Unpublished Disposition, 843 F.2d 502 (9th Cir. 1985)

No. 87-1104.

United States Court of Appeals, Ninth Circuit.

Before NOONAN and DAVID R. THOMPSON, Circuit Judges, and DICKRAN M. TEVRIZIAN, Jr.^** , District Judge.

Glen William Lester appeals his conviction under three counts of a Second Superceding Indictment, charging him with conspiring to distribute and distributing cocaine in violation of 21 U.S.C. Section 846 (Count 2); and distributing cocaine in violation of 21 U.S.C. Section 841(a) (1) (Counts 3 and 4). We affirm in part and reverse in part.

FACTUAL BACKGROUND

According to the facts elicited at trial, the Maui County Police Department began investigating the suspected drug trafficking activities of appellant Lester in February of 1985. A Government informant, Gary Nolan, also known as Jim Thompson, purchased a quantity of cocaine from Ray Ross, a man he met through appellant Lester on March 6, 1985. At trial, Ross testified that it was more probable than not that the cocaine Ross sold to Nolan did not come from appellant Lester. This sale formed the basis of Count 3 for the Indictment.

On March 21, 1985, Nolan purchased one ounce of cocaine from appellant Lester. This transaction formed the basis for Count 4 of the Indictment.

Apart from the above transactions, numerous witnesses testified that they had observed appellant Lester in possession of large quantities of cocaine. According to several witnesses, the chief source of appellant Lester's supply of cocaine was a woman suspected of being at the center of a large cocaine distribution ring, Lynn Eldridge. Appellant Lester himself informed several witnesses of this fact. Appellant Lester's alleged association with Lynn Eldridge and other cocaine distributors formed the basis for Count 2 of the Indictment.

According to the testimony of Ben Allogio, one of Eldridge's assistants, he and Eldridge kept records of cocaine transactions. Eldridge's records were kept in notebooks or ledgers, and transactions were disguised as addresses and telephone numbers. Eldridge taught Allogio how to interpret her coded information.

In June of 1985, police arrested an unindicted co-conspirator, Martin Weiskopf. According to Nolan, this arrest prompted appellant Lester to leave Hawaii. Appellant Lester did not return to Hawaii until after his arrest in California in October of 1986.

In late August of 1985, Nolan arranged for a sale of cocaine between Eldridge and undercover agents. Eldridge and Allogio were arrested at the scene of the proposed transaction, and police recovered guns and cocaine from the scene of the arrest. In searches of the homes of these individuals, police also recovered the ledgers and notebooks used to record cocaine transactions. All testimony at trial was to the effect that Lester had no direct involvement with the August transaction or the guns and cocaine seized in its aftermath. According to Allogio's testimony, some of the entries in these ledgers reflected distributions of cocaine to appellant Lester.

At trial, the court permitted the prosecution to introduce into evidence the ledgers and notebooks, as well as the guns and cocaine seized after the arrests of Eldridge and Allogio.

DISCUSSION

Appellant Lester contends on appeal that: (1) the court impermissibly admitted statements of co-conspirators in the form of notebooks and ledgers in violation of the Confrontation Clause of the Sixth Amendment; (2) the court impermissibly admitted physical evidence in the form of handguns and cocaine with which appellant Lester had no connection; (3) there was insufficient evidence to establish Lester's guilt for the distribution of cocaine alleged in Count 3 of the Indictment; and (4) the court erred in imposing a 15 year sentence upon appellant.

The admission of the ledgers and notebooks did not violate the Sixth Amendment rights of appellant Lester to confront witnesses against him. Appellant claims that in order for the ledgers to be admissible, the government would have to produce their author, or demonstrate her unavailability, which the government failed to do. In addition, he asserts that the government bore the burden of showing that the ledgers were marked with sufficient indicia of reliability, and that the government failed to meet that burden.

