U.S. v. Whitten

Citation706 F.2d 1000
Decision Date25 May 1983
Docket Number82-1293,Nos. 82-1315,82-1294 and 82-1303,s. 82-1315
Parties13 Fed. R. Evid. Serv. 384 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joe WHITTEN, John Elmer Gaiefsky, Jack Wayne Gish, Richard Lawrence Shimel, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Hector E. Salitrero, Asst. U.S. Atty., argued; Peter K. Nunez, U.S. Atty.; Hector E. Salitrero, Asst. U.S. Atty., on the brief, San Diego, Cal., for the U.S Gerald M. Birnberg, Houston, Tex., for Whitten.

Walter Maund, San Diego, Cal., for Gaiefsky.

H. Dean Steward, San Diego, Cal., for Gish.

Frank J. Ragen, San Diego, Cal., for Shimel.

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

Before FARRIS and ALARCON, Circuit Judges, and SCHWARZER, * District Judge.

SCHWARZER, District Judge:

Kenneth Whitten and twenty-three codefendants were charged in a twenty-four count indictment with making and selling methamphetamine. The trial court severed the case against four defendants, Whitten, Shimel, Gaiefsky, and Gish, who now appeal from their convictions of various narcotics offenses in violation of 21 U.S.C. Secs. 841(a)(1), 846, 843(b), and 848.

Appellants were charged with operating illegal methamphetamine laboratories in Texas and California and with marketing the drug in a number of states. A key point of distribution was Las Vegas, where Debra Howard was arrested, on unrelated charges, on April 2, 1980. Howard agreed to cooperate with federal drug enforcement officials. Based on her information, the police in California and Texas made a number of arrests and searched a number of different locations. Appellants challenge the legality of these searches and seizures. They also contest the sufficiency of the evidence supporting their convictions and challenge various evidentiary rulings of the trial court. We will consider the claims raised by each appellant in turn.

WHITTEN'S APPEAL
I. Sufficiency of the Evidence
A. Money Order Counts

Appellant Whitten was convicted of seven counts of using Western Union money orders to facilitate the distribution of methamphetamine (Counts 10-17). The indictment names specific dates on or about which telegraphic money orders were used in drug transactions. At trial, the government introduced into evidence more than thirty money orders and Western Union money order applications. For each date named in the indictment, there is a corresponding money order in which one of the indicted coconspirators or a government witness is the recipient of a large sum of money. The amounts vary but are generally between $2,000 and $6,000.

Roger Loving, an indicted coconspirator separately tried, testified that Whitten customarily used money orders for drug sales. He also testified to personally receiving money orders from a woman named "Pat" in Lubbock, Texas. On Whitten's instructions, he cashed the money orders and gave him the proceeds. Count 13 of the indictment charges Whitten with use of a Western Union money order on or about March 28, 1980, to aid methamphetamine sales. A money order dated March 28, 1980, in the amount of $2,115.65 made out to Roger Loving from Pat Sharp of Lubbock, Texas, was introduced at trial.

Patti Hickey, mother of one of the indicted conspirators, testified that on four or five occasions she picked up money for Whitten at Western Union. Counts 14 and 16 are based on evidence of money orders for $4,000 and $6,000 sent to Patti Hickey in February and March of 1980. Counts 10, 11 and 12 are based on money orders in amounts between $2,000 and $6,000 sent directly to Whitten. Count 15 is based on a money order sent to Jerry Gish, an indicted conspirator separately tried. Count 17 is based on a money order sent to John Gaiefsky, a codefendant in this case.

Whitten challenges the sufficiency of the evidence to sustain his convictions on Counts 10 through 17 charging violations of 21 U.S.C. Sec. 843(b). He argues that while there is evidence that money orders were sometimes used by defendants to effect sales of methamphetamine, there is no evidence that these particular money orders sent via wiregram on specified dates constituted payments for illicitly distributed narcotics.

The test of sufficiency of evidence is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). The test is not whether the evidence excludes every hypothesis but that of guilt but whether the trier of fact could reasonably arrive at the conclusion of guilt. United States v. Rojas, 458 F.2d 1355, 1356 (9th Cir.1972). The essential elements of the offense with which Whitten is charged in Counts 10 through 17 are: (1) knowing or intentional (2) use of a telegraphic money order (3) to aid or facilitate the distribution of methamphetamine. 21 U.S.C. Sec. 843(b); United States v. Barnes, 681 F.2d 717, 723 (11th Cir.1982); United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981).

Testimony by coconspirators provided ample evidence that money orders were often used by Whitten in drug sales, that their use was purposeful, and that it aided the distribution of narcotics. The question is whether the government so limited itself by bringing multiple counts and naming specific dates that it failed to sustain its burden of proving the actual violations charged in the indictment.

In United States v. Murray, 492 F.2d 178, 186 (9th Cir.1973), cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166 (1974) a conviction under Sec. 843(b) was reversed for insufficient evidence that telephone calls were used to facilitate the importation of narcotics; the only evidence was tape recordings of calls made by persons other than defendants. There was no evidence that defendants customarily placed their orders for narcotics by phone, that they knew these calls were made, or that these particular calls had any connection with their particular narcotics transactions. Id. at 186-87. In United States v. Rodriguez, 546 F.2d 302 (9th Cir.1976), a conviction under Sec. 843(b) was reversed where the indictment charged but the government failed to prove use of a telephone to facilitate the distribution of cocaine on a specified date. Because the government elected to set forth the date and location of the telephone call, it was obligated to submit evidence to support its charge. Id. at 308. See also United States v. Valdivia, 492 F.2d 199, 207 (9th Cir.1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

This case is distinguishable from Rodriguez, in which there was no evidence that the phone call referred to in the indictment was ever made, and from Murray, in which there was no evidence linking the phone calls to the defendants charged with the offense. Here, two witnesses testified that on instruction from Whitten, they had personally picked up and cashed money orders at various times and that Whitten used money orders to effect drug sales. The physical evidence submitted by the government consisted of numerous money orders and money order applications dating from the period of the conspiracy. For each date named in the indictment, there is a corresponding money order for a large sum sent to one of the conspirators or to Patti Hickey, who testified that Whitten asked her to pick up money for him at Western Union on several occasions. The quantity of money orders and the dollar values involved corroborate the testimony that Whitten often used money orders for drug sales. Not only are the sums large, but the money orders were received in quick succession. On March 12, 1980, Whitten was sent one money order for $2,000 and another for $3,000. Less than one week later, on March 17, 1980, he personally received $6,000 via Western Union.

These facts, together with evidence that certain of the individuals named as remitters of the money sent via telegram were generally associated with appellant in narcotics activities, are sufficient to make this question one for the jury. See United States v. Lerma, 657 F.2d 786, 787-89 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982) (evidence of a large number of calls between a narcotics buyer and defendant who was identified as the seller sufficient to establish a violation of Sec. 843(b)); United States v. Cooper, 606 F.2d 96, 98 (5th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980) (testimony that witness sent several money orders and that some of the money used for heroin sufficient to support a conviction on two counts of Sec. 843(b)). Direct testimony linking particular money orders to specific drug transactions would have been preferable. However, we conclude that a rational trier of fact could reasonably have found Whitten guilty of the crimes charged in Counts 10 through 17. The judgment on those counts is affirmed.

B. Manufacture Count

Whitten was charged in Count 4 with manufacturing methamphetamine between April 15, 1980, and May 5, 1980. The government's only relevant evidence showing that Whitten was making the drug on those dates was the statement of Roger Loving, an indicted coconspirator separately tried, that "Kenny was out cooking somewhere" during that period.

The uncorroborated testimony of an accomplice is enough to sustain a conviction, United States v. Johnson, 454 F.2d 700 (9th Cir.1972), unless the testimony is "incredible or insubstantial on its face." Suhl v. United States, 390 F.2d 547, 550 (9th Cir.), cert. denied, 391 U.S. 964, 88 S.Ct. 2035, 20 L.Ed.2d 879 (1968). Loving's testimony was not patently incredible. In the context of the evidence at trial, the jurors could reasonably have found on the strength of that testimony that Whitten was guilty of...

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