United States v. Mincoff

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50058
Plaintiff-Appellee, D.C. No.
v.  CR-06-01241-DMS-
JAMES MINCOFF, aka Jim, 3
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding

Argued and Submitted
April 14, 2009—Pasadena, California

Filed July 31, 2009

Before: William C. Canby, Jr., Johnnie B. Rawlinson and
N. Randy Smith, Circuit Judges.

Opinion by Judge Rawlinson

9983
9986 UNITED STATES v. MINCOFF

COUNSEL

Charles M. Sevilla, San Diego, California, for defendant-
appellant James Mincoff.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, and David D. Leshner
(argued), Assistant United States Attorney, San Diego, Cali-
fornia, for plaintiff-appellee United States.

OPINION

RAWLINSON, Circuit Judge:

Appellant James Mincoff (Mincoff) challenges his convic-
tion and sentence for conspiracy to distribute cocaine, attempt
to distribute cocaine, and unlawful use of a communication
facility in violation of 21 U.S.C. §§ 841(a)(1), 846, and
843(b).

I. BACKGROUND

Mincoff and Jessie Munoz (Munoz)1 met through a mutual
1
Munoz was originally one of four named defendants, but he entered a
guilty plea and agreed to cooperate with the government. He was the main
government witness at trial.
 UNITED STATES v. MINCOFF 9987
friend during the late 1990s. Mincoff called Munoz in April
or May, 2004, to ask whether Munoz had access to cocaine.
Mincoff ordered eight kilograms of cocaine from Munoz.
Because Munoz had never dealt cocaine before, he called
Kenny Vega (Vega), his “meth connection,” to help him
obtain the cocaine. Vega was only able to supply Munoz with
five kilograms of cocaine rather than the requested eight. Two
or three days after Mincoff placed the order, Vega’s driver
“the Engineer” delivered the cocaine to Munoz’s home.

Munoz called Mincoff to inform him that the cocaine had
arrived, and Mincoff arrived within the hour to retrieve the
drugs. Mincoff and Munoz agreed that Mincoff would take
the cocaine to his customer and return with payment, which
he did. Once Munoz received the purchase money from Minc-
off, he paid Vega’s driver. Future transactions between Minc-
off and Munoz remained a possibility, provided that
Mincoff’s buyers returned.

In the course of a different investigation, the government
received court authorization to wiretap two of Munoz’s cellu-
lar telephones. Multiple calls between Munoz and Mincoff
were intercepted as a result of these wiretaps.

July 24, 2005 Telephone Call

Mincoff contacted Munoz about a cocaine sale at 2:18 p.m.
Mincoff explained, “[m]y one buddy called me, he’s gonna be
in town this week . . . [a]nd he is wondering if we can, uh, put
like six of those together.” FBI Special Agent Allan Vitkosky
testified that this statement “means to attempt to obtain 6 kilo-
grams of cocaine.” Munoz also testified that he understood
that Mincoff wanted to purchase six kilograms of cocaine on
behalf of his buyer. Mincoff guaranteed Munoz that six of the
kilograms would be sold, and maybe a seventh as well.

July 25, 2005 Telephone Calls

Munoz called Vega at 1:45 p.m. and asked whether he had
been in touch with the Engineer because “[t]hey asked me for
9988 UNITED STATES v. MINCOFF
six of those things for this week.” Munoz and Vega spoke
again two minutes later, and Munoz affirmed that “they need
6 of them, maybe 7 but 6 for sure.”

July 27, 2005 Telephone Calls

At 9:51 a.m., Mincoff informed Munoz that his “guy’s
here” and that he wanted to “knock [the transaction] out if not
this afternoon, first thing in the morning.” At 1:33 p.m.,
Mincoff pressured Munoz to complete the deal, “[‘c]ause
these guys got ants in their pants, they’re wanting to do it like
right now.” In a 7:00 p.m. call, Mincoff indicated that “no-
body’s gonna wait much longer” and that “[t]wo different
guys came together and one of them is already bailing.” He
also said, “[w]e’ll do three of them, I mean if uh. I mean I
need to try and do them tonight. Like now.” In an 8:18 p.m.
call, Mincoff instructed Munoz that “we can do three (3) of
em right now” and “[c]all me in the morning, I’ll be here and
I got my guys here right now.”

July 28, 2005 Telephone Calls

During a call at 10:40 a.m., Mincoff told Munoz, “my guy
is sitting right here and we need those . . . [h]e’s got the
paperwork for three (3), he’s ready to roll.” Munoz testified
that he understood Mincoff to mean that his buyer had the
money for three kilograms of cocaine. Munoz also understood
that Mincoff was not purchasing the cocaine for his own use,
but to fill the order placed by his customer. During a call at
1:28 p.m., Mincoff told Munoz “we’re going to miss the boat”
because “[t]his guy’s got to leave.” Mincoff directed Munoz
to “lock on one for Tuesday, he’s going to come back through
. . . [j]ust for one (1).” According to Munoz, this portion of
the conversation referred to there being “one more guy that
wanted 1 kilo left.”

