U.S. v. Reese

• Decision Date: 05 November 1985
• Docket Number: Nos. 84-5228,84-5230,s. 84-5228
• Citation: 775 F.2d 1066
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas REESE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Linda REESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1066

775 F.2d 1066

UNITED STATES of America, Plaintiff-Appellee, v. Thomas REESE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Linda REESE, Defendant-Appellant.

Nos. 84-5228, 84-5230.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1985.

Decided Nov. 5, 1985.

Daniel J. Broderick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Jerald W. Newton, Stephen Gilbert, Santa Monica, Cal., for defendant-appellant.

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

Before BARNES and REINHARDT, Circuit Judges, and GILLIAM, ^* District Judge.

REINHARDT, Circuit Judge:

Following a bench trial, Thomas Reese was convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (1982) (count 1); possession with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982) (counts 7, 9, 13 and 15); aiding and abetting violations of 21 U.S.C. Sec. 841(a)(1) (1982) (counts 5 and 11); unlawful possession of a firearm, in violation of 18 U.S.C. app. Sec. 1202(a)(1) (1982) (counts 23 and 24); and unlawful use of a communication facility, in violation of 21 U.S.C. Sec. 843(b) (1982) (counts 16-20). Linda Reese, Thomas' wife and co-defendant, was convicted of conspiracy to possess cocaine with intent to distribute (count 1); aiding and abetting the sale of cocaine (counts 9 and 15); and possession with intent to distribute cocaine (count 11).

In this appeal, Thomas Reese challenges the sufficiency of the evidence supporting his convictions on all counts other than possession with intent to distribute and one count of aiding and abetting. Linda Reese challenges the sufficiency of the evidence supporting her convictions on all counts other than possession with intent to distribute. Both Reeses challenge the validity of the sentences imposed by the district court.

We conclude that with the exception of the firearms counts, there exists sufficient evidence to support those convictions that the Reeses challenge. Accordingly, we reverse Thomas Reese's convictions for unlawful possession of firearms and affirm the other convictions involved in this appeal. We further conclude that the sentences imposed on Linda Reese were valid and must be affirmed. However, a serious question exists as to the extent to which the sentences imposed on Thomas Reese were influenced by certain ex parte information submitted by the prosecution. We therefore vacate Thomas Reese's sentences and remand his case to the district court for resentencing.

I. FACTUAL BACKGROUND

On June 30, 1983, two undercover special agents from the Drug Enforcement Administration, Greene and Brown, contacted Kevin Morgan at a Los Angeles gym to inquire into the possibility of establishing a regular connection for the purchase of cocaine. Morgan told the agents that he had a good source in Thomas Reese. He informed them of the price scale for cocaine and indicated that he would be willing to do business with them. Morgan also stated that he would introduce them to Reese's daughter Rhonda.

Morgan went to speak with Reese in another part of the gym. When he returned, he told Greene that Reese suspected that Greene and Brown might be police officers. Morgan stated that he would do business with them nevertheless and that he and Reese would "work out" Reese's suspicion. Morgan and Greene agreed to meet the following day at the same gym.

On the morning of July 1, 1983, Morgan arrived at the gym in a blue Rolls Royce with Thomas Reese II, the 12 or 13 year old son of Thomas Reese. Morgan told Greene that the boy had the ounce of cocaine that Greene had requested. Greene then gave $2,000 to Morgan, while the boy gave Greene approximately one ounce of cocaine. ¹

That afternoon, Brown and Greene again met with Morgan and Thomas Reese II. Morgan offered another ounce of cocaine, which he stated came from Rhonda Reese, but the agents declined the purchase. They told Morgan that they preferred to transact their business that evening at the Olympic Auditorium, when Thomas Reese and Rhonda Reese were to attend a fight.

The agents met Morgan at the Olympic that evening. Morgan told them to be seated and that they would do business later. During the bout, a young fighter approached the agents and asked whether they were interested in doing business. The agents told the fighter that they intended to do business with Morgan after the fight. The fighter then walked to where Reese was seated and spoke briefly with him.

When the fights ended, Reese approached the agents and introduced himself. Reese, members of his family, several associates and the agents went outside the auditorium. Two of Reese's associates looked closely at the agents and then retreated with Reese to a separate section of the parking lot where the three spoke quietly. Morgan subsequently emerged from the auditorium and, in exchange for $1,600, gave Brown an aluminum foil packet containing an ounce of cocaine. As the agents left, they observed Morgan approach Reese. Morgan and Reese then walked to a parked car and hovered over its hood.

