United States v. Julio Zavala

839 F.2d 523, 1988 U.S. App. LEXIS 829, 1988 WL 4011

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 1988
• Docket: 85-1091
• Status: Published

Opinions

PER CURIAM:

Appellant Julio Zavala was indicted on March 4, 1983, for multiple violations of federal narcotics laws. Zavala was charged in count one with conspiracy to import and distribute cocaine (21 U.S.C. §§ 846, 963); in counts two and nineteen with possession of cocaine for sale (21 U.S.C. § 841); in counts three through eight with unlawful use of a communications facility (21 U.S.C. § 843(b)); in count twenty with use of a firearm in commission of a felony (18 U.S.C. § 924(c)(1)); and in count twenty-five with conducting a continuing criminal enterprise (21 U.S.C. § 848). The remaining counts in the indictment involved the other defendants. Pursuant to a negotiated plea agreement, appellant pleaded guilty to counts one and nineteen, and the government moved to dismiss counts two and twenty. Appellant agreed to a bench trial on stipulated facts and additional evidence on count twenty-five.

The district court, . 622 F.Supp. 319, convicted on counts three through six, on count eight, and on count twenty-five. Pursuant to the plea agreement, the court set aside the judgment of conviction on count one. The court sentenced Zavala to ten years confinement on count nineteen, ten years on count twenty-five, and four years each on counts three through six and eight. All the sentences run concurrently.

On this appeal appellant challenges his convictions on counts three through six and count eight (the communication counts), and count twenty-five (the continuing criminal enterprise count). He does not challenge his conviction on count nineteen. We affirm the convictions.

Appellant first challenges the sufficiency of the indictment on the communication counts. The indictment charged Zavala with using a telephone to facilitate the commission of violations of 21 U.S.C. §§ 841(a)(1), 846, 952, 963. The indictment recited specifically the dates and times of, and the parties to, the illegal conversations. The full text of the indictment on the communication counts is as follows:

COUNTS THREE THRU FIVE: (Title 21, United States Code, Section 843(b))

The Grand Jury further charges: THAT

On or about the dates hereinafter set forth in Counts Three thru Five of this Indictment, in the State and Northern District of California,

JULIO ZAVALA and ERNESTO LANSIG-CABALLERO,

defendants herein, unlawfully, knowingly and intentionally did use a telephone in committing, causing and facilitating the commission of felony violations of Title 21, United States Code, Sections 963, 952, 846, and 841(a)(1), in communications with persons in the telephone calls listed in Counts Three thru Five:

COUNT DATE HOUR PERSONS CONVERSING

Three 8/28/82 1053 hrs Julio Zavala and Ernesto Lan-sig*Cabal!ero.

Four 9/5/82 1143 hrs Julio Zavala and Ernesto Lan-sig-Caballero.

Five 9/9/82 1831 hrs Julio Zavala and Ernesto Lan-sig-Caballero

COUNTS SIX THRU EIGHT: (Title 21, United States Code, Section 843(b))

The Grand Jury further charges: THAT

On or about the dates hereinafter set forth in Counts Six thru Eight of this Indictment, in the State and Northern District of California,

JULIO ZAVALA,

defendant herein, unlawfully, knowingly and intentionally did use a telephone in committing, causing and facilitating the commission of felony violations of Title 21, United States Code, Sections 963, 952, 846, and 841(a)(1), in communications with persons in the telephone calls listed in Counts Six thru Eight:

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Six 9/13/82 2109 hrs Julio Zavala and Angela Cabezas.

Seven 9/22/82 1051 hrs Julio Zavala and Doris Solomon.

Eight 9/23/82 1513 hrs Julio Zavala and Carlos Cabezas.

Indictments that follow statutory language are generally sufficient if the statute sets forth the elements of the crime, see, e.g., Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), although following statutory language is not a cure-all. See, e.g., United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979) (tracking statutory language is insufficient when statutory language does not contain all essential elements of offense). In this case, each count refers to the underlying substantive criminal statute prohibiting drug transactions, so the defendant in each instance is advised that on the dates and at the precise times shown, he used the telephone to converse with a specific person, all in connection with drug transactions.