Police Detective Barry Sweeney (Sweeney) was perform-
ing surveillance on Mincoff’s residence on the morning of
 UNITED STATES v. MINCOFF 9989
July 28, 2005. Sweeney noticed an individual exit and reenter
the residence. This individual was later identified as David
Laverne Lincoln (Lincoln). Lincoln was probably one of
Mincoff’s buyers, because Mincoff indicated that his buyer
was from Northern California, and Lincoln subscribed to a
telephone number in Day, a town in the northern half of the
state. Additionally, telephone records indicated that there
were nine calls between Lincoln and Mincoff on July 27,
2005, which corresponds to the dates that Mincoff discussed
the cocaine sale with Munoz.

July 29, 2005 Telephone Call

Vega’s friend Shadow contacted Munoz at 12:48 p.m. to
ask, “did you still need that or not?” Munoz replied that, “they
said not until Tuesday.”

August 3, 2005 Telephone Call

The deal appeared to be on between Mincoff and Munoz as
long as Munoz’s supplier could bring the drugs down from
Los Angeles. At 10:39 a.m., Mincoff stated, “Yeah, if they’ll
bring one down we’ll do it.”

August 4, 2005 Telephone Call

At 9:42 a.m., Munoz and Vega discussed whether the Engi-
neer had “anything right now.” In a 12:09 p.m. call, Munoz
tells Mincoff that he will get back to him by 3:00 or 4:00 p.m.
Munoz understood that the deal would take place if he
obtained the cocaine. However, Munoz was not able to do so.

II. STANDARDS OF REVIEW

“We review de novo the district court’s denial of a motion
for judgment of acquittal based on insufficient evidence.”
United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007)
(citation omitted). “The evidence is sufficient to support a
9990 UNITED STATES v. MINCOFF
conviction if, viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Id. (citation, emphasis, and internal quotation marks
omitted).

“Where the parties dispute whether the evidence supports
a proposed instruction, we review a district court’s rejection
of the instruction for an abuse of discretion.” United States v.
Bello-Bahena, 411 F.3d 1083, 1089 (9th Cir. 2005) (citation
omitted). When there is a “question whether the district
court’s instructions adequately presented the defendant’s the-
ory of the case,” the “district court’s denial of a proposed jury
instruction” is reviewed de novo. United States v. Somsa-
mouth, 352 F.3d 1271, 1274 (9th Cir. 2003) (citations and
internal quotation marks omitted).

“The district court’s application of the STA [Speedy Trial
Act] is reviewed de novo, and its factual findings are
reviewed for clear error.” United States v. Pete, 525 F.3d 844,
848 n.3 (9th Cir. 2008) (citation omitted).

“We review de novo an asserted Brady/Giglio violation.”
United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004)
(citation omitted).

“We review a district court’s denial of a motion to produce
a witness’ statement pursuant to the Jencks Act for abuse of
discretion.” United States v. Nash, 115 F.3d 1431, 1440 (9th
Cir. 1997) (citation omitted).

“Questions of statutory interpretation are reviewed de
novo.” United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir.
2008) (citation omitted). “We review de novo whether a stat-
ute is unconstitutionally vague.” United States v. Wyatt, 408
F.3d 1257, 1260 (9th Cir. 2005) (citation omitted).
 UNITED STATES v. MINCOFF 9991
III. DISCUSSION

A. Sufficiency of Evidence of Conspiracy

[1] “To establish a drug conspiracy, the government must
prove: 1) an agreement to accomplish an illegal objective; and
2) the intent to commit the underlying offense.” United States
v. Barragan, 263 F.3d 919, 922 (9th Cir. 2001) (citation omit-
ted). The government “can prove the existence of a conspir-
acy through circumstantial evidence that defendants acted
together in pursuit of a common illegal goal.” United States
v. Bishop, 1 F.3d 910, 911 (9th Cir. 1993) (citation omitted).
“Express agreement is not required; rather, agreement may be
inferred from conduct.” United States v. Hegwood, 977 F.2d
492, 497 (9th Cir. 1992) (citation omitted).

Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could find that Mincoff
entered into a conspiracy to distribute cocaine, rather than
merely making or attempting to make a purchase.

1. The 2004 Completed Transaction

[2] Mincoff and Munoz agreed that Mincoff would take the
cocaine to his source and return with the money. This type of
arrangement is known as “fronting.” “Fronting is a sales tech-
nique in which some or all of the drugs being sold are pro-
vided before payment is required.” United States v. Ramirez-
Robles 386 F.3d 1234, 1242 n.2 (9th Cir. 2004) (internal quo-
tation marks omitted).

[3] Although we have not specifically commented on the
relationship between fronting and conspiracy, other circuits
have credited evidence of fronting to establish a distribution
conspiracy. In United States v. Pruett, 501 F.3d 976, 985-86
(8th Cir. 2007), vacated on other grounds, 128 S. Ct. 1473
(2008), the Eighth Circuit concluded that a reasonable jury
could have found Pruett to be a knowing member of a con-
9992 UNITED STATES v. MINCOFF
spiracy to distribute methamphetamine when he both pur-
chased and sold the drug, and fronted one-half ounce of it on
at least one occasion.

