Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1990)

MEMORANDUM^** 

OVERVIEW

Patrick Brian Grady appeals his conviction of conspiracy to distribute, distribution of, and use of a communication facility to distribute cocaine. We affirm.

BACKGROUND

In late December 1987, a confidential informant told Drug Enforcement Administration agent Greg Gassett that Jack Fred McFarland, a prisoner in state custody in Washington, had claimed he could arrange for Patrick Grady, to deliver large quantities of cocaine to anyone whom McFarland recommended. At Gassett's direction, the informant told McFarland that he knew someone who was interested in buying kilogram quantities of cocaine. McFarland told the informant to tell his "contact" to visit Grady, who was also in state custody. Gassett, using the name "Greg Greene," visited Grady on January 2, 1988, and told him that he was interested in procuring two kilograms of cocaine. Grady promised to set up the deal.

During the visit Grady explained that, like him, many of his connections were in jail as a result of an arrest in a cocaine distribution conspiracy. Nonetheless, his partner on the fourth floor of the prison, Mike Santos, would set up any cocaine transactions Gassett wanted.

McFarland phoned Gassett hours after Gassett's meeting with Grady. McFarland said that Gassett could distribute some of the cocaine to several of McFarland's customers. McFarland gave Gassett the telephone number of a customer named "Jon." The number was subscribed to by Jonathan New. McFarland also told Gassett that his girlfriend, Terrie Raphael, would help Gassett with distribution. Gassett and McFarland agreed to split any profit Gassett made on the sale of the cocaine.

During the month of January 1988, Gassett met with Grady at the jail four times and had numerous phone conversations with McFarland and Grady to finalize the two-kilogram transaction. During Gassett's meetings with Grady, Grady identified his drug source as Santos and said that Santos's brother-in-law, Ron Sierra, was the person "on the outside" who would arrange for the delivery of the cocaine. Grady also told Gassett that Gary Tripp was used to arrange drug transactions and that, in that role, Tripp would get through to Sierra for the purpose of delivery. Grady arranged for the two to meet on January 16 after each had visited with him.

Gassett called New on January 7 and again on January 14, to discuss the possible sale of a full kilogram of cocaine. Gassett told New that he was McFarland's associate. New mentioned that he had talked to McFarland's girlfriend, Terrie Raphael, about obtaining a kilogram, and that he had supplied heroin to Raphael to be delivered to McFarland. On January 30, Gassett obtained six ounces of cocaine from Ronald Sierra, the brother-in-law of Mike Santos, Grady's source. On February 1, 1988, Gassett obtained one kilogram from Sierra. Raphael took Gassett to New's home on February 1, where New agreed to buy a kilogram and have the money at his house on February 4.

Grady, McFarland, New, Tripp, Sierra, Raphael, and Santos were all arrested on February 4, 1988. Pursuant to search warrants executed immediately thereafter, evidence seized confirmed an association among all the defendants. Gassett's false name and Santos's name and phone number along with a letter to Grady from Gassett were found in Grady's cell. A search of New's home produced McFarland's phone number, a drug ledger, and a letter written to "Jack" and referring to "Terrie Raphael." A search of McFarland's jail cell produced Gassett's phone number and New's name and phone number, along with correspondence from Grady.

All but Grady, McFarland, and New pled guilty. Each of the three were convicted of conspiracy to distribute cocaine from December 1987 through February 4, 1988. Grady and McFarland were also convicted on two distribution charges and four and six counts, respectively, of unlawful use of a communication facility to facilitate the conspiracy. Grady's appeal was severed from that of New and McFarland, which yielded an affirmance on August 20, 1990. Before us, therefore, is only Grady's appeal.

DISCUSSION

We review the decision of the district court to admit evidence of other acts under Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985). Here, we find no such abuse.

The evidence about which Grady complains came in the form of testimony of a police officer who arrested Grady for a prior cocaine offense and searched his home at the time. He testified that police found 17 kilograms of cocaine, numerous drug ledgers, numerous weapons, other drug paraphernalia, and in excess of $100,000 in cash.¹ 

Fed.R.Evid. 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The government contends that it offered this evidence to establish Grady's motive, intent, opportunity, and voluntary participation in the conspiracy to distribute cocaine. This claim is persuasive in light of Grady's refusal to concede the requisite criminal intent in exchange for the government refraining from admitting the "other act" evidence.

Prior bad acts used for a proper purpose (i.e., to prove intent, motive, lack of mistake) are admissible if (1) there is sufficient evidence for a jury to find that the defendant committed the prior act; (2) the prior act is not too remote in time; (3) the prior act is similar to the charged offense; and (4) the prior act is introduced to prove an essential element of the charged offense that is a material issue in the case. See United States v. Miller, 874 F.2d 1255 (9th Cir. 1989), reh'g denied, 884 F.2d 1149 (1989). See also Huddleston v. United States, 485 U.S. 681, 689 (1988) (that prior act occurred need only be proved by a preponderance of the evidence).

Grady concedes that the first two prerequisites were met. Thus, we must only be satisfied that there is similarity between the current and prior acts and that the prior act tends to prove an element of the current offense.

We find striking similarity between the prior and current acts. Grady's instant conviction is for conspiracy, distribution of, and use of a communication facility to facilitate the conspiracy to distribute cocaine. The prior act also involved a cocaine conviction. The findings of the search in the prior case--large quantities of cocaine, drug ledgers, firearms, and drug paraphernalia--raise the permissible inference of intent to distribute. See, e.g., United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.), cert. denied, 109 S. Ct. 369 (1988).

Similarly, we find that the evidence from the prior search was introduced to prove an element of the instant offenses. The government agreed not to introduce this evidence if Grady stipulated to the requisite intent to distribute cocaine. Defense counsel refused to so stipulate, saying: "I have no intention of stipulating away my client's right to be presumed innocent." By so doing, we find Grady put his intent at issue. By making his intent an issue in the case, Grady opened the door for the government to muster all the evidence it could to prove presence of the requisite intent. Part of that evidence was proof that Grady must have intended the consequences of his actions. He had had large sums of cocaine and money in his possession in the past when his intention was to do precisely what he is charged with having done here: to distribute cocaine. The evidence would counter any argument that Grady did not intend to participate in the sale of cocaine when he met with Gassett and contacted others in the conspiracy.

We further note that, contrary to Grady's assertion otherwise, the district court properly instructed the jury as to the limited use of such evidence. See SER 3 at 32 ("You may consider such evidence, not to prove that the defendants did the acts charged here, but only to prove defendant's state of mind, that is, that the particular defendant acted with the necessary intent and not through accident or mistake.")

The government admitted some nineteen recorded telephone conversations between Agent Gassett and various members of the conspiracy. These conversations largely related to either (1) how and when Gassett could expect to purchase cocaine from Grady and his associates, or (2) how and to whom Gassett would distribute the cocaine he got from Grady.

Any co-conspirator statements to be admitted must be made during and in furtherance of the conspiracy. United States v. Layton, 720 F.2d 548, 555, cert. denied, 465 U.S. 1069 (1984). Clearly, all the statements were made during the course of the conspiracy. The only question is whether they were made "in furtherance of" the conspiracy. In finding they were, the district court did not commit clear error. See United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986).

Initially, we note that there was plenty of evidence beyond the recordings to establish the existence of a conspiracy and Grady's connection to it. Agent Gassett's own testimony about his meetings with Grady provided that basis, as did evidence of the interrelation of the various players as found in the post-arrest searches detailed above. That foundation having been established, the recordings could properly come in under Fed.R.Evid. 801(d) (2) (E) to the extent they represented statements made "in the furtherance of" the conspiracy.

The vast majority of the recorded statements were clearly made in the furtherance of the conspiracy as they dealt with the business of transacting large-scale drug operations. Grady contends that certain statements admitted were not made in furtherance of the conspiracy. These primarily involve statements made by McFarland.²  Assuming, arguendo, that these statements cannot be considered as having been made in furtherance of the conspiracy, we find their admission harmless beyond a reasonable doubt. The evidence of conspiracy was so strong based upon Gassett's testimony and the recorded conversations that were made in furtherance of the conspiracy, that any narrative references to Grady's escape plans and his prior dealings, were extremely minor.

Grady contends that the government prejudiced his right to a fair trial by statements the prosecutor made in opening and closing statements. These arguments were already raised and disposed of by this court in United States v. New, Nos. 88-3227, 88-3262. As we did there, we deem them meritless here.

CONCLUSION

We find that the district court did not err in admitting evidence from Grady's prior cocaine arrest. Furthermore, we find no error in the court's admitting the challenged recorded telephone conversations. Therefore, we AFFIRM.