U.S. v. Ray

• Decision Date: 23 April 1991
• Docket Number: 89-10255,Nos. 89-10218,s. 89-10218
• Citation: 930 F.2d 1368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Franklin RAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. James Franklin RAY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1368

930 F.2d 1368

UNITED STATES of America, Plaintiff-Appellee, v. James Franklin RAY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. James Franklin RAY, Defendant-Appellee.

Nos. 89-10218, 89-10255.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 17, 1990.

Decided Nov. 23, 1990.

As Amended on Denial of Rehearing,

and Rehearing En Banc April 23, 1991.

Opinion, 920 F.2d 562, superseded.

Jesse Cordova, Lodi, Cal., for defendant-appellant/appellee.

R. Steven Lapham, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee-appellant.

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

Before GOODWIN, Chief Judge, KOZINSKI and NOONAN, Jr., Circuit Judges.

GOODWIN, Chief Judge:

James Franklin Ray appeals his conviction for one count of conspiring to manufacture and distribute methamphetamine and one count of manufacturing methamphetamine. He challenges the admission of a welfare fraud investigator's testimony concerning certain documents in his welfare file and contends that there was insufficient evidence to sustain his conviction. We affirm the conviction.

On cross-appeal, the government argues that the district court erroneously departed downward from the sentencing guidelines. The district court departed downward because the Ninth Circuit's invalidation of the guidelines, later reversed by the Supreme Court, ¹ resulted in Ray's guidelines sentence being grossly disproportionate to those of his codefendants, who were not sentenced under the guidelines. We affirm the sentence.

Ray and his codefendants were indicted on one count each of conspiring to manufacture and distribute methamphetamine and manufacturing methamphetamine. ² Ray was also indicted on one count of knowingly maintaining a place for the purpose of manufacturing methamphetamine; this charge was later dismissed on the government's motion.

At trial, the government introduced substantial evidence tending to prove that Ray was closely related to the manufacture of methamphetamine.

The government also introduced evidence that Ray had recently acquired wealth following a period of relative poverty. Welfare fraud investigator Susan Webber testified, over Ray's hearsay objection, that Ray and his family received welfare benefits between November 1985 and November 1987. Government witnesses also testified that during the first half of 1988 Ray made a $6000 cash down payment on a pickup truck and a $3600 down payment on a farm, and paid $11,000 cash for a motorcycle and a $2500 retainer to an attorney.

Prior to Ray's sentencing, the Supreme Court decided United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), upholding the constitutionality of

the sentencing guidelines. Ray's codefendants had been sentenced during the brief period when Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), holding that the sentencing guidelines were unconstitutional, allowed the district court to apply pre-guidelines law. Ray had the misfortune to have his time for the imposition of sentence fall after the date of Mistretta

Ray objected to the application of the new sentencing guidelines to his case on ex post facto grounds. He also asked the court to depart downward from the guidelines because the sentence mandated by the guidelines was disproportionately long compared to his codefendants' sentences.

The court calculated Ray's sentence under the guidelines to be 262 to 327 months. The court believed that fairness required that Ray receive a sentence more closely proportionate to the sentences of his codefendants. They had received sentences of five to six years imprisonment. The court departed downward from the guidelines and sentenced Ray to twelve years imprisonment on each count, with the sentences to run concurrently, and three years' supervised release.

Ray's Appeal (No. 89-10218)

1. Webber's Testimony

Ray contends that the district court erred in admitting the testimony of Susan Webber, a welfare fraud investigator ³ with the Butte County District Attorney's Office, who testified about the contents of certain documents in Ray's welfare file. He argues that the testimony was not admissible under Fed.R.Evid. 803(6), the business records exception to the hearsay rule, ⁴ because the foundation requirements had not been established. The evidence was admissible.

Business records are not normally self-proving. For the records to be admissible, the following foundational facts must be established through the custodian of the records or another qualified witness: (1) the records must have been made or transmitted by a person with knowledge at or near the time of the incident recorded; and (2) the record must have been kept in the course of a regularly conducted business activity. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 717 (9th Cir.1990).

The phrase "other qualified witness" is broadly interpreted to require only that the witness understand the record-keeping system. United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir.1989); United States v. Hathaway, 798 F.2d 902, 906 (6th Cir.1986); 4 Weinstein and Berger, Weinstein's Evidence, p 803(6) at 803-178. Here, Webber testified that she was familiar with the filing and reporting requirements for public assistance benefits and the forms used in connection with those requirements. Thus, although Webber was not the custodian of Ray's welfare records, ⁵ she was a "qualified witness" to establish that Rule 803(6)'s foundational requirements had been met.

There is no requirement that the government establish when and by whom the documents were prepared. United States v. Huber, 772 F.2d 585, 591 (9th Cir.1985) ("there is no requirement that the government show precisely when the [record] was compiled"); United States v. Basey, 613 F.2d 198, 201 n. 1 (9th Cir.1979) (college records properly admitted to establish defendant's address even though the custodian did not herself record the information and did not know who did), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 274 (1980). "All that the rule requires is that the document be made 'at or near the time' of the act or event it purports to record." Huber, 772 F.2d at 591. ⁶

Webber's testimony established the foundational facts necessary for the admissibility of the contents of Ray's welfare files under the business record exception to the hearsay rule. She testified that the CA-2 (application for welfare benefits) and CA-7 (monthly income report) forms in the file, upon which she based her testimony and which she had personally examined, contained information provided solely by the applicant, namely, Ray himself; were reviewed by an eligibility worker; and were required to be contemporaneously filed and maintained in the Welfare Department's file. Accordingly, the district court properly admitted into evidence Ray's welfare records under Rule 803(6).

The admission of evidence under a firmly rooted exception to the hearsay rule does not violate the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); United States v. Baker, 855 F.2d 1353, 1360 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989). The business records exception to the hearsay rule is a firmly rooted exception. United States v. Norton, 867 F.2d 1354, 1363 (11th Cir.1989), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989); Baker, 855 F.2d at 1360; see also Roberts, 448 U.S. at 66 n. 8, 100 S.Ct. at 2539 n. 8 (" 'Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions.' ") (quoting Comment, 30 La.L.Rev. 651, 668 (1970)). Accordingly, we reject Ray's contention that the admission of Webber's testimony violated the confrontation clause.

II. Sufficiency of the Evidence

Ray contends that there was insufficient evidence to support his conviction. We review a challenge to "the sufficiency of the evidence in the light most favorable to the Government to determine if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Mason, 902 F.2d 1434, 1441 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).

The crime of conspiracy consists of three elements: (1) an agreement to accomplish an illegal objective; (2) one or more overt acts in furtherance of the illegal objective; and (3) the intent to commit the underlying substantive crime. United States v. Thomas, 887 F.2d 1341, 1347 (9th Cir.1989). The agreement may be inferred from the facts and circumstances of the case. Id. Although mere proximity to the scene of illicit activity is insufficient to establish involvement in a conspiracy, a defendant's presence may support that inference when viewed in light of other evidence. Id. at 1347-48. "Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict [the] defendant of knowing participation in the conspiracy." United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).

The evidence introduced at trial strongly supports Ray's conspiracy conviction. Ray does not dispute the existence of the conspiracy to manufacture methamphetamine. Ray's knowledge of and connection with the conspiracy can be inferred from the following evidence: (1) Ray negotiated for the purchase of the backhoe which was found on the Brush Creek property; (2) Ray purchased 30 pounds of Freon on three separate occasions; (3) a respirator mask and an empty Freon container were found at the Powerhouse property, where Ray lived with codefendants Edward Ray and Stephen Giles; and (4) Ray sought information about a generator

similar to the one found at the Brush Creek...