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846 F2d 1383 United States v. Trowery

846 F.2d 1383

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Martin TROWERY, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 87-5246.

2

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 1988.*
Decided April 27, 1988.

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Before BRUNETTI and DAVID R. THOMPSON, Circuit Judges, and PHILIP M. PRO, District Judge***.

4

MEMORANDUM**

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Appellant Martin Trowery challenges his conspiracy conviction. He contends that his jury was presented with evidence that established three separate conspiracies. Trowery identifies two errors that he argues follow from the presence of these multiple conspiracies. First, he claims that evidence admitted in his conspiracy trial pertained only to one of the separate conspiracies, and that this particular conspiracy concluded without his involvement. The evidence, he claims, prejudiced his trial and should not have been admitted. Second, he asserts that the conspiracy in which he allegedly participated occurred solely in the State of Washington, and that he was therefore deprived of proper venue because he was tried in the Central District of California. Finally, Trowery contends the evidence was insufficient to support his conviction of two counts under 21 U.S.C. Sec. 843(b).

6

* Whether one or more conspiracies existed is ordinarily a question for the jury. United States v. Thomas, 586 F.2d 123, 132 (9th Cir.1978). In this case, the jury was properly instructed that it only could return a verdict of guilty on the conspiracy count if it found that the particular conspiracy charged actually existed. The jury also was instructed that it must return a verdict of not guilty on the conspiracy count if it found that some other conspiracy existed. See court's jury instructions, nos. 42, 44; United States v. Arbelaez, 719 F.2d 1453, 1457 n. 2 (9th Cir.1983), cert. denied, 467 U.S. 1255 (1984). The indictment charged that Trowery and others were engaged in a conspiracy defined by overt acts, which acts began on or about March 22, 1985, and concluded on or about January 27, 1987.

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Trowery must demonstrate that the jury could not have found that the single conspiracy charged in the indictment actually existed. We consider the jury's findings in the light most favorable to the prosecution; we will uphold the jury's findings if "any rational trier of fact could have found a single conspiracy beyond a reasonable doubt." Arbelaez, 719 F.2d at 1457 (citing United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 (1982)). The jury need not have rejected every hypothesis except the presence of a single conspiracy, "it is enough that the evidence adequately supports a finding that a single conspiracy exist[ed]." United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, 452 U.S. 920 (1981), and cert. denied, 454 U.S. 828 (1981).

8

A single conspiracy may be found where the evidence indicates " 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 452 U.S. 905 (1981). "The general test also comprehends the existence of subgroups or subagreements." Id. This circuit follows a "factors" analysis to distinguish single from multiple conspiracies. See Zemek, 634 F.2d at 1168. We conclude that the jury could have found a single conspiracy based on the following factors cited in Zemek: the identity of participants, the quality of their interaction, the nature of the scheme and the commonality of goals. Id.; see also Arbelaez, 719 F.2d at 1458. All the major participants, Trowery being one, were in contact with each other regarding Trowery's purchase of heroin from Gostar. Trowery arranged to acquire heroin through Javad Ebtehaj-Rashti, who in turn enlisted the help of his wife, Jaleh Nazemian. Trowery negotiated for the purchase of four kilos of heroin, directly by phone and indirectly through his sister, with Nassar Gostar, who was a confidential informant acting on the instructions of the Drug Enforcement Agency ("DEA"). Trowery also contacted Nazemian when his negotiations with Gostar seemed to reach an impasse. Nazemian and Rashti had enlisted Gostar to help them acquire heroin in Pakistan, smuggle it into the United States, and sell it--in bulk--to purchasers arranged by Ebtehaj-Rashti. Trowery was such a purchaser, paying Gostar $20,000 cashand offering a farm as security for the balance of his payment for four kilos of heroin. Trowery, Ebtehaj-Rashti and Nazemian all expressed some level of interest in acquiring as much heroin as their funds would permit. This supported the government's contention that the conspiracy was a single agreement to establish an ongoing heroin pipeline.

9

The law in this circuit has been long settled: "In the situation where a conspiracy has been formed, the joinder thereof by a new member does not create a new conspiracy ... and the new member is as guilty as though he was an original conspirator. Marino v. United States, 91 F.2d 691, 696 (9th Cir.), cert. denied, 302 U.S. 764 (1937); see also United States v. Traylor, 656 F.2d 1326, 1337 (9th Cir.1981). When Trowery negotiated to acquire four kilos of heroin, he relied on those who had agreed to bring heroin into the United States from abroad. His own benefits "were dependent upon the success of the entire venture." United States v. Kostoff, 585 F.2d 378, 380 (9th Cir.1978).

10

Trowery argues that his arrest in late January 1987 could only have resulted from an alleged conspiracy which was conducted solely within the state of Washington. This claim is without merit. Even if he withdrew from the conspiracy in December, he rejoined it in January. At that time he was rejoining the same overall agreement he claims he left in December. Since he is liable for the portions of the conspiracy that occurred before he joined under Traylor, a temporary withdrawal cannot possibly advance his claim of multiple conspiracies.

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In sum, the jury was faced with enough evidence to conclude that Trowery was involved in "one overall agreement." The agreement required the performance of various functions: obtain Pakistani heroin, smuggle it into the United States and sell it to a distributor. That different members performed different functions does not suggest that jurors should have had reasonable doubt as to the presence of a single conspiracy. Since we conclude that the jury was presented with sufficient evidence to find that the single conspiracy charged in the indictment existed, we need not address the harms that Trowery claims flow from the presence of multiple conspiracies.

II

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Trowery next contends that two of his convictions under 21 U.S.C. Sec. 843(b) were not supported by sufficient evidence. Section 843(b) prohibits knowingly using a telephone "in causing or facilitating the commission of any act or acts constituting a felony under any provision of this ... chapter." Again, we view the evidence in the light most favorable to the prosecution and inquire whether any rational trier of fact could have found, beyond a reasonable doubt, that the two telephone conversations that Trowery challenges facilitated the conspiracy. See United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). "To 'facilitate' within the meaning of the statute is merely to make easier or less difficult." United States v. Reese, 775 F.2d 1066, 1074 (9th Cir.1985). In Reese, we held that telephone calls involving prospective narcotics transactions provided sufficient evidence to uphold convictions under section 843(b). Id. at 1075. Both of the telephone calls that Trowery challenges involved negotiations regarding his purchase of heroin. Each call, one on December 16th and one on December 17th, 1986, made Trowery's purchase of heroin from DEA informant Gostar easier. Trowery expressed his continued interest in purchasing heroin, and he came to understand more concretely the terms under which the heroin was available.

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AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

***

The Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation