U.S. v. Ordonez
| Decision Date | 11 July 1984 |
| Docket Number | 82-1508,Nos. 82-1506,s. 82-1506 |
| Citation | 737 F.2d 793 |
| Parties | 15 Fed. R. Evid. Serv. 1972 UNITED STATES of America, Plaintiff-Appellee, v. Oscar ORDONEZ, German Hernandez Garcia, aka Jaime Rivera, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George L. O'Connell, Los Angeles, Cal., for plaintiff-appellee.
Stanley I. Greenberg, Joseph T. Vodnoy, Los Angeles, Cal., for defendants-appellants.
Appeal from the United States District Court for the Central District of California.
Before ALARCON and NORRIS, Circuit Judges, and EAST *, District Judge.
German Hernandez-Garcia, also known as Jaime Rivera, and Oscar Ordonez were each found guilty of conspiracy to possess and distribute cocaine (21 U.S.C. Sec. 846) and two counts of possession of cocaine with the intent to distribute it (21 U.S.C. Sec. 841(a)(1) (Count 2 and Count 7). Ordonez was found guilty of an additional count of possession of cocaine with the intent to distribute it (Count 2) and of the crime of occupying the position of organizer, supervisor, or manager of a continuing criminal enterprise (21 U.S.C. Sec. 848) (Count 14).
We must decide whether entries in a ledger were admissible to prove (1) the existence of a conspiracy or acts in furtherance thereof, (2) the corpus delicti of the crime of possession of cocaine with intent to distribute it, and (3) that a person is a leader of a continuing criminal enterprise, where the identity of the person who made the notation in the record is unknown.
We have concluded that insufficient foundational facts were presented to demonstrate the admissibility of the entries to prove the truth of the matter asserted. Accordingly, we must reverse the possession and continuing criminal enterprise charges because the government failed to lay a proper foundation for the admissibility of the entries to prove essential elements of these offenses.
We reverse the conspiracy charge because of the prejudicial impact of the inadmissible ledger entries on the jury's fact finding function.
We have also determined that the court committed prejudicial error in the manner in which it disposed of appellant's motion to disclose the identity of the informer.
We have set forth the facts in considerable detail to assess the effect of the court's erroneous evidentiary rulings on the fairness of the trial.
A. Pertinent Facts Presented at Trial
Surveillance by law enforcement officers of several locations in Southwest Los Angeles On the same date, German Hernandez-Garcia approached the Palm Street residence, after the officers had entered pursuant to the search warrant. The officers pulled German Hernandez-Garcia inside the house. Approximately four kilograms of cocaine and $16,000 in United States currency were seized at the Palm Street house. Additional ledgers were found at this location. Dental records in the names of Mr. and Mrs. J. Rivera were also found. Business records from the dentist's office reflected a $7,500 cash payment for Mrs. Rivera's treatment.
began in late September, 1981. This investigation ultimately focused on three houses: Marina Bay Drive, Palm Street and Norwalk Boulevard. Police observed numerous persons transporting packages between the locations. German Hernandez-Garcia was observed twice during the prearrest stage of the investigation; once at the Palm Street residence and on another occasion at a bar accompanied by several co-defendants. On October 30, 1981 a search was conducted at the three residences. Ordonez was arrested at the residence on Marina Bay Drive. The officers seized several ledgers containing entries in Spanish. The search also disclosed narcotics paraphernalia, $350,000 in cash, five Colombian passports, and some immigration forms. German Hernandez-Garcia's wife was sitting next to a suitcase which contained the $385,000 at the time of the seizure. She was not arrested. One of the passports was issued to German Hernandez-Garcia. The immigration forms were addressed to Ordonez at his Sunland residence.
The officers also found narcotics paraphernalia at the Norwalk Boulevard residence. During the search at this location, the telephone rang. One caller asked to speak to "Jaime". This caller ordered one kilo of cocaine. Another caller asked to speak to "Jaime, my brother", and gave Sanchez an address on Pioneer Street where the caller could be located. Sanchez later went to that address where he arrested Antonio Hernandez, German Hernandez-Garcia's brother. The government asked the jury to infer that the caller's statements were proof that Hernandez-Garcia was known as "Jaime".
Ordonez was listed as one of the lessees on each of the three homes searched. The utility bills for these residences were also in his name. The total rent paid each month exceeded several thousand dollars; $2,500 for Marina Bay Drive, $700 for Norwalk Boulevard, and $500 for Palm Street. These payments were usually made by Ordonez in cash. The government argued to the jury that Ordonez received substantial income from the cocaine transactions because the high monthly rental payments necessarily reflected an increase in his earnings from previous years. Ordonez' tax returns for 1976-1979 showed an average annual income of only $27,000. Ordonez introduced someone as "Jaime Rivera" to Mr. Wright, a manager of the Marina Bay Drive property. Mr. Wright testified that this individual was not German Hernandez-Garcia.
