869 F. 2d 1498 - United States v. Felix-Lopez

No. 87-1090.

United States Court of Appeals, Ninth Circuit.

Before NELSON, NOONAN, and LEAVY Circuit Judges.

MEMORANDUM**

Eliseo Felix-Lopez appeals his conviction for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 844(a)(1) and 18 U.S.C. Sec. 2. We affirm.

The evidence at the ten day trial before a jury showed that Felix had boasted to undercover agents of the Drug Enforcement Agency that he had been successfully selling cocaine in Phoenix without complaint. The agents negotiated for a sale and he offered a sample of good cocaine. At a meeting at Felix's house, three DEA undercover agents delivered $32,000 in cash, which Felix counted. He then dialed his source at the number 239-0909. He then told the agents that the person with the cocaine was on his way to the body shop. It was agreed that Felix would pick up the cocaine and deliver it to the agents at a Taco Bell restaurant. When Felix delivered the cocaine he was arrested. At the El Sitio Body Shop the agents picked out from Felix's description one Jose Ortiz-Salazar and arrested him just after he had hidden a bag of cocaine. They found in his possession a telephone pager with the number 239-0909.

Ortiz's conviction has already been affirmed in an unpublished decision of this court. The evidence was sufficient to show that there was an agreement between Felix and Ortiz to possess and distribute cocaine; that a variety of acts were performed in furtherance of the conspiracy; and that Felix had the intention to commit the crime. There was also sufficient evidence to show that Felix knowingly possessed cocaine with the intent to distribute it.

In opening argument counsel for Ortiz referred to an informant who, counsel said, had disclosed that Felix had repeatedly supplied the informant with cocaine. The informant, although available as a witness, was called by neither defendant nor by the government. The statement by Ortiz's counsel was improper but did not deprive Felix of a fair trial. The jury was thrice carefully instructed to decide the case on the basis of the testimony of witnesses, not on the basis of the statements made by counsel. United States v. Maurice, 416 F.2d 234, 237 (9th Cir.1969).

While the jury was deliberating, a deputy marshal by mistake telephoned the jury room and asked a juror to tell the clerk to let him know when the jury went to lunch "so we can go out and get some lunch for ourselves and the prisoners." It was contended by counsel for the defendants that this communication to a juror was prejudicial and should be the basis for a new trial. The court held a post trial hearing on this contention and determined that Felix suffered no prejudice as a result of this accidental and fairly trivial communication. The court did not abuse its discretion in denying a new trial.

AFFIRMED.