United States v. Javier Vargas-Rios

607 F.2d 831 5 Fed. R. Evid. Serv. 714 UNITED STATES of America, Plaintiff-Appellee, v. Javier VARGAS-RIOS, Defendant-Appellant. No. 79-1126. United States Court of Appeals, Ninth Circuit. Sept. 27, 1979. Rehearing Denied Nov. 20, 1979. Lawrence A. Callaghan, Goldstein & Phillips, San Francisco, Cal., for defendant-appellant. Jo-Lynne Lee, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before MERRILL and SNEED, Circuit Judges, and REAL * , District Judge. SNEED, Circuit Judge: 1 Defendant-appellant Javier Vargas-Rios appeals from his district court convictions of 21 U.S.C. § 841 (a)(1), distribution of heroin, and 21 U.S.C. § 846 , conspiracy to distribute heroin. Appellant's two codefendants each pleaded guilty to single counts of conspiracy. At the close of the government's case, appellant moved for a judgment of acquittal pursuant to F.R.Crim.P. 29(a), but the motion was denied. On January 4, 1979, the jury found appellant guilty on both counts of the indictment. Appellant then renewed the motion for judgment of acquittal under Rules 29(a) and 33. It was again…

Defendant-appellant Javier Vargas-Rios appeals from his district court convictions of 21 U.S.C. § 841 (a)(1), distribution of heroin, and 21 U.S.C. § 846 , conspiracy to distribute heroin. Appellant’s two codefendants each pleaded guilty to single counts of conspiracy. At the close of the government’s case, appellant moved for a judgment of acquittal pursuant to F.R.Crim.P. 29(a), but the motion was denied. On January 4, 1979, the jury found appellant guilty on both counts of the indictment. Appellant then renewed the motion for judgment of acquittal under Rules 29(a) and 33. It was again denied. Thereupon, appellant was sentenced to custody for three years. Sentence was suspended except for 120 days, which were to be served in a community treatment center. A special parole term of three years was also imposed.

Appellant has raised numerous issues on appeal which strike at various aspects of the process by which he was convicted. These are as follows:

(1) Did the district court err in denying appellant’s motions for acquittal?

(2) Did the district court err in denying appellant’s motion to dismiss the indictment because of inaccurate information presented to the grand…

dissenting:

I would reverse for failure of the district court to grant appellant’s motion for acquittal. I find no sufficient evidence connecting appellant to the narcotics sale on October 30, 1978, or to a narcotics conspiracy.

Barajas and Pena were the principal conspirators. Pena delivered to Barajas, who then sold to the agents. Three rendezvous points were involved in the sale: Kerry’s Restaurant, where the agreement of sale was reached between Barajas and the agents; the BART station, where delivery was to be made but which was then felt by Barajas to be unsafe; Capp Street, where delivery ultimately was made followed by arrest. Appellant’s sole function was to drive Pena. He drove him to Kerry’s Restaurant, followed him when he accompanied Barajas to the BART station, picked him up there and drove him to Capp Street. Appellant never took part in any discussion with Barajas or the government agents. He stayed in his car while Pena dealt with Barajas. The government and the majority opinion find three bits of evidence which it is felt establish that appellant was a knowing participant in the transaction.

1. At the BART station appellant contacted Pena and walked with him…