United States v. Leon Clifford Foster

On November 7, 1994, the United States Supreme Court vacated and remanded this case for further consideration in light of United States v. Shabani, — U.S. -, 115 S.Ct. 382 , 130 L.Ed.2d 225 (1994). In Shaba-ni, the Court held that this court erroneously required proof of an overt act in order to sustain a drug conspiracy conviction under 21 U.S.C. § 846 . Because our opinion of October 16, 1992 reversed and remanded defendant-appellant’s conviction based upon the trial court’s failure to instruct on the overt act element of a charge under § 846, our decision clearly can no longer stand in light of Shabani . Accordingly, the following constitutes our decision as to all issues raised but not addressed in our prior unpublished disposition. For the reasons which follow, we now affirm.

1. Sufficiency of the Evidence: Conspiracy

We review the sufficiency of the evidence to determine whether “reviewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.), cert. denied — U.S. -, 113 S.Ct. 258 , 121 L.Ed.2d 189 (1992).…