Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

MEMORANDUM^** 

Defendant Ronnie Wildee appeals his conviction for conspiracy to possess cocaine base with intent to distribute and possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1), 846.

In one transaction, Davis walked from Ron Wildee's car and delivered half an ounce of rock cocaine to the informant with the words "Ron said to give this to you," RT 160, while Ron Wildee walked from his car to another with something off-white in his hand. See RT 161. In the other transaction, Davis left the informant and went to an apartment to pick up the cocaine base. RT 97-98. Wildee was at the apartment and he and Davis talked for awhile. RT 98-99. Davis then retrieved an envelope from a van and handed to it to Wildee, who went back into the apartment. RT 99. Davis went directly back to the informant with the rock cocaine. RT 99-100. When the police went to the apartment to arrest Wildee, they saw him holding a beaker, RT 254-56, later discovered to contain water and cocaine base, see RT 103; the apartment contained large quantities of cocaine and the materials necessary to make cocaine base, all in plain view. RT 103-104 (describing the materials found in the kitchen), 109-19 (same).

This evidence was more than sufficient to convince a rational juror beyond a reasonable doubt that Wildee and Davis had agreed to possess cocaine to distribute it and had taken actions in furtherance of that agreement.¹  It was also enough to convince a rational juror that Wildee had in fact possessed cocaine base with the intent of selling it.

An out of court statement is not hearsay under Fed.R.Evid. 801(d) (2) (E) if it was made in furtherance of the conspiracy by one who, more probably than not, was the defendant's coconspirator. See Bourjaily v. United States, 483 U.S. 171, 175 (1987). The same evidence that supports Wildee's conviction for conspiracy--including the statements themselves, see id. at 181--supports the district court's finding that Davis was more likely than not Wildee's coconspirator.² 

Wildee does not point to any extra-judicial sources of information that might have biased the district judge against him; any information the district judge had concerning Wildee's case came solely from proceedings involving Wildee and his codefendant. Accordingly, the judicial bias claim fails. United States v. Frias-Ramirez, 670 F.2d 849, 853 n. 6 (9th Cir.) (impartiality cannot be attacked based on beliefs judge formed while acting in judicial capacity), cert. denied, 459 U.S. 842 (1982); United States v. Winston, 613 F.2d 221, 223 (9th Cir. 1980) (knowledge must be obtained extra-judicially; information acquired while presiding over codefendant's case doesn't support reversal).

AFFIRMED.