U.S. v. Tavelman

• Decision Date: 25 September 1981
• Docket Number: Nos. 80-1128,80-1129,s. 80-1128
• Citation: 650 F.2d 1133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Wilbur TAVELMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven JOB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1133

650 F.2d 1133

UNITED STATES of America, Plaintiff-Appellee, v. Jack Wilbur TAVELMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven JOB, Defendant-Appellant.

Nos. 80-1128, 80-1129.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1981.

Decided July 13, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 25, 1981.

Andrew M. Zanger, Los Angeles, Cal., for defendant-appellant.

Leland E. Lutfy, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeals from the United States District Court for the District of Nevada.

Before SKOPIL and FARRIS, Circuit Judges, and BELLONI, ^* District Judge.

FARRIS, Circuit Judge:

Jack Wilbur Tavelman and Steven Job appeal their convictions and sentences for violation of 21 U.S.C. §§ 841(a)(1), 846 (1976) (conspiracy to possess cocaine with intent to distribute) and of 18 U.S.C. § 1952(a)(3) (1976) (Travel Act) (interstate travel with acts in furtherance of intent to distribute cocaine). See 28 U.S.C. § 1291 (1976). We affirm except the imposition of special parole terms under 21 U.S.C. § 846 (1976), which we vacate.

I. FACTS

Baron, an inmate at the Douglas County Jail, contacted DEA agent Cameron who accepted Baron's offer to assist the agency in apprehending persons involved in the distribution of narcotics in Los Angeles. When Baron went to Los Angeles in July, 1979, he took a photograph showing him holding several large bags filled with white powder giving the appearance of cocaine (but actually procaine). Through one Meekins, middle man, Baron met Silverman, another middle man. Over a period of four days, Silverman made a number of calls to defendant Job, attempting to entice him to fly to Reno to purchase some very good cocaine from a large dealer. ¹ During a subsequent meeting at Job's house, Baron and Job discussed the quality and price of the cocaine and exchanged telephone numbers. During this conversation, Job expressed reservations about the proposed purchase because he already had one kilo of cocaine that he was attempting to sell. After three or four days in Los Angeles, Baron returned to Reno and reported that Job was not interested in purchasing cocaine. Over the next few days, however, Baron made six recorded telephone calls from the Reno DEA office to Job in Los Angeles in which he increased the attractiveness of the trip to Reno. In his acceptance, Job mentioned that his friend Jack, an accountant, would travel with him to Reno to analyze the cocaine and would supply half the purchase money.

Job and Tavelman flew to Reno from Los Angeles on July 20, 1979 on Western Airlines flight $ 144. Baron and Job met in the bar of the MGM Grand Hotel. Baron opened his brief case an inch or so to display two plastic 5-lb. bags of powder appearing to be cocaine. Job then took Baron to his room to show him $24,000 in cash, indicating that his friend had the other half of the purchase money in a room on the floor above. Job said that a cocaine laboratory had been set up in the bathroom of his friend's room. Baron and Job returned to the bar, where Baron retrieved his suitcase from Cameron, an alleged compatriot. They then went to the elevator, to go to Job's friend's room to test the cocaine. Several DEA agents got on the elevator with Baron and Job, including Cameron. On leaving the elevator and starting down the hallway, Job asked Baron if he was alone. Cameron, who had left the elevator on the same floor, then arrested Job. Job requested that they return to his room. A pouch containing money was seized and opened when the group returned to Job's room. An airline ticket which fell out of Job's coat was also seized. Approximately $1,000 was taken from Job's person.