Similarly, the evidence in United States v. Beasley, 2 F.3d
1551, 1560-61 (11th Cir. 1993), as amended, cert. denied,
512 U.S. 1240 (1994), was sufficient to sustain the defen-
dant’s conspiracy conviction where the defendant’s supplier
testified that the defendant purchased crack cocaine from him
on several occasions and that the supplier sometimes fronted
cocaine to the defendant.

2. The 2005 Planned Transaction

[4] Although the 2005 transaction was not completed
because Munoz was unable to secure the cocaine for Minc-
off’s buyer, the recorded telephone calls reflect that Mincoff
and Munoz planned to incorporate fronting into their second
transaction. In fact, Mincoff specifically asked Munoz to
deliver the drugs directly to him to save time. In both the
2004 and 2005 transactions, the existence of a deferred pay-
ment arrangement supports the conclusion that Mincoff was
engaged in a conspiracy to distribute cocaine. See United
States v. Johnson, 437 F.3d 665, 676 (7th Cir. 2006) (noting
that fronting demonstrated trust between the parties and was
sufficient to establish that there was a “continuing and mutu-
ally profitable relationship to distribute drugs”) (citation omit-
ted). We are persuaded by precedent from our sister circuits
that evidence of fronting may support a conviction for con-
spiracy to distribute a controlled substance. See United States
v. Bender, 539 F.3d 449, 454 (7th Cir. 2008) (“[S]elling drugs
on credit is especially indicative of a conspiracy because it
gives the seller a stake in the buyer’s successful resale of the
drugs.”) (citation omitted); see also United States v. Pizano,
421 F.3d 707, 719-20 (8th Cir. 2005) (relying on evidence of
fronting over five-year period to uphold conviction for con-
spiracy to distribute).
 UNITED STATES v. MINCOFF 9993
3. The Buyer-Seller Rule

[5] The district court instructed the jury on Mincoff’s the-
ory that “[u]nder the controlling buy-sell law, there was no
conspiracy to distribute cocaine.” The jury was instructed
that:

The sale of narcotics, standing alone, does not
establish a conspiracy to distribute narcotics; rather,
the government must establish beyond a reasonable
doubt that the buyer and seller in a narcotics transac-
tion had an agreement to further distribute the nar-
cotics in question.

The sale of large quantities of narcotics, without
more, is insufficient to establish an agreement
between the buyer and seller to further distribute nar-
cotics; however, the sale of large quantities of nar-
cotics, in combination with other factors that indicate
the buyer conspired with the seller to effect a further
narcotics transaction, may be sufficient to establish
a conspiracy to distribute narcotics.

The jury obviously did not adopt Mincoff’s theory because it
convicted him of one count of conspiracy to distribute
cocaine.

[6] Viewing the evidence in the light most favorable to the
government, a rational trier of fact could have found the
buyer-seller rule inapplicable to the facts of this case. In
United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994), the
defendant sold marijuana to friends for their personal use.
There was no evidence that the friends “further distributed the
marijuana” or that “Lennick sold them marijuana in a suffi-
cient quantity to support an inference that they were going to
further distribute it.” Id. (citation omitted). Here, by contrast,
Munoz sold Mincoff large quantities of cocaine that could
support an inference of further distribution. Also, the recorded
9994 UNITED STATES v. MINCOFF
calls and Munoz’s testimony revealed that both he and Minc-
off were well aware that they were procuring the cocaine for
Mincoff’s buyers. Mincoff’s conspiracy conviction was war-
ranted because the evidence demonstrated an agreement to
further distribute the cocaine, rather than the “mere purchase”
of large quantities of drugs.

[7] The facts of United States v. Thomas, 284 F.3d 746 (7th
Cir. 2002), on which Mincoff relies, are distinguishable for
the same reason. See Thomas, 284 F.3d at 752-53 (noting the
lack of an agreement between the buyer and seller). Munoz
knew at all times that Mincoff was purchasing the cocaine for
his customers. Munoz had a shared stake in Mincoff’s illegal
venture because he made $500 per kilogram of cocaine sold
in 2004. Munoz was confident that he would make a similar
profit on the 2005 deal. The fronting that occurred in 2004,
and was to occur in 2005, demonstrated mutual trust between
Munoz and Mincoff. Ultimately, if one looks at the “entire
course of dealing” between Mincoff and Munoz, there is evi-
dence that Munoz, unlike the defendant in Thomas, “shared
with [Mincoff] a stake in the success of the retail sales to
[Mincoff’s] customers . . . ” Thomas, 284 F.3d at 753.

4. Agreement on Essential Terms of the Planned 2005
Transaction

“A formal agreement is not necessary [for a conspiracy]; an
agreement may be inferred from the Appellants’ acts pursuant
to the scheme, or other circumstantial evidence.” United
States v. Hopper, 177 F.3d 824, 829 (9th Cir. 1999) (citation
omitted).

