U.S. v. Zavala
| Decision Date | 26 January 1988 |
| Docket Number | No. 85-1091,85-1091 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Julio ZAVALA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Judd C. Iversen, San Francisco, Cal., for defendant-appellant.
Mark N. Zanides, Asst. U.S. Atty., U.S. Dept. of Justice, San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before REINHARDT, BRUNETTI and KOZINSKI, * Circuit Judges.
Appellant Julio Zavala was indicted on March 4, 1983, for multiple violations of federal narcotics laws. Zavala was charged in count one with conspiracy to import and distribute cocaine (21 U.S.C. Secs. 846, 963); in counts two and nineteen with possession of cocaine for sale (21 U.S.C. Sec. 841); in counts three through eight with unlawful use of a communications facility (21 U.S.C. Sec. 843(b)); in count twenty with use of a firearm in commission of a felony (18 U.S.C. Sec. 924(c)(1)); and in count twenty-five with conducting a continuing criminal enterprise (21 U.S.C. Sec. 848). The remaining counts in the indictment involved the other defendants. Pursuant to a negotiated plea agreement, appellant pleaded guilty to counts one and nineteen, and the government moved to dismiss counts two and twenty. Appellant agreed to a bench trial on stipulated facts and additional evidence on count twenty-five.
The district court, 622 F.Supp. 319, convicted on counts three through six, on count eight, and on count twenty-five. Pursuant to the plea agreement, the court set aside the judgment of conviction on count one. The court sentenced Zavala to ten years confinement on count nineteen, ten years on count twenty-five, and four years each on counts three through six and eight. All the sentences run concurrently.
On this appeal appellant challenges his convictions on counts three through six and count eight (the communication counts), and count twenty-five (the continuing criminal enterprise count). He does not challenge his conviction on count nineteen. We affirm the convictions.
Appellant first challenges the sufficiency of the indictment on the communication counts. The indictment charged Zavala with using a telephone to facilitate the commission of violations of 21 U.S.C. Secs. 841(a)(1), 846, 952, 963. The indictment recited specifically the dates and times of, and the parties to, the illegal conversations. The full text of the indictment on the communication counts is as follows:
defendants herein, unlawfully, knowingly and intentionally did use a telephone in committing, causing and facilitating the commission of felony violations of Title 21, United States Code, Sections 963, 952, 846, and 841(a)(1), in communications with persons in the telephone calls listed in Counts Three thru Five:
defendant herein, unlawfully, knowingly and intentionally did use a telephone in committing, causing and facilitating the commission of felony violations of Title 21, United States Code, Sections 963, 952, 846, and 841(a)(1), in communications with persons in the telephone calls listed in Counts Six thru Eight:
COUNT DATE HOUR PERSONS CONVERSING
----- ------- -------- -------------------------------
Six 9/13/82 2109 hrs Julio Zavala and Angela
Cabezas
Seven 9/22/82 1051 hrs Julio Zavala and Doris Solomon
Eight 9/23/82 1513 hrs Julio Zavala and Carlos
Cabezas
Indictments that follow statutory language are generally sufficient if the statute sets forth the elements of the crime, see, e.g., Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), although following statutory language is not a cure-all. See, e.g., United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979) (). In this case, each count refers to the underlying substantive criminal statute prohibiting drug transactions, so the defendant in each instance is advised that on the dates and at the precise times shown, he used the telephone to converse with a specific person, all in connection with drug transactions.
Appellant argues that the indictment here was insufficient because it leaves open the possibility that the controlled substance in question could have been any one of one hundred and forty-two substances set forth in Title 21. Appellant relies upon a Seventh Circuit case, United States v. Hinkle, 637 F.2d 1154 (7th Cir.1981). In Hinkle the indictment merely charged that the defendant, on or about a certain day, used a telephone to facilitate a felony under 21 U.S.C. Secs. 841(a)(1), 843(b). The court held that the indictment was insufficient because it allowed for the possibility that the defendant could have facilitated any one of one hundred and forty-two predicate felonies in six different ways. Id. at 1158. The court concluded that without a statement as to the controlled substance in question and the manner of commission, the indictment was too vague. Id. The appellant argues that the indictment in this case is deficient for the same reason.
Hinkle is not, however, the Seventh Circuit's last pronouncement in this area. United States v. Keck, 773 F.2d 759 (7th Cir.1985), distinguished Hinkle as follows:
The indictment in this case, unlike the one involved in Hinkle, did not infringe upon defendants' Fifth or Sixth Amendment rights. In this case, the counts alleging violations of 21 U.S.C. Sec. 843(b) specified the type of communication facility used (a telephone), the felony facilitated (conspiracy to possess with intent to distribute and to distribute a controlled substance), as well as the dates and approximate times when the conversations occurred. Cf. Hinkle, 637 F.2d at 1158. Although the counts did not identify the controlled substances involved, they did, nonetheless, refer to the conspiracy "as charged in Count I." ... Defendants therefore knew that the indictment charged them with using the telephone, on specific days and at specific times, to facilitate a conspiracy to possess with intent to distribute and to distribute cocaine and PCP.
Id. at 764. As in Keck, the indictment here specified in count one that the defendants, including Zavala, were charged with conspiracy to "import, distribute, and possess with intent to distribute cocaine, a Schedule II narcotic substance listed in Title 21, United States Code, Section 812."
It is true that the substantive counts here do not specifically refer to count one, which charged the conspiracy to import cocaine. However, this is a defect of form, not substance. We must overlook such a defect where, as here, defendant challenged the indictment for the first time on appeal. United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976). We conclude, therefore, that the indictment here, although not a model, is sufficient.
Appellant next argues that there was insufficient evidence of guilt on count six. We disagree. The district court found that the purpose of the call described in the indictment was to tell the appellant that a messenger would be by to collect drug money that the appellant owed. Appellant contends that paying a debt without expectation of future dealing does not facilitate the distribution conspiracy. We doubt the premise, but, in any event, there was sufficient evidence to support the inference that the appellant was still in the cocaine business, and payment ensured that he could continue in it.
Appellant's next contention is that the government failed to produce sufficient evidence of guilt to convict him of operating a continuing criminal enterprise as charged in count twenty-five. We reject this argument. Appellant first contends that the crimes charged in the communication counts do not meet the requirement that the defendant engage in a continuing series of violations. See 21 U.S.C. Sec. 848(b)(2). The continuing criminal enterprise statute unambiguously provides that felony violations of the relevant subchapters will suffice. See 21 U.S.C. Sec. 848(b)(1); see also United States v. Young, 745 F.2d 733, 750 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). Appellant was charged with and convicted of multiple illegal uses of a communication facility in violation of 21 U.S.C. Sec. 843(b). The statute requires no more.
Resolving this argument against the appellant allows us also to dispose of his contention that the district court abused its discretion in denying a bill of particulars naming the predicate felonies for the continuing enterprise charge. See United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974). The appellant vigorously contested the communication counts, and they were central to the trial. His defense, therefore, was in no way hindered by the district court's refusal to force the prosecution to spell out its theory in further detail,...
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