U.S. v. Smith
| Decision Date | 19 January 1990 |
| Docket Number | 87-3125,Nos. 87-3124,s. 87-3124 |
| Citation | 893 F.2d 1573 |
| Parties | 30 Fed. R. Evid. Serv. 142 UNITED STATES of America, Plaintiff-Appellee, v. David V. SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Matthew KOALKIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jane McLean, Seattle, Wash., for defendant-appellant Smith.
Linda G. Tompkins, Spokane, Wash., for defendant-appellant Koalkin.
Jerry Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, ALARCON, Circuit Judges, and RAFEEDIE *, District Judge.
David Smith was convicted by a jury of operating a continuous criminal enterprise in violation of 21 U.S.C. Sec. 848, 36 counts of aiding and abetting the distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A), as well as three counts of interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952(a)(3). Matthew Koalkin was convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) and 18 U.S.C. Sec. 2, aiding and abetting travel in interstate commerce in aid of racketeering in violation of 18 U.S.C. Sec. 1952(a)(2) and (3), and attempted distribution of cocaine in violation of 21 U.S.C. Sec. 846.
Smith and Koalkin appeal their convictions and raise a multiplicity of issues. The principal issue we address in this opinion is the admission of a calendar/drug ledger as a co-conspirator statement under Fed.R.Evid. 801(d)(2)(E). In United States v. Mouzin, 785 F.2d 682, 692 (9th Cir.1986), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986), we held that a calendar/drug ledger was inadmissible as a co-conspirator statement because the government failed to identify the author of the ledger. In the present case, however, the government established that the calendar/drug ledger was made during the course and in furtherance of a conspiracy and the identity of the author of the calendar/drug ledger was reasonably certain. We affirm the convictions and the sentences.
Following an extensive investigation of suspected drug trafficking activities in Longview, Washington, involving both personal surveillance and telephone wiretaps, Donald Sowell was arrested for possession of cocaine in 1984. A search of Sowell's residence turned up a photostatic copy of a 1982-1983 calendar which appeared to contain narcotic-related notations. Before a Grand Jury, Sowell testified that he had been employed by Leon Williams to obtain cocaine from appellant Smith. Other witnesses testified that appellant Koalkin acted as a courier for cocaine supplied by Smith.
On September 23, 1986, the Federal Grand Jury for the Western District of Washington returned a 49-count Indictment charging Smith with operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. In addition, Smith was charged with thirty-six counts of aiding and abetting the distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) and three counts of interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952(a)(3). Koalkin was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, forty-one counts of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) and 18 U.S.C. Sec. 2, two counts of aiding and abetting travel in interstate commerce in aid of racketeering in violation of 18 U.S.C. Sec. 1952(a)(2) and (3), and one count of attempted distribution of cocaine in violation of 21 U.S.C. Sec. 846.
Prior to trial, Smith and Koalkin both filed a motion in limine to exclude evidence relating to the calendar/drug ledger supposedly belonging to Williams. The motion was denied over strenuous defense objection.
At trial, nine witnesses testified concerning Williams' calendar/drug ledger. Sowell testified that he reported all of his transactions to Williams for record keeping and he occasionally saw Williams make notations of those transactions in a calendar-type ledger book during 1982. Upon Williams' death in 1983, Sowell realized the importance of the ledger and asked George Humphrey, the manager of Williams' Hawaiian farm to send him Williams' "book." Humphrey xeroxed the original calendar and sent a copy to Sowell, who testified that he did not alter any of the entries after he received it. Sowell also testified that he gave photostatic copies to others to review, but received them back sometime later, after which he stored them in a closet at his residence where they were discovered in the search following his arrest in April 1984.
When Williams' calendar was shown to Sowell at trial, he testified that he recognized it as the copy that was mailed to him by Humphrey. He also testified that he was familiar with the meaning of the entries in the calendar and that he was able to decipher the code that Williams had used. In addition, he claimed that he had an independent recollection of the events recorded by Williams on the calendar.
Nathan Watkins, Leon Williams' brother, testified that after his brother died, his brother's wife, Janet Williams, asked him to help her unravel the financial aspects of her husband's drug dealings. Watkins testified that he found the calendar ledger which Williams had kept for the years 1982 and 1983 and that he was able to decipher the code that Williams had used. Watkins also testified that he recognized the xerox copy of the calendar when it was shown to him during the trial as a photocopy of the original calendar notebook his brother had authored. In addition, he identified the entries in the calendar as being in his brother's handwriting and he testified that he had observed his brother making similar entries on an earlier calendar.
Several other witnesses also testified concerning Williams' use of the calendar/drug ledger. David Vogelstein, Williams' attorney, testified that he received cash from Williams on a regular basis during 1982 and that he used the money to pay Williams' living expenses. Vogelstein kept records of the cash he received from Williams and those records coincided with the entries on the calendar indicating cash disbursements from Williams to Vogelstein. Janet Williams, Leon Williams' widow, testified that she reviewed certain records belonging to her husband and that one of those records was a calendar ledger. She also testified that after she reviewed the calendar with Watkins, she destroyed the original. Leone Harrison, Williams' first wife, testified that the handwriting on the calendar appeared to be that of her ex-husband. Michael Crumpacker testified that he received cocaine directly from Williams and that he had observed Williams use a calendar as a record-keeping ledger for recording the receipt of cash and the distribution of cocaine. Crumpacker identified the entries After a 43-day trial, appellants were convicted. On July 17, 1987, Smith was sentenced to 45 years for conducting a continuing criminal enterprise, 15 years for the aiding and abetting counts with a special parole term of three years, and five years probation on the interstate travel counts. Koalkin was sentenced to a 15-year prison term, plus 15 years special parole.
which referred to "MC" as being consistent with the amount of drugs and exchange of money between Williams and himself. Robert Black testified that on nine different occasions he obtained kilogram quantities of cocaine from Williams and that those occasions were consistent with the respective entries on the calendar. Richard Stanley testified that the entries which referred to "RS" were consistent with the drug transactions engaged in between Williams and himself. George Humphrey testified that he had regular contact with Williams. He described how Williams would make entries in his calendar book. Humphrey identified the writing in the calendar as that of Williams. Humphrey also had an independent recollection of the accuracy of several of the entries. Additionally, he stated that he did in fact photocopy the original calendar and sent a copy to Sowell at his request.
Smith and Koalkin argue that government's exhibit 20-1, which was a calendar/drug ledger supposedly belonging to Leon Williams, a co-conspirator, should not have been admitted into evidence for the following reasons: (1) the notations on the calendar were hearsay; (2) admission of the calendar violated the confrontation clause of the sixth amendment; (3) the calendar was a xerox copy and therefore it was not the best evidence; (4) the chain of custody was broken; and (5) the calendar was more prejudicial than probative.
The standard for review of a trial court's admission of evidence under the co-conspirator statement provision of Fed.R.Evid. 801(d)(2)(E) is two-tiered. We consider de novo the legal question of whether the government established a prima facie showing of conspiracy but apply a clearly erroneous standard in reviewing whether a challenged statement was made in the course and furtherance of a conspiracy. United States v. Smith, 790 F.2d 789, 794 (9th Cir.1986) (citing U.S. v. Rosales, 584 F.2d 870, 872 (9th Cir.1978). Admission of the calendar/drug ledger was proper.
(1) Fed.R.Evid. 801(d)(2)(E)--Co-Conspirator Statement
The trial court properly admitted government's exhibit 20-1 into evidence pursuant to Fed.R.Evid. 801(d)(2)(E), which provides that a co-conspirator statement is not hearsay. Federal Rule of Evidence 801(d)(2)(E) provides in relevant part that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in...
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