U.S. v. Young, 93-1343

• Decision Date: 19 January 1995
• Docket Number: No. 93-1343,93-1343
• Citation: 45 F.3d 1405
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laina Jeanne YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1405

45 F.3d 1405

UNITED STATES of America, Plaintiff-Appellee, v. Laina Jeanne YOUNG, Defendant-Appellant.

No. 93-1343.

United States Court of Appeals Tenth Circuit.

Jan. 19, 1995.

Rehearing Denied Feb. 24, 1995.

David C. Japha, Denver, CO, for defendant-appellant.

John M. Hutchins, Asst. U.S. Atty. (Henry L. Solano, U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee.

Before BALDOCK and EBEL, Circuit Judges, and BROWN, ^* District Judge.

WESLEY E. BROWN, District Judge.

This case was the indirect result of a traffic stop in Arizona. On September 6, 1989, Arizona Highway Patrolman Sandra Prichett stopped a car that had crossed the center line of the highway. The driver of vehicle could not produce a driver's license when asked to but said that her name was Laina Young. The driver and a passenger, Sam Evans, produced papers showing that the car had been rented by Laina Young at the Los Angeles Airport. The officer became suspicious when she obtained a description of Laina Young from the California Division of Motor Vehicles that did not match the driver of the car. In fact, the driver's name was Natasha Renfro. When asked to produce some form of identification, the driver began looking through the trunk of the vehicle. This turn of events ultimately led to the officer's discovery of a suitcase in the trunk containing approximately seven kilograms of cocaine.

A subsequent investigation led authorities to charge eleven individuals in a second superseding indictment with various counts of drug trafficking and money laundering. Defendant-appellant Laina Young was one of the individuals charged. Ms. Young and a co-defendant, Jose Gutierrez, were the only two defendants to proceed to trial. Mr. Gutierrez' appeal is decided in a companion case, United States v. Gutierrez, 48 F.3d 1134 (10th Cir.1995).

The evidence at trial showed a large scale conspiracy to distribute cocaine headed by a man named Ernest Evans. In short, the evidence showed that Evans distributed large amounts of cocaine to individuals in several cities. Evans obtained payment for drugs on several occasions by means of wire transfers at Western Union offices in Los Angeles. Evans had numerous individuals, including appellant Laina Young, receive these payments for him, usually in $9,000 increments.

A jury found Ms. Young guilty on two counts of money laundering in violation of 18 U.S.C. Sec. 1956. The jury was unable to reach a verdict on one additional count of money laundering and on a charge of conspiracy to possess with intent to distribute cocaine. Appellant was sentenced to 70 months imprisonment. She now asserts five separate grounds for error. For the reasons set forth herein, we affirm.

Admission of Tape Recorded Conversation

Appellant's first argument concerns the district court's denial of her motion to suppress a tape recorded telephone conversation between Keith Rutherford and Ernest Evans, two co-defendants named in the indictment. The conversation, which took place on May 5, 1993, was recorded by Rutherford upon the advice of his attorney. During the conversation Evans asked Rutherford if he intended to plead guilty and, among other things, indicated that he was willing to testify on behalf of Rutherford. Rutherford turned the tape over to the government when he pled guilty on May 10, 1993. Ernest Evans entered a guilty plea on May 14, 1993.

Ms. Young's trial began on June 7, 1993. The government called Rutherford as a witness in its case-in-chief; he gave testimony incriminating Ms. Young. Ms. Young called Ernest Evans as a witness in her case. Evans admitted being extensively involved in drug trafficking but testified that he told Young nothing about his criminal activities. During cross-examination, counsel for the government asked Evans whether he had called Rutherford within the last six weeks to see if Rutherford was going to plead guilty and to tell Rutherford that he (Evans) was willing to testify as a favorable witness. Evans denied having done so, although he acknowledged having called Rutherford at some point. Vol. 22 at 980. After the defense rested, the government indicated that it would call Rutherford as a rebuttal witness and, for the first time, disclosed the existence of the taped conversation between Rutherford and Evans. Over the defendant's objection, the trial court determined that the tape was admissible to impeach Evans and permitted the government to introduce it during Rutherford's rebuttal testimony. Counsel for Ms. Young then cross-examined Rutherford about the tape.

