FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10165
Plaintiff - Appellee, D.C. No. 4:10-cr-00039-FRZ-
GEE-8
v.
VENANCIO CASAREZ-SANCHEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted November 5, 2012
San Francisco, California
Before: SACK,** GOULD, and M. SMITH, Circuit Judges.
Defendant Venancio Casarez-Sanchez appeals his conviction of conspiracy
to possess with intent to distribute 1,000 kilograms or more of marijuana and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the United
States Court of Appeals for the Second Circuit, sitting by designation.
possession with intent to distribute 1,000 kilograms or more of marijuana. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.
Defendant contends that the district court abused its discretion by admitting
statements of Defendant’s co-conspirators made after Defendant’s arrest and
release. The district court did not abuse its discretion because “[a]n unarrested
co-conspirator still operating in furtherance of the conspiracy may say and do
things which may be introduced against the arrested one if the conspiracy is still in
operation.” United States v. Wentz, 456 F.2d 634, 637 (9th Cir. 1972); see also
Fed. R. Evid. 801(d)(2)(E).
Here, the government proved a single overarching conspiracy to import
marijuana to Tucson and Phoenix using tractor trailers, and this conspiracy
continued after Defendant’s arrest. A conspiracy is presumed to continue unless
there is affirmative evidence of abandonment or withdrawal. United States v.
Wilbur, 674 F.3d 1160, 1176 (9th Cir. 2012). Defendant did not prove that he or
his co-conspirators abandoned or withdrew from the drug-trafficking conspiracy.
Merely asserting that co-conspirators lacked knowledge of the April 14 drug load
does not necessarily prove that multiple, separate conspiracies existed. See United
States v. Taren–Palma, 997 F.2d 525, 530 (9th Cir. 1993), overruled on other
grounds by United States v. Shabani, 513 U.S. 10, 11 (1994).
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Defendant also asserts that there was insufficient evidence to establish the
conspiracy alleged in the indictment. When viewed in the light most favorable to
the government, the evidence was adequate to allow a rational trier of fact to find
the essential elements of the crime beyond a reasonable doubt. See United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (citing Jackson v. Virginia,
443 U.S. 319 (1979)). The government proved the single drug conspiracy to
import marijuana to the Southwest as charged.
Finally, Defendant contends that there was a fatal variance between the
conspiracy charged in the indictment and the evidence at trial. We review this
claim de novo. United States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). For
the reasons articulated above, the evidence presented at trial is consistent with a
single conspiracy to possess with intent to distribute 1,000 or more kilograms of
marijuana.
AFFIRMED.
3