United States v. Rafael Gil-Garcia

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 2019
• Docket: 18-10011
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10011

Plaintiff-Appellee, D.C. No. 4:16-cr-01845-JGZ-EJM-1 v.

RAFAEL ARGENIS GIL-GARCIA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

Submitted April 15, 2019** San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and VRATIL,*** District Judge.

Rafael Gil-Garcia appeals his convictions for conspiracy to possess with

intent to distribute heroin and methamphetamine (Count 1), conspiracy to import the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. same substances (Count 4), as well as the underlying offenses of possession with

intent to distribute and importation of the same substances (Counts 2–3 and 5–6).

On appeal, defendant challenges the sufficiency of the indictment and the evidence

of conspiracy and also challenges the expert testimony of DEA Agent Michael

Garbo. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Because defendant did not object below to the sufficiency of the

indictment, we review his challenge on appeal for plain error. See United States v.

Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

An indictment must contain a “plain, concise, and definite written statement

of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).

Defendant argues that the charge that he conspired with “unknown” co-conspirators

fails to state an element of the offense of conspiracy, i.e. an agreement. It is well

established, however, that the agreement to commit the offense – not the specific

identity of the conspirators – is the essential element of the crime. See Rogers v.

United States, 340 U.S. 367, 375 (1951) (“[A]t least two persons are required to

constitute a conspiracy, but the identity of the other members of the conspiracy is

not needed, inasmuch as one person can be convicted of conspiring with persons

whose names are unknown.”) (footnote omitted). The two conspiracy counts

adequately informed defendant of the alleged conspiratorial agreement. United

States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995) (“An indictment is sufficient if

2 18-10011 it contains the elements of the charged crime in adequate detail to inform the

defendant of the charge and to enable him to plead double jeopardy.”) (quoting

United States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982)). Defendant has not

shown any defect in the indictment that constitutes plain error.

2. At the close of the government’s case, defendant moved under Rule 29,

Fed. R. Crim. P., for judgment of acquittal based on sufficiency of the evidence. He

did not renew his motion at the close of all the evidence. Accordingly, we review

his contention on appeal for plain error. See United States v. Cruz, 554 F.3d 840,

844 (9th Cir. 2009).

Defendant argues that the evidence was insufficient to support the two

conspiracy charges because (1) he was the sole occupant of the vehicle in which the

drugs were found and (2) the government presented no evidence that he agreed with

a specific individual to commit the underlying offenses. In reviewing the sufficiency

of the evidence, we must determine – after viewing the evidence in the light most

favorable to the prosecution – whether “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

The government presented only circumstantial evidence that defendant agreed

with another individual to possess with intent to distribute and to import controlled

3 18-10011 substances. Even so, a rational jury could have found beyond a reasonable doubt the

requisite agreement on both conspiracy counts based on (1) the quantity and value

of the drugs, (2) the packaging and labeling of the drugs, (3) the sophistication of

the hidden compartment, and (4) defendant’s testimony that he did not put the drugs

in the tailgate and did not know even how to construct or install the hidden

compartment. See United States v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (“The

agreement need not be explicit; it is sufficient if the conspirators knew or had reason

to know of the scope of the conspiracy and that their own benefits depended on the

success of the venture.”) (quoting United States v. Montgomery, 384 F.3d 1050,

1062 (9th Cir. 2004)); United States v. Garcia, 151 F.3d 1243, 1245 (9th Cir. 1998)

(“An inference of an agreement is permissible only when the nature of the acts would

logically require coordination and planning.”).

3. At trial, defendant did not object to the expert testimony of Agent

Garbo. Accordingly, we review the district court’s admission of such testimony for

plain error. United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015).

At trial, defendant testified that in essence he was an unknowing courier or

blind mule, and that his fingerprints would not be on the tailgate which contained

the drugs. Agent Garbo testified that the drugs’ value was approximately $300,000

and that it was unlikely that a drug trafficking organization would use an unknowing

courier due to the difficulty and financial risks. This testimony was relevant,

4 18-10011 probative of defendant’s knowledge and not unfairly prejudicial. See United States

v. Sepulveda-Barraza, 645 F.3d 1066, 1072 (9th Cir. 2011) (testimony that drugs

were worth more than $150,000 and that drug trafficking organizations do not

normally use unwitting couriers for high value shipments “went right to the heart”

of unknowing courier defense); see also United States v. Pineda-Torres, 287 F.3d

860, 865 (9th Cir. 2002) (“[L]imited drug structure testimony is admissible in drug

importation cases when the defense opens the door by introducing evidence that the

government did not attempt to lift fingerprints.”). Likewise, Agent Garbo’s general

testimony about drug trafficking organizations and dry runs was relevant to show

that others were involved, to help provide context for the testimony about

unknowing couriers, and to give a possible reason for defendant’s multiple border

crossings in the prior months. Defendant has not shown that the district court

committed plain error in admitting Agent Garbo’s testimony.

AFFIRMED.

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