United States v. Leo Spanos

KILKENNY, Circuit Judge

(dissenting) :

INDEPENDENT EVIDENCE

Godwin, an unindicted co-conspirator who had been dealing in illegal drugs for a number of years, testified for the government. His testimony is summarized as follows: Prior to October, 1969, he had been acquainted with appellant for a period of approximately one and one-half years and during that period of time he had occasionally made trips to the San Francisco area and purchased “pills” 1 from appellant. Godwin resided in the Central District of California. Appellant resided in San Carlos, near San Francisco, in the Northern District of California. Generally, Godwin commuted between the Los Angeles area and the San Francisco area by plane. All advance arrangements for purchase of the “pills” were made by telephone. In October, 1969, Godwin made an arrange-

On November 4, 1969, after a telephone arrangement, Godwin made another trip by private plane from the Los Angeles area to the San Francisco Bay area with undercover agent Ozment to pick up 100,000 “pills”. Godwin left the agent at a restaurant and went to appellant’s home in San Carlos to obtain the pills. Delivery was not made on account of disagreement as to the financial arrangements or purchase price.

On November 19th, by pre-arrangement, Godwin again flew to San Carlos with undercover agent Ozment and another. He left Ozment at a restaurant and drove to appellant’s home. Appellant said that he did not then have the 100,-000 whites as ordered by phone three days previously. This provoked Godwin and he told appellant that he was tired of running back and forth and that appellant would have to personally explain to Godwin’s purchasers, who were waiting in the restaurant. They drove to the restaurant and there appellant was introduced to Ozment. Godwin did not recall the details of the converstaion. Ozment testified that appellant took him outside and pointed out several parked cars which he thought were “following me”. They had a conversation in which Ozment told appellant that he had made the previous purchase and liked the merchandise. Appellant responded by saying that the merchandise he then had for sale was the same as the last time, carrying the same labels, but that he did not want to do business at that time because he knew he was being followed.

Later, on November 26th, the agent Herring was present at Godwin’s home *1019 when Godwin again called appellant and asked if he was going to do any more business and for how long. They agreed to talk again on the following Tuesday. During all this period agent Herring was playing the role of a large narcotics dealer in Los Angeles, while agents Ozment and others were playing the role of acting as Herring’s bodyguards.

The above establishes, either directly or in the circumstances of the case, that: (1) Godwin, the co-conspirator, was a dealer in illegal drugs; (2) appellant was a dealer in illegal drugs; (3) that appellant and Godwin had known each other over a year and a half; (4) that appellant was at least one of Godwin’s suppliers; (5) that appellant knew that Godwin was selling the drugs in the Los Angeles area; (6) that the relationship between appellant and Godwin was a continuing one; (7) that the quantity of drugs involved required appellant to know that Godwin was disposing of them to third persons. Common sense teaches that Godwin and the undercover agents would not have been flying back and forth between the Los Angeles and San Francisco area if some definite arrangement did not exist between Godwin and appellant.

CONCLUSIONS

The principal thrust of the majority opinion is that the evidence implicating appellant independent of Godwin’s extrajudicial declarations, is insufficient to establish the concert of action between appellant and Godwin necessary to authorize the admission of the declarations. It is well settled that once a concert of action is independently shown, Lutwak v. United States, 344 U.S. 604 , 73 S.Ct. 481 , 97 L.Ed. 593 (1953), hearsay statements made in furtherance of the relationship are admissible.

At the outset, it was the judge’s duty to determine the admissibility of the declarations. In making this determination, the test is not whether appellant’s connection with Godwin had, by independent evidence, been established beyond a reasonable doubt, but whether accepting the independent evidence as credible, the judge was satisfied that a prima facie case had been made. Subsequently, it is the function of the jury to decide whether the evidence, including the declarations, is credible and convincing beyond a reasonable doubt. Carbo v. United States, 314 F.2d 718, 736-737 (9th Cir. 1963).

The participation in the venture which a conspirator wishes to bring about, or seeks by his action to make succeed, as outlined in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), upon which appellant relies, may be shown by possession of the subject matter of the illegal transactions, plus participation in the proceeds thereof. This is made clear in United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), in which Peoni is placed in proper perspective, and Carbo is cited with approval. Ragland emphasizes that an otherwise innocent act of a relatively slight moment may, when viewed in the context of surrounding circumstances, justify an inference of complicity. Ragland, supra, 375 F.2d p. 478. In speaking of Judge Hand’s decisions on the subject, the Second Circuit in United States v. Geaney, 417 F.2d 1116, 1119 (1969), said:

“What has been left in some doubt, both in Judge Hand’s opinions and in later ones for this court, is the quantum of such evidence that will suffice. In United States v. Ross, 321 F.2d 61, 68 (2d Cir.), cert. denied, 375 U.S. 894 , 84 S.Ct. 170 , 11 L.Ed.2d 123 (1963), we said, in an opinion by the writer, that ‘the amount of proof aliunde as to the existence of a conspiracy that is required to render such evidence admissible is not as high as the amount needed to warrant submission of a conspiracy charge to the jury’ — without stating, however, just how ‘high’ it must be. And in United States v. Ragland, 375 F.2d 471, 477 (2 Cir. 1967), cert. denied, 390 U.S. 925 , 88 S.Ct. 860 , 19 L.Ed.2d 987 (1968), Judge Waterman wrote that ‘The threshold requirement for admissibility is satisfied by a showing of *1020 a likelihood of an illicit association between the declarant and the defendant although it might later eventuate that evidence so admitted proves to be insufficient to justify submitting to the jury the issue of defendant’s alleged guilty involvement with the declar-ant.’ ”

We recently held in United States v. Castanon, 453 F.2d 932 (9th Cir., Jan. 5, 1972), that circumstantial evidence is sufficient to establish a conspiracy. The same rule is stated in Ragland, supra, and Nelson v. United States, 415 F.2d 483, 487 (5th Cir. 1969). In United States v. Nelson, 419 F.2d 1237, 1239 (9th Cir. 1969), we adhered to the long established rule in this circuit that circumstantial evidence is not inherently less probative than direct evidence.

In my opinion, the direct and circumstantial evidence, including the inferences to be drawn therefrom, is clearly sufficient to establish a prima facie case of a conspiracy between appellant and Godwin to violate the law as charged in the indictment.

At first glance, Direct Sales Co. v. United States, 319 U.S. 703 , 63 S.Ct. 1265 , 87 L.Ed. 1674 (1943), might seem to support appellant’s position. However, what was said along that line is mostly dicta. The Supreme Court, in its final analysis, there held that there was sufficient evidence to establish a conspiracy.

United States v. Peoni, supra, as analyzed in Ragland , does not fit our facts and is no longer a controlling precedent, except in the very narrow field to which it directly applies. As emphasized in Ragland , Judge Hand’s opinions [including Peoni] left in doubt the quantum of the evidence that would suffice as the basis for the introduction of hearsay testimony. In Peoni , Judge Hand was speaking of all the evidence, including the out-of-court declarations when he said, “The accused must ‘in some sort associate himself with the venture, . . participate in it as in something that, he wishes to bring about . . . [or] seek by his action to make it succeed.’ ” If, as in Peoni , the out-of-court declarations of Godwin are here considered, there is no question but that appellant did associate himself with the venture, participate in it and by his actions attempted to make it succeed. Neither is United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963), of any help to appellant. There, the appellant displayed some knowledge of the conspiracy, met with some of the conspirators, discussed the problems in selling imported heroin and declined to participate because he was already in trouble with the law. He agreed to a second meeting, but again refused to participate. On the occasion of another meeting, he said that he might be able to help, but was never heard from again. Needless to say, that factual background cannot logically be compared with the one before us. Moreover, as I read the Cianchetti decision, the question of whether the evidence presented a prima facie case for the admission of extrajudicial statements was not involved. The issue there discussed was whether the evidence was sufficient to show guilt beyond a reasonable doubt, after trial by a jury.

A prima facie case having, I believe, been established, the out-of-court statements of Godwin implicating appellant in' an agreed plan for the wholesale distribution of prohibited stimulant drugs in the Los Angeles area, as testified to by the undercover agents, are admissible. When supplemented with these statements, the evidence leaves no doubt of the appellant’s guilt. I need not extend the record by outlining the substance of Godwin’s out-of-court statements. Even appellant does not argue that the evidence is insufficient if the out-of-court statements are to be considered.

Appellant also contends that he was prejudically affected by the reference at trial to the co-conspirator’s dealings in narcotics, such as heroin and cocaine. He argues that these drugs were not here involved and that the jury could well have been inflamed against him by hearing references made to those drugs. The record indicates that the co-conspirator *1021 desired to get out of the amphetamine business and into hard narcotics. I have read the record pertaining to the issue and feel that the introduction of this evidence was within the confines of permissible procedure. It placed before the jury a complete picture of the co-conspirator’s activities and background. Beyond that, a considerable part of the testimony concerning the co-conspirator’s activities in narcotics was placed in the record by appellant’s own counsel. At no time did the government infer that appellant was trafficking in heroin and cocaine. In these circumstances, the error, if any, was harmless within the meaning of Rule 52(a), F.R.Crim.P. Castro v. United States, 296 F.2d 540 (5th Cir. 1961) and Daily v. United States, 293 F.2d 33 (9th Cir. 1961) are readily distinguishable and do not deserve comment. Nor do I find anything in United States v. DeCicco, 435 F.2d 478 (2d Cir. 1970), which would require me to arrive at a different conclusion. Simply stated, appellant’s cases are not in point.

The judgment appealed from should be affirmed.

. Amphetamine Tablets. ment with appellant to purchase 50,000 amphetamine tablets. He made the trip to San Carlos and accepted delivery of the pills at appellant’s home. By prearrangement, these pills were sold by Godwin to government undercover agent Herring for $2,000.00. The sale was made in the Los Angeles area. This trip was made by private plane.