United States v. Rafael Gil-Garcia ( 2019 )

NOT FOR PUBLICATION FILED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
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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
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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,
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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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