Brown and Greene met again with Morgan on July 5, at which time Morgan told them that he had given Reese the money from the July 1 cocaine sale. With respect to that sale, the agents asked what Morgan and Reese had been doing while hovering over the hood of the car in the Olympic parking lot. Morgan stated that they had been examining the money to determine whether it was serialized. He also told them that Reese was angry with him because he still believed Brown and Greene to be police officers and that Reese had sold the blue Rolls Royce rather than allow the police to confiscate it.

The agents met Morgan again on August 2, 1983. Morgan stated that Reese was "paranoid" about the agents and wanted a reference from them, but that Morgan could introduce them to Rhonda Reese. To prove their authenticity, the agents brought Morgan to a fictitious "reverse sale" of narcotics in which $40,000 worth of heroin was "sold" to them by another undercover agent. After the purchase, Morgan indicated he would speak to Reese about a meeting with the agents. On September 3, 1983, Reese telephoned Greene and Greene returned the call. A luncheon meeting was set up for September 6 at a cafe in Los Angeles.

The meeting at the cafe included the agents, Thomas Reese, Linda Reese and Carlos Garcia. Thomas Reese stated that he had an Iranian source of heroin who owned a Mercedes-Benz dealership in the United States and whose father was one of the largest heroin dealers in Iran. He told the agents that he had already fronted $100,000 for ten kilograms of heroin. Reese indicated that he had been in the narcotics business since 1965 and had very high quality cocaine. He agreed to meet the agents on the following day to sell them three ounces of cocaine and give them a small sample of the heroin. At one point in the conversation, Linda Reese asked for and recorded Greene's telephone number in an address book.

On September 7, 1983, Greene had telephone conversations with each of the Reeses. In the first, Greene was told by Linda that Thomas was not at home. In the second, Thomas called Greene back and suggested a meeting at a street corner in Los Angeles. Later that day, Thomas Reese and Garcia arrived at the corner in a green Rolls Royce. Upon arrival, Reese gave Greene a package containing three ounces of cocaine and a small sample of heroin in exchange for $4,800.

On September 9, 1983, Greene and Brown met Thomas Reese in Las Vegas and discussed drug transactions in the presence of Linda Reese. On September 15, the Reeses again met with the agents at the same Los Angeles cafe in which they had met before. Thomas Reese told them that he received about 100 kilos of cocaine every two months, and that he was related to the largest heroin dealer in Oakland, California.

That evening, Reese met again with agents at the same Los Angeles street corner at which they had met previously, arriving with Linda Reese in a Datsun 280Z. Greene crouched beside the passenger side of the Datsun and counted out $12,400 for four ounces of cocaine and an ounce of heroin. He heard a zipper open and saw Thomas Reese reach into the area between the two front seats where a woman's purse was located. Reese then produced a packet containing the narcotics.

On September 27, 1983, Greene and Brown met the Reeses at a hotel room in Marina Del Rey, California. Linda arrived first in the green Rolls Royce and delivered a package containing five ounces of cocaine. When agent Greene asked her if she wanted the money, she instructed him to give it to Thomas when he arrived. She then telephoned her husband and asked him to bring a scale so that the cocaine could be weighed. Thomas arrived in a red Corvette, delivered the scale, and took $7,500 from the agents. He stated that he owned millions of dollars worth of property, that he could supply any amount of cocaine and that he had five or six people working for him.

On September 30, the agents met Reese again at the cafe in Los Angeles. He supplied more details about his Iranian connection and gave the agents a quantity of heroin from the trunk of the green Rolls Royce in exchange for $12,000.

On October 12 and October 13, Greene called the Reese house from Chicago. Linda told him that Thomas was not at home. Thomas returned Greene's call on October 13. During this conversation, Reese stated that he was trying to raise $100,000 to purchase a quantity of heroin; that he had some heroin to deliver to the agents; and that the agents should call him when they returned to Los Angeles.

The Reeses met the agents on November 30, 1983, at a country club in Reseda, California. Thomas told them that if they bought a kilo of cocaine, he would advance the purchase price of a second kilo. Thomas did not know whether he could...