U.S. v. McLernon

• Decision Date: 20 December 1984
• Docket Number: Nos. 83-3519,s. 83-3519
• Citation: 746 F.2d 1098
• Parties: 16 Fed. R. Evid. Serv. 638 UNITED STATES of America, Plaintiff-Appellee, v. Richard Scott McLERNON, Kido Yaqui, Sherri Louise Farrell, Miguel Angel Carranza, and Marco Antonio Valdez-Cota, Defendants-Appellants. to 83-3521, 83-3549 and 83-3550.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1098

746 F.2d 1098

16 Fed. R. Evid. Serv. 638

UNITED STATES of America, Plaintiff-Appellee, v. Richard Scott McLERNON, Kido Yaqui, Sherri Louise Farrell Miguel Angel Carranza, and Marco Antonio Valdez-Cota, Defendants-Appellants.

Nos. 83-3519 to 83-3521, 83-3549 and 83-3550.

United States Court of Appeals Sixth Circuit.

Argued April 3, 1984.

Decided Sept. 18, 1984.

Rehearing and Rehearing En Banc Denied Dec. 20, 1984.

Martin S. Pinales, argued, Cincinnati, Ohio, Ephraim Margolin, (LC) San Francisco, Cal., for defendant-appellant in No. 83-3519.

Christopher K. Barnes argued, U.S. Atty., Anthony W. Nyktas, Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

William L. Summers, Summers, Potts, Kampinski, Tittle & White, Cleveland, Ohio, for defendant-appellant in No. 83-3520.

Elmer Giuliani, Cleveland, Ohio, for defendant-appellant in No. 83-3521.

David Kenner, Encino, Cal., for defendant-appellant in No. 83-3549.

Ephraim Margolin, San Francisco, Cal., for defendant-appellant in No. 83-3550.

Before JONES and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Appellants Marco Antonio Valdez-Cota (Valdez), Miguel Angel Carranza-Baez (Carranza), Kido Yaqui (Yaqui), Richard Scott McLernon (McLernon) and Sherri Louise Farrell (Farrell) appeal their jury convictions in these consolidated cocaine conspiracy cases. Upon careful consideration of the myriad issues presented by their appeal, we conclude that the judgment of the district court should be affirmed in part, reversed in part and remanded in part, with instructions consistent with this opinion.

In 1974, agent Charles Hamlin of the Drug Enforcement Administration traveled to Phoenix, Arizona where he befriended Yaqui. The two became very close friends and eventually engaged in an Indian "blood brother ritual." In 1977, Hamlin left Arizona for Cincinnati. Hamlin then phoned Yaqui to say that he had some drug contacts and asked Yaqui "to keep his eyes open for possible drug connections." Yaqui, however, did not pursue any such connections. In early 1982, Hamlin again called Yaqui to explain that he was in financial trouble with a Chicago syndicate group and begged him to bring about a drug transaction. Hamlin called upon his Indian "blood brother" to do anything he could to help.

Although Yaqui had no prior experience with cocaine, he tried to help Hamlin. Hamlin instructed Yaqui in cocaine transactions and continually pressured him to attain one. In March, 1982, Yaqui informed Hamlin that he had, as Hamlin desired, secured individual cocaine contacts, including Tony Langley. Hamlin spoke to these contacts and on one occasion traveled to Phoenix to try to formalize a deal. But these deals fell through. Hamlin then began to pressure Yaqui by telling him more about his syndicate debts. Hamlin described to Yaqui the people who were threatening him:

I mean, these power people, these ain't nickel-dime, they run Atlantic City and all--I mean, they're all over the country. They're heavy. (RTT Tape No. 3, 14:8-10).

In April, 1982, Hamlin told Yaqui over the phone that he would be killed if Yaqui could not arrange a cocaine deal. Yaqui testified that he observed Hamlin carrying a gun and wearing a bullet-proof vest. He began fearing Hamlin and, thus, exaggerated his cocaine connections in order to ease the pressure.

In late 1982, Yaqui made a major cocaine contact while negotiating a business deal for distributorships. Yaqui met Valdez and the two sent $2,000 to Hamlin so he could come to Phoenix and negotiate a deal. On January 13, 1983, Yaqui and Hamlin met with Valdez and proceeded to discuss a cocaine deal. Hamlin told Valdez, through Yaqui as interpreter, that he had mob connections in the East. Hamlin insisted that any drug delivery would have to take place in Cincinnati. Valdez preferred Los Angeles and left the meeting. Hamlin returned to Cincinnati, angered at Yaqui for what appeared to be another broken deal.

Later in January, Valdez visited Yaqui at Yaqui's shop. Yaqui told Valdez that he feared Hamlin. The two agreed to go to Cincinnati to talk with Hamlin and his associates. Valdez called Hamlin and told him that they intended to make a sale of ten kilos on a trial basis and if everything went well they could sell 300 kilos. On January 25, 1983, Hamlin next met Valdez and Yaqui at the Cincinnati Airport and then introduced undercover DEA agents Stuart and Palma as drug dealers. Hamlin informed Yaqui that these men were dangerous and that one of them was a "hit man." Yaqui told Stuart that he only played an intermediary role and that Valdez controlled the cocaine. Yaqui stated that he had not seen the 300 kilos of cocaine, but knew that they were available. Agent Stuart replied that he wanted large quantities and many transactions. The parties, however, tentatively agreed to a ten kilo sale of cocaine. Valdez told the agents that the cocaine was of superior quality. On the following day, January 26, 1983, the men made a tentative delivery plan.

