931 F2d 898 United States v. Johnson

931 F.2d 898

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-50550.

United States Court of Appeals, Ninth Circuit.

Submitted April 29, 1991.*
Decided May 1, 1991.

Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.

1

MEMORANDUM**

2

Charles Frank Johnson appeals his convictions following a jury trial for conspiracy to possess and possession with the intent to distribute methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. Johnson challenges both convictions on the grounds that the evidence was insufficient to sustain the guilty verdicts. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

3

On October 11, 1990, undercover agent Perry Bryant met Johnson to discuss an exchange of ephedrine for methamphetamine. Bryant provided Johnson with a sample of ephedrine before concluding the meeting. On October 13, Bryant met again with Johnson, who introduced codefendant Mark Campbell to Bryant. Campbell expressed that he was impressed with the quality of the ephedrine sample, and although arrangements for an exchange were not made at this meeting, the parties agreed to keep in contact. On October 18, Bryant had two taped telephone conversations with Johnson concerning the distribution of methamphetamine. On November 8, Bryant met with Campbell in the parking lot of a shopping center to conduct a drug transaction. Surveilling agents observed Johnson circling Campbell's van on his bicycle during the transaction. The agents arrested Campbell and recovered 1.82 kg. of methamphetamine and $22,000 in cash. The agents also arrested Johnson following his futile attempt to flee the scene.

4

Sufficient evidence to support a conviction exists if, "a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (citation omitted), cert. denied, 110 S.Ct. 179 (1989); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Conspiracy

5

Johnson argues that the evidence presented at trial failed to indicate that he and Campbell agreed to conduct the November 8 transaction, or any other transaction. Johnson denies any involvement with Campbell after the October 12 meeting.

6

"To prove a conspiracy, the government must show 1) an agreement 2) to engage in criminal activity and 3) one or more overt acts in furtherance of the conspiracy. 'The prosecution need not show the agreement to have been explicit. An implicit agreement may be inferred from the facts and circumstances of the case.' " Hernandez, 876 F.2d at 777 (quoting United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972 (1977)). "Once the existence of a conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient...." United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir.1988).

7

Here, Johnson contends that the evidence shows that he was not involved with Campbell because he did not mention Campbell in the telephone conversations with Bryant, and Campbell testified at trial that Johnson did not know about the November 8 drug deal. Nevertheless, Johnson introduced Campbell to Bryant for the sole purpose of arranging a trade involving methamphetamine for ephedrine. Johnson allowed Campbell to test the sample of ephedrine provided by Bryant, and Campbell commented on the sample's quality. Eventually, Campbell was arrested in his van while conducting a trade involving methamphetamine for ephedrine. Johnson was arrested almost simultaneously after riding his bicycle around Campbell's van.

8

Viewing the evidence in a light most favorable to the government, a rational jury could have found beyond a reasonable doubt that Johnson and Campbell conspired to participate in the drug transaction. See Hernandez, 876 F.2d at 777.

Aiding and Abetting Possession

9

Johnson argues that since the evidence failed to show that he was involved with Campbell in the November 8 transaction, the jury could not have found that he aided or abetted Campbell in the possession of the methamphetamine.

10

"The elements necessary to convict an individual under an aiding and abetting theory are (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense." United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988). "[E]vidence of negotiations and illicit transactions both prior and subsequent to the specific sale described in the count can be used to establish ... guilt as an aider and abettor." United States v. Smith, 832 F.2d 1167, 1169 (9th Cir.1987).

11

The evidence established that Johnson was involved in a methamphetamine distribution ring. He facilitated the drug transaction by introducing Campbell and Bryant. Johnson was observed circling Campbell's van immediately prior to their arrests.

12

A rational jury could have found beyond a reasonable doubt that Johnson's actions were designed to assist and further Campbell's criminal objective. Therefore the evidence was sufficient to support Johnson's conviction for aiding and abetting the possession of methamphetamine. See Smith, 832 F.2d at 1172.

13

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3