United States v. Richard Kasvin

757 F.2d 887, 17 Fed. R. Serv. 993, 1985 U.S. App. LEXIS 29739

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 13, 1985
• Docket: 84-1292
• Status: Published

Opinions

DUPREE, Senior District Judge.

Richard Kasvin along with seven others was charged in Count I of a four-count indictment with conspiring to knowingly and intentionally distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 and in Count IV of the indictment with the substantive offense of possession with intent to distribute 234 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Following a directed verdict of acquittal as to Count IV Kasvin was convicted by a jury of Count I, the conspiracy count, and he appeals from a sentence of five years' imprisonment and a $15,000 fine. Finding no error in the trial, we affirm.

Six of Kasvin’s co-defendants entered guilty pleas, and he and the remaining co-defendant, Tom Galiffa, were each tried and convicted in a joint trial held in April, 1983. Shortly thereafter Galiffa appealed his conviction, but as a result of Kasvin’s post-trial motions for judgment of acquittal and in the alternative for a new trial final judgment in his case was not entered until January, 1984. Meanwhile the appeal in Galiffa’s case had been argued on November 8, 1983, and the decision was rendered on May 11, 1984 while Kasvin’s case was still pending on appeal. United States v. Galiffa, 734 F.2d 306 (7th Cir.1984). As we shall see, the decision in Galiffa provides much of the controlling law in the case at bar.

In late 1977 or early 1978 four of Kasvin’s co-defendants named in the indictment agreed to purchase, sell and distribute marijuana. Over the next five years some twenty individuals were associated with the conspiracy and were engaged in such activities as couriers, distributors, bookkeepers, drivers, warehousers and dealers. The headquarters for the operation became a house in Ingleside, Illinois. As a result of surveillance by federal law enforcement officers this house was raided on April 9, 1982 at which time defendant Kasvin and seven others were arrested inside the house. A valid search warrant produced 234 pounds of marijuana, some cocaine, an electronic scale, $10,440 in cash, narcotics paraphernalia and records of numerous drug transactions.

In order to link Kasvin to the conspiracy the government called to the stand several of his co-defendants who had entered guilty pleas and one or more unindicted co-conspirators. These witnesses testified that Kasvin was known to them as “Smith” or “Smyth”; that the persons associated with the operation were given numbers and that Kasvin’s number was 5; that No. 5 was the single largest “customer” of the business but that at' times he provided the organization with some high quality marijuana apparently obtained by him through some other source; and that for more than a year Kasvin was seen at the organization’s place of business several times weekly. A record of his phone number was kept by the organization in code.

A reconstruction of the records which the organization began keeping about July of 1981 showed that in the ensuing eight months prior to the raid on April 9, 1982 Kasvin obtained approximately 3,600 pounds of marijuana from the business and delivered to it well over $1,000,000 in cash.

At the close of the government’s evidence the district judge expressed the opinion that the evidence outlined above did not suffice to show that Kasvin was a member of the conspiracy or that he had knowingly and intentionally possessed with intent to distribute the 234 pounds of marijuana seized in the raid. Accordingly, Count IV as it related to Kasvin was dismissed, but at the same time the judge expressed the view that the evidence was sufficient to go to the jury on the question of whether Kasvin was guilty of aiding and abetting the conspiracy. He therefore declined to dismiss Count I.

The defendants on trial, Kasvin and Galiffa, offered no evidence, and the case was submitted to the jury on Counts I and IV against Galiffa and Count I (the conspiracy count) against Kasvin. On Count I the jury was instructed as follows:

* In order to establish the offense of conspiracy the government must prove these elements beyond a reasonable doubt: (1) that the alleged conspiracy existed, and, (2) that the defendant knowingly and intentionally became a member of the conspiracy.

A conspiracy is a combination of two or more persons to accomplish an unlawful purpose. A conspiracy may be established even if its purpose was not accomplished.

In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants.

In determining whether the defendant became a member of the conspiracy you may consider only the acts and statements of that particular defendant.

To be a member of a conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. A defendant need not personally perform all the acts alleged in Count 1. The government must prove beyond a reasonable doubt, from the defendant’s own acts and statements, that he was aware of the common purpose and was a willing participant.

Section 846 of Title 21 of the United States Code, which is the section under which Count 1 is brought, provides in pertinent part:

“Any person who conspires to distribute or possess with the intent to distribute a controlled substance commits an offense against the United States.”

You are instructed as a matter of law that marijuana is a Schedule i controlled substance. It is not defined as a narcotic drug in the statute.

Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate himself with the criminal venture, participate in it, and try to make it succeed.*

** You are instructed that the mere relationship of a buyer and seller of drugs does not alone establish a conspiracy.

While the relationship of buyer and seller is insufficient to make the buyer a conspirator with the seller, a buyer and seller in marijuana transactions can be conspirators together if they have an agreement-to act in concert. This agreement can be proven by circumstantial evidence.

Presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish the defendant’s guilt.**¹

After several hours of deliberations the jury returned the following verdict as to defendant Kasvin:

We, the jury, find the defendant, RICHARD KASVIN, GUILTY as charged in Count One of the indictment.

As previously stated, the case was submitted to the jury only on Count I as to Kasvin. The jury returned a guilty verdict against Galiffa as to Counts I and IV.

On appeal Kasvin asserts as error the trial court’s instructions to the jury on aiding and abetting the conspiracy and the admission of the records kept by the conspirators under an exception to the hearsay rule.²

INSTRUCTION ON AIDING AND ABETTING

The decision in the case of Kasvin’s co-defendant, United States v. Galiffa, 734 F.2d 306 (7th Cir.1984), established the following principles of law which apply with equal force in this case:

1. A defendant can be convicted of aiding and abetting a conspiracy for deeds other than acting as a liaison for the parties to the conspiratorial agreement provided the defendant has knowledge of the conspiracy’s existence at the time of his act.

2. One can aid and abet a conspiracy without necessarily participating in the original agreement.

3. The charge of aiding and abetting under 18 U.S.C. § 2(a) “need not be specifically pleaded and a defendant indicted for a substantive offense can be convicted as an aider and abettor” upon a proper demonstration of proof so long as no unfair surprise results.

4. No fatal amendment to an indictment occurs where a defendant may have been convicted as a principal in a conspiracy by aiding and abetting it even though he was not charged with aiding and abetting in the original indictment.

In order to determine the applicability of these principles to the case at hand it is necessary to make only two factual inquiries: Whether Kasvin knew of the conspiracy’s existence at the time of his acts and whether his acts aided and abetted the business of the conspiracy. In our view the evidence overwhelmingly supports an affirmative answer to each of these inquiries. For several years he had visited the headquarters of the conspiracy several times weekly, had been assigned a number just as some of the admitted members of the conspiracy had been assigned, his telephone number had been encoded, on occasion he provided the organization with marijuana for use in its business, his transactions with the conspiracy ran into hundreds of thousands of dollars annually but unlike an ordinary customer of a .business, he simply picked up quantities of marijuana from headquarters, presumably disposed of it through a distribution network, and brought the money back from time to time in amounts which, so far as the records show, bore no definite relationship to the amounts of marijuana carried away at any particular time. To suggest in the face of this evidence that he was not aware of the conspiracy’s existence would be to ascribe to him a naivete seldom seen in participants in a criminal venture of this magnitude. It is equally obvious that as a link in the distribution chain Kasvin not only aided and abetted the criminal operation but was indeed essential to its success.

At the time Kasvin’s brief was filed in this court Galiffa had not been decided but following its decision a reply brief was filed in which it was stated:

Although Kasvin and his counsel continue to regard [the principles enunciated in Galiffa ] as erroneous, they do not expect one panel of this court to overrule a decision rendered by another panel. A petition for en banc consideration, if necessary, is, counsel recognize, the only means to revise the Galiffa opinion.

At the time counsel continue to argue that Galiffa is not dispositive of this case. Unlike Galiffa, so the argument goes, the trial judge in this case found that Kasvin was not a member of the conspiracy, and he was acquitted by the judge on the possession charge contained in Count IV of the indictment. Moreover, the argument continues, one does not aid and abet a conspiracy simply by purchasing the illegal product which the conspirators have for sale. The argument is flawed in several respects.

In the first place, it assumés that the trial judge ruled as a matter of law that Kasvin was not a member of the conspiracy. He did not. Apparently the judge interpreted the evidence to show only that Kasvin was an independent dealer in marijuana whose relationship to the conspiracy was simply that of buyer and seller. The case was submitted to the jury, however, on instructions which, as we have seen, permitted the jury to find Kasvin guilty of the crime of conspiracy as charged in Count I of the indictment as well as aiding and abetting the conspiracy, and the general verdict returned simply found Kasvin guilty of conspiracy as charged in Count I.³

While we agree that the evidence was susceptible of the interpretation apparently placed upon it by the trial court, in our view it was equally open to the interpretation that Kasvin was indeed a member of the conspiracy itself. The jury was not obliged to accept Kasvin’s characterization by some of the witnesses as a “customer” of the organization but was at liberty to draw what seems to us to be the equally plausible inference based on the frequency of his contacts with the organization, the use of a number and one or more aliases to identify him on the books, the fact that he sometimes furnished substantial quantities of marijuana to the organization, and the nature and extent of the so-called “credit transactions” that this man was no arms-length customer in the usual sense but was in fact one of the principals in the drug distribution ring.

On the other hand, if the jury simply regarded Kasvin as a major customer of the ring, it was fully justified in finding that he associated himself with the criminal venture, participated in it as something he wished to bring about and sought by his actions to make it succeed. It is difficult to imagine what greater contribution Kasvin could have made to the financial success of the venture than by becoming its largest regular customer. In short, if he was not a member of the conspiracy, he was clearly an aider and abettor of it.

