U.S. v. Conners

Decision Date24 August 1987
Docket Number86-3131,Nos. 86-3115,s. 86-3115
CourtU.S. Court of Appeals — Ninth Circuit
Parties23 Fed. R. Evid. Serv. 1115 UNITED STATES of America, Plaintiff-Appellee, v. Michael T. CONNERS, Larry James Rieger, Defendants-Appellants.

Peter O. Mueller, Seattle, Wash., for plaintiff-appellee.

Irwin H. Schwartz and Anthony Savage, Seattle, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before FARRIS, ALARCON and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Defendants Michael Conners and Larry Rieger appeal from the judgment of conviction for conspiracy and the transportation into the United States from Canada of more than $10,000 in United States currency, without filing a report, in violation of 18 U.S.C. Sec. 371 (1982) and 31 U.S.C. Secs. 5316 (1982 & Supp. III 1985) and 5322(a) (Supp. III 1985). Conners also appeals from the Connors seeks reversal on several grounds.

judgment of conviction for making a false statement to a customs officer in violation of 18 U.S.C. Sec. 1001 (1982). Their appeals have been consolidated.

One. The trial court erred in admitting the deposition of Kim Wagorn because he was denied the right to inspect her grand jury testimony before she was cross-examined.

Two. The dismissal of the material witness complaint against Kim Wagorn denied him the right to due process because she became unavailable as a witness at trial.

Three. The denial of Connor's motion for a severance permitted the jury to consider evidence of Rieger's cocaine involvement which was "inadmissible against him."

Four. The court erred in concluding that the overt acts were in furtherance of the conspiracy.

Rieger and Conners both claim that the evidence of Rieger's cocaine involvement was not admissible because motive and intent were not at issue.

FACTUAL BACKGROUND

On February 9, 1986, at 12:40 a.m., Conners, Rieger, and Kim Wagorn, entered the United States at the Blaine Port of Entry, in the state of Washington, in a pickup truck driven by Rieger. When questioned by a primary inspector, Rieger stated that he was a Canadian citizen. He told the inspector that he and his girlfriend were taking Conners to the Seattle-Tacoma International Airport for an early morning flight to Florida. Rieger also stated that he was the owner of the pickup truck. In fact, the truck had been borrowed from an acquaintance. Conners identified himself as a United States citizen, and stated he was returning home to Florida after a one-day visit with Rieger. He informed the inspector he had nothing to declare except an inexpensive piece of jade jewelry.

The three were referred to secondary inspection where they were separated and given customs declaration Form 6059B to complete. Conners and Wagorn checked the "no" alternate response on the form to the question, "I am/we are carrying currency or monetary instruments over $10,000 U.S. or foreign equivalent." Rieger refused to complete the form or answer further questions.

The pickup truck was searched while Rieger, Conners and Wagorn were detained in the customs building. Customs inspectors discovered eight bundles of money secreted in a hollow place inside the door panel on the driver's side of the truck. The currency was left in place. The persons detained were not informed of the search. Instead, the customs officers decided to release them under clandestine surveillance. They were then allowed to enter the United States. Rieger drove the truck to a gas station. He got out of the truck and was observed examining closely the inside panel of the driver's door. Wagorn testified in her deposition that Rieger unscrewed something on the inside of the driver's door on the way to the airport.

When the trio reached the airport, the truck was parked in a stall in the garage. The occupants of the truck noticed they were being followed by a white car. It was a surveillance vehicle driven by a customs officer. Rieger dropped off Conners near the elevators in the garage. Rieger then drove the truck to the terminal where he circled the arrival and departure areas, hesitating outside the United Airlines pickup area each time.

Meanwhile, Conners proceeded toward the United Airlines counter but did not pick up his tickets or check in for his 6:35 a.m. United Airlines flight on which he held a reservation. Instead, he entered a restroom and then walked out of the airport. He was picked up by Rieger. Wagorn testified that when Conners reentered the truck he said, "Let's go for coffee and get a room for tonight." They drove to a nearby parking lot. Rieger and Conners observed the same white car they had seen at the airport garage, went over to the agent's car to find out why they were being followed.

Conners, Rieger, and Wagorn were arrested. The car was searched. The armrest had been removed, and the screws holding the door panel were scattered on the floor. The screws had been in place at the time of the initial search. The officers discovered more than $81,000 in United States currency behind the door panel. The money had been moved since the earlier search to a different position behind the door panel and was hidden from view by a flap of material. Cash in the amount of $878 was found on Conners' person. Conners' pocket also contained three pieces of paper. One bore Rieger's address in Vancouver, British Columbia. Another contained various flight times and fares to Denver and Tampa. Conners had reservations on these flights. Another note contained columns of monetary totals with names and dates. For example, this note paper reflected that a person named "Lass" had paid $43,000 on 2-8 and that "Rick" had paid $38,210 on 2-5.

The evidence showed that on January 23, 1986, Rieger, using the name Tom McCormick, and a false address and telephone number, wired $10,000 in United States funds to Conners in Florida.

