United States v. Smith

609 F.2d 1294
Court of Appeals for the Ninth Circuit·Decided November 21, 1979·No. Nos. C.A. 78-1532, C.A. 78-1549 and C.A. 78-1620·Published·Cited by 41 cases

Opinions

GORDON THOMPSON, Jr., District Judge:

Arden Lee Smith, also known as Alfredo Lama (Lama), Leroy Jones, and John Doe Curley, also known as Ernest Crayton (Crayton), appeal their convictions under 21 U.S.C. § 846 (1976) for conspiracy to possess heroin and cocaine with intent to distribute. The issues concern (1) the sufficiency of the [1297] evidence to support their convictions and, as a related matter, the district judge’s refusal to sever their trials, (2) the admissibility of certain hotel receipts and an American Express card, and (3) the government’s failure to abide by the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962). We affirm.

The case involves a large drug operation in which eighteen defendants participated. The trial court ordered a severance, and the defendants were tried in three separate proceedings. The government’s principal witnesses at the trial of these appellants were Steven Smith and Bobbi Herrin, who participated in the conspiracy. Smith dealt in marijuana and, through Herrin, met Lama at the Americana Hotel in Nogales, Arizona, in October, 1973. At that meeting, Lama agreed to supply Smith with heroin and cocaine.

Within a short time, Smith became a middleman for Lama, distributing narcotics supplied by Lama to retail dealers in Phoenix and Los Angeles. Jones, who worked with one Elmer Weaver, carried on retail dealings in Phoenix. Crayton ran the Los Angeles retail operation. Lama also supplied drugs to Fred Pedote, a retailer in Chicago.1 Smith was introduced to Cray-ton, Jones, and Weaver by Lama at various meetings in hotels in Los Angeles and Tucson. By the time of his arrest in June of 1974, Smith had sold more than $120,000 in heroin and cocaine to Weaver and $40,000 to $50,000 in narcotics to Crayton. R.T. 327 — 28. Herrin’s testimony corroborated Smith’s statements that meetings took place at hotels at which narcotics transactions among Lama, Smith, and one or another of the retailers took place. Herrin also testified that she, acting as a distributor for Lama, had engaged in at least ten to fifteen heroin transactions with Weaver from March to September, 1974.

SUFFICIENCY OF THE EVIDENCE AND SEVERANCE

A. The Appropriate Test.

Jones2 does not argue that initial joinder under Fed.R.Crim.P. 8 was improper. See United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir. 1979). He maintains, however, that the evidence showed three conspiracies — between Lama and Jones, between Lama and Crayton, and between Lama and Pedote — rather than the single conspiracy charged in the indictment. Therefore, he says, evidence as to the Lama-Crayton and the Lama-Pedote conspiracies should not have been admitted in a trial of the Lama-Jones conspiracy. The variance between the indictment and the proof at trial, he claims, thus prejudiced him, and the trial court abused its discretion under Fed.R. Crim.P. 14 in refusing to sever his trial. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Jones also argues the evidence was insufficient to support the conviction.

The trial court did not err under Rule 14 if the government produced sufficient evidence for the jury to conclude the defendant was guilty of the overall conspiracy charged in the indictment. See United States v. Kearney, 560 F.2d 1358, 1362-63 (9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). The question is whether the government met that standard. To produce sufficient evidence, the government need not provide direct evidence that the defendant had an illegal agreement with the other alleged co-conspirators. See Iannelli v. United States, 420 U.S. 770, 777 n.10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Rather, the test is whether the government has produced enough evidence for a fact-finder to conclude beyond a reasonable doubt 1) that the charged conspiracy existed, 2) that the defendant had at least a slight connection to it, and 3) that the defendant knew he was connected to the charged conspiracy. See United States v. [1298] Eaglin, 571 F.2d 1069, 1976-77 (9th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Dunn, 564 F.2d 348 (9th Cir. 1977). Whether the government has produced sufficient evidence depends on all the facts. See United States v. Direct Sales Co., 319 U.S. 703, 709-15, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir. 1977).3

Jones suggests that in United States v. Baxter, 492 F.2d 150 (9th Cir.) cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), this circuit established a different test for proof of the defendant’s participation in the charged conspiracy.4 The defendants in Baxter were retailers in a scheme to distribute narcotics from Mexican suppliers through American dealers. Since the government could not prove an illegal conspiracy with direct evidence, it relied on circumstantial evidence. On appeal, the defendants claimed this evidence was insufficient to support their convictions; they also argued that the district judge’s failure to sever their trials constituted reversible error.

The court affirmed the convictions of all defendants. It stated,

even though the defendant retailers did not directly conspire with each other in this over-all undertaking, if each knew, or had reason to know, that other retailers were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture, the jury could find that each had, in effect, agreed to participate in the over-all scheme. This would be true even though the individual defendants were not aware of the identity, number or location of the other participating retailers.

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United States v. Smith, 609 F.2d 1294 (9th Cir. 1979).

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