U.S. v. Dixon

• Decision Date: 13 July 1977
• Docket Number: No. 76-2446,76-2446
• Citation: 562 F.2d 1138
• Parties: 2 Fed. R. Evid. Serv. 357 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bruce DIXON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1138

562 F.2d 1138

2 Fed. R. Evid. Serv. 357

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bruce DIXON, Defendant-Appellant.

No. 76-2446.

United States Court of Appeals, Ninth Circuit.

July 13, 1977.

Rehearing and Rehearing En Banc Denied Nov. 8, 1977.

Robert W. Ripley, San Diego, Cal., argued for defendant-appellant.

Harry D. Steward, U. S. Atty., Jeff Arbetman, Asst. U. S. Atty., (on the brief), San Diego, Cal., argued for plaintiff-appellee.

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

Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, ^* District judge.

WALLACE, Circuit Judge:

Dixon was convicted after a jury trial of aiding and abetting the possession of 454 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and of conspiracy, in violation of 21 U.S.C. § 846. On appeal, he contends (1) that the evidence was insufficient to sustain his conviction; (2) that a hearsay statement was improperly admitted; and (3) that the prosecutor made improper and prejudicial remarks in his closing argument. We affirm.

I.

The government called two witnesses, Gregory Miller, an undercover police agent, and Edward Becker, the police officer who arrested Dixon. Miller testified that between 6:00 and 7:00 p. m. on March 5, 1976, an informer introduced him to Michael Lloyd Johnson at Johnson's residence. Previous to this meeting, the informer and another undercover police agent, Starks, had negotiated with Johnson for the purchase of one pound of cocaine for approximately $19,600. Miller was to consummate the deal. Johnson asked Miller to show him the money. Miller responded that he had the money but that it was a short distance from the residence. Miller, Johnson and the informer then went to a nearby service station where they met Robert Scanlon, another undercover police agent. Miller retrieved the money from the trunk of Scanlon's car and showed it to Johnson. Johnson asked if Miller "would front the money to him for the purchase of the cocaine," but Miller refused. Johnson replied that "he would have to make a telephone call to his connection and try to have the cocaine fronted to him rather than (Miller) front the money to him for the cocaine."

After placing the call from a nearby public telephone, Johnson stated that delivery would be made at his residence in one hour. Miller responded that he would call at 9:00 p. m. to verify that the cocaine had in fact been delivered.

When Miller called, the informer answered and stated that complications had arisen. He requested that Miller pick him up. Miller did so and the two then drove a short distance to a meeting with other agents involved in the case. At 9:25, Miller and the informer returned to the Johnson residence and parked in front. A man later identified as Steven Gallagher entered Miller's car. The informer left and Gallagher and Miller discussed the cocaine transaction. Gallagher told Miller that the money would have to be given to him before the cocaine could be delivered. Miller refused and stated he would not hand over the money until he saw the cocaine he was to purchase. The two then worked out a rather elaborate plan to effectuate the sale.

Miller followed Gallagher to Scanlon's location, then the three, each in a separate vehicle, drove to a location on Forward Street which was dark, quiet and in a residential neighborhood. Miller took the money from Scanlon and directed him to leave. Gallagher then left and was gone for approximately 10 to 20 minutes. When he returned he had a passenger with him, Dixon. Gallagher parked his pick-up approximately 100 feet behind Miller's car. Leaving Dixon in the pick-up, Gallagher entered Miller's car. In Miller's words, after Gallagher

sat down he asked me if I had the money. I told him that I had the money, it was in the trunk. I wasn't going to show or give the money till I'd seen the cocaine. Mr. Gallagher told me that he couldn't get the cocaine fronted to him, so he had to bring along the man.

After Gallagher produced the package of cocaine and assured Miller that it was genuine, Miller gave the arrest signal.

