Unpublished Disposition, 935 F.2d 277 (9th Cir. 1990)

MEMORANDUM^** 

Appellant-defendant Sandra Lee Ward ("Ward") appeals her jury conviction and sentence under the Sentencing Guidelines for conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Ward asserts there was insufficient evidence to support her conspiracy conviction. Specifically, she argues the Government failed to prove either the existence of an agreement or the requisite intent. The record reveals that Ward did not make a Fed. R. Crim. P. Rule 29 motion for acquittal at the close of the evidence. Therefore, she has waived any claim for reversal based on insufficiency of the evidence. United States v. Stauffer, 922 F.2d 508, 511 (9th Cir. 1990). Consequently, our review of this issue is proper only to avoid a manifest miscarriage of justice or plain error. We find there was sufficient evidence to support Ward's conviction.¹  Id.

The elements of conspiracy are (1) an agreement to accomplish an illegal objective, (2) coupled with one or more acts in furtherance of the illegal purpose, and (3) the requisite intent necessary to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

The existence of an agreement need not be explicit, and it may be inferred from circumstantial evidence. United States v. Pemberton, 853 F.2d 730, 733 (9th Cir. 1988). Moreover, it is not necessary for the Government to prove the defendant knew the exact scope of the conspiracy, the identity and role of each of the co-conspirators, or the details of the operations or any particular plan. United States v. Thomas, 586 F.2d 123 (9th Cir. 1978).

Ward admitted that she purchased the chemicals and transported them for Foster. Further, she admitted that Foster gave her money to purchase the chemicals and supplied her with methamphetamine as payment for the purchases. Testimony at trial indicated Ward engaged in evasive, counter-surveillance tactics while transporting the chemicals from Gran-Hall to Foster. Finally, she admitted that she knew Foster was making dope with the chemicals she bought and delivered and that methamphetamine was an illegal drug that was chemically manufactured. It is of little consequence that Ward testified she was not aware that she was doing anything illegal until she was arrested. The jury chose to believe the Government's evidence. Therefore, reviewing the evidence for plain error, the Government produced ample evidence from which the jury could infer the existence of an agreement between Ward and Foster.

Under 21 U.S.C. § 841(a) (1), it is unlawful to "knowingly or intentionally ... manufacture [or] distribute ... a controlled substance." Once the government establishes that a conspiracy exists, evidence of a defendant's slight connection to the conspiracy is sufficient to prove knowing participation. Penagos, 823 F.2d at 348. While mere association with members of the conspiracy, or simple knowledge or approval of the unlawful purpose is insufficient, the defendant's presence combined with other evidence may support an inference of knowing involvement. Id.

In this case, Ward argues that she was an unwitting errand runner. Specifically, she testified that she was not aware that she was doing anything illegal until she was arrested. This statement appears fairly implausible, however, in light of the many other concessions made by Ward (discussed above under "1. Agreement"), and trial testimony regarding her evasive tactics. Regardless, the Government presented sufficient evidence from which the jury could infer that Ward possessed the requisite intent. The jury's finding in this instance is adequately supported by the evidence.

Ward also contends the delay in completion of the transcript on appeal was excessive and resulted in a denial of due process. Judgment was entered against Ward on August 9, 1989, and she filed a timely notice of appeal on August 11, 1989. Ward did not make a request for the transcript on appeal until October 30, 1989. The certificate of record was filed October 24, 1990.

This circuit has recognized that extensive delay in the processing of an appeal may amount to a violation of due process. Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 111 S. Ct. 398 (1990). Nonetheless, not every delay in the appeal of a case, even an inordinate one, violates due process. Antoine, 906 F.2d at 1382. In order to establish a due process violation, the defendant must be able to point to the prejudice caused them by the delay. See Coe, 922 F.2d at 531; Antoine, 906 F.2d at 1382. When determining prejudice, we examine the following three factors: (1) oppressive incarceration pending appeal; (2) anxiety and concern of the convicted party awaiting the outcome of the appeal; and (3) impairment of the convicted person's grounds for appeal on the viability of her defense in case of retrial. Coe, 922 F.2d at 533; Antoine, 906 F.2d at 1382.

Here, as we find there was sufficient evidence to support Ward's conviction, it cannot be said that the incarceration pending appeal was oppressive. Further, Ward made no specific allegations concerning the particular anxiety she suffered that would distinguish her from any other prisoner awaiting the outcome of an appeal. See Coe, 922 F.2d at 533; Antoine, 906 F.2d at 1382-83. Finally, Ward did not contend the delay impaired her grounds for appeal. She argued only that "any defense she might have on remand might be impaired." On appeal, Ward challenged her conviction only on the basis of sufficiency of the evidence. As we have determined, there was sufficient evidence to support Ward's conviction, there will be no remand. Moreover, if we had found there was not sufficient evidence to support the conviction, the principles of Double Jeopardy would preclude a second trial. Consequently, the posture of this appeal would preclude a retrial regardless of the court's decision pertaining to the sufficiency of the evidence. Accordingly, Ward cannot show any impairment of her defense on remand. Ward has failed to establish a due process violation caused by the delay in the receipt of the transcripts.

Finally, we find no merit in Ward's argument that the Guidelines violate due process because they do not require the Government to acknowledge a defendant's cooperation with the prosecution. We find the case of United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990) to be controlling. As such, Ward's sentence under the Sentencing Guidelines is also affirmed.

AFFIRMED.