UNITED STATES of America, Plaintiff-Appellee, v. Danilo Bautista BATIMANA and Jose Edgardo Noguera, Defendants-Appellants.
No. 79-1269, 79-1270.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 5, 1979. Decided July 22, 1980.
623 F.2d 1366
Before WRIGHT, HUG, and FLETCHER, Circuit Judges.
HUG, Circuit Judge:
Appellants, Batimana and Noguera, and a third defendant, Samuel Nicanor,1 were convicted by a jury of conspiring to import and possess with intent to distribute heroin, in violation of
Nicanor and a man named Virgilio Delin had arranged to have Edgardo Lavadia bring 500 grams of heroin from the Philippines for delivery to Nicanor in Los Angeles. Unbeknownst to Nicanor and Delin, Lavadia had been arrested by Philippine police, and had agrеed to cooperate in identifying his associates.
Accompanied by Philippine and American narcotics officers, Lavadia flew to Los Angeles with the heroin on October 2, 1978. Nicanor met him at the airport with appellants. Appellants followed Nicanor and Lavadia from thе boarding area to the baggage area, waited outside the baggage area for 45 minutes, and then drove to the Marriott Hotel in one car, while Nicanor and Lavadia drove in another. The four men met in the lobby and proceeded to one of the hotel rooms. The heroin was lаter delivered to the room and shortly thereafter Nicanor, Batimana and Noguera were arrested.
I.
A. Sufficiency of the Evidence
Appellants contend that there was insufficient evidence to sustain their con
There was substantial evidence against both appellants establishing their connection to the conspiracy. The testimony of the DEA agents indicated that appellants were acting as lookouts at the airport and also at the hotel. See United States v. Perez, 491 F.2d 167, 171 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). Lavadia‘s testimony that Nicanor told him at the airport to give the heroin to Batimana and Noguera was evidence of appellants’ connection to the conspiracy. Lavadia also testified that Nicanor stated in the hotel room that Batimana and Noguera would sell 20 ounces of the heroin the next day, and that appellants heard this statement and did not refute it, which further indicated appellants’ involvement in the conspiracy.
The evidence showed that Nicanor had given Batimana‘s phone number to Lavadia to use to contact Nicanor in Los Angeles. Lavadia also testified that when he arrived at the airport Batimana asked Lavadia if he was “Tom,” the alias Lavadia had used in his drug transaсtions. There was evidence that in the hotel room Batimana had put his hand in the bag to taste the heroin. After the heroin was delivered to the room, Noguera went over and placed the chain lock on the door, and then went over to look at the heroin. Besides the verbal evidenсe, the jury viewed a videotape of what had taken place in the hotel room. The incredibility of appellants’ own testimony as to their reasons for waiting at the airport and going to the hotel room with Nicanor also may be considered in determining their involvement. See United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975).
We conсlude that this evidence, viewed in its entirety, was ample to support the jury‘s finding.
B. Admissibility of Out-of-Court Statements
Appellants contend that Lavadia‘s testimony about Nicanor‘s request that Lavadia give the heroin to appellants at the airport and the testimony about the statement of Nicanor in the hotel room that appellants would sell 20 ounces of heroin the next day were inadmissible hearsay. We note that no objection was made at trial to admission of the testimony and thus the admission of the testimony could be considered on appeal only if found to be plain error. Because we find the statements were admissible evidence, we need not be concerned with the plain error doctrine.
The test for admissibility of out-of-court statements of a co-conspirator is whether there is sufficient, substantial evidence apart from the statements which establishes a prima facie case of the conspiracy and the defendant‘s slight connection to the conspiracy. United States v. Weiner, 578 F.2d 757, 768-69 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). Again, appellants do not challenge
It is clear in this circuit that the statements may be admitted provisionally subject to later motions to strike, see United States v. Vargas-Rios, 607 F.2d 831, 836-37 (9th Cir. 1979); we can therefоre consider all of the evidence independent of the out-of-court statements regardless of the order of proof. We conclude that the evidence discussed above, excluding the challenged statements, was sufficient to meet the prima facie showing. The statements were thus admissible under
Furthermore, Nicanor‘s statement that Batimana and Noguera would sell 20 ounces of heroin the next day, made in appellants’ presence, was admissible as an adoptive admission. See
II.
Appellants also assert thаt the evidence was insufficient to sustain their convictions for possession of heroin. The government responds that they were “minimally” in control of the drugs. We disagree.
Possession of a controlled substance may be actual or constructive. United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir.), cert. denied, 444 U.S. 875, 100 S.Ct. 157, 62 L.Ed.2d 102 (1979). Actual possession connotes physical сustody or actual personal dominion. Cf. United States v. Amaro, 422 F.2d 1078, 1080 (9th Cir. 1970) (“physical custody“).
