United States v. Ellsworth

Decision Date31 July 1973
Docket NumberNo. 72-2735,72-2992.,72-2735
Citation481 F.2d 864
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Allen G. ELLSWORTH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan DE LA TORRE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

S. Thomas Pollack, Deputy Federal Public Defender (argued), Los Angeles, Cal., for Allen G. Ellsworth.

Roger S. Hanson (argued), Beverly Hills, Cal., for Jaun De La Torre.

Mike Kenney, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Leslie E. Osborne, Eric A. Nobles, William R. Hawes, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH and TRASK, Circuit Judges, and HARRIS,* District Judge.

Rehearing Denied in No. 72-2735 July 31, 1973.

GEORGE B. HARRIS, District Judge:

On May 17, 1972, appellants and others were named in a six-count indictment charging conspiracy to distribute a controlled substance and substantive offenses of distribution of a controlled substance. Appellants were each charged in Count I only, the conspiracy count. Following trial by jury, appellants were convicted.

The facts pertinent to these appeals are as follows: One Rip Palmer, who was employed by appellant Ellsworth at American-Balboa Glass in Costa Mesa, California, became aware sometime before March of 1972 that two of the other co-defendants, Aragon and Lovato, were engaged in the sale of narcotics. Palmer, who had a prior criminal record, thereupon contacted the Costa Mesa Police Department and offered to serve as an informant.

During March, Palmer, acting as an informant, met with Aragon and Lovato for the purpose of discussing possible sales of heroin and cocaine. Near the end of March, Aragon gave Palmer a sample of heroin to present to his (Palmer's) "people." A meeting between Aragon, Palmer, and undercover narcotic agents occurred on March 28 at which time future sales of heroin were discussed. There was a sale of heroin at that time.

A meeting took place on April 6 at the American-Balboa Glass Company between Lovato, Palmer, and two undercover agents for the purpose of arranging a future sale.

Another meeting between Lovato, Palmer, and the undercover agents occurred on April 11 at the Age of Gardner Restaurant. After making arrangements from the restaurant to pick up narcotics from his supplier, Lovato left, later to return with the narcotics, at which time a sale was consummated.

The next sale occurred approximately on April 19 at the El Comedor Restaurant. Palmer testified that during negotiations for this sale Lovato said that he had to call his "connections" and subsequently he dialed telephone number 543-9302 and asked for "Juanito or Doroteo." Palmer also testified that after the phone call, Lovato left to pick up the narcotics.

A Government witness at trial identified telephone number 543-9302 as being that of the El Valle Restaurant in Garden Grove, California. This restaurant was owned by one Doroteo De La Torre, and appellant Juan De La Torre was employed there at the time.

Another Government witness, Agent Larry Barnes of the Federal Bureau of Narcotics and Dangerous Drugs BNDD, testified that at the time of the April 19 sale, he observed appellant De La Torre operating the cash register and performing other duties in the restaurant. After the restaurant closed, Barnes observed Lovato meet with appellant De La Torre and hand him a roll of American currency.

Other evidence adduced at trial showed that on April 11, 1972, a date when narcotics transactions involving the conspirators were taking place, Officer Casey of the Costa Mesa Police Department observed Lovato visit appellant De La Torre and the El Valle Restaurant. Agent Levesque of BNDD testified that on March 28, 1972, a date when Aragon was engaged in a narcotics transaction, he surveilled Aragon going to and from the El Valle Restaurant.

On April 27, Aragon met with Agent Creason of BNDD for the purpose of negotiating a sale of heroin. Arrangements for delivery of the heroin were made on May 1 and the sale of 113 grams of heroin was consummated on May 2 between Aragon and Agent Creason. Following this sale, surveillance officers observed Aragon delivering a sum of money to appellant De La Torre at Aragon's El Comedor Restaurant.

On May 4, Agent Creason met with Aragon at the Holiday Inn in Los Angeles to discuss the quality of heroin Aragon had sold to Creason on May 2 and possible future transactions.

When Aragon arrived at the meeting he was accompanied by appellant Ellsworth, who was introduced to Creason as Aragon's source of supply for narcotics. Creason indicated that he was dissatisfied with the quality of heroin sold to him on May 2 and that he was not going to pay for it. Ellsworth then said that he had purchased and supplied to Aragon the four ounces of heroin purchased on May 2. Ellsworth also stated that he had purchased the heroin from his source with the understanding that it had not been "stepped on" or diluted.

Upon learning for the first time that Ellsworth was Aragon's source of supply, but suspecting that this was not true, Creason expressed his disbelief that Ellsworth was in fact Aragon's source of supply for the heroin sold him on May 2. Confronted with Creason's disbelief, Ellsworth nonetheless insisted that he was indeed Aragon's source of supply and that he had supplied him with the heroin which Creason had purchased on May 2. Later, however, when Ellsworth was not present, Aragon told Creason that he was merely passing off Ellsworth as his source for the heroin sold on May 2.

