Appeal from the United States District Court for the Central District of California. D.C. No. CR-86-0624-FFF-5. Ferdinand F. Fernandez, District Judge, Presiding
Before: Wiggins, Kozinski, and Kleinfeld, Circuit Judges.
On April 17, 1987, a jury convicted defendant Hugo Leigue Canamari of violating 21 U.S.C. § 963, conspiracy to import cocaine. On June 29, 1987, Leigue received a three and one half year prison term and a fifty dollar special assessment fee. Leigue filed a Notice of Appeal in compliance with Fed. R. App. P. 4(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
In January, 1986, Ferris Ashley, a DEA informant, learned that John Malpezzi was looking for a pilot and a crew to assist in the smuggling of cocaine from Bolivia to the United States. With the approval of DEA Agent Gregory Lee, Ashley met with Malpezzi and offered to handle the transportation of the cocaine.
On February 3, Malpezzi introduced Ashley to Romula Rojas and Jose Leon, who primarily were responsible for providing the drugs. Ashley introduced Rojas and Leon to undercover DEA agents Gregory Lee and Michael Moren, who posed as Ashley's pilot. With various stops and starts, over the next few months these parties and defendant Hugo Leigue Canamari, who entered the drug smuggling scheme in March, plotted to smuggle anywhere from 100 to 700 kilograms of cocaine from Bolivia to the United States. Ultimately, the parties agreed that Agents Lee and Moren would take delivery of a 700 kilogram load of cocaine at El Trompillo Airport in Bolivia on June 29.
On June 28, Rojas and Leigue notified Agents Lee and Moren that they could not use El Trompillo Airport as planned because of the unexpected arrival there of two large military aircraft. Later that same day, Agents Lee and Moren telephoned Leigue and suggested the use of an alternative airstrip in Panama. The agents also indicated that they could arrange for immediate payment of $1,600,000 cash in Panama to cover the cost of the 200 kilograms of cocaine not covered by a proposed letter of credit. Leigue agreed both to the Panamanian pickup site and to go to Panama and pick up the cash. While in Panama, Leigue was arrested.
Leigue argues that the evidence is insufficient to support his conviction for conspiracy to import cocaine. In considering a challenge to the sufficiency of the evidence, we decide "whether, after viewing 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); United States v. Medina, 940 F.2d 1247, 1250 (9th Cir. 1991). "The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed in the light most favorable to the government, sustain the verdict." United States v. Davis, 932 F.2d 752, 761 (9th Cir. 1991).
A. Leon Is Not the Law of the Case
We quickly dispose of the government's argument that this court's decision in United States v. Leon, No. 87-5177, constitutes law of the case. It is axiomatic that law of the case requires an identity of the parties to be bound. See, e.g., United States v. Guy, 903 F.2d 1240, 1242 (9th Cir. 1990) (refusing to apply law of the case where case involved different parties convicted in different trials); United States v. Brown, 761 F.2d 1272, 1276 (9th Cir. 1985) ("Brown was not a party in Goetz, and thus Goetz is not binding as law of the case. . . ."); United States v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984) (refusing to apply law of the case where "Maybusher was not a party to the final proceedings in Emens II, and his ultimate conviction did not occur as a result of the same trial as his co-defendant."), cert. denied, 469 U.S. 1110 (1985). Because Leon did not involve Leigue as a party, it does not and could not constitute law of the case.*fn1
B. The Record and Relevant Case Law Support Leigue's Conviction for Conspiracy to Import Cocaine
The essential elements of a conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. United States v. Hill, 953 F.2d 452, 457 (9th Cir. 1991); United States v. Medina, 940 F.2d at 1250; United States v. Ray, 930 F.2d 1368, 1371 (9th Cir. 1990). Once the existence of a conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy. United States v. Ray, 930 F.2d at 1371; United States v. Litteral, 910 F.2d 547, 550 (9th Cir. 1990).
The gravamen of Leigue's argument that the evidence was insufficient to support his conviction for conspiracy to import cocaine is that the first requisite of the crime of conspiracy -- the existence of an agreement -- is absent in his case. Specifically, he argues that on June 28, 1986, when Rojas and Leigue balked at the El Trompillo Airport pickup site, the parties reached an irreconcilable impasse that "terminated" the negotiations because the pickup site was an absolute deal breaker. Leigue thus argues that under this court's decision in United States v. Melchor-Lopez, 62 ...