U.S. v. Jaramillo-Suarez

• Decision Date: 16 December 1991
• Docket Number: JARAMILLO-SUARE,No. 89-50313,D,89-50313
• Citation: 950 F.2d 1378
• Parties: 34 Fed. R. Evid. Serv. 1093 UNITED STATES of America, Plaintiff-Appellee, v. Fabioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1378

950 F.2d 1378

34 Fed. R. Evid. Serv. 1093

UNITED STATES of America, Plaintiff-Appellee, v. Fabio JARAMILLO-SUAREZ, Defendant-Appellant.

No. 89-50313.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1991.

Decided Aug. 23, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc Dec. 16, 1991.

Donald M. Re, Los Angeles, Cal., for defendant-appellant.

Steven D. Clymer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before FLETCHER and CANBY, Circuit Judges, and McNICHOLS, Chief District Judge, sitting by designation.

CANBY, Circuit Judge:

Fabio Jaramillo-Suarez (Suarez) appeals his conviction for conspiracy, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Suarez contends that numerous evidentiary and procedural errors committed at trial warrant reversal of his conviction. We disagree and affirm.

BACKGROUND

In September 1986, agents from the California Department of Justice, Bureau of Narcotic Enforcement (BNE) began an investigation of Suarez by conducting a surveillance of his activities. They identified a certain apartment in San Juan Capistrano as one frequently used by Suarez. ¹ The agents also determined that Suarez drove a 1986 blue BMW and had a girlfriend named Carmen Wilkinson.

On September 11, 1986, agents saw Suarez leave the San Juan Capistrano apartment in the BMW. He drove to a gas station approximately two miles from the apartment and used a pay telephone for approximately one hour to make and receive calls. Suarez left the gas station and drove to a shopping center in Costa Mesa, where he met codefendant Michael Eliott. Eliott had arrived at the center in a blue Chevrolet pickup truck. Suarez got into the truck, and he and Eliott drove across the street to a Roadway Inn.

Suarez and Eliott later left the Roadway Inn, each driving his own vehicle. The two men stopped at two shopping centers, but neither of them entered any stores. At the second center, Suarez and Eliott switched vehicles. After the car switch, the surveilling officers lost sight of Suarez in traffic for approximately ten to fifteen minutes.

One of the agents located Eliott's blue pickup truck in the open garage of an apartment in Laguna Niguel. Suarez was not in the truck. During the next hour and one-half, the agents saw other persons checking snaps on a cover of the cargo area of the truck. At the end of that period, Suarez drove the truck back to the shopping center.

In the meantime, Eliott had left the shopping center parking lot in Suarez' BMW and had driven around erratically, with no apparent destination. Eliott returned to the parking lot about ten minutes after Suarez arrived there in the truck. The two men went into a restaurant in the shopping center. In the restaurant, an agent overheard Suarez tell Eliott that he could not take care of him today but that he would take care of him tomorrow. Eliott responded by telling Suarez that tomorrow would be no problem.

Approximately a half hour later, Suarez and Eliott left the restaurant. While in the parking lot, Suarez removed some of the snaps on the cover to the truck's cargo area and pointed into the truck bed while talking to Eliott. Suarez then closed the cover, shook hands with Eliott, and left in his BMW. Suarez returned to the San Juan Capistrano apartment and Eliott returned to the room at the Roadway Inn.

The following day, September 12, 1986, Suarez left the San Juan Capistrano apartment and made telephone calls for approximately thirty minutes from a pay telephone at a gas station. At the same time, an agent in the room next to Eliott's room heard the telephone ring and heard a person state, "I'll see you around noon."

After making the telephone calls, Suarez returned to the San Juan Capistrano apartment. Later codefendant Berrios, arriving in a Suzuki Samurai, entered the apartment carrying a bulging manila envelope. Berrios and Suarez then left the apartment, with Suarez carrying an envelope that appeared to be the same one that Berrios had carried into the apartment. Suarez drove his BMW to the Roadway Inn. The surveillance team did not see Suarez initially meet Eliott nor did they see Suarez give Eliott the envelope.

The agents did observe Suarez and Eliott walking near the Roadway Inn. The two men then drove off in the BMW and made several stops. They came back to the Roadway Inn, and then traveled to the San Juan Capistrano apartment each in his own vehicle. At the apartment, they loaded some packages into Eliott's pickup and drove together in the BMW to Dana Point where they spent approximately two hours before returning to the San Juan Capistrano apartment. Eliott returned to the Roadway Inn.

In the late afternoon of the following day, September 13, 1986, agents observed Eliott loading his truck and checking out of the Roadway Inn. As Eliott drove away, police and BNE agents stopped him. Eliott consented to a search of his truck. During the search, BNE agents found a manila envelope containing $25,500 in a briefcase. A dog trained to detect cocaine "alerted" on both the envelope and Eliott's truck.

On the basis of the evidence just described, the BNE agents obtained search warrants for the Laguna Niguel and San Juan Capistrano apartments. During the execution of the search warrant at the Laguna Niguel apartment, the BNE agents detained Berrios as he attempted to back the Samurai out of the garage. In the apartment, the agents found eighty-one kilograms of cocaine in four boxes and a suitcase. The agents also found numerous paper and plastic bags, money bags, tape, and a heat sealer at the apartment.

At the San Juan Capistrano apartment, the BNE agents forced the door and found Suarez' girlfriend inside. In the master bedroom, the agents found $130,000 in a briefcase, registration slips for a 1985 BMW vehicle and a 1986 BMW motorcycle, ² and $8,000 and a pay/owe sheet in the top drawer of a dresser.

On September 22, 1986, border patrol agents at a secondary check point in San Clemente stopped a vehicle in which Suarez was a passenger. The federal agent found fifty-one $100 bills in Suarez' shoe. He also discovered Suarez' driver's license and a digital telephone paging device wedged between the console and passenger seat where Suarez had been seated. Suarez was arrested.

On appeal, Suarez contends that numerous errors occurred at trial, any one of which constitutes reversible error. We address each of these contentions in turn.

Analysis

I. Pay/Owe Sheet

Suarez contends that the district court erred by admitting into evidence a "pay/owe" sheet found at the San Juan Capistrano apartment. He claims the pay/owe sheet constitutes inadmissible hearsay not falling within any of the exceptions allowed by the Federal Rules of Evidence. ³ Suarez further contends that, even if the pay/owe sheet falls within one of the hearsay exceptions, the government failed to lay the foundation required by United States v. Ordonez, 737 F.2d 793 (9th Cir.1983). Specifically, Suarez contends that the government failed to establish that he had authored or was in any way connected to the pay/owe sheet.

As an alternative argument to those based on the rule against hearsay, Suarez contends that if the pay/owe sheet was properly admitted to prove the apartment was used for drug trafficking, the district court erred by permitting a government agent to testify as an expert witness that the document found was a pay/owe sheet and that a pay/owe sheet is a common form of recording drug transactions.

Finally, Suarez contends that the admission of the pay/owe sheet violates Federal Rule of Evidence 404(b), by permitting evidence of a defendant's prior bad acts to prove his propensity to commit the crime charged. We reject all of Suarez' contentions.

A. Hearsay

Initially, Suarez asks too much of Ordonez, 737 F.2d 793, when he cites it for the proposition that drug-related documents are inadmissible for all purposes because they constitute hearsay. Ordonez simply holds that the rule against hearsay prohibits the admission of drug ledgers and pay/owe sheets to prove the truth of the matters asserted in them unless a proper foundation has been laid; Ordonez does not prohibit the use of the documents for all purposes. ⁴ Most relevant for present purposes is our statement in Ordonez that the rule against hearsay does not stand as a bar to the admission of ledgers as "circumstantial evidence 'to show the character and use of the place where the [ledgers] were found....' " Id. at 799, (quoting United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976)). Cf. United States v. Crespo De Llano, 838 F.2d 1006, 1018 (9th Cir.1987) (firearms, cash, mobile telephones, and paging devices found in a house were admissible as "probative of an overall narcotics trafficking conspiracy"); United States v. Bernal, 719 F.2d 1475, 1477-78 (9th Cir.1983) (scale, vials, a calculator and attached notation pad, plastic bags, zip lock bags, and money admissible as evidence of narcotics trafficking). The pay/owe sheet in the present case was admitted for the specific and limited purpose of showing the character and use of the San Juan Capistrano apartment. Its role is no different from that played by the very large amounts of cash found in the same apartment. Because the pay/owe sheet's probative value for the limited purpose for which it was admitted was independent of the truth of its contents, the rule against hearsay was not implicated and the requirement of "a proper foundational showing for admitting the records to prove the truth of the matters asserted" was not triggered. See United States v. Lai, 944 F.2d 1434, 1444 (9th Cir.1991) (citing Ordonez, 737 F.2d at 799, 805-06).

Our conclusion is in accord with that...