Appellant's first argument is that the government's failure to disclose the taped conversation prior to rebuttal was a violation of her right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. ¹ Impeachment evidence as well as exculpatory evidence falls within the Brady rule. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

Appellant argues that the tape contained impeaching evidence against Rutherford. Specifically, she cites a portion of the tape where Rutherford stated that he was "a pawn," that "they're pushing me around," and that "You know, because like I, like I try to tell them, I don't really know much about anything, anyway. And they [throw a bunch of names at me and] I don't know these people." Govt.Exh. 54D, E. Appellant concedes that, unlike Brady, the evidence at issue in this case was actually disclosed during the trial and that she had the opportunity to cross-examine Rutherford about it. She maintains, however, that the government's failure to produce the tape before the end of the case was damaging "because there is a big tactical difference between whether the government puts on damaging evidence first, or whether the defendant can cross-examine with it first." Aplt.Br. at 19. Counsel for Ms. Young also suggests that he would have prepared differently for Mr. Evans' testimony had he known about the tape. Id.

Notwithstanding the delayed disclosure of the tape, we conclude that appellant received a fair trial. Evidence is "material" within the meaning of Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3385, 87 L.Ed.2d 481 (1985). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. To the extent Brady applies where an allegation is made that the government's belated disclosure of material during the trial resulted in prejudice to the defense, ² the materiality inquiry focuses on whether earlier disclosure would have created a reasonable doubt of guilt. See United States v. Rogers, 960 F.2d 1501, 1511 (10th Cir.1992). Cf. United States v. Beale, 921 F.2d 1412 (11th Cir.1991) (A Brady violation can occur if the prosecution delays in transmitting evidence during a trial, but only if the defendant can show prejudice, e.g., the material came so late that it could not be effectively used.)

Our examination of the record convinces us that there is no reasonable probability that the result of the trial would have been different had the evidence been disclosed to the defense earlier. To begin with, Rutherford's statements on the tape are so vague that their impeachment value must be considered marginal. Nothing on the tape indicates that he was referring to Ms. Young when he said "I really don't know much about anything" and "I don't know these people." Additionally, it is clear that there was ample other evidence besides Rutherford's testimony that supported Ms. Young's money laundering convictions. Without recounting the evidence in full, it is sufficient to say that the evidence showed that on several occasions appellant went to Western Union at the behest of Ernest Evans and accepted wire transfers from various individuals in the amount of $9,000. See Vol. 17. A jury could easily conclude that the wire transfers were made under circumstances that would likely arouse suspicion in the average person and which suggested that Ms. Young had knowledge of their illicit nature. There was also abundant circumstantial evidence from which a jury could properly conclude that appellant was aware of Ernest Evans' drug activities at the time she engaged in these monetary transactions. For example, there was evidence that Ernest Evans lived a lavish lifestyle during the time of the alleged drug conspiracy, having purchased a $700,000 house in California and automobiles that included a BMW, a Porche, and a Rolls Royce. Ms. Young was closely associated with Evans during this time period and also associated with several of the other admitted coconspirators. Clayton Bullard testified that when he came to Los Angeles to purchase cocaine from Ernest Evans, he was introduced to Laina Young by Evans at an apartment that contained weighing scales and other materials used in the packaging of cocaine. Vol. 18 at 140-41. Bullard also testified that on one occasion when he called on the phone and Evans was unavailable, Young provided him with the names that he should send wire transfers to. Id. at 143. These transfers represented payment for cocaine. Id. at 144. Additionally, there was testimony from Clayton Bullard and Phil Evans that Ernest Evans told them that Young was involved in distributing drugs for him. Vol. 18 at 142; Vol. 21 at 751-52.

When the abundance of evidence is combined with the fact that counsel was able to cross-examine Rutherford in rebuttal and the jury was able to hear and weigh the statements on the...