Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1989)

MEMORANDUM^* 

Terry Eugene Laroque appeals his conviction and sentence for conspiracy to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846 (1982). The evidence at trial established beyond doubt that the appellant was the source of cocaine in a chain of distribution that ultimately reached a DEA Agent. The principal government witness at trial was attorney Bernard Goldman, the individual who purchased the cocaine directly from the appellant.

Appellant first contends that the district court committed reversible error when it refused to suppress statements made following his request for counsel. We agree with the appellant that the statements should not have been admitted. When the appellant asked for a lawyer, the government instead directed him to Goldman, his co-defendant. There could have been no knowing waiver of appellant's sixth amendment rights when he spoke unknowingly to the principal government witness against him.

The error, however, was harmless beyond a reasonable doubt and therefore does not require reversal. Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986). Before requesting an attorney, and after receiving his Miranda warnings, appellant admitted that he was Goldman's source of supply of the cocaine. His subsequent statements merely provided details of the transaction. The failure to supress them was not reversible error.

Appellant next contends that the district court erred in admitting at trial the testimony of a policeman and a prosecutor who described appellant's testimony at his unrecorded bail hearing. Appellant was represented by counsel at the bail proceeding. Appellant objected to the testimony on the grounds that it was not sufficiently reliable to be admitted under Fed.R.Evid. 804(b) (5), that it was not the best evidence, and that the evidence was more prejudicial than probative. The district court appropriately ruled on the objections that were made. On appeal, appellant also suggests that the admission of the testimony forced him to choose between taking the stand to deny the testimony, or standing on his fifth amendment right to remain silent at trial, and thus violated his fifth amendment rights. The appellant never suggested to the district court that the admission of the evidence caused him to consider taking the stand. We therefore need not consider here whether suppression would have been required if a conflict of interest had existed.

Appellant contends that the district court erred in applying the sentencing guidelines when the court increased the level of offense by two levels by finding that Laroque was the manager of the criminal activity of which he was convicted. The guidelines direct sentencing judges to increase a defendant's offense level by two if the defendant was "an organizer, leader, manager, or supervisor" of criminal activity that involved four or fewer participants or was otherwise not extensive. United States Sentencing Commission, Sentencing Guidelines Sec. 3B1.1(c) (1988). In determining a defendant's role in a crime, the judge should consider the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised by the defendant over others. Id. at Application Note 3. Laroque points to his poverty and asks us to assume that because he had not been shown to have profited from any prior drug transactions, he could not have been the organizer of this one. There is no basis in law or in fact for such an assumption.

Laroque also contends that the district court erred in relying on an expunged prior conviction and upon a pending state criminal prosecution in departing upwards from the guidelines. There was no error. The district court reasonably could have departed from the guidelines by counting the prior conviction either as a prior sentence not used in computing the criminal history category, or as a factor not expressly enumerated. See United States Sentencing Commission, Sentencing Guidelines Secs. 4A1.3 and 4A1.3(a) (1988)). The district court was also within its discretion in relying on pending state charges. See United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (sentencing judge may consider hearsay information, including unproven charges).

Appellant challenges the district court's refusal to give certain requested instructions with respect to the requirement of a voluntary act as an element of the crime, and the weight to be given his confession. These contentions are without merit. The instructions given adequately covered the elements of the crime.

There was no basis on which the district court could have ordered a new trial.

AFFIRMED.