U.S. v. Weaver

• Decision Date: 09 April 1979
• Docket Number: No. 77-3694,77-3694
• Parties: 4 Fed. R. Evid. Serv. 685 UNITED STATES of America, Plaintiff-Appellee, v. Leslie Alfred WEAVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1272

594 F.2d 1272

4 Fed. R. Evid. Serv. 685

UNITED STATES of America, Plaintiff-Appellee, v. Leslie Alfred WEAVER, Defendant-Appellant.

No. 77-3694.

United States Court of Appeals Ninth Circuit.

April 9, 1979.

Carson G. Taylor, Los Angeles, Cal., for defendant-appellant.

Darell W. MacIntyre, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and TANG, Circuit Judges, and TEMPLAR, District Judge. ^*

TANG, Circuit Judge.

Appellant, Leslie Alfred Weaver, was convicted following a jury trial for conspiracy to distribute and possess cocaine (21 U.S.C. §§ 841(a)(1), 846) and for aiding and abetting in the possession with intent to distribute 257.9 grams of cocaine (21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2). Weaver was sentenced to concurrent prison terms of three years. He appeals his conviction on the grounds that the co-conspirators' statements implicating him were improperly admitted at trial and the remaining evidence was insufficient to support the convictions. We reverse.

Weaver originally was indicted with Joel Misetich and Jay Maddox as co-conspirators in a cocaine transaction. The testimony at Weaver's trial disclosed that on the evening of June 20, 1977, undercover agent Neil Greppin of the Drug Enforcement Administration met Maddox at a Las Vegas, Nevada motel. Agent Greppin informed Maddox that he had $30,000 to buy a pound of cocaine. A deal was arranged to take place in the motel parking lot. Maddox then left the motel but returned shortly after midnight in his truck. Agent Greppin waited with Maddox in Maddox's truck for a "connection" to arrive with the cocaine. Several minutes later, Misetich arrived driving his pickup truck. Appellant Weaver was in the passenger's seat of Misetich's truck. Misetich talked with Maddox after which Misetich took a package wrapped in white cloth from a footlocker in the rear of his truck. Misetich took the package to Agent Greppin who inspected it inside Maddox's truck. After Greppin was satisfied that the package contained cocaine, he informed Misetich and Maddox he was going to his motel room to get the $30,000.

While Greppin headed for his motel room, Misetich returned to his truck with the package of cocaine, opened the driver's door, extended the package inside the truck and then got inside the truck. No one saw where Misetich placed the package but it was found after the arrest in Misetich's truck with approximately half of it under the passenger's seat and half protruding from under the seat. In the meantime, Greppin gave a signal to surveillance agents who converged on the scene and arrested Misetich, Maddox and Weaver. Weaver was in the passenger's seat of Misetich's truck during the entire transaction prior to his arrest.

A small plastic vial containing cocaine residue with an attached spoon and $596.00 in cash were found on Weaver when he was searched at the jail.

In addition to these facts, Misetich and Maddox made various statements to Agent Greppin which implicated Weaver as Misetich's "connection." The most incriminating was Misetich's statement to Greppin that his connection was in the truck. At that time, the only person in the truck was Weaver. At issue is whether the trial court was correct in admitting these statements at trial.

It is well settled that out-of-court statements by a co-conspirator are only admissible against a defendant after evidence from a source apart from the statements establishes "(1) that a conspiracy existed, and (2) that the member against whom the conversation is introduced had knowledge of and participated in the particular conspiracy alleged." U. S. v. Testa, 548 F.2d 847, 852 (9th Cir. 1977) citing U. S. v. Ledesma, 499 F.2d 36, 40 (9th Cir. 1974). This circuit has established that there must be substantial independent evidence of the conspiracy, although such evidence need not be direct evidence. Furthermore, once the conspiracy is shown, only "slight evidence" is required to connect a co-conspirator. Id.

We believe the facts present a prima facie case that a conspiracy existed; however, there is not even "slight evidence" to connect Weaver to the conspiracy apart from the co-conspirator statements.

"(S)light" evidence must be of a quality which will reasonably support a conclusion that the particular defendant in question wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy. U. S. v. Freie, 545 F.2d 1217, 1222 (9th Cir. 1976).

Aside from the co-conspirator statements, the evidence which might show Weaver's knowledge and participation in the conspiracy is that he was a passenger in Misetich's truck and the cocaine (which was wrapped) was found partly under the passenger's seat. We find that Weaver's presence alone is not enough to constitute the requisite "slight evidence" of his wilful participation or knowledge in the conspiracy. See United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977). Unlike the case of U. S. v. Perez, 491 F.2d 167 (9th Cir. 1974), which the Government cites, there was no...