U.S. v. Chindawongse

• Decision Date: 28 August 1985
• Docket Number: Nos. 82-5265,s. 82-5265
• Parties: 19 Fed. R. Evid. Serv. 79 UNITED STATES of America, Appellee, v. Sihadej CHINDAWONGSE a/k/a Rajburi, Appellant. UNITED STATES of America, Appellee, v. Boripat SIRIPAN, Appellant. (L), 82-5266.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 840

771 F.2d 840

19 Fed. R. Evid. Serv. 79

UNITED STATES of America, Appellee, v. Sihadej CHINDAWONGSE a/k/a Rajburi, Appellant.

UNITED STATES of America, Appellee, v. Boripat SIRIPAN, Appellant.

Nos. 82-5265(L), 82-5266.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1985.

Decided Aug. 28, 1985.

Robert L. Flax, Richmond, Va., Mary M. Runnells, Bloomfield, Ind., for appellants.

Ty Cobb, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore Md., Susan M. Marzetta, Third Year Law Student, on brief), for appellee.

Before MURNAGHAN, ERVIN and SNEEDEN, Circuit Judges.

ERVIN, Circuit Judge:

Boripat Siripan and Sihadej Chindawongse a/k/a Rajburi appeal their convictions by a jury for conspiring to distribute heroin and for conspiring to possess heroin with the intent to distribute, both in violation of 21 U.S.C. Sec. 846 (1982). In addition, Chindawongse appeals his conviction on two counts of distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). For his crimes, Chindawongse was sentenced to thirty years in prison and was fined $75,000. He also received a special parole term of six years. Siripan was sentenced to fifteen years in prison and was fined $15,000.

Chindawongse and Siripan now assert several different grounds for reversal on appeal. After careful consideration of each allegation of trial error, we are convinced that reversal is not required. Consequently, we refuse to disturb the appellants' convictions and affirm the judgments of the district court.

I.

In March and April of 1982, Paul Primiano agreed to purchase a substantial quantity of heroin from Alexander Steubing, an American citizen, and Boonyarit Voravithaya ("BV"), a Thai national travelling in the United States. On March 27, 1982, Steubing met BV in Los Angeles and together they drove to Chicago. While in Chicago, BV obtained 1 1/2 pounds of heroin from Sihadej Chindawongse, who at that time was serving as the Vice Consul of the Royal Consulate of Thailand in Chicago. On March 29, 1982, Steubing and BV drove to Carteret, New Jersey to meet Primiano and make the sale. On April 2, 1980, BV returned to Chicago and, two days later, flew back to New Jersey carrying with him another 1 1/2 pounds of heroin which he had received from Chindawongse. Upon BV's return, Steubing flew to Baltimore and distributed a small heroin sample to Gary Duggins. The next day, Steubing returned to New Jersey. On April 7, 1982, Steubing and BV travelled together to Baltimore and Steubing once again gave Duggins a small sample of heroin. On April 9, 1982, Steubing and BV were arrested as they attempted to flee from DEA agents in Baltimore. A search of their luggage uncovered a pound of 91% pure heroin and $54,670 in cash.

Upon his arrest, BV gave a complete and full confession and agreed to cooperate in facilitating the arrest of his co-conspirators by acting as an undercover agent. ¹ In this capacity, BV made a number of monitored tape recorded telephone calls to Viroj Chitmongkollert (a/k/a Ang) and Pirom Chongcharoen (a/k/a Dang), his alleged heroin suppliers and superiors in Thailand, to Chindawongse in Chicago, and to Primiano in New Jersey. Chitmongkollert and Chongcharoen told BV that he was to pay their messenger in New York City the $60,000 which BV at that time owed them. After the $60,000 payment was made, the Thai suppliers told BV he would be able to receive three pounds of heroin from Chindawongse in Chicago.

Pursuant to his instructions from Chitmongkollert and Chongchareon, BV telephoned Boripat Siripan in Room 902 at the Sheraton City Squire Hotel in New York City on April 15, 1982 and arranged a meeting for the following day. Siripan was registered in Room 902, and hotel records reflect that during his stay at the hotel he telephoned the numbers in Thailand used by Chitmongkollert and Chongchareon.

On April 16, 1982, while under DEA surveillance, BV met with Siripan in the lobby of the Sheraton City Squire Hotel. BV was carrying with him the $60,000 in cash. BV and Siripan had a drink together at the bar, and then entered the elevator. The elevator proceeded directly to the ninth floor. BV returned to the hotel lobby soon thereafter without Siripan or the $60,000 in cash.

Subsequently, BV proceeded to Chicago with DEA agents to receive the three pounds of heroin from Chindawongse that was now made available to BV as a consequence of his $60,000 exchange with Siripan. On April 20, 1982, BV received two pounds of 98% pure heroin from Chindawongse at the Little Corporal Restaurant in Chicago. The next day, after BV placed another call to Chitmongkollert in Thailand, BV received an additional pound of 98% pure heroin from Chindawongse at the same restaurant. Both transactions were under DEA surveillance. Finally, on April 27, 1982, Chindawongse retrieved a diplomatic pouch addressed to the Royal Consulate of Thailand at Chicago's O'Hare International Airport. Later that day, after taking the pouch back to the Thai consulate, Chindawongse was observed holding a "distinctive" bag outside the Thai consulate's office. Three days later, on April 30, 1982, Chindawongse was arrested in Chicago. A search of his home uncovered the same distinctive bag observed by DEA agents three days before. It contained 4 1/2 pounds of 98% pure heroin.

Meanwhile, on April 29, 1982, Chitmongkollert advised BV to meet with Siripan once again. BV was told to pay Siripan $240,000 which would enable BV to receive 4 1/2 pounds of heroin from Chindawongse in Chicago. Chitmongkollert gave BV a telephone number in California at which he would be able to contact Siripan. Subsequently, on May 2, 1980, DEA agents arrested Siripan at the address for which that California telephone number was listed. A search of Siripan's house revealed an address book with the telephone numbers in Thailand used by Chitmongkollert and Chongchareon, used plane tickets to New York confirming his presence in the city on April 16, 1982, another used ticket indicating his travel from Bangkok, Thailand to California on April 30, 1982, and a message in Thai, translated variously as "friend from Muangthong Housing Estate has gone to inquire about the [stuff, article or thing] instructed from Huahin." ²

One week later, on May 9, 1982, BV became the victim of an apparent suicide. Subsequently, Siripan and Chindawongse were indicted, tried by a jury, convicted of conspiring to distribute heroin and to possess heroin with intent to distribute, ³ and sentenced to substantial terms of imprisonment. Each now asserts two principal arguments for reversal of their convictions on this appeal.

II.

Siripan's principal contention on appeal is that BV's tape recorded conversations with Chindawongse and his co-conspirators were improperly admitted into evidence against Siripan because (1) the statements are hearsay, and (2) their admission violated the confrontation clause. We will consider each argument in turn.

A. Hearsay

Out-of-court statements made by co-conspirators "during the course of and in the furtherance of the conspiracy" are not hearsay and are admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence. However, in order for these statements to be admitted against a co-conspirator under this exception to the hearsay rule, the district court must first find " 'the existence of and the [defendant's] participation in the conspiracy' by a fair preponderance of independent evidence." United States v. Scott, 730 F.2d 143, 148 (4th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 572, 83 L.Ed.2d 512 (1985) (quoting United States v. Portsmouth Paving Corp., 694 F.2d 312, 320 (4th Cir.1982)); see also United States v. Hines, 717 F.2d 1481, 1488 (4th Cir.1983), cert. denied, sub nom., Jackson v. United States, --- U.S. ----, 104 S.Ct. 2656, 81 L.Ed.2d 363, 363 U.S. ----, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984). Siripan argues that the tape recorded conversations were erroneously admitted into evidence because there was no independent evidence that either the parties to the conversations or Siripan himself were involved in a conspiracy to import and distribute heroin. We disagree.

As an initial matter, the government clearly produced enough independent evidence to prove the existence of an international conspiracy to import and distribute heroin in the United States through the Royal Consulate of Thailand in Chicago. The testimony of various DEA agents, the introduction into evidence of numerous telephone, hotel and airline records, and the production of the physical evidence seized from the appellants and their co-conspirators together constitute "prima facie proof of the conspiracy." United States v. Vaught, 485 F.2d 320, 323 (4th Cir.1973). Consequently, our analysis shifts to a consideration of whether Siripan's participation in this conspiracy was proven "by a fair preponderance of independent evidence." Scott, 730 F.2d at 148.

The standard by which we must judge the sufficiency of Siripan's participation was set forth by this court in United States v. Laughman, 618 F.2d 1067, 1076 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) as follows:

"Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy."

(quoting United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977) (emphasis in original); see, e.g., United States v. Spoone, 741 F.2d 680, 685 (4th Cir.1984). "The evidence of the 'slight connection', however, must be of the quality which will reasonably support a conclusion that the defendant wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy." United States v. Miranda-Uriarte, 649 F.2d 1345, 1349-50 (9th Cir.1981).

In the...