                                                                          FILED
                           NOT FOR PUBLICATION                             MAR 07 2012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,                       Nos. 10-50411 & 10-50412

              Plaintiff-Appellant,              D.C. Nos. 2:09-cr-00292-GAF-4,5

  v.
                                                MEMORANDUM *
HUEY L. NELSON, AKA BABY HUEY

AND

ELVIN HARRIS, AKA BABY LUCKY,

              Defendants-Appellees.



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

                      Argued and Submitted January 12, 2012
                               Pasadena, California

Before: REINHARDT and W. FLETCHER, Circuit Judges, and ZOUHARY,
District Judge.**




        *    This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **     The Honorable Jack Zouhary, District Judge for the Northern District of
Ohio, sitting by designation.
      The trial court set aside the jury verdict convicting two criminal defendants,

Huey Lynn Nelson and Elvin Harris (“Defendants”), of: (1) conspiracy to possess

with intent to distribute cocaine (21 U.S.C. §§ 846 and 841(b)(1)(A)(iii)); (2)

conspiracy to interfere with commerce by robbery (18 U.S.C. § 1951); and (3) use of

a firearm during a drug trafficking crime (18 U.S.C. § 924(c)). Defendants were

convicted along with co-conspirators Shane Mullins and Darris Hurth as part of a

sting operation executed by the ATF and Darrin Whitmore (“Agent”), an undercover

agent who feigned participation in the scheme to rob a cocaine stash house. Adrian

Evans, another co-conspirator to the charged offenses, was not indicted in this case.

      The district court found the evidence against Defendants insufficient to support

the jury verdict and granted acquittal under Federal Criminal Rule 29.              The

Government timely appealed. We have jurisdiction under 18 U.S.C. § 3731.

      The Government concedes its evidence is “not overwhelming,” but contends

it was sufficient for a rational juror to conclude, beyond a reasonable doubt, that

Defendants were knowing participants in the planned robbery of a stash house. Most

of the evidence is circumstantial and relies on inferences from audio recordings, the

Agent’s trial testimony, co-conspirator statements, and events on the day of the arrest.

      Viewed in the light most favorable to the Government, as required by Rule 29,

we find the evidence was sufficient for a rational juror to link Defendants to the stash-


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house robbery conspiracies. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th

Cir. 2010) (en banc); United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir. 2006).

      The record includes co-conspirator statements that Defendants knew of the plan

to rob the stash house. See United States v. Lindsey, 634 F.3d 541, 552 (9th Cir.

2011) (holding co-conspirator’s statements were sufficient to support defendant’s

conspiracy conviction). For instance, during a conversation at a car wash, Mullins

told the Agent he was going to send his “little homeboy” and “they going boom,

boom, boom” to “get that shit” (i.e., cocaine). Although Mullins never used specific

names, the jury could infer he was referring to Defendants. According to Mullins and

Evans, the “two boys” had their own guns and were the only ones with weapons.

During the arrest, an ATF team member witnessed Defendant Harris toss a “dark

object” as he fled, an object later identified as a gun. A second gun was recovered at

the arrest location, confirming co-conspirator statements that both Defendants would

be armed.

      Further, Mullins told the Agent that his “two boys around the corner” were

armed and waiting. When the crew drove down to “the corner,” the two Defendants

joined them along with Hurth who arrived alone. Mullins then walked toward

Defendants -- his “two boys” -- and the Agent had a brief conversation with them.

The Agent asked if Defendants were “cool” with the plan, if they were “all about the


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business.” Evans, in Defendants’ presence, responded by telling the Agent, “they

good, they good.” Defendant Harris confirmed, stating “yeah, it’s all right.”

      After this meeting, the crew and Defendants drove to a warehouse, a

rendezvous point prior to the robbery. The Agent again asked if everybody, including

Defendants, knew “what’s going on.” Evans assured the Agent once more that

everybody was “straight.” During the drive, Evans also confirmed the entire crew,

including Defendants, knew each other, had “pretty much done this before,” and knew

some of the plan details, including tying up the Agent with the stash-house occupants

to avoid suspicion.

      After the crew arrived at the warehouse, the Agent began to tell co-conspirator

Hurth, who was sitting in his car, his cover story and the plan. The Agent testified

Defendants appeared to be paying attention when Hurth confirmed, as Evans and

Mullins had done previously, that everybody knew “the deal.” According to the

district court, the Agent’s testimony that Defendants appeared to be paying attention

was “not consistent with his overall description of the event” and was unpersuasive

because there was no evidence Defendants were in a position to hear anything that

was said. While the court’s interpretation of the evidence is plausible, so was the

Agent’s testimony. Conflicting inferences and credibility are issues for the jury.

Nevils, 598 F.3d at 1164, 1170.


                                         4
      Sufficient evidence was produced to support the inference Defendants were

aware of the robbery plan. The fact that Defendants may not have known the specific

drug and quantity involved does not change that conclusion. See United States v. Sua,

307 F.3d 1150, 1155 (9th Cir. 2002) (holding defendant’s knowledge of the drug type

and quantity in a conspiracy was not necessary for conviction).

      Co-conspirator statements were corroborated by independent evidence

stemming from Defendants’ actions and statements. As explained above, two guns

were recovered at the arrest scene, one of which was seen in Defendant Harris’

possession. Defendants arrived wearing dark clothing, and the robbery was planned

to begin after sunset and conclude within minutes of the end of civil twilight. Gloves

recovered at the arrest location were linked to those worn by Defendants.

      Defendants also made several statements linking themselves to the conspiracies.

As discussed above, Defendant Harris told the Agent he was “all about the business”

and responded “all right” when asked if he wanted to participate in the plan. The

Agent testified both Defendants acknowledged they knew the story, and that either

Nelson or Harris, with the other present, confirmed they knew the plan.

      The district court speculated Defendants’ responses to the Agent could be

understood as dodges to avoid acknowledging they were clueless pawns in the robbery

scheme. In doing so, however, the district court misapplied the appropriate standard


                                          5
and “usurp[ed] the role of the finder of fact.” Nevils, 598 F.3d at 1164. Instead of

giving appropriate deference to the jury’s inferences and weighing the evidence in a

light most favorable to the Government, the court provided its own explanation as to

why Defendants’ statements were not probative.

      Defendants cite United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.

1980), for the proposition that statements by case agents expressing doubts concerning

the sufficiency of the proof constitute a basis on which courts have found insufficient

evidence for a conspiracy conviction. Melchor-Lopez, however, does not stand for

such a broad-reaching proposition. In that case, there was direct evidence in an

undercover agent’s report that an agreement to sell drugs was not reached. Here, there

is no such evidence. To the contrary, the Agent testified he understood Defendants

“were ready to conduct the home-invasion robbery” and “indicated they wanted to go

forward” with the plan.

      In granting acquittal, the district court relied in part on the absence of evidence

as to ownership of the guns recovered at the warehouse. The court also noted that,

despite the plan for the crew to tie up the Agent with others at the stash house, none

of the conspirators were found with tape, rope, or other means of restraint. This lack

of evidence, however, does not undermine the sufficiency of the evidence. See

Lindsey, 634 F.3d at 552 (“[T]he fact that no physical evidence is presented in support


                                           6
of a criminal conviction does not, by itself, render the evidence insufficient per se.”).

As mentioned above, there is ample other evidence that Defendants were knowing

participants in the robbery plan.

      The district court also speculated Mullins and Hurth were motivated to keep the

details of the robbery to themselves. The court listed multiple reasons why Mullins

and Hurth might have kept Defendants in the dark.              In doing so, the court

impermissibly considered “how it would have resolved the conflicts, made the

inferences, or considered the evidence at trial.” Nevils, 598 F.3d at 1164. The court

also noted the Government’s investigation was fraught with mistakes, but this finding

too goes to credibility determinations -- a task assigned to the jury -- which should

play no part in a sufficiency of the evidence analysis.

      In sum, this is the very type of case where a jury could have found in favor of

the Government or Defendants. The Government presented evidence, direct and

circumstantial, that Defendants arrived at the appointed time and place wearing dark

clothing and gloves, carrying firearms, spoke to the Agent about the plan, albeit

briefly, and followed the robbery crew to the warehouse where further discussions

about the planned robbery took place.          This Circuit has long recognized the

sufficiency of the evidence standard is “extremely deferential” to the jury. See, e.g.,

Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998). A jury’s verdict must stand


                                           7
unless evidence, properly construed in the Government’s favor, is “so supportive of

innocence that no rational trier of fact could find guilt beyond a reasonable doubt.”

See Nevils, 598 F.3d at 1169 (citation omitted).

      This case does not present such a situation. The district court understandably

struggled with the lesser amount of evidence against these Defendants when compared

to others in the conspiracies, but erred by failing to construe the admittedly thin

evidence in a light favorable to the Government, and by engaging in credibility

determinations more appropriately left to the jury.

      For the above reasons, this case is REVERSED and REMANDED. The district

court is instructed to reinstate the verdict and reenter judgments of guilty against both

Defendants. See United States v. Ramos, 558 F.2d. 545, 548 (9th Cir. 1977).




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