U.S. v. Frayer, PEREZ-MURGUIA
| Decision Date | 29 November 1993 |
| Docket Number | Nos. 92-3048,92-3129,PEREZ-MURGUIA,92-3168 and 92-3262,s. 92-3048 |
| Citation | 9 F.3d 1367 |
| Parties | UNITED STATES of America, Appellee, v. Leon FRAYER, Appellant. UNITED STATES of America, Appellee, v. Gary HANEY, Appellant. UNITED STATES of America, Appellee, v. Ambrosio, also known as Hueto, Appellant. UNITED STATES of America, Appellee, v. Larry HANEY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Sam T. Heuer, Little Rock, AR, argued, for Frayer.
Bobby R. McDaniel, Jonesboro, AR, argued, for Gary Haney.
Milton A. DeJesus, Little Rock, AR, argued, for Perez-Murguia.
Andrew L. Clark, Little Rock, AR, argued, for Larry Haney.
Kevin T. Alexander, Asst. U.S. Atty., Little Rock, AR, argued (Richard M. Pence, U.S. Atty., and Todd Newton and Laura E. Partlow, on the brief), for U.S.
Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.
Leon Frayer, Gary Haney, Ambrosio Perez-Murguia, and Larry Haney appeal their convictions for conspiracy to distribute cocaine and marijuana. Leon Frayer also appeals his firearm conviction. We affirm the convictions of Frayer, Gary Haney, and Perez-Murguia. We reverse the conviction of Larry Haney.
The indictments in this case were the result of an investigation by agents of the United States Customs Service and the Drug Enforcement Agency (DEA). The investigation began in early 1991, when an informant introduced Customs Service Agent John Turner to Jerry Massey (sometimes known as Hershel Massey), a drug-dealer living near Saltillo, Mexico. After that introduction, Agent Turner, using the alias of "John Anthony," had numerous telephone conversations with Massey, and Agent Turner recorded each one. In those taped conversations, Agent Turner and Massey extensively discuss drug transactions. Through his investigation, Agent Turner came to believe that Massey was the "kingpin" of a large drug operation. Although Massey was indicted in this case, he is incarcerated in Mexico and was not extradited to stand trial in these proceedings.
In early summer 1991, Massey agreed to sell Agent Turner 150 pounds of marijuana at $750 a pound. Agent Turner planned to have another undercover agent on the Mexican border take delivery of the marijuana from an individual known to the agents as "Paco" and pay Paco $90,000. Agent Turner would then meet Massey's representative in Little Rock and pay that individual $22,500. Payment of the $22,500 was contingent on completion of the delivery. On July 2, 1991, Agent Turner met Larry Haney in the parking lot of AP's Seafood, in Jacksonville, Arkansas. Their conversation was electronically monitored. Larry Haney told Agent Turner that he and his brother, Gary, could "move every pound you can get." During the meeting, Larry called Gary from a pay phone, and handed the phone to Agent Turner. Agent Turner testified that Gary told him that something had gone wrong in Mexico and that the deal was off. Larry contends that he knew nothing about a drug deal. He testified that he thought his brother, Gary, was involved in a leather importing business and that Gary sent him to the restaurant to pick up some paperwork. Larry and Gary Haney were involved in the flea market business and there was evidence that merchandise is referred to in pounds in the flea market business.
After the marijuana deal fell through, Agent Turner and Massey negotiated for the sale of 100 kilograms of cocaine. One kilogram would be "fronted" and delivered to Agent Turner in Little Rock, Arkansas, and Agent Turner would pick up the remainder in Houston, Texas. On September 6, 1991, Massey told Agent Turner that a man named "Hueto" would deliver the kilogram of cocaine to Little Rock. A week later, Agent Turner and Agent Fehrenbach of the DEA met "Hueto," a/k/a Perez-Murguia, at the Otter Creek Holiday Inn in Little Rock. Perez-Murguia delivered one kilogram of cocaine and arrangements were made for the other 99 kilograms to be delivered in Houston, Texas, later in September 1991.
On September 13, 1991, Agent Turner contacted both Massey and Perez-Murguia to arrange to pay for the kilogram that had already been delivered and to arrange delivery of an additional 150 kilograms of cocaine. The agreed-upon price for the cocaine was $2,625,000 to be paid on delivery in Houston plus $500,000 to be paid to Massey. On September 17, 1991, Agents Turner and Fehrenbach met Perez-Murguia in Houston. The agents paid Perez-Murguia $16,500 for the kilogram that had been fronted to them, and flashed over $400,000 in cash to show that they could pay for the rest. The meeting was video-taped. Undercover agents did not take delivery of the cocaine because Perez-Murguia refused to deliver the cocaine to the hotel and Agent Turner was not willing, for security reasons, to go to a warehouse to pick up the cocaine.
In October and November 1991, Agent Turner continued negotiations with Massey for further drug transactions. In early December, Massey agreed to deliver 40 kilograms of cocaine to Agent Turner's representatives in Dallas for $21,500 per kilogram (a total sale price of $860,000). Of that price, $19,500 per kilogram was to be paid at the time of delivery in Dallas and $2,000 per kilogram ($80,000) was to be paid to people in Arkansas working under Massey's direction: $20,000 to Frayer and $60,000 to Gary Haney. Agent Turner also convinced Massey to advance him $3,000 in travel expenses, feigning unhappiness about having travelled to Houston without completing a drug deal. Massey told Agent Turner that a man named "Leon" would meet him with the money.
On December 4, 1991, Leon Frayer met Agent Turner at AP Seafood in Jacksonville, Arkansas. Frayer gave Agent Turner $3,000 in one-hundred dollar bills for travel expenses. In conformity with the plans made earlier by Agent Turner and Massey, Agent Turner then took Frayer to a motel in North Little Rock and Frayer checked in. Frayer was directed to wait in the motel room until the deal in Dallas was completed. Agent Fehrenbach called Frayer three times at the motel. In one conversation, Frayer mentions delivering money to "Gary." Agent Fehrenbach later called Frayer to report that the transaction had been completed and to tell him that she would pick him up at the motel to pay him the money.
Frayer was arrested as he left the motel. Police officers searched him and found a loaded .22 caliber handgun and brass knuckles in his jacket pockets. He consented to a search of his motel room and the searching officers found notes in his room containing the names "John," "Hershel Massey," "Gary Haney," and "Ralph Cagle" (Cagle is Massey's associate). Frayer was later interviewed by police and admitted that he had wired money to Massey in early summer 1991 for a "wacky-tobacky" (marijuana) deal.
Meanwhile, on that same day, December 4, 1991, Agent Turner and Massey again made telephone contact to finalize the deal. Massey told Agent Turner to put $63,000 in an ice chest and to deliver it to Gary Haney (this amount included repayment of the travel advance). Gary Haney then called Agent Turner (using a phone number Agent Turner had given only to Massey) to arrange a meeting at the Waffle House in Little Rock. Both Gary Haney and Larry Haney met Agents Turner and Fehrenbach in the parking lot of the Waffle House. Their conversation was electronically monitored. The Haneys were later arrested in the parking lot. Meanwhile, DEA Agent Vic Routh and Perez-Murguia were executing the drug sale in Dallas. Perez-Murguia was arrested as he attempted to sell eight kilograms of cocaine to undercover Agent Routh.
After their arrests, each defendant was charged with a separate conspiracy to distribute cocaine and to distribute marijuana. Frayer was also charged with use of a firearm in connection with a drug offense.
Prior to trial, the defendants moved to depose Massey, who was incarcerated in Mexico. The district court allowed the deposition of Massey by telephone. In his deposition, Massey asserted the Fifth Amendment with regard to his own culpability. He also stated that he had told the Haney brothers that he was in the leather importing business and that they were not aware he was actually in the drug business.
At trial, the district court initially sustained the government's motion to strike Massey's deposition testimony. Defense counsel were instructed not to refer to the deposition in their opening statements. Midway through the trial, however, one of the defense counsel inadvertently referred to the deposition. After a conference outside the presence of the jury, the government withdrew its motion to strike and the district court admitted Massey's deposition testimony. The district court also offered the defendants an opportunity to supplement their opening statements, which the defendants declined.
The jury found Gary Haney guilty on both conspiracy counts. Frayer was found guilty on the marijuana conspiracy and the firearm counts. Perez-Murguia was found guilty on the cocaine conspiracy count. Larry Haney was found guilty on the marijuana conspiracy count.
Appellants assert numerous errors, only a few of which merit discussion. Perez-Murguia contends that his conviction puts him in double jeopardy because he had already been convicted for distribution--one of the overt acts in furtherance of the conspiracy--in federal district court in Texas. Leon Frayer contends: 1) that there is insufficient evidence to convict him on the marijuana count; 2) that the district court erred in refusing to allow discussion of the Massey deposition in opening statements; 3) that the district court erred in allowing hearsay from Massey's deposition to be introduced; 4) that he was prejudiced by remarks from a co-defendant's attorney; and 5) that the district court erred in allowing...
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