The Supreme Court has determined that when the prosecution seeks to admit statements under the co-conspirator exception to the hearsay rule, the defendant's Sixth Amendment right to confront the witness is not violated whether or not the declarant is produced or shown to be unavailable. United States v. Inadi, 106 S. Ct. 1121, 1129 (1986). Moreover, provided the statements fall properly within the co-conspirator exception, the government need not demonstrate additional indicia of reliability. Bourjaily v. United States, 107 S. Ct. 2775, 2782 (1987). There was sufficient evidence before the district court for the trial judge to conclude that the statements contained in the ledger entries were made during and in furtherance of the conspiracy. The statements were thus properly admissible under the co-conspirator exception. See United States v. Andersson, 813 F.2d 1450, 1456 (9th Cir. 1987). As a result, the admission of the ledgers and notebooks did not violate Lester's Sixth Amendment confrontation rights.

Appellant Lester also contends the evidence of handguns and cocaine introduced at trial was prejudicial to his defense, and irrelevant, as he had repudiated his participation in any conspiracy by virtue of his departure from Hawaii, and no evidence connected him to the items seized by police after the arrests of Eldridge and Allogio. We reject these contentions.

First, there was insufficient evidence to demonstrate that appellant had withdrawn from the conspiracy. Withdrawal requires a disavowal of the conspiracy or an affirmative action that would have defeated the purpose of the conspiracy or definite, decisive and positive steps to show the conspirator's disassociation from the conspiracy. United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980). Mere cessation of activity does not establish the withdrawal of a non-participating conspirator. Hence appellant Lester's departure from Hawaii does not disassociate him from the ongoing conspiracy.

Second, even if appellant Lester had withdrawn, the evidence of acts of co-conspirators after his withdrawal was admissible at trial to establish the nature and extent of the conspiracy charged. United States v. Testa, 548 F.2d 847, 851 (9th Cir. 1977). Hence the trial court properly admitted evidence of the handguns and cocaine, as the use of these items was central to the conspiracy charged in the Indictment.

Appellant Lester further contends that there was insufficient evidence to support his conviction under Count 3 of the Indictment, which stemmed from the sale of cocaine by Ross to Nolan. We agree. The evidence at trial was that appellant Lester was one of two possible individuals who might have supplied the cocaine to Ross which was then sold to Nolan. On review, this court will sustain a jury verdict if it finds that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Karr, 742 F.2d 493, 496 (9th Cir. 1984). As there was equal circumstantial evidence implicating both Lester and another, this court cannot hold that the jury could find the elements of the crime established against Lester beyond a reasonable doubt. Therefore the conviction under Count 3 is reversed.

Last, appellant Lester contends that the imposition of a 15 year total sentence constituted cruel and unusual punishment under the Eighth Amendment and an abuse of the trial court's discretion. These contentions lack merit. The sentence is within the statutory maxima possible for the offenses charged, and is therefore not cruel and unusual punishment. United States v. Wylie, 625 F.2d 1371, 1380 (9th Cir. 1980), cert. denied Perluss v. United States, 449 U.S. 1080 (1981). Moreover, while the sentences of the various co-conspirators this court cannot hold that the jury could find the elements of the crime established against Lester beyond a reasonable doubt. Therefore the conviction under Count 3 is reversed.

Last, appellant Lester contends that the imposition of a 15 year total sentence constituted cruel and unusual punishment under the Eighth Amendment and an abuse of the trial court's discretion. These contentions lack merit. The sentence is within the statuatory maxima possible for the offenses charged, and is therefore not cruel and unusual punishment. United States v. Wylie, 625 F.2d 1371, 1380 (9th Cir. 1980), cert. denied Perluss v. United States, 449 U.S. 1080 (1981). Moreover, while the sentences of the various co-conspirators differed, proper reasons for the disparity in sentencing were discernable from the record, underscoring the trial judge's proper exercise of discretion in sentencing. The court found appellant Lester to be a significant cocaine dealer, and further, unlike other defendants, appellant Lester failed to cooperate with authorities. See United States v. Brown, 761 F.2d 1272, 1278 (9th Cir. 1985).

AFFIRMED in part, REVERSED in part.