Following Job's arrest, agent Cameron attempted to locate Job's partner, "Jack the accountant." The hotel management provided information that the only single man checking in on the same day as Job and occupying a room on the floor above was registered as "Jim Freeman" and was located in room $ 2417. Cameron proceeded to that room, identified himself to Tavelman as a DEA agent investigating a narcotics arrest occurring earlier, and asked to be admitted. Tavelman admitted Cameron, who was accompanied by four other agents, to the room. In response to Cameron's questions, Tavelman admitted that he was an accountant, had registered under a false name, had $22,000 cash in the room, and had traveled from Los Angeles on the flight known by the agents to have been Job's. Tavelman denied knowledge of or involvement in the narcotics deal under investigation. Tavelman refused Cameron's request to search his bathroom and requested consultation with an attorney. Cameron then arrested Tavelman and read him the Miranda warnings. Tavelman's attempts to contact his attorney were unsuccessful. After arrest, Tavelman consented to the search. He took Cameron into the bathroom, where a cocaine laboratory was found. He also produced a purse with money in it and some cocaine. Cameron later testified at trial that, during this time, Tavelman had told him that if the cocaine tested out, "they were going to use the money to buy the coke." Later, Job and Tavelman met in the hallway of the DEA office. Job said, "Jack, I see they got you, too. I just want you to know that they didn't get you through me." Tavelman directed his response to Cameron. The parties disagreed on that response: He asked either "How did you get me?" or "How did you get that?"

On August 9, 1979, Tavelman and Job were indicted in the District of Nevada (1) for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976) and (2) for interstate travel with intent to distribute cocaine toward which end acts were consummated in violation of 18 U.S.C. § 1952(a)(3) (1976).

Tavelman's and Job's pretrial motions to dismiss under Fed.R.Crim.P. 12(b) were denied in their entirety. Tavelman's motion to suppress evidence obtained from his hotel room, including his statements at that time, was denied in its entirety. At the same pretrial hearing, Job's motion to suppress the pouch and money seized from his hotel room was granted and his motion to suppress the airline ticket was denied. Tavelman's pretrial motion for a hearing to determine the admissibility of confessions, admissions, and assertive conduct, see 18 U.S.C. § 3501 (1976) (motion in limine), was also denied.

A three-day jury trial, commencing on January 16, 1980, resulted in convictions of both defendants on both counts of the indictment. At trial, defendants renewed their motions to suppress the statements made by Tavelman in his hotel room regarding the intended use of the money and by Job and Tavelman in the DEA office. The court ruled that Tavelman's statement in the hotel room would be excluded and that Job's and Tavelman's statements in the DEA office would be used only against the codefendant who made them. Later, the court ordered the defendants' statements at the DEA office stricken from the record and admonished the jury to disregard them. Defendants' motions for acquittal at the end of the prosecution's case were denied. The motions for acquittal were converted into motions for mistrial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for the three extrajudicial statements of the defendants. The court denied the mistrial motions but admonished the jury.

On February 25, 1980, Tavelman was sentenced to a five-year term on Count I with a special parole term of three years under 21 U.S.C. § 960 (1976) and to a two-year term, to run concurrently with that on Count I, and a $5,000 fine on Count II. Job was sentenced on the same day to an eight-year term on Count I with a special parole term of three years under 21 U.S.C. § 960 (1976) and on Count II to a four-year term, to run consecutively with that on Count I.

II. SUFFICIENCY OF THE INDICTMENTS

An indictment must inform the defendant of "the nature and cause of the accusation." U.S.Const. amend. VI. Accord, Fed.R.Crim.P. 7(c)(1); United States v. Cecil, 608 F.2d 1294, 1296 (9th Cir. 1979) (per curiam). An indictment which tracks the offense in the words of the statute is sufficient if those words fully, directly, and expressly set forth all the elements necessary to constitute the offense intended to be proved. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). The indictments of Tavelman and Job contained the specific dates of their alleged criminal violations, the statutory provisions under which the indictments issued, and brief descriptions in statutory terms of the nature of the criminal activity alleged.

A. Count I

Count I of the indictments alleged that Tavelman and Job conspired, between July 12 and July 20, 1979, to possess cocaine with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976). Job and Tavelman contend that, although the existence of a substantive count may substitute for a definite statement of essential facts or overt acts, their indictments failed either to contain a substantive count or to allege essential facts or overt acts and were therefore constitutionally defective.

An indictment under 21 U.S.C. § 846 (1976) is sufficient if it alleges:

a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy.

United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978), overruled on other grounds, United States v. Rodriguez, 612 F.2d 906, 919 & n.35 (5th Cir.) (en banc) (by implication), cert. denied, -- U.S. --, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980). Courts do not require as detailed a statement of an offense's elements under a conspiracy count as under a substantive count. E. g., Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed....