593 F.2d 109 (9th Cir. 1979), 77-2131, United States v. Friedman

Docket Nº:77-2131, 77-2148, 77-2208 and 77-2155.
Citation:593 F.2d 109
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Allan FRIEDMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert John McCOY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Douglas Robert JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Francis GARRITY, Defendan
Case Date:March 15, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 109

593 F.2d 109 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Allan FRIEDMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert John McCOY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Douglas Robert JOHNSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Francis GARRITY, Defendant-Appellant.

Nos. 77-2131, 77-2148, 77-2208 and 77-2155.

United States Court of Appeals, Ninth Circuit

March 15, 1979

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Joel Benoliel (argued), of MacDonald, Hoague & Bayless, Seattle, Wash., Murray P. Guterson (argued), of Guterson & Grader, Seattle, Wash., Laurence B. Finegold (argued), of Franco, Asia Bensussen, Coe & Finegold, Seattle, Wash., Victor Sherman (argued), of Nasatir, Sherman & Hirsch, Los Angeles, Cal., for defendants-appellants.

J. Ronald Sim, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, at Seattle.

Before ANDERSON and HUG, Circuit Judges, and MUECKE [*], District Judge.

HUG, Circuit Judge:

Allan Friedman, Robert McCoy, Douglas Johnson and Robert Garrity each appeals his conviction on one count of conspiracy to import cocaine, in violation of 21 U.S.C. § 963, and two counts of importation of cocaine, in violation of 21 U.S.C. §§ 952, 960. The appellants raise various questions concerning the sufficiency of the evidence to support the convictions, the admissibility of certain evidence introduced by the Government and the scope of the Government's duty to disclose information to the defense. We affirm.

FACTS

The evidence introduced by the Government showed a series of drug purchases by a group of Americans from a Chilean dealer named Torres-Romero. The most important witnesses for the Government were Juan Mardones, a Chilean attorney who worked for Torres-Romero, and Ronald Ossenberg, one of the American buyers.

All of the transactions described below established the existence of a conspiracy and the appellants' involvement in that conspiracy. In addition, two cocaine shipments arranged by Ossenberg formed the basis for the substantive counts of importation on which all appellants were convicted.

I.

April, 1972 Meeting

At the trial, Mardones described a meeting between Torres-Romero and two Americans who wished to establish a cocaine-dealing relationship:

The meeting took place in April, 1972, at a club in Chile. Mardones attended and

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acted as the interpreter. Two Chileans, a man named Price-Salcido and a woman named Aguayo accompanied Torres-Romero and Mardones. The two Americans at the meeting were Tom Vinje and appellant Allan Friedman. Tom Vinje, who was a key figure in the American group, died in Chile in 1973.

Vinje and Friedman told the Chileans that they wished to purchase a sample of cocaine on behalf of a prospective financier in Seattle and if the cocaine was satisfactory, further purchases would be arranged. The Americans said that they planned to smuggle the cocaine into the United States in hollow water skis.

Both Vinje and Friedman were provided with a small amount of cocaine at the meeting; each tested the drug in various ways and commented favorably on its quality. In anticipation of future dealings, the parties agreed that the next visitor from the American group would send a cable to Mardones, announcing his impending arrival, and would identify himself by wearing a certain cowboy hat that Vinje had purchased in Chile.

The April meeting led to the sale of a one-kilogram sample of cocaine to the Americans. A few days later, Mardones received a cable stating that "the hat" had arrived safely in the United States.

Aguayo and Price-Salcido also testified at the trial, partially corroborating Mardones's account of the April meeting. Neither Aguayo nor Price-Salcido could identify Friedman in court; however, both testified that one of the Americans at the April meeting was named "Allan". Price-Salcido testified that Mardones's reputation for truth and veracity was "the worst anyone can have".

II.

Subsequent Transactions

Mardones testified to a series of transactions that followed the April meeting:

In June, 1972, Vinje traveled to Chile and purchased two kilograms of cocaine from Torres-Romero for $16,000. Although Vinje brought hollow water skis in which to carry the cocaine, the Chileans persuaded Vinje to hide the contraband in hollow wall plaques.

In July, 1972, Mardones received a cable subscribed with the name of appellant McCoy and announcing a visit from "the hat". On his arrival in Chile, McCoy paid the Chileans the $3,000 owed from the initial purchase in April and purchased an additional four kilograms of cocaine, which was smuggled into the United States in hollow wall plaques. McCoy advised the Chileans that the next visitor would be "the snake".

In August, 1972, Mardones received a cable subscribed with the name of appellant Garrity, again announcing the arrival of "the hat". The Chileans found Garrity registered at a Chilean hotel as "Mr. Snake". Garrity was forced to send for additional funds from the United States, because Torres-Romero refused to extend partial credit to Garrity on the sale of four kilograms of cocaine. Appellant Johnson arrived with the additional money, and the sale was made. In the presence of Mardones, Johnson and Garrity engaged in a conversation in which they expressed their displeasure with one "O'Brien", who they said was taking excessive profit in light of his role as financier. Johnson stated that their regular money source had failed them and that the additional funds had been supplied by McCoy. The cocaine was smuggled in hollow wall plaques.

In June, 1973, Johnson and McCoy traveled to Chile and purchased about ten kilograms of cocaine. The cocaine was smuggled into the United States in specially-made suitcases.

III.

Substantive Counts of Importation

Ossenberg testified to two transactions that formed the basis for the substantive counts for illegal importation of cocaine:

Ossenberg was the executive vice-president of the O'Brien Water Ski Company.

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Herbert O'Brien, convicted in this case, but not a party to this appeal, was the president of the company. Late in 1972, O'Brien advised Ossenberg that the company was in financial straits. As a solution, O'Brien proposed that Ossenberg purchase cocaine in Chile and ship it to the United States in hollow water skis. Ossenberg flew to Chile in December, 1972 with $43,000 and instructions from O'Brien to meet Vinje in Chile. Vinje, McCoy and Mardones met Ossenberg at the airport in Chile. Ossenberg later met with Torres-Romero and purchased eighteen kilograms of cocaine. Ossenberg, McCoy, Vinje and Mardones worked together to pack the cocaine into the hollow skis. The skis were transported to the O'Brien Company in Seattle where Ossenberg, Vinje and McCoy unpacked the cocaine. Vinje and McCoy took the cocaine out of the factory.

In 1973, O'Brien directed Ossenberg to make another trip to Chile for cocaine. Ossenberg flew to Chile in September with $55,000 and more hollow skis. He purchased twenty-four kilograms of cocaine from Torres-Romero and shipped the cocaine in the same manner as he had in the previous transaction. At the O'Brien Company factory, Ossenberg emptied the skis and gave the cocaine to McCoy.

Ossenberg testified that he viewed each of the above transactions as isolated events, unrelated to prior or subsequent transactions. However, he also testified that he discussed future dealings with Torres-Romero on each occasion.

Mardones's testimony generally corroborated Ossenberg's account of the two transactions described above. Mardones added that Vinje had remarked in December, 1972 that Vinje, McCoy, Garrity and Johnson had merged their efforts with those of O'Brien and Ossenberg.

IV.

Corroborative Evidence of Presence in Chile

Friedman and McCoy surrendered their passports as a condition to pre-trial bail. The passports were admitted into evidence to show that Friedman and McCoy had traveled to Chile at relevant times. Four Chilean hotel records were admitted for the same purpose.

The Government sought unsuccessfully to obtain official Chilean immigration records that would show that McCoy, Garrity and Johnson entered and exited Chile at relevant times. The Government was able to obtain only a letter, or letters, signed by a high Chilean official who was not the custodian of the records. We will refer to the letters as the "travel documents". The Chilean official asserted in the travel documents that he had inspected the records and that the records confirmed the visits of the three appellants. The signature on the documents was authenticated by an American consular official. The trial court initially refused to admit the documents into evidence and instructed the Government to continue its efforts to obtain the actual records. On the last day of trial, when it was clear that the original records would not be available, the court admitted the travel documents into evidence under Fed.R.Evid. 803(24), the "catch-all" exception to the hearsay rule.

ISSUES PRESENTED FOR REVIEW

Each appellant raises a number of contentions. The major issues are:

  1. Whether the convictions are supported by the evidence;

  2. Whether the district court erred in admitting documentary evidence of the appellants' presence in Chile;

  3. Whether Johnson was denied a fair trial due to the Government's failure to disclose certain information to Johnson's counsel; and

  4. Whether the admission of allegedly unduly prejudicial testimony should have resulted in a mistrial.

    DISCUSSION

    I.

    Sufficiency of the Evidence

    We are called upon to decide whether the evidence supports the findings of the...

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