U.S. v. Snow, 74-3464

• Decision Date: 24 July 1975
• Docket Number: No. 74-3464,74-3464
• Citation: 521 F.2d 730
• Parties: UNITED STATES of America, Appellee, v. Wilmer Stanley SNOW, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 730

521 F.2d 730

UNITED STATES of America, Appellee, v. Wilmer Stanley SNOW, Appellant.

No. 74-3464.

United States Court of Appeals Ninth Circuit.

July 24, 1975.

Atmore L. Baggot (argued), Phoenix, Ariz., for appellant.

Thomas N. Crowe, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee.

OPINION

Before BROWNING and WALLACE, Circuit Judges, and ENRIGHT, ^* District Judge.

ENRIGHT, District Judge:

Wilmer Stanley Snow was found guilty by a jury of violating 21 U.S.C. § 846, conspiracy to possess cocaine with intent to distribute, and 21 U.S.C. § 841, possession of such cocaine with intent to distribute. On this appeal, Snow's major contentions are that testimony of an agent of the Drug Enforcement Administration ("DEA") regarding statements of a co-conspirator constituted inadmissible hearsay and deprived him of his right to confront witnesses against him. Appellant also raises three additional issues: that the statements, even if falling within the exception to the hearsay rule, should not have been admitted on the non-conspiracy count; that trying him both for conspiracy and for the substantive offense constituted double jeopardy; and that he was prejudiced by the admission of testimony regarding certain criminal activity not related to him. We find no error, and affirm the conviction.

Given the contentions of the defendant, a review of the evidence presented is both appropriate and necessary.

The principal witness for the government was DEA Special Agent Joseph Parra. Parra testified that, on two occasions prior to June 19, 1974, he had purchased a total of approximately 25,000 mini-bennies from Paul Arnpriester. On June 19, Parra and Arnpriester met at the Holiday Inn in Tempe, Arizona, to discuss the quality of the minis. At that meeting, Arnpriester asked whether Parra knew of anyone who would be interested in purchasing cocaine. Parra expressed interest, and the men discussed price and quantities. When Parra asked whether it would be possible to obtain samples, Arnpriester stated that he would provide some, but that it would take approximately one hour to obtain them. Arnpriester left the Holiday Inn, and returned with a sample approximately ninety minutes later. Parra inquired about the delay, and Arnpriester told him that he had been talking to his "connection" about the possibility of delivering large quantities of cocaine.

During the following week, Arnpriester and Parra met several times, both at the Holiday Inn and at the Minder-Binder Restaurant in Tempe. At one such meeting, Arnpriester told Parra to get into his car so that they could go to the home of his connection to obtain cocaine. After the men had driven a short distance, Arnpriester stopped the car and removed from the glove compartment a paper bag which contained a substance later determined to be cocaine. Parra paid $1,100 for this cocaine.

On June 27, Parra telephoned Arnpriester, who stated that he and his connection would meet Parra at the Holiday Inn. The men met at approximately 11:00 a. m., at which time Parra was introduced to a man whom Arnpriester described as his "main connection." Parra later learned that the "connection" was named Snow; prior to the date of the arrest, he knew him only as Bill. Snow was present at the time of this introduction; there is no indication that he objected to it. Snow asked whether Parra was interested in purchasing cocaine. He assured the agent that it would be inexpensive and of good quality. Snow indicated that he would have no trouble obtaining the cocaine, since he needed merely to rent an airplane and fly to Yuma. He stated that he could provide the cocaine the next day, and that he might even be able to deliver it within two hours. There was conversation regarding elaborate plans to fly to Mexico in the future for the purpose of smuggling cocaine, and about dropping the price of cocaine if Parra were to become a steady customer. At the conclusion of the meeting, Snow advised Parra to remain in contact with Arnpriester relative to the proposed delivery of cocaine. After the men left the Holiday Inn, Parra had no direct contact with Snow until the day of Snow's arrest.

Parra placed a number of telephone calls to Arnpriester later on June 27, but was told that there would be no delivery that day. A series of meetings between the two men took place during the next several days. On June 28, Parra was told that some problems regarding delivery had developed, but that the price of the cocaine would be lowered if he would accompany Arnpriester and Snow to Yuma. This trip never took place, however, because of a dispute over the method of payment. The next day, Arnpriester stated that he had one-half pound of cocaine, but Parra stated that he wanted a full pound, and refused to purchase the smaller quantity. Arnpriester told him that Snow had gone to Denver for a week, but that he would look for an alternative source.