Appellant argues that the indictment here was insufficient because it leaves open the possibility that the controlled substance in question could have been any one of one hundred and forty-two substances set forth in Title 21. Appellant relies upon a Seventh Circuit case, United States v. Hinkle, 637 F.2d 1154 (7th Cir.1981). In Hinkle the indictment merely charged that the defendant, on or about a certain day, used a telephone to facilitate a felony under 21 U.S.C. §§ 841(a)(1), 843(b). The court held that the indictment was insufficient because it allowed for the possibility that the defendant could have facilitated any one of one hundred and forty-two predicate felonies in six different ways. Id. at 1158. The court concluded that without a statement as to the controlled substance in question and the manner of commission, the indictment was too vague. Id. The appellant argues that the indictment in this case is deficient for the same reason.

Hinkle is not, however, the Seventh Circuit’s last pronouncement in this area. United States v. Keck, 773 F.2d 759 (7th Cir.1985), distinguished Hinkle as follows:

The indictment in this case, unlike the one involved in Hinkle, did not infringe upon defendants’ Fifth or Sixth Amendment rights. In this case, the counts alleging violations of 21 U.S.C. § 843(b) specified the type of communication facility used (a telephone), the felony facilitated (conspiracy to possess with intent to distribute and to distribute a controlled substance), as well as the dates and approximate times when the conversations occurred. Cf. Hinkle, 637 F.2d at 1158. Although the counts did not identify the controlled substances involved, they did, nonetheless, refer to the conspiracy “as charged in Count I.” ... Defendants therefore knew that the indictment charged them with using the telephone, on specific days and at specific times, to facilitate a conspiracy to possess with intent to distribute and to distribute cocaine and PCP.

Id. at 764. As in Keck, the indictment here specified in count one that the defendants, including Zavala, were charged with conspiracy to “import, distribute, and possess with intent to distribute cocaine, a Schedule II narcotic substance listed in Title 21, United States Code, Section 812.”

It is true that the substantive counts here do not specifically refer to count one, which charged the conspiracy to import cocaine. However, this is a defect of form, not substance. We must overlook such a defect where, as here, defendant challenged the indictment for the first time on appeal. United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976). We conclude, therefore, that the indictment here, although not a model, is sufficient.

Appellant next argues that there was insufficient evidence of guilt on count six. We disagree. The district court found that the purpose of the call described in the indictment was to tell the appellant that a messenger would be by to collect drug money that the appellant owed. Appellant contends that paying a debt without expectation of future dealing does not facilitate the distribution conspiracy. We doubt the premise, but, in any event, there was sufficient evidence to support the inference that the appellant was still in the cocaine business, and payment ensured that he could continue in it.

Appellant’s next contention is that the government failed to produce sufficient evidence of guilt to convict him of operating a continuing criminal enterprise as charged in count twenty-five. We reject this argument. Appellant first contends that the crimes charged in the communication counts do not meet the requirement that the defendant engage in a continuing series of violations. See 21 U.S.C. § 848(b)(2). The continuing criminal enterprise statute unambiguously provides that felony violations of the relevant subchapters will suffice. See 21 U.S.C. § 848(b)(1); see also United States v. Young, 745 F.2d 733, 750 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). Appellant was charged with and convicted of multiple illegal uses of a communication facility in violation of 21 U.S.C. § 843(b). The statute requires no more.

Resolving this argument against the appellant allows us also to dispose of his contention that the district court abused its discretion in denying a bill of particulars naming the predicate felonies for the continuing enterprise charge. See United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974). The appellant vigorously contested the communication counts, and they were central to the trial. His defense, therefore, was in no way hindered by the district court’s refusal to force the prosecution to spell out its theory in further detail, and appellant will be fully able to plead double jeopardy at any subsequent criminal trial.

Returning now to the sufficiency of the evidence on count twenty-five, appellant also argues that he is not among the class of offenders sought to be penalized for operating a continuing criminal enterprise. The government does not need to show, however, that appellant was a ringleader; rather it need only show that he organized, managed, or supervised at least five people. See United States v. Phillips, 664 F.2d 971, 1034 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). Appellant admitted that over several years he conspired with many people and was involved in distributing over thirty kilograms of cocaine valued at $1.8 million. The evidence was therefore sufficient that he was within the class of offenders.

