U.S. v. Miranda-Uriarte

• Decision Date: 06 July 1981
• Docket Number: MIRANDA-BELTRA,D,Nos. 80-1520,80-1521,MIRANDA-URIART,s. 80-1520
• Citation: 649 F.2d 1345
• Parties: 8 Fed. R. Evid. Serv. 982 UNITED STATES of America, Plaintiff-Appellee, v. Rubenefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1345

649 F.2d 1345

8 Fed. R. Evid. Serv. 982

UNITED STATES of America, Plaintiff-Appellee, v. Ruben MIRANDA-URIARTE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Javier MIRANDA-BELTRAN, Defendant-Appellant.

Nos. 80-1520, 80-1521.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1981.

Decided July 6, 1981.

John Gallagher, Gallagher, Soley & Gollmer, Inc., Fresno, Cal., for defendant-appellant in $ 80-1520.

Edward P. Moffat, Asst. Federal Defender, Fresno, Cal. for defendant-appellant in $ 80-1521.

Phillip S. Cronin, Asst. U. S. Atty., Fresno, Cal., for United States in both cases.

Appeal from the United States District Court Eastern District of California.

Before KILKENNY and SNEED, Circuit Judges, and GRANT, District Judge. ^*

KILKENNY, Circuit Judge:

On April 10, 1980, appellants Uriarte and Beltran, together with Israel Parra-Rojo (Parra), were jointly indicted on Count I for conspiracy to distribute heroin ¹ and on Count II for possession with intent to distribute heroin. ² Additionally, Parra was indicted on Count III for a violation of 21 U.S.C. § 843(b) (telephonic communication for facilitating the commission of a felony), and Beltran was charged in Count IV with unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). The case was tried before a jury in late June, 1980. The firearm allegation was dismissed at the close of all the evidence. The jury returned guilty verdicts on all remaining counts against the defendants. On July 21, 1980, Uriarte and Beltran were sentenced to five year terms on Count I and five year terms on Count II with a special parole term of three years as to Count II. The sentences were ordered to run concurrently. Each appellant appeals from his judgment of conviction and sentence.

FACTUAL BACKGROUND

Gregorio Nunez (Nunez), who has been an undercover informant for the Drug Enforcement Administration (DEA) for the last seven years, testified at trial about his efforts to arrange a purchase of heroin. Nunez posed as the agent for the prospective buyer DEA agent Camarena. Nunez and Camarena had, in January or February of 1980, negotiated a heroin sale with Parra. Parra acted as a broker in obtaining a source of supply.

In March, Nunez attempted to arrange another heroin sale through Parra. This transaction led to the charges in the instant case. Nunez, on March 18, 1980, met with Parra who discussed the possibility of a heroin sale from his brother-in-law, Uriarte. Nunez was also furnished a sample. Nunez testified as to Parra's statements that Uriarte was the source of the sample and that Uriarte would be the source of the heroin for the proposed transaction.

Nunez testified that on March 20, 1980, he met with all three defendants at Parra's home to discuss a sale of twenty ounces of heroin. Nunez was furnished a second sample allegedly from Uriarte. The government contends that this sample was turned over to Camarena on March 27, 1980, and introduced into evidence as Government's Exhibit No. 1.

The negotiations continued over the next seven days. On March 21, 1980, Nunez met with Parra and Uriarte to discuss the sale. On or about March 24, 1980, Nunez was furnished a third sample from a man called Marcos. Marcos snorted this sample. On March 26, 1980, Nunez met with Parra, Uriarte, and Marcos, and Uriarte said that he only had ten ounces of heroin available. Later that day, Nunez met with Parra, Uriarte, and Beltran at Parra's home, and Beltran told Nunez that if this sale went smoothly they would sell him four kilos of heroin at a later date.

On March 27, 1980, Uriarte and Beltran met with Nunez and Parra at the latter's home. Uriarte explained that the first sale would only be for five ounces, but that if everything went well they would have four kilos of heroin available for sale. After Parra phoned Camarena to confirm the sale and the possible future purchases, Uriarte drove Nunez, Beltran, and Parra to Visalia in his car. Enroute, Uriarte told Beltran to put the gun under the seat. Nunez, although he never actually saw the weapon, saw Beltran bend forward and down in his seat in response to Uriarte's statement. Nunez also testified that Beltran threatened to kill him if the police showed up. Uriarte and Parra also allegedly made similar threats during the trip. During the trip, Beltran also apparently told Nunez that there would be more heroin available at a later date.

