United States v. Francisco Jimenez Recio, United States of America v. Adrian Lopez-Meza

258 F.3d 1069

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2001
• Docket: 99-30135, 99-30145
• Status: Published

Opinions

Opinion by Judge JAMES R. BROWNING; Concurrence by Judge BETTY B. FLETCHER; Dissent by Judge RONALD M. GOULD

ORDER AND AMENDED OPINION

JAMES R. BROWNING, Circuit Judge:

ORDER

This court’s opinion and the accompanying dissent filed September 27, 2000, are hereby amended. The amended opinions are filed simultaneously with this order, along with a separate concurrence by Judge B. Fletcher.

OPINION

Francisco Jimenez Recio and Adrian Lopez-Meza appeal their convictions of conspiracy to possess with intent to distribute a controlled substance. Jimenez Recio also appeals his conviction for possession with intent to distribute.

Jimenez Recio and Lopez-Meza were arrested for their part in transporting a truck load of marijuana and cocaine, valued at an estimated $12 million. The original driver of the truck had been arrested earlier that day, along with a companion, Arce. Arce agreed to cooperate with the police and contacted other members of the drug conspiracy to have someone sent to retrieve the truck, which had been parked at a mall in Nampa, Idaho. Jimenez Recio and Lopez-Meza appeared at the mall a few hours later. They left separately, with Jimenez Recio driving the truck and Lopez-Meza driving the car that had brought them.

Both argue the district court should have granted their motion for judgment of acquittal after both the first and second trials under United States v. Cruz, 127 F.3d 791, 795 (9th Cir.1997), in which we ruled that a defendant could not be charged with conspiracy to distribute illegal drugs when the defendant was brought into the drug scheme only after law enforcement authorities had already intervened, and defendant’s involvement was prompted by the intervention.

In Cruz, two individuals on their way to Guam to deliver methamphetamine were arrested, and their drugs confiscated. Id. at 794. Because Cruz was lured into taking over the delivery through a government “sting,” we held the evidence was insufficient for a rational jury to have found, beyond a reasonable doubt, that Cruz’s involvement was part of the original, pre-seizure smuggling conspiracy. Id. at 796.

Viewing the evidence in the light most favorable to the government as we must, see United States v. Yossunthom, 167 F.3d 1267, 1270 (9th Cir.1999), we must determine whether any rational jury could find, beyond a reasonable doubt, that Jimenez Recio and Lopez-Meza were involved in the conspiracy prior to the initial seizure of the drugs on November 18, 1998. We focus on the evidence presented at their second trial.¹

The district court held, and the government argues, that there was some evidence tying Lopez-Meza and Jimenez Re-cio to the conspiracy before, the drugs were initially seized. The district court stated that “Lopez’s and [Jimenez Recioj’s words and conduct, upon their picking up the truck in Nampa and subsequently being stopped by the authorities, provided a probative link between themselves and the specific conspiracy charge.” Further, before the initial seizure, both Jimenez Recio and Lopez-Meza allegedly called the same telephone number in Idaho and different numbers in Chicago using pre-paid calling cards.

This is insufficient evidence of guilt. Nothing Defendants said or did on November 18, 1998 directly links them to the pre-seizure conspiracy. That Jimenez Recio and Lopez-Meza lied to officers upon arrest points only to knowledge that they were involved in illicit activity at that time and provides no basis for concluding that they were involved in the conspiracy beforehand. There is also no proof that Jimenez Recio and Lopez-Meza used the pre-paid calling cards; anyone could have used them by dialing the pin number code. In fact, it is clear that at least two of the calls on Lopez-Meza’s card were made by someone else. The government produced no evidence identifying the participants in or the contents of the conversations. The phone numbers called are not probative of a conspiracy: The Idaho calls were to “Nu Acres,” where the drugs were apparently destined, but the number called was a communal telephone at a migrant camp where Lopez-Meza lived. The Chicago calls were all to different telephone numbers.

