U.S. v. Foster

• Decision Date: 13 December 1983
• Docket Number: Nos. 81-1765,81-1778 and 82-1057,81-1779,s. 81-1765
• Citation: 711 F.2d 871
• Parties: 13 Fed. R. Evid. Serv. 1883 UNITED STATES of America, Plaintiff-Appellee, v. Gregory FOSTER, Johnnie Lee Gibson, Billy Jackson, Ronald H. Wilson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 871

711 F.2d 871

13 Fed. R. Evid. Serv. 1883

UNITED STATES of America, Plaintiff-Appellee, v. Gregory FOSTER, Johnnie Lee Gibson, Billy Jackson, Ronald H.

Wilson, Defendants-Appellants.

Nos. 81-1765, 81-1779, 81-1778 and 82-1057.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 4, 1982.

Decided July 26, 1983.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 13, 1983.

Judith S. Feigin, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Judith S. Feigin, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Michael Pancer, San Diego, Cal., for Gregory Foster.

Christopher Schatz, Sheela, Lightner, Hughes, Castro & Walsh, San Diego, Cal., for Johnnie Lee Gibson.

George Hunt, San Diego, Cal., for Billy Jackson.

Victor S. Eriksen, San Diego, Cal., for Ronald H. Wilson.

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

Before ROBB, ^* SCHROEDER and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Appellants Gregory Foster, Johnnie Gibson, Billy Jackson, and Ronald Wilson were each found guilty of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition, appellant Foster was convicted of twenty counts of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); appellants Jackson and Wilson were found guilty of one count of possession of heroin with intent to distribute; and appellant Gibson was found guilty of two counts of possession of heroin with intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). We affirm the convictions on all counts.

Appellants have raised numerous issues on this appeal which we discuss below.

I. SUFFICIENCY OF THE EVIDENCE

A. Conspiracy

Gibson, Wilson, and Jackson contend that the evidence was insufficient to establish that they participated in the conspiracy charged in the indictment.

When reviewing the sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

We must determine whether the trier of fact could reasonably arrive at its conclusion. All reasonable inferences must be drawn in favor of the government, and circumstantial evidence is sufficient to sustain a conviction. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982).

In reviewing the sufficiency of the evidence, we must first determine whether the charged conspiracy was proved.

The government produced evidence at trial which showed that Foster was the head of a group of persons who were engaged in the illegal distribution and sale of heroin in the San Diego area. The organization operated in the following manner. The heroin was sold in the streets by pushers. When a customer was obtained for a supply of heroin, the pusher would telephone an answering The foregoing evidence is clearly sufficient to prove the existence of the conspiracy charged in the indictment.

                service number and leave a message for his supplier.   The supplier in turn would be contacted through his beeper.   The supplier would obtain the telephone number of the pusher and determine the amount of heroin necessary to fill the order.   This amount would then be delivered to the pusher.   Foster and others obtained and packaged the heroin for such distribution and sale.   The heroin was cut with dextrose and placed in balloons which were placed in plastic bags.   Each plastic bag contained eleven balloons.   The wholesale price to the pusher for eleven balloons was $195.00.   The pusher could then sell the heroin at $25.00 for each balloon.   The pusher thus realized a profit of $80.00 for each package of eleven balloons sold
                

We next proceed to analyze the evidence offered by the government to connect Gibson, Wilson, and Jackson.

1. Gibson was linked to the Foster enterprise by a substantial amount of evidence. Minyon Logan testified that Gibson gave her a beeper and that on numerous occasions she received packages of heroin from him to sell. Logan's ledger contained many references to drug transactions involving Gibson. Her ledger also contained many names of persons given to her by Gibson as potential "runners" (pushers). Further, she testified that she observed Foster and Gibson, together, cutting and filling balloons.

A beeper was found during the search of Gibson's residence. Invoices for the beeper showing Gibson's name were also discovered. Gibson was also linked to the Foster organization through the controlled heroin purchase made by Harvey Callier and Marco Banks, on September 25, 1979. This purchase involved the use of beepers. Gibson was connected to the purchase because the delivery of the heroin was made in a car registered to him. ¹

2. Wilson

Dixie Boyles testified that she made several heroin purchases directly from Wilson, including one purchase on May 8, 1980 involving two bags of heroin.

Wilson's residence was searched on May 8, 1981. A traffic ticket was discovered during the search. It was received by Wilson while he was driving a car registered to Foster. Wilson's personal phonebook contained the names Gibson, Turner, and the initials "F.A." The evidence showed that Turner and Fred Arnold were members of the Foster enterprise.

The evidence also showed that Wilson had rented a beeper from the same firm used by other members of the Foster group. Wilson was shown to have received numerous calls on the beeper. ²

3. Jackson

On December 13, 1979, Harvey Callier purchased two balloons of heroin from Jackson. This transaction was recorded. Jackson's statements during the course of the transaction showed familiarity with the Foster organization. Jackson told Callier that Greg (Foster) had quit and that neither he nor his "lieutenants" had any drugs. Moreover, Jackson referred to the recent arrest of two members of the organization. He stated that the arrests had scared Foster and that he was going to lay low for awhile. Evidence was introduced that the initials "B.J." were found on pieces of paper at the homes of Foster, Fulford and Cordova. Fulford and Cordova were heavily involved in the Foster organization.

Logan stated that Gibson had given her the name of "B.J." as a potential runner. This was corroborated by the fact that "B.J." was written in her ledger. There was evidence in the record that Jackson was known by the initials B.J "Once the existence of a conspiracy is shown, 'evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.' " United States v. Fleishman, 684 F.2d at 1340-41 (quoting United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977) (emphasis in original)).

We are persuaded from a review of the entire record and the specific evidence summarized above that there was ample evidence of more than a slight connection between Gibson, Wilson and Jackson to the conspiracy.

B. Substantive Counts

Wilson challenges his conviction on Count Thirteen for possession of two balloons of heroin on May 8, 1980 with intent to distribute. Wilson was charged in this count with a sale of heroin made to Boyles. Boyles' uncorroborated testimony was heavily impeached by prior inconsistent statements.

Boyles' testimony was not inherently implausible. Her testimony was sufficient to support the conviction. Because a witness' credibility is a matter for the jury to resolve, there was sufficient evidence to support the conviction on the substantive count. United States v. Rojas, 554 F.2d 938, 943 (9th Cir.1977).

Jackson challenges his conviction on Count Seven for possession of two balloons of heroin on December 13, 1979, with intent to distribute. Jackson contends that there is no proof that the drug purchased was in fact heroin. We disagree.

Agent Ashcraft testified that the two balloons sold by Jackson on that date were later determined to be heroin.

The above testimony is arguably hearsay. Jackson, however, did not object to its admission.

Thus, the general rule applies that "where there is no objection to hearsay evidence, the jury may consider it for whatever value it may have; such evidence is to be given its natural probative effect as if it were in law admissible." United States v. Johnson, 577 F.2d 1304, 1312 (5th Cir.1978); United States v. Bey, 526 F.2d 851, 855 (5th Cir.1976), cert. denied, 426 U.S. 937, 96 S.Ct. 2653, 49 L.Ed.2d 389 (1976).

It is also possible that Ashcraft was testifying as to his own opinion based on his prior education and training, field observations, and a chemical analysis of the contents of the balloons.

It is true that no foundation for such an opinion appears in the record. There was no objection on this ground. An objection would have afforded the government an opportunity to present whatever evidence was available to lay a foundation for the admission of the contents of the balloons.

It is our view that sufficient evidence was introduced to support Jackson's conviction on the substantive count.

II. SUFFICIENCY OF THE AFFIDAVIT

On May 8, 1981, government agents executed a series of search warrants at the residences of the defendants. The warrants were based on allegations contained in a single affidavit presented to the magistrate by Agent Williams.

Conceding that the affidavit contained sufficient information to justify their arrest, Foster and Gibson instead contend that the affidavit did not establish probable cause to search their residences. Foster additionally argues that the trial court should have granted his motion for...