Mincoff and Munoz agreed to the essential terms of the
planned 2005 transaction. Mincoff initially ordered “maybe
seven but six [kilograms] for sure.” When the cocaine had not
arrived by July 27, Mincoff’s buyers grew impatient, and
Mincoff reduced the order to three kilograms. Mincoff further
 UNITED STATES v. MINCOFF 9995
reduced the cocaine order to one kilogram on July 28 because
his buyers were leaving town.

The changing quantities of cocaine do not necessarily indi-
cate that there was no agreement on Mincoff’s part. In the
2004 transaction, Mincoff ordered eight kilograms of cocaine
for his buyer, but Munoz was only able to procure five. Minc-
off accepted the reduced order, and retrieved the drugs within
the hour.

Mincoff and Munoz also agreed on the price of the cocaine.
Munoz sold Mincoff the cocaine for $15,500 per kilogram in
2004. The transcript of the recording indicates that Mincoff
was expecting to pay about the same price per kilogram in
2005: “I just . . . assume [sic] do ‘em with you if the numbers
are right, because we didn’t have any problem with ‘em last
time.” Munoz also testified that he and Mincoff were set on
the price of the cocaine, and that price was $15,500 per kilo-
gram, the same price as in 2004.

Munoz confirmed his belief that there was an agreement
between Mincoff and him to obtain cocaine and redistribute
it to other individuals. Circumstantial evidence bolstered
Munoz’s belief. See United States v. Williams, 547 F.3d 1187,
1196-97 (9th Cir. 2008) (noting that the evidence was suffi-
cient to establish that the defendants “acted together with a
common goal”) (citation omitted).

[8] In sum, the evidence was sufficient to establish that
Mincoff was involved in a drug distribution conspiracy with
Munoz and others. Evidence of the fronting arrangement, the
intent to further distribute the cocaine, the shared stake in the
success, and the agreement on essential terms of the 2005
planned transaction support the conspiracy conviction.

B. Sufficiency of Evidence of Attempt to Distribute a
Controlled Substance

[9] “[A]n attempt conviction requires evidence that a defen-
dant intended to violate the statute and took a substantial step
9996 UNITED STATES v. MINCOFF
toward completing the violation.” United States v. Meek, 366
F.3d 705, 720 (9th Cir. 2004) (citations and internal quotation
marks omitted). “To constitute a substantial step, a defen-
dant’s actions must cross the line between preparation and
attempt by unequivocally demonstrating that the crime will
take place unless interrupted by independent circumstances.”
United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007)
(citation and internal quotation marks omitted).

[10] Mincoff crossed the line between preparation and
attempt during the 2005 planned transaction. Mincoff and
Munoz discussed the details of Mincoff’s order. Mincoff
repeatedly asked Munoz whether they could “knock out” the
deal “now.” Mincoff did everything within his power to con-
summate the cocaine deal. His buyer, who was from Northern
California, arrived in person to pick up the drugs in San
Diego, and was present during some of the calls to Munoz.
Munoz testified that he had no reason to believe that Mincoff
did not intend to fully go through with the transaction. The
only thing missing was the drugs, and Munoz asserted that
finding the cocaine was all that remained to be done to com-
plete the deal. The evidence demonstrates that Mincoff would
have gone through with the narcotics sale and redistribution
but for the independent circumstance that Munoz, his sup-
plier, could not secure the drugs. Therefore, because he did all
he could to ensure the deal’s completion, a rational trier of
fact could have found that Mincoff attempted to distribute
cocaine. See United States v. Smith, 962 F.2d 923, 930-31
(9th Cir. 1992) (explaining that there was sufficient evidence
of an attempt where the defendant “committed all the steps
necessary on his part.”).

Citing United States v. Yossunthorn, 167 F.3d 1267, 1271-
73 (9th Cir. 1999), Mincoff proposes that there were too many
uncertainties in the 2005 planned transaction to constitute an
attempt. However, United States v. Hernandez-Franco, 189
F.3d 1151, 1157 (9th Cir. 1999), explains that:
 UNITED STATES v. MINCOFF 9997
Yossunthorn merely held that conducting countersur-
veillance activities to ensure the security of a meet-
ing to make arrangements for some future drug
purchase did not constitute a substantial step to sus-
tain a conviction for attempted possession with
intent to distribute heroin because too many steps
remained for the crime to be completed.

(citation and internal quotation marks omitted). Here, as in
Hernandez-Franco, “there was much less uncertainty,” as the
only task remaining was for Munoz to obtain the cocaine. Id.
Viewing the evidence in the light most favorable to the prose-
cution, a reasonable jury could conclude that Mincoff’s con-
duct “was undertaken in accordance with a design to violate
the statute.” Id. (citation omitted).

C. Sufficiency of Evidence of Unlawful Use of a Com-
munication Facility

[11] “In order to show a violation of section 843(b), the
government must establish knowing and intentional use of a
communications facility, e.g., a telephone, to facilitate the
commission of a narcotics offense.” United States v. Davis,
960 F.2d 820, 827 (9th Cir. 1992) (citation, alterations, and
internal quotation marks omitted). “The knowledge element
of § 843(b) requires the government to prove that the defen-
dant knowingly or intentionally used the communication
device in order to aid or facilitate the underlying criminal vio-
lation.” United States v. Whitmore, 24 F.3d 32, 35 (9th Cir.
1994) (citations and footnote reference omitted). “What is
essential is that the defendant knows that he or she is using
the communication device to facilitate the drug transaction.”
Id.

