U.S. v. Thomas

• Decision Date: 09 November 1978
• Docket Number: No. 77-3323,77-3323
• Parties: 4 Fed. R. Evid. Serv. 370 UNITED STATES of America, Plaintiff-Appellee, v. William THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 123

586 F.2d 123

4 Fed. R. Evid. Serv. 370

UNITED STATES of America, Plaintiff-Appellee, v. William THOMAS, Defendant-Appellant.

No. 77-3323.

United States Court of Appeals, Ninth Circuit.

Nov. 9, 1978.

John W. Lundin (argued), Seattle, Wash., for defendant-appellant.

Harry J. McCarthy, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and CHOY, Circuit Judges, and WEIGEL ^*, District Judge.

CHOY, Circuit Judge:

William Thomas appeals from a jury verdict convicting him of one count of conspiracy to possess and distribute heroin in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846, and seven counts of using a communication facility in the commission of a conspiracy in violation of 21 U.S.C. § 843(b). We affirm.

I. Facts and Proceedings Below

On January 4, 1977, appellant Thomas, seven codefendants, and eight other coconspirators were named in a thirty-two count indictment. Count one charged codefendants Richard Avery, Edsel Newbins, Jeannette Haydel, Jeffrey Jackson, Calvin White, Richard Williams, William Tann and William Thomas with knowingly and unlawfully conspiring to distribute, and to possess with intent to distribute, heroin during the period March 4, 1976 to October 21, 1976. The remaining counts, seven of which named appellant, charged the unlawful use of a communication facility in the commission of the conspiracy.

Six of the eight persons charged as codefendants pleaded guilty to the "telephone counts," with only Thomas and Tann opting for trial. At the conclusion of their joint trial, Tann was acquitted of all counts, while Thomas was convicted of all counts. Appellant received a total sentence of five years imprisonment: he was sentenced to four years on the conspiracy count, and one year on the first of the seven "telephone counts," the sentences to run consecutively. He was also sentenced to one year on each of the remaining "telephone counts," to run concurrently with each other and with the sentence on the conspiracy count. ¹

The indictment was based upon evidence from an investigation conducted during the period 1974 to 1976 by the Drug Enforcement Administration (DEA). The investigation focused on Avery, who was suspected of being the hub of a heroin distribution system in the Seattle-Tacoma area. A court-ordered wiretap of Avery's residence was authorized on September 30, 1976, resulting in the recording of 867 conversations between October 1 and October 20, 1976.

The Government's evidence, including the tape-recorded conversations, disclosed that Avery was indeed involved in a conspiracy with others named in the indictment to purchase heroin in Southern California and distribute it to wholesale dealers in the Seattle-Tacoma area. One of these wholesale dealers was Newbins, who provided Haydel, White and Jackson with heroin to be diluted, packaged and distributed on the street. At trial, the Government endeavored to show that Thomas was involved in this scheme through his efforts to obtain a temporary supply of heroin for the other conspirators while the main source, Avery, was away purchasing more heroin in Southern California.

On or about October 1, 1976, Avery, accompanied by Williams, Williams's wife and a female acquaintance, traveled to Southern California to purchase heroin from one William Gomez. The Government theorized that while Avery was out of town, Newbins ran short of heroin and turned to Thomas for an interim source of supply; Thomas attempted to accommodate him and others in the conspiracy. The evidence supporting this consisted of, Inter alia, phone conversations that took place on October 2 and 3 between an individual calling himself "Merrick" identified at trial as Thomas ² and several others including Newbins, Haydel and White. These conversations, together with eyewitness testimony of DEA agents, constituted the Government's principal evidence of appellant's participation in the Avery distribution conspiracy.

In addition, other significant evidence was introduced for the purpose of proving Thomas's connection with the conspiracy. This included a list finder directory seized from Avery's house pursuant to a warranted search, containing Thomas's phone number (listed under the name "Bill Merrick") as well as the names and phone numbers of other coconspirators; a "little black book" seized from Avery's person, also listing Thomas's phone number under the name "Merrick"; and one of Thomas's business cards, seized from appellant's wallet after his arrest. Written on the reverse of the business card was the name "Rich" and Richard Avery's phone number the same number intercepted by the Government's wiretap.

