United States v. James Franklin Ray, United States of America v. James Franklin Ray

930 F.2d 1368

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 1991
• Docket: 89-10218, 89-10255
• Status: Published

Opinions

GOODWIN, Chief Judge:

James Franklin Ray appeals his conviction for one count of conspiring to manufacture and distribute methamphetamine and one count of manufacturing methamphetamine. He challenges the admission of a welfare fraud investigator’s testimony concerning certain documents in his welfare file and contends that there was insufficient evidence to sustain his conviction. We affirm the conviction.

On cross-appeal, the government argues that the district court erroneously departed downward from the sentencing guidelines. The district court departed downward because the Ninth Circuit’s invalidation of the guidelines, later reversed by the Supreme Court,¹ resulted in Ray's guidelines sentence being grossly disproportionate to those of his codefendants, who were not sentenced under the guidelines. We affirm the sentence.

Ray and his codefendants were indicted on one count each of conspiring to manufacture and distribute methamphetamine and manufacturing methamphetamine.² Ray was also indicted on one count of knowingly maintaining a place for the purpose of manufacturing methamphetamine; this charge was later dismissed on the government’s motion.

At trial, the government introduced substantial evidence tending to prove that Ray was closely related to the manufacture of methamphetamine.

The government also introduced evidence that Ray had recently acquired wealth following .a period of relative poverty. Welfare fraud investigator Susan Webber testified, over Ray’s hearsay objection, that Ray and his family received welfare benefits between November 1985 and November 1987. Government witnesses also testified that during the first half of 1988 Ray made a $6000 cash down payment on a pickup truck and a $3600 down payment on a farm, and paid $11,000 cash for a motorcycle and a $2500 retainer to an attorney.

Prior to Ray’s sentencing, the Supreme Court decided United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), upholding the constitutionality of the sentencing guidelines. Ray’s codefend-ants had been sentenced during the brief period when Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), holding that the sentencing guidelines were unconstitutional, allowed the district court to apply pre-guidelines law. Ray had the misfortune to have his time for the imposition of sentence fall after the date of Mistretta.

Ray objected to the application of the new sentencing guidelines to his case on ex post facto grounds. He also asked the court to depart downward from the guidelines because the sentence mandated by the guidelines was disproportionately long compared to his codefendants’ sentences.

The court calculated Ray’s sentence under the guidelines to be 262 to 327 months. The court believed that fairness required that Ray receive a sentence more closely proportionate to the sentences of his code-fendants. They had received sentences of five to six years imprisonment. The court departed downward from the guidelines and sentenced Ray to twelve years imprisonment on each count, with the sentences to run concurrently, and three years’ supervised release.

Ray’s Appeal (No. 89-10218)

1. Webber’s Testimony

Ray contends that the district court erred in admitting the testimony of Susan Webber, a welfare fraud investigator³ with the Butte County District Attorney’s Office, who testified about the contents of certain documents in Ray’s welfare file. He argues that the testimony was not admissible under Fed.R.Evid. 803(6), the business records exception to the hearsay rule,⁴ because the foundation requirements had not been established. The evidence was admissible.

Business records are not normally self-proving. For the records to be admissible, the following foundational facts must be established through the custodian of the records or another qualified witness: (1) the records must have been made or transmitted by a person with knowledge at or near the time of the incident recorded; and (2) the record must have been kept in the course of a regularly conducted business activity. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 717 (9th Cir.1990).

The phrase "other qualified witness” is broadly interpreted to require only that the witness understand the record-keeping system. United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir.1989); United States v. Hathaway, 798 F.2d 902, 906 (6th Cir.1986); 4 Weinstein and Berger, Wein-stein’s Evidence, If 803(6)[02] at 803-178. Here, Webber testified that she was familiar with the filing and reporting requirements for public assistance benefits and the forms used in connection with those requirements. Thus, although Webber was not the custodian of Ray’s welfare records,⁵ she was a “qualified witness” to establish that Rule 803(6)’s foundational requirements had been met.