The remaining arguments of the defendant have been disposed of in the case of Kasvin’s co-defendant, Galiffa, which, it will be recalled, involved the identical instructions under consideration here. United States v. Galiffa, 734 F.2d 306, 309-313 (7th Cir.1984).⁴

THE BUSINESS RECORDS

Approximately nine months prior to the raid in which defendants were arrested on April 9, 1982 the organization began keeping records of marijuana purchases and sales. These records consisted of receipts and disbursements showing incoming and outgoing shipments of marijuana and payments made in connection with the transactions. These records were entered in a general ledger by one of the defendants named in the indictment, Kathryn Rodger, a girlfriend of another of the conspirators, Stuart Ashenfelter, who, with another co-defendant, Leroy Schubert, headed up the conspiracy. Among these records were numerous receipts showing transactions between a “No. 5” and the organization, and other witnesses had identified Kasvin as being No. 5.

Following extensive questioning of Ashenfelter by counsel for the government and defendant Kasvin the trial judge found the records to have been made and kept in the course of a regularly conducted business activity by a person with knowledge as a regular practice of the business activity and that the records were trustworthy for the purpose for which they were offered. (Tr. pp. 330-332.) The records were therefore admitted as business records under Rule 803(6) of the Federal Rules of Evidence, and upon the further finding that the provisions of Rule 803(24) had been satisfied, the trial judge assigned this rule as an additional basis for admitting the records.⁵

On appeal Kasvin, while conceding that records are no less admissible because they reflect illegal transactions, see United States v. McPartlin, 595 F.2d 1321, 1349 (7th Cir.1979), strenuously contends that the records were shown not to have been reliable and that the trustworthiness requirements of Rule 803(6) and 803(24) were not satisfied. In support of this contention Kasvin points to Ashenfelter’s testimony that at times the records were made by persons who may have been under the influence of cocaine; that it is probable that the records contained errors; that even if his girlfriend, Rodger, who lived in the house with him at the organization’s headquarters, had made errors in keeping the records, she would not have been subject to discharge; that Ashenfelter himself was mistaken as to the number assigned to Kasvin on the books; that “there was no consistency of records as ordinarily found or supposed to be found in a legitimate business;” and that they were not regarded by Ashenfelter himself as being reliable.

It appears, however, that on voir dire examination by the government Ashenfelter admitted that while he didn’t keep the records for income tax purposes, he did keep them to show the amount of money owed by people to whom he distributed marijuana; that when errors were found that “hopefully they were corrected;” that the records were kept to show receipts of large sums of money as well as payments made by the organization to suppliers; and that the records would more accurately reflect the quantities of marijuana which passed through the headquarters than would Ashenfelter’s memory.

Under Rule 104 of the Federal Rules of Evidence preliminary questions concerning the admissibility of evidence are determined by the court. The focus of the business records exception under Rule 803(6) is the requirement that the record be made in the course of and as a regular practice of a regularly conducted business activity. United States v. Licavoli, 604 F.2d 613, 622 (9th Cir.1979). Business records may be excluded in the trial court’s discretion if the source of information or the method or circumstances of preparation indicate lack of trustworthiness. United States v. Patterson, 644 F.2d 890, 900 (1st Cir.1981). Rule 102, F.R.E., requires that the Rules of Evidence be construed “to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” We hold that the evidence in this case fully justified the finding by the trial court that all the requisites of Rule 803(6) were satisfied, and the records in question were properly admitted. United States v. Hedman, 630 F.2d 1184, 1197 (7th Cir.1980). This conclusion makes it unnecessary to consider and decide the admissibility of the records under Rule 803(24).

In summary, we hold that Kasvin was properly convicted under the general verdict either as a member of the drug ring conspiracy or as an aider and abettor of the same and that there was no error in the admission of the business records of the organization. The judgment of conviction is therefore

AFFIRMED.

1 . That portion of the instructions between the single asterisks was tendered by the government. The portion between the double asterisks was tendered by defendant Kasvin. It was at the suggestion of counsel for Kasvin at the charge conference that the two were combined by the court and submitted to the jury.

Mr. Turn-: They are going to argue [the government’s theory] and we are going to argue different. I think the court has picked up on our concern. The court will be telling them all the circumstances they can use in finding a conspiracy. That is for them to decide based on the arguments and the evidence.

2 . Prior to the submission of the case to the jury the government continued to insist, and correctly so, we think, that the evidence would fully support a finding that Kasvin was a member of the conspiracy. Tr. pp. 504-506, 552. Without differentiating between the two defendants on trial one of the government’s attorneys (with the court's permission, Tr. p. 507) argued this theory to the jury while the other argued the aiding and abetting theory.

3 . Since the evidence previously summarized fully supported both theories, the problem of a judicial amendment of the indictment dealt with in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), does not arise in this case.

4 . As additional support for his argument Kasvin repeatedly calls attention to the fact that Count IV, the possession count, was dismissed at the close of the government’s evidence. While the correctness of this ruling is not before us, in view of our finding that the evidence was sufficient to show Kasvin's membership in the conspiracy, it follows that the count should have been submitted to the jury at least under the principle established in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Kasvin's reliance on this questionable ruling in his favor is therefore misplaced.

5 . In conformity with his view that the evidence failed to show Kasvin a member of the conspiracy the trial judge was careful to exclude as against Kasvin all hearsay statements of alleged coconspirators tending to link him with the conspiracy. Rule 801(d)(2)(E), F.R.E.