U.S. v. Gomez

Decision Date30 January 1987
Docket NumberNos. 84-1555,84-1583 and 84-1584,s. 84-1555
Citation810 F.2d 947
Parties22 Fed. R. Evid. Serv. 659 UNITED STATES of America, Plaintiff-Appellee, v. Gerardo Antonio GOMEZ, a/k/a Jerry Gomez, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mickey CROCKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kelly Lynn HANLON, a/k/a Leslie Ann Warren, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, Okl. (Layn R. Phillips, U.S. Atty., Tulsa, Okl., was also on the brief) for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., was also on the brief) for defendant-appellant Gerardo Antonio Gomez.

Paul D. Brunton, Tulsa, Okl., for defendant-appellant Mickey Crocker.

Larry A. Gullekson, Gullekson, Thompson & Daniels, Tulsa, Okl., filed a brief for defendant-appellant Kelly Lynn Hanlon.

Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and SAFFELS, District Judge *.

HOLLOWAY, Chief Judge.

This case arises out of a large-scale "hub conspiracy" centered in Tulsa, Oklahoma, and Miami, Florida. Count one alleged that all three defendants--Gerardo Gomez, Kelly Hanlon and Mickey Crocker--were engaged in a conspiracy to possess cocaine with intent to distribute. Count two alleged that defendant Hanlon possessed approximately nine ounces of cocaine on October 7, 1982, with intent to distribute. Pursuant to a jury verdict, the trial court entered a judgment of conviction against each of the defendants on count one and Hanlon on count two. 1 We affirm.

I.

The factual background

Considered as it must be at this juncture in the light most favorable to the jury's verdict, the record tends to show the following:

In 1980 David Bradshaw met defendant Gomez in Florida. Shortly thereafter Bradshaw began purchasing large quantities of cocaine from Gomez. On some of these occasions Bradshaw would travel alone to Miami for the transaction; at other times he would go with his girlfriend, defendant Hanlon. Later Bradshaw enlisted the assistance of Terry Smith and Leon Miller, who would go to Florida to make the purchase from Gomez and then deliver the cocaine to Bradshaw at his home in Watts, Oklahoma. Bradshaw would then sell the cocaine to a number of "retailers," including Stanley Tucker, Terry Smith, Leon Miller, John Smith, Greg Clark, Thomas Henderson, Charles Binney and Sharon Lawrence. Tucker, in turn, sold part of the cocaine he received to defendant Crocker.

Bradshaw distributed most of the cocaine in Tulsa. Typically he and Hanlon would rent a hotel room for a few days where they would prepare the cocaine for sale and make the exchange. After one such session at the Howard Johnson's Inn on October 7, 1982, Bradshaw and Hanlon were stopped in a stolen vehicle on a Tulsa highway. During the ensuing search of the trunk, police officers found $4750 in cash, 239 grams of cocaine, and a telephone book containing encoded telephone numbers for "Jerry" and several of Bradshaw's customers in a section entitled "Frequently Called Numbers." Bradshaw was then arrested and Corporal Harold Wells drove Hanlon home.

Defendants Gomez and Hanlon elected not to put on any evidence. Crocker called one witness, Roseann Carrothers, who testified that she had purchased cocaine from Crocker, but she did not identify Crocker as one of her cocaine sources when asked to name such individuals during questioning at the trial of Jim Darby. IV R. 753-55.

II.

Gomez' and Hanlon's challenges to the admissibility of

out-of-court statements by David and J.D. Bradshaw

Because much of the Government's proof consisted of out-of-court declarations by David and J.D. Bradshaw, the court held a pretrial hearing to determine whether the anticipated testimony was admissible under the coconspirator exception codified in Fed.R.Evid. 801(d)(2)(E). Under that exception, out-of-court declarations by coconspirators are admissible if the Government can first establish, by substantial independent evidence, that a conspiracy existed in which the declarant and the defendant against whom the statement was offered were members of it. Moreover, on appropriate motion at the conclusion of all the evidence, the court must specifically find, from a preponderance of the evidence, that these two elements were met and that the statements were made during the course and in furtherance of the conspiracy. United States v. Petersen, 611 F.2d 1313, 1330-31 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980). The trial court found that the Petersen-Andrews requirements were met and allowed several Government witnesses to testify regarding out-of-court declarations by David Bradshaw and his father. Because the issues presented by Hanlon and Gomez differ in several respects, we will address their contentions separately.

