U.S. v. Scholle

• Decision Date: 06 June 1977
• Docket Number: Nos. 76-1276,76-1343,s. 76-1276
• Parties: 1 Fed. R. Evid. Serv. 1374 UNITED STATES of America, Appellee, v. Stephen G. SCHOLLE, Appellant. UNITED STATES of America, Appellee, v. Michael S. NEEDHAM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1109

553 F.2d 1109

1 Fed. R. Evid. Serv. 1374

UNITED STATES of America, Appellee, v. Stephen G. SCHOLLE, Appellant.

UNITED STATES of America, Appellee, v. Michael S. NEEDHAM, Appellant.

Nos. 76-1276, 76-1343.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 8, 1976.

Decided April 12, 1977.

As Amended on Denial of Rehearing June 6, 1977.

Jack Nordby, St. Paul, Minn., for appellant, Stephen Scholle.

Bruce Hartigan, Minneapolis, Minn., for appellant, Michael Needham.

Mel I. Dickstein, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on brief.

Before GIBSON, Chief Judge, HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Defendants Stephen G. Scholle and Michael S. Needham were charged with violating the narcotics law of the United States in a three-count indictment returned by the federal grand jury for the District of Minnesota on November 4, 1975. Scholle was charged in Count I with conspiring to import cocaine in violation of 21 U.S.C. §§ 952(a) and 846. Both Scholle and Needham were charged in Count II with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and in Count III of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Arthur Barrie Watson and Karen Johnson were charged as co-defendants, while Ray Thuftedal and Jeffery Kaufman were named as unindicted co-conspirators. Following a jury trial, ¹ Scholle was convicted on Counts I and III and Needham was convicted on Counts II and III. ² Scholle was sentenced to two years imprisonment and Needham to eighteen months, each to serve a special parole term of three years following incarceration.

On appeal the defendants raise numerous evidentiary issues. Having carefully reviewed the record, we find no reversible error.

The facts may be summarized as follows. Ray Thuftedal made two trips to Bogota, Colombia, for the purpose of obtaining cocaine. Prior to the first trip made in November, 1974, he invited Stephen Scholle, a Minneapolis lawyer, to invest in the venture. Scholle declined because Thuftedal had never repaid him the money borrowed during a previous marijuana deal. Upon Thuftedal's return and his resale of the cocaine purchased in Colombia, he repaid Scholle and informed him of plans for a second trip to Bogota. Scholle provided Thuftedal with $1,000.00 in January, 1975, on the eve of Thuftedal's second buying trip to Colombia which resulted in the convictions here being appealed.

During that trip Thuftedal traveled from Colombia to Tijuana, Mexico with one pound of cocaine concealed inside four batteries designed for use in underwater scuba diving equipment. In Tijuana he met Jeffery Kaufman and Jennifer Olsen who smuggled the cocaine-filled batteries across the border into the United States.

When they returned to the Minneapolis area about February 1, 1975, Thuftedal and Kaufman went to Scholle's lake cabin to open the batteries and to cut, weigh and package the cocaine. Stephen Scholle received one ounce of pure cocaine for the money he had invested in the enterprise. These activities formed the basis for the conspiracy to import cocaine charged in Count I of the indictment as well as the conspiracy to distribute cocaine charged in Count III. Count III along with Count II additionally encompassed transactions which occurred from February to September, 1975.

In early February, 1975 Thuftedal and Kaufman encountered defendant Needham at Scholle's cabin when they delivered an ounce of cocaine that Scholle had requested they obtain for a customer-friend of his. Scholle subsequently told Kaufman that Needham was the person receiving his cocaine and that Needham's cocaine was going to Barrie Watson. Scholle similarly advised Thuftedal that he had an outlet for cocaine.

Beginning after Christmas of 1974 Barrie Watson repeatedly procured cocaine from Mike Needham, and in his absence from Karen Johnson, Steve Scholle's girlfriend who lived at Mike Needham's house in Maple Plain, Minnesota. After their final transaction in May, 1975, Watson's payment to Needham was delayed for several months, and Needham told Watson he needed that money to repay Stephen Scholle. Shortly after the payment was made, Watson met Scholle at Needham's birthday party where Scholle shook Watson's hand and thanked him for paying off his debt.