On February 5, 1986, Conners left Florida and flew to Phoenix, Arizona. Conners placed a call from his Phoenix hotel on February 6, 1986 to a telephone number listed in the name Richard Robinson in the same city. Rieger called the same number on February 5, 1986. Handwritten references to "Rick" and the same Phoenix telephone number were found in Rieger's apartment.

Rieger's apartment in Vancouver, British Columbia, was searched by the Royal Canadian Mounted Police after his arrest. The search disclosed evidence of cocaine trafficking including bottles of cocaine cutting material, scales, a heat sealing device, plastic baggies, disposable baby bottle liners, a mirror, razor blades containing a trace of white powder, and a cane or walking stick, containing a hidden glass tube which held a quantity of cocaine.

DISCUSSION
A. Admissibility of the Deposition of the Absent Witness

On February 10, 1986, the government filed a motion for an order that a deposition be scheduled for Wagorn on February 14, 1986. The magistrate ordered that the deposition be scheduled for February 13, 1986 at 11:00 a.m., and urged the parties to take the deposition at an earlier date, if possible, "so that we can get her on her way if she is not going to be charged." Following this hearing all counsel agreed to conduct the deposition at 4:00 p.m. on February 12, 1986.

Wagorn testified before the grand jury on February 12, 1986. Later that day after Wagorn's grand jury appearance counsel met in the United States Marshal's office shortly after 4:00 p.m. to conduct the deposition. They were unable to do so at that time because the deposition reporter did not appear. The deposition was conducted on February 13, 1986 at 3:50 p.m.

Prior to the taking of testimony, Rieger's attorney made the following statement:

MR. SAVAGE: All right. Also, because the deposition is being taken so early in the case, we do not have Jencks Act materials that ordinarily we would have been provided with prior to the deposition or immediately afterward, and I want to note that so that in case subsequent production of those materials produces items of which I'm unaware and which I could have or would have cross-examined on, I can make objections to the trial court at the time the government proposes to play this back.

Thereafter, Conner's attorney stated as follows:

MR. ALEXANDER: I'll join Mr. Savage in that objection to the deposition being taken without Jencks material.

Assistant United States Attorney Peter Mueller replied as follows:

MR. MUELLER: I want to note for the record that the only Jencks material that is or will be in the government's possession with respect to this witness would be--she appeared yesterday at the Grand Jury and gave testimony. The transcript, of course, has not yet been prepared and the reporter is not available. Beyond that there are no other written or recorded statements of the witness in the government's possession which are verbatim or substantially verbatim. With these matters on record is everyone else ready to proceed with the questioning of the witness?

Counsel for each defendant answered that they were ready to proceed. After her direct examination, each defense counsel stated they had no questions.

Following the taking of the deposition, all counsel appeared before the magistrate for a hearing concerning the necessity to continue to detain Wagorn. Government counsel suggested that rather than dismiss the complaint "it would be appropriate to ... [release] her with the need that since she is a witness she may need to return at some future time in connection with this case."

The magistrate stated he was prepared to dismiss the material witness complaint unless defense counsel objected because "they need her for trial." Government counsel stated that he did not "want to be in the position of saying that the government has made her unavailable by moving to dismiss the complaint."

Rieger's attorney then stated: "I have absolutely no objection to the...

To continue reading

Request your trial
54 cases
  • JOHNSON v. U.S.
    • United States
    • Court of Appeals of Columbia District
    • October 17, 1996
    ...balance, its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant." United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987) (citation omitted). On the other hand, if relevant evidence could theoretically support additional charges but is n......
  • State v. Edward Charles L.
    • United States
    • Supreme Court of West Virginia
    • July 27, 1990
    ...United States v. Scarfo, 850 F.2d 1015 (3rd Cir.), cert. denied, 488 U.S. 910, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Conners, 825 F.2d 1384 (9th Cir.1987); United States v. Cuch, 842 F.2d 1173 (10th Cir.1988); Getz v. State, supra; State v. Just, 184 Mont. 262, 602 P.2d 95......
  • U.S. v. Freeman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 22, 1993
    ...of codefendants are 'neutralized.' " United States v. Patterson, 819 F.2d 1495, 1503 (9th Cir.1987); see alsoUnited States v. Conners, 825 F.2d 1384, 1391 (9th Cir.1987); United States v. Polizzi, 801 F.2d 1543, 1554 (9th Cir.1986); United States v. Douglass, 780 F.2d 1472, 1479 (9th Cir.19......
  • Jones v. United States, 08–CF–716.
    • United States
    • Court of Appeals of Columbia District
    • September 1, 2011
    ...value is not substantially outweighed by the danger of unfair prejudice to the defendant.” Id. at 1101 (quoting United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987)). We have an “exclusionary” view of other crimes evidence, whereby the government bears the burden of showing that the......
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...waived when defendant participated in government deportation of witnesses that government then failed to produce); U.S. v. Conners, 825 F.2d 1384, 1389-90 (9th Cir. 1987) (Compulsory Process waived when defendant failed to object to witness’s dismissal despite knowing witness would leave co......

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