U.S. v. Adler
| Decision Date | 21 June 1989 |
| Docket Number | No. 87-3092,87-3092 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert S. ADLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark King Leban, Bailey, Gerstein, Rashkind & Dresnick, Miami, Fla., for defendant-appellant.
Kenneth G. Bell, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before KOELSCH, ALARCON and BEEZER, Circuit Judges.
Robert Adler, appellant, was convicted of conspiring to distribute, and of distributing, cocaine in excess of 500 grams, in violation of 21 U.S.C. Secs. 846, 841(a), and 841(b)(1)(B) (counts I and III). Appellant was also convicted of unlawful use of a communications facility, in violation of 21 U.S.C. Sec. 843(b) (count II). On counts I and III, appellant received concurrent, five-year terms of imprisonment. On count II, he received a consecutive two-year sentence.
Adler appeals, claiming that jury instructions were improper, insufficient evidence supports his conviction on count II, joinder with a co-conspirator denied him due process, and 21 U.S.C. Sec. 841(b)(1)(B) is unconstitutional.
We affirm.
On December 3, 1986, the Royal Canadian Mounted Police (RCMP) received detailed information, from a confidential informant, relating to an impending cocaine transaction. On the basis of that information, RCMP agents placed Terry Germain under surveillance. Germain was then in West Vancouver, B.C., Canada.
On December 5, 1986, Germain met Kenneth Linn. Following that meeting, Linn immediately withdrew cash from two Vancouver banks and visited four other Vancouver banks. Into each bank, Linn carried a brown briefcase.
On December 8, 1986, while the RCMP kept Linn under surveillance, Linn travelled from Vancouver to Seattle. In Seattle, Linn registered at the Vance Hotel. The Drug Enforcement Administration (DEA) began surveillance.
On December 9, 1986, at approximately 6:25 p.m., a DEA agent observed Linn placing a telephone call from the Vance lobby. The agent overheard Linn inquire about the arrival of a flight due from Florida. The call lasted no more than one minute. Linn immediately placed a second telephone At trial, a DEA agent testified that approximately three minutes passed from the time Linn left the Vance lobby to the time he entered his Vance room, between 6:25 p.m. and 6:35 p.m.
call. The DEA agent overheard the second call. In the second call, Linn informed another party that a previous plan was running late and that Linn would make contact again in one hour. The second call lasted no more than ninety seconds. Linn promptly ascended by elevator to his room at the Vance.
At 6:35 p.m., DEA agents observed Linn leave the Vance Hotel and walk toward the Sheraton Hotel. He carried the brown briefcase.
At 7:30 p.m., Linn emerged from an elevator at the Sheraton which services upper floors. Linn entered the Sheraton lounge, where he made two telephone calls. He was joined by appellant.
An airline ticket recovered from appellant's Sheraton room indicated that appellant had just arrived from Florida.
Immediately before joining Linn in the Sheraton lounge, appellant placed a "bulky" manila envelope in the Sheraton hotel safety deposit box.
After sitting with appellant in the lounge for approximately ten minutes, Linn departed the Sheraton. Linn was promptly met by coconspirator Leo Klein, who sat waiting in a pickup truck outside the hotel. Linn and Klein undertook activities which focused their attention on the seat of the pickup truck. Linn was then returned, by Klein, to the Vance Hotel.
Appellant meanwhile returned to his hotel room at the Sheraton.
Klein was apprehended on December 9, 1986, enroute to Spokane, Washington. From Klein's pickup truck, two one-kilogram bricks of cocaine were seized. The cocaine was wrapped in duct tape.
Linn was arrested on December 10, 1986, near the United States-Canadian border, travelling northward. From Linn, DEA officers seized a small amount of cocaine, a Vance Hotel receipt, a brown briefcase, a telephone book which contained a listing for the "Tide Financial Investment Corp.," Sheraton Hotel matchbooks distributed on the upper floors of the Sheraton, and three rolls of duct tape.
Appellant was arrested on December 10, 1986. At that time, his room was searched, pursuant to a search warrant.
In appellant's room, DEA agents found a small quantity of cocaine, cocaine paraphernalia, a Sheraton safety deposit box key, $1,641 in cash, an airline ticket from Florida to Seattle, a professional card bearing the name "Tide Financial Investment Corporation," and receipts and check stubs for two cashier's checks.
