U.S. v. Perez

Decision Date28 September 1981
Docket NumberNo. 80-1320,80-1320
Citation658 F.2d 654
Parties8 Fed. R. Evid. Serv. 971, 9 Fed. R. Evid. Serv. 240 UNITED STATES of America, Plaintiff-Appellee, v. Inocenio Guterrez PEREZ, aka Jose Perez, and Jose De Jesus Ruvalcaba- Villalobos, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Jerome S. Stanley, Stanley & Wing, Inc., Sacramento, Cal., defendants-appellants.

Julian Macias, Asst. U. S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before TANG and POOLE, Circuit Judges, and LUCAS *, District Judge.

TANG, Circuit Judge:

I

Appellant Ruvalcaba-Villalobos was convicted of conspiracy to distribute cocaine and distribution of cocaine. On appeal he contends: (1) there was insufficient evidence of conspiracy and his connection to it to justify the admission of certain statements under the coconspirator exception to the federal hearsay rules; (2) his Sixth Amendment right to confront witnesses was violated by the admission of the coconspirator's statements; (3) the trial court erred in dismissing a juror; and (4) the trial court erred in sentencing him to a special parole term in connection with his conspiracy conviction under 21 U.S.C. § 846. Our review indicates that the district court must be affirmed on the first three issues. Because the Supreme Court recently ruled that a special parole term may not be imposed in connection with conspiracy conviction under 21 U.S.C. § 846, however, the district court's sentence must be vacated to the extent that it contains such a term.

II

On November 26, 1979, a government informer, Catalino Nunez, met with Jose Perez for the purpose of negotiating a drug sale. Perez had told Nunez that he could sell him large quantities of drugs. In order to maintain contact, Nunez and Perez exchanged phone numbers. After this first meeting Nunez contacted Special Agent Cazares of the Drug Enforcement Administration.

A second meeting was arranged and on November 27, 1979, Cazares and Nunez met with Perez at the Stockton Holiday Inn. At this meeting, Perez told Cazares and Nunez that he could get one or two kilograms of cocaine from his brother-in-law, Ruvalcaba-Villalobos (Ruvalcaba), to sell to Nunez and Cazares. Perez also stated that he had five ounces of heroin that he had received from Ruvalcaba. Cazares agreed to buy it. Perez left the hotel and returned shortly thereafter and gave the heroin to Cazares with the understanding that Cazares would pay for it at a later meeting. The three men met for a third time on November 29, 1979, when Cazares paid Perez $800.00 for the heroin he had previously obtained.

At a fourth meeting between Nunez and Perez on December 8, 1979, Perez told Nunez that he had traveled to Los Angeles to procure more heroin to sell to Nunez and Cazares. The heroin was not of good quality so Perez did not transport it from Los Angeles. He arranged instead with Ruvalcaba and a Peruvian party named Alvarez-Yanez to have available two kilograms of cocaine for sale.

At a fifth meeting involving Perez, Cazares and Nunez on December 10, 1979, Cazares and Nunez decided to forego traveling to Los Angeles to obtain the cocaine. Perez suggested that he could call Los Angeles to see if his source of supply Ruvalcaba and Alvarez-Yanez would be able to transport the drug to Stockton. Perez informed Cazares and Nunez that the price would be higher in that event. The parties agreed that the price for the transported cocaine would be $2,200.00 per ounce. At that point, the parties went to the Perez apartment in order to phone his brother-in-law, Ruvalcaba, and arrange for transportation of the cocaine to Stockton for sale to Cazares and Perez.

Perez placed the call. He indicated initially that he was speaking with his sister, Amelia. Cazares then spoke to Amelia and explained that he would pay an additional $200.00 per ounce for the cocaine if it could be brought up to Stockton. Apparently Ruvalcaba, identifying himself as Jesus, then came to the telephone and Perez took the receiver and explained the arrangement. Cazares spoke next and Ruvalcaba explained to him that he would have to get permission from the owner of the drug in order to transport the cocaine to Stockton. The telephone call terminated and Ruvalcaba returned the call shortly thereafter. He apparently indicated to Perez that he had been unable to contact the owner of the cocaine. Immediately after that call, Perez gave Ruvalcaba's name, address and telephone number to Cazares for the purpose of contact should the deal have to be transacted in Los Angeles.

On December 11, 1979, Cazares spoke with Perez by telephone. Perez informed Cazares that Ruvalcaba had agreed to bring the cocaine to Stockton and would arrive that evening. On December 12th, Perez informed Cazares by telephone that Ruvalcaba had arrived with the cocaine. Ruvalcaba spoke with Cazares during the same call and confirmed the information. Later that afternoon Perez met with Cazares and Nunez to exchange the cocaine. After Cazares received the cocaine from Perez, he field tested it and determined that it was in fact cocaine. Perez indicated that Ruvalcaba and Alvarez-Yanez were at his apartment and that he would make the payment at the grocery store where he worked. Subsequently, Perez, Alvarez-Yanez and Ruvalcaba were arrested. Cazares recognized Ruvalcaba's voice and identified him as the individual he had spoken with over the telephone.

