Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Ivan ARBOGAST and George A. Dapsevicius, Defendants-Appellants.

Nos. 89-10053, 89-10056.

United States Court of Appeals, Ninth Circuit.

Arbogast Argued and Submitted May 17, 1990.Dapsevicius Appeal Submitted May 17, 1990.^* Decided Aug. 31, 1990.

Before SCHROEDER and CANBY, Circuit Judges and WILLIAM J. REA,²  District Judge

MEMORANDUM¹ 

Ivan Arbogast and George Dapsevicius were involved in a conspiracy to possess and distribute over one ton of marijuana. While they did not occupy positions of top leadership in the conspiracy, their roles were substantial and well-established at trial. Mr. Peyton Eidson was the leader of the group. Dapsevicius handled security and transportation matters for Eidson, and Arbogast took a pound of marijuana from Eidson in an attempt to sell it.

Ivan Arbogast appeals his conviction for participating in a conspiracy to possess marijuana with the intent to distribute it, in violation of 21 U.S.C. § 846. He claims that a pre-arrest "immunized" interview with government agents "taints" the later post-arrest admissions he made, and therefore those later admissions should not have been received in evidence. He further claims that a piece of paper containing one written entry, which the government described as a "drug ledger," and which was admitted into evidence, should not have been admitted because it was hearsay.

George A. Dapsevicius appeals from his conviction for possession with the intent to distribute and distribution of more than one ton of marijuana, in violation of 21 U.S.C. § 841(a) (1). Dapsevicius claims that his conviction under 21 U.S.C. § 841(a) (1) was based on the vicarious liability theory set forth in Pinkerton v. United States, 328 U.S. 640, 90 L.Ed 1489 (1945), and that the jury was not properly instructed on this theory. He also claims that without Pinkerton liability, there was insufficient evidence to support his conviction under 21 U.S.C. § 841(a) (1).

We affirm.

I. Arbogast Appeal

Arbogast was given "use immunity" for an interview with the government approximately seven months prior to his arrest. The government issued a letter granting use immunity which stated, among other things, that Arbogast could be prosecuted for perjury and that he was expected to tell the truth at the "immunized" interview. At the interview, Arbogast admitted that he knew Peyton Eidson, but Arbogast denied that he had ever been involved in drug transactions with Eidson. During the interview Arbogast was shown some of Eidson's alleged drug ledgers. One part of those ledgers consisted of a sheet of yellow lined paper with one entry on it which read:

Ivan

# 631 - 9.80 @ 1050 = 10,290

Arbogast denied any knowledge as to the meaning of the ledger. He also denied that the name "Ivan" referred to him.

After the interview the government informed Arbogast, through his counsel, that his statements were not believed to be true. There was no further contact between Arbogast and the government until his arrest, approximately seven months later.

At the time of his arrest Arbogast was given his Miranda rights. He waived those rights and admitted that he had received a pound of marijuana from Eidson in 1985 for the purposes of sale. Arbogast also admitted that the ledger entry referring to "Ivan" referred to him, and reflected his receiving marijuana from Eidson in 1985.

On the eve of trial, Arbogast's attorney contended that the post-arrest statements were "tainted" by the immunized interview. After the government proffered the facts of the case to demonstrate that there was no "taint" because there was no information produced at the immunized interview, the trial court asked Arbogast's counsel what benefit the government had derived from Appellant's denial of any knowledge regarding drug transactions or the ledger at the immunized interview. Arbogast's counsel conceded that he knew of none. The court noted that Arbogast did not dispute the fact that he had not given the government any valid information about drug sales or the ledger at the immunized interview. The court found that the mere fact that Arbogast had been asked about Eidson and the ledger on both occasions did not constitute "taint."

Arbogast's counsel then argued that Arbogast believed that his post-arrest admissions were still immunized. The court found that Arbogast could not reasonably have believed that to be the case, since he had been given his Miranda rights, had been placed under arrest, and was in custody. The statements were admitted into evidence.

Arbogast did not object to the trial court's procedure for determining admissibility of the evidence, nor did he request that a different procedure (i.e. an evidentiary hearing) be followed. Therefore, we review the district court's decision for plain error. See United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (failure to raise a particular ground in support of a motion to suppress constitutes waiver); see also United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986) (evidentiary questions cannot be raised for the first time on appeal in the absence of plain error).

"Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

Plain error is highly prejudicial error that affects the substantial rights of the defendant. United States v. Kennedy, 726 F.2d 546, 548, (9th Cir.) cert. denied, 469 U.S. 965, 105 S. Ct. 365 (1984), United States v. Hutson, 843 F.2d 1232, 1238 (9th Cir. 1988); United States v. Williams, 685 F.2d 319, 321 (9th Cir. 1982).

Case law has developed the concept of nonstatutory immunity whereby the courts will enforce, on equitable grounds, informal "letter" immunity or procedurally flawed immunity grants. United States v. Irvine, 756 F.2d 708 (9th Cir. 1985).

