Llach v. U.S., 83-2444
| Decision Date | 23 August 1984 |
| Docket Number | No. 83-2444,83-2444 |
| Citation | 739 F.2d 1322 |
| Parties | 16 Fed. R. Evid. Serv. 428 Jose LLACH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Law Offices of Penzell & Diamond, P.A., Miami, Fla., for appellant.
Rodney S. Webb, U.S. Atty., Gary Annear, First Asst. U.S. Atty., Fargo, N.D., for appellee.
Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.
Jose Llach appeals from a final judgment entered in the District Court 1 for the District of North Dakota after a jury trial finding him guilty of conspiracy, two counts of aiding and abetting distribution of cocaine and use of the telephone in connection with drug trafficking. Llach was sentenced to a total of twelve years imprisonment followed by three years of special parole. For reversal Llach argues that the district court erred in (1) admitting evidence of other crimes, (2) admitting out-of-court declarations of coconspirators, (3) refusing to declare a mistrial because of judicial and prosecutorial misconduct, (4) failing to conduct proper voir dire, and (5) denying Llach's motion for acquittal. For the reasons discussed below, we affirm.
In mid-November 1981, Fargo, North Dakota, Drug Enforcement Administration (DEA) agent Charles Lee received a confidential tip that a man named Fred John McConeghy was interested in transporting illegal drugs to Fargo. Shortly thereafter, agent Lee telephoned McConeghy in Florida to discuss the purchase of marijuana and cocaine. Lee recorded this and subsequent telephone conversations he had with McConeghy. McConeghy contacted his companions, Alex Tindall and Buford Levin Higgs, to discuss the acquisition of three kilos of cocaine. Higgs then contacted Llach to see if he could acquire the necessary cocaine. Higgs had previously associated with Llach in connection with other drug transactions. Llach, a naturalized United States citizen originally from Colombia, served as middleman for deals between Colombian sources of narcotics and distributors in the United States. Llach informed Higgs that he would be able to obtain the cocaine.
Higgs chartered a plane on December 18, 1981, which flew McConeghy and Tindall from Sanford, Florida, to Fort Lauderdale, Florida, to meet with Higgs. Driving Llach's car, Higgs picked them up at the airport and they spent the night in a Holiday Inn. Higgs maintained constant telephone contact with Llach. The next day Higgs, Tindall and McConeghy drove in Llach's car to an apartment complex in Miami. Llach came out of an apartment and was approached by Higgs and Tindall. Llach handed Higgs a plastic bag containing one-half kilo of cocaine, which Higgs placed in the trunk of Llach's car.
Higgs, Tindall and McConeghy proceeded to the Fort Lauderdale airport where a chartered plane and pilot waited to fly them to Fargo. Higgs removed the cocaine from the car's trunk, placed it in his suitcase and then boarded the plane with the others.
Because of bad weather, the men were forced to make an overnight stop in Nashville, Tennessee. McConeghy contacted Lee to inform him of the delay, thereby enabling Lee to arrange airport surveillance by federal, state, and local drug enforcement agencies. The men arrived in Fargo on the morning of December 20, 1981.
McConeghy telephoned Lee upon his arrival in Fargo. Lee instructed McConeghy to go to the Holiday Inn. Higgs and McConeghy took the cocaine to the designated Holiday Inn where McConeghy registered under an assumed name. McConeghy called Lee to arrange a meeting.
Around 1:30 p.m., Lee met with McConeghy at a Perkins Restaurant parking lot. The meeting was held in Lee's car. McConeghy gave Lee a Holiday Inn envelope which contained a sample of cocaine and Lee showed McConeghy the money. At that time McConeghy informed Lee that he was only able to obtain one-half kilo of cocaine.
Lee placed the envelope in his glove compartment and drove McConeghy back to the hotel. Afterwards, Lee had the substance contained in the envelope tested and determined that cocaine was present. The remaining substance was sealed, marked as evidence, and left at the Fargo DEA office.
Around 3:00 p.m. on December 20, Lee phoned McConeghy and Higgs at the Holiday Inn to inform them that he wished to purchase the eighteen ounces of cocaine in their possession. Higgs told Lee he would get the rest of the three kilos for him.
Higgs gave McConeghy the cocaine. Higgs then called Tindall at the Fargo airport and made two calls to Llach in Florida to arrange for the delivery of the remainder of the cocaine.
McConeghy took a taxi to Perkins Restaurant to meet with Lee. He arrived around 4:30 p.m. and got into Lee's car. McConeghy gave Lee a shopping bag containing the cocaine. Lee went to the trunk of his car, presumably to get the money. Instead, Lee signaled onlooking officials and McConehgy was arrested. Higgs, Tindall and McConeghy were all convicted on various counts connected with this transaction. At Llach's trial, these three men testified on behalf of the government. Their testimony described Llach's participation in this and other drug transactions and traced the chronology of events in Florida and North Dakota.
Llach challenges the admission of evidence concerning his previous participation in the importation, distribution, and sale of methaqualone and marijuana, arguing that transactions involving substances other than cocaine are inadmissible and highly prejudicial.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that his or her conduct on a particular occasion was in conformity with it. However, evidence of prior conduct which may constitute a separate crime may be offered to prove motive, intent, opportunity, knowledge, preparation, common scheme or plan, identity, or absence of mistake or accident. Fed.R.Evid. 404(b).
In United States v. Miller, 725 F.2d 462 (8th Cir.1984), this court reiterated the well-established requirements for admission of other crimes evidence:
(1) the evidence of the other act must be relevant to a material issue; (2) the other act must be similar in kind and reasonably close in time to the crime charged; (3) the evidence of the other act must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice.
Id. at 466 (citations omitted). In addition, if the court finds the evidence admissible, a limiting instruction should be given. Id.
In the instant case, the evidence of the previous drug transactions was relevant to prove intent and common scheme or plan. The other acts were sufficiently similar because they involved drug transactions arranged by Llach, Tindall, Higgs, and others who participated in the cocaine transactions for which Llach was tried. In the present case, the previous transactions overlapped the negotiations for the charged violations; therefore, it was reasonable to conclude that the transactions were relatively close in time. Higgs, Tindall and another coconspirator testified at trial regarding Llach's participation in the previous transactions. Direct testimony of the defendant's participation in the prior transactions is sufficient to meet the clear and convincing standard. See United States v. Evans, 697 F.2d 240, 248 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1779, 76 L.Ed.2d 352 (1983). In determining whether the prejudicial impact of the challenged evidence outweighed its probative value, the district court is afforded broad discretion. See United States v. Miller, 725 F.2d at 466. Llach has not demonstrated that such discretion was abused in this case. Finally, the district court properly instructed the jury concerning the narrow purpose for which the evidence of other crimes was admitted. We hold, therefore, that the district court did not abuse its discretion in admitting the evidence of other crimes.
Llach argues that the district court improperly admitted out-of-court declarations of coconspirators as evidence against him. The government urges that the statements were properly admitted under Fed.R.Evid. 801(d)(2)(E). We agree that the statements were properly admitted.
An out-of-court declaration of a coconspirator is admissible against a defendant if the district court makes a preliminary determination that the government demonstrated that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the declaration was made during the course and in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). Admissibility of the evidence is conditioned upon the presentation of sufficient independent evidence to establish the existence of a conspiracy. United States v. Bentley, 706 F.2d 1498, 1506 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978). In United States v. Bell, this court set forth guidelines for the admissibility of such statements:
(1) If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendant's objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the...
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