U.S. v. Zavala-Serra

• Citation: 853 F.2d 1512
• Decision Date: 11 August 1988
• Docket Number: Nos. 87-1141,87-1150,D,ZAVALA-SERR,s. 87-1141
• Parties: 26 Fed. R. Evid. Serv. 704 UNITED STATES of America, Plaintiff-Appellee, v. Luis Rodolfoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria Novoa CRUZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1512

853 F.2d 1512

26 Fed. R. Evid. Serv. 704

UNITED STATES of America, Plaintiff-Appellee, v. Luis Rodolfo ZAVALA-SERRA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Maria Novoa CRUZ, Defendant-Appellant.

Nos. 87-1141, 87-1150.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 5, 1988.

Decided Aug. 11, 1988.

Reginald P. Minn, Minn & Ripley, Honolulu, Hawaii, for defendant-appellant Zavala-Serra.

Earle A. Partington, Honolulu, Hawaii, for defendant-appellant Novoa Cruz.

Michael K. Kawahara, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, REINHARDT and NOONAN, Circuit Judges.

WALLACE, Circuit Judge:

The district court found appellants Luis Rodolfo Zavala-Serra (Zavala) and Maria Novoa Cruz (Novoa) guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Zavala was also convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). In this consolidated appeal, Novoa challenges her conviction, arguing that the district court erred in admitting co-conspirator statements against her and that there was insufficient nonhearsay evidence to sustain her conviction. Zavala challenges the constitutionality of the statute under which he was sentenced. We affirm.

I

Novoa was charged with conspiracy to distribute cocaine and with possession with intent to distribute cocaine in violation of federal narcotics laws. She was convicted of the conspiracy charge and acquitted of the possession charge. The evidence demonstrated that Novoa conspired with Zavala and others to import a large shipment of cocaine into Hawaii. Miller, a government informant, testified that Zavala made various statements during the course of the conspiracy identifying Novoa as the source of the cocaine. On one occasion, Zavala told Miller that he anticipated receiving "the shipment" from "his friend Maria." On another occasion, Zavala told Miller that he had gotten in touch with and "was talking to Maria." Miller also testified that he was present when Zavala placed several telephone calls to a person in California. During one call, Miller overheard Zavala ask for cocaine and discuss the shipment. Miller also testified that Zavala made another call to a person "he said was Maria" during which Zavala discussed a shipment of money to California. Telephone toll records introduced by the government corroborated Miller's testimony that Zavala placed numerous telephone calls to Novoa's residence during the period in question.

Another government witness, Arguedas-Prieto (Arguedas), who was charged along with Zavala and Novoa but not brought to trial, testified that Zavala asked him to bring some cocaine to Hawaii and told him that he, Arguedas, should procure the cocaine they needed from "Maria" in California.

Novoa objected to the admission of these statements on two grounds. First, she contended that there was insufficient evidence, apart from the hearsay statements themselves, to establish her involvement in the conspiracy between Zavala, Arguedas, and others to import cocaine into Hawaii. Novoa also argued that the government failed to establish that Zavala's statements to Miller were made "in furtherance of the conspiracy" and were thus inadmissible as statements of a coconspirator under Federal Rules of Evidence 801(d)(2)(E). Finally, Novoa asserted that if the hearsay statements were improperly admitted, there was insufficient evidence to sustain her conviction. She renews these arguments on appeal.

A.

The order of taking evidence may vary, but prior to the final admission of out-of-court statements of co-conspirators against a criminal defendant to the fact finder, the government must establish by a preponderance of the evidence that a conspiracy existed and that the defendant was connected to it. Bourjaily v. United States, --- U.S. ----, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987) (Bourjaily ). The existence of a conspiracy and the defendant's involvement in it are preliminary questions of fact that must be resolved by the trial court. Id. 107 S.Ct. at 2778.

