MEMORANDUM*

The issues raised here stem from the convictions of these codefendants for conspiracy to distribute five or more kilograms of cocaine. The 16-month, Washington-based drug conspiracy involved multiple kilograms of cocaine. Alfredo Grageda-Chavez, a lookout, appeals his conviction and sentence. Eduardo Barajas-Cardenas, a drug supplier, appeals the admission of evidence under Rule 404(b) and the court's refusal to give a jury instruction he proposed.

Larry Valladolid, a special agent with the INS, met with a police informant and Julian Zuniga-Camacho in a Portland tavern on November 2, 1988 to discuss a cocaine purchase. Zuniga-Camacho, unaware that Valladolid was a government agent, sold him an ounce of cocaine and claimed to have five more he could sell. Valladolid said he wanted to buy kilogram quantities. As a result, Valladolid and a Portland police officer followed Zuniga-Camacho and the informant to Tacoma by car.

Zuniga-Camacho, indicating that he could obtain kilogram quantities, made several phone calls to Pasco, Washington to locate the cocaine source, "Tono" Antonio Barragan. The informant, Valladolid and Zuniga-Camacho then went to a safehouse to wait. Two men arrived that evening. One was introduced as Rafael Mendoza. The other was not introduced, but was identified later as Alfredo Grageda-Chavez.

Grageda-Chavez carried a portable phone. He looked around the house for two to three minutes, looking behind the doors, into other rooms and under the beds. He then checked outside. When he returned, he placed a call to someone and said, "Call Pasco and tell them it's okay. There's no problem." He appeared nervous and fidgety.

Valladolid and Mendoza went into the kitchen, out of earshot of Grageda-Chavez, who remained in the living room. Valladolid said he was interested in buying five kilograms but "[a]t this point I'm only interested in one or two guaranteed." Mendoza, saying he represented Barragan, agreed to deliver four ounces of cocaine later that night. Mendoza and Grageda-Chavez left. Two and a half hours later, after Valladolid spoke with Barragan on the phone, Barragan's brother delivered four ounces of cocaine to Valladolid in exchange for $2,800. The cocaine came from Barragan's garage.

On December 1, Valladolid phoned a number Zuniga-Camacho had given him for contacting the people he dealt with on November 2. He said he wanted to buy a half kilogram of cocaine. A person calling himself Raphael returned his call, at which time Valladolid asked for one kilogram.

When Barragan was arrested that same day, he was found in possession of cocaine. Grageda-Chavez was arrested later and he and five codefendants, including Zuniga-Camacho, were charged with conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. Sec. 846. Grageda-Chavez was also charged with aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C) and 18 U.S.C. Sec. 2.

Barragan pleaded guilty to a conspiracy charge and testified for the government, saying he had distributed about 200 kilograms of cocaine in western Washington between September 1987 and December 1988. He testified also that he had seen Grageda-Chavez with Mendoza twice but did not know that Grageda-Chavez was selling drugs. He said he had never sold drugs to Grageda-Chavez. A number of coconspirators corroborated Barragan's testimony about the quantity of drugs he had distributed and about Mendoza's intimate involvement with the conspiracy. Barragan testified also that while both Barragan and Grageda-Chavez were being held in jail Grageda-Chavez told him the phone call on November 2 was to his girlfriend in Pasco.

On the third day of trial, Gustavo Lopez-Alvarez pleaded guilty. When he testified against his codefendants, Grageda-Chavez moved for a mistrial. The court denied the motion.

The jury found Grageda-Chavez guilty on both counts. Zuniga-Camacho was convicted of the lesser-included offense of conspiracy to distribute an unspecified amount of cocaine. Grageda-Chavez's motions for judgment of acquittal, for a new trial and to set aside the inconsistent jury verdicts were denied. He was sentenced to 188 months of imprisonment and four years of supervised release.

Eduardo Barajas-Cardenas was arrested with Barragan on December 1, 1988 and was one of the codefendants who went to trial with Grageda-Chavez.

