U.S. v. Peterson

• Decision Date: 03 March 1977
• Docket Number: Nos. 76-1438 and 76-1449,s. 76-1438 and 76-1449
• Citation: 549 F.2d 654
• Parties: 1 Fed. R. Evid. Serv. 822 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Richard PETERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne PAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 654

549 F.2d 654

1 Fed. R. Evid. Serv. 822

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Richard PETERSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne PAYNE, Defendant-Appellant.

Nos. 76-1438 and 76-1449.

United States Court of Appeals Ninth Circuit.

March 3, 1977.

Victor Sherman, Beverly Hills, Cal., argued, for defendant-appellant in 76-1438.

Raymond D. Pike, Asst. U.S. Atty., Reno, Nev., argued, for plaintiff-appellee.

Penelope M. Cooper, Berkeley, Cal., argued, for defendant-appellant, in 76-1449.

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

Before BROWNING, WRIGHT and CHOY, Circuit Judges.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

Peterson and Payne appeal from convictions of conspiracy to import and distribute marijuana. The indictment charged that they and three others were involved in a criminal conspiracy between February 1975 and the time of their arrests in September 1975. A subsequent information in October 1975 alleged that Peterson previously was convicted of a felony relating to marijuana.

Five issues are raised:

1. Was there sufficient evidence to sustain the verdict?

2. Did the trial court err in admitting hearsay declarations of a co-conspirator and evidence of prior acts before Payne's involvement in the conspiracy was established?

3. Did the government cause reversible error in calling a witness who sought a grant of immunity after claiming his Fifth Amendment privilege before the jury, where that witness was thereafter granted immunity and testified for the government?

4. Did the trial judge err in giving an Allen -type jury instruction under the circumstances of this case?

5. Were the detentions, arrests and searches at the Calhoun Ranch on September 4, 1975, supported by probable cause?

FACTS

Our review of the evidence in the light most favorable to the government reveals that in February 1975 a post office box was rented in Payne's name at the Incline Village, Nevada post office. There was no evidence to show that Payne personally ordered it, although his driver's license used for identification at that time was introduced in evidence. Also admitted was a letter of February 1975, purportedly from Payne to the Incline Village Post Office, directing it to forward mail to a California address.

In May 1975, Peterson offered Charles Hudson an opportunity to make "a quick $10,000." Hudson agreed and they flew from Nevada to Mexico on what proved to be an aborted marijuana smuggling run. Once in Mexico they were met by a person called "the Indian" (co-conspirator Leland Quinn), loaded the plane with marijuana, then crashed on take-off. After retrieving the contraband, the trio burned the plane.

One month later, John Evans and Hudson purchased a new aircraft, N6676. It was flown to Nevada and equipped with a long-range gas tank supplied by Peterson. With the tank installed, Evans, and possibly others, flew N6676 to Mexico for marijuana hauls.

This pattern of activity continued into August 1975 when Hudson and Peterson flew at least two illicit flights from Mexico to the isolated Calhoun Ranch in San Luis Obispo County, California. On at least one occasion Peterson gave Hudson $20,000 after their return with the marijuana. After each of these August sojourns Hudson and Peterson flew to the San Francisco Bay Area and visited Payne's residence.

In late August 1975, Evans began to cooperate with federal agents and, on August 29, placed a monitored telephone call to Hudson. In that conversation Hudson indicated that George Camara was in Mexico and that a marijuana shuttle to be flown by Evans was scheduled for Tuesday, September 2. Hudson said also that another plane to be used for Mexican flights was almost ready at the Van Nuys, California Airport.

The evidence also indicated that during the summer Hudson had purchased in Payne's name a D-18 aircraft, N90513, from Fred Hollister. Hudson told Hollister that he was Payne's partner and he registered the aircraft in Payne's name using the Incline Village address. The post office box contract had expired by its own terms on June 30, 1975.

All dealings in connection with N90513 were through Hudson. Hudson and Evans discussed registering the plane in Payne's name, Hudson registered it, and Hudson sought to recover the plane as his property after the instant charges were filed. Despite the use of his name, there is no showing that Payne was connected with the purchase, operation or registration of N90513.

Aircraft N90513 was moved to the Oxnard-Ventura, California airport on September 3. That evening, Peterson, Hudson and Camara were at the Calhoun Ranch in an orange and white Cessna 310. Camara left for Mexico in the N90513, Peterson flew out to Las Vegas in the Cessna, and Hudson left the ranch the next morning.

Upon his return from Mexico on September 4 in N90513, DEA agents arrested Camara and others at the Calhoun Ranch. They also seized a large quantity of marijuana found in a blue camper van used at the ranch by the smugglers.

Realizing that N90513 was overdue, Hudson telephoned Peterson to intercept the aircraft. Peterson agreed and later that day DEA agents observed an orange and white Cessna 310 circling the Calhoun Ranch. The agents heard a voice on radio frequency 120.0 (that used by the smugglers at the ranch) from "Pete" asking if everything was all right. Defendants were arrested shortly thereafter.

Evidence was introduced which demonstrated a conspiracy late in 1974 among Peterson, Payne, Tim Melancon and Donald Johnson to smuggle marijuana from Mexico by air. Payne was the source of funds in this scheme and the others were pilots who made regular flights across the border with loads of marijuana.

Our careful examination of the record reveals that, contrary to the government's assumption, at least two conspiracies existed. The first involved Peterson, Payne, Melancon and Johnson late in 1974 (the 1974 conspiracy). A critical litmus test in determining where one conspiracy ends and another begins is to inquire whether any of the major participants in the conspiracy considered his or their mutual dealings to have terminated, United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976). Testimony demonstrated that two central figures in the 1974 conspiracy, Melancon and Johnson, believed that the common scheme had terminated in December of that year. There was no further relationship among the co-conspirators and nothing to indicate a continuing conspiracy. As a result, the conspiracy charged (the 1975 conspiracy) was distinct and not merely a continuation of the illegal activities of 1974.

Shortly before trial, co-defendant Hudson pleaded guilty and became the government's principal witness.

ISSUES

1. Sufficiency of the Evidence and Evidence of Prior Acts.

It is axiomatic that the government must prove beyond a reasonable doubt that the conspiracy charged did in fact exist, and that each defendant was a member of it.

Once the government establishes the existence of a conspiracy through independent evidence, only slight evidence is required to connect a defendant with it. United States v. Carpio, 547 F.2d 490 (9th Cir. 1976); United States v. Turner, 528 F.2d 143, 162 (9th Cir. 1975). The requirement of only slight evidence does not eliminate the government's need to introduce that minimal quantum of proof independently establishing that each defendant "entered, participated in, or furthered the conspiracy." United States v. Spanos, 462 F.2d 1012, 1016 (9th Cir. 1972); citing United States v. Cianchetti, 315 F.2d 584, 587 (2d Cir. 1963).

To establish the existence of a criminal conspiracy the underlying common scheme or plan may be inferred from circumstantial evidence, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), which we have held to be no less probative than direct evidence. United States v. Nelson, 419 F.2d 1237, 1239 (9th Cir. 1969).

Appellants do not deny there was proof of a marijuana smuggling conspiracy. They do argue that they were not shown to be part of it.

The evidence against Peterson reveals that he was a central figure in the 1975 conspiracy. Additionally, he argues that the evidence proves three separate conspiracies when only one was charged. Our review reveals no fatal variance between the indictment and the proof against Peterson. See, e. g., United States v. Moore, 522 F.2d 1068, 1074 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976).

The evidence against Payne requires closer scrutiny. The independent evidence against him on the conspiracy charge consisted of:

(1) the evidence of a post office box rented in Payne's name at Incline Village and the subsequent letter;

(2) the testimony of Payne's acquaintance in the Bay Area, Sharon Leonard, that Payne had told her that two of his airplanes had been lost;

(3) the testimony of Hudson that Payne met Peterson and Hudson at the airport following two of their hauls, but to discuss legitimate business ventures;

(4) the evidence and testimony of Hudson surrounding the purchase and registration of aircraft N90513; and

(5) the testimony of a DEA agent who, while keeping Peterson under surveillance, observed Payne's red automobile outside Peterson's home.

Much of the difficulty with the sufficiency of the evidence against Payne stems from the order of proof at trial. Evidence often is so intertwined in conspiracy cases that it is impractical to separate independent evidence, evidence of prior or unrelated acts and hearsay declarations by co-conspirators. Indeed, we have long recognized that the order of proof is a matter within the sound discretion of the trial court. United States v. Smith, 445 F.2d 861, 862 (9th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971).

This inability to separate various types of evidence according to the logical point of introduction does...