While enroute to Visalia, Parra and Nunez made a phone call to Camarena and the parties arranged to meet at the Goshen Bus Depot. The parties met at the depot and Parra introduced Camarena to Uriarte and Beltran. In response to questions, Uriarte informed Camarena that everything was ready and that he had five ounces of heroin with him. Uriarte retrieved a tinfoil package from the car and Camarena told the parties he had $14,000.00 with him, $500.00 for Parra's "broker fee." After receiving the opened package, Camarena first asked Uriarte if it was good and Uriarte replied affirmatively. Camarena asked Beltran if it was good and Beltran replied that it was good. Camarena stated that he wished to purchase twenty more ounces of heroin. Parra replied that they could deliver that amount the next day, but Uriarte stated that Camarena would have to wait a week.

Camarena and the agent who had accompanied him then left the meeting at the car, ostensibly to get the purchase money. These two agents then gave a pre-arranged arrest signal and the authorities moved in for the arrest. The tinfoil package with the five ounces of heroin was retrieved from the ground next to Uriarte's car along with a .38 caliber revolver from underneath the seat where Beltran allegedly had been seated when arrested. The five ounces of heroin were introduced as Government's Exhibit No. 2 and the gun as Government's Exhibit No. 3.

ISSUES

I. Whether it was error to admit several coconspirator statements.

II. Whether the evidence was sufficient to convict Beltran of conspiracy and possession.

III. Miscellaneous issues.

A. Whether the court misinstructed the jury regarding the use of coconspirator statements.

B. Whether the court abused its discretion in admitting Government's Exhibit No. 1.

C. Whether the court erred in ruling that Uriarte could be cross-examined on the gun.

DISCUSSION

I.

A. Coconspirator Statements.

FRE 801(d) provides: "A statement is not hearsay if (2) The statement is offered against a party and is (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2)(E) requires a foundation that (1) the declaration was in furtherance of the conspiracy, (2) it was made during the pendency of the conspiracy, and (3) there is independent proof of the existence of the conspiracy and of the defendant's connection thereto. United States v. Eubanks, 591 F.2d 513, 519 (CA9 1979). It is the responsibility of the trial judge to determine whether a sufficient foundation has been established for declarations to be admissible under the coconspirator exception. Eubanks, supra. The order of proof is within the sound discretion of the trial judge, United States v. Zemek, 634 F.2d 1159, 1169 (CA9 1980), who may conditionally admit coconspirator statements subject to a later motion to strike. In ascertaining whether the foundation has been established, we can, therefore, consider all the evidence independent of the challenged statements, regardless of the order of proof. United States v. Batimana, 623 F.2d 1366, 1369 (CA9 1980), cert. denied, -- U.S. --, 101 S.Ct. 617, 66 L.Ed.2d 500 (1981). In addition, the evidence is to be considered in a light most favorable to the government. United States v. Dixon, 562 F.2d 1138, 1141 (CA9 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978).

The quantum of independent proof required in this circuit is "sufficient, substantial evidence to establish a prima facie case that the conspiracy existed and that the defendant was part of it." United States v. Weiner, 578 F.2d 757, 768 (CA9 1978) (Emphasis supplied), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651; Dixon, supra. Once the existence of the conspiracy has been clearly established, independent evidence is necessary to show prima facie the defendant's connection with the conspiracy, even if the connection is slight. Weiner, supra, at 769. The evidence of the "slight" connection, however, must be of the quality which will reasonably support a conclusion that the defendant wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy. United States v. Testa, 548 F.2d 847, 853 (CA9 1977).

1. Uriarte.

Uriarte urges that Nunez should not have been permitted to testify as to Parra's statements on March 18, 1980, to the effect that Uriarte was the source of the first sample and the source of the heroin for the proposed transaction. He says that these statements were not admissible under FRE 801(d)(2)(E) because there was no independent evidence that a conspiracy existed as of March 18, 1980, or that Uriarte was a member of the conspiracy as of that date. The statements were admitted over objection. Uriarte did not, however, object that the testimony was hearsay ³ or that its admission would violate the confrontation clause. In fact, Uriarte has not brought to our attention any indication that the confrontation issue was ever presented to the trial judge.

There is, admittedly, no direct evidence, apart from the challenged statements, which establishes Uriarte's involvement in the conspiracy as of March 18, 1980. We believe, however, that the circumstantial evidence presented was sufficient to permit a reasonable juror to conclude that a conspiracy, of which Uriarte was a member, existed as of March 18, 1980. The government presented evidence of a chain of events from March 18, 1980, to March 27,...