At the time of the signal, Officer Becker was waiting as a passenger in an unmarked van around the corner from the scene of the sale on Forward Street. When directed over the police radio to move in, the van's driver drove on to Forward Street to a point behind Gallagher's pick-up. By the time Becker was approaching the pick-up, several officers and police vehicles had already reached Miller's car and were placing Gallagher under arrest. At least one of those officers had drawn his gun. Distinctive markings on the officers' apparel indicated that they were police. As he approached the pick-up, Becker saw Dixon attempting to crouch down in the truck cab. As the van came closer, Dixon slowly opened the passenger door several inches and then, when the van reached the pick-up, he bolted from the truck and ran across the front lawn of the nearest residence. Becker pursued and after a chase of 50 feet closed the gap. With gun drawn, Becker ordered Dixon to stop. Dixon complied.

II.

Before Miller testified, Dixon's counsel, aware of Gallagher's statement to Miller regarding the need to bring "the man," moved to keep Miller from repeating the statement until the government succeeded in establishing a conspiracy and tying Dixon to it. The district judge stated that he would permit the statement under the rule governing statements of coconspirators, Rule 801(d)(2)(E), Fed.R.Evid., subject to being stricken if the government did not eventually succeed in tying Dixon to an established conspiracy with independent evidence. When Miller began to testify regarding the statement, Dixon objected but was overruled. The statement was never stricken and, without question, played a crucial role in the prosecution.

Under the Federal Rules of Evidence, certain statements of coconspirators are not hearsay. Rule 801(d)(2)(E) provides that a "statement is not hearsay if . . . (t)he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." In the present case, the relevant prerequisites to admission of Gallagher's statement are embodied in the word "coconspirator": The government must show by evidence independent of the statement (1) that a conspiracy existed and (2) that Dixon was a member of it.

Regarding the quantum of evidence required, it is now well settled in this circuit that "substantial independent evidence, other than hearsay . . . enough to make a prima facie case" is sufficient. United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). This evidence "need not compel a finding beyond a reasonable doubt." Id. Further, the requisite substantial evidence need not be unchallenged. As in analogous cases involving appellate review of the facts, we should view the evidence and make inferences in a light most favorable to the prevailing party. See id. at 613; see also United States v. Costey, 554 F.2d 909, 910 (9th Cir. 1977, amended April 20, 1977); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). Also, the substantiality of the independent evidence establishing the second element the defendant's complicity in the conspiracy need only be slight if the first element the existence of the conspiracy is already clearly established. See United States v. Calaway, supra, 524 F.2d at 612-13. This conclusion follows inevitably from the well-settled rule that only slight evidence showing the defendant's complicity in a clearly established conspiracy is sufficient to sustain his or her conviction for conspiracy. E. g., United States v. Costey, supra, 554 F.2d at 910; United States v. Perry, 550 F.2d 524, 529 (9th Cir. 1977); United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976); United States v. Calaway, supra, 524 F.2d at 612-13. It would be anomalous to require a greater quantum of evidence to admit the statements of coconspirators than is required to sustain the defendant's conviction.

Clearly, the evidence was abundant as to the existence of the conspiracy. The only serious question is whether there was the requisite slight evidence to connect Dixon to it.

We believe that the independent evidence presented connecting Dixon to the conspiracy was sufficient to permit the introduction of Gallagher's statement. The most reasonable inference to draw from Gallagher's departure from Forward Street, his absence for 10 to 20 minutes and his return with Dixon and the cocaine especially when all this is viewed in the context of the prior negotiations with the undercover police agents and the informer is that Gallagher, during his absence, secured the cocaine and that Dixon was in some way knowingly connected with that act. This view is reinforced by the implausibility of the inference that Gallagher, after taking elaborate precautions, brought an innocent and unwitting bystander to the very scene of the drug transfer.

Moreover, this reasonable inference of Dixon's membership in the conspiracy is only a part of the prosecution's independent evidence. When the police arrived to arrest Gallagher and were visible to Dixon, he first attempted to hide by crouching down. Then, as the police drew nearer to his hiding place, he bolted and attempted to flee. Consciousness of guilt, and therefore guilt itself, can be inferred from this conduct. Rossetti v. United States, 315 F.2d 86, 87 (9th Cir.), cert. denied, 375 U.S. 814, 84 S.Ct. 45, 11 L.Ed.2d 49 (1963).

In determining whether the requisite slight evidence was presented, all of the circumstances must be considered "collectively, not in isolation." United States v. Calaway, supra, 524 F.2d at 612. When we analyze the whole web of circumstances which has been spun in this...