U.S. v. Meyers

• Decision Date: 02 June 1988
• Docket Number: No. 87-3087,87-3087
• Citation: 847 F.2d 1408
• Parties: 25 Fed. R. Evid. Serv. 1317 UNITED STATES of America, Plaintiff-Appellee, v. Anthony MEYERS, a/k/a Tony Meyers, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1408

847 F.2d 1408

25 Fed. R. Evid. Serv. 1317

UNITED STATES of America, Plaintiff-Appellee, v. Anthony MEYERS, a/k/a Tony Meyers, Defendant-Appellant.

No. 87-3087.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1988.

Decided June 2, 1988.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Mont., for defendant-appellant.

Pete Dunbar, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before TANG and CANBY, Circuit Judges, and THOMPSON, ^* District Judge.

TANG, Circuit Judge:

Anthony Meyers (Meyers) appeals his conviction following jury trial for conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1). Meyers challenges the sufficiency of the evidence against him and contends the district court erred in (1) denying his motion to transfer place of prosecution and trial; (2) admitting into evidence a chart summarizing certain phone calls and events; and (3) sentencing him to a 25 year term under the Narcotics Penalties and Enforcement Act of 1986 (1986 Act), rather than the prior 1984 Act.

We affirm the conviction. We also affirm the district court's sentencing of Meyers under the increased penalty provisions of 21 U.S.C. Sec. 841(b) as amended in the Narcotics Penalties and Enforcement Act of 1986. We conclude that the enhanced penalty provisions became effective immediately, on the date of enactment, October 27, 1986, and thus that the imposition of a 25 year term, as to this defendant whose underlying offense occurred after the effective date, was not error.

BACKGROUND

On February 25, 1987, an indictment was filed against Franz Magdalener (Magdalener) charging him with several offenses including conspiracy to distribute cocaine in the State of Montana and elsewhere. Approximately one month later, a superseding indictment was filed charging Magdalener and ten other individuals, including Meyers, with conspiracy to distribute cocaine in Montana and elsewhere. In April 1987, Meyers turned himself in to the FBI office in West Palm Beach, Florida. Pursuant to the order of the Montana district court, Meyers was transported to Montana for his arraignment on May 1, 1987 where he entered a plea of not-guilty. All of the defendants charged in the indictment, with the exception of Meyers and Jay Pinder, entered into plea agreements with the United States. After a four day trial in June, the jury returned its verdict of guilty against Meyers and Pinder.

At trial, Magdalener testified that in 1985, he and Terry Norman Toepper (Toepper) discussed obtaining a large amount of marijuana for importation into the United States and later discussed obtaining marijuana as well as cocaine for the purpose of resale. Toepper was residing in Bozeman, Montana and Magdalener was in Florida.

In October of 1986, Toepper approached the FBI in Bozeman, Montana and advised them that he had information about individuals engaged in the transportation of cocaine from Florida to Montana. In cooperation with the FBI, Toepper agreed to wear a recording device and to record his phone calls. In December of 1986, Toepper traveled to Florida to obtain a kilo of cocaine and remained there for approximately a week.

On December 12, 1986, Rusty Ward, an indicted co-conspirator, arranged for Toepper to meet John DeCicco, another indicted When they arrived in Davie, Meyers left DeCicco and Toepper at a shopping center and went to a house belonging to Miller. Upon returning to the shopping center, Meyers advised that he had received a couple hundred dollars from Miller. The three men then headed back toward Jupiter, Florida. Prior to leaving Fort Lauderdale, Toepper was shown some samples of cocaine by DeCicco and, according to Toepper, DeCicco said that these came from Meyers. Upon returning to Jupiter, the three men went to Brian's Bar. DeCicco and Toepper then dropped Meyers off at his home and went to another bar, which Toepper described as the Apple Bar Lounge. Rusty Ward called Toepper at this bar and told him to come to the Inlet Bar. At the Inlet Bar, Toepper gave Rusty Ward the keys to his rental automobile. After being there a short while, Ward returned the keys to Toepper and told him the brief case with the kilo was outside in the car behind the bar. The kilo of cocaine was then recovered by the FBI upon Toepper's return to his hotel. It was Toepper's contention that this kilo was intended to be shipped to Montana.

co-conspirator but fugitive as of this writing. After several attempts to contact individuals to obtain a kilo of cocaine, DeCicco and Toepper went to Jupiter, Florida, and met with appellant Meyers. After going to Meyers' house, Toepper, DeCicco and Meyers then proceeded to Davie, near Fort Lauderdale, to see "Mike," also known as Michael Miller.

DISCUSSION

I. Motion to Transfer Place of Prosecution and Trial

Meyers moved the district court, under Rules 18 and 21 of the Fed.R.Crim.P., to transfer the prosecution and trial against him to the appropriate United States District Court for the State of Florida on the grounds that (1) there was nothing to indicate his involvement in a conspiracy to distribute cocaine to Montana, and (2) his only overt acts, if any, occurred in Florida.

We review a ruling on a motion for change of venue for an abuse of discretion. United States v. Birges, 723 F.2d 666, 674 (9th Cir.), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d 472 (1984).

Rule 18 provides, in part, that "the prosecution shall be had in a district in which the offense was committed." Fed.R.Crim.P. 18. So long as overt acts in furtherance of the conspiracy occurred within the State of Montana, venue was proper in that district. As we have consistently explained, "venue is appropriate in any district where an overt act committed in the course of the conspiracy occurred." United States v. Schoor, 597 F.2d 1303, 1308 (9th Cir.1979); see also, United States v. Prueitt, 540 F.2d 995, 1006 (9th Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977); United States v. Barnard, 490 F.2d 907, 910 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). It is not necessary that Meyers himself have entered or otherwise committed an overt act within the district, as long as one of his co-conspirators did. See United States v. Williams, 536 F.2d 810, 812 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 110, 50 L.Ed.2d 106 (1976) (venue for conspiracy was proper in district in which appellant's co-conspirator committed overt act); cf., United States v. Parrish, 736 F.2d 152, 158 (5th Cir.1984) (venue of drug prosecution in Louisiana was proper, even as to defendant who was not shown to have ever been in Louisiana in furtherance of conspiracy). Thus, where at least two of Meyers' co-conspirators, Terry Toepper and Rusty Ward, committed numerous overt acts in Montana, venue was proper in that district.

II. Admission of Exhibit 15

Meyers also argues the district court erred in admitting under Fed.R.Evid. 1006, exhibit 15, a chart summarizing the phone calls and events observed by surveillance teams on December 12, 1986.

This Court reviews a district court's evidentiary rulings for an abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987).

                Even if error is found, nonconstitutional errors do not require reversal unless it is "more probable than not" that they affected the verdict.   United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir.1984);  Fed.R.Crim.P. 52(a)
                

The proponent of a summary of "voluminous writings" under Fed.R.Evid. 1006 must, in this Circuit, establish that the underlying materials upon which the summary is based are admissible in evidence. United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979); City of Phoenix v. Com/Systems, Inc., 706 F.2d 1033, 1038 (9th Cir.1983) (summary admissible only if underlying documents admissible, voluminous and available for inspection). Although the underlying materials must be "admissible," they need not be "admitted" in every case. Johnson, 594 F.2d at 1257, n. 6.

Exhibit 15 summarized (1) a record of long distance phone calls of various co-conspirators and (2) the surveillance logs of two FBI teams. At the time exhibit 15 was offered, the telephone logs had been admitted and FBI Special Agent Reid Robertson, head of the surveillance team of December 12, 1986 had fully testified. Later in the trial, Special Agent Gunnar Askeland, also a member of the surveillance team, testified and was cross-examined as to the contents of the chart and the matters observed on the day in question. The surveillance logs themselves had also been made available for inspection by the defense but were never formally admitted into evidence.

The surveillance reports, though not admitted, were admissible under the business record exception to the hearsay rule. Fed.R.Evid. 803(6). It is established that "entries in a police report which result from the officer's own observations and knowledge may be admitted, but that statements made by third persons under no business duty to report may not." United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983). The fact that two surveillance teams were operating on December 12, 1986 does not alter the fact that all the officers would have been "acting routinely, under a duty of accuracy, with employer reliance on the result." Id. (quoting Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982)). There is no evidence in the record indicating that the surveillance reports improperly incorporated the statements of third persons under no business duty to report. Thus, the Johnson test of underlying admissibility is satisfied in this case.

...