United States v. Fernando Vizcarra-Martinez

57 F.3d 1506, 42 Fed. R. Serv. 215, 95 Daily Journal DAR 8123, 95 Cal. Daily Op. Serv. 4735, 1995 U.S. App. LEXIS 15146, 1995 WL 366970
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 21, 1995
Docket94-50281
StatusPublished
Cited by9 cases

This text of 57 F.3d 1506 (United States v. Fernando Vizcarra-Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fernando Vizcarra-Martinez, 57 F.3d 1506, 42 Fed. R. Serv. 215, 95 Daily Journal DAR 8123, 95 Cal. Daily Op. Serv. 4735, 1995 U.S. App. LEXIS 15146, 1995 WL 366970 (9th Cir. 1995).

Opinions

Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.

REINHARDT, Circuit Judge:

This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant’s invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car was improperly admitted, we conclude that the district court committed reversible error by admitting evidence of his drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine. Because we reverse on this ground, we do not consider Vizcarra-Martinez’s remaining contentions regarding the district court’s evidentiary rulings and its sentencing decision.1

[1509]*1509I.

Vizcarra-Martinez was indicted with six other defendants. He was charged in Count I with conspiracy to wrongfully possess a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(d)(2), 802(33), 802(34), 802(34)(X), and 846; he was also charged in Count II with wrongful possession of a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(d)(2), 802(33), and 802(34)(X). Vizcarra-Martinez moved to exclude evidence of his possession of a personal-use amount of methamphetamine and certain post-arrest statements. The motions were denied. After a trial, the jury returned a verdict of guilty on both counts. Vizcarra-Martinez was sentenced to concurrent sentences of 70 months, to be followed by a three-year term of supervised release.

II.

We first must evaluate whether there was sufficient evidence to convict Vizcarra-Martinez. In doing so, we must assume that the evidence at trial was properly admitted. Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 290-92, 102 L.Ed.2d 265 (1988). We have consistently held that there is sufficient evidence to support a conviction if, “reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (citation omitted). Because the defendant failed to renew his objection based on the sufficiency of the evidence at the end of the trial, we may only review the denial of the motion to prevent a miscarriage of justice. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir.1988), cert. denied, 488 U.S. 1016, 109 S.Ct. 812, 102 L.Ed.2d 802 (1989). We note that the application of the miscarriage of justice standard to insufficiency of the evidence cases could lead to difficult problems for a court. We would certainly be reluctant to affirm a conviction and send a defendant to prison or his death if the record clearly showed that the evidence was insufficient. Yet, even under our ordinary test — the standard applicable when the defendant makes all the proper motions — we cannot reverse unless there is a clear showing as to insufficiency: we must affirm if any rational trier of fact could have found the evidence sufficient. Thus, it is difficult to imagine just what consequences flow from our application of the two different standards or to envision a case in which the result would be different because of the application of one rather than the other of the standards.

Here, however, we need not become entangled in a theoretical inquiry regarding standards of review because we conclude that there was adequate evidence to convict the defendant even under the standard we ordinarily use. Thus, it does not matter whether there is a practical difference between the standards or what the differences may be. In the case before us, there was clearly adequate evidence to establish that a conspiracy to manufacture methamphetamine existed and that the defendant possessed the hydriodic acid in question. It is a closer question as to (1) whether, having established the existence of a conspiracy, the government has proved beyond a reasonable doubt a connection between Vizcarra-Mar-tinez and the conspiracy, see United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980), and (2) whether there was adequate evidence for the jury to conclude that the defendant knew or had reason to believe that the acid would be used to manufacture methamphetamine. The government produced no direct evidence tying Vizcarra-Martinez to the conspiracy or indicating that he had any knowledge of its scope; indeed, the leaders of the conspiracy and the DEA conceded that they had never encountered Vizcarra-Martinez before the day of the search.

However, our review of the record indicates that, although the case before us is a close one, there was sufficient evidence presented at trial to permit a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to infer the knowledge necessary to convict on both counts. In addition to the defendant’s eon-[1510]*1510duet at the scene of the offense, there was other circumstantial evidence in the record tending to show that the defendant knew of and was connected to the conspiracy. This case is therefore distinguishable from United States v. Umagat, 998 F.2d 770, 772-74 (9th Cir.1993), in which we held that when the government proves only that a defendant is involved in a single transaction that is but a part of a substantial ongoing conspiracy, and offers no other evidence as to the defendant’s knowledge of the overall conspiracy, there is insufficient evidence to permit a factfinder to impute knowledge of the broad conspiracy. Accordingly, we decline the defendant’s invitation to reverse the conviction on this ground.

III.

Vizearra-Martinez also appeals the district court’s decision to deny his motion to suppress the evidence seized during a search of his car. Between November, 1992 and April, 1993, special agents of the Drug Enforcement Administration (DEA) investigated the methamphetamine manufacturing and trafficking activity of Noe Bueno Perez. During that period, the DEA relied upon a confidential informant to infiltrate Perez’s organization. Perez ultimately attempted to purchase large quantities of the precursor chemicals necessary to manufacture methamphetamine from the DEA agent.

On April 6,1993, Perez purchased a thirty-gallon drum of hydriodic acid for $9,500 in cash from the DEA agent.

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57 F.3d 1506, 42 Fed. R. Serv. 215, 95 Daily Journal DAR 8123, 95 Cal. Daily Op. Serv. 4735, 1995 U.S. App. LEXIS 15146, 1995 WL 366970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fernando-vizcarra-martinez-ca9-1995.