Barragan was the principal witness against this defendant. He testified that "Chino" Barajas-Cardenas was one of his sources of cocaine and that most of Barajas-Cardenas' business was done in Santa Ana, California. He described four drug transactions with Barajas-Cardenas. A courier, Marjorie Aust, corroborated Barragan's testimony and said she had seen Barajas-Cardenas when she went to California to pick up drugs.

Barragan also testified that just before their arrest, Barajas-Cardenas spoke of moving to Washington because he was under too much police surveillance. Barragan claimed that Barajas-Cardenas said if he moved he would sell Barragan cocaine at a better price.

Narcotics officers from Santa Ana testified about their surveillance of Barajas-Cardenas in California. They described activity that indicated drug trafficking and told of stopping his car and finding $65,000 in cash. Barajas-Cardenas' landlords there testified that he had lied about who his employer was and what his monthly salary was.

Barajas-Cardenas was convicted of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. Sec. 846. He was sentenced to 210 months imprisonment and four years of supervised release, and fined $20,000. He appeals the admission of evidence of his California activity.

* Grageda-Chavez argues that the evidence was insufficient for the jury to conclude beyond a reasonable doubt that he was a participant in a conspiracy to distribute five or more kilograms of cocaine. The government contends that he was a lookout, and thereby was connected to the overall drug conspiracy.

This court will uphold a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged. United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987). "Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy." Id. at 348. Proof the defendant acted as a lookout is sufficient to connect him to the conspiracy. See id.; United States v. Perez, 491 F.2d 167, 171 (9th Cir.), cert. denied sub nom. Lombera v. United States, 419 U.S. 858 (1974).

Grageda-Chavez relies on several decisions of this court, which reverse conspiracy convictions, to argue that there was insufficient evidence to prove he was a lookout for the conspiracy. Each of those decisions is distinguishable. In contrast to United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir.1977), none of the government witnesses said Grageda-Chavez was not involved. They testified that they had seen him but did not know if he was connected to the drug operation. Unlike the defendant in Penagos, Grageda-Chavez checked the house thoroughly and made a phone call to report the house was safe, strongly suggesting he was Mendoza's lookout.

Grageda-Chavez argues that his phone conversation was ambiguous. Compare United States v. Lopez, 625 F.2d 889, 897 (9th Cir.1980) with United States v. Power, 881 F.2d 733, 738 (9th Cir.1989). We disagree. He and Mendoza arrived together. After carefully searching the house, Grageda-Chavez made a phone call reporting to "Pasco" that everything was "okay." Zuniga-Camacho had called Pasco, Washington several hours earlier to track down Barragan and his drugs. The timing and content of Grageda-Chavez's phone call indicate that he was functioning as the lookout, reporting it was safe to go forward with the drug deal. There was sufficient evidence for the jury to conclude that he was a coconspirator.

Grageda-Chavez submits that even if there was sufficient evidence that he participated in a conspiracy to distribute cocaine, he was involved only in a conspiracy for four ounces, not five or more kilograms.

An overall conspiracy may involve several subgroups of conspirators and subagreements among them. United States v. Tille, 729 F.2d 615, 621 (9th Cir.), cert. denied, 469 U.S. 845 (1984). "[T]he nature of the scheme, identity of the participants, nature and frequency of each conspirator's involvement, and commonality of time and goals" are factors the court must consider to determine whether there is a single conspiracy or multiple ones. Id. Whatever the size of the conspiracy, a defendant must know of his connection to it. See United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir.1988). It is not necessary that the defendant know all the participants or all goals of the conspiracy. United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir.), cert. denied, 449 U.S. 856 (1980).

This scheme was drug dealing. Testimony showed that Mendoza was a core participant in and a representative of Barragan's drug operation during the 16-month period in question. The evidence shows that Grageda-Chavez arrived at the safehouse with Mendoza on November 2. By serving as Mendoza's lookout, Grageda-Chavez involved himself with Mendoza, and thus with the Barragan drug operation. A rational jury could conclude from this evidence that although Grageda-Chavez may not have known the exact quantity of drugs being distributed, he knew he was involved in a large drug distribution scheme and not simply a four-ounce deal.