From mid-February to May, 1975, Special Agent Donald Bloch of the Drug Enforcement Administration met in an undercover capacity with Barrie Watson on at least seven occasions, and purchased cocaine from him four different times. During their association, Watson confided to Agent Bloch that his source of cocaine was a lawyer named Steve whose cocaine came from Colombia. Watson related that his own procedure was to deliver money to a man named Mike who lived in Maple Plain and who in turn took the money to a lawyer friend of his named Steve who provided the cocaine.

While a drug transaction was in progress between Watson and Agent Bloch on March 10, 1975, Watson was observed going to the Needham house in Maple Plain followed a few hours later by Needham's arrival at Watson's residence immediately before Watson delivered an ounce of cocaine to Agent Bloch. Later, while Needham was still at Watson's house, Watson informed Agent Bloch that his "source" was inside the house and then Watson entered and returned with another ounce bag of cocaine.

The occurrence of these events was adduced at trial primarily through the testimony of Thuftedal, Kaufman, Watson and Agent Bloch. The government further introduced novel evidence of a computer printout representing a compilation of information concerning cocaine exhibits submitted from the Minneapolis District Office of the Drug Enforcement Administration to the DEA Regional Laboratory from fiscal year 1972 to November 17, 1975. The printout revealed that benzocaine, an uncommon adulterant in cocaine, appeared in only two cases in 1975. Benzocaine had been identified in cocaine seized when Ray Thuftedal was arrested for attempting to sell cocaine on February 4, 1975, and benzocaine had been found as the adulterant in the cocaine purchased from Barrie Watson.

We turn now to the various contentions of defendants Scholle and Needham.

I

The defendants initially contend that their convictions should be reversed because they were based largely upon the inadmissible testimony of accomplices, or even accepting the accomplice testimony, that the evidence was insufficient to sustain verdicts of guilty. Needham claims that independent evidence of a conspiracy to distribute cocaine was not adequate to support the admission of testimony as to the extrajudicial statements implicating him made by co-defendant Scholle. Scholle complains that the accomplice testimony was uncorroborated, and argues its insufficiency in proving his participation in conspiracies to import and distribute cocaine.

The general rule is that statements made by a co-conspirator in furtherance of the unlawful association are properly admissible against not only the declarant but also against his co-conspirators. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Graham, 548 F.2d 1302 (8th Cir. 1977); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975); United States v. Rich, 518 F.2d 980, 984 (8th Cir. 1975); Fed.R.Evid. 801(d)(2)(E).

For such statements to be admitted, there must be substantial independent evidence that a conspiracy existed. United States v. Nixon,supra. As set forth by this court in United States v. Sanders, 463 F.2d 1086, 1088 (8th Cir. 1972), the standard for the admissibility of co-conspirator statements requires the showing of a likelihood of illicit association between the declarant and the defendant. The trial judge determining admissibility preliminarily has wide discretion and must be satisfied only that there is independent evidence, credible and sufficient to support a finding of a joint undertaking. The independent evidence of illicit association may be completely circumstantial, or may consist of the conspirators' own conduct and admissions. United States v. Overshon, 494 F.2d 894, 899 (8th Cir. 1974).

In the case before us, Needham protests the admission of hearsay testimony including a) that of Thuftedal and Kaufman to the effect that Scholle had told them he distributed cocaine to Needham; b) Watson's statement that Scholle had thanked him for repaying his debt to Needham; and c) Bloch's testimony as to what Watson had told Bloch about his source of cocaine.

The record reflects that there was independent evidence showing a likelihood of illicit association between Scholle, Needham and their co-conspirators sufficient to justify the admission of the hearsay statements noted above and other similar ones. For example, there was direct evidence that Needham arrived as the apparent buyer at a time when Scholle expected to distribute cocaine at his cabin, that the two were together on several occasions when cocaine was used at Needham's house, and that Needham, Scholle and Watson discussed undertaking a joint drug project in the future. As an admission, Needham's request that Watson pay him for a cocaine sale so that he could repay Scholle further inculpated Needham in a conspiracy with Scholle. United States v. Porter, 544 F.2d 936 (8th Cir. 1976); Fed.R.Evid. 801(d)(2)(A).

Similarly, with regard to Scholle, there is ample independent evidence, including that enumerated above and numerous admissions on his part, to indicate the probable existence of an unlawful endeavor undertaken jointly with Needham and the other co-conspirators.

We find that the district court properly exercised its discretion in admitting hearsay testimony of co-conspirators since there was a showing of the likelihood of an illicit association between the defendants and other co-conspirators substantial enough to submit the question...