U.S. v. Flickinger, s. 76-2656

Citation573 F.2d 1349
Decision Date24 March 1978
Docket NumberNos. 76-2656,76-3483 and 76-2655,76-2989,s. 76-2656
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daniel Newton FLICKINGER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John H. MUNIER, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert William McLAUGHLIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stanley David HAYDUK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert N. Peccole, Las Vegas, Nev., for Hayduk.

Oscar B. Goodman, Las Vegas, Nev., for Flickinger.

Jeffrey D. Sobel, Las Vegas, Nev., for Munier.

Albert G. Freeman, Jr. (appeared), Tucson, Ariz., for McLaughlin.

Philip M. Pro, Asst. U. S. Atty. (appeared), Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before KOELSCH, DUNIWAY and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Flickinger, Munier, McLaughlin and Hayduk were each convicted following a non-jury trial of conspiracy to import a controlled substance and to possess a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846, 952 and 963; importation of a controlled substance in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; and possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal, they raise several contentions concerning the admission of evidence at trial. They also challenge the validity of the indictment under which they were charged. We affirm.

I.

In late June 1975, agents of the Drug Enforcement Administration (DEA) began a surveillance of Flickinger and his Chevrolet Suburban. The surveillance was soon broadened to include three additional individuals, Munier, McLaughlin, and Hayduk, and two additional vehicles, another Chevrolet Suburban (the second Suburban) and a white pickup truck fitted with a camper top.

On July 11 and 12, DEA agents observed a series of events pertaining to the two Suburbans and the pickup. On July 11, Flickinger, Munier, and McLaughlin were seen taking the second Suburban to a tire store in Las Vegas where it was fitted with wide desert-type tires. Later that same day, Munier was seen at another tire store in Las Vegas with Flickinger's Suburban. That vehicle was also fitted with desert-type tires. Also on the 11th, McLaughlin was seen working on the pickup in front of Flickinger's Las Vegas home, apparently installing an aerial.

On the 12th McLaughlin and Hayduk were observed taking the pickup to various businesses in Las Vegas. At one location, a lumber store, they were observed installing plywood in the bed of the pickup. Later that day, DEA agents saw McLaughlin and Hayduk painting the doors of the pickup.

The next significant event occurred on July 16, when Flickinger and Munier were observed in Flickinger's Suburban traveling from his home to McCarran Airport in Las Vegas. At the airport, they parked next to Flickinger's Piper Navajo aircraft and transferred boxes from the vehicle to the plane and from the plane to the vehicle. Subsequently, Munier drove away and Flickinger entered the plane and took off.

Later in the day, Flickinger was observed at the Tucson, Arizona, airport. Susan Caron, a sales person at the airport, saw Flickinger pay for gasoline for his aircraft and purchase aeronautical maps for Mexico. Caron also noted that at the time of the purchases, Flickinger was accompanied by a man of Mexican appearance. Through a DEA agent who interviewed Caron, the information concerning Flickinger's stay in Tucson was relayed to agents in Las Vegas.

Still later on the same day, DEA agents followed the pickup occupied by McLaughlin and Hayduk from Las Vegas to a dry lake bed in eastern California known as Hidden Hills Dry Lake. Approximately the same time, other agents in separate vehicles followed Flickinger's Suburban as it was driven by Munier from Las Vegas to Hidden Hills Dry Lake.

That evening DEA agents, who had taken up positions at various locations around the lake for purposes of surveillance, were joined by Larry Guy, an agent with the Federal Communications Commission (FCC), who entered the case at the request of a DEA agent to determine if there might be any violations of the federal communications laws. Guy brought radio equipment designed for interception and location of radio transmissions.

There was no activity at Hidden Hills Dry Lake until approximately noon on July 17, when Munier was seen in Flickinger's Suburban driving up to a public phone in the area. Soon after Munier left the phone booth, Guy intercepted a radio transmission which included the following language:

"Ah, it looks like it's on for tonight. He called Susan last night."

Flickinger's wife's name is Susan. Through the use of his equipment, Guy was able to determine that the transmission signal came from Flickinger's Suburban parked next to the public phone.

Approximately 8:00 p. m., McLaughlin and Hayduk, who had previously left the lake bed for a small town in the area, returned to the lake. Munier arrived at the lake approximately the same time. Nothing eventful occurred until 11:00 p. m. when Guy began to pick up radio transmissions. Between the hours of 11:00 p. m. on July 17 and 1:00 a. m. on July 18, Guy intercepted a series of transmissions between Flickinger's Suburban, which had transmitted earlier in the day, and a second vehicle on the lake bed. Included in the transmissions were certain critical statements. At one point, the voice which Guy had heard earlier in the day stated:

"Ah, I didn't get that, Dan was talking."

At another point, a second voice stated:

"Dan told us to try to cover up his tracks and in the process we wound up getting lost; we lost his tracks and a just can't tell nothing out here . . .."

Flickinger's first name is Daniel. Approximately 11:00 p. m., one of the DEA agents who was conducting surveillance of the area believed that he heard an airplane.

Approximately 1:00 a. m., Flickinger's Suburban and the pickup left the area in different directions. The agents then met and listened to the tape recordings which Guy had made of the radio transmissions. From the tapes, the agents determined that an airplane drop had been made. Agent Bowe, who was at the lake bed, called Agent Jezzeny at McCarran Airport in Las Vegas. Jezzeny reported that just prior to receiving this call, he observed Flickinger land his plane. Based on information from the tapes, the statement from Agent Jezzeny, and the information derived from the earlier surveillance, Agent Bowe called California and Nevada authorities, requesting them to stop and seize the vehicles. The DEA agents then left in pursuit of the vehicles.

The pickup was stopped and McLaughlin and Hayduk were apprehended by officers of the Nye County, Nevada, sheriff's department approximately 4:03 a. m. on July 18. The vehicle was taken to the sheriff's office in Tonopah, Nevada, where it was searched and found to contain 31 sacks of marijuana. McLaughlin and Hayduk were then arrested.

After Flickinger left McCarran Airport, Agent Jezzeny attempted to locate him and about 2:45 a. m. observed Flickinger's Suburban parked in front of Flickinger's home. Jezzeny then went to the DEA office in Las Vegas.

About 5:30 a. m., Agent Jezzeny returned to Flickinger's where he met a second agent. At that time, because of a phone call from another agent, both agents knew that McLaughlin and Hayduk were in custody and that the marijuana had been found in the pickup. The two agents placed Flickinger's home under surveillance until two more agents arrived approximately 6:30 a. m. The agents then knocked on the front door, announced that they were from Western Union, then announced that they were from the DEA. Subsequently, they entered the house and arrested Flickinger, Munier, and Susan Flickinger. After being placed under arrest, Flickinger made several statements to the arresting agents, all directly resulting from the arrest and all incriminating. At the time of the arrests, the agents did not have an arrest warrant nor was there any attempt to obtain an arrest warrant prior to the entering of the house.

Subsequent to the arrests, DEA agents searched the aircraft flown by Flickinger. Three days later, the aircraft was searched a second time. Incriminating evidence was found during these searches.

Other important evidence was developed by FCC Agent Guy. On the day of the arrests, Guy interviewed Flickinger and Munier in the Clark County Jail in Las Vegas regarding possible violations of FCC regulations. Several days later, Guy again went to the Clark County Jail, this time to interview McLaughlin and Hayduk, who had been transferred there after their initial arrest at Tonopah. During the course of these two interviews, Guy recognized the voice of Munier as the first voice and that of McLaughlin as the second voice which he had heard during the radio transmission surveillance at Hidden Hills Dry Lake.

Flickinger, Munier, McLaughlin, and Hayduk were first charged by complaint dated July 18, 1975, with possession of a controlled substance with intent to distribute. The complaint was filed in the United States District Court for the District of Nevada. Subsequently, the four defendants were indicted and charged with conspiracy to import a controlled substance and importation in the United States District Court for the Eastern District of California. A change of venue motion was granted and the case was transferred back to Nevada. Thereafter, the four were charged with the three-count indictment on which their present convictions are based. The two-count indictment was dismissed and the case was tried to the district judge sitting without a jury, resulting in guilty judgments on all three counts.

II.

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