U.S. v. Rosales

• Decision Date: 23 August 1978
• Docket Number: No. 77-3282,77-3282
• Citation: 584 F.2d 870
• Parties: 3 Fed. R. Evid. Serv. 713 UNITED STATES of America, Plaintiff-Appellant, v. Frank Patrick ROSALES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 870

584 F.2d 870

3 Fed. R. Evid. Serv. 713

UNITED STATES of America, Plaintiff-Appellant, v. Frank Patrick ROSALES, Defendant-Appellee.

No. 77-3282.

United States Court of Appeals Ninth Circuit.

Aug. 23, 1978.

As Amended on Denial of Rehearing and Rehearing En Banc Oct. 23, 1978.

Mark L. Webb (argued), San Francisco, Cal., for plaintiff-appellant.

Emerson E. Stafford, H. Jesse Arnelle, San Francisco, Cal., for defendant-appellee.

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

Before GOODWIN, WALLACE, and HUG, Circuit Judges.

WALLACE, Circuit Judge:

The United States appeals from a ruling made sua sponte by the district court suppressing evidence sought to be introduced against Rosales at his trial for controlled substance violations. At issue is the admissibility of the testimony of a government agent as to statements of an alleged coconspirator naming Rosales as his source of drugs. We reverse.

I

Rosales was indicted along with two others for violating 21 U.S.C. §§ 841(a) (1) and 846 by distributing and conspiring to distribute cocaine. Pursuant to plea negotiations, his codefendants pleaded guilty to different charges, and the indictment was dismissed as to them. In a pretrial conference, the district judge, on his own motion, raised questions about the conspiracy count against Rosales. He expressed doubts that there was sufficient evidence of the existence of a conspiracy to admit the testimony of an undercover agent as to the declarations of DelPrete, an alleged coconspirator and one of Rosales' original codefendants. The agent's testimony would be that DelPrete identified Rosales as his source of cocaine. The government made an offer of proof of the evidence, independent of the disputed declarations, that it would introduce to show the existence of a conspiracy. Following oral argument, the judge ruled from the bench that a prima facie case of conspiracy had not been made out, and that the statements must be suppressed. This appeal, pursuant to 18 U.S.C. § 3731, followed.

II

The traditional rule governing the admissibility of coconspirator declarations is now codified in Federal Rule of Evidence 801(d): "(A) statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not objectionable on hearsay grounds when offered against that party. We have developed certain requirements that must be met before this rule may be invoked. The one relevant to this case is that there must be evidence, independent of the proffered statements, which is sufficient to make out a prima facie case of the existence of the conspiracy. ¹ United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977); United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), Cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). Accord, United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The parties do not dispute this formulation of the rule, but only its application to this case.

Before discussing that application, we must first decide which standard of review of the decision of the district court is appropriate. In that regard we point out that we are asked to review not a finding of fact, but a conclusion of law. The question before the district court was not whether the proof offered by the government should be believed, but whether a prima facie case had been made out, I. e., "whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury," United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969), that a criminal conspiracy existed beyond a reasonable doubt. This is a question of law. Consequently, we are not confined to the "clearly erroneous" or some other restricted standard of review, but it is our duty to exercise our independent judgment to decide whether the facts the government offered to prove were sufficient to create a jury question on the existence of a conspiracy. See Felder v. United States, 543 F.2d 657, 663 (9th Cir. 1976); United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir. 1976); Funk v. Tifft, 515 F.2d 23, 25 (9th Cir. 1975); 5A Moore's Fed. Practice P 52.03(2), at 2662 (1977); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2588, at 750 (1971).

III

The government represented to the district court that Agent Bender of the Drug Enforcement Administration and other officers would testify to the following facts:

On March 18, 1977, Bender, acting undercover as a narcotics dealer, went into a San Francisco bar called Sneaky Pete's and discussed with Gino DelPrete, the bar's owner and manager, the purchase of two ounces of cocaine for $3,000. At around 6:30 p.m., Bender was still in Sneaky Pete's awaiting delivery of the cocaine when he asked DelPrete to call his connection or source to find out when the cocaine would be delivered. DelPrete then put the telephone on the bar and placed next to it a white napkin bearing the name "Frank" (Rosales' first name) and what appeared to be a seven-digit telephone number. Bender watched DelPrete make a telephone call and then continued to wait for the cocaine. About an hour and ten minutes later at 7:40 p.m., DelPrete suddenly left Sneaky Pete's and was seen by Bender to enter a 1968 Mercury Cougar registered to Rosales.

Surveillance agents observed that Rosales was driving the car. Rosales drove around the block for about five minutes after which DelPrete exited, entered Sneaky Pete's, and requested that Bender, who had remained inside, accompany him to the bathroom of the bar. Inside the bathroom DelPrete gave Bender two ounces of cocaine.

On March 24, 1977, the second distribution date charged, Bender again went to Sneaky Pete's to purchase cocaine from DelPrete. Bender said he had only an hour and a half to catch a plane but that he would buy three ounces of cocaine if it could be delivered within that time. Bender's purpose in prescribing this short time period was to "surface" DelPrete's source of cocaine. Bender noticed that Rosales was in the bar when Bender entered and saw DelPrete converse with Rosales in hushed tones after Bender had placed his cocaine order. A few minutes later Bender looked over and saw that Rosales had left. This was at approximately 4:25 p.m. Surveillance agents observed Rosales enter his 1968 Mercury Cougar and drive to another location in San Francisco. He was temporarily lost from sight, but was seen at about 4:50 p.m. reentering Sneaky Pete's on foot. Bender then saw Rosales go directly to DelPrete and talk to him a moment, after which both DelPrete and Rosales went to the kitchen area of the bar. After a minute or two, DelPrete and Rosales left the kitchen area, Rosales resumed his seat at the bar, and DelPrete summoned Bender into the kitchen. Bender went into the kitchen where he was given about three ounces of cocaine by DelPrete. After receiving the cocaine, Bender went back to his seat at the bar, bought a round of drinks for DelPrete, Rosales, and himself, and then left.

Excluded from this recitation of facts, of course, is Bender's expected testimony which would show that DelPrete indicated to him that Rosales was his source of supply.

"A conspiracy is defined as a combination of two or more persons to accomplish some unlawful purpose, or some lawful purpose by unlawful means." United States v. Heck, 499 F.2d 778, 787 (9th Cir.), Cert. denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974). Accord, Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Although the individual acts of two persons, viewed in isolation, might appear perfectly innocent, " '(a)n otherwise innocent act of "relatively slight moment," may, when viewed in the context of surrounding circumstances, justify an inference of complicity . . . .' " United States v. Calaway, supra, 524 F.2d at 612, Quoting United States v. Ragland, 375 F.2d 471, 478 (2d Cir. 1967), Cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968).

Judged by these standards, we think it manifest that a jury could rationally conclude beyond a reasonable doubt that a conspiracy existed namely that DelPrete and Rosales had an agreement to sell cocaine. This is not to say, of course, that a conviction would be compelled by this evidence, ² but the combination and timing of events here is too suggestive of guilt for a judge to take the question from the jury, or to conclude that the proper foundation had not been laid to allow statements of coconspirators into evidence.

Rosales invites us to compare this case with others from our circuit and elsewhere in which conspiracy convictions have been reversed for insufficient evidence or coconspirator declarations have been held to be inadmissible hearsay. ³ He argues that the facts in these cases were as strong or stronger in support of the prosecution than is so here. Factual comparisons of this sort have inherent limitations, however. Most conspiracy cases rely heavily upon a pattern of circumstantial evidence, and the existence and strength of an inference from such evidence that a person agreed with others to commit unlawful acts necessarily depend upon the totality and interrelationship of many individual facts. Very seldom do we find a set of facts in one conspiracy case to be so nearly identical to those in another that a finding in one that a prima facie case has or has not been made out compels the same conclusion in the other. Rather, in each case we must ask anew the basic question whether, from this unique set of circumstances and considering the evidence most favorable to the government, a jury would be entitled to convict.

Nevertheless, we have examined the cases to which Rosales refers and we find each of them distinguishable. In two of these cases, United States v. Johnson, 513 F.2d 819 (2d Cir. 1975); United States v. Cirillo, 499 F.2d 872 (2d Cir.), Cert. denied, ...