                                                                               FILED
                           NOT FOR PUBLICATION                                 MAR 10 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50039

             Plaintiff - Appellee,               D.C. No. 2:07-cr-00845-RGK-8

  v.
                                                 MEMORANDUM *
MARCIO ALFONSO ARES-GARCIA,
AKA Marco Alfonso Ares-Garcia,

             Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                      Argued and Submitted October 5, 2010
                              Pasadena, California

Before: PREGERSON, D. NELSON, and IKUTA, Circuit Judges.

       The district court did not err in denying Ares-Garcia’s motion for an

acquittal or new trial on his conviction for conspiring to import heroin and cocaine

under 21 U.S.C. § 963. Viewing the evidence in the light most favorable to the

prosecution, see United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010), a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reasonable jury could have found that Ares-Garcia delivered narcotics to a post

office, that emails identified Ares-Garcia and Bazua-Soto to a drug supplier in

Mexico as the couriers for the next drug shipment, and that Ares-Garcia

coordinated his travel across the border with Bazua-Soto three days after those

emails in accordance with a drug importation scheme. Because a reasonable jury

could have found the essential elements of the crime of conspiring to import heroin

and cocaine beyond a reasonable doubt, we reject Ares-Garcia’s challenge to the

sufficiency of the evidence. See id. at 1164-65. Ares-Garcia's argument that the

evidence is insufficient because he was acquitted of conspiracy to possess with

intent to distribute narcotics fails, because inconsistent verdicts may not be used to

demonstrate the insufficiency of the evidence for the count on which the defendant

was convicted, see United States v. Powell, 469 U.S. 57, 67 (1984)

(“[Sufficiency-of-the-evidence] review should be independent of the jury's

determination that evidence on another count was insufficient.”).1

      Nor did the district court err in admitting the emails identifying Ares-Garcia

to the drug supplier. We review the admission of the emails for plain error because

Ares-Garcia did not object to their admission on hearsay grounds, and the record



      1
      The dissent’s argument to the contrary, Dis. Op. at 1-2, has been
unanimously rejected by the Supreme Court. See Powell, 469 U.S. at 67–68.

                                         -2-
does not suggest that the district court knew that Ares-Garcia intended to make a

hearsay objection. Even assuming that the emails could be deemed hearsay, there

was no plain error in admitting them under Rule 801(d)(2) of the Federal Rules of

Evidence because there was independent evidence of Ares-Garcia’s involvement in

the conspiracy, including Officer Machado’s identification of Ares-Garcia at the

Postal Annex and the fact that he and Bazua-Soto crossed the border within a few

hours of each other. See United States v. Bridgeforth, 441 F.3d 864, 869 (9th Cir.

2006).

         Finally, the district court did not abuse its broad discretion in determining

that Ares-Garcia was entitled to a three-point downward adjustment to his offense

level pursuant to U.S. Sentencing Guidelines Manual § 3B1.2 (2007). See United

States v. Edwards, 595 F.3d 1004, 1014 (9th Cir. 2010) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). Moreover, Ares-Garcia waived this argument by

requesting the very three-point adjustment that he received. United States v.

Hernandez-Ramirez, 254 F.3d 841, 844-45 (9th Cir. 2001).

         AFFIRMED.




                                            -3-
                                                                               FILED
United States v. Ares-Garcia, No. 09-50039                                     MAR 10 2011

                                                                           MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



       Ares-Garcia was charged with two counts of conspiracy. Count One alleged

that he conspired to ship narcotics from a Postal Annex in Perris, California in

December 2006. Count Two alleged that Ares-Garcia conspired to transport drugs

from Mexico to California in May 2007. Ares-Garcia was acquitted of the

conspiracy alleged in Count One and convicted of the conspiracy alleged in Count

Two.

       In arguing that the evidence was sufficient to convict Ares-Garcia on Count

Two, the majority relies on three pieces of evidence. First, the majority cites to

Ares-Garcia’s alleged involvement in the December 2006 Postal Annex incident

that was the basis of Count One. Second, the majority points to two emails sent

by a drug trafficker in April 2007; each email mentioned Ares-Garcia’s name.

Third, the majority notes the fact that Ares-Garcia crossed the border into the

United States on May 3, 2007, an hour after another alleged drug courier crossed.