[12] There was sufficient evidence to support Mincoff’s
convictions under § 843. The recorded calls between Mincoff
and Munoz, where price, quantity, and delivery were dis-
cussed, establish that Mincoff knowingly used a telephone to
9998 UNITED STATES v. MINCOFF
facilitate the distribution of cocaine. See Davis, 960 F.2d at
827 (concluding that direct and circumstantial evidence were
sufficient to show that defendant used a telephone, or
instructed another to use a telephone, to facilitate a drug deal).

Mincoff’s reliance on United States v. Rivera, 775 F.2d
1559 (11th Cir. 1985), is unavailing because he went far
beyond merely checking on the status of Munoz’s efforts. Cf.
id. at 1562 (noting that defendant made calls “simply to find
out whether any sales had been made,” not to facilitate the
sales). In contrast, Mincoff urged Munoz to find a drug source
for the willing buyers Mincoff had lined up. The only task
remaining was to procure the cocaine.

D. Mincoff’s Requested Multiple Conspiracies
Instruction

“A multiple conspiracies instruction is generally required
where the indictment charges several defendants with one
overall conspiracy . . . .” United States v. Anguiano, 873 F.2d
1314, 1317 (9th Cir. 1989). “Evidence sufficient to support a
multiple conspiracies instruction is present where a jury could
reasonably conclude that some of the defendants were only
involved in separate conspiracies unrelated to the overall con-
spiracy charged in the indictment.” United States v. Fernan-
dez, 388 F.3d 1199, 1247 (9th Cir. 2004) (citation, emphasis,
and internal quotation marks omitted).

[13] The district court properly denied Mincoff’s request
for a multiple conspiracies jury instruction. Mincoff’s theory
that the presence of subagreements among himself and
Munoz, Munoz and his suppliers, and himself and his buyers
warranted a multiple conspiracies instruction, is unconvinc-
ing. It is irrelevant that Munoz’s suppliers and Mincoff’s buy-
ers did not know each other or may not have been aware of
every act committed in furtherance of the conspiracy, because
“[a] single conspiracy can include subgroups or subagree-
ments . . .” United States v. Bauer, 84 F.3d 1549, 1560 (9th
 UNITED STATES v. MINCOFF 9999
Cir. 1996), as amended. It is sufficient that the government
proved that Mincoff “was involved in a broad project to dis-
tribute cocaine and that his benefit depended on the success
of the operation.” United States v. Shabani, 48 F.3d 401, 403
(9th Cir. 1995), as amended (citation omitted).

E. Mincoff’s Requested Attempt Instruction

Mincoff contends that the district court erred when it
declined to give his requested instruction that there is no
attempt to distribute simply from negotiations with a known
drug dealer. He argues that the actual instruction given
“opened a wider pathway to conviction to which the govern-
ment was unentitled.”

“In reviewing jury instructions, the relevant inquiry is
whether the instructions as a whole are misleading or inade-
quate to guide the jury’s deliberation.” United States v.
Cherer, 513 F.3d 1150, 1154 (9th Cir. 2008) (citation omit-
ted). “The trial court has substantial latitude so long as its
instructions fairly and adequately cover the issues presented.”
Id. (citation and alteration omitted).

[14] The attempt instruction was not misleading or inade-
quate to guide the jury’s deliberation. It read:

A substantial step towards the commission of the
crime of distribution of cocaine requires more than
mere preparation. Merely initiating a transaction
with a known drug supplier, without more, is not
sufficient. In evaluating whether a substantial step
toward the commission of the crime of distribution
of cocaine has been taken, you may consider the
nature and scope of the negotiations between a buyer
and seller, as well as all other circumstances relating
to the commission of the alleged crime.

This instruction tracks the language in Yossunthorn, which
stated:
10000 UNITED STATES v. MINCOFF
When key elements of the drug deal are incomplete,
making an appointment with a known drug supplier,
even one who has previously fronted drugs to the
defendant at a fixed price, is . . . not of itself such a
commitment to an intended crime as to constitute an
attempt, even though it may make a later attempt
possible.

167 F.3d at 1272-73 (citation and internal quotation marks
omitted). The district court also provided an instruction that
tracks Ninth Circuit Model Criminal Jury Instruction on
attempt:2

The defendant is charged in Count 2 of the supersed-
ing indictment with attempted distribution of cocaine
in violation of Sections 841(a)(1) and 846 of Title 21
of the United States Code. In order for the defendant
to be found guilty of that charge, the government
must prove each of the following elements beyond a
reasonable doubt: First, the defendant intended to
deliver cocaine to another person; Second, the defen-
dant knew it was cocaine or some other prohibited
drug; and Third, the defendant did something that
was a substantial step toward committing the crime,
with all of you agreeing as to what constituted the
substantial step. Mere preparation is not a substantial
step toward the commission of the crime of distribu-
tion of cocaine.
2
The text of Ninth Circuit Model Criminal Instruction 5.3 (2003) reads:
“The defendant is charged in the indictment with attempting to commit [
crime charged]. In order for the defendant to be found guilty of that
charge, the government must prove each of the following elements beyond
a reasonable doubt: First, the defendant intended to commit [crime
charged]; and Second, the defendant did something which was a substan-
tial step toward committing the crime, with all of you agreeing as to what
constituted the substantial step. It is a crime to commit [crime charged].
Mere preparation is not a substantial step toward the commission of the
[crime charged].”
 UNITED STATES v. MINCOFF 10001
Because the instructions addressing attempt tracked the lan-
guage of Yossunthorn and the Ninth Circuit Model Criminal
Instruction, they adequately informed the jury of the require-
ments for conviction on the charge of attempt to distribute
cocaine.

F. Constructive Amendment of the Indictment

Mincoff contends that the indictment was constructively
amended because the government’s charge did not match the
proof offered at trial. Essentially, he argues that a conspiracy
to distribute cocaine requires proof that one possessed that
cocaine. Mincoff theorizes that the indictment implicitly
charged possession of cocaine by charging conspiracy to dis-
tribute cocaine. Because the government did not prove that he
possessed cocaine, Mincoff accuses the government of charg-
ing one thing and proving another.

“A constructive amendment involves a change, whether lit-
eral or in effect, in the terms of the indictment.” United States
v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002) (citation and
internal quotation marks omitted). A constructive amendment
requires reversal and occurs where “(1) there is a complex of
facts presented at trial distinctly different from those set forth
in the charging instrument, or (2) the crime charged in the
indictment was substantially altered at trial, so that it was
impossible to know whether the grand jury would have
indicted for the crime actually proved.” Id. at 615 (citations,
alterations, and internal quotation marks omitted).

The Superseding Indictment charged Mincoff with “know-
ingly and intentionally conspir[ing] . . . to distribute 5 kilo-
grams and more of cocaine . . .” The proof at trial, including
Munoz’s testimony and the recorded telephone calls, establish
that Mincoff ordered large quantities of cocaine from Munoz
with the intent to further distribute the cocaine to Mincoff’s
buyers. Nevertheless, Mincoff contends that the government
10002 UNITED STATES v. MINCOFF
did not prove the charges in the indictment, because there was
no proof that he possessed cocaine.

Although we have not yet ruled on this precise issue, other
circuits have rejected the argument that possession is a neces-
sary element of the crime of conspiracy to distribute narcotics.
See, e.g., United States v. Osuna-Zepeda, 416 F.3d 838, 843
(8th Cir. 2005) (“Possession of the narcotic is not a necessary
element of the crime of conspiracy to distribute.”) (citations
omitted); United States v. Colon, 268 F.3d 367, 377 (6th Cir.
2001) (“[I]t is possible to commit the distribution element of
the crime without possessing the drugs themselves.”) (internal
quotation marks omitted); United States v. Jackson, 213 F.3d
1269, 1297 (10th Cir.), vacated on other grounds, 531 U.S.
1033 (2000) (“Although it may be unusual for a person to dis-
tribute a controlled substance without at least momentarily
possessing the controlled substance, it is not impossible.”)
(citations omitted); United States v. Sepulveda, 102 F.3d
1313, 1317 (1st Cir. 1996) (“While possession is certainly
helpful in proving distribution, it is technically not a neces-
sary element.”) (citations and internal quotation marks omit-
ted); United States v. Barrientos, 758 F.2d 1152, 1158 (7th
Cir. 1985) (same).

[15] We adopt the rule articulated by our sister circuits that
a narcotics distribution charge may be proven without proof
of possession. This conclusion is consistent with the general
law of conspiracy—that the conspiracy is complete once
agreement is reached and an overt act is committed by either
conspirator to further the agreement. See United States v.
Bosch, 914 F.2d 1239, 1241 (9th Cir. 1990) (“The conspiracy
was complete when the conspirators had agreed to commit the
offense and one of them had done an overt act in furtherance
of the agreement. The accomplishment of the conspiracy’s
goal is immaterial . . .”) (citation omitted). To hold otherwise
would create a loophole allowing drug conspirators to dodge
conviction by avoiding possession of the drugs that formed
the very basis of the conspiracy. Because the evidence proved
 UNITED STATES v. MINCOFF 10003
the conspiracy charge in the Superseding Indictment, Minc-
off’s argument that the indictment was constructively
amended fails.

G. Speedy Trial Ruling

“The Speedy Trial Act, 18 U.S.C. § 3161, sets forth those
trial delays which shall be excluded in computing the time
within which a defendant’s trial must commence.” United
States v. Aviles-Alvarez, 868 F.2d 1108, 1111 (9th Cir. 1989).
“A continuance will result in excludable delay only if the con-
tinuance is based on the district court’s findings that the ends
of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.” Id.
at 1112 (citation and internal quotation marks omitted).