When Ellsworth was again present, Creason complained about the quality of the heroin purchased on May 2. Both Ellsworth and Aragon promised that they would attempt to provide him with higher grade heroin in the future, and boasted of the ability to deliver multikilogram quantities of narcotics. Arrangements were then made for the sale of narcotics on May 8, 1972. Catalina was agreed upon as the place of delivery because defendant, who volunteered that he was a pilot, could fly the narcotics there.

On May 8, Creason talked to Aragon about the proposed transaction discussed at the May 4 meeting. Alternative plans were made. Aragon said that he had a substantial quantity of heroin at his restaurant and that Creason should come there to get it. Creason went to the restaurant where Aragon and acquitted defendant Hernandez were present. The sale was consummated and the defendants thereafter arrested.

ELLSWORTH

Ellsworth raises several issues on appeal, each of which will be discussed.

1. Scope of Examination

At trial, Ellsworth testified on direct examination that he took part in the meeting with Agent Creason on May 4, but contended that he did so only out of curiosity and to back up his friend, Aragon. He also disclaimed knowledge of the conspiracy, stating:

Q. At any time prior to that May 4 meeting, did you meet with anybody, any of the agents who have testified here or any of the other defendants for the purpose of engaging in the sale of narcotics?
A. No.

On cross-examination by Government counsel, the following similar colloquy occurred:

Q. Did you in response to Mr. Pollack defense counsel say that you had never discussed narcotics with any BNDD agent or anyone other than Mr. Creason on May the 4th?
A. To the best of my knowledge, yes.
Q. And you in fact said that to Mr. Pollack?
A. I believe that was his statement.
Q. Do you know Mr. Larry Barnes?
A. No sir, I do not.
Q. Do you recall Agent Barnes testifying here, yesterday?
A. Oh, yes. Excuse me.
Q. Have you ever seen Mr. Barnes before?
A. Not to my knowledge, no.
Q. Do you recall meeting Mr. Barnes on March the 15th?

At this point defense counsel objected, claiming that the inquiry was beyond the scope of the conspiracy charged. The district court ruled, however, that with a proper foundation as to Ellsworth's understanding of the term "narcotics," the question was proper cross-examination.

After such a satisfactory foundation was established, Government counsel proceeded to cross-examine Ellsworth. Ellsworth could not recollect whether he had discussed marijuana on March 15th with Agent Barnes and could not even recollect Barnes. He admitted that he might have engaged in "idle chatter" with Aragon concerning the importation of marijuana, but reaffirmed that he did not know Agent Barnes.

In rebuttal, Agent Larry Barnes of the BNDD stated that he knew Ellsworth because he had met with him on March 15, 1972, to discuss the possible smuggling of marijuana into the United States.

This impeachment of Ellsworth was proper. The court permitted cross-examination of Ellsworth concerning the denial of any previous dealings with narcotics only after it was satisfied that Ellsworth considered marijuana an illegal substance. Once this foundation was established, Government counsel could properly cross-examine Ellsworth concerning conversations prior to May 4, 1972, as to the importation of marijuana because defense counsel had "opened the door" on direct examination of Ellsworth.

In addition, such testimony was admissible for impeachment as an earlier inconsistent statement.

2. Disclosure of Exculpatory Material

Ellsworth contends that subsequent to trial his counsel learned for the first time that Officer Casey of the Costa Mesa Police Department, who was an investigator in the case and a Government witness, was of the opinion that Ellsworth was not conspiring to sell heroin, had not in fact sold heroin, and had been tied into the charged offense by reason of doing a favor for a friend (Aragon). This information was raised in support of the motion for new trial, both as new evidence and as evidence that the Government failed to comply with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The motion was denied by the district court.

In addition, a...

To continue reading

Request your trial
17 cases
  • U.S. v. Kearney, s. 76-1320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 22, 1977
    ...v. Hobson, 519 F.2d 765, 775 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975), quoting United States v. Ellsworth, 481 F.2d 864, 869 (9th Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973). Here, the evidence is clearly sufficient to show one ......
  • U.S. v. Jackson, s. 76-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 8, 1977
    ...United States v. Evans, 526 F.2d 701 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976); United States v. Ellsworth, 481 F.2d 864 (9th Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973); United States v. Nakaladski, 481 F.2d 289 (5th Cir.), cert. ......
  • U.S. v. Pheaster, s. 75-1004 and 74-3308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 19, 1976
    ...be inadmissible under the hearsay rule. See, e. g., United States v. Calaway, 524 F.2d 609, 612 (9th Cir., 1975); United States v. Ellsworth, 481 F.2d 864, 870-871 (9 Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973); Carbo v. United States, 314 F.2d 718, 735-736 (9 Ci......
  • U.S. v. Moore
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 19, 1975
    ...94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), and if there is substantial independent evidence that the conspiracy existed. United States v. Ellsworth, 481 F.2d 864, 870-71 (9th Cir.), Cert. denied,414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973); United States v. Spanos,462 F.2d 1012 (9th Cir. 19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT