Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Thomas J. IVERS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Albert Robert COOK, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Graydon James LAMB, Defendant-Appellant.

Nos. 87-3007, 87-3011, 87-3016 and 87-3014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1988.Decided June 22, 1988.

Before BEEZER, HALL, and WIGGINS, Circuit Judges.


MEMORANDUM* 

Appellants timely appeal from criminal convictions for drug-related conspiracies.

* Appellant Ivers alleges a number of errors by the district court. First, Ivers claims the district court erred by not suppressing evidence because the warrant was overbroad and the agents' search exceeded the scope of the warrant. We review de novo a denial of a motion to suppress. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986).

Ivers claims that the warrant was overbroad for two reasons: (1) it directed the agents to search for evidence of unspecified violations of certain criminal statutes, referring only to the statutes; and (2) it directed the agents to search for evidence of a "general nature." Both contentions are unpersuasive.

The warrant simply does not refer to a statute. Rather, it specifically describes the property to be seized. The affidavits attached to the warrant list four statutes as the legal grounds for the search, not as descriptions of the property to be seized.

Ivers complains about the following clause in the warrant: "documents and records relating to transactions in furtherance of the type of scheme described in the affidavit of Robert W. Galbraith, which is attached hereto and incorporated by reference herein." He argues that this calls for a general search because the affidavit is "of a general nature."

This eight-page affidavit describes in detail a chronological series of meetings between Ivers and Internal Revenue Service agents. The affidavit lists names, dates, places, telephone conversations, checks, sums of money, names of corporations, descriptions of filing falsified income tax forms, attempts to hide money from the Internal RevenueService, and ways to take money outside the U.S. without filing government reports. The documents and records mentioned in the warrant are clearly described by this information.

Ivers further claims that because the search exceeded the scope of the warrant, the district court should have suppressed the items that were properly seized under the warrant. Ivers does not contend that anything seized outside the scope of the warrant was introduced at trial.

Assuming, without deciding, that the search was too broad, the district court should not have suppressed the evidence properly seized under the warrant. We have recently held:

Absent ... flagrant disregard [for the terms of the warrant], the appropriate rule seems to be that where officers seize some items outside the scope of a valid warrant, this by itself will not affect the admissibility of other contemporaneously seized items which do fall within the warrant.

United States v. Whitten, 706 F.2d 1000, 1010 (9th Cir. 1983) (citation omitted and emphasis supplied), cert. denied, 465 U.S. 1100 (1984). We are not persuaded that the agents flagrantly disregarded the terms of the warrant.

Second, Ivers claims that a presumption of vindictive prosecution arises because additional charges were brought against him after he rejected plea agreements. We squarely rejected this argument in United States v. Heldt, 745 F.2d 1275, 1280-81 (9th Cir. 1984).

Third, the government introduced evidence that in 1984 Ivers was involved in a scheme similar to the one for which he was being tried. Ivers claims the district court erred by admitting this evidence under Fed.R.Evid. 404(b). We review the decision of the district court for an abuse of discretion. United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986).

The district court did not abuse its discretion in admitting this evidence: (1) The evidence was admitted to show intent, a material element of the charge, (2) clear and convincing evidence that Ivers was involved in the 1984 Bayview transaction was produced, (3) both the prior act and the offense charged involved similar conduct, (4) the trial judge adequately weighed probative value and potential prejudice of the proffered evidence before admitting it, and (5) Ivers does not claim the prior act was remote. See United States v. Alfonso, 759 F.2d 728, 739 & n. 7 (9th Cir. 1985); United States v. Bailleaux, 685 F.2d 1105, 1109-10 (9th Cir. 1982).

Fourth, Ivers argues that because he was acquitted of committing conspiracy through his acts in the 1984 Bayview transaction, the government was collaterally estopped from using evidence of that incident in a prosecution arising from a different set of facts. However, collateral estoppel does not bar the use of evidence of prior acts to show intent merely because the defendant has been acquitted of crimes involving those acts. United States v. Castro-Castro, 464 F.2d 336, 337 (9th Cir. 1972), cert. denied, 410 U.S. 916 (1973).

Fifth, Ivers claims the following jury instruction was erroneous:

There has been testimony concerning Mr. Cook's alleged involvement in cocaine in 1984. This testimony was admitted as to Mr. Cook for a limited purpose, that is as relevant to making a determination of Mr. Cook's intent and motive in connection with the charge against him in count II, which relates to events in 1985. This testimony may not be considered for any other purpose against Mr. Cook.

This evidence may, however, be considered without limitation in regard to the charges against Mr. Ivers.

He did not object to this instruction; therefore, the plain error standard governs review. United States v. Hudson, 564 F.2d 1377, 1380 n. 3 (9th Cir. 1977).

Ivers claims this instruction improperly allowed the jury to consider evidence of Ivers' involvement in the 1984 cocaine conspiracy as bad character evidence against him. However, the instruction refers to Cook's involvement, not to Ivers'. The instruction allowed the jury to consider the evidence of another individual's prior acts when it considered the charges against Ivers. This is not plain error.

Ivers does not claim that he requested a limiting instruction about the use of evidence of his prior bad acts. Rather, he claims the court erred by failing sua sponte to provide one. This is not reversible error. United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984).

Finally, Ivers' due process claim is meritless.

II

Appellant Lamb contends the district court erred by admitting drug ledgers into evidence under two hearsay exceptions: statements of a co-conspirator, Fed.R.Evid. 801(d) (2) (E), and business records, Fed.R.Evid. 803(6). We review the district court's decision to admit evidence for an abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir. 1986), cert. denied, 107 S. Ct. 1337 (1987).

A proper foundation must be laid before co-conspirator statements are admissible as hearsay under Fed.R.Evid. 801(d) (2) (E). Proof, independent of the statements themselves, is needed to establish a prima facie case for the existence of the conspiracy and the defendant's connection to and knowing participation in the conspiracy. Additionally, it must be shown that the challenged statement was made during the course of, and in furtherance of, the conspiracy. United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (9th Cir. 1981). This evidence must be considered in the light most favorable to the government. Id.

Lamb concedes that the existence of the conspiracy and his connection were established. The district judge made specific findings that the ledgers were made during the course of and in furtherance of the conspiracy. We are not persuaded that the district court's findings are clearly erroneous. See United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986).

Because we affirm the admission of the ledgers under Rule 801(d) (2) (E), we need not address their admission under Rule 803(6).

Lamb claims that the requirements of the confrontation clause must be met in addition to the requirements of Fed.R.Evid. 801(d) (2) (E). This is meritless. See United States v. Paris, 827 F.2d 395, 400-01 (9th Cir. 1987).

III

Appellant Cook claims (1) that his due process right to a fair trial was violated, (2) that he was denied effective assistance of counsel at trial, and (3) that the court erred by not restricting the prosecutor's closing argument. All of Cook's arguments are meritless.

The convictions of appellants Ivers, Lamb, and Cook are

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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