The district court’s factual findings and conclusion that the
ends of justice supported exclusion of time in this case were
not clearly erroneous. Mincoff and three codefendants were
indicted on June 6, 2006. On August 22, 2006, the district
court made oral and written findings that this case was “un-
usually complex” and excluded time under the STA from
August 16, 2006 to October 11, 2006. Pursuant to other fac-
tual findings, the district court also excluded time from Octo-
ber 11, 2006 to November 29, 2006; November 29, 2006 to
March 14, 2007; March 14, 2007 to June 27, 2007; and June
27, 2007 to August 3, 2007.

[16] Each of the factual findings described how this case
was related to five other cases pending before the district
court by way of common evidence and common defendants,
with a total of thirty-four individuals before the district court.
Two of the four individuals originally charged in this case
were also charged with a RICO conspiracy that presented
“novel questions of fact and law.” The findings related that as
of June 29, 2007,

the Government has produced in discovery approxi-
mately 48,000 pages of written material, 130 com-
10004 UNITED STATES v. MINCOFF
pact disks, 4 digital video disks, 17 video tape
recordings and 15 audio cassette tapes. The compact
disks contain, among other things, approximately
30,000 intercepted telephone calls and approxi-
mately 31,400 pages of line sheets which correspond
to those calls.

These findings complied with Aviles-Alvarez. The exclusions
were specifically limited in time and justified with reference
to the facts as of the time the delay was ordered.

H. The Government’s Obligations Under Brady,
Giglio, and the Jencks Act

1. Brady/Giglio

Brady requires the government to disclose “any evidence
favorable to Defendants material to their guilt or innocence.”
United States v. Chapman, 524 F.3d 1073, 1078 (9th Cir.
2008). Giglio requires that the government disclose “any
promises, inducements, or threats made to witnesses to gain
cooperation in the investigation or prosecution.” Id.

“The three elements of a Brady violation are: (1) the evi-
dence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; (2) that
evidence must have been suppressed by the State, either will-
fully or inadvertently; and (3) prejudice must have ensued.”
United States v. Williams, 547 F.3d 1187, 1202 (9th Cir.
2009) (citation, alteration, and internal quotation marks omit-
ted). “Evidence is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Jackson v.
Brown, 513 F.3d 1057, 1071 (9th Cir. 2008) (citation and
internal quotation marks omitted).

[17] The district court properly denied Mincoff’s motions
for Brady/Giglio material. Mincoff requested any untruthful
 UNITED STATES v. MINCOFF 10005
or incomplete information or testimony in addition to the
notes taken during FBI interviews of Munoz. However, Minc-
off concedes that the government informed him of Munoz’s
contradictory statement regarding the reduction of the 2004
cocaine order from eight to five kilograms. Aside from this
contradiction, Mincoff has not identified any potentially
exculpatory evidence that was not disclosed to him. Mincoff’s
“mere speculation about materials in the government’s files”
did not require the district court to make those materials avail-
able, or mandate an in camera inspection. United States v.
Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986).

2. Jencks Act

“The Jencks Act3 mandates that after a witness called by
the United States testifies on direct, the United States must, on
motion by the defendant, produce any statement of the wit-
ness in the possession of the United States that relates to the
subject matter testified to by the witness.” United States v.
Riley, 189 F.3d 802, 805 (9th Cir. 1999) (citation omitted).
The term “statement” means “a written statement made by
said [government] witness and signed or otherwise adopted or
approved by him,” or “a stenographic, mechanical, electrical,
or other recording, or a transcription thereof, which is a sub-
stantially verbatim recital of an oral statement made by said
witness and recorded contemporaneously with the making of
such oral statement.” United States v. Ogbuehi, 18 F.3d 807,
810 n.1 (9th Cir. 1994) (citation and alteration omitted).

[18] The district court did not abuse its discretion when it
found that the interview notes were not Jencks Act material.
Although notes were taken by FBI agents during the inter-
views with Munoz, nothing in the record suggests that the
notes amount to substantially verbatim recitals of Munoz’s
oral statements. Further, the agents never read any of these
notes back to Munoz and there is nothing to indicate that
3
18 U.S.C. § 3500.
10006 UNITED STATES v. MINCOFF
Munoz “signed or otherwise adopted or approved” the notes
as his own statements. Thus, the notes cannot be considered
substantially verbatim recitals of Munoz’s oral statements that
were adopted by him. “A government agent’s rough notes will
not be Jencks Act statements when they are not complete, are
truncated in nature, or have become an unsiftable mix of wit-
ness testimony, investigator’s selections, interpretations, and
interpolations.” United States v. Simtob, 901 F.2d 799, 809
(9th Cir. 1990) (citation and internal quotation marks omit-
ted). The district court correctly determined that the interview
notes were not subject to production under the Jencks Act.

I. The Sentence Enhancement

1. Felony Drug Offense

Mincoff contends that the district court erred by doubling
the minimum mandatory sentence on Counts 1 and 2 from ten
to twenty years and on Counts 3 and 4 from four to eight
years. The double penalties apply only if Mincoff’s 1990 con-
viction for possession of a listed chemical with intent to man-
ufacture methamphetamine is a “felony drug offense.”