The Supreme Court has held that "use" immunity granted during testimony is "coextensive" with the Fifth Amendment right against self-incrimination, and therefore a defendant can be compelled to testify under a grant of statutory use immunity because he is protected against self-incrimination. Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The Supreme Court went on to say that when a defendant asserts that his prosecution has been based in whole or in part on his immunized statements, the government bears the burden of showing before trial that any evidence it intends to offer is derived from a source completely independent of those immunized statements. Id. at 460. The Court in Kastiger did not address whether this rule applied to informal use immunity as well as to immunity granted under statutory authority.

In United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983), cert. denied, 469 U.S. 835, 105 S. Ct. 128 (1984), the Court of Appeals for the Ninth Circuit held that the government's burden of proof under Kastigar could be met by a preponderance of the evidence.

The Kastigar test was designed to prevent the government from using immunized testimony as a means of discovering incriminating evidence and then using that evidence against a defendant. Incriminating evidence discovered in such a manner would be "tainted" by what was revealed at the immunized interview. Since Arbogast denied any involvement with the drug scheme at the immunized interview, his immunized testimony could not have been used to discover evidence that he was involved in the drug scheme, nor to "taint" his later admissions. The government need not prove that it got nothing from nothing. There was evidence before the district court to demonstrate that the government knew before the immunized interview that Arbogast was acquainted with Eidson. The ledgers themselves had been obtained before the immunized interview. These innocuous facts did not, and could not "taint" Arbogast's later admissions. We do not find plain error committed by the trial court.

Arbogast next claims that the yellow lined sheet of paper seized from Peyton Eidson's attache case at the time of Eidson's arrest in August of 1985 was improperly admitted into evidence under the business records exception to the hearsay rule. Federal Rules of Evidence 803(6).

Appellant contends that the yellow ledger sheet found in defendant Eidson's briefcase was inadmissible because it did not satisfy the requirements for admission as a business record. At trial, Arbogast's counsel objected on "relevance and reliability" grounds because the document bore no date, because there were possible discrepancies between the ledger and the agent's notes, and because "Ivan" was ambiguous. The government argued for admission of the document because it belonged to Eidson, who was Arbogast's alleged co-conspirator, and because it recorded a co-conspirator's statement. The court admitted the evidence without specifying the grounds for admission.

We review evidentiary rulings for an abuse of discretion resulting in substantial prejudice to the defendant's rights. United States v. Polizzi, 801 F.2d 1543 (9th Cir. 1986); United States v. De Rosa, 783 F.2d 1401 (9th Cir. 1986), cert. denied, 477 U.S. 908, 106 S. Ct. 3282 (1986); United States v. Moran, 759 F.2d 777 (9th Cir. 1985), cert. denied, 474 U.S. 1102, 106 S. Ct. 885 (1986).

The government argues that the drug ledger was properly admitted into evidence because it was a statement of Arbogast's co-conspirator, Peyton Eidson. An indicted defendant who was tried separately, Mr. Don Hammond, identified the document during his testimony as one pertaining to the distribution of a load of marijuana during the summer of 1985, and further identified the handwriting as that of Eidson. The ledger was found in Eidson's possession. The ledger was properly admitted under the co-conspirator statement exception. United States v. Smith, 893 F.2d 1573 (9th Cir. 1990).

II. Dapsevicius Appeal

In 1984 and 1985, Eidson arranged for large shipments of marijuana to be delivered to Northern California. The 1985 shipment, which originated in Thailand, arrived in Santa Cruz County, California, in July, 1985.

In July of 1985 Dapsevicius was working with others at a warehouse in El Cerrito, California, which was used for the storage of marijuana. When the Thai marijuana arrived, Dapsevicius and another man drove from the El Cerrito warehouse to Santa Cruz to pick up the approximately 7,000 pounds of marijuana. Their first attempt to pick up the marijuana was aborted because there were police officers near the pick-up area. On their second attempt, the marijuana was picked up and transported back to the El Cerrito warehouse.

Dapsevicius helped unload the marijuana at the El Cerrito warehouse and then helped load it onto other trucks. The marijuana was clearly visible to those handling it.

Appellant argues that the Pinkerton instruction on vicarious liability that was given to the jury by the district court was inadequate and that there was insufficient evidence to convict him of the substantive offense under 21 U.S.C. § 841(a) (1).

Because Appellant failed to object to the trial court's jury instruction pertaining to liability and conspiracy, and failed to propose an alternative instruction, we review for plain error. United States v. Bryan, 868 F.2d 1032, 1038 (9th Cir. 1989); United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986); United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).

In Pinkerton the Supreme Court addressed the issue of vicarious liability of co-conspirators. The Court held that the act of one partner to a conspiracy may be the considered an act of all members of that conspiracy, and that all members share the responsibility for a substantive offense of any one member if the offense was committed in furtherance of the conspiracy. In Nye and Nissen v. United States, 336 U.S. 613, 69 S. Ct. 766, 769 (1949) Justice Frankfurter elaborated on Pinkerton as follows: