Unpublished Disposition, 914 F.2d 264 (9th Cir. 1980)

MEMORANDUM^* 

Alfredo Garcia-Rosell appeals from a jury verdict convicting him of participation in a cocaine conspiracy, including substantive counts charging particular incidents of possession and distribution of cocaine. His supplemental pro se brief also alleges prosecutorial misconduct in closing argument and claims his sixth amendment confrontation rights were violated when portions of a witness' prior testimony were read in court to refresh the memory of the witness. We affirm, but reverse on one count because of insufficient evidence.

FACTS

Alfredo Garcia-Rosell was indicted in Oregon in 1986 in the course of a grand jury investigation into a cocaine importation and distribution conspiracy. Garcia-Rosell was charged with conspiring to distribute cocaine in Portland with Jose Chavez Vernaza ("Chavez"), James Barnard, Jr. ("Barnard"), and other individuals. Others associated with the conspiracy, including Chavez and Barnard, had previously been convicted or pled guilty. Substantive counts charged possession and distribution of cocaine on several occasions in Portland, including several sales to Richard Miller, and on one occasion in Bristol, Tennessee.

Garcia-Rosell was arrested in Miami in November 1987 and ordered removed to Oregon to face charges. His removal was delayed on his own motion. Judge Frye, who heard most of the motions in this case, later ruled that the time allowed by the Speedy Trial Act did not commence until his appearance in Oregon. Before trial, Garcia-Rosell moved to suppress himself as evidence derived from his arrest in San Francisco in 1980. He argued that the 1980 search and arrest had been illegal and had yielded evidence which led to his arrest on the current charges. Judge Frye denied the motion.

At trial, Chavez was the main government witness. Over objection, he testified that he met Garcia-Rosell when Chavez provided bail money for Garcia-Rosell and two other men after the 1980 arrest. This episode provided Chavez with a long-sought entrance into the cocaine trade. Garcia-Rosell continued bringing cocaine to Portland throughout 1984, returning frequently to collect money for cocaine he had "fronted" to Chavez and Barnard. Chavez further testified that the "Al" or "Alfredo" in drug conspiracy ledgers referred to Garcia-Rosell. Other details of his testimony are discussed below in relation to the sufficiency of evidence to support conviction on each count.

Barnard had previously testified at Chavez' trial, giving many details of Garcia-Rosell's role in the conspiracy. Barnard was ordered to testify at Garcia-Rosell's trial and granted immunity. However, at Garcia-Rosell's trial, Barnard claimed a virtually complete failure of memory. Extensive portions of his prior testimony were read to him in court, but he remembered only two incidents relevant to those charged and could not identify Garcia-Rosell as having participated: he remembered receiving cocaine from someone in Bristol, Tennessee in 1982, and he remembered receiving cocaine from an individual named Nelson Cabrera but believed a different "Garcia," not the defendant, had been involved in arranging that transaction.

Garcia-Rosell's attorney did not object to most portions of Barnard's prior testimony; however, he objected to part of one portion on the basis that it contained a hearsay statement. After the testimony had been read and Barnard's memory had proved almost impossible to refresh, Judge Burns conferred with the attorneys on the record, outside the presence of the jury, to discuss the admissibility of the prior testimony. Garcia-Rosell's attorney requested an instruction that the jury not consider Barnard's prior testimony as evidence of Garcia-Rosell's guilt. The judge rejected the prosecutor's argument that the prior testimony should be admitted and gave the limiting instruction twice: once when Barnard testified, and once at the close of trial.

Additional witnesses against Garcia-Rosell included Barnard's former wife, who testified to an incident in which Barnard and Garcia tried to improve some poor quality cocaine in the basement of her home. Mrs. Barnard also testified that she had tape recorded a telephone conversation with Garcia-Rosell at the request of Portland police Detective Foster, after Foster told her Barnard would be out of prison in a year if she assisted in the case. Richard Paul Miller testified that Barnard had introduced him to Garcia-Rosell so that Miller could buy cocaine and described specific incidents in which he bought cocaine from the defendant. Michael Allie described several incidents in which Garcia-Rosell came to Portland bearing suitcases which were then dismantled. Kevin Link, an employee of Chavez and Barnard, testified to the drug ledgers he kept for the conspiracy and that these ledgers contained the name "Al." Leland Baird, a crew member on Barnard's race team, testified to an incident in which Barnard met an individual fitting Garcia-Rosell's description in Bristol, Tennessee in 1982 and received some suitcases from him.

The district judge instructed the jury that if it found a conspiracy, it could consider Chavez' testimony as to Barnard's statements in furtherance of the conspiracy as evidence of Garcia-Rosell's guilt. The judge gave an instruction on aider and abetter liability in relation to all of the substantive counts. He did not, however, give any Pinkerton instruction under which the jury could have found Garcia-Rosell guilty on the basis of acts of other conspirators. The jury found Garcia-Rosell guilty on all counts. He timely appealed.

DISCUSSION

I. ADMISSION OF TESTIMONY REGARDING 1980 ARREST

Chavez testified that he met Garcia-Rosell and was introduced to cocaine dealing through a friend who had called for help with bail after being arrested on a cocaine-related charge. Chavez bailed out three people, including Garcia-Rosell. Chavez had previously sought involvement in the cocaine trade without success; he was able to become involved through the return of favors after providing bail. In closing argument, the prosecutor referred to the 1980 arrest as part of a pattern showing involvement in drug dealing by Garcia-Rosell.

Chavez' testimony focused on the fact that Garcia-Rosell was in jail, rather than emphasizing the crime he committed at the time. However, even if the testimony regarding the 1980 bail and arrest had not been properly admitted, it could not have been significant to the outcome of the trial since there was strong independent evidence of guilt. United States v. Hernandez-Miranda, 601 F.2d 1104 (9th Cir. 1979) (trial court erroneously admitted evidence of prior conviction, prosecutor referred to evidence in closing argument, no curative instruction given).

Before trial, Garcia-Rosell moved to suppress himself on the theory that his 1980 arrest had been illegal and that information gained through that arrest had been used to locate him. Denial of a motion to suppress is reviewed de novo. United States v. Yarbrough, 852 F.2d 1522 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988). Factual findings made at a suppression hearing are reviewed under the clearly erroneous standard. Id.

Judge Frye denied the motion. She found that the validity of the arrest and subsequent search had not been adjudicated in California; there was insufficient evidence before the court to determine their vitality; probable cause for Garcia-Rosell's arrest had been based entirely on evidence independent from the 1980 arrest. The government had utilized Garcia-Rosell's photograph and information on his driver's license, obtained through the 1980 arrest, in its attempt to locate him in Florida.

On appeal, Garcia-Rosell does not claim these findings were erroneous. In fact, they are supported by the testimony of Detective Foster. The appellant provides no support for his arguments regarding the 1980 arrest. He can cite no case law in his favor. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) dealt with the possibility that a court would divest itself of jurisdiction when confronted by grossly cruel and unusual barbarities in government conduct; it has no application here, where the illegality of the search and seizure has never been determined. The motion was therefore properly denied.

Garcia-Rosell argues that Count I of the indictment actually charges two conspiracies: one with Barnard and another with Miller from 1984-1985. The issue of whether an indictment was susceptible to finding different conspiracies is reviewed de novo. United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988). In Gordon, an indictment was duplicitous when it charged both a conspiracy to defraud the United States and to cover up the crime and obstruct the Grand Jury investigation. Id. at 1401. Here, the indictment charges only one conspiracy, in which Miller is not named, to possess and distribute cocaine from "a time prior to September 10, 1980)"¹  between Chavez, Barnard, Garcia-Rosell and three other named conspirators. Miller's name appears among many in the list of overt acts.

In United States v. Morse, 785 F.2d 771 (9th Cir.), cert. denied, 476 U.S. 1186 (1986), we held an indictment was not duplicitous unless, as a matter of law, a description of four investment programs necessarily embraced more than a single scheme. Therefore, the indictment could fairly be read to charge but a single scheme and was therefore not duplicitous. Id. at 774. A single conspiracy may encompass subgroups or subagreements. United States v. Arbalaez, 719 F.2d 1453, 1457, cert. denied, 467 U.S. 1255 (1984). Garcia-Rosell was described as distributing cocaine frequently over a period of years, to individuals including Miller, during a time period which overlapped the times he was charged with dealing with Barnard. This indictment, therefore, may fairly be read to charge a single conspiracy including subgroups; it is not duplicitous under Gordon and Morse.

The government introduced at trial the defendant's taped conversation with Barnard's former wife. Cory Barnard testified she made this recording because government agents said her husband would be out of jail in a year if she cooperated. The defense objected on other grounds²  but, on appeal, argues that Mrs. Barnard's consent was invalid.