There is no requirement that the government establish when and by whom the documents were prepared. United States v. Huber, 772 F.2d 585, 591 (9th Cir.1985) (“there is no requirement that the government show precisely when the [record] was compiled”); United States v. Basey, 613 F.2d 198, 201 n. 1 (9th Cir.1979) (college records properly admitted to establish defendant’s address even though the custodian did not herself record the information and did not know who did), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 274 (1980). “All that the rule requires is that the document be made ‘at or near the time’ of the act or event it purports to record.” Huber, 772 F.2d at 591.⁶

Webber’s testimony established the foundational facts necessary for the admissibility of the contents of Ray’s welfare files under the business record exception to the hearsay rule. She testified that the CA-2 (application for welfare benefits) and CA-7 (monthly income report) forms in the file, upon which she based her testimony and which she had personally examined, contained information provided solely by the applicant, namely, Ray himself; were reviewed by an eligibility worker; and were required to be contemporaneously filed and maintained in the Welfare Department’s file. Accordingly, the district court properly admitted into evidence Ray’s welfare records under Rule 803(6).

The admission of evidence under a firmly rooted exception to the hearsay rule does not violate the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); United States v. Baker, 855 F.2d 1353, 1360 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989). The business records exception to the hearsay rule is a firmly rooted exception. United States v. Norton, 867 F.2d 1354, 1363 (11th Cir.1989), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989); Baker, 855 F.2d at 1360; see also Roberts, 448 U.S. at 66 n. 8, 100 S.Ct. at 2539 n. 8 (“ ‘Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions.’ ”) (quoting Comment, 30 La.L.Rev. 651, 668 (1970)). Accordingly, we reject Ray’s contention that the admission of Webber’s testimony violated the confrontation clause.

II. Sufficiency of the Evidence

Ray contends that there was insufficient evidence to support his conviction. We review a challenge to “the sufficiency of the evidence in the light most favorable to the Government to determine if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Mason, 902 F.2d 1434, 1441 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).

The crime of conspiracy consists of three elements: (1) an agreement to accomplish an illegal objective; (2) one or more overt acts in furtherance of the illegal objective; and (3) the intent to commit the underlying substantive crime. United States v. Thomas, 887 F.2d 1341, 1347 (9th Cir.1989). The agreement may be inferred from the facts and circumstances of the case. Id. Although mere proximity to the scene of illicit activity is insufficient to establish involvement in a conspiracy, a defendant’s presence may support that inference when viewed in light of other evidence. Id. at 1347-48. “Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant’s connection with the conspiracy, even though the connection is slight, is sufficient to convict [the] defendant of knowing participation in the conspiracy.” United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).

The evidence introduced at trial strongly supports Ray’s conspiracy conviction. Ray does not dispute the existence of the conspiracy to manufacture methamphetamine. Ray’s knowledge of and connection with the conspiracy can be inferred from the following evidence: (1) Ray negotiated for the purchase of the backhoe which was found on the Brush Creek property; (2) Ray purchased 30 pounds of Freon on three separate occasions; (3) a respirator mask and an empty Freon container were found at the Powerhouse property, where Ray lived with codefendants Edward Ray and Stephen Giles; and (4) Ray sought information about a generator similar to the one found at the Brush Creek property.

Ray’s conviction for manufacturing methamphetamine is supported by the above evidence as well as the following evidence: (1) Ray’s residence contained numerous chemicals and equipment used in the manufacture of methamphetamine; and (2) police found a formula for manufacturing methamphetamine in a purse in the master bedroom of Ray’s residence.

Viewing the evidence in the light most favorable to the government, Mason, 902 F.2d at 1441, the evidence was sufficient to permit a reasonable trier of fact to find that Ray conspired to manufacture and manufactured methamphetamine.

Cross-Appeal (No. 89-10255)

The government contends that the district court erred in departing downward from Ray’s calculated guidelines range of 262 to 327 months. The district court departed downward from about 27 years to 12 years on the ground that the guideline sentence would be disproportionately long compared to the five to six-year sentences received by Ray’s codefendants, who had been sentenced during the Ninth Circuit's temporary refusal to follow the guidelines.

A downward departure is appropriate where “the court finds that there exists ... [a] mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines_” 18 U.S.C. § 3553(b) (West Supp.1990).

The guidelines permit departures resting upon grounds referred to in Chapter 5, Part K [Departures] or on grounds not mentioned in the guidelines. United States Sentencing Guidelines [U.S.S.G.] Chapter One, Part A at 4(b). The guidelines contemplate that departures resting upon grounds not mentioned in the guidelines “will be highly unusual.” Id.

