to Robert Brice's house in the Richmond, Virginia area. Brice had a buyer for the cocaine. Once he received the cocaine, Brice made telephone calls to arrange a meeting with his buyer. The buyer, an undercover police officer, agreed to purchase the cocaine for $14,800. Brice and Samuels then went to a shopping mall in Henrico County to meet the buyer and were arrested when Brice entered the officer's vehicle and displayed the cocaine.
After his arrest, Samuels agreed to cooperate with the Henrico police. He told them that he had bought the cocaine from Zuniga, whom he knew only as "Pat." Based on Samuels' description, the Henrico police obtained an arrest warrant against "one Cuban male, twenty-five years of age, five feet, four inches tall, weighing one hundred fifty pounds" for conspiracy to sell, give or distribute cocaine.
With the assistance of the Henrico police, Samuels called the telephone number that Zuniga had given him and allowed the police to record the following conversation:
Samuels told Zuniga that he would call upon his arrival in Washington, pay the $3,000 that he owed, and buy the additional quantity of cocaine.
After securing the cooperation of the Washington police, the Henrico police transported Samuels to Washington, where he again called Zuniga to arrange a meeting at the same parking lot. Zuniga and Smith arrived shortly thereafter and were arrested. During a later search of Zuniga's residence, the police found scales and three pounds of cocaine. They also learned that the phone number Zuniga had supplied Samuels was registered to Zuniga's residence.
"Conspiracy is defined as 'an agreement between two or more persons by some concerted action to commit an offense.' " Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). "[A] defendant may wittingly aid a criminal act and be liable as an aider and abettor, but not be liable for conspiracy, which requires knowledge of and voluntary participation in an agreement to do an illegal act." United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980) (citation omitted). In order to establish the existence of a conspiracy, as opposed to mere aiding and abetting, the Commonwealth must prove "the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting." United States v. Peterson, 524 F.2d 167, 174 (4th Cir.1975), cert. denied sub nom. Frazier v. United States, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). The agreement is the essence of the conspiracy offense. Amato v. Commonwealth, 3 Va.App. 544, 553, 352 S.E.2d 4, 9 (1987). "[T]he Commonwealth must prove beyond a reasonable doubt that an agreement existed." Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978).
At the time of the sale in Washington, Zuniga knew that Samuels intended to sell the cocaine in Virginia. However, no evidence in the record, or reasonable inference drawn from this evidence, supports the conclusion that Zuniga was aware of any arrangements between Samuels and other dealers or sellers. Zuniga may well have believed that Samuels intended to dispose of the cocaine by direct sale, without entering into an agreement with a third person. Thus, although the evidence sufficiently establishes that Samuels and Brice conspired to distribute cocaine in Henrico County, there is no evidence that Zuniga knew of that conspiracy. Zuniga, therefore, argues that the Commonwealth failed to prove beyond a reasonable doubt the existence of an agreement to distribute cocaine, and that, for this reason, the evidence is insufficient to sustain the conspiracy conviction.
The Commonwealth asserts, however, that the evidence is sufficient to demonstrate an agreement between Zuniga and Samuels to distribute the cocaine in Virginia. 1 The Commonwealth specifically contends that evidence that Zuniga supplied on credit eight ounces of cocaine, which was later distributed in Virginia, coupled with evidence of Zuniga's knowledge that Samuels would sell the cocaine in Virginia, established beyond a reasonable doubt the existence of an agreement between the parties. We agree.
As a general rule a single buyer-seller relationship, standing alone, does not constitute a conspiracy. See United States v. Walls, 582 F.Supp. 1266 (N.D.W.Va.1984); Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). Likewise, evidence of a distribution offense absent an agreement will not suffice to support a conspiracy conviction. See Heacock v. Commonwealth, 228 Va. 397, 407, 323 S.E.2d 90, 95-96 (1984) (). Evidence which merely establishes aiding or abetting in the commission of the distribution offense will not suffice to prove a conspiracy. See id. at 406-07, 323 S.E.2d at 95-96.
If, however, the evidence demonstrates: (1) "that the seller knows the buyer's intended illegal use," and (2) "that by the sale [the seller] intends to further, promote and cooperate in [the venture]," the existence of a conspiracy to distribute between a seller and a buyer, inter se, has been proved. Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943). The second element must be proved because "not every instance of sale of restricted goods, harmful as are opiates, in which the seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy." Id. at 712, 63 S.Ct. at 1269. It is the proof of the second element which establishes the necessary preconcert and connivance which places the conduct beyond aiding and abetting.
In the present case, the Commonwealth has clearly borne the burden of proof regarding the first requisite element--knowledge by Zuniga that the substance sold would be used for an illegal purpose. Samuels testified that he informed Zuniga that he intended to sell the cocaine in Virginia. Moreover, it also is clear, by the nature of the commodity and by the quantity sold (eight ounces), that Zuniga should have known that the cocaine would be used and further distributed illegally. See Direct Sales, 319 U.S. at 711, 63 S.Ct. at 1269 (). Proof of such knowledge alone, however, is insufficient to convict Zuniga of conspiracy to distribute cocaine. Id. at 713, 63 S.Ct. at 1270. Therefore, the crucial issue to be determined here is whether the evidence demonstrates that "by the sale [Zuniga] intend[ed] to further, promote and cooperate in" Samuel's venture. Id.
In Direct Sales, the defendant, a mail-order wholesale drug company, was convicted of conspiracy to violate...
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