Under 18 U.S.C. § 2511(2) (c), tape recordings are admissible if either party consented to the recording being made. In United States v. Ryan, 548 F.2d 782 (9th Cir. 1976), consent was not coerced when the defendant was threatened with a maximum sentence if he did not cooperate; offered that his friends would be kept clear if he did cooperate; told that his health would suffer in prison; and told that he would be indicted if he did not produce sufficient evidence. Id. at 789-90. Even though police threatened a higher sentence than any defendant received, this did not vitiate consent. See also McClure v. United States, 332 F.2d 19 (9th Cir. 1964), cert. denied, 380 U.S. 945 (1965) (consent voluntary though agents promised to ask individual not be prosecuted in return for cooperation). Mrs. Barnard's consent satisfies the statute. Therefore, the recording was properly admitted.

Garcia-Rosell argues his rights under the Speedy Trial Act were violated by the time he spent in Florida before appearing in Oregon. The district court's factual findings concerning the Speedy Trial Act are reviewed for clear error, and questions of law concerning the application of the Act are reviewed de novo. United States v. Karsseboom, 881 F.2d 604 (9th Cir. 1989).

Judge Frye correctly held that the seventy-day period allowed by the Speedy Trial Act does not begin to run until the defendant appeared in the charging district. United States v. Wilson, 720 F.2d 608, 609 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984). Further, as Judge Frye also found, Garcia-Rosell had explicitly waived any rights he might have had under the Speedy Trial Act when he requested a stay of removal in order to plea bargain in Florida.

In his pro se brief on appeal, Garcia-Rosell argues that the admission of Barnard's prior testimony violated his sixth amendment right to confront witnesses. However, a review of the record shows that Barnard's prior testimony was not admitted into evidence. When the prosecution sought admission of this prior testimony, the defense argued that admitting it might violate Garcia-Rosell's confrontation right as well as the rules of evidence. Judge Burns handled the testimony exactly as the defense requested, giving the limiting instruction requested by the defense on the day Barnard testified and again at the close of trial.

Garcia-Rosell challenges the sufficiency of the evidence to support his conviction on Count I, conspiracy, and several substantive counts of the indictment. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the government, "any" rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 471, 495 (citation omitted). Circumstantial evidence is sufficient to sustain a conviction, and the government's evidence need not exclude every reasonable hypothesis consistent with innocence. United States v. Talbert, 710 F.2d 528 (9th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1052 (1984).

Once it is established that a conspiracy existed, evidence of only a slight connection to the conspiracy is sufficient for a conviction. United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986). The government must produce enough evidence to show that each defendant knew or had reason to know the scope of the criminal enterprise, and reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture. United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir. 1982).

On appeal, Garcia-Rosell concedes a conspiracy existed between Chavez and Barnard but argues that, although evidence shows he delivered cocaine to Chavez and later to Richard Miller, he was not part of the Chavez-Barnard conspiracy. Chavez testified extensively about Garcia-Rosell's longstanding role as a supplier of cocaine for the conspiracy, delivering cocaine to Portland three or four times a year and collecting money from cocaine sales even more frequently. This demonstrates that Garcia-Rosell knew the scope of the conspiracy and that his benefits were dependent on its success. Other witnesses also testified to Garcia-Rosell's presence and activities. This was sufficient evidence for a "rational trier of fact" to conclude that Garcia-Rosell was part of the conspiracy.

Count V charged distribution of cocaine in February 1982. Chavez testified that he and Barnard met Garcia at the Red Lion Inn and received cocaine which was then stored at Barnard's house. Garcia-Rosell argues that one portion of this testimony was ambiguous and could have referred to a "friend" who was also present. In context, the testimony referred to Garcia-Rosell. Also, the jury received an instruction on aider and abetter liability on this count; even if the friend had brought the cocaine, Garcia-Rosell would have been liable as an aider and abetter for his role in the exchange. Sufficient evidence supports conviction on this count.

Count VI charged possession in Bristol, Tennessee. Chavez testified without objection that Barnard told him of meeting Garcia-Rosell in Bristol, Tennessee at an auto race and receiving two suitcases of cocaine. Barnard had planned to have a friend carry the suitcases back to Portland but changed his mind and sent them Federal Express. As Barnard spoke, Chavez saw the suitcases, which had been delivered by Federal Express. There was cocaine in the suitcases.