Ruvalcaba was tried before a jury and found guilty of conspiring to distribute cocaine 21 U.S.C. § 846 (1976), and of distributing cocaine, 21 U.S.C. § 841 (1976). He received two sentences of twelve years in prison for each count, the sentences to run concurrently. Additionally, a special parole term of five years was imposed for each count.

III

Defendant Ruvalcaba first argues that because there was insufficient evidence of the conspiracy and his link to it, the district court erred in admitting oral statements made by Perez under the coconspirator exception of the federal rules of evidence. 1 See generally Fed.R.Evid. 801(d)(2)(E). We affirm the district court's ruling.

The statements at issue were made by Perez in the presence of Cazares and Nunez on November 27 and 29, December 8, 10, 11 and 12. The statements directly implicated Ruvalcaba. Ruvalcaba also objected on the same basis to the admission of statements by Alvarez-Yanez. The admissibility of the statements was argued prior to the defendants' trial. 2 At that point, the court ruled that the statements could be admitted, subject to a mistrial should the prosecution fail to lay a proper foundation. Ruvalcaba argues that the trial court erred in admitting the testimony because the only evidence establishing the conspiracy and linking him to it consisted of Perez' statements and his own. The government argues that ample evidence supports the lower court's ruling.

Federal Rule of Evidence 801(d)(2)(E) requires proof of three elements: (1) that the declaration be in furtherance of the conspiracy; (2) that the declaration be made during the course of the conspiracy; and (3) that there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant with it. See Carbo v. United States, 314 F.2d 718, 735 n.21 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Preliminary questions of fact determinative of the admissibility of evidence challenged under this hearsay exception are resolved by the judge, not the jury. Id. at 736-37; United States v. King, 552 F.2d 833, 848-49 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). In order to prove the existence of conspiracy under the third prong of the coconspirator exception, the prosecution must establish a prima facie case through the introduction of substantial independent evidence other than the contested hearsay. The evidence need not compel a finding of conspiracy beyond a reasonable doubt. United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978); United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). Circumstantial evidence is often sufficient to establish the existence of a conspiracy. United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979). Once the conspiracy has been proven under these standards, only "slight evidence" is necessary to connect a coconspirator to the conspiracy. Id. This requirement of "slight evidence", however, does not eliminate the government's burden of introducing the minimal quantum of proof necessary to prove the connection. See United States v. Peterson, 549 F.2d 654, 657 (9th Cir. 1977). There is no immutable order of proof. The contested statements may be admitted conditionally as long as the court in the proper exercise of its discretion determines that a motion to strike could cure defects resulting from insufficient proof of the necessary preliminary facts. See United States v. Watkins, 600 F.2d 201, 204 (9th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

In this case there is abundant evidence other than the coconspirators' statements independently establishing the existence of the conspiracy. The defendant's telephone conversations with Cazares on December 10 and December 12 constitute admissions to the conspiracy under Federal Rule of Evidence 801(d) (2)(A). Ruvalcaba's return call on December 10 and Perez' verbal conduct indicating that he was speaking with Ruvalcaba were witnessed by Cazares and Nunez. Ruvalcaba's call was admissible as either an admission under Federal Rule of Evidence 801(d)(2)(A) or as nonassertive conduct under Federal Rule of Evidence 801(a), (c). 3 Perez' verbal conduct...

To continue reading

Request your trial
90 cases
  • State v. Martin
    • United States
    • Arizona Supreme Court
    • 31 de janeiro de 1984
    ...to such statements. See the analysis contained in Dutton v. Evans, 400 U.S. at 88-89, 91 S.Ct. at 219-20; see also United States v. Perez, 658 F.2d 654, 661 (9th Cir.1981); State v. Farber, 295 Or. 199, 206-212, 666 P.2d 821, 825-29 Farber states that most of the federal circuits have concl......
  • U.S. v. Gibbs
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 19 de junho de 1984
    ...sixth amendment may require the exclusion of evidence even though admissible under Fed.R.Evid. 801(d)(2)(E). See United States v. Perez, 658 F.2d 654, 660 & n. 5 (9th Cir.1981). See also United States v. Palumbo, 639 F.2d 123, 131 (3d Cir.) (Adams, J., concurring), cert. denied, 454 U.S. 81......
  • Hernandez v. New York
    • United States
    • U.S. Supreme Court
    • 28 de maio de 1991
    ...disagreements they might have with the translation so that any disputes could be resolved by the court. See, e.g., United States v. Perez, 658 F.2d 654, 662-663 (CA9 1981).2 Third, if the prosecutor's concern was valid and substantiated by the record, it would have supported a challenge for......
  • U.S. v. Ammar
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 31 de outubro de 1983
    ...in furtherance of the conspiracy; and (3) it must have been made during the course of the conspiracy. See, e.g., United States v. Perez, 658 F.2d 654, 658 (9th Cir.1981). Because appellants claim these requirements were not met as to at least some statements, we consider each requirement in......
  • 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