DEA agents opened the Sheraton safety deposit box. Inside, they discovered two cashier's checks, matching receipts and stubs found in appellant's room and drawn on the Canadian banks visited by Linn on December 5, 1986. The checks were payable to the "Tide Water Financial Corporation" and totalled $14,271. DEA agents also retrieved from the box one "bulky" manila envelope. In that envelope, they found ten smaller envelopes, containing a total of $45,000 in cash.
Appellant's fingerprints were found on one of the white cash envelopes in the safety deposit box, on the inside plastic packaging around one of the one-kilogram "bricks" of cocaine seized from Klein's truck, and on the cocaine package wrapped in duct tape.
Laboratory tests matched the pieces of duct tape around the two cocaine "bricks" found in Klein's truck with two rolls of duct tape found in Linn's vehicle. Laboratory analysis indicated the two packages of cocaine removed from Klein's truck weighed 995.1 grams and 996.6 grams. Cocaine in both packages was 92 percent pure.
The trials of appellant and Linn were not severed. Prior to trial, the court granted Linn's in limine motion to exclude reference to Linn's use of a false name. The proscription applied against both the government and Adler.
On the first day of trial, after Linn's opening statement, counsel for Adler stated:
The trial judge responded: "Please." At the close of that day, the still unspecified motion was put over until the second day of trial.
On the second day of trial, counsel for appellant stated that his client's defense and that of Linn were antagonistic. He moved to sever the trial. The court declined to grant a severance, finding appellant's defense and Linn's defense not mutually exclusive.
After closing arguments, appellant proposed a jury instruction stating inter alia that "a person who seeks to purchase cocaine for his own use is not by that act a member of a conspiracy to facilitate the distribution of controlled substances." The court declined to give the precise jury instruction.
At the close of trial, appellant moved for acquittal on count II, claiming that insufficient evidence was presented to prove his use of a telephone was for an unlawful purpose. The court denied that motion. Appellant moved to have the mandatory minimum sentencing provisions under 21 U.S.C. Sec. 841(b)(1)(B), as amended by the Anti-Drug Abuse Act of 1986, declared unconstitutional. That motion was also denied.
Appellant was convicted of conspiring to distribute, and of distributing, cocaine in excess of 500 grams, in violation of 21 U.S.C. Sec. 846 (counts I and III). Appellant was further convicted of unlawful use of a communications facility, in violation of 21 U.S.C. Sec. 843(b) (count II). Appellant received concurrent five-year terms of imprisonment on counts I and III. On count II, he received a consecutive two-year term.
Adler's appeal is timely. We have jurisdiction under 28 U.S.C. Sec. 1291.
Appellant argues that his conspiracy conviction should be reversed since the trial court declined to instruct that "personal use" purchases of cocaine do not establish membership in a conspiracy to distribute.
We review de novo a district court's refusal to give a jury instruction on defendant's theory of the case. United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1628, 95 L.Ed.2d 201 (1987). Generally, whether the instructions are sufficient is decided by reviewing the instructions as a whole, United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir.1986), and a district court is not required to give language requested by either party. United States v. Washington, 797 F.2d 1461, 1476 (9th Cir.1986). "[S]o long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions ... is a matter of discretion." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985).
A defendant is entitled to an instruction on a proposed theory of the case only "if [that] theory is legally sound and evidence in the case makes it applicable." United States v. Scott, 789 F.2d 795, 797 (9th Cir.1986) (citing United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir.1984)). This remains true even if the relevant evidence is " 'weak, insufficient, inconsistent or of doubtful credibility.' " Doubleday, 804 F.2d at 1095 (citations omitted). "However, for the refusal to be erroneous, the proposed instruction must have some 'foundation in the evidence.' " Id. at 1095 (citing United States v. Winn, 577 F.2d 86, 90 (9th Cir.1978)).
While a "legally sound" defense may exist, based on the conclusion that mere purchases of cocaine for personal use do not establish a conspiracy to distribute, United States v. Martin, 599 F.2d 880 (9th Cir.1979), such a legal theory must be "supported by the evidence." See United States v. Polizzi, 801 F.2d 1543, 1549 (9th Cir.1986).
The record does not contain evidence supporting the theory that appellant...
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