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United States v. Salguiero-Duarte

*fn* submitted: November 17, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JULIAN SALGUIERO-DUARTE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. No. CR-87-41-4-OMP. Owen M. Panner, Chief Judge, Presiding

Before: Schroeder, D.w. Nelson, and Thompson, Circuit Judges.

MEMORANDUM

Julian Salguiero-Duarte appeals his convictions following jury trial for conspiracy to distribute and to possess with intent to distribute heroin, possession with intent to distribute heroin, and attempt to distribute heroin in violation of 21 U.S.C. § 841(a)(1). Salguiero-Duarte contends (1) insufficient evidence existed to sustain his convictions; (2) expert opinion testimony was improperly admitted; and (3) the jury instructions omitted the drug quantity element. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I

Sufficient Evidence

Salguiero-Duarte contends that insufficient evidence existed to support his convictions. This contention lacks merit.

In the absence of a motion for acquittal, we review for plain error the sufficiency of the evidence. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 107 L. Ed. 2d 135, 110 S. Ct. 179 (1989), and cert. denied, 493 U.S. 863, 107 L. Ed. 2d 135, 110 S. Ct. 179 (1989).*fn1

To prove a conspiracy, the government must show (1) an agreement to engage in criminal activity; (2) one or more overt acts in furtherance of the conspiracy; and (3) the intent necessary to commit the underlying substantive offense. United States v. Rubio-Villareal, 927 F.2d 1495, 1499 (9th Cir. 1991), on reh'g, 967 F.2d 294 (9th Cir. 1992). "'An implicit agreement may be inferred from the facts and circumstances of the case.'" Hernandez, 876 F.2d at 777 (quoting United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972, 53 L. Ed. 2d 1069, 97 S. Ct. 2936 (1977)). Uncorroborated accomplice testimony provides sufficient evidence unless it is incredible on its face. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991), cert. denied, 112 S. Ct. 947 (1992). We must defer to the jury's assessment of credibility. United States v. Martinez, 967 F.2d 1343, 1345 (9th Cir. 1992).

"To sustain a conviction for possession with intent to distribute heroin, the government must prove that the defendant (1) knowingly (2) possessed the heroin (3) with intent to distribute it." United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir.), cert. denied, 481 U.S. 1023, 95 L. Ed. 2d 515, 107 S. Ct. 1909 (1987). A defendant's power to dispose of the drug, either personally or through an agent, may demonstrate constructive possession, but mere presence on the property where contraband is located is insufficient. United States v. Smith, 962 F.2d 923, 929 (9th Cir. 1992); United States v. Sanchez-Mata, 925 F.2d 1166, 1168-69 (9th Cir. 1991). The presence of drug sale paraphernalia and a large quantity of drugs may show an intent to distribute. Martinez, 967 F.2d at 1345.

To sustain a conviction for attempt to distribute heroin, the government must establish culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent. United States v. DeRosa, 670 F.2d 889, 894 (9th Cir.), cert. denied, 459 U.S. 993 (1982), and cert. denied, 459 U.S. 1014 (1982).

Here, police officers and Drug Enforcement Administration agents surveilled a controlled drug transaction in a hotel room. The informant, Larry Lennon, wore a radio transmitter and negotiated with Marcelo Chassaigne, Debra Pfiefer, and Lorenzo Nava-Cervantes to purchase six to eight ounces of black tar heroin at $5,000 to $5,500 per ounce. The police overheard Chassaigne tell Lennon that "Julio . . . [who] works at the Lombard Shell Station" would be able to supply the heroin. Police Sergeant Edward May, who believed "Julio" referred to Salguiero-Duarte, went to the Shell station where Salguiero-Duarte worked and saw Chassaigne and Pfiefer meet Salguiero-Duarte and George Elias, the owner of the station. After a short time Elias followed Chassaigne and Pfiefer back to the hotel room and was arrested as he attempted to flush the heroin down the toilet.

Elias cooperated with the officers by allowing them to tape record a telephone call to Salguiero-Duarte. During that conversation, Elias confirmed that he had completed the deal and asked if Salguiero-Duarte could acquire "a big quantity" because "it's really good stuff." Salguiero-Duarte said "yes" and asked Elias to come back to the station to talk about it. Elias asked if he should bring the money and Salguiero-Duarte said "yes."

When arrested at the station, Salguiero-Duarte was wearing a pager. A search of the gas station uncovered scales, a cocaine testing device, $6,000, and heroin.

Pursuant to a plea agreement, Elias agreed to testify against Salguiero-Duarte in exchange for an eighteen-month custodial sentence and a recommendation against deportation. At trial, Elias testified that Salguiero-Duarte supplied the heroin, asked him to deliver it because Salguiero-Duarte feared he was under surveillance, agreed to pay ...


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