U.S. v. Schmit

• Decision Date: 26 July 1989
• Docket Number: Nos. 88-1029,88-1058,s. 88-1029
• Citation: 881 F.2d 608
• Parties: 28 Fed. R. Evid. Serv. 349 UNITED STATES of America, Plaintiff-Appellee, v. Peter SCHMIT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rex Lee SWINFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 608

881 F.2d 608

28 Fed. R. Evid. Serv. 349

UNITED STATES of America, Plaintiff-Appellee, v. Peter SCHMIT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rex Lee SWINFORD, Defendant-Appellant.

Nos. 88-1029, 88-1058.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 9, 1989.

Decided July 26, 1989.

Albert W. Brodie, Sacramento, Cal., and Richard W. Nichols, McDonough, Holland & Allen, Sacramento, Cal., for defendants-appellants.

Kristin Sudhoff Door and Nancy Simpson, Asst. U.S. Attys., Sacramento, Cal., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of California.

Before BROWNING, BEEZER and KOZINSKI, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Peter Matthew Schmit and Rex Lee Swinford appeal their convictions of conspiring in violation of 21 U.S.C. Sec. 846 to possess, manufacture and distribute methamphetamine and other controlled substances in violation of 21 U.S.C. Sec. 841(a)(1).

I. The Hearsay Claims

Appellants' principal contention is that the district court erred in admitting a tape recorded statement and handwritten notes on pages of a desk calendar as "statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E).

To satisfy the Rule "[t]here must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made in the course and in furtherance of the conspiracy." Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). ¹ [W]hen the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence." Id. at 2779. In making these preliminary factual determinations the court "may examine the hearsay statements sought to be admitted ... 'and give [them] such weight as [its] judgment and experience counsel.' " Id. at 2782 (quotation omitted).

A. The Tape Recorded Statement

Appellants contend the district court erred in denying their motion to suppress a tape recorded statement concededly made by Peter Gary Schmit (hereinafter Gary Schmit), son of appellant Peter Matthew Schmit (hereinafter appellant Schmit), and in a search of the home where both father and son lived.

Appellants argue the government failed to establish the tape was made "during the course" and "in furtherance of" the conspiracy. The district court's conclusion that the government established these prerequisites of admissibility under Rule 801(d)(2)(E) by a preponderance of the evidence, including the contents of the statements themselves, is reversible only for clear error. United States v. Smith, 790 F.2d 789, 794 (9th Cir.1986); United States v. Moody, 778 F.2d 1380, 1382 (9th Cir.1985). ²

(1) We first consider appellants' contention that the evidence was not sufficient to allow the trial court to find the statement was recorded "during the course" of the conspiracy.

There was proof that between 1982 and June 1986, under the leadership of Gary Schmit, the conspirators completed at least two "runs" of a chemical process producing methamphetamine and began a third. These runs took place at two and possibly three locations and produced methamphetamine valued at as much as two million dollars. In November 1985 Gary Schmit purchased a microcassette recorder and tapes. In June 1986 the tape with Gary Schmit's recorded statement was seized in a search of his home pursuant to a warrant. The statement referred to "runs" completed before the tape was dictated and a proposed future run. Discovered and seized with the tape were documents containing formulae for the production of methamphetamine, lists of glassware and equipment required for the process, receipts reflecting the purchase of glassware and chemicals, records of temperatures and times of various reactions in processing methamphetamine, calendar sheets recording payments totalling $300,000 to "Dad" (alleged to be appellant Schmit), and 86 pounds of methamphetamine valued at nearly one million dollars.

Gary Schmit's taped statement began: "I am putting this on tape because I've got a lot to say regarding what we're about to do and what we're gonna do and who's involved." The lengthy and somewhat rambling discourse that followed included: a description of Gary Schmit's "tentative proposal" that he supply "the equipment and the major ingredients that [he] need[ed]," and guarantee "150 pounds out of a 200 pound potential"; an analysis of the "pros and cons" of conducting the proposed "run"; the risks of discovery; an estimate of how much evidence narcotics agents might have gathered regarding the group's past activities; an evaluation of the possibility that particular members of the group might not be reliable; comments as to who should have a voice in the decision whether to proceed; the weight to be given their opinions in light of the contribution each had made to earlier efforts; the location of the proposed "run"; and the need to finance it.

As appellants point out, there was no direct proof of when the tape was purchased or when the statement was recorded. We have no doubt, however, that the circumstances were sufficient "to support an inference," United States v. Layton, 720 F.2d 548, 555 (9th Cir.1983), that the tape was one of those Gary Schmit purchased along with a recorder on November 6, 1985 and was used by him to record his statement before the conspiracy ended with the search of his home and the seizure of the tape six months later.

Appellant Schmit argues it could not be determined whether the statement was recorded in the course of the conspiracy because it was unclear from the statement whether Gary Schmit was "talking about a conspiracy that has commenced and is ongoing, one that has terminated, or one that is only contemplated." Appellant Swinford's argument is only slightly different: he argues the statement itself demonstrates "a meth conspiracy involving Gary Schmit and others had existed at one time, that its activities had been concluded and shut down, and that commencement of a new meth conspiracy was being contemplated involving some but not necessarily all of the same participants.... [T]he transcript does not support a finding that a meth conspiracy was, at the time the tape was dictated, in existence." (Original emphasis.) The arguments of both appellants confuse the various "runs" conducted by the group with the group's continuing conspiracy to manufacture and distribute methamphetamine of which each "run" was but a part. ³

We are satisfied the trial court's conclusion the taped statement was made "during the course" of the conspiracy was not clearly wrong.

(2) Appellants' contention that the evidence was not sufficient to allow the trial court to find the statement was recorded "in furtherance of the conspiracy" raises more serious questions. Appellants argue the recorded statement cannot be regarded as made "in furtherance of the conspiracy" because it consists of "casual admissions of culpability" and "idle chatter." ⁴

It is apparent that the portions of the statement referred to earlier were not mere "idle chatter" or "casual admissions of culpability" but were relevant to various aspects of a projected "run" for the production of methamphetamine--including the size of the proposed "run"; who was to decide whether it would be pursued; where it was to occur; and, perhaps predominantly, problems of risk and security to which past events were obviously relevant. See United States v. Tille, 729 F.2d 615, 620 (9th Cir.1984); United States v. Haldeman, 559 F.2d 31, 110-11 (D.C.Cir.1976) (en banc) (per curiam); Zamloch v. United States, 193 F.2d 889, 891 (9th Cir.1952).

Appellants moved to suppress the statement as a whole, and the district court denied their motion. Appellants did not submit to the district court and the district court did not decide whether particular passages in the statement may have been excludable. In these circumstances the fact that some portions of the statement may have been "idle chatter" or casual admissions of culpability" would not render denial of the motion to suppress reversible error. As this court said in a similar case many years ago:

Assuming, without deciding, that opinions and conclusions stated in [the exhibit] were not competent evidence in this case, the rest of the exhibit was not thereby rendered inadmissible. The most appellant could ask was that the objectionable part--the opinions and conclusions--be excluded. He made no such request, but addressed his objection to the entire exhibit, taking then, as now, the untenable position that all and every part of it must be excluded.

Lonergan v. United States, 95 F.2d 642, 646 (9th Cir.1938); see also United States v. Gentile, 525 F.2d 252, 259 (2d Cir.1975) (trial judge not required to separate excludable portions of statement when defendant failed to make a specific objection); see also I Wigmore Sec. 18 at 834.

Appellants object that the government offered no proof the tape was played for others or used in any other way to "advance the objectives of the conspiracy." Layton, 720 F.2d at 556. The government need not prove the statement furthered the conspiracy in fact; it is enough if Gary Schmit made the statement for that purpose. Id. at 556 n. 5. The district court could infer from the content and context of Gary Schmit's statement that he intended to use it in advancing the common enterprise to produce and distribute methamphetamine. See id. at 557. Gary Schmit was the leader of the criminal enterprise. The content of the statement indicates it was dictated at a critical juncture in the history of that enterprise. The participants faced a decision either to end the undertaking or to initiate a new production effort. The statement catalogued and analyzed factors relevant to that decision. It was preserved with other records...