On appeal, Thomas raises three objections: (1) that the evidence was insufficient to support his conviction; (2) that the proof established, if anything, his involvement in a separate conspiracy and not his participation in the Avery distribution scheme; and (3) that permitting a DEA agent to identify his voice as that of "Merrick" constituted reversible error.

II. Sufficiency of the Evidence

We reject Thomas's contention that the evidence at trial was insufficient to support his conviction. The jury could reasonably have concluded beyond a reasonable doubt both that Thomas was connected to the Avery conspiracy to possess and distribute heroin in the Seattle-Tacoma area, and that he utilized a communication facility in furtherance thereof.

A. The Conspiracy Count

In determining whether evidence is sufficient to link a defendant to a conspiracy, this court has invoked the slight evidence rule, interpreted as follows:

Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the Connection is slight, is sufficient to convict him with knowing participation in the conspiracy. Thus, the word "slight" properly modifies "connection" and not "evidence." It is tied to that which is proved, not to the type of evidence or the burden of proof.

United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original; footnote omitted). Thomas does not dispute the existence of the Avery distribution scheme, but only his connection with it. Thus, the only issue is whether the evidence was sufficient to establish beyond a reasonable doubt that Thomas had a slight connection to the Avery conspiracy proved. See United States v. Bracy, 566 F.2d 649, 659 (9th Cir. 1977); United States v. Garcia-Rodriguez, 558 F.2d 956, 960 (9th Cir. 1977), Cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978); United States v. Valdovinos, 558 F.2d 531, 533 (9th Cir. 1977). Viewed in the light most favorable to the Government, See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence linking Thomas to the conspiracy was sufficient to enable the jury to conclude beyond a reasonable doubt that his connection was far more than "slight." The following acts performed by Thomas, which may either be inferred from or were directly proved by the evidence at trial, substantiate our decision on this issue:

1. Thomas picked up or delivered heroin during a visit to Newbins at Avery's house on October 2, 1976. On October 2, Newbins was measuring and preparing heroin for distribution. ³ This took place at Avery's house, where there were customers waiting during the day. ⁴ Avery was away buying heroin in California, and called during the afternoon to advise Newbins that he was "getting everything in shape, making sure everything is all right here." That night, Thomas who had been at Avery's house the previous day ⁵ phoned for Avery, apparently to see if he had returned; ⁶ since Newbins was still there, he answered the phone. Upon learning it was Thomas calling, ⁷ Newbins asked him to come over, stating that it was "quite important" and that it would be to Thomas's benefit. DEA agents then saw Thomas drive from Avery's house and subsequently travel to another location where Thomas supplied another conspirator, Jackson, with fifty dollars' worth of heroin. ⁸

2. Thomas transported and supplied heroin to conspirator Jackson on October 3, 1976. During the early hours of October 3, DEA agents saw Thomas drive from Avery's house to the apartment of conspirators Haydel and White, followed by another car. The occupants of both vehicles were seen entering the Haydel-White apartment. Subsequent evidence established that at this time Thomas sold Jackson fifty dollars' worth of heroin, which Jackson then injected an act that Haydel revealed in a later intercepted phone conversation. ⁹

3. Thomas arranged to purchase heroin for Newbins and other conspirators from a third party. These arrangements are directly inferable from several intercepted phone conversations played at trial. For example, in one of the tapes Thomas instructed Newbins to get "up front money" so they could "take care of business with(in) the next 45 minutes or hour, otherwise we're going to have to wait until four or five; he's taking his kids to the mountains." When the terms for the heroin purchase were finally agreed upon, however, Newbins and the third-party seller could not settle on where the transfer was to take place. ¹⁰ Thus, the deal Thomas arranged fell through.

4. Thomas later attempted to purchase heroin for Newbins and other conspirators from another source, but the transaction was not consummated because the price was too high. In taped conversations Thomas himself stated that he "worked all day and all night to get everything organized," and that "things didn't come down right today . . . but the dude wants such an outrageous bunch of bread for it, maybe it's best not to do business with him anymore." ¹¹

5. Thomas again agreed to supply several of the conspirators with heroin. In another intercepted telephone conversation Thomas agreed that he and others...