This crossing took place a few days after a date specified in a third email sent by a

drug supplier.

       As to the first piece of evidence, the majority argues that “a reasonable jury

could have found that Ares-Garcia delivered narcotics to a post office.” Maj. op. at

                                          1
1-2. In other words, the majority claims that the jury could have used evidence

relevant to Count One (the conspiracy to deliver drugs to the Postal Annex in

December 2006), to determine that Ares-Garcia was guilty of Count Two (the

conspiracy to transport drugs across the border in May 2007). But that argument is

hard to swallow. The only evidence linking Ares-Garcia to the conspiracy alleged

in Count One was the testimony of a police officer who claimed he saw Ares-

Garcia at the Postal Annex carrying a package later determined to contain drugs.

The fact that the jury acquitted Ares-Garcia of the conspiracy alleged in Count One

tells us that the jury did not find the police officer’s story convincing. Thus, one

would not think that the jury would have relied on the officer’s testimony relating

to the December 2006 conspiracy alleged in Count One to conclude that Ares-

Garcia was guilty of committing the May 2007 crime alleged in Count Two. The

majority therefore incorrectly points to the officer’s testimony concerning the

Postal Annex delivery as evidence to support Ares-Garcia’s conviction on Count

Two.1

        1
        United States v. Powell, 469 U.S. 57 (1984), does not control the decision in
this case, contrary to the majority’s assertion. See Maj. op. at 2. Powell concerned
a jury that returned two inconsistent verdicts—specifically, Powell was acquitted
of conspiracy to possess with intent to distribute and possession with intent to
distribute cocaine, but was convicted of “using the telephone in ‘committing and in
causing and facilitating’” those two crimes. 469 U.S. at 60. In short, Powell was
                                                                        (continued...)

                                          2
      Nor could a jury reasonably convict Ares-Garcia based on the emails

sent by the drug trafficker. The emails contained scant information: the name

“Kenneth J. Bazua” followed by a bank account number (in one of the emails),

then a thick double line, and then Ares-Garcia’s name. The government claimed

these emails were nearly identical to other emails identifying drug couriers and the

bank accounts used to pay them. But the two emails mentioning Ares-Garcia’s

name are different: most notably, Ares-Garcia’s name is not listed with a bank

account number. The government offered no other emails that linked Ares-Garcia

to a bank account number. On this thin and speculative evidence, no reasonable

jury would conclude beyond a reasonable doubt that Ares-Garcia was tied in to the

conspiracy alleged in Count Two.

      Moreover, that Ares-Garcia traveled across the border is insufficient to link

      1
        (...continued)
convicted of using a telephone to commit two crimes that the same jury had
acquitted her of. The inconsistent verdicts put the reviewing court in the
impossible position of determining which of the two verdicts reflected the jury’s
true conclusion, and which was the result of “mistake, compromise, or lenity.” Id.
In such a circumstance, Powell requires that we assess each verdict independently.
Id. at 67.
        Here, in contrast, Ares-Garcia’s two verdicts are not inconsistent. Count
One and Count Two involved two separate, distinct, and unrelated crimes allegedly
committed months apart. Thus, unlike Powell, it is logically possible for Ares-
Garcia to be innocent of one and guilty of the other. We therefore need not look to
Powell to resolve the case before us. We can instead exercise common sense as to
what evidence the jury looked to in reaching its conclusions.

                                         3
him to a conspiracy. According to the majority, the evidence suggests that Ares-

Garcia coordinated his border crossing with Kenneth Bazua, the other person

mentioned in the two emails. But the two men did not cross together; they crossed

separately, about an hour apart. Also, a third email (which did not mention Ares-

Garcia’s name) suggested that the drugs would come across the border on Monday,

April 30, or Tuesday, May 1, 2007, but Ares-Garcia did not cross the border until

May 3, several days later. When arrested, Ares-Garcia was not in possession of

any drugs, nor did law enforcement agents ever find any drugs in connection with

their investigation of the May 2007 alleged drug smuggling incident.

      In short, the evidence was insufficient to allow a “rational trier of fact [to

find] the essential elements of the crime [alleged in Count Two] beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, I

would reverse the district court.




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