U.S. v. Bibbero
| Citation | 749 F.2d 581 |
| Decision Date | 14 December 1984 |
| Docket Number | 83-5074,Nos. 83-5073,s. 83-5073 |
| Parties | 17 Fed. R. Evid. Serv. 447 UNITED STATES of America, Plaintiff-Appellee, v. Richard Virgil BIBBERO, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Paul MARSHALL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Colleen Rohan, William Osterhoudt, San Francisco, Cal., for defendant-appellant.
Appeal from the United States District Court for the Southern District of California.
Before FLETCHER and NELSON, Circuit Judges, and HARDY, * District Judge.
Richard Virgil Bibbero, Jr. and James Paul Marshall were convicted in a jury trial of various drug smuggling charges. On appeal, they raise issues concerning proof of the alleged conspiracy, non-disclosure of relevant information held by the government, and admission of certain evidence. We hold that defendants were entitled to disclosure of certain additional material held by the government and that hearsay testimony of a co-conspirator was erroneously admitted. For these reasons we reverse and remand.
The evidence, considered in the light most favorable to the government, proved the following sequence of events:
In 1972, Louis Villar, Edward Otero, Paul Acree, and Lance Weber agreed to work as partners for the purpose of smuggling and distributing marijuana. This partnership became known as the Coronado Company. In its early years, this partnership conducted smuggling operations on a relatively small scale. As the size of the loads increased, employees were hired to help with the off-loading part of the operation. In 1977, Bob Lahodny joined the Company, replacing Weber as a partner.
Late in 1979, the Company began to plan a fifth smuggling operation. Lahodny contacted a previous supplier, Lux Phaksuwana, and his associate, defendant Bibbero, about procuring a load of Thai marijuana. In a series of meetings at Santa Barbara and San Francisco, Bibbero met with the partners of the Company to discuss the operation. It was agreed that Bibbero would buy seven tons of marijuana and ready it for shipment to the United States. The Company would oversee the transporting of the load to Neah Bay, Washington, and land the shipment by helicopter for warehousing and distribution. The financial terms of this agreement were that Bibbero and the Company would each pay 50% of the cost of the supply, and Bibbero and the Company would receive 40% and 60% of the load respectively.
After a series of mishaps, the off-loading operation was abandoned with only one ton of the load safely landed and warehoused. Six tons of marijuana were recovered by Drug Enforcement Administration (DEA) agents on the shores of Neah Bay. Bibbero successfully renegotiated the division of the salvaged marijuana and received 45% of the load.
During the spring and summer of 1981, Bibbero met Villar and other partners at Santa Barbara, Palo Alto, and LaCosta, California, to plan a sixth smuggling operation. Because of the debacle at Neah Bay, it was agreed that Bibbero would receive more than half of the load. Bibbero also succeeded in getting a friend, Joe Siegfried, onto the off-loading crew so that Bibbero could maintain closer contact with the off-loading operation. The landing was planned for Bear Harbor, California. Marshall was recruited to work as a crew member and arrived at the site several weeks early to help prepare for the off-loading operation.
When the boat transporting the marijuana had engine trouble near Japan, Bibbero loaned the Company $25,000 to cover the cost of repairs and was scheduled to receive 100% interest on this loan.
A six-ton load was successfully landed at Bear Harbor in October, 1981, and transported to a house at Arcata, California, where it was weighed and packaged. Marshall participated in the off-loading. Bibbero stayed at a hotel in Eureka during the operation. He later arrived at the Arcata house with Siegfried, congratulated the crew members, and departed. Sometime after the operation was completed, Lahodny hosted a victory party, which was attended by Bibbero and Marshall.
On August 3, 1982, a federal grand jury in the Southern District of California returned a three-count indictment against Bibbero, Marshall, and twenty-five other individuals pertaining to the drug smuggling operation. Count one charged Bibbero, Marshall, and twenty-five others with conspiracy to possess marijuana, exceeding 1000 pounds, with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(6), and 846 (1982). Count two charged the same individuals with conspiracy to import marijuana with intent to distribute in violation of 21 U.S.C. Secs. 952, 960, and 963. Count three charged Bibbero and twelve others, not including Marshall, with possession of 3000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).
