FILED
NOT FOR PUBLICATION MAR 13 2012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, No. 11-30048
Plaintiff - Appellee, D.C. No. 2:09-cr-00417-TSZ-2
v.
MEMORANDUM *
ROBERT HENRY SMITH,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Submitted March 8, 2012 **
Seattle, Washington
Before: PAEZ and MURGUIA, Circuit Judges, and GWIN, District Judge.***
Appellant Robert Henry Smith (“Smith”) was convicted following a jury
trial of conspiracy to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1),
*
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 James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
841(b)(1)(C) and 846, four counts of distribution of oxycodone in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and possession of oxycodone with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He claims on
appeal that there was insufficient evidence presented at trial to support his
conviction for conspiracy to distribute. Because the facts are known to the parties,
we recount them here only as necessary to explain our decision. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We may only overturn the conviction if, viewing the evidence in the light
most favorable to the government, no “rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). Challenges to the sufficiency of the evidence are
ordinarily reviewed de novo. United States v. Stewart, 420 F.3d 1007, 1014 (9th
Cir. 2005). When a defendant, like Smith, fails to make a timely motion for
acquittal, however, we review for plain error or manifest injustice. United States v.
Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
In this case, we hold that it was not plain error for the jury to conclude
beyond a reasonable doubt that Smith had the requisite agreement and intent to
distribute oxycodone. See United States v. Herrera-Gonzalez, 263 F.3d 1092,
1095 (9th Cir. 2001) (outlining elements of conspiracy to distribute pursuant to 21
U.S.C. § 846). Circumstantial evidence can be sufficient to establish a conspiracy.
United States v. Reed, 575 F.3d 900, 924 (9th Cir. 2009). Codefendant Adrian
Johnson testified at trial that he sold Smith oxycodone on credit, knowing that
Smith would pay him after reselling the drugs for a profit. This “entire course of
dealing” is sufficient to support the conviction for conspiracy to distribute. United
States v. Mincoff, 574 F.3d 1186, 1194 (9th Cir. 2009) (citation and internal
quotation omitted). The sale of the drugs on credit distinguishes this case from
United States v. Lennick, 18 F.3d 814 (9th Cir. 1994) as the arrangement provides
evidence of an agreement and intent to redistribute the drugs beyond the actual
sale. See Mincoff, 574 F.3d at 1193 (noting that “evidence of fronting may support
a conviction for conspiracy to distribute a controlled substance”). There was also
testimony that Smith gave oxycodone pills to the government’s confidential source
in exchange for bringing Smith customers. Evidence of this “drug commission”
was also sufficient to support a conviction for conspiracy to distribute oxycodone.
See United States v. Webster, 623 F.3d 901, 907 (9th Cir. 2010) (holding in part
that awareness of resale activities together with evidence of “kickback”
relationship is sufficient to support conviction for conspiracy to distribute). We
hold that there was sufficient evidence for the jury to convict Smith of conspiracy
to distribute oxycodone.
AFFIRMED