857 F2d 1480 United States v. Valenzuela

857 F.2d 1480

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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,
Mario Coruna VALENZUELA, aka: Mario Perez, Defendant-Appellant.

No. 87-5327.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 8, 1988.*
Decided Aug. 25, 1988.


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Mario Valenzuela appeals his conviction for possession of heroin and conspiracy to possess heroin with the intent to distribute. We affirm.


On July 14, 1987, Valenzuela (appellant) and his two codefendants, Abel Perez and Luis Castro-Gastelum, were charged by a superseding indictment with: (1) conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. Sec. 846 (count one); and (2) possession with intent to distribute heroin and to aid and abet such possession, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2(a) (count two).


Valenzuela pled not guilty to both counts. At Valenzuela's trial, Drug Enforcement Administration (DEA) Agent Jose Martinez testified about his role in the investigation of the drug conspiracy charged in the indictment. Based on information received during the debriefing of a confidential informant, Agent Martinez instructed the informant to arrange a meeting with Valenzuela. On the morning of June 1, 1987, the informant delivered to Agent Martinez a sample of black tar heroin that he had received from Valenzuela.


That afternoon, the informant and Agent Martinez met with Valenzuela (aka Mario) and Perez (aka Marcos) for approximately twenty minutes on a Los Angeles street corner. Valenzuela asked Agent Martinez whether he approved of the heroin sample that the informant had delivered that morning. Martinez and Valenzuela then negotiated for the purchase of a larger quantity of black tar heroin. Valenzuela offered to sell Agent Martinez ten ounces of heroin for $4,000 per ounce. Martinez had only enough money for one ounce. Agent Martinez recalled that Valenzuela left the meeting four times to make telephone calls from a nearby pay phone after they discussed the price or quantity of the proposed heroin purchase. After the fourth call, Valenzuela told Martinez that he had telephoned his source in another city. The negotiations concluded without a sale; Valenzuela told Agent Martinez that his source did not want to come to Los Angeles for only a one ounce heroin sale. Agent Martinez then gave Valenzuela his phone number and told Valenzuela to call when he was interested in doing business. Based on this meeting, Agent Martinez concluded that Valenzuela was in charge of the heroin sellers, and that Perez was just a body guard.


After that initial meeting, Agent Martinez received several phone calls from Valenzuela and Perez to discuss Agent Martinez's proposed purchase of black tar heroin. On June 8, Valenzuela telephoned Martinez and told him that he had five ounces of heroin available for sale. Agent Martinez informed Valenzuela that he was interested. Valenzuela agreed to call back the following week, giving Martinez time to collect money to purchase the heroin. Perez telephoned Martinez twice on June 16, and then again on June 18, to discuss the heroin sale. During the conversation on June 18, Perez called Valenzuela to the phone and Martinez gave Valenzuela his beeper number. Valenzuela then told Martinez that "the stuff is here" and asked Martinez if he was coming to purchase it that day.


On June 19, Agent Martinez met Perez on a Los Angeles street corner to purchase the heroin. Perez was accompanied by Castro-Gastelum. Perez left Agent Martinez and Castro-Gastelum for approximately five minutes while he went to obtain a sample of the heroin from Valenzuela's house. During Perez's absence, Castro-Gastelum informed Martinez that he had brought thirty-six ounces of heroin to Valenzuela and Perez. When Perez returned, he and Castro-Gastelum agreed to follow Martinez, by car, to an East Los Angeles park. After they reached the park, Martinez approached Perez and Castro-Gastelum's car and asked to see the heroin. Perez handed the heroin to Castro-Gastelum, who then showed it to Martinez. Perez and Castro-Gastelum were then arrested and subsequently searched. They were found to be in possession of 499 grams of heroin. In Perez's pocket, the agent found a receipt bearing Martinez's beeper number and his undercover name "Jose". Later that day, Valenzuela was arrested and subsequently searched by Agent Martinez. An almost identical receipt bearing Agent Martinez's beeper number was found on Valenzuela.

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Agent Martinez's testimony was corroborated by DEA Agent Leo Ducey who had conducted surveillance of the June 1 meeting between Martinez, the informant, Valenzuela and Perez. Ducey testified that he saw Valenzuela and Perez arrive and leave the meeting together. Although Ducey was unable to hear what was said during the meeting, he concluded that Valenzuela was communicating with Agent Martinez based on Valenzuela's hand gestures and the direction of his gaze.


Valenzuela's testimony attempted to refute Agent Martinez's version of the facts. Valenzuela claimed that he first met "Mike", the confidential informant, about one and a half years prior to his arrest when a neighbor brought Mike to Valenzuela's house. Mike told Valenzuela that he was interested in purchasing some black tar heroin, but Valenzuela told Mike that he "wasn't into that". For approximately six months after that initial meeting, Mike went to Valenzuela's home every two weeks to inquire about purchasing heroin. Valenzuela repeatedly refused Mike's requests for heroin. Valenzuela claimed that in May 1987, he saw Mike at a grocery store and Mike again asked Valenzuela whether he had gotten him any heroin. When Valenzuela answered negatively, Mike told him that if he did not obtain the requested heroin, Mike's son-in-law would kill Valenzuela.


