United States v. Jose Ahumada-Rodriguez

FILED

NOT FOR PUBLICATION SEP 14 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30174

Plaintiff - Appellee, D.C. No. 3:09-cr-05601-BHS-

v.

MEMORANDUM *

JOSE AHUMADA-RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted August 6, 2012 Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

Defendant Jose Ahumada-Rodriguez appeals his jury conviction of

possession of heroin (one kilogram or more) with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A). We affirm.

1. Defendant first argues that insufficient evidence supported his conviction.

Reviewing de novo and "assess[ing] the evidence in the light most favorable to the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. prosecution," we hold that a "rational trier of fact could have found the…

MEMORANDUM *

Defendant Jose Ahumada-Rodriguez appeals his jury conviction of possession of heroin (one kilogram or more) with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A). We affirm.

1. Defendant first argues that insufficient evidence supported his conviction. Reviewing de novo and “assess[ing] the evidence in the light most favorable to the prosecution,” we hold that a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Stewart, 420 F.3d 1007, 1014-15 (9th Cir.2005) (internal quotation marks omitted). The government introduced evidence from which a reasonable juror could conclude, at a minimum, that Defendant aided and abetted the commission of the crime.

2. The district court properly denied Defendant’s motion to suppress the evi *284 dence found during the search of the house. Reviewing de novo, United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007), we hold that the affidavit supporting the warrant contained sufficient indicia of the confidential informant’s reliability. See United States v. Rowland, 464 F.3d 899, 907-08 (9th Cir.2006) (discussing indi-cia of reliability…

dissenting:

The heart of the government’s position appears to be that the defendant was the closest to the door when the police broke in. Proximity to the door at that moment proves nothing as to the author of the locking of the door. It’s a guess, even a good guess, but not proof of any kind.

I see no other evidence that the defendant took steps to aid and abet and, in particular, no evidence of his intent to distribute heroin. Presence in the stash house is suspicious. It fails to establish criminal activity beyond a reasonable doubt.