On appeal, Garcia-Rosell describes Chavez' testimony as hearsay and states that it lacks necessary corroboration. Corroboration is required for hearsay statements used to establish membership in the conspiracy. United States v. Zavala-Serra, 853 F.2d 1512 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397 (9th Cir. 1988). However, under Rule 801(d) (2) (E), once a conspiracy has been shown, statements by co-conspirators are not hearsay. Here, membership in the conspiracy had been established by direct testimony. The prosecutor asked if the judge had found that the government had met its threshold burden of proof as to conspiracy, and the judge stated that he had. The judge then allowed the jury to consider Chavez' testimony regarding Barnard's statement that Garcia-Rosell had delivered the cocaine to Barnard in Bristol, Tennessee. The defense did not object to this jury instruction.

Even without Barnard's testimony, there was sufficient evidence for the jury to find Garcia-Rosell guilty on Count VI: Leland Beard, who was on Barnard's race crew, had testified that a man fitting Garcia-Rosell's description brought suitcases; Barnard had, after his memory was refreshed, remembered receiving cocaine from an unidentified person in Bristol; Beard had testified that he shipped two suitcases Federal Express; Chavez had seen two suitcases which had been delivered Federal Express which were dismantled and contained cocaine.

In addition, there was no error in admitting the testimony. Statements of a co-conspirator are not hearsay, and Barnard explained the source of the cocaine because Chavez was upset at the prospect of being excluded from the profits from this particular shipment. Statements of reassurance are in furtherance of a conspiracy. United States v. Mason, 658 F.2d 1263, 1270 (9th Cir. 1981).

Counts VII and IX charged distribution of cocaine in August, 1982. Testimony by Michael Allie and Mrs. Barnard regarding this period showed that Garcia-Rosell was delivering suitcases in Portland; keeping track of suitcases to see whether they had been dismantled; and trying to improve the quality of some poor cocaine. The jury could rationally have convicted Garcia-Rosell on two counts of possession with intent to distribute cocaine in this period.

Count XI of the indictment charged that Garcia-Rosell distributed cocaine in Portland in October 1982. Both briefs refer to this count as concerning an incident involving Nelson Cabrera; the defense states this refers to Overt Act No. 52, which described distribution to Barnard. At Garcia-Rosell's trial, Barnard testified that he had received cocaine from Cabrera, but that he believed a different man named Garcia, not this defendant, had arranged the deal. Even after the attempt to refresh his memory by his prior testimony from Chavez' trial, which recounted that Garcia-Rosell had set up the deal, Barnard could remember nothing else. The judge instructed the jury not to consider Barnard's testimony from the previous trial. The only evidence regarding Cabrera submitted to the jury stated that a different man named Garcia probably arranged the deal. This is insufficient to sustain a conviction. Even if the jury disbelieved Barnard's loss of memory, they were not permitted to consider his previous testimony.

The government argues the conviction may be sustained under Pinkerton v. United States, 328 U.S. 640 (1946), which held that a conspirator can be convicted of a substantive offense in which he had not participated if the offense was committed in furtherance of the conspiracy. However, convictions can only be sustained on this theory if a Pinkerton instruction was given to the jury. United States v. Mills, 810 F.2d 907, 910 (9th Cir.), cert. denied, 484 U.S. 832 (1987). The judge gave no Pinkerton instruction in this case; therefore, the conviction cannot be sustained on this theory.

Finally, in his pro se brief on appeal, Garcia-Rosell claims the closing argument amounted to prosecutorial misconduct. He alleges improper vouching, pointing to the prosecution's statements that sentence reduction would not have been granted for perjured testimony. However, no objection was made at the time of closing argument. When no objection is made, we review for plain error. See, e.g., U.S. V. Lew, 875 F.2d 219, 223 (9th Cir. 1989). Plain error is a highly prejudicial error affecting substantial rights. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989). Under the plain error doctrine, we will reverse solely in circumstances in which a miscarriage of justice would otherwise result, reviewing the alleged error in the context of the entire record to determine whether it rises to the level of plain error. Lew, 875 F.2d at 223, quoting United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988). Given substantial evidence of guilt, we do not find plain error in the prosecutorial statements raised on appeal.

The judgment of the district court is affirmed on all counts except Count XI; the conviction on Count XI is reversed for insufficient evidence.

AFFIRMED IN PART; REVERSED IN PART.