NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 15 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-10273
Plaintiff - Appellee, D.C. No. 2:07-cr-00248-WBS-18
v.
MEMORANDUM*
JOSE ANGEL VILLASENOR, AKA
Pepito,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Submitted June 13, 2012**
San Francisco, California
Before: GOULD, TALLMAN, and BEA, Circuit Judges.
Defendant-Appellant Jose Villaseñor was convicted in the U.S. District
Court for the Eastern District of California of one count of conspiring to distribute
*
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).
methamphetamine, cocaine, marijuana, and MDMA (also known as “ecstasy”), and
two counts of using a telephone to facilitate a drug trafficking conspiracy, both
federal crimes. We AFFIRM his conviction.
Villaseñor contends on appeal that the evidence at trial proved the existence
of two separate conspiracies—one in California and one in Ohio—but that
Villaseñor had no knowledge of or participation in the Ohio conspiracy and so
could not have been convicted of participating in the combined conspiracy. This is
contradicted by the testimony at trial. Villaseñor’s co-conspirator, Mario Diaz,
testified that Villaseñor sold Diaz a car with a hidden compartment for transporting
drugs. When Villaseñor asked Diaz why Diaz wanted the car, Diaz testified: “I
told [Villaseñor] that I need a reliable, dependent car for long distance because I
wanted it to travel out of state.” Thus, there was sufficient evidence to show that
Villaseñor knowingly participated in an out-of-state drug distribution ring. Based
on this evidence, and granting all reasonable inferences to the government, see
United States v. Stanton, 501 F.3d 1093, 1100 (9th Cir. 2007), the jury could have
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reasonably inferred that Villaseñor and Diaz engaged in the single, multi-state
conspiracy of which he was convicted.1
Villaseñor contends that the conviction must be reversed because the
indictment charged Villaseñor with participating in a conspiracy “to distribute
methamphetamine and cocaine and marijuana and MDMA [commonly known as
ecstasy],” but the government presented no evidence that Villaseñor distributed
MDMA. Villaseñor’s claim fails because, in a conspiracy case, the law is clear
that “[t]he government may charge in the conjunctive form that which the statutes
denounce disjunctively, and evidence supporting any one of the charges will
support a guilty verdict.” United States v. Abascal, 564 F.2d 821, 832 (9th Cir.
1977).
Finally, Villaseñor contends that the use of the Federal Rule of Evidence
902(11) self-authentication procedure and the admission of the subscriber record
violated his Confrontation Clause rights. We decline to decide the merits of this
issue. Even assuming constitutional error, any error would have been harmless
beyond a reasonable doubt. See United States v. Norwood, 603 F.3d 1063, 1068
1
For the same reason, Villaseñor’s claim that a variance occurred between
indictment and proof fails. If the evidence supports the existence of a single
conspiracy, then there could not have been any variance between indictment and
conviction.
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(9th Cir. 2010). There was substantial evidence showing conclusively that
Villaseñor was the subscriber of the relevant phone number, including: a T-Mobile
receipt for the relevant phone number, containing Villaseñor’s name, discovered at
his home; testimony that the voice heard in calls to that phone number was
Villaseñor’s; a business card showing that Villaseñor used that phone number; and
a phone seized at Villaseñor’s home containing a cellphone SIM card showing the
phone number in question.
AFFIRMED.
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