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United States v. Nunez-Orozco

filed: August 20, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HUMBERTO NUNEZ-OROZCO, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. ISRAEL MERCADO-CONTRERAS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-91-2175-AAM, D.C. No. CR-91-2174-AAM. Alan A. McDonald, District Judge, Presiding

Before: Canby, Wiggins, and T.g. Nelson, Circuit Judges

MEMORANDUM

Humberto Nunez-Orozco, Israel Mercado-Contreras, and Salvador Nunez-Ramos were charged in a single count indictment with conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 846. After waiving their right to a jury trial, Nunez-Orozco and Mercado-Contreras were convicted in a bench trial. We have jurisdiction over their timely appeals pursuant to 28 U.S.C. § 1291, and we affirm.

I. Sufficiency of the Evidence

Nunez-Orozco and Mercado-Contreras challenge on sufficiency of the evidence grounds their convictions for conspiracy to import heroin. In considering a challenge to the sufficiency of the evidence, we consider "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); see also United States v. Bishop, 959 F.2d 820, 829 (9th Cir. 1992).

"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. Medina, 940 F.2d 1247, 1250 (9th Cir. 1991) (quoting United States v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir. 1988)). "Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy." United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987); see also United States v. Litteral, 910 F.2d 547, 550 (9th Cir. 1990).

To support Nunez-Orozco and Mercado-Contreras's convictions for conspiracy to import heroin, the government offered Nunez-Ramos's testimony that Nunez-Orozco had solicited him into the conspiracy, that Nunez-Ramos's arrest occurred on what was his third importation trip, that Mercado-Contreras had financed the trips, and that Mercado-Contreras had provided him with the essentials of each trip immediately prior to his departure. The government generally corroborated this testimony with evidence that a Western Union Money Transfer sent from Yakima, Washington, to Nunez-Ramos in Visalia, California, on October 18, 1991, listed Nunez-Orozco as the sender; that another money transfer to Nunez-Ramos, on September 18, listed Mercado-Contreras as the sender; that the dates of the transfers corresponded to the dates on which Nunez-Ramos bought airline tickets to Guadalajara, Mexico, and returning to Yakima, Washington; that several phone calls were made from Mercado-Contreras's residence in Yakima to Nunez-Ramos in Dinuba, California; and that these phone calls generally occurred about two days prior to Nunez-Ramos's scheduled departure for Mexico. Finally, the government offered evidence that on October 12, 1991, Nunez-Orozco, accompanied by Mercado-Contreras, drove his car to the Yakima airport to pick up Nunez-Ramos, who was carrying heroin in his shoe at the time.

Considering that "the uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face," United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987), we have little difficulty concluding that the evidence amply supports Nunez-Orozco and Mercado-Contreras's convictions for conspiracy to import heroin.

II. Ineffective Assistance of Counsel

Mercado-Contreras claims that his trial counsel was ineffective and that he was denied due process by this ineffectiveness. We review de novo whether a defendant received ineffective assistance of counsel. See United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1991).

The customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack under 28 U.S.C. § 2255. See United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988) (per curiam); United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943 (1984). However, we may consider such claims on direct appeal if the record is sufficiently complete to permit review and determination of the issue, see Swanson, 943 F.2d at 1072, or in the rare case "when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel." United States v. Robinson, 967 F.2d 287, 290 (9th Cir. 1992). Because neither of these situations apply here, we refuse to reach Mercado-Contreras's ineffective assistance of counsel claim.*fn1

III. The Sentencing Guidelines

Nunez-Orozco and Mercado-Contreras also claim that the district court erred in determining that the amount of heroin involved in the conspiracy exceeded 800 grams. Mercado-Contreras further claims that the district court erred in determining that he was an organizer, leader, manager, or supervisor of the conspiracy. We review de novo a district court's application of the Sentencing Guidelines, see United States v. Chavez-Gutierrez, 961 F.2d 1476, 1479 (9th Cir. 1992), and for clear error the district court's factual findings. See United States v. Chapnick, 963 F.2d 224, 226 (9th Cir. 1992). Finally, we must give "'due deference to the ...


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