We find that there was sufficient evidence to convict this defendant of conspiracy to distribute five or more kilograms of cocaine.

Grageda-Chavez argues that even if he was convicted properly for conspiracy to distribute five or more kilograms of cocaine, the court may sentence him only for his specific involvement with the four ounces sold on November 2. He asserts that he did not know of or foresee the large scale of the conspiracy and that the court should not have used 50 or more kilograms of cocaine to calculate his base offense level.

For a convicted drug conspirator, the quantity of drugs used to calculate the base offense level is the amount that was the object of the conspiracy. United States Sentencing Guidelines Sec. 2D1.4(1). Application Note 1 of Sec. 2D1.4(a) specifies that a conspirator is held responsible for all drug transactions and deliveries promised in furtherance of the conspiracy, unless he could not reasonably foresee them. United States v. Guerrero, 894 F.2d 261, 265-66 (7th Cir.1990). Foreseeability is a question of fact. United States v. Vinson, 886 F.2d 740, 742 (4th Cir.1989), cert. denied, 110 S.Ct. 878 (1990).

The presentence report (PSR) recommended that "50 + kilograms" be used to determine Grageda-Chavez's base offense level. The court followed the recommendation. Grageda-Chavez made no objection to the 50-kilogram figure in the PSR nor did he raise the issue of foreseeability. In a presentencing memorandum, he argued only for a downward departure based on his minimal role. Defense counsel's comment at the sentencing hearing that Grageda-Chavez was "there and he was gone" was not an objection to the PSR figures nor an argument about foreseeability.

Because neither the foreseeability question nor a challenge to the PSR's use of "50 + kilograms" were raised in the district court, the arguments were waived. We need not address them here. See United States v. Visman, 919 F.2d 1390, 1394 (9th Cir.1990); United States v. Fox, 889 F.2d 357, 359 (1st Cir.1989). We affirm the sentence imposed.

Grageda-Chavez makes several other claims of error, which we reject. First, he urges that he should get a new trial because the verdicts were inconsistent and violated due process. The jury found codefendant Zuniga-Camacho guilty of the lesser offense of conspiracy to distribute an unspecified amount of cocaine, while Grageda-Chavez was convicted of conspiring to distribute five kilograms or more.

The leniency of the jury on some counts does not mean jurors were unconvinced of guilt on others. United States v. Powell, 469 U.S. 57, 64-65 (1984). In United States v. Valles-Valencia, 823 F.2d 381 (9th Cir.1987), this court applied Powell to uphold a coconspirator's conviction where the other coconspirator was acquitted. Id. at 381-82. We reject this defendant's argument that there is no articulable rational basis for the inconsistent outcome. See United States v. Guzman, 849 F.2d 447, 448 (9th Cir.1988). The court correctly denied his motions in arrest of judgment and for new trial.

Second, Grageda-Chavez asserts that a mistrial should have been declared. He argues that his rights in the jury selection process were impaired by codefendant Lopez-Alvarez's participation in that process. The authority he cites supports the opposite conclusion. A defendant has the right to participate in juror selection until he makes a deal with the government. United States v. Phillips, 874 F.2d 123, 130 (3rd Cir.1989).

Grageda-Chavez also claims the court's instructions to the jury to disregard Lopez's absence from the trial was insufficient to overcome undue prejudice. This court reviews jury instructions in their entirety and for abuse of discretion. United States v. Harris, 738 F.2d 1068, 1072 (9th Cir.1984). A plain, nonargumentative explanation is proper where a codefendant disappears from the defense table. United States v. Jones, 425 F.2d 1048, 1053 (9th Cir.), cert. denied, 400 U.S. 823 (1970).

The court gave a neutral cautionary instruction after Lopez-Alvarez pleaded guilty. In addition, an instruction cautioning the jury about the credibility of accomplice testimony was given at the end of trial. See United States v. Price, 447 F.2d 23, 30 (2d Cir.), cert. denied, 404 U.S. 912 (1971). The court's instructions were sufficient. It correctly declined to declare a mistrial.