Here there are no mitigating circumstances with respect to the criminal conduct, but circumstances unique to this case were “highly unusual.” While equalizing sentences among codefendants who are being sentenced under the guidelines was a factor considered by the Sentencing Commission, it is unlikely that the Commission ever contemplated the Ninth Circuit’s brief flirtation with rebellion in the Gubiensio case.⁷

During the Gubiensio aberration, some low sentences, by guidelines measure, were handed out. Ray’s codefendants were incidental beneficiaries.

The government asks us to find that the kind of sentencing disparity present here is not a proper consideration in departing downward from the guidelines. This restraint on judicial discretion has caused district judges nationwide to regard the guidelines with less than wholehearted enthusiasm.

The government’s position presents in somewhat shabby form the ancient conflict between law and justice. Law tells us that the guidelines are “a comprehensive set of rules that are designed to limit the sentencing court’s discretion,” and contemplate “that departure will occur only in the unusual case.” United States v. Nuno-Para, 877 F.2d 1409, 1412-13 (9th Cir.1989). Justice tells us this is the unusual case presenting a circumstance not taken into consideration by the Sentencing Commission.

“ ‘In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.’ ” United States v. Cervantes Lucatero, 889 F.2d 916, 918 (9th Cir.1989) (quoting 18 U.S.C. § 3553(b)). Nothing in the sentencing guidelines, policy statements, or official commentary of the Sentencing Commission suggests that the Commission took into account the possibility that the application of the sentencing guidelines would temporarily be suspended, thereby creating a situation where code-fendants in the same case and involved in the same underlying criminal activity would be sentenced under conspicuously different sentencing laws.

The need to avoid unwarranted sentencing disparities among codefendants involved in the same criminal activity has long been considered a legitimate sentencing concern. United States v. Capriola, 537 F.2d 319, 320-21 (9th Cir.1976). Disparity was said to be one of the most important evils the guidelines were intended to cure. We hold in this case, on these unusual facts, that the district court acted within its discretion in departing downward from the sentencing range mandated by the guidelines.

Once in a while it is well to remember that the life of the law has not been logic; it has been experience.⁸ The government’s position in this case is undeniably logical. If adopted, it would be a classic triumph of logic over common sense.

AFFIRMED.

1 . See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), disapproved of in United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) and reversed by United States v. Chavez-Sanchez, 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989).

2 . Two other codefendants, Thomas Gene Talk and Jimmy Ray Talk, were also charged in the indictment. Ray’s codefendants were also indicted on eleven additional counts. Their convictions and the additional counts are not relevant to this appeal.

3 . A welfare fraud investigator investigates allegations of welfare fraud and files criminal charges of welfare fraud with the District Attorney’s office.

4 . The parties do not dispute that Susan Web-ber’s testimony is hearsay.

5 . The records were, however, in her possession at trial.

6 . Of course, if the person providing the information in the business record is not acting under a duty of accuracy in the regular course of business, a double hearsay problem may arise. See e.g., United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983) (recorded calls of witnesses reporting a crime not admissible because witnesses were not under a business duty to provide information). Although it is unclear whether Ray was under a business duty to provide the financial information to the welfare office, Ray’s statements were party admissions and were therefore nonhearsay under Fed.R.Evid. 801(d)(2). Nonhearsay statements recorded in a business record need not have been made under a business duty to be admissible. See Basey, 613 F.2d at 201 n. 1.

7 . We do not hold that the desire to equalize punishment among codefendants who are all sentenced under the Guidelines is a permissible concern. Accord, United States v. Enriquez-Munoz, 906 F.2d 1356, 1358-60 (9th Cir.1990) (suggesting that the Guidelines do not permit upward departures for purpose of equalizing sentences among codefendants); United States v. Carpenter, 914 F.2d 1131, 1135-36 (9th Cir.1990) (rejecting the principle that the Guidelines require equal sentences). Rather, we hold that in the unique situation where one defendant is sentenced under the Guidelines while the others are sentenced under a different legal regime, the district court may find “highly unusual” circumstances that support a departure.

8 . Oliver Wendell Holmes, The Common Law, 1881 (quoted in Shrager and Frost, The Quotable Lawyer, p. 172, New England Publishing Associates, Inc., 1986). "Reason is the life of law_” Sir Edward Coke, The Institutes of the Lawes of England, vo. 1, 1628-1641 (quoted in Shrager and Frost, The Quotable Lawyer, p. 269, New England Publishing Associates, Inc., 1986).