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U.S. v. Salgueiro

United States Court of Appeals, Ninth Circuit
Oct 5, 1988
862 F.2d 875 (9th Cir. 1988)

Opinion


862 F.2d 875 (9th Cir. 1988) UNITED STATES of America, Plaintiff-Appellee, v. Leonel SALGUEIRO, Defendant-Appellant. No. 85-5146. United States Court of Appeals, Ninth Circuit October 5, 1988

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided Nov. 10, 1988.

C.D.Cal.

AFFIRMED.

On Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding.

Before JAMES R. BROWNING, WALLACE and BRUNETTI, Circuit Judges.

MEMORANDUM

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.

Defendant contends the district court erred in admitting out-of-court statements of Rubalcaba, an alleged co-conspirator. As a foundation for the admission of a co-conspirator's declaration, the government must establish by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the defendant were involved in that conspiracy; (3) the declaration was made "in the course;" and, (4) "in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E); Bourjaily v. United States, 107 S.Ct. 2775, 2778 (1987); United States v. Crespo de Llano, 838 F.2d 1006, 1017 (9th Cir.1988) (as amended).

Prior to Bourjaily, this court reviewed de novo the trial judge's determination the government had made the necessary showing of conspiracy. United States v. Smith, 790 F.2d 789, 794 (9th Cir.1986). Bourjaily may require review only for clear error. United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988). We need not decide this issue, however, because the trial court's determination that the government laid a proper foundation for the admission of Rubalcaba's statements withstands review under either standard.

Defendant admitted the existence of the conspiracy and his participation in it, but testified he withdrew before the second of two drug transactions occurred. The informant testified that defendant assured him the night before the second transaction that the delivery would take place. The verdict establishes the jury disbelieved defendant's testimony and credited that of the informant. That determination is not subject to review. United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.1987) ("The credibility of witnesses and the weight accorded the evidence are questions for the jury that are not reviewable.").

Defendant contends Rubalcaba's statements were not made during and in furtherance of the conspiracy. Three statements are in issue: (1) that defendant observed the first sale; (2) that defendant would meet with DeVorre to negotiate the second sale; and, (3) that Rubalcaba had attempted to contact defendant to arrange the second transaction. Rubalcaba made these statements after the first transaction and before the second, thus satisfying the temporal requirement. The statements furthered the aim of the conspiracy to sell heroin by assuring DeVorre that defendant was willing and able to meet DeVorre's request for cocaine. Cf. United States v. Paris, 827 F.2d 395, 400 (9th Cir.1987) ("The statements furthered the conspirators' common objective: the sale of cocaine.").

Ninth Circuit precedent requires "some evidence, aside from the proffered statements, of the existence of the conspiracy and the defendant's involvement." Gordon, 844 F.2d at 1402. There was ample evidence here: defendant admitted involvement in the conspiracy; the first heroin sale occurred outside defendant's home; defendant met with DeVorre to negotiate the second heroin sale; defendant arrived at that meeting in the car his wife had used to deliver the drugs to the first sale; and, defendant's name was written inside the shoe box in which the second heroin delivery arrived.

Defendant argues the court erred by admitting Rubalcaba's statements before the necessary foundation facts had been proven. The trial court has discretion to determine the order of proof, and may conditionally admit co-conspirator statements subject to a motion to strike. United States v. Kenny, 645 F.2d 1323, 1334 (9th Cir.1981). No abuse of discretion appears.

Defendant also challenges the sufficiency of the evidence. Defendant's failure to move for acquittal under Fed.R.Crim.P. 29(a) either at the close of the government's case or at the close of evidence bars full review of this claim. United States v. Curtis, 568 F.2d 643, 647 (9th Cir.1978). Absent a motion for acquittal, we review the sufficiency of the evidence solely to prevent a "manifest miscarriage of justice." Id. No injustice appears.

Defendant was convicted on three counts: (1) conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) aiding and abetting intentional possession of heroin with intent to distribute in violation of 18 U.S.C. § 2(a), 21 U.S.C. § 841(a)(1); and (3) assaulting a law enforcement officer in violation of 18 U.S.C. § 111. There is no danger of a miscarriage of justice in this case. The ample evidence discussed above supports Salgueiro's convictions on the first two charges. Similarly, the third charge was supported by testimony that Navarez, another alleged co-conspirator, shot DeVorre, and by evidence Navarez and defendant were co-conspirators. See Pinkerton v. United States, 328 U.S. 640, 647 (1946) (co-conspirators vicariously liable for crimes committed in furtherance of the conspiracy).

Finally, defendant argues the district court abused its discretion by sentencing him more severely than his co-conspirators, who he argues were more culpable than he. No abuse of discretion appears. Appellant does not claim the sentence exceeded the statutory maximum or that he was singled out for harsh treatment because he exercised his right to stand trial. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir.1986). Defendant argues that United States v. Barker, 771 F.2d 1362, 1365 (9th Cir.1985), requires an individualized assessment of culpability so punishment might "fit the criminal" rather than the crime. But the court did not fail to individually assess this defendant's culpability. Before imposing sentence, the district court heard oral argument and examined the probation office report regarding the amount and quality of the heroin involved, and found defendant more culpable than his associates.

AFFIRMED.


Summaries of

U.S. v. Salgueiro

United States Court of Appeals, Ninth Circuit
Oct 5, 1988
862 F.2d 875 (9th Cir. 1988)
Case details for

U.S. v. Salgueiro

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Leonel SALGUEIRO…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 5, 1988

Citations

862 F.2d 875 (9th Cir. 1988)