U.S. v. Federico

• Citation: 658 F.2d 1337
• Decision Date: 21 October 1981
• Docket Number: No. 79-1684,79-1684
• Parties: 9 Fed. R. Evid. Serv. 260 UNITED STATES of America, Plaintiff-Appellee, v. Stephen FEDERICO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1337

658 F.2d 1337

9 Fed. R. Evid. Serv. 260

UNITED STATES of America, Plaintiff-Appellee, v. Stephen FEDERICO, Defendant-Appellant.

No. 79-1684.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 3, 1980.

Decided Oct. 13, 1981.

As Amended Oct. 21, 1981.

Victor Kenton, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Stephen Kramer, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before GOODWIN and ALARCON, Circuit Judges, and THOMPSON, ^* District Judge.

GOODWIN, Circuit Judge.

Federico appeals his conviction of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846; possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). He challenges the sufficiency of the evidence to support his conviction on all three counts and asserts that certain evidence was erroneously admitted.

A. Facts.

Wayne Gilbert, a DEA informant, and John Miller conversed by telephone on August 1, August 6, and August 7, 1979. Their conversations were taped with Gilbert's consent. Miller discussed obtaining cocaine to sell to Gilbert ¹ and arranged to deliver it to Gilbert at Los Angeles International Airport on August 8.

Gilbert flew to Los Angeles as planned. There he met with DEA agents to coordinate surveillance of the drug transaction. Agent Cintron, posing as Gilbert's friend, waited with him at the airport until Miller arrived. When Miller did arrive, he viewed $33,000 in cash, which had been placed in an airport locker, to verify that Gilbert had the money for the cocaine. Miller stated he did not have the cocaine with him but would obtain the cocaine from his supplier and return to the airport for the money. ² Cintron remained at the airport. Miller drove Gilbert in his white and green van to his nearby motel room. Agent Greene, who was in charge of the surveillance team, followed Miller and Gilbert. Agent Acuna followed in a separate vehicle.

Miller dropped Gilbert off in the parking area of the motel and proceeded to a Bank of America parking lot. He parked next to a brown Pontiac. Appellant Federico was in the driver's seat of the Pontiac, and a woman was in the passenger's seat.

Agent Acuna saw Miller leave his van carrying a briefcase and approach the passenger side of the Pontiac. After a brief conversation with the occupants of the car, Miller returned to his van. Both Miller and Federico then left the parking lot, Federico's Pontiac leading. Miller and Federico drove to an area near an airfreight terminal two blocks away. They parked near each other. Agents Greene and Acuna followed the vehicles and maintained separate surveillance.

Agent Acuna saw Federico get out of his car "holding a flowery shirt in his hand.... holding it in front of him with his forearm more or less level or parallel to the ground." Acuna saw Federico approach the van, but then lost sight of Federico and Miller for a minute or two. Acuna parked across the street. From this position Acuna saw Miller and Federico conversing for a few minutes before getting into their respective vehicles.

Agent Greene saw Miller and Federico leave their vehicles and meet at an area between the van and the terminal building. Greene testified at the subsequent trial that "(i)t was very difficult to see what, if anything, was happening between the two individuals, except they were talking." Greene then lost sight of the pair while he drove around the building and parked. After regaining sight of them, Greene saw Miller and Federico separate and get back into their vehicles.

Miller followed Federico out of the terminal area to the motel. Miller pulled his van into the parking lot and parked. Federico pulled in on the other side of the motel and made a U-turn without stopping. Greene and two other agents followed Federico. Acuna continued to watch Miller and the van.

After Federico dropped off his female passenger at an apartment building some distance away, he drove to a service station. Meanwhile, Miller met Gilbert at a room at the motel. He handed Gilbert a bag of cocaine. Gilbert tested the drug. The two then returned to the airport. Gilbert gave the bag to Agent Cintron. After testing the contents and handing the bag back to Gilbert, Cintron accompanied Miller to the locker. When she opened the locker, a prearranged signal, Miller was arrested by other surveilling agents.

