928 F. 2d 409 - United States v. J Rosas

MEMORANDUM**

Rosas appeals from his conviction following a jury trial on charges of conspiracy to distribute, possession with intent to distribute, and distribution of heroin, all in violation of 21 U.S.C. Secs. 841(a) and 846, arguing that the evidence was insufficient to support the jury's finding of guilt. We disagree and affirm.

"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." United States v. Hernandez, 876 F.2d 774, 777 (CA9), cert. denied, 110 S.Ct.179 (1989). Circumstantial evidence of coordinated activity among defendants may raise a reasonable inference of a joint venture. Id. at 778. Although "mere proximity to the scene of illicit activity is, without more, insufficient to infer a nexus to a conspiracy," United States v. Reese, 775 F.2d 1066, 1071-72 (CA9 1985), a defendant's presence at the scene of a conspiratorial venture may support an inference of involvement when viewed in the context of other evidence. Id.; Hernandez, 876 F.2d at 779.

The evidence showed that Rosas arrived at the dealer's apartment when the dealer was awaiting the arrival of heroin to sell to the DEA agents; Rosas drove a blue Buick registered to an address the dealer had contacted by telephone at least fifteen times after the DEA agents had first contacted his brother; almost immediately after Rosas' arrival, the dealer called to say he was now ready to make the sale and would be driving a blue Buick to the sale site; upon arriving for the sale, the dealer told the DEA agents that his supplier was waiting for him at McDonald's, where Rosas was arrested. This evidence, viewed in the light most favorable to the government and drawing all reasonable inferences therefrom, was more than sufficient for a jury to have found Rosas guilty beyond a reasonable doubt of conspiracy. See United States v. Disla, 805 F.2d 1340, 1348 (CA9 1986).

In light of our conclusion with respect to the conspiracy count, we find no error as to the remaining two counts of possession and distribution. See United States v. Vasquez, 858 F.2d 1387, 1393 (CA9) (under United States v. Pinkerton, 328 U.S. 640 (1946), "a 'party to an unlawful conspiracy may be held responsible for substantive offenses committed by his co-conspirators in furtherance of the unlawful project, even if the party himself did not participate directly in the commission of the substantive offense' ") (quoting United States v. Crespo de Llano, 838 F.2d 1006, 1019 (CA9 1987)), cert. denied, 488 U.S. 1034 (1989).

AFFIRMED.