U.S. v. Perry

• Decision Date: 22 March 1977
• Docket Number: Nos. 75-3737,75-3738,75-3743,76-1314 and 75-3662,s. 75-3737
• Citation: 550 F.2d 524
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luttetus PERRY, a/k/a Ted Perry, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Warren Stephen BRADLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Theodore WARE, a/k/a "Teed" a/k/a "Fish", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Brian WINTERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Burke ERWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 524

550 F.2d 524

UNITED STATES of America, Plaintiff-Appellee, v. Luttetus PERRY, a/k/a Ted Perry, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Warren Stephen BRADLEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Theodore WARE, a/k/a "Teed" a/k/a "Fish", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Brian WINTERS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Burke ERWIN, Defendant-Appellant.

Nos. 75-3737, 75-3743, 75-3738, 76-1314 and 75-3662.

United States Court of Appeals, Ninth Circuit.

March 22, 1977.

Stephen W. Peterson, Asst. U. S. Atty., argued, San Diego, Cal., for plaintiff-appellee.

Edward F. Bell, argued, Bell, Gage, McSorley & Hudson, Detroit, Mich., for appellant Perry.

Howard J. Bechefsky, argued, San Diego, Cal., for appellant Ware.

Gary Ellingson, argued, San Diego, Cal., for appellant Bradley.

James N. Pendleton, argued, San Diego, Cal., for appellant Winters.

Before ELY and ANDERSON, Circuit Judges, and SOLOMON, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

On August 15, 1975, the Federal Grand Jury for the Southern District of California returned a criminal indictment charging defendants and nine others with conspiracy to illegally import heroin and cocaine (Count One), and conspiracy to possess heroin and cocaine with intent to distribute (Count Two). (21 U.S.C. 952, 960, 963, 841(a)(1) and 846).

Defendants Perry, Bradley, Ware and Winters proceeded to jury trial on October 7, 1975. Defendant Erwin waived his right to a jury trial and his case was heard by the court. At the close of the government's case the defendants moved for acquittal. The trial court granted the motion as to Count One only.

On October 31, 1975, the jury found defendants guilty on Count Two. On November 3, 1975, the trial court found defendant Erwin guilty on Count Two.

Defendants appeal their convictions, raising numerous issues to be discussed infra. Jurisdiction rests with 28 U.S.C. 1291 and 1294. We affirm as to all defendants.

Briefly, the evidence, viewed favorably to the government, shows that all of these defendants were involved in a complex and sophisticated operation involving smuggling and distribution of illegal narcotics, primarily heroin and cocaine. The narcotics originated in Mexico under the control of one Raul Leon-Aispuro. Couriers of Aispuro would then smuggle the narcotics across the border into the United States, usually Southern California. The narcotics would then be delivered to the defendants or delivered to one Edward Perry (cousin of defendant Perry), who acted as warehouseman, wholesaler and distributor. The defendants in this case played the role of satellite retailers in this operation. Some were located in different parts of the country. They obtained the narcotics either from Edward Perry himself or from couriers working for him. Other relevant facts will be presented as they relate to the issues raised.

I. VOIR DIRE OF THE JURY

During the jury selection process and after prospective jurors had been sworn, the trial court inquired of the jurors whether they would be able to follow his instructions on the law that was to govern. Juror Johnston expressed that while he would be willing to follow the law, he had already formed an opinion in the case. He felt this way from reading his morning paper and overhearing a conversation between two young ladies. When this juror expressed to the court that he felt he could not fairly try the case, he was dismissed.

Out of the presence of the jury, defense counsel requested that the court inquire of all the jurors whether they had heard any comments or remarks along those lines and, if so, what impact it would have on them as jurors.

The court responded:

"I don't propose to do that gentlemen. I think that would be making a mountain out of a molehill. I have asked them about whether they could be fair and impartial and whether they were willing to have their own case tried by jurors in the same frame of mind that they are now in. I think it would emphasize the situation and be very detrimental rather than beneficial. I think you are better off, all of us are, if we just act as if that had not happened." (R.T. 49-50).