A.

Gomez' appeal

The court allowed several Government witnesses--including Stanley Tucker, Terry Smith and Greg Clark--to testify that David Bradshaw had identified defendant Gomez as his supplier of cocaine. On appeal, Gomez argues that these rulings were erroneous because: (1) the court did not make a finding at the close of all the evidence regarding the sufficiency of the foundation under the coconspirator exception; (2) there was insufficient independent evidence to connect Gomez to the conspiracy; (3) the out-of-court statements were not "in furtherance" of the conspiracy; and (4) admission of the evidence violated Gomez' Sixth Amendment right of confrontation.

1.

Necessity of findings at the close of all the evidence

As noted, the court conducted a pretrial hearing to determine whether David Bradshaw's out-of-court declarations were admissible under Fed.R.Evid. 801(d)(2)(E). At the conclusion of that hearing, the court held that the statements were admissible, finding that the Government had presented substantial independent evidence that a conspiracy existed in which Bradshaw and Gomez were members. After the Government had presented all of its evidence at trial, defendant Gomez moved for a judgment of acquittal and "renew[ed] all previous motions previously noted." The court overruled the motion and reaffirmed its earlier ruling that Bradshaw's out-of-court declarations were admissible under Fed.R.Evid. 801(d)(2)(E). 2 Subsequently, after the defense rested, Gomez' counsel stated: "I would again move for a judgment of acquittal pursuant to Rule 29, and renew all my prior motions." That motion was also overruled. In this appeal, Gomez argues that the court erred in failing to make a finding, based on a "preponderance of the evidence" standard, regarding each of the three elements enunciated in Petersen.

The trial court must make the required findings regarding the three elements of Rule 801(d)(2)(E) if the defendant objects on hearsay grounds. See United States v. Alfonso, 738 F.2d 369, 371 (10th Cir.1984) (per curiam). Here the district court made extensive findings with respect to each of the three elements of Rule 801(d)(2)(E) before admitting Bradshaw's out-of-court statements. Nonetheless, Gomez points out that the court did not explicitly apply the "preponderance of the evidence" standard at the close of all the evidence. As we said in Petersen, however, such a procedure is necessary only if the defendant makes an "appropriate motion." 611 F.2d at 1330-31; see also United States v. Rivera, 778 F.2d 591, 596 (10th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1384, 89 L.Ed.2d 609 (1986). While the defendant need not specifically ask for such findings, he must at least alert the court to the fact that he is objecting on hearsay grounds. See United States v. Monaco, 700 F.2d 577, 581 n. 3 (10th Cir.1983). In this case defense counsel did no more than move for a judgment of acquittal and renew all of his previous objections made during the course of this four-day trial. We do not think that such an objection is sufficiently specific to alert the court to the need for additional findings pursuant to Petersen. See United States v. Bulman, 667 F.2d 1374 & n. 7 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); see also Fed.R.Evid. 103(a)(1).

We hold that the court did not commit reversible error in admitting Bradshaw's out-of-court declarations without making additional findings on the record, at the close of the testimony, based on a "preponderance of the evidence" standard.

2.

Sufficiency of the evidence regarding Gomez' connection to

the conspiracy

Gomez also argues that the Government did not present sufficient independent evidence to connect him to the conspiracy. We disagree and hold that the court's ruling under Rule 801(d)(2)(E) was supported by a preponderance of the evidence.

First, several Government witnesses testified that they had seen Gomez selling cocaine to Bradshaw and Miller. Terry Smith testified that he and Leon Miller met Gomez at a Miami shopping center in August 1982. When Gomez arrived Miller gave him a suitcase. Gomez then entered Smith's automobile and directed him to an apartment complex. When they arrived Gomez disappeared with the suitcase. A few minutes later someone returned and placed the same suitcase in the back of the car. Smith then drove his wife and Leon Miller to Oklahoma. Greg Clark also saw Gomez in Miami. Clark testified that he had met Bradshaw and Miller at a Miami hotel in order to buy one kilogram of cocaine. Bradshaw made some phone calls and waited for Gomez to arrive. Eventually Gomez arrived and Bradshaw handed him a shopping bag containing approximately $100,000 in cash. Gomez put the bag in the trunk and he and Bradshaw entered the car and drove away. Bradshaw was gone approximately one to two hours. Bradshaw then met Clark at the hotel and handed him the shopping bag, which now contained approximately five kilograms of cocaine. Clark took one...

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