The other evidence of Defendants’ pre-seizure involvement in the conspiracy is also insufficient. The government argues that Jimenez Recio’s renewal of his “non-owner” driver’s insurance shortly before his arrest demonstrates his anticipation of driving the drug-laden truck; yet, the government expert testified that Jimenez Re-cio would not have been involved in the delivery the following day absent the government “sting,” and thus could not have anticipated being called on to drive. As for the pagers they carried, one would expect whoever recruited them to have outfitted them with the standard equipment used in the trade. Indeed, in light of the strange turn of events this drug shipment had taken, the main conspirators would want to stay in especially close communication with their drivers²

On the other hand, there is strong evidence that Lopez-Meza and Jimenez Recio were not involved in the pre-seizure conspiracy. The government’s main witness, Arce, had never met either Lopez-Meza or Jimenez Recio before the drugs were seized. Once the police decided to continue the drug operation, Arce called an Arizona pager number to arrange for a drop-off, but neither Lopez-Meza nor Jimenez Recio were among the three callers who responded to the page. One of the callers returning the page stated that he would send a “muchacho” (“boy” in Spanish) to get the truck, suggesting that Defendants were simply drivers hired at the last minute.³ Furthermore, the initial conspiracy did not envision a drop-off in the Karcher Mall parking lot where Lopez-Meza and Jimenez Recio retrieved the truck — the police initiated the arrangement to meet there as part of their post-seizure “sting” operation. Indeed, Arce and the government’s own expert testified that Arce and Sotello, the original driver, would have driven the drug truck to the Nu Acres “stash house” themselves had they not been stopped and arrested. Taken as a whole, the evidence was insufficient for a rational jury to conclude beyond a reasonable doubt that Defendants were involved in the conspiracy to deliver the drugs prior to the initial seizure of the truck.

The government also relied on an additional broader conspiracy theory to circumvent Cruz on retrial, providing detailed expert testimony demonstrating that the drug shipment bore the hallmarks of a complex and sophisticated operation that likely involved more than one shipment. However, the limited role Defendants played in the November 18 shipment alone is insufficient to charge them with complicity for any prior loads. Cf. United States v. Umagat, 998 F.2d 770, 773-774 (9th Cir.1998) (minor role of defendants in single transaction does not permit imputed liability for the broader conspiracy). Therefore, this theory too hinges on proof of prior involvement.

The strongest evidence that Defendants might be repeat players in drug trafficking were the multiple receipts for expired non-owner insurance policies found on Jimenez Recio. This suggests he habitually drove vehicles he did not own, from which a jury could further infer that Jimenez Recio regularly drove drug trucks for the conspiracy. It is a close question as to whether this inference, in conjunction with the other circumstantial evidence, could suffice to eliminate reasonable doubts among rational jurors as to Jimenez Recio’s guilt (and by extension, perhaps Lopez-Meza’s as well).

Ultimately, however, we remain unpersuaded. The insurance can also be accounted for by alternative explanations. For example, Jimenez Recio might work as a driver for legitimate businesses. The trafficking conspirators might naturally have turned to such an individual once Sotello was arrested (assuming alternate drivers within the conspiracy were unavailable).⁴ Jimenez Recio was also an illegal immigrant. As such, he would be reluctant to testify as to his legitimate work, lest he jeopardize his employers and his own future employment; this could explain the defense’s silence on the matter.⁵

As for Lopez-Meza’s multiple links to his uncle Jose Meza (a.k.a “Raul”) and to Nu Acres, the “stash house” where both Lopez-Meza and Jose Meza apparently lived at times, these are hardly probative of nefarious activity. Much of the dissent’s reasoning from these facts amounts to guilt-by-association. If Lopez-Meza indeed lived at Nu Acres, so did many other immigrants. His presence on the scene and familial ties to Jose Meza just as readily support the theory that he was simply a convenient substitute recruited at the last minute.

We need now only address those claims relevant to Jimenez Recio’s conviction at the first trial of possession with intent to distribute a controlled substance.

The district court did not err by allowing evidence of the odor of burned marijuana in Lopez-Meza and Jimenez Recio’s blue Mazda. The evidence was relevant to the charge that Jimenez Recio possessed marijuana with intent to distribute. See United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994). One of the primary issues was whether Jimenez Recio knew there were narcotics in the flatbed truck when he and Lopez-Meza retrieved it. The fact that their own car reeked of marijuana makes it more likely that Jimenez Recio was familiar with the odor and knew they were in possession of marijuana.

The district court did not err by denying Defendants’ motion for a mistrial based on the prosecutor’s reference to a “stash house.” Since the government had referred to the Nu Acres residence as the ultimate destination of the drugs without objection, it was not particularly prejudicial for the prosecutor to refer to that residence as a “stash house.” Although the prosecutor violated the court’s instruction not to use the term, the prosecutor’s misconduct does not require reversal since nothing in the record suggests the jury’s verdict was affected by its use.

The district court did not abuse its discretion in admitting the expert testimony of Special Agent Hinton. It did not exceed the boundaries set by the district court or by Federal Rules of Evidence Rule 702.

Finally, Jimenez Recio’s counsel’s failure to move for acquittal on Count Two, possession with intent to distribute, after the first trial constituted ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ordinarily, we do not reach claims of ineffective assistance of counsel on direct appeal, and only do so in habéas corpus proceedings. See United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000). However, we review ineffective assistance claims where the record is “sufficiently developed to permit review and determination of the issue” or where “the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. (quoting United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992)).

The government’s concession in its brief regarding the motion for judgment of acquittal provides such a record: “The Government agrees with the first premise, namely, that had Appellant’s trial counsel made the motion for judgment of acquittal as to Count Two, the trial judge would have granted sua sponte the new trial as to both counts, as he did for codefendant Lopez.” This concession makes a sufficient record to find prejudice since all parties agree that Jimenez Recio would have been granted a new trial but for the actions of his counsel. Although the government may not have dismissed the possession with intent to distribute count against Jimenez Recio before the second trial,⁶ the fact that Jimenez Recio was denied a new trial constitutes prejudice in its own right.

The conspiracy convictions are reversed and dismissed with prejudice because of insufficient evidence.

AFFIRMED IN PART, REVERSED IN PART.

1 . The second trial included substantially all the evidence at the first trial as well as additional testimony analyzing telephone records and the opinion of a government expert that the conspiracy was a large operation. Because we conclude this evidence was insufficient, the same would apply a fortiori to the evidence at the first trial. In fact, it is unclear whether we could properly review the sufficiency of the evidence at the first trial. Cf. United States v. Sarkisian, 197 F.3d 966, 985 n. 7 (9th Cir.1999) (reserving the question of whether the sufficiency of evidence in an initial mistrial is reviewable on appeal from conviction at second trial); compare United States v. Gulledge, 739 F.2d 582, 584 (11th Cir.1984) (suggesting in dicta evidence would be reviewable), with United States v. Kimberlin, 805 F.2d 210, 231 (7th Cir.1986) (suggesting the contrary).

2 . The dissent draws from this and other evidence a series of inferences that reasonable jurors could reach. Review of the evidence in the light most favorable to the government must still meet the requirement of proof beyond a reasonable doubt. Where, as here, the evidence is inherently ambiguous, it is not enough that a jury could reasonably reach certain inferences if reasonable doubt as to a different conclusion cannot be dismissed.

3 . The government expert credited Arce’s testimony that Arce had been similarly recruited at the last minute. Therefore, the general inference drawn by the dissent "that co-conspirators would not entrust such a large value of drugs to a person not integrally involved in the conspiracy” would seem less applicable to this conspiracy. In any case, Lopez-Meza’s familial ties to his uncle “Raul,” a seemingly central figure in the case, provide an equally plausible explanation for the apparent trust placed in Lopez-Meza (and by extension Jimenez Recio).

4 . Although the record is not clear as to size of the truck in this case, it is described variously as a "flat-bed” or "construction truck," suggesting that it is at least somewhat larger than the average consumer vehicle. If so, the need for a driver with a particular expertise in driving such trucks would be evident.

5 . Testimony from the immigration agent that he had never seen such a policy carried by an illegal immigrant before is irrelevant. The government expert on drug trafficking notably omitted any mention of the insurance as common in that context either. If, as the dissent observes "[e]ven drug-trafficking conspirators, it seems, want insurance,” the same can be said of illegal immigrants, and for the same reason.

6 . The circumstances suggest the government dismissed Count Two against Lopez-Meza only to avoid the incongruity of charging both defendants with conspiracy, but only Jimenez Recio with possession, although both basically engaged in the same conduct.