Later, just as the jury was being excused for the day, Juror Zubricky mentioned to the court that he had overheard a man talking in the hall. Zubricky was questioned in chambers out of the presence of the jury. When asked if he had been talking to the previously-excused juror, he said no, but that he had been talking to another juror on the panel, a Barbara Van Dorn. Zubricky stated that he had "whispered" to Van Dorn that he had a daughter hooked on marijuana and that he hoped he wouldn't be picked for the jury because he "was not in favor of it at all." (R.T. 52). Zubricky stated that Van Dorn made no response, but was only listening. Zubricky was then released for cause. Defense counsel again requested that the court inquire of the jurors whether they had discussed the case or formed an opinion of the case based on anything said that day. The court refused because he didn't feel there was any reason for it. He also refused to give defense an additional peremptory challenge with which to challenge Juror Van Dorn.

Defendants ¹ now contend on appeal that the trial court committed reversible error by not making further inquiry of the jury, especially Juror Van Dorn, or giving the defense an additional peremptory challenge. Defendants also contend that the trial court erred by refusing to grant defendants' motion for a mistrial.

We find no reversible error committed by the trial judge in his handling of the voir dire of the jury. As this court stated in United States v. Silverthorne, 430 F.2d 675, 678 (9th Cir. 1970), cert. den., 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971):

"Appellate courts will not interfere with the manner in which the trial court conducted the voir dire examination unless there has been a clear abuse of discretion."

See also Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). We find no such abuse of discretion in this case which, it should be noted, does not involve substantial pretrial publicity. Compare United States v. Silverthorne, supra, with United States v. Polizzi, 500 F.2d 856, (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). The trial court went to the lengths necessary to provide a fair and impartial jury. He is the one closest to the situation and can best evaluate the proper method to determine if there is any bias or preconceived opinions held by the jury. He is best able to walk that fine line between first questioning the jury to find bias and then later specifically requestioning the jury to the extent that confusion and bias are created in the jury by suggesting the existence of controversial issues which may or may not exist. See United States v. Polizzi, supra, at 880. The record reflects that any possibility of bias or partiality on the part of any juror is at best speculative. Initially, the court properly declined to inquire of the remaining members of the jury panel whether they also overhead the ambiguous conversation alluded to by Mr. Johnston. Johnston's comment had been made in open court before the jury panel, yet failed to evoke similar reactions from others. To delve into the possibility that others might have overheard the conversation would have been a fishing expedition that would have suggested to the panel the presence of highly prejudicial information. Mr. Zubricky's subsequent comments added nothing to what the trial judge already knew about the incident in the hallway; hence, he quite appropriately maintained his opinion that no significant event of pretrial publicity had occurred. Moreover, we do not believe that the court was obligated to bring Juror Van Dorn into chambers and inquire whether she formed an opinion based upon what Zubricky had said to her. The reference to his daughter's use of marijuana did not relate to an opinion as to guilt or innocence of the defendants, but rather only concerned a personal problem unfortunately shared, perhaps, by many parents.

Thus, the trial court properly exercised his discretion in questioning the jury and denying the motion for a mistrial. The appellants were not deprived of a fair trial because of the situation presented on this record.

II. SUFFICIENCY OF THE EVIDENCE

Defendants contend that the evidence produced at trial was insufficient to establish that they participated in the single conspiracy charged in the indictment. They argue that the government has not shown that each of the defendants worked directly with each other nor even shown that all of the defendants knew each other. However, under the law of this circuit such a showing is not necessary. The government is not required to show direct contact or explicit agreement between the defendants. For the convictions to stand, the government must produce enough evidence to show that each defendant knew or had reason to know the scope of the distribution and retail organization involved with the illegal narcotics, and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture.

The instant case closely parallels United States v. Baxter, 492 F.2d 150 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). In Baxter, we dealt with a factual situation very similar to the instant case; that is, a large narcotics smuggling and distribution organization. There, as here, defendants were the retail end of the chain and they also contended that the evidence was insufficient to establish that the individual defendants participated in an overall conspiracy as charged in the indictment. In answer to this claim, we specifically stated:

". . . the Government did not, for the most part,...