The record is devoid of evidence that appellants had actual possession of the heroin. A DEA agent delivered the drugs to Lavadia. Agents entered the hotel room to effect arrests minutes after delivery. During that brief time, Noguera did not touch the package. Testimony that Batimana “tried” to place his hand inside the bag is insufficient to establish physical custody. Neither appellant had personal possession of the package.
Constructive possession has been defined as “‘dominion and control . . . so as to give power of disposal of the drug.‘” Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962). Mere proximity to the drug, mere presence, or mere association with the person who does control the drug is insufficient to support a finding of possession. Id.
There is no evidence that appellants asserted dominion and control over the heroin. Indeed, the limited time span negates such an argument. Lavadia took possession of the package upon delivery. Appellants were not included in the subsequent conversation between Lavadia and Nicanor. Viewing the contents of the drug package does not indicate the requisite ability “to assure [its] production, without difficulty, to a customer.” United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir. 1972).
As an alternative ground for affirmance, the government argues that the evidence was sufficient to support conviction on the theory that appellants aided and abetted Nicanor in his possession of the heroin. The jury was instructed on the aiding and abetting theory.2
In order to aid and abet another to commit a crime, it is necessary that a
Assuming Nicanor could be found to be in possession, there was insufficient evidence that Batimana and Noguera did anything to effect that crime. Although appellants were present at the scene, mere presence does not make one an aider and abettor. United States v. Camacho, 528 F.2d 464 (9th Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). Further, there was no showing they assisted the perpetrator. Cf. United States v. Groomer, 596 F.2d 356, 358 (9th Cir. 1979) (defendant was present and assisted in unloading bags containing contraband with knowledge of contents).
The government relies on Noguera‘s act of chaining the hоtel room door after the drugs had been delivered. This ambiguous act is insufficient to satisfy the participation requirements for aiding and abetting the possession of heroin.
The convictions on Count I for conspiracy to import and possess are affirmed. The convictions on Count II for possеssion are reversed.
III.
Having affirmed the conviction for conspiracy and reversed the conviction for possession, we consider the effect of our decision upon the grant of probation. The district court suspended imposition of sentence on both counts of the indictment аnd placed each appellant on probation for a period of five years.
The well-established rule is that the conspiracy to do an act and the completed substantive offense are separate crimes for which separate sentences can be imposed. See Iannelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 1289-90, 43 L.Ed.2d 616 (1975); Hill v. United States, 306 F.2d 245, 247 (9th Cir. 1962). There is nothing in the legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970,
The district court could have sentenced appellants separately for each conviction. Instead, the court placed appellants on five years’ probation. This court has on several occasions expressed disapproval of the failure of the district court to impose separate sentences for each count of a multiple count indictment. See Lee v. United States, 400 F.2d 185, 187 (9th Cir. 1968); Ray v. United States, 372 F.2d 80, 83 (9th Cir. 1967); McDowell v. Swope, 183 F.2d 856, 858 (9th Cir. 1950). Such a sentence will be upheld, however, if the conviction is sustainable on any count of the indictment, and the general sentence does not exceed the maximum sentence that could have been imposed on that count. See Ray v. United States, 372 F.2d at 82; 2 C. Wright, Federal Practice &
We seе no reason why the principle behind this general sentence doctrine should not apply by analogy to the present case, where the district court imposed a general probationary term based on multiple convictions. We note that a five-year probationary term could have been imposed on the basis of the conspiracy conviction alone,
AFFIRMED in part and REVERSED in part.
FLETCHER, Circuit Judge, concurring:
I concur in the court‘s result in all respects. I concur with thе reasoning in parts I and III of the opinion. As for part II, I agree that neither Batimana‘s nor Noguera‘s participation rose to a level that would make them aiders and abettors. Even if their participation had reached that level, however, accessorial liability, like other thеories of vicarious liability, requires a guilty principal. The only person who could have committed the crime of possession was Nicanor. The evidence in this case was insufficient to establish that Nicanor was guilty of possession.
This case presents a “controlled delivery” situation in which Lаvadia was under close police direction from the time he purchased the heroin through the time he handed it over to Nicanor. Although Nicanor might have actually been physically holding the heroin at the time of his arrest, it does not establish that he was in either actual or constructive possession of the drugs. The defendant must be able to exercise “dominion and control” over the contraband in order to establish actual or constructive possession. Arellanes v. United States, 302 F.2d 603 (9th Cir.), cert. denied, Id.. This transaction was so tightly controlled by the police that Nicanor never had power to control the disposition of the drugs in any way.1 In such a circumstance, and despite the fact that he had the drugs in his physical possession, it cannot be said that he had possession of the drugs for purposes of section 841.2 Because the evidence was insufficient to convict Nicanor of possession, it is necessarily insufficient to support the convictions of Batimana and Noguera.