Finally, appellant attacks his conviction on count twenty-five by arguing that he did not earn substantial income from the enterprise. See 21 U.S.C. § 848(b)(2)(B). The large amount of cocaine traded, and the selling price of over $63,000 per kilogram, are sufficient to permit the district court to infer that the appellant earned substantial income from the enterprise. We therefore turn back each of appellant’s challenges to the sufficiency of the evidence to convict on count twenty-five.

Appellant’s next contention is that all of the appealed convictions should be set aside because the district court did not order the transcription and translation from Spanish to English of each one of the thousands of phone calls intercepted pursuant to a court-ordered wiretap. Approximately 11,000 telephone conversations were intercepted. The government concluded that about 1,800 of the conversations were drug-related, and gave defense counsel transcriptions of the contents of these conversations, as well as the tapes themselves. The transcriptions were the English version of conversations that were conducted mostly in Spanish. The government provided defense counsel with the other 9,200 tapes, but no transcriptions or translations.

Appellant argues that the failure to provide defense counsel with translations of the other 9,200 conversations violated his due process and equal protection rights, citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He argues that the failure to provide translation of the other tapes prejudiced his ability to prepare a defense, in that he was unable to prove that phrases that the government alleged were code words actually had an innocent explanation. He urges that access to the other conversations would have given him this opportunity.

In the context of a case with 11,000 conversations, and a reasonable response by the court and the prosecution, this argument is frivolous. The court repeatedly offered to provide the appellant with a translator or interpreter who could sit down with defense counsel and identify any tapes that would be crucial to the defense. If any important tapes turned up, the court offered to have those tapes neutrally transcribed and translated. Defense counsel conceded that if the tapes were in English he would have had no right to a transcription. The procedures used here were reasonable and fully respected appellant’s constitutional rights.

Appellant next contends that the district court abused its discretion in not revealing the identity of the government’s confidential informant. See, e.g., United States v. Anderson, 509 F.2d 724, 729-30 (9th Cir.1974), cert. denied, 420 U.S. 910, 95 S.Ct. 831, 42 L.Ed.2d 840 (1975). Having reviewed the in camera materials submitted to the district court, we conclude that the district court was within its discretion in denying the motion for disclosure. See generally Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628,1 L.Ed.2d 639 (1957) (district court must weigh public’s interest in protecting flow of information against individual’s need to prepare his defense).

Appellant’s next challenge to his convictions is that the court failed to order the government to produce the statements of various government witnesses in their probation reports. But disclosure of the reports is not compelled by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Jencks Act, 18 U.S.C. § 3500, or Rule 16 of the Federal Rules of Criminal Procedure if the reports are in the hands of the court or the probation office. United States v. Trevino, 556 F.2d 1265, 1270 (5th Cir.1977). Here appellant has conceded that the probation department has control of all the reports, and thus none of the theories mentioned above is of any help to him. Further, Federal Rule of Criminal Procedure 32(c)(3)(E) does not ad-vanee appellant’s argument because, by its own terms, it applies only to the defendant who is being sentenced, and not codefend-ants.

Appellant’s next argument is that the district court’s quashing of subpoenas seeking to compel the attendance of thirty-six FBI agents violated his confrontation rights. Appellant contends that he lost the right to challenge the accuracy of the transcriptions of various incriminating conversations. Appellant, however, stipulated to the accuracy of the transcriptions, and therefore the district court was well within its discretion in quashing the subpoenas. See United States v. Wilson, 578 F.2d 67, 70 (5th Cir.1978).

Appellant’s final argument is that his trial on the continuing criminal enterprise count put him twice in jeopardy because he had already pleaded guilty to, and been convicted of, conspiracy to import and distribute cocaine. When appellant pleaded guilty to the conspiracy charge, however, he expressly agreed that the court should try the continuing criminal enterprise charge on the basis of stipulated facts. After the appellant was found guilty of the continuing criminal enterprise count, the district court dismissed the conspiracy count. A defendant may not raise the defense of double jeopardy to a charge on which he expressly agrees to be tried. See Ricketts v. Adamson, — U.S. —, 107 S.Ct. 2680, 2686, 97 L.Ed.2d 1 (1987).

AFFIRMED.