“Federal law imposes a mandatory minimum sentence for
certain crimes, but only if the defendant has a felony drug
prior. In order to render defendant eligible for the mandatory
minimum, the government must allege the prior conviction in
an information pursuant to 21 U.S.C. § 851.” United States v.
Severino, 316 F.3d 939, 941 (9th Cir. 2003) (en banc). “The
term felony drug offense means an offense that is punishable
by imprisonment for more than one year under any law of the
United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana, ana-
bolic steroids, or depressant or stimulant substances.” 21
U.S.C. § 802(44) (internal quotation marks omitted).4 Ephe-
4
The United States Supreme Court recently determined that § 802(44)
provides the exclusive definition of a “felony drug offense.” Burgess v.
United States, 128 S.Ct. 1572, 1577 (2008).
 UNITED STATES v. MINCOFF 10007
drine can be used as a precursor chemical to manufacture
methamphetamine. See United States v. Lo, 447 F.3d 1212,
1224 n.6 (9th Cir. 2006).

Mincoff’s prior offense is a felony drug offense. On Octo-
ber 18, 1990, Mincoff was found guilty of possession of a
listed chemical (ephedrine) with the intent to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841(d)(1) and
802(34)(C). Mincoff was sentenced to 120 months’ imprison-
ment, but his sentence was reduced to 57 months.

[19] The government filed an information and notice to
seek enhanced penalties. As a result, Mincoff’s expert filed a
declaration stating that ephedrine is not a narcotic drug, mari-
huana, anabolic steroid, or depressant or stimulant substance.
However, methamphetamine falls within the definition of a
stimulant substance as defined by 21 U.S.C. § 802(9)(B).5 See
United States v. Ward, 63 F. Supp. 2d 1203, 1207 n.4 (C.D.
Cal. 1999) (citation and internal quotation marks omitted); see
also Metabolife International, Inc. v. Wornick, 264 F.3d 832,
849 (9th Cir. 2001) (recognizing ephedrine as a stimulant).
Therefore, Mincoff’s possession of ephedrine was conduct
relating to the stimulant substance of methamphetamine,
resulting in a conviction qualifying as a felony drug offense.
See United States v. Hollis, 490 F.3d 1149, 1157 (9th Cir.
2007) (“To determine whether a prior conviction qualifies as
a drug trafficking offense, we look only to the fact of convic-
tion and the statutory definition of the prior offense.”) (cita-
tion omitted).
5
“The term depressant or stimulant substance means . . . (B) a drug
which contains any quantity of (i) amphetamine or any of its optical iso-
mers; (ii) any salt of amphetamine or any salt of an optical isomer of
amphetamine; or (iii) any substance which the Attorney General, after
investigation, has found to be, and by regulation designated as, habit form-
ing because of its stimulant effect on the central nervous system . . .” 21
U.S.C. § 802(9)(B) (internal quotation marks omitted).
10008 UNITED STATES v. MINCOFF
2. Constitutionality of 21 U.S.C. § 841(b)

Mincoff contends that the term “felony drug offense” as
used in 21 U.S.C. § 841(b) is vague as applied to his prior
conviction of possession of ephedrine with intent to manufac-
ture methamphetamine.

“A law is unconstitutionally vague if it fails to provide a
reasonable opportunity to know what conduct is prohibited, or
is so indefinite as to allow arbitrary and discriminatory
enforcement.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531,
554 (9th Cir. 2004), as amended (citations omitted).

[20] Section 841 is constitutional as applied to Mincoff. In
United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.
1991), we rejected a claim that the definition of a “felony
drug offense” was unconstitutionally vague as applied to a
defendant with prior felony convictions for cocaine posses-
sion. Mincoff attempts to distinguish his case from Van Win-
row on the basis that the phrase “conduct relating to a felony
drug offense” is vague as applied to his prior conviction of
possession of ephedrine with intent to manufacture metham-
phetamine, as ephedrine itself is not a stimulant. This argu-
ment is unconvincing because a reasonable person would
know that possession of ephedrine with intent to use it in
manufacturing methamphetamine is conduct relating to a fel-
ony drug offense of methamphetamine production.

Contrary to Mincoff’s view, the rule of lenity does not
apply because the statute is not ambiguous. Accordingly,
there is no need to construe § 841 in Mincoff’s favor. See
United States v. Hoyt, 879 F.2d 505, 511-12 (9th Cir. 1989),
as amended.

IV. CONCLUSION

We affirm Mincoff’s conviction and sentence. The evi-
dence was sufficient to sustain the convictions for conspiracy
 UNITED STATES v. MINCOFF 10009
to distribute cocaine, attempt to distribute a controlled sub-
stance, and use of a communication facility. There was no
abuse of discretion in declining to give a multiple conspira-
cies instruction or an instruction stating that negotiating with
a known drug dealer is not sufficient proof of an attempt to
distribute. There was no Speedy Trial Act violation, no
Brady/Giglio violation, and no Jencks Act violation. The pen-
alty enhancement was not vague as applied.

AFFIRMED.