U.S. v. Moody

• Decision Date: 06 June 1986
• Docket Number: Nos. 84-5379,84-5380,s. 84-5379
• Citation: 778 F.2d 1380
• Parties: 19 Fed. R. Evid. Serv. 1454 UNITED STATES of America, Plaintiff-Appellee, v. Donald Eddie MOODY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard George HOLLENBECK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1380

778 F.2d 1380

19 Fed. R. Evid. Serv. 1454

UNITED STATES of America, Plaintiff-Appellee, v. Donald Eddie MOODY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Howard George HOLLENBECK, Defendant-Appellant.

Nos. 84-5379, 84-5380.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 4, 1985.

Decided Dec. 17, 1985.

As Amended March 11, 1986.

As Amended June 6, 1986. ^*

Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Peter Brown, Brown, Baron, Madden & Gailen, Beverly Hills, Cal., for defendant-appellant.

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

Before WALLACE, CANBY and BEEZER, Circuit Judges.

WALLACE, Circuit Judge:

Moody and Hollenbeck appeal their convictions for conspiracy to import a controlled substance, conspiracy to possess a controlled substance with intent to distribute, and conspiracy to travel in foreign commerce in aid of racketeering, in violation of 18 U.S.C. Secs. 371, 1952(a)(3) and 21 U.S.C. Secs. 846, 963. We have jurisdiction under 28 U.S.C. Sec. 1291.

Moody and Hollenbeck argue on appeal that testimony of a coconspirator was improperly admitted, that portions of the grand jury testimony of several trial witnesses were improperly withheld from them in violation of the Jencks Act, 18 U.S.C. Sec. 3500, that testimony of one government witness should not have been allowed because it was obtained pursuant to a plea bargain, and that they are victims of impermissibly selective prosecution. We affirm.

I

In 1972, a group known as the Coronado Company began smuggling controlled substances into the United States. We outlined the factual background of this operation in United States v. Bibbero, 749 F.2d 581, 582-83 (9th Cir.1984),cert. denied, --- U.S. ----, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985) (Bibbero ). In 1979, Moody and Hollenbeck agreed with the Coronado Company to procure approximately two tons of Thai stick marijuana in Thailand and ship it to the United States in a Coronado Company vessel. Profits were to be divided equally between them and the Coronado Company. The contraband was smuggled successfully into the United States at a remote beach in Northern California, and distributed to Moody and Hollenbeck and distributors of the Coronado Company.

Later that year, a similar but larger smuggling operation was planned. On this occasion, the importation worked less smoothly, resulting in a loss of a substantial part of the six tons of Thai sticks. Moody and Hollenbeck recovered their $100,000 investment and, after discussions with the Coronado Company, received an additional $15,000.

Several members of the Coronado Company entered into plea agreements and testified at the trial of Moody and Hollenbeck. The questions on appeal relate to aspects of these witnesses' testimony.

II

Lahodny was one of the main figures in the Coronado Company. Vaughan had substantial responsibility in the company. Over objection, Vaughan was allowed to testify that Lahodny stated that Moody and Hollenbeck would procure the marijuana in Thailand.

Moody and Hollenbeck do not argue that the conspiracy was not proven nor that the evidence admitted did not prove their connection with it. Rather, they contend that this evidence should have been excluded as hearsay because it was not made in furtherance of the conspiracy. The ruling of the district judge that it was made in furtherance of the conspiracy must be upheld unless clearly erroneous. United States v. Silverman, 771 F.2d 1193, 1199 (9th Cir.1985); see United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (McConney ).

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if it is "offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Lahodny was certainly a central member of the Coronado Company. At trial, counsel for Moody and Hollenbeck referred to Vaughan as one of the "big people" in the Coronado Company conspiracy. Moody and Hollenbeck acknowledge in their brief that Vaughan was regarded as a "headmaster of the Coronado Company and was in charge of operations of the off-loading of the marijuana from the boats onto the shore." They also admit that information usually was shared between the conspirators only on a "need-to-know" basis. Nevertheless they would have us conclude that statements made by Lahodny to Vaughan, explaining that they would journey to Thailand to obtain marijuana for the Coronado Company conspiracy, were not made in furtherance of the conspiracy.

