U.S. v. Kearney

• Decision Date: 22 August 1977
• Docket Number: 75-3021,Nos. 76-1320,s. 76-1320
• Citation: 560 F.2d 1358
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cleophas James KEARNEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eugene LEMON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1358

560 F.2d 1358

UNITED STATES of America, Plaintiff-Appellee, v. Cleophas James KEARNEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Eugene LEMON, Jr., Defendant-Appellant.

Nos. 76-1320, 75-3021.

United States Court of Appeals, Ninth Circuit.

Aug. 22, 1977.

William A. Brockett, argued, of Kipperman, Shawn & Keker, San Francisco, Cal., for defendants-appellants.

Billie A. Rosem, argued, Crim. Div., Dept. of Justice, Washington, D. C., Dennis Michael Nerney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before DUNIWAY, CARTER and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Cleophas James Kearney and Eugene Lemon, Jr. appeal from their convictions for conspiring to illegally import, possess, and distribute a controlled substance, and for unlawfully distributing the same. We affirm.

I. FACTS AND PROCEEDINGS BELOW

Kearney, Lemon, and two co-defendants, Andre Willis King and Fred Neil Powell, were charged in an eight-count indictment with various federal narcotics offenses under 21 U.S.C. §§ 841(a)(1), 846, 959 and 963. The defendants and several unindicted co-conspirators were accused of planning and executing a scheme to obtain heroin in Thailand, to transport it to Japan via military cargo channels, and then to smuggle it into the United States for ultimate sale and distribution.

In preparation for trial, and pursuant to 18 U.S.C. § 3503, the Government deposed Thomas Adams and Thomas Gamble, two unindicted accomplices who were incarcerated in Japan for violations of Japanese narcotics laws. The defendants and their counsel were permitted to attend the deposition proceedings in Japan at Government expense, but they departed on the fourth day of the Adams deposition, complaining of allegedly intolerable circumstances surrounding the taking of the depositions. The Government continued to take the remainder of Adams' deposition and all of Gamble's notwithstanding the absence of the defense. Substantial portions of these depositions were eventually presented at trial on videotape.

Jury trial commenced in San Francisco on April 28, 1975. Although Lemon and Powell were both convicted on the unlawful distribution count, the jury was unable to reach a decision as to the remaining counts and defendants, and a partial mistrial was declared. Upon retrial, with all objections to the deposition proceedings made at the first trial incorporated by reference, Kearney was acquitted on the charge of unlawful distribution of a controlled substance intended for importation into the United States, but was convicted, along with Lemon, on the rest of the counts. Both were sentenced to 25-year terms of incarceration.

II. ISSUES

Kearney and Lemon raise several issues on appeal, five of which have already been resolved against them in the related appeal of co-defendants King and Powell, United States v. King, 552 F.2d 833 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). Accordingly, the following issues and allegations of error do not merit further discussion here: (1) the facial unconstitutionality of 18 U.S.C § 3503, see 552 F.2d at 838-41; (2) the unconstitutionality of § 3503 as applied, see 552 F.2d at 841-44; (3) the denial of effective assistance of counsel, see id.; (4) the need for a curative instruction with respect to co-conspirators' statements, see id. at 846-49; and (5) whether the trial court's rereading of a portion of the deposition testimony to the jury was an abuse of discretion, see id. at 849-50. With respect to these issues, we adhere to our holdings in King that the district court did not err.

New issues raised here by appellants will be considered below.

A. Joinder of Conspiracies

Appellants assert that the Government swept several discrete conspiracies into a single conspiracy count, and that this was a misjoinder which worked to their prejudice, effecting "guilt transference" by associating them with co-defendants involved in other criminal acts. In so contending, appellants confuse separate acts at separate times with separate conspiracies. Almost any venture, criminal or legitimate, is analyzable into a series of bits, each of which, in turn, is characterizable as an independent plan or goal. The standard for determining the existence of a single conspiracy, however,

" . . . is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy . . . ."

United States v. Hobson, 519 F.2d 765, 775 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975), quoting United States v. Ellsworth, 481 F.2d 864, 869 (9th Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973).

Here, the evidence is clearly sufficient to show one overall scheme. The Government proved that each defendant knew, or had reason to know, that others were involved in a broad project for the illegal transportation and distribution of narcotics, and that his benefits were probably dependent upon the success of the entire operation. See United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir. 1977); United States v. Baxter, 492 F.2d 150, 158 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). Proof that an alleged co-conspirator knew that he was plotting in concert with others to violate the law is sufficient to raise the necessary inference that he joined in the overall agreement. See Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960). It need not even be shown that an alleged co-conspirator knew all of the purposes of and all of the participants in the conspiracy. Hobson, supra at 775. Once the existence of a conspiracy is independently shown, only slight evidence is necessary to connect a defendant to it. United States v. Peterson, 549 F.2d 654, 657 (9th Cir. 1977).

An examination of the record shows that both appellants were involved in the same conspiracy as co-defendants King and Powell and the unindicted co-conspirators. Indeed, there was ample evidence that Kearney and Lemon were far more than mere "messenger boys," the characterization offered by them to minimize the importance and intimacy of their involvement. ¹ The evidence reveals that appellants knew they were engaged with others in a single, though geographically and temporally extensive, criminal venture for the smuggling and distribution of narcotics. Compare Baxter, 492 F.2d at 158 & n.7. ² Nothing in United States v. Ingman, 541 F.2d 1329 (9th Cir. 1976) involving two "hub" conspirators, two groups of conspirators, two geographic areas, two time spans, and hence two conspiracies provides authority for a contrary conclusion. There was no misjoinder.

Appellants also argue that they were entitled to a jury instruction on the potential for finding multiple conspiracies under Kotteakos v. United States, 328 U.S. 750, 767-77, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). We disagree. Having carefully reviewed the record, we conclude that there was no variance between the allegations of the indictment and the evidence presented at trial. The court's instructions on this issue were sufficient. See Hobson,519 F.2d at 775; United States v. Polizzi, 500 F.2d 856, 877 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Ellsworth, 481 F.2d at 869.

B. Further Trial Objections to Deposition Testimony

Appellants aver that the district court erred in failing to entertain objections at trial regarding the admissibility of portions of the videotape deposition testimony taken after appellants and their counsel departed the proceedings in Japan. They contend that the court improperly relied upon the newly revised Federal Rule of Criminal Procedure 15(f) in advance of its effective date. ³ The Government responds that, rather than there having been a prospective application of Rule 15(f), under 18 U.S.C. § 3503(b) itself, ⁴ unjustified absence from the deposition proceedings waived all objections to the taking and use of the depositions. ⁵

We addressed the scope of § 3503(b) in King. There, we held in the alternative that, at least for purposes of objection under the confrontation clause as an objection dependent upon the right to be present the defendants had waived objections to the taking and use of the testimony. 552 F.2d at 843-44. In a later portion of that opinion, however, we also noted that a § 3503(b) waiver might not be broad enough to eliminate procedurally all other objections, 552 F.2d at 847, and we then addressed and resolved the merits of an objection to the timing of a requested curative instruction, see id. at 847-49.

Section 3503(g) calls for objection to deposition evidence "as provided in civil actions," and, in turn, under the relevant civil rules, only objections which can be obviated if presented at the time of the taking of the deposition are waived if not presented at that time, Fed.R.Civ.P. 32(d)(3)(A) & (B). ⁶ We therefore do not agree with the extensive sweep of the Government's contention.

There is a dispute in the record as to whether the defense was afforded an opportunity, during the pretrial videotape editing proceedings, to supplement objections made while present at the Adams deposition with further objections on various grounds to portions of the Adams and Gamble depositions taken while defendants and their counsel were absent. Were it shown that the district court gave clear notice that the time to interpose objections to videotape evidence was during the pretrial proceeding the function of which was to prepare, in advance of courtroom presentation, a manageably edited tape and that, in the face of such notice, a party nevertheless declined to offer such objections as he had, yet another waiver theory might be advanced. Rule 32 does not go so far as to provide litigants with a blanket,...