Agent Greene was notified that Miller had delivered cocaine and had been arrested at the airport. About 30 minutes had elapsed from the time Federico had been followed from the area of the motel room. Greene and other agents approached Federico and asked for his identification. Federico consented to a search of his car for his driver's license. The agents found the license inside a notebook. The notebook contained Miller's name, address and phone number, and notations that may have been drug-related terms. A pair of binoculars was in plain view inside Federico's car. The agents seized the notebook and binoculars and placed Federico under arrest.

Federico and Miller were indicted on three counts. One count charged Federico and Miller with conspiracy to possess with intent to distribute the 440 grams of cocaine delivered to Gilbert. The indictment alleged that Federico had participated with Miller in organizing and putting into operation the scheme to distribute the cocaine. The indictment further alleged that Federico had delivered the cocaine to Miller to be given to Gilbert. The substantive counts were based on the acts described.

The joint jury trial of Miller and Federico produced evidence consisting of the testimony of Gilbert; testimony by DEA agents Greene, Cintron and Acuna; the taped conversations between Miller and Gilbert; the notebook and binoculars found in Federico's car; and expert testimony on the drug-related meaning of the entries in the notebook.

The testimony supported the factual narration given above. No direct evidence linked Federico to the plan to procure the cocaine and distribute it to Gilbert. ³ The content of the conversations between Miller and Federico on the date of the drug transaction remained unknown. However, from the time Miller left Gilbert at the motel to the time he returned some 30 minutes later with the contraband, Miller was seen with no person other than Federico and his companion in the Pontiac.

The expert witness testified that certain abbreviated terms in Federico's notebook were commonly-used references to amounts of drugs "gram," "bag," and "piece" but that there was no apparent correlation between notations containing those terms, construed as amounts of drugs, and numerical figures, construed as sums of money, contained in the notebook. Although Miller's name and phone number were listed in Federico's book, the expert testified to no relationship between notations in the notebook and the drug transaction between Miller and Gilbert. There was evidence that binoculars can be used in counter-surveillance, but there was no evidence that Federico had employed them for that purpose.

The court denied Federico's motion for judgment of acquittal made during the trial. The jury found Federico and Miller guilty on all three counts. The court sentenced Federico to concurrent five-year terms of imprisonment on Counts I and II with consecutive special parole terms of ten years on each. ⁴ The sentence on Count III, the distribution charge, was suspended and Federico was placed on probation for five years to run consecutive with the sentences on the first two counts.

B. Evidentiary Rulings.

Federico challenges the receipt in evidence of the notebook and the binoculars. The notebook was seized during a lawful arrest and was properly received in evidence. The binoculars likewise were lawfully seized.

These items met Fed.R.Evid. 401's threshold relevancy requirement. The existence of paraphernalia used in drug transactions makes Federico's conspiracy to distribute drugs more probable than it had been before admission of this evidence. The notebook containing Miller's name, phone number and drug notations and the binoculars were circumstantial evidence of Federico's knowledge and familiarity with drugs and drug transactions. ⁵

Nor did the trial judge abuse his discretion in admitting this evidence. Whether the prejudicial effect of evidence so far outweighs its probative value that the evidence is excluded is a determination in which the trial court is given wide discretion. See United States v. Martin, 599 F.2d 880, 889 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979) (admission of guns in trial of drug distribution and possession not an abuse of discretion). We cannot say that under the facts of this case that the trial judge abused his discretion in admitting the noncumulative evidence of the notebook and binoculars.

C. The Co-Conspirator's Statements.

Federico argues that the testimony of Gilbert and agent Cintron that Miller said he did not have any drugs and that he had to meet his supplier is hearsay and may not be considered against Federico. The government responds that the statements were admissible against Federico under the co-conspirator hearsay exception. Fed.R.Evid. 801(d)(2)(E).

It is well settled that statements by a co-conspirator are admissible against a defendant if evidence from a source apart from the statements established that a conspiracy existed and that the member against whom the conversation is introduced had knowledge of, and participated in, the particular conspiracy alleged. United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979) (quoting United States v. Testa, 548 F.2d 847, 852 (9th Cir. 1977)). The court, not the jury, determines the admissibility of the hearsay statements. ⁶ See United States v. Eubanks...