Appeal from the United States District Court for the Central District of California. D.C. No. CR-89-0604-RSWL-2, D.C. No. CR-89-0605-CBM-10, D.C. No. CR-89-0605-CBM-1. Consuelo B. Marshall and Ronald S.W. Lew, District Judges, Presiding.
Before: Canby, Kozinski, and Fernandez, Circuit Judges
Maria Marin (Marin) appeals her conviction following a jury trial for distribution and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and her conviction pursuant to a guilty plea for conspiracy and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 846. Luis Alfredo Avilan Borda (Borda) appeals his conviction of thirteen counts of narcotics crimes, including conspiracy, distribution, possession with intent to distribute, money laundering, and continuing criminal enterprise. We affirm both convictions.
Marin appeals her conviction following a jury trial in the case of United States v. Paniagua, No. 89-0605 (Paniagua case) and her conviction pursuant to a guilty plea in the case of United States v. Borda, No. 89-0604 (Borda case). The indictment in the Paniagua case charged codefendants Marin, Paniagua, and Valencia with (1) conspiracy to distribute and to possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846, (2) possession with the intent to distribute 131 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), and (3) distribution of 131 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). The overt acts charged occurred on July 3, 1989 when Marin and Paniagua drove a car to a Canyon Road residence in Costa Mesa, California, loaded the car with cocaine, and exchanged cars with Valencia. Marin was convicted of the possession and distribution counts, but was acquitted of the conspiracy charges. She was sentenced to 188 months in prison.
The indictment in the Borda case was brought against codefendants Borda, Garcia, Matias, Ramirez Marin, Suarez, Marsans, Casasus, Karam, Paniagua, and Marin. The indictment alleged various narcotics offenses, conspiracy, continuing criminal enterprise, and money laundering. Marin was only identified as part of the operation that delivered cocaine to Garcia and stored 200 kilograms for later distribution. The overt acts in this second indictment occurred on July 1, 1989 (the delivery) and July 3, 1989 (the storage). Marin pled guilty to conspiracy and possession with intent to distribute 200 kilograms of cocaine. She was sentenced to 121 months to be served concurrently with the sentence imposed in the Paniagua case.
Borda was indicted as one of the organizers of a drug ring. He was charged with conspiracy to possess and distribute cocaine; distribution and possession of cocaine; aiding and abetting codefendants Suarez, Marsans, and Casasus in the distribution of and possession of cocaine; aiding and abetting in the laundering of the proceeds of narcotics activities; aiding and abetting Garcia, Paniagua, and Marin in the possession and distribution of cocaine; and continuing a criminal enterprise as an organizer, supervisor, or manager of at least five other people in a series of narcotics violations.
The jury began deliberating on February 12, 1990. At first, it was unable to reach a unanimous verdict on two of the counts. The court asked the jury to return the verdicts on which they had unanimously agreed and sealed those verdicts. The court then gave a modified Allen charge. On March 5, 1990 the jury reached a unanimous verdict as to the remaining counts. Borda was convicted of all the charges against him and sentenced to 327 months in prison.
Marin did not raise the issue of double jeopardy in the district court. The general rule is that an issue not raised in the district court will not be considered on appeal, absent exceptional circumstances, a pure issue of law, or a change in the law. United States v. Smith, 924 F.2d 889, 893-94 (9th Cir. 1991). There may be times when a double jeopardy issue need not be raised in the district court before it is raised on appeal. See United States v. Blocker, 802 F.2d 1102, 1103-04 (9th Cir. 1986) (no need to raise duplicitous indictment issue pre-plea in order to attack a duplicitous sentence). However, those are instances where the defect appears on the face of the indictment. Id.
Furthermore, Marin waived her double jeopardy claim by pleading guilty to the conspiracy charged in the second indictment. See United States v. Broce, 488 U.S. 563, 569, 576, 109 S. Ct. 757, 762, 765, 102 L. Ed. 2d 927 (1989); United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991); see also United States v. Montilla, 870 F.2d 549, 552-53 (9th Cir. 1989), amended on other grounds, 907 F.2d 115 (9th Cir. 1990) (by pleading guilty, defendant waived right to challenge alleged due process violation caused by outrageous government conduct). Marin pled guilty to the conspiracy charged in the Borda trial, even though she had been acquitted of the conspiracy charge in the first trial. We have reviewed the indictments and the record in the Borda case and it is apparent that consideration of her double jeopardy claim requires looking to facts outside the face of the two indictments and the existing record. The indictments and the record by no means demonstrate that the two major drug transactions that Mar in engaged in during her five day sojourn in Southern California were part of a single conspiracy. Thus, she waived this issue by pleading guilty. Broce, 488 U.S. at 576, 109 S. Ct. at 765-66.
At any rate, contrary to Marin's request, even if her double jeopardy claim were decided in her favor, we would not dismiss the substantive convictions in the first case. We would only dismiss the conspiracy charges in the second one. The substantive charges of which she was found guilty in the Paniagua case are distinct from the conspiracy charges, United States v. Becker, 720 F.2d 1033, 1036 (9th Cir. 1983), and would not be encompassed by a Conclusion that double jeopardy barred the second conspiracy indictment. Of course, we recognize that this reasoning would not ...