Moody and Hollenbeck rely heavily on Bibbero, where we held that the district court erred in admitting testimony regarding the statement of a coconspirator associated with the Coronado Company. Coconspirator Logie testified that Vaughan had told him that certain marijuana he observed being loaded on a truck belonged to the defendant Bibbero. We held Vaughan's statement inadmissible as hearsay because it was not made to further the conspiracy. 749 F.2d at 583.

The present case is sharply distinguishable. In Bibbero the coconspirator's statement amounted to "mere conversation" not in furtherance of the conspiracy. 749 F.2d at 583. The statement was made to Logie, who, although he was the ship-to-shore off-loading equipment manager for one of the Coronado Company conspiracy's smuggling operations, had a very limited role in subsequent aspects of the operation. We emphasized that "[b]ecause of Logie's limited responsibilities as equipment manager, Vaughan's statement of ownership was immaterial to him"--and of no consequence in the furtherance of the conspiracy. 749 F.2d at 584.

By contrast, Lahodny's statement to Vaughan was made to one who possessed a substantial interest in the continuing operation of the conspiracy and who participated in the planning stages of its marijuana smuggling. While Logie was paid a flat rate for his limited services, Vaughan possessed an 11% interest in the net profits of Coronado Company smuggling operations. According to uncontradicted testimony, Vaughan helped to determine questions as important as where the marijuana would be shipped. We cannot accept the contention that Lahodny engaged in idle conversation when he told Vaughan that Moody and Hollenbeck were the parties who, according to plan, would travel to Thailand to procure the marijuana for the Company to smuggle.

In their reply brief, Moody and Hollenbeck raise an additional ground for excluding the challenged statement: the government "has not overcome the Sixth Amendment confrontation issue." This issue was not raised at trial. We deem it waived, and will not consider it. See, e.g., United States v. Coleman, 707 F.2d 374, 376 (9th Cir.), cert. denied, 464 U.S. 854, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983); United States v. Roberts, 583 F.2d 1173, 1175 (10th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979).

III

Relying again on Bibbero, Moody and Hollenbeck contend next that the trial court violated the Jencks Act, 18 U.S.C. Sec. 3500(c), by excising portions of grand jury testimony given by witnesses who testified against them at trial. The Jencks Act provides in part that

(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use.

18 U.S.C. Sec. 3500(c) (emphasis added). Jencks Act determinations are reviewed for an abuse of discretion. United States v. Miller, 771 F.2d 1219, 1229 (9th Cir.1985) (Miller ); United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir.1983).

In Bibbero, the government produced versions of material subject to the Jencks Act only after making its own deletions of purportedly irrelevant material. We reversed because the determination of relevancy had not been made by the district court, as required under the statute. 749 F.2d at 585; see also Miller, 771 F.2d at 1229-32. The case before us is different. Here, the determination to excise portions of the grand jury testimony of government witnesses was made by the district court. In addition, the district court in this case reevaluated those excisions in light of their relationship to testimony as the trial developed.

We need not consider the related argument of Moody and Hollenbeck that the district judge applied an incorrect standard in determining what portions of the grand jury testimony should be excised. The Act provides that

If ... any portion of such statement is withheld from the defendant and the defendant objects to such withholding, ... the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the holding of the trial judge.

18 U.S.C. Sec. 3500(c) (emphasis added). The Act clearly contemplates appellate review only if the defendant first objects before the district court. See Ogden v. United States, 303 F.2d 724, 733 (9th Cir.1962), cert. denied on later appeal, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964). The government states that no such timely objection was made. Moody and Hollenbeck do not contend otherwise. Thus, because "the defendants failed to urge the asserted error at a time when the court could have made the necessary correction, the contention comes too late on appeal to show reversible error." United...