Over defense objection, the ledgers seized during the search were admitted into evidence. The trial court ruled outside the presence of the jury, that the ledgers were admissible under the co-conspirator exception to the hearsay rule. Fed.R.Evid. 801(d)(2)(E). The trial court did not give any special instructions limiting the use of this evidence at the time it was received, or throughout the course of the trial.
Frank, a handwriting and fingerprint expert, testified that a majority of the entries on the ledgers were made by at least four unidentified persons.
In Frank's opinion five fingerprints were left on the ledgers by German Hernandez-Garcia. Ordonez left one fingerprint identifiable. Ordonez' handwriting appeared on several pages. German Hernandez-Garcia's handwriting was not found on any of the entries.
Drug Enforcement Agent Larry Lyons was qualified as an expert witness on "Colombian cocaine organizations" and the "interpretation of the books and records of narcotics organizations." Lyons testified Lyons also testified that in his opinion, the ledgers were business records made in the regular course of business, which reflected daily cocaine transactions including deliveries made to numerous individuals. These records were necessary to keep track of the large quantity of narcotics and cash exchanged. Lyons also stated that the coded entries reflected precisely the known wholesale prices of cocaine.
that the entries in the ledger were in a code which required interpretation by an expert with his experience and qualifications. Lyons told the jury that in his opinion, the ledgers consisted of working papers, ledger cards, a record of funds paid to members of the organization, a master ledger, a cocaine distribution ledger and a money flow ledger. According to Lyons, the ledgers recorded the cocaine transactions of an organization from late 1980 through September 1981.
The entries made in Ordonez' handwriting appeared in one notebook and on two separate cards which, Lyons believed, were part of the money flow ledger and master ledger.
Lyons testified that the names "Oscar" and "Jaime" appeared in numerous ledger entries. He stated that the three variations of the name "Oscar" referred to Ordonez and the six variations of the name "Jaime" referred primarily to German Hernandez-Garcia. He testified, however, that the name "Jaime" also referred to several other persons. According to Lyons, the entry for March 4, 1981, as decoded, indicated "arrived five kilos brought by Jaime and Oscar."
Lyons construed this as indicating that Ordonez and Hernandez-Garcia possessed 11 pounds of cocaine with the intent to distribute on that date. This testimony was used to support the allegations in Count 7 of the indictment. The ledgers were also used to prove that Ordonez possessed 48.4 pounds of cocaine with intent to distribute on June 15, 1981, as charged in Count 11. No other evidence was offered in support of these charges. No one testified that he saw Ordonez or Hernandez-Garcia in possession of cocaine on these dates.
The government argued to the jury that several entries cumulatively established that Ordonez possessed cocaine on June 15, 1981. None of the ledger entries, however, specifically referred to a transaction on that date.
Ordonez and Hernandez-Garcia argue that a proper foundation was not presented for the admission of the ledger entries for the truth of the matter asserted under the co-conspirator exception to the hearsay rule. We agree.
When the ledgers were first offered into evidence, Ordonez's counsel interposed a "foundational objection with respect to the admissibility of the ledgers." The court was further informed, "I believe that the contents in these ledgers are hearsay." In response to this objection, the court stated:
It is coming up because it was found ... If he can't connect it up, I will vacate my previous ruling.
Thus, the court did not purport to rule on the hearsay objections at this time.
It would appear from the court's comments, that the ledgers were received into evidence at this point in the trial as physical objects found at the scene and not for the truth of the matters contained in the various...
To continue reading
Request your trial
-
State v. Vessichio
...has modified the traditional co-conspirator rule; see, e.g., United States v. Caputo, 758 F.2d 944 (3d Cir.1985); United States v. Ordonez, 737 F.2d 793 (9th Cir.1984); others continue to hold that the only test for admissibility of a conspirator's out-of-court statement is whether the stat......
-
United States v. Barker
...States v. Echeverry, 759 F.2d 1451, 1457-58 (9th Cir.1985); United States v. Ordonez, 722 F.2d 530 (9th Cir.1983), modified, 737 F.2d 793 (9th Cir.1984). But see Ohio v. Roberts, 448 U.S. 56, 65 n. 7, 100 S.Ct. 2531, 2538 n. 7, 65 L.Ed.2d 597 (1980) (suggesting that a demonstration of unava......
-
U.S. v. Garcia-Rosa, GARCIA-ROS
...of vicarious liability on a conspirator in a conspiracy to possess heroin with intent to distribute. See, e.g., United States v. Ordonez, 737 F.2d 793, 807 (9th Cir.1983); United States v. Parrish, 736 F.2d 152, 157 (5th Cir.1984); United States v. Newbern, 731 F.2d 744, 749-52 (11th Cir.19......
-
U.S. v. Mouzin
...of defense counsel, were also found on the ledger. The defendants did not admit authorship of the ledger entries. In United States v. Ordonez, 737 F.2d 793 (9th Cir.1984), on identical facts, we reversed a defendant's cocaine conspiracy conviction because of the improper and prejudicial adm......