The district court divided the twenty-seven defendants into three groups and ordered three separate trials. The defendants were tried as a separate group, and judgments were entered after the jury found Bibbero and Marshall guilty as per the indictment. The defendants filed a timely appeal from the district court's judgment order.
On direct examination, government witness Allen Logie testified that he participated in the sixth smuggling operation as the off-loading equipment manager. He specifically testified that when he arrived at the Arcata house where the marijuana was being weighed and packaged, he saw Bibbero and Siegfried. Logie left the house to drive some equipment to a storage site in Novato, California, and when he returned Siegfried was loading the boxes of marijuana into his truck but Bibbero was gone. Over the objection of Bibbero's counsel, Logie testified that Vaughan then told him that the marijuana that Siegfried was loading "belonged to little Rick [Bibbero]." This statement was admitted on the basis that it was made "by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). The trial court concluded that the statement may have been made to further the distribution of marijuana.
Bibbero contends that Vaughan's statement was inadmissible because it did not further the conspiracy. We agree with the defendant. To come within the co-conspirator exception, the evidence must indicate that the statement furthered the common objectives of the conspiracy; "mere conversation between conspirators" is not admissible. United States v. Fielding, 645 F.2d 719, 726 (9th Cir.1981); United States v. Eubanks, 591 F.2d 513, 520 (9th Cir.1979). On voir dire conducted by defense counsel, Logie virtually acknowledged that Vaughan's statement was idle conversation. 1 Because of Logie's limited responsibilities as equipment manager, Vaughan's statement of ownership was immaterial to him. Logie confirmed that the information did not affect his conduct afterward. The government stresses that Logie also testified that while the marijuana was being weighed and repackaged Vaughan was entering box numbers onto an accounting ledger. This fact, while relevant to our inquiry, does not change our conclusion. The fact that Vaughan was laboring on behalf of the conspiracy when he spoke to Logie does not require the conclusion that his statement furthered the conspiracy. Rather, the evidence clearly indicates that Vaughan was merely informing Logie of the marijuana's ownership without any intent to further the conspiracy.
Having determined that Logie's testimony should not have been admitted, we must now consider whether this error requires reversal of the verdict against Bibbero. This court has held that "if the hearsay does not fall into an exception it is conclusively unreliable" for the purposes of the Confrontation Clause of the sixth amendment. See United States v. McKinney, 707 F.2d 381, 384 (9th Cir.1983) (footnote omitted). We are considering, therefore, the magnitude of a constitutional error and, accordingly, the verdict must be reversed unless the error was harmless beyond a reasonable doubt. Id. at 384-85; United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982).
The evidence of Bibbero's guilt was formidable but not overwhelming, and Vaughan's statement that Bibbero owned a share of the marijuana was important to the government's case. Bibbero took the stand and presented the defense that he did not participate in the conspiracy. He confirmed the testimony of Villar and Logie that he was present when the conspirators carried out the sixth smuggling operation, but he insisted that he gained the opportunity to witness the operation after learning that his friends were smugglers and did so only as a curious bystander. In view of this defense, evidence of Bibbero's actual participation was important. As the principal witness, Villar testified to Bibbero's involvement in various phases of the conspiracy. The government sought to corroborate Villar's testimony about Bibbero's actual participation with only two pieces of evidence: another government witness's identification of Bibbero in Thailand and Vaughan's statement that Bibbero owned a share of the marijuana. The identification was unsuccessful. Thus, the only corroborating evidence of Bibbero's participation was Vaughan's statement. In view of the importance of this statement to the government's case, it cannot be concluded beyond a reasonable doubt that the error of admitting this evidence did not affect the verdict. Therefore, the verdict against Bibbero must be reversed.
The Jencks Act provides that
[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to...
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