Yaqui and Valdez returned to Phoenix. On January 28, Agent Stuart phoned Yaqui. In order to remove himself from any further involvement in the cocaine transaction, Yaqui told Stuart that he faced an Arizona murder investigation and was advised by his attorney to "lie low" for a while. On January 29, Hamlin called Yaqui. Yaqui stated that the cocaine deal was still on but that he would not be involved. On January 31, Yaqui told Stuart that he would arrange to have Stuart talk directly with Valdez. Yaqui resisted Stuart's constant pressure to stay in the deal.

Stuart then contacted Valdez. Valdez expressed displeasure with all of the traveling required, but agreed to meet with agents Palma and Stuart. Valdez informed the agents that Yaqui was no longer involved. On February 9, 1983, the agents called Valdez at Carranza's Los Angeles apartment. Valdez told Palma that the ten kilo deal could go through as soon as he could make some arrangements. Palma, Stuart, and Valdez agreed to make the deal in Cincinnati.

On February 12, 1983, Stuart and Palma met Valdez at the Cincinnati airport. Valdez told the agents that the cocaine would be delivered in a secret compartment of a car driven from the west coast by a man named Scott and a woman. Valdez also stated that he had a large cocaine operation. Palma testified at trial, over repeated objections, that Valdez had told him of his lengthy past involvement with cocaine.

On February 16, Valdez phoned the agents that the cocaine had arrived. Valdez suggested that they rent a garage in which to make the deal. They rented two garages in Fairfield, Ohio. After the couriers arrived, Stuart told Valdez that he wanted to see the cocaine before he gave him the money. Valdez agreed. He went to his hotel room to get "Scott," the courier, who was later identified as Scott McLernon. The men all traveled to the rented garage. McLernon took the packages out of a secret backseat compartment. Stuart tested the cocaine and then placed Valdez and McLernon under arrest. DEA agents subsequently arrested Carranza, who had remained in his hotel room. After his arrest, McLernon was asked by DEA agent Powell about the girl with whom he had driven across the country. He agreed to take the agents back to his hotel where Sherri Farrell waited. Once in the hotel room, the agents seized a note pad and a calendar, both of which were admitted into evidence. Farrell voluntarily accompanied the agents to their offices and was questioned extensively. After Agent Stuart finished questioning Farrell, she was placed under arrest. On the next day, Yaqui was arrested in Phoenix by federal agents.

After indictment and jury trial, Valdez was found guilty of one count of conspiracy under 21 U.S.C. Sec. 846, ¹ twelve counts of unlawful telephone use under 21 U.S.C. Sec. 843(b), ² two counts of interstate travel to promote unlawful activity under 18 U.S.C. Sec. 1952 ³ and one count of possession with intent to distribute cocaine under 21 U.S.C. Sec. 841(a)(2). ⁴ Carranza was found guilty of one count of conspiracy under 21 U.S.C. Sec. 846, one count of unlawful interstate travel under 18 U.S.C. Sec. 1952 and one count of possession with intent to distribute cocaine under 21 U.S.C. Sec. 841(a)(1). Yaqui was found guilty of one count of conspiracy under 21 U.S.C. Sec. 846. McLernon was found guilty of one count of conspiracy under 21 U.S.C. Sec. 846, one count of unlawful interstate travel under 18 U.S.C. Sec. 1952, and one count of possession with intent to distribute cocaine under 21 U.S.C. Sec. 841(a)(1). Farrell was found guilty of one count of conspiracy under 21 U.S.C. Sec. 846, one count of unlawful interstate travel under 18 U.S.C. Sec. 1952 and one count of possession under 21 U.S.C. Sec. 844. Judge Rubin sentenced defendants Valdez and Carranza to 20 years; defendants McLernon and Farrell to 5 years, and defendant Yaqui to 15 years.

I Valdez's Pre-Arrest Statement

Appellants initially contend that the district court erred in admitting Valdez's pre-arrest statement concerning his lengthy history in cocaine traffic and his large cocaine organization. They assert that those statements (1) were not made in furtherance of a conspiracy, (2) were unreliable, (3) were double hearsay, and (4) were inadmissable as prior bad acts under Federal Rules of Evidence 403 and 404(b). The government contends that, as statements made by a co-conspirator in the course of a conspiracy, Valdez's remarks were admissable under Federal Rule of Evidence 801(d)(2)(E).

In this Circuit, co-conspirators' statements are admissable if the government shows by a preponderance of the evidence (1) that a conspiracy existed, (2) that the defendant against whom the hearsay is offered was a member of the conspiracy, (3) that the statement was made during the course of the conspiracy, and (4) that the statement was made in furtherance of the conspiracy. United States...