United States v. Mauricio Aguilera

concurring in part, dissenting in part:

I join in Parts A, C, D, and E of the majority disposition. Because I believe that there was a constructive amendment of the indictment, and the multiple conspiracies instruction did nothing to cure the problem, I respectfully dissent from Part B.

The government charged Aguilera with a conspiracy involving an organization centered around Jorge Rodriguez. At trial, the government introduced evidence sufficient to prove a conspiracy between Aguil-era and Rodriguez, but also introduced evidence concerning three other individuals: David Morgan, a man referred to as Chino, and a man referred to as Unidentified Male 4915 (“UM 4915”). The government introduced no evidence linking Mor *559 gan, Chino, or UM 4915 to the Rodriguez conspiracy. In the absence of evidence showing an overall agreement between conspirators, our precedent requires finding that the government proved two separate conspiracies. See, e.g., United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir.1983). At closing, the government argued, “As to Count 1, this is an ongoing conspiracy that involved a number of players: [Rodriguez], Chino, Unidentified Male 4915, David Morgan ...…

ORDER

Appellant’s petition for rehearing is GRANTED in part and DENIED in part. Appellant’s petition is granted only with regards to the suppression of evidence taken from Appellant’s cell phone. The memorandum disposition filed on August 22, 2014, is withdrawn and is replaced by a memorandum disposition filed concurrently with this order. Our prior memorandum disposition may not be cited as precedent to any court. As the petition for rehearing is granted in part, the petition for rehearing en banc is DENIED as moot. The parties shall have fourteen days from the date of this order to file a new petition for rehearing en banc.

IT IS SO ORDERED.

MEMORANDUM *

Mauricio Aguilera appeals from his conviction for conspiracy to distribute five kilograms or more of cocaine. Mr. Aguilera contends that his conviction suffers from several infirmities, including: 1) that insufficient evidence supports his conviction for conspiracy; 2) that the evidence submitted to the jury constituted a constructive amendment or fatal variance of the conspiracy charged in his indictment; 3) that the district court improperly prevented him from asserting his defense; 4) that counts one and five of the…

DISCUSSION

A. Sufficiency of Evidence

To prove the count one conspiracy, the government produced evidence of: 1)

recorded phone calls between Aguilera, who was seeking to purchase cocaine to

distribute to a third party, and Rodriquez, a named co-conspirator, haggling over

the price of cocaine; 2) Aguilera’s recorded admission that he bought drugs from

Rodriquez on credit during the conspiracy period; and 3) extensive telephone

contact between Aguilera and Rodriquez during a period when Rodriquez was

selling drugs to the government’s informant. This evidence is sufficient to prove

Aguilera’s participation in a conspiracy to distribute drugs because the purchase of

drugs on credit is probative of an agreement to distribute. United States v. Mincoff,

574 F.3d 1186, 1193 (9th Cir. 2009) (finding sufficient evidence with one purchase of drugs and one failed attempt to purchase drugs becasue single transaction on

credit was sufficient evidence of agreement and intent).

B. Fatal Variance or Constructive Amendment

The jury was given a multiple conspiracies instruction, which provides in

relevant part: “If you find that the conspiracy charged did not exist, then you…