U.S. v. DuFriend, 81-1796
| Decision Date | 14 October 1982 |
| Docket Number | No. 81-1796,81-1796 |
| Citation | 691 F.2d 948 |
| Parties | 11 Fed. R. Evid. Serv. 1502 UNITED STATES of America, Plaintiff-Appellee, v. James Max DuFRIEND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
C. Rabon Martin, Tulsa, Okl., for defendant-appellant.
Mark F. Green, Asst. U. S. Atty., Muskogee, Okl. (Betty Outhier Williams, U. S. Atty., Muskogee, Okl., with him on the brief), for plaintiff-appellee.
Before HOLLOWAY and SEYMOUR, Circuit Judges, and KELLY, District Judge. *
James Max DuFriend was convicted by a jury of one count of conspiracy to import marijuana into the United States in violation of 21 U.S.C. §§ 952(a) and 963, and one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Court sentenced the defendant to three years on each count, to be served concurrently. The defendant raises six issues on appeal; each is treated below.
The defendant has given most of his attention on appeal to the contention that the trial court erred by admitting certain hearsay evidence against him through an alleged co-conspirator who had earlier decided to cooperate with the government. This testimony, described below, was given by Lawrence New, the prosecution's first and principal witness, who piloted the aircraft used to import marijuana from Mexico, and who pled guilty to a single misdemeanor count of possession of marijuana. New met the defendant in a technical school and later flew jump planes for the defendant's parachute skydiving school. Defendant offered New $20,000.00 to participate in the import of marijuana. After New accepted the offer in December, 1980, defendant bought a twin-engine propeller aircraft on December 31, 1980, and New flew the new airplane back to Oklahoma after the purchase. Defendant then modified the fuel system of the aircraft to install a collapsible rubber "fuel bladder" to increase the plane's range. In early January, 1981, New flew the defendant to California where a meeting of the other co-conspirators took place.
In late January New took a commercial flight to Mexico, at the defendant's expense, to look over the landing strip where he was to make the marijuana pickup. On February 1, 1981, New left from Tulsa in the defendant's airplane. Before departing for Mexico, at defendant's suggestion, New took along fishing and camping gear to give the trip a legitimate appearance, and the defendant helped New load this equipment into the plane. New also was given expense money by another co-conspirator in the defendant's presence before departing. After New had had the plane loaded with approximately 600 pounds of marijuana in Mexico, the plane developed a malfunction in its landing gear on takeoff. New decided to fly on to Oklahoma, and twice during the flight he telephoned defendant from the air to report his status. Due to fuel problems New was forced to land at a regular airport rather than at the defendant's own grass strip next to his home as originally planned. As New was landing the plane at the Okmulgee, Oklahoma, airport, one side of the landing gear collapsed and the plane spun off the runway. When New saw people running toward the airplane, he jumped out of the aircraft and ran into some nearby woods. Later that evening New telephoned the defendant at his home to advise him of developments. Coincidentally, at that time a state narcotics agent was questioning the defendant regarding his airplane. During the telephone call the agent, on an extension line, identified himself, and New told the agent where he could be found for surrender.
In recent opinions this Court has stated certain rules, referred to as the "preferred order of proof," to guide trial courts in this circuit when deciding whether to admit hearsay statements of co-conspirators. United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979); United States v. Andrews, 585 F.2d 961 (10th Cir. 1978). In United States v. Peterson, we reiterated our ruling in United States v. Andrews Our Andrews holding was simply that a district court judge, under Rule 104 of the Federal Rules of Evidence, must determine, prior to admission of a hearsay statement, as a factual matter, that the Government has shown by independent evidence that it is more likely than not that (1) the conspiracy existed; (2) the declarant and the defendant against whom the conspirator's statement is offered were members of the conspiracy; and (3) the statement was made during the course of and in furtherance of the objects of the conspiracy.
United States v. Petersen, 611 F.2d at 1330. As a further guide to trial judges, we recommended the procedure outlined in United States v. James, 590 F.2d 575, 581-82 (5th Cir. 1979). In Petersen, we stated that the trial court's determination regarding the admissibility of hearsay co-conspirators' statements should normally be made during the government's case in chief, and that a substantial independent evidence rule must be applied. We also recommended that, whenever possible, the prosecution first introduce its independent proof of the conspiracy and the defendant's connection thereto before admitting hearsay declarations of co-conspirators. Id. at 1330.
Essentially, the appellant contends that the prosecution was required to prove the existence of the conspiracy through some means independent of the testimony of an alleged co-conspirator who has agreed to be a government witness before co-conspirator hearsay can be admitted. However, none of the cases cited by the appellant, including United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), support this contention. The record from the trial court indicates that the prosecutor and the Court were aware of the "preferred order of proof" rule, and were careful to avoid testimony regarding hearsay statements of co-conspirators until the trial court made the required findings outside of the jury's presence. The trial court made these findings while Mr. New was testifying during the government's case in chief. 1 Prior to this determination by the trial court, New testified regarding his actions, certain actions by the appellant of which the witness was personally familiar, and statements made by the appellant to New. New's testimony regarding the appellant's statements made during the course of the conspiracy are not hearsay under F.R.E. 801(d)(2), and consequently they do not come under the co-conspirator hearsay rules discussed above. Only after the Court made the required findings did the prosecution introduce hearsay evidence through Mr. New regarding statements by other co-conspirators not on trial. Consequently, we find no error in the manner in which the trial court employed the "preferred order of proof" rule. Furthermore, and contrary to the defendant's contentions, we find there was substantial independent evidence that the conspiracy existed, that the appellant was a member of that conspiracy, and that the hearsay statements of other co-conspirators offered against him were made in furtherance of the conspiracy.
The appellant contends there was a complete failure of proof implicating the appellant in a distribution conspiracy. Although the government's proof on this count could have been stronger, there was evidence that the quantity of marijuana imported in the appellant's airplane, 600 pounds, was quite large. There was also evidence of the defendant's involvement with other co-conspirators who were not directly involved with transporting the marijuana. Juries may properly draw reasonable inferences, justified in light of their common experiences, from facts which they find have been proved. United States v. Burns, 624 F.2d 95, 102 (10th Cir. 1980). Evidence of quantity of a controlled substance generally is relevant to intent to distribute. United States v. Palmere, 578 F.2d 105, 108 (5th Cir. 1978).
In determining the sufficiency of the evidence, the inferences drawn are reviewed in...
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