Third, Grageda-Chavez contends that the district court should have granted his motion to sever because the evidence presented concerned a substantial amount of criminal activity that did not involve him. Failure to renew the motion at the close of the evidence was a waiver. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). At oral argument, counsel conceded that no such renewal was made. The argument was waived and we need not address it.

Barajas-Cardenas argues that the court erred in admitting evidence of his concurrent acts in California, which were not linked to the Washington conspiracy. He contends that this evidence was inadmissible because the government did not explain why it was offering it. If it was offered to prove intent or knowledge, as permitted by Federal Rule of Evidence 404(b),1 he argues that it was inadmissible because he did not put intent or knowledge at issue. We review for abuse of discretion the admission of other acts evidence under Rule 404(b). United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989).

Rule 404(b) is an inclusionary rule; other acts evidence is admissible, unless it proves nothing more than criminal propensity. United States v. Alfonso, 759 F.2d 728, 739 (9th Cir.1985). Here, the relevant part of the four-part test for admissibility considers whether the evidence tends to prove a material issue in the case. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir.1989).

The government offered the evidence to prove intent and knowledge. There is no additional requirement that a specific evidentiary theory must be articulated before admission. United States v. Spillone, 879 F.2d 514, 519-20 (9th Cir.1989), cert. denied, 111 S.Ct. 210 (1990).

Barajas-Cardenas reasons that, because he did not testify or offer witnesses, he did not put intent or knowledge at issue, so the California evidence could not have been presented to prove a material issue in the case. United States v. Hadley, 918 F.2d 848 (9th Cir.1990), forecloses this argument. A defendant's tactics cannot preclude the government from using Rule 404(b) to help it prove every element of the crime. Id. at 852. Elements of conspiracy include the defendant's knowledge of and voluntary participation in the conspiracy. See United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir.1988). The government's other acts evidence met Rule 404(b) requirements.

Our inquiry, however, does not end there. Evidence otherwise admissible under Rule 404(b) may be excluded because its probative value is substantially outweighed by its danger of unfair prejudice. Fed.R.Evid. 403. There was no such danger here. A limiting instruction, which minimized the potential for prejudice, was given when the evidence was presented. See Spillone, 879 F.2d at 520; Hadley, 918 F.2d at 852.

The district court did not abuse its discretion in admitting the California evidence.

The court instructed the jury when the California evidence was presented that Barajas-Cardenas was not being charged with those activities. As such, the jury was put on notice that this evidence was properly considered only for narrow Rule 404(b) purposes. Although a later instruction may have been wise, the court did not abuse its discretion by failing to give Barajas-Cardenas' proposed instruction.

Barajas-Cardenas relies on Tenth Circuit authority to assert that a limiting instruction must be given both when the evidence is admitted under Rule 404(b) and at the close of the case. See United States v. Rivera, 837 F.2d 906, 913 (10th Cir.1988). This court has not adopted such a strict rule.

In United States v. Soliman, 813 F.2d 277 (9th Cir.1987), we held that the use of a limiting instruction was only one factor for determining whether the district court abused its discretion. Id. at 279. Soliman, although distinguishable because the court did give a limiting instruction in the general charge, states the general rule. A limiting instruction about such evidence in the general charge to the jury is not required, although strongly encouraged. United States v. O'Brien, 601 F.2d 1067, 1070 (9th Cir.1979).

The failure to give the proposed instruction was not an abuse of discretion.

The conviction of Grageda-Chavez was supported by sufficient evidence. A rational jury could have found beyond a reasonable doubt that he was part of the overall conspiracy because he served as a lookout for one of the major coconspirators. We affirm his sentence because he did not challenge the PSR nor raise in district court the issue of whether the scope of the conspiracy was foreseeable.

Rule 404(b) permitted admission of the California evidence against Barajas-Cardenas to prove his intent and knowledge. Because the court gave a limiting instruction when the evidence was admitted, it did not abuse its discretion by declining to give such an instruction also in the general charge.

AFFIRMED.