Unpublished Disposition, 862 F.2d 318 (9th Cir. 1986)

MEMORANDUM^** 

Statement of Facts

Appellants were members of a marijuana importing and distribution organization led by Michael Ortiz. From time to time, three or four appellants would be sent to pick up marijuana from a run-off wash near a ranch across the Mexican border. The marijuana was usually wrapped in clear cellophane or plastic and loaded in green duffle bags, each weighing between 75 and 100 pounds. The appellants, known as "mules," would carry the bags of marijuana on foot across the border to a wash near South Komelik, Arizona.

From South Komelik, the marijuana was driven by convoy to Tucson for storage and distribution. The appellants often posted lookouts, armed with walkie-talkies, to ensure the safe passage of the convoys. The appellants also used radio frequency scanners to detect and avoid the police.

The marijuana was stored at several sites in Tucson. On several occasions, it was stored at the home of Nick Riley, who repaired walkie-talkies and radio frequency scanners for the organization. On other occasions, the marijuana was stored in defendant Mendoza-Barcena's garage.

For their efforts, appellants received cash payments and sometimes small amounts of marijuana and cocaine. "Mules" were paid about $200 or $250 for a trip. Lookouts received about $600 for each surveillance.

All appellants were charged in two counts of a three-count indictment. Appellants Michael Ortiz and Danny Galvez were also charged in the third count. Count I alleged that beginning on or about December 15, 1984, and continuing up to and including approximately April 1, 1986, the defendants conspired to import marijuana, a Schedule I controlled substance of a quantity exceeding 50 kilograms, into the United States from Mexico, in violation of 21 U.S.C. §§ 952(a), 960, all of which violated 21 U.S.C. § 963.

Count II alleged that over the same period of time described in Count I, the defendants conspired to possess with intent to distribute marijuana, a Schedule I controlled substance of a quantity exceeding 50 kilograms, in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B), all of which violated 21 U.S.C. § 846.

Count III alleged that from on or about December of 1984, and continuing thereafter up to and including about March of 1986, Michael Ortiz and Danny Galvez engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848. The Count charged that Ortiz and Galvez had engaged in a continuing series of violations of the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et. seq., involving the importation, possession with intent to distribute and distribution of marijuana and cocaine.

All appellants pled not guilty to the charges and were tried before a jury. The jury found all appellants guilty as charged in Counts I and II. Ortiz and Galvez were found not guilty of the Count III allegations. Appellants raise a number of objections to their conviction, which we discuss seriatim. We affirm the convictions.

Analysis

Michael Ortiz, Galvez and Antone claim that the indictment is unconstitutionally vague because it failed to state any specific acts in furtherance of the charged marijuana importation (Count I) and distribution (Count II) conspiracies. The appellants cite United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979) (per curiam), for this proposition. Their claim is entitled to de novo review as an issue of law. United States v. Benny, 786 F.2d 1410, 1414 (9th Cir. 1986).

Appellants' analysis of the law is incorrect; Cecil's requirement of a statement of specific overt acts has since been overruled. In this circuit, an indictment under 21 U.S.C. § 846 (conspiracy to distribute drugs) is sufficient if it alleges:

a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy.

United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir. 1981), (quoting United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978), overruled on other grounds, United States v. Rodriguez, 612 F.2d 909, 919 & n. 35 (5th Cir. 1980)). This circuit has not previously outlined the requirements for an indictment under 21 U.S.C. § 963 (conspiracy to import drugs), but we believe that those requirements should not be any different.

Both Counts I and II meet these requirements and therefore are constitutionally adequate. See, e.g., United States v. McCown, 711 F.2d 1441, 1450-51 (9th Cir. 1983) (similarly worded indictment held sufficient).

Michael Ortiz, Mendoza-Barcena, Antone and Pablo contend that the government's proof at trial concerned either several conspiracies or several discrete and independent instances of marijuana importation and distribution instead of one importation and distribution as alleged in the indictment. Appellants support their position with reference to certain discrepancies in the testimony of government witnesses. For example, one witness testified to a "mule" trip that took place entirely within the United States. Another witness stated that his "mule" trips did not always begin from the same site in Mexico. He also testified that different individual appellants had recruited him for different backpacking, lookout and convoy operations. Some appellants, like Richard Pablo, were involved in only one phase of the operations, and no appellant was involved in all phases of every operation. Finally, appellants claim that there must have been several other conspiracies in existence because the frequency and quantity of loads proved at trial were much less than those described as being stored at Nick Riley's house.