Appellant further testified that on June 1, 1987, while grocery shopping, he again saw Mike at the market with Perez and Agent Martinez. Valenzuela gave them beer, and talked with them for about ten minutes. Mike and Perez requested that Valenzuela find them some heroin and again Valenzuela refused. Valenzuela specifically denied that he asked Agent Martinez whether he approved of a heroin sample, or that he ever offered to sell Agent Martinez heroin. Valenzuela claimed that he used the pay phone at the market to call home. After talking with Mike, Perez and Martinez, Valenzuela went home with his groceries. Valenzuela denied that he later phoned Agent Martinez to negotiate a heroin transaction or that he obtained Martinez's beeper number. He also denied knowing Castro-Gastelum.


The jury found appellant guilty on both counts of the indictment. On November 6, 1987, appellant was sentenced to two concurrent six year prison terms, followed by a four year term of supervised release on count two.


This court will uphold a conviction if, when viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.1987). "The credibility of witnesses and the weight accorded to the evidence are questions for the jury that are not reviewable." Id.


Appellant first contends that the government failed to present sufficient evidence to support his conviction for conspiracy to possess and distribute heroin because it failed to prove that he had knowledge of the conspiracy. This contention lacks merit.


The essential elements of a conspiracy are an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the required intent necessary to commit the underlying substantive offense. United States v. Meyers, No. 87-3087, slip op. 6363, 6371 (9th Cir. June 2, 1988). Where the evidence establishes that a conspiracy exists, only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in that conspiracy. Id. However, the government must prove beyond a reasonable doubt that the defendant knew of his connection to the charged conspiracy. Id.


Here, the evidence presented during appellant's trial, viewed in the light most favorable to the government, could have led a rational jury to conclude beyond a reasonable doubt that appellant had knowingly participated in a conspiracy with Perez and Castro-Gastelum to possess and distribute heroin.


Martinez testified about his transaction with Valenzuela and his subsequent meeting with Valenzuela and the informant which was held to lay the groundwork for a further transaction. Martinez also testified about several phone calls he received from Valenzuela and Perez precedent to the June 19 transaction. The Martinez testimony was corroborated by Agent Ducey and by the receipts bearing Martinez's beeper number which were found on Valenzuela and Perez when they were arrested. Valenzuela offered no corroborating evidence to support his version.


Based on the evidence presented, the jury could have reasonably resolved the conflict between the testimony of Agent Martinez and that of appellant by determining that Martinez's version of the facts was more credible. See Vaccaro, 816 F.2d 443 (the jury determines the credibility of witnesses). There was ample evidence for the jury to find that appellant knowingly conspired with Perez and Castro-Gastelum to possess and distribute heroin. See United States v. Meyers, No. 87-3087, slip op. at 6371.


Appellant next contends that there was insufficient evidence to convict him of possession with intent to distribute heroin because the government failed to prove that he actually or constructively possessed the 499 grams of heroin seized from Perez and Castro-Gastelum. This contention is also without merit.


Possession of a controlled substance, under 21 U.S.C. Sec. 841(a)(1), may be actual or constructive. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). Constructive possession indicates control or dominion over a substance and may be proven by direct or circumstantial evidence that the defendant had the power to dispose of the substance. Id.


Here, the evidence introduced at trial established that appellant was in constructive possession of the heroin that Perez and Castro-Gastelum attempted to sell to Agent Martinez. Martinez testified that when they met on June 19, Perez informed him that the heroin was stored at Valenzuela's home. Furthermore, Agent Martinez testified that Castro-Gastelum told him that he had brought thirty-six ounces of heroin to Valenzuela and Perez. Although there was no testimony indicating that Valenzuela was in actual possession of the 499 grams of heroin seized from Perez and Castro-Gastelum, there was ample evidence to demonstrate that Valenzuela was in constructive possession of that heroin. Therefore, Valenzuela was properly convicted for possession with intent to distribute heroin.


Because there was sufficient evidence to demonstrate that appellant participated in the conspiracy to possess and distribute heroin, he became liable for any substantive crimes committed by his coconspirators that (1) were done in furtherance of the conspiracy, (2) were within the scope of the conspiracy and (3) were reasonably foreseeable as a necessary or natural consequence of the conspiracy. Pinkerton v. United States, 328 U.S. at 645-648; United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir.1986). Here, there was undisputed evidence that Perez and Castro-Gastelum possessed 499 grams of heroin when they were arrested on June 19, 1987, and that they intended to sell it to Agent Martinez. At the time they were arrested, they were in the process of concluding a drug sale which Valenzuela and Perez had spent several weeks negotiating. The delivery of the heroin, which was well within the scope of the conspiracy, was done in the furtherance of the conspiracy and could have reasonably been foreseen as a consequence of the conspiracy. Accordingly, the jury properly convicted appellant for possession with intent to distribute heroin. See Pinkerton v. United States, 328 U.S. at 645-48; Douglass, 780 F.2d at 1475-76.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3