Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Robert FISCHER, Defendant-Appellant.

No. 90-30035.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1991.Decided March 21, 1991.

Before WIGGINS, BRUNETTI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM* 

PROCEDURAL AND FACTUAL BACKGROUND

Robert Fischer was convicted, following a jury trial, of conspiracy to knowingly and intentionally possess cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a) (1), 846 and 18 U.S.C. § 2. Fischer appeals from the conviction arguing (1) the district court erred when it admitted evidence of a conspiracy which Fischer maintains was separate from the one charged in the indictment; (2) the district court erred in allowing admission of documentary evidence over Fischer's hearsay objection; (3) the district court erred in admitting narcotic evidence because the government failed to establish the entire chain of custody; and (4) he was denied effective assistance of counsel and his right to a fair trial due to his counsel's failure to protect him from extra-trial drug war publicity. For the reasons stated, we affirm.

DISCUSSION

1. Two Conspiracies.

Fischer was a cocaine supplier to a major distribution organization which encompassed at least seven states. Joseph Barbalinardo became a key man in the operation. From July through October, 1987, Barbalinardo purchased approximately 25 kilograms of cocaine from Fischer. Barbalinardo was also the government's first witness at trial and testified to the overall method of operation as well as to the specific details of the conspiracy. Fischer knew the details of the operation including where the cocaine was to be delivered and who was going to be the courier. In October, 1987, Fischer informed Barbalinardo that he was going to be "unavailable" for future purchases of cocaine.

Barbalinardo continued his operation using other suppliers, one of whom was recommended by Fischer. In December, 1987, one of the couriers in the operation, Vaughn Jipner, contacted Fischer for the purpose of obtaining a large quantity of cocaine directly from Fischer without going through Barbalinardo. Jipner obtained, on three separate occasions, three kilograms of cocaine from Fischer. Jipner thought he could realize a greater profit if he cut Barbalinardo out of the transaction. Jipner delivered the cocaine to Mitchell, the same buyer in Spokane he had delivered to when he was courier for Barbalinardo.

Fischer maintains that the agreement and transactions between himself and Jipner in January and February of 1988 were separate and distinct from the charge in the indictment. As such, Fischer argues the court erred in admitting evidence pertaining to the second conspiracy. The United States maintains that since the individuals involved in both transactions were the same except for Barbalinardo, this was just another page in the overall conspiracy chapter. The indictment alleges a single conspiracy that began March 1, 1987, and continued through May 18, 1988. At trial, after objection by Fischer's counsel, the court concluded that the question of whether separate conspiracies occurred was a matter for the jury to sort out.

In his brief, Fischer "concedes that based upon the standards by which an appellate court reviews the factual findings of a jury, there was sufficient evidence to support the jury's guilty verdict on the charge against him." We quite agree.

The contention of multiple conspiracies involves questions of severance, variance, and misjoinder which restate the basic argument that the evidence proved two separate conspiracies. U.S. v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980), cert. denied, 450 U.S. 916; 450 U.S. 985; 452 U.S. 905 (1981). The general test used to distinguish single from multiple conspiracies is whether there was a "single overall agreement" to achieve the conspiracy's objectives. U.S. v. Tille, 729 F.2d 615, 621 (9th Cir. 1984); U.S. v. Zemek, 634 F.2d at 1167. A single conspiracy may involve subgroups or subagreements. Id. The evidence need not be such that it excludes every hypothesis but that of a single conspiracy; rather it is enough that the evidence adequately supports a finding that a single conspiracy exists. U.S. v. Arbelaez, 719 F.2d 1453, 1457-58 (9th Cir. 1983).

To determine whether the evidence supports the existence of one overall criminal venture, relevant areas of inquiry include "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." U.S. v. Arbelaez, 719 F.2d at 1458, quoting U.S. v. Zemek, 634 F.2d at 1168. Here, we conclude that there was substantial evidence from which a rational juror could have concluded that appellants engaged in a single overall conspiracy, and therefore there was no material variance between the proof at trial and the indictment.

Clearly Fischer was engaged in the business of distributing cocaine for profit. The overall scheme demonstrated that Fischer supplied cocaine to a distributor who sold the cocaine for profit. Fischer was always the supplier. Mitchell was always the customer. The only difference in the transactions was that Jipner elevated himself from a courier to a distributor. Hence, the identity of the participants remained largely unchanged.

Regarding the quality, frequency and duration of each of the conspirator's transactions, the only substantial change from the overall conspiracy came when Fischer was temporarily incarcerated and hence made "unavailable" as a supplier. He resumed his functions upon his release, dealing with the same people except for Barbalinardo.

Fischer's contention that evidence of his post-Barbalinardo transactions was prejudicial lacks merit based on the record before us. See, e.g., U.S. v. Patterson, 819 F.2d 1495 (9th Cir. 1987). A juror could conclude that each party was interested in being part of a distribution scheme that could distribute large amounts of cocaine. See, e.g., U.S. v. Arbelaez, 719 F.2d 1453.

2. Documentary Evidence.

Next we examine whether the district court erred in admitting the documentary evidence over Fischer's hearsay objections. During the testimony of Steve Marlton, a codefendant and a government witness, the government introduced four exhibits (89, 90, 91 and 100). Defense counsel raised various objections to each of these exhibits. Each of the objections was overruled. Fischer argues in his brief that these exhibits were inadmissible hearsay and admitted in error. We disagree for the following reasons.

Government's exhibit 89 is a copy of a U.S. Bank Visa bill containing the name of Marlton and his address. It also indicated that Marlton received the bill and paid it. Marlton testified that the original was destroyed or lost. The bill showed that Marlton had purchased a night's lodging at the Holiday Inn in Hollywood, California, on March 11, 1987. We note from the transcript that Fischer's attorney objected to the admission of Exhibit 89. However, Fischer is mistaken in his brief when he states that his objection sounded in hearsay. His objection argued that Exhibit 89 should not be admitted because the government had failed to authenticate the credit card bill. A district court's findings of sufficiency of authentication is reviewed for an abuse of discretion. U.S. v. Vasquez, 858 F.2d 1387, 1392 (9th Cir.), cert. denied, 488 U.S. 1034 (1988). Since the witness had testified that the original had been destroyed and he properly identified this document as a true and correct copy, we cannot conclude that the district court abused its discretion when it overruled the objection. F.R.E. Rule 901.

Government's Exhibit 90 was a copy of Marlton's Diner's Club bill containing his name, address and club number. Exhibit 90 indicated Marlton used his Diner's Club card to purchase airline tickets. Exhibits 91 and 100 are bank copies of cashier's checks Marlton had procured to pay for drug deliveries to codefendant Frank Arnone. At trial, Fischer's counsel objected to the admission of the exhibits arguing that they were hearsay which did not fall under business record exception under the hearsay rule. F.R.E. Rule 803(6). The court overruled Fischer's objections at trial. Our review of the record has failed to indicate how Fischer was prejudiced by the admission of Exhibits 90, 91 and 100. We conclude that any error committed was harmless. See U.S. v. Browne, 829 F.2d 760, 766 (9th Cir. 1987).

3. Narcotic evidence.

Next Fischer argues that the district court erred in admitting Exhibits 30, 111 and 112. Government's Exhibit 30 was a container designated as a "casting" which contained cocaine. Government's Exhibit 111 was a kilogram of cocaine. Government's Exhibit 112 was a small quantity of cocaine. When seized, Exhibit 111 was inside Exhibit 30, the container. All three exhibits were placed inside an envelope which was sealed. A federal agent filled out the evidence tag on the exhibits. The exhibits were placed in a box and sent by registered mail, return receipt, to the DEA Western Regional Laboratory in San Francisco. The exhibits were mailed back from the San Francisco lab to the mailing agent on July 7, 1988. The agent sent the exhibits back to the lab in San Francisco on July 12, 1988. On August 17, 1989, the exhibits were again mailed from San Francisco and received in Spokane for trial in this case.

A trial court's decision regarding the sufficiency of the chain of custody of evidence will be upheld absent an abuse of discretion. U.S. v. Sarmiento-Perez, 724 F.2d 898, 900 (11th Cir.), cert. denied, 469 U.S. 979 (1984). Tangible evidence of a crime is admissible only when shown to be in substantially the same condition as when the crime was committed. U.S. v. Dickerson, 873 F.2d 1181, 1185 (9th Cir. 1988). An important factor to be considered is the likelihood of intermediaries tampering with the evidence. If there is some evidence of tampering then the government must show that exceptional precautions were taken to maintain the evidence in its original state. Id.

Fischer concedes that he had no evidence of tampering, he merely contends that the government failed to show who handled the drugs in San Francisco's drug laboratory for a period of over one year. The district court heard testimony from a DEA agent working in the drug laboratory in San Francisco on the procedures followed when handling evidence in that office. The court determined that there was no reason to believe that the procedure had not been followed in this case. We defer to this finding. Accordingly, we conclude that the district court did not abuse its discretion in admitting the narcotic evidence.

4. Ineffective assistance of counsel.

Fischer maintains that he was denied a fair trial and effective assistance of counsel. Fischer argues that his attorney failed to take appropriate measures to protect Fischer's rights in court considering the current anti-drug hysteria atmosphere.

We conclude that this issue is not properly before this court. A claim of ineffective assistance of counsel is ordinarily not reviewable on direct appeal. U.S. v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989), cert. denied, 111 S. Ct. 64 (1990). This is particularly true where the trial attorney is the same attorney as the attorney on appeal. The proper method for raising this type of claim is through a Section 2255 habeas proceeding, so that the factual background of the claim can be fully developed. U.S. v. Rewald, 889 F.2d at 859. We acknowledge that an exception to the general rule permits consideration of an ineffective assistance of counsel claim under direct appeal where the defendant's legal representation was so inadequate as obviously to deny his Sixth Amendment right to counsel. U.S. v. Rewald, 889 F.2d at 859; U.S. v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). We note that Fischer brought this claim before the district court in a motion for acquittal or new trial. The district court denied Fischer's motion. We see nothing on this record which would constitute plain error. Accordingly, we decline to rule on the issue of ineffective assistance of counsel. This ruling is without prejudice to pursuit of the claim in a Section 2255 proceeding.

CONCLUSION

For the reasons stated above, Fischer's judgment of conviction and denial of his motion for acquittal and new trial 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 9th Cir.R. 36-3