In subsequent meetings, Parra was told that no alternative source had been located. Finally, on July 9, Arnpriester stated that Snow would return that night, and that he would make arrangements for a sale the next day. On the morning of July 10, Parra was told that Snow had flown to Yuma, and that he was due to return soon. Parra telephoned Arnpriester two or three times every hour. At approximately 1:30 p. m., Arnpriester said that some problems had developed in Yuma, because Snow had not taken enough money. An hour later, Arnpriester said that Snow had arrived, and that the cocaine was at his home.

Parra arrived at Arnpriester's home together with surveillance units. Arnpriester was called to the door, and Parra followed him to an outside door which led directly into Arnpriester's bedroom. After they entered the room, Arnpriester said that Snow had obtained only three-quarters of a pound of cocaine. He also stated that Snow had returned with a "Mexican connection" who would take the remainder of the money that was owed on the purchase.

Parra left the house, stating that he wanted to get a scale from his car. He gave a prearranged signal to the surveillance units and reentered the house. When a loud noise was heard at the front of the house, Parra, knowing that the other officers had entered, identified himself as an agent. Arnpriester attempted to escape, but was subdued. According to testimony of detective Andrew Lucas, Snow ran out of the house, but Lucas caught him in the driveway. Another individual named Eric Vasquez Ramirez also was arrested.

Snow received his Miranda warnings. He stated that the June 27 incident at the Holiday Inn was merely a hoax, and was an attempt to set up Parra for a "rip-off." He stated that he was at the house at the time of the arrest because Gary Bolles, a roommate of Arnpriester, had invited him to come over for a beer. He described Ramirez as a person whom he had once picked up as a hitch-hiker, and with whom he had become friendly.

Two of Arnpriester's roommates also were called as government witnesses. Steven Reich testified that when Snow arrived at the house, he and Ramirez walked directly to the outside door which led to Arnpriester's room, and did not enter the house through the front door as he would have if he were visiting one of the other residents. Gary Bolles denied having spoken to Snow on the telephone on the day of the arrest, or having invited him to come over for a beer.

I. The Co-Conspirator Exception

The defendant contends that Parra's testimony regarding statements made to him by Arnpriester should have been excluded as hearsay. While conceding the existence of an exception to the hearsay rule for statements of a co-conspirator, the defendant contends that the requirements for admitting such testimony were not met.

The rule which is recognized in this circuit is that otherwise inadmissible hearsay declarations of co-conspirators may be received into evidence when the following foundation is laid: (a) the declaration was in furtherance of the conspiracy; (b) it was made during the pendency of the conspiracy; and (c) there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant to it. Carbo v. United States, 314 F.2d 718, 735 n. 21 (9th Cir. 1963), Cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). "If the independent evidence adduced in support of the existence of the conspiracy makes a prima facie case therefore, the Carbo foundation requirement can be satisfied." United States v. Ellsworth, 481 F.2d 864, 871 (9th Cir.), Cert. denied, 414 U.S. 1041, 94 S.Ct. 544, 38 L.Ed.2d 332 (1973).

The question for consideration, therefore, is whether, without considering any testimony of Parra regarding statements of Arnpriester, there is sufficient evidence to make out a prima facie showing of a conspiracy. ¹ We would find that the evidence of the existence of a conspiracy in this case was ample to permit the admission of the hearsay declarations. The most significant evidence is the account by Agent Parra of his discussion with Snow at the Holiday Inn on June 27, during which Snow described his plans for supplying Parra with cocaine in considerable detail. Other evidence pointing to the existence of a conspiracy includes the facts that Snow was present at the house at the time that the sale of cocaine was to take place, that he had walked directly to Arnpriester's bedroom rather than into the main part of the house, and that he attempted to flee when he learned that law enforcement officers were present. Testimony regarding these two incidents linking Snow and Arnpriester, which occurred two weeks apart, provided strong evidence of a concert of action.

Appellant has attempted to refute this evidence of conspiracy by separating the incidents at the Holiday Inn from those at Arnpriester's house. He asserts that the negotiations regarding the delivery of cocaine which took place at the Holiday Inn never passed the talking stage, and...