United States v. William Escarsega Costey

Costey was indicted, along with several others, for conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 , for possession, together with Riggio, of heroin with intent to distribute in violation of 21 U.S.C. § 841 (a)(1), and for aiding and abetting Riggio in the distribution of heroin in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 . Costey appeals from a conviction following a non-jury trial. We affirm.

Costey’s primary contention on appeal is that the evidence was insufficient to sustain the judgment of conviction. As to the possession counts, he makes a persuasive argument. See United States v. Gardner, 475 F.2d 1273 (9th Cir.), cert. denied, 414 U.S. 835 , 94 S.Ct. 178 , 38 L.Ed.2d 70 (1973), and United States v. Epperson, 485 F.2d 514 (9th Cir. 1973). However, Costey received a concurrent sentence on all three counts. Therefore, if we affirm the conspiracy count, we need not consider the issues raised as to the possession counts. United States v. Rodriguez, 546 F.2d 302, 307 (9th Cir. 1976); United States v. Murray, 492 F.2d 178, 186 (9th Cir. 1973), cert. denied, 419 U.S. 854 , 95 S.Ct. 98 , 42 L.Ed.2d 87 (1974); see Benton v.…