In assessing whether the proof at trial related to a single as opposed to multiple conspiracies, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found a single conspiracy beyond a reasonable doubt. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987) (citations omitted). If more conspiracies were proven than alleged, the court should reverse the appellants' convictions " 'if the variance between the indictment and the proof affects the substantial rights of the parties.' " United States v. Kenny, 645 F.2d 1323, 1334 (9th Cir. 1981) (quoting United States v. Friedman, 593 F.2d 109, 116 (9th Cir. 1979)) . Thus the review of this issue involves two inquiries: was there a variance, and if so, was it prejudicial?

To establish the existence of a single conspiracy, the government must prove that there was " 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir. 1983) (quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980)) . In turn, the determination of "one overall agreement" rests on an analysis of the "nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of times and goals." Id. at 1458 (quoting United States v. Zemek, 634 F.2d at 1168).

The evidence of this case supports a finding that a single conspiracy existed. The "nature of the scheme" involved the transportation of marijuana by foot from Mexico to South Komelik, Arizona and then by convoy to Tucson for storage and distribution. The marijuana was usually wrapped in clear cellophane or plastic and loaded in green duffle bags. Several government witnesses, including former members of the organization, identified the appellants as participants in the scheme and detailed their involvement. Most appellants participated several times in the importation and distribution of the marijuana and several were involved in different phases. In addition on one occasion, all the appellants, except for Antone, met at Nick Riley's house to receive payment. Finally, the government showed that each appellant received cash payments and sometimes some marijuana and cocaine for his efforts, thereby establishing that appellants had a common interest in the operation.

All the appellants claim that the district court should have severed Counts I and II from Count III of the indictment, or in the alternative, should have required a separate trial for Michael Ortiz and Galvez, the only two appellants named in Count III. All claim that severance was required to avoid prejudicing their trials with evidence relevant only to Count III.

Appellants argue that there were two main instances of prejudice during the joint trial. First, they claim prejudice from the admission of evidence of Michael Ortiz's assault on Nick Riley and his family. Ortiz had stored about a kilogram of cocaine at Riley's home in late March, 1986. When he returned, he could not find the cocaine. He accused Riley of stealing it and held the Riley family hostage. Ortiz threatened to kill the family, hit Mrs. Riley in the face, and partially strip-searched Mr. and Mrs. Riley. All this evidence was introduced through the testimony of Nick Riley, who had contacted the authorities shortly after the assault and agreed to testify under a grant of immunity from prosecution. Second, the appellants claim prejudice from the admission of evidence relating to cocaine distribution by Michael Ortiz and Galvez.

United States v. Douglass, 780 F.2d 1472 (9th Cir. 1986), requires this court to inquire whether the district court abused its discretion in denying the motion. Id. at 1478 (citing United States v. Rogers, 722 F.2d 557, 561 (9th Cir. 1983), cert. denied, 469 U.S. 835 (1984)). Reversal is warranted only if the appellants can show " 'that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy.' " Id. at 1478 (citations omitted). An appellant must show that a joint trial violated one of his substantive rights, such as his Sixth Amendment confrontation rights, the right to present an individual defense, or the right to have the court instruct the jury on the admissibility of evidence as to each defendant. Id. (citing United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980)).

Moreover, in assessing the prejudicial effect of a joint trial, the primary consideration is whether "the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants." Douglass, 780 F.2d at 1479 (citations omitted). The jury's task is greatly aided by trial court instructions on the purposes to which different strands of evidence may be put. Indeed, " [t]he prejudicial effect of evidence relating to the guilt of codefendants is generally held to be neutralized by careful instruction by the trial judge." Id. (citing United States v. Monks, 774 F.2d 945, 949 (9th Cir. 1985)); see also United States v. Sullivan, 595 F.2d 7, 8-9 (9th Cir. 1979) (presumption that jury listened to and followed trial court's instructions).

In this case, the trial judge carefully and repeatedly cautioned the jury about the limited admissibility of the assault and cocaine evidence. Michael Ortiz even complains in his brief that the trial judge was too diligent in giving instructions. In addition, no appellant raises any significant claim of a violation of his substantive rights due to the joint trial. Michael Ortiz and Moreno argue that their cross-examination of two witnesses was impaired because of the trial court's instructions. Ortiz claims that he could not properly cross-examine Nick Riley because the court had prevented him from discussing cocaine as it related to the appellants named in Counts I and II. But Ortiz did succeed in forcing Riley to discuss cocaine. Moreno claims a similar limitation on his ability to cross-examine because the court prevented a witness from mentioning Galvez. But Moreno was able to impeach the witness in many other ways and any prejudice from that isolated instance does not outweigh the judicial economy of the joint trial.

Defendant's argument, that combining Count III with Counts I and II allowed the jury to hear harmful evidence it would not have otherwise heave heard, has considerable appeal. Nevertheless, such decisions are generally within the discretion of the district judge. In this case, we cannot conclude that the joinder was "manifestly prejudicial."

Michael Ortiz, Cypriano and Mendoza-Barcena claim that the trial court erred in denying their motion, under Batson v. Kentucky, 476 U.S. 79 (1986), to require the prosecutor to explain why he struck one Black female and one Hispanic female from the jury. However, none of these appellants presented a prima facie case under Batson. Therefore the trial court's ruling was not clearly erroneous and should not be overruled. United States v. Lewis, 837 F.2d 415, 417 (9th Cir. 1988).

Batson established a two-part test for a prima facie case of purposeful discrimination in the selection of juries. First, the defendant "must show that he is member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Batson, 476 U.S. at 96 (citations omitted). Second, the defendant must identify circumstances that "raise an inference that the prosecutor used [the peremptory challenges] to exclude the veniremen from the petit jury on account of their race." Id. These circumstances include the nature of the prosecutor's questions during voir dire and whether there was a discriminatory pattern of strikes. Id. at 97.

Cypriano cannot meet the first part of the test, because he is a Tohono O'Odhem Indian and neither of the excluded venire members was Indian. Mendoza-Barcena can satisfy the first part of the test, because he, like one of the excluded jurors, is Hispanic; Michael Ortiz may also qualify because he is half-Hispanic. But Mendoza-Barcena and Ortiz have not raised any inference of discriminatory exclusion. They have not claimed that any of the prosecutor's questions or statements or voir dire was racially motivated or biased. Nor have they shown that the effect of the prosecutor's actions was to eliminate all Hispanics from the venire. In addition, they have not shown that any other relevant circumstances at trial raise an inference of discrimination.

V. Police officer's ex parte contact with a government witness.

All appellants argue that a police officer coerced a government witness to testify, thereby violating their constitutional rights to a fair trial. The witness, Delbert Liston, was a former member of the Ortiz organization and had been granted immunity from prosecution in exchange for his testimony. Nonetheless, Liston refused to testify when called by the government. He was cited for contempt by the court and imprisoned until the end of the trial or until he decided to testify.

After spending a weekend in jail, Liston took the stand. He claimed however that the government's case agent, Customs Agent Michael McBride, had called him in prison and coerced his testimony. Agent McBride acknowledged speaking with Liston but denied threatening him or using coercive language. McBride claimed that he merely explained the court's contempt order and reminded Liston that if he was uncooperative he could be prosecuted with the other defendants.

It should be noted that appellants do not claim that Liston was coerced to alter his testimony in any way. Nor can appellants assert claims based on any violations of Liston's constitutional rights, for they do not have standing to make such claims. Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972). Rather, appellants maintain that because their trial was rendered fundamentally unfair by the admission of evidence tainted by coercion, Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Wilcox v. Ford, 813 F.2d 1140 (11th Cir. 1987), the district court should have exercised its supervisory power to dismiss the indictment or, in the alternative, to prevent Liston from testifying.

Appellants' Fifth Amendment claim deserves de novo review. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983). The district court's refusal to exercise its supervisory power is reviewed for abuse of discretion. Id. at 541.

"Viewing the circumstances of the trial as a whole," it does not appear that the admission of Liston's testimony rendered appellants' trial fundamentally unfair. Ramirez, 710 F.2d at 1149. Liston was not coerced to change his testimony in any way. Appellants had a full opportunity to cross-examine Liston and to introduce evidence of the coercion to impeach him. They also could introduce any other form of evidence to question Liston's credibility and veracity.

It follows that the trial court did not abuse its discretion in refusing to exercise its supervisory power. The court may use its power to preserve the integrity of the judicial process, including as a remedy designed to deter illegal conduct. Ramirez, 710 F.2d at 541. But the power should only be used where there is a clear basis in fact and in law for its use. Id. (citing United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977)). Here, since no unconstitutional or other impermissible harm came to appellants from the admission of the testimony, it cannot be said that the trial court abused its discretion.

VI. The Prosecutor's cross-examination of a defense witness

Michael Ortiz and Galvez claim that the prosecutor acted improperly during the cross-examination of Ortiz and of defense witness Joel Shulman. Appellants maintain that the prosecutor lacked a good faith basis for asking the witnesses whether Shulman had bought drugs from Ortiz. Their claim must fail, however, because they have not shown that "it is more probable than not that the allegedly improper remarks materially affected the verdict." United States v. Chavez-Vernaza, 844 F.2d 1368, 1377 (9th Cir. 1987) (citations omitted).

Shulman testified on direct that Nick Riley, a government witness, had a reputation for untruthfulness. On cross-examination, the prosecution asked whether Shulman had bought cocaine and marijuana from Ortiz and Galvez. Shulman answered in the negative. Ortiz objected to the question and asked that the testimony be stricken, which the trial court denied. Later, the prosecutor asked Michael Ortiz on cross-examination whether he had sold cocaine to Shulman. Ortiz answered in the negative. There was no immediate objection by counsel, but at a later discussion out of the presence of the jury, counsel objected and requested an instruction to the jury to disregard the question. The court gave such an instruction, requiring the jury "to disregard the question of the lawyer as proving anything. It's the answer of the witness which proves or disproves any given fact." The court further admonished the jury to "draw no inferences whatsoever from the fact that a question was asked and the witness denied it."

The first issue for determination is whether the prosecutor's questions were improper. United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). This circuit requires that the prosecutor have a good faith basis for the question and that the basis be established before the question is asked. United States v. Davenport, 753 F.2d 1460, 1463 (9th Cir. 1985). Here, the prosecutor informed the court that he had received the information about Shulman's drug purchases from Nick Riley. But the prosecutor did not inform the court of his good faith basis until after his cross-examination of Shulman and Ortiz. Therefore the prosecution's questions were improper.

Nonetheless, this court must also determine whether the impropriety caused any prejudice, and none can be shown here. It has been held that a district court's instruction to the jury to disregard a question can "eliminate [ ] any potential prejudice" to a defendant. United States v. Moran, 759 F.2d 777, 786 (9th Cir. 1985); accord Polizzi, 801 F.2d at 1558; but see Davenport, 753 F.2d at 1463 (instruction unlikely to be "effective in preventing an unjustified innuendo from coming to the attention of the jury"). In addition, any prejudice suffered by appellants cannot be said to have materially affected the verdict. The prosecutor's questions sought to impeach the credibility of an impeachment witness. Thus, any prejudice that resulted was far removed from the central issue of the innocence or guilt of the appellant.

VII. The admission of evidence lacking a proper foundation

At trial the government introduced into evidence certain notes taken from Danny Galvez and Henry Adams's wallets. (Adams, a defendant at trial, has not appealed.) Appellants Antone and Moreno objected to the admission, claiming that the evidence was hearsay, that it lacked a proper foundation, and that it violated the Confrontation Clause. The trial court ruled in favor of admission. That ruling was clearly erroneous, but it should stand because it was harmless. United States v. Jennell, 749 F.2d 1302, 1308 (9th Cir. 1984).

The notes were introduced as Exhibits 9 and 12. Exhibit 9 was two sheets of paper which were found in a wallet in a car belonging to Galvez when the car was inventoried in January, 1986. The papers, of unknown authorship, listed the first names of several conspirators alongside a series of numbers. They resembled "drug notes," a ledger of sorts by which a drug dealer keeps track of how much he has paid different members of his organization. Exhibit 12 was a slip of paper listing police radio frequencies. It had been taken from Adams's wallet when he was arrested in possession of a green duffle bag of marijuana. Again, the author of the listing is unknown.

Exhibit 12 was admissible as nonhearsay evidence. It could have been offered only to show the fact that a particular defendant had a list of police frequencies in his possession. It need not have been offered to prove the truth of the matter asserted, namely that the police frequencies were the ones monitored by defendants during their drug convoys. As such, it was probative evidence and the trial court did not err in admitting it.

As to Exhibit 9, the government introduced it under Fed.R.Evid. 801(d) (2) (E), which provides that a statement is not hearsay if offered against a party and if it is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Knowledge of the identity of the declarant "is essential to a determination that the declarant is a conspirator whose statements are integral to the activities of the alleged conspiracy." United States v. Mouzin, 785 F.2d 682, 692-93 (9th Cir. 1986); see also United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984). In addition, mere possession of a document is not tantamount to an adoptive admission under Fed.R.Evid. 801(d) (2) (B). Mouzin, 785 F.2d at 692 (citations omitted).

It is indisputable that the government did not meet the foundation requirements of Fed.R.Evid. 801(d) (2) (E) for Exhibit 9. The government admits that it does not know who wrote the notes. Also, the government has failed to show that the statements were made during the course and in furtherance of the conspiracy. Finally, the mere presence of the notes in Galvez's wallet is not enough to justify admission.

Reversal of appellants' convictions is not required, however, because the error was harmless. There was ample other evidence of the amounts paid to particular appellants. That evidence, consisting mainly of the testimony of Nick Riley and other former members of the organization, was also more reliable than the notes. So it is unlikely that the admission of the notes materially affected the outcome of the trial.

Appellants also raise a Confrontation Clause challenge to the notes, but they rely on outdated law. They claim that the government had to meet two other requirements: it had to produce the declarant or show that he was unavailable, and it had to present independent evidence of the reliability of the statements. But these requirements have been eliminated by the Supreme Court. See United States v. Inadi, 475 U.S. 387 (1986) (production of declarant or showing of unavailability); Bourjaily v. United States, --- U.S. ----, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) (reliability of statement).

Michael Ortiz and Antone argue that the trial court erred in admitting irrelevant and prejudicial evidence. Their appeal may succeed only if the trial court abused its discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983). No such abuse can be shown here.

Appellants object to the testimony of Robert Antone, a United States Customs agent. He testified that on December 15, 1984, he saw two pickup trucks driving about one-quarter mile apart near Sells, Arizona. He stopped and searched one vehicle, driven by Michael Ortiz, but he found nothing. Antone lost sight of the other pickup and later observed it parked at Ortiz's trailer in Sells. He gave chase for several hours, lost it again, and finally found and stopped it. The pickup was carrying 889 pounds of marijuana wrapped in clear cellophane and loaded in green duffle bags. The driver was arrested but was not charged along with the present appellants.

This evidence is clearly relevant and nonprejudicial. To be sure, appellant Ortiz is only tangentially connected to the pickup truck containing the marijuana. Yet the sequence of events fits the modus operandi of the appellants. Marijuana was usually convoyed from South Komelik and Sells to Tucson with one vehicle in the convoy acting as a decoy for law enforcement authorities. Also, the manner in which the marijuana was packaged matches the method used by the appellants. The trial court did not abuse its discretion when it admitted this evidence.

IX. Evidence obtained in violation of Mendoza-Barcena's Fourth Amendment rights

Appellant Mendoza-Barcena claims that the government violated his Fourth Amendment rights in order to obtain and introduce at trial certain photographs of his garage. Some controversy had arisen at trial over the description of appellant's garage, which was alleged to be a storage area for marijuana. In an effort to resolve the dispute, Agent McBride visited the appellant's home, showed his badge to a woman he encountered there, and secured her consent to enter the premises and take the pictures. Three photographs were introduced at trial. Appellant objected but did not argue, as he does now, that the consent secured from the woman was ineffectual. Indeed, no record was made on this point at trial. Appellant now maintains, however, that the woman spoke no English and therefore could give no valid consent.

The district court's finding of consent should be reversed only if it was clearly erroneous. United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). But appellate review is hampered without a full record below. The court has only the arguments of counsel to guide it on the issue of consent. Without evidence of her lack of consent, there are no reasonable grounds for finding a violation of appellant's Fourth Amendment rights. In any event, any error in the admission of the photographs of the garage was harmless and not prejudicial.

X. Cypriano's motion for judgment of acquittal

Appellant Cypriano claims that the evidence is insufficient to support his guilty verdict. He points out that there is only testimony that he drove several of the appellants to Mexico for their "mule" trips and that he drove in the lead vehicle of a marijuana convoy. He claims that he did not know that his passengers were involved in marijuana importation and distribution. Rather, he was "only functioning within his profession or employment, as a taxi driver."

It was not error for the trial court to deny appellant's motion for judgment of acquittal. As this court stated quite recently, once the existence of a conspiracy is proven, evidence establishing a defendant's slight connection with the conspiracy is sufficient to convict him of knowing participation. United States v. Berberian, 851 F.2d 236 (9th Cir. 1988). Ultimately, the question of Cypriano's knowledge was for the jury. AFFIRMED.