United States v. Ruben Perez-Cruz , 511 F. App'x 622 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 12 2013
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. 12-10075
Plaintiff - Appellee, D.C. No. 2:10-cr-00575-JCM-VCF
v.
MEMORANDUM *
RUBEN PEREZ-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 3, 2012 **
San Francisco, California
Before: CUDAHY,*** TROTT, and RAWLINSON, Circuit Judges.
*
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 Richard D. Cudahy, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
We write primarily for the parties who are familiar with the underlying facts.
Defendant Ruben Perez-Cruz was charged with violating 21 U.S.C. §§ 841 and
846 for conspiring to distribute methamphetamine. At trial, Perez-Cruz moved for
a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a).
The district court denied the motion. Perez-Cruz did not renew his motion at the
close of all of the evidence. The jury concluded beyond a reasonable doubt that
Perez-Cruz participated in the conspiracy.
Perez-Cruz appeals the denial of his motion for judgment of acquittal based
on the insufficiency of the evidence to support his conviction.
This court reviews defendant’s unrenewed motion for judgment of acquittal at
the close of evidence for plain error. United States v. Alvarez-Valenzuela, 231
F.3d 1198, 1200-01 (9th Cir. 2000).
To establish a drug conspiracy, the government must show: “‘1) an agreement
to accomplish an illegal objective; and 2) the intent to commit the underlying
offense.’” United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (quoting
United States v. Barragan, 263 F.3d 919, 922 (9th Cir. 2001)). Circumstantial
evidence showing that “defendants acted together in pursuit of a common illegal
goal” may prove the existence of a conspiracy. Id. (internal quotation marks
omitted). The connection of the defendant to the conspiracy may be only slight,
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but there must be sufficient evidence to establish that connection beyond a
reasonable doubt. United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.
1980).
The relevant factors to determine the sufficiency of evidence that a defendant
conspired by performing counter-surveillance are: (1) whether the defendant acted
as a look-out during high-risk points of the drug deal; (2) whether the defendant
was present during the drug deal that police monitored; (3) whether the evidence
showed that particular objects, persons or activities were the subject of the
defendant’s counter-surveillance; and (4) whether the defendant attempted to evade
arrest. United States v. Moreno-Flores, 33 F.3d 1164, 1171-72 (9th Cir. 1994).
Based on the Moreno-Flores factors, the evidence in this case demonstrates that
Perez-Cruz participated in a conspiracy to sell methamphetamine. First, Perez-
Cruz acted as a lookout during the high-risk period of the drug deal. Second,
officers monitored both the meeting at the Tropicana Hotel and the Fashion Show
Mall, and Perez-Cruz was present at both. Third, particular objects, persons or
activities were the subject of the defendant’s counter-surveillance; Perez-Cruz
always kept eyes on the white van, including doing a U-turn to stay nearby.
Fourth, Perez-Cruz attempted to evade arrest by speeding away in the BMW. He
did not stop until backed up traffic left him no choice but to stop. Although
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defendant testified that he could not see or hear the lights and siren, this is not
credible.
The district court correctly concluded that the evidence proved beyond a
reasonable doubt that Perez-Cruz participated in the conspiracy. There was no
error so plain that a judge would have granted acquittal at the close of all the
evidence sua sponte.
AFFIRMED.
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FILED
U.S. v. Perez-Cruz, Case No. 12-10075 MAR 12 2013
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
I concur in the result.