United States v. Rolondo Gonzalez , 563 F. App'x 582 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-30407
Plaintiff - Appellee, D.C. No. 1:11-cr-00208-EJL-2
v.
MEMORANDUM*
ROLONDO F. GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted March 3, 2014**
Portland, Oregon
Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Defendant appeals his conviction and sentence for one count of conspiracy
to distribute methamphetamine and three counts of distribution of
methamphetamine. We affirm.
The district court acted within its discretion in instructing the jury on willful
blindness. A willful-blindness instruction is appropriate where the jury, even if it
rejects the Government’s case as to actual knowledge, could rationally find that
defendant was willfully blind to a high probability of criminality. See United
States v. Heredia, 483 F.3d 913, 922–24 (9th Cir. 2007) (en banc). Here, a jury
could rationally find that the suspicious circumstances surrounding the transactions
(exchanging coffee cups and fast-food bags at a gas station or by the side of the
road) suggested to defendant that there was a high probability he was participating
in an illegal venture. Moreover, during his interactions with Undercover Detective
Bustos, defendant made numerous statements that would be meaningless outside
the context of specific drug transactions. Those statements strongly suggest that
defendant believed there was at least a high probability he was distributing
methamphetamine.
Assuming defendant did not actually know—though he strongly
suspected—that the bags and cups contained methamphetamine, not looking in the
containers is a deliberate action taken to avoid actual knowledge. His failure to
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take basic investigatory steps or to follow up on suspicions of illegality is the very
essence of willful blindness. See United States v. Jewell, 532 F.2d 697, 704 (9th
Cir. 1976) (en banc). The willful-blindness instruction was warranted in this case
and the district court did not err in giving it.
Defendant also challenges the sufficiency of the evidence supporting his
conviction for conspiracy to distribute methamphetamine. Because defendant
failed to move for an acquittal at the close of evidence, we review for plain error.
United States v. Stauffer, 922 F.2d 508, 511 (9th Cir. 1990).
To establish a conspiracy to distribute methamphetamine, the Government
must show an agreement to accomplish an illegal objective and the intent to
commit the underlying crime. The Government must provide “clear” evidence of
the defendant’s knowledge of the purpose behind the conspiracy. United States v.
Romero, 282 F.3d 683, 687 (9th Cir. 2002).
Defendant argues that the Government failed to show an agreement to
distribute methamphetamine. But circumstantial evidence may be sufficient to
show the existence of an agreement. See, e.g., United States v. Monroe, 552 F.2d
860, 863 (9th Cir. 1977). There is ample such evidence in this case. Bustos called
defendant’s putative coconspirator, Polo, to arrange for purchase of
methamphetamine, and on three occasions, defendant met Bustos to conduct the
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transaction. This strongly suggests that defendant had agreed to assist Polo in
distributing the methamphetamine. Coordination between putative coconspirators
is “strong circumstantial evidence” of an agreement. United States v. Hegwood,
977 F.2d 492, 497 (9th Cir. 1992). That agents observed defendant’s car stop at
Polo’s residence immediately after the third methamphetamine transaction, and
that defendant made a statement to Bustos identifying Polo as a source for further
methamphetamine purchases, see United States v. Stewart, 770 F.2d 825, 832 (9th
Cir. 1985), are further circumstantial evidence of an agreement.
There was also sufficient evidence that defendant was aware of the
conspiracy’s purpose. A rational trier of fact could have concluded from the
Government’s evidence of defendant’s behavior and statements during the
transactions that defendant knew that the cups and bags he gave to Bustos
contained methamphetamine.
AFFIRMED.
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