In making these preliminary factual determinations, the judge may examine the hearsay statements sought to be admitted along with other relevant evidence and give the evidence "such weight as his experience and judgment counsel." Id. at 2782. Prior to Bourjaily, we reviewed de novo the district court's preliminary factual determination that a conspiracy existed and the defendant was involved in it. United States v. Smith, 790 F.2d 789, 794 (9th Cir.1986). However, the Supreme Court opinion in Bourjaily indicates that we should determine whether "the District Court's factfinding of this point was clearly erroneous." 107 S.Ct. at 2782. But under either standard of review of this determination, we are convinced that the government satisfied its burden of demonstrating the conspiracy and Novoa's involvement in it by a preponderance of the evidence.

Novoa contends that there was insufficient evidence, apart from Zavala's out-of-court statements to Miller and Arguedas to support the district court's preliminary factual determination that the government had satisfied its burden of establishing her membership in the conspiracy. This argument is bolstered by our decision in United States v. Gordon, 844 F.2d 1397 (9th Cir.1988) (Gordon ). Although Bourjaily clearly holds that the co-conspirator hearsay statements can be used to prove the preliminary facts of the conspiracy and a defendant's involvement in it, the Court left open whether the government must also produce evidence in addition to the proposed statements. Bourjaily, 107 S.Ct. at 2781-82. In Gordon, we held the government must do so. 844 F.2d at 1402.

In this case, the government introduced evidence, in addition to the challenged hearsay statements, directly implicating Novoa in the conspiracy. Arguedas, an admitted member of the conspiracy, testified that he spoke to Novoa after Zavala told him to obtain cocaine from "Maria." According to Arguedas, Novoa told him that Zavala was sending her money for the cocaine purchase. On a different occasion, Novoa told him that "there was some delay in getting the stuff. She couldn't get it together. There were some delays trying to get the coke." Telephone toll records introduced by the government corroborated Arguedas's testimony that he placed calls to Novoa's residence during the period in question.

Novoa's statements to Arguedas constitute admissions of a party. These admissions, viewed in conjunction with the hearsay statements and the toll records, were sufficient to establish her membership in the conspiracy by a preponderance of the evidence.

Novoa nevertheless contends that the district court erred in determining that she participated in the plan to transport cocaine to Hawaii. She bases this argument on the proposition that Arguedas's testimony regarding his conversations with her was inherently incredible. She supports this argument by pointing out that Arguedas testified for the government only after obtaining a favorable plea bargain and that Arguedas's testimony that his calls to Novoa were made collect was contradicted by telephone toll records.

These contentions merely indicate Novoa's belief that Arguedas was not a credible witness. In essence, she asks us to determine anew the probative value to be assigned Arguedas's testimony. This we will not do. Arguedas's testimony, if believed, was strong evidence that Novoa played a crucial role in the conspiracy. The question whether Arguedas's testimony was deserving of belief was for the fact finder, not for an appellate court reviewing his testimony on the basis of a cold record. See United States v. Gudino, 432 F.2d 433, 434 (9th Cir.1970) (per curiam) (Gudino ). Moreover, in light of the evidence corroborating Arguedas's testimony that he placed calls to Novoa during the time period in question and the hearsay testimony indicating that Zavala regarded Novoa as his "supplier," we cannot conclude, on the basis of the record before us, that Arguedas's testimony was inherently incredible. Consequently, we hold that the trial court did not err in determining that the government succeeded in proving Novoa's involvement in the conspiracy by a preponderance of the evidence.

B.

Novoa also contends that the government did not demonstrate, as it must, that the statements sought to be admitted were made "in the course of and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). We review the district court's determination that a statement was made in the course of and in furtherance of the conspiracy for clear error. United States v. Smith, 790 F.2d at 794. Under the clearly erroneous standard, we will not reject the district court's factual findings unless we are "left with the definite and firm conviction that a mistake has been made." United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (McConney ), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), quoting Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n. 14, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982).

Novoa argues that Zavala's out-of-court statements to Miller were not made "in furtherance of" the conspiracy because Miller was acting as a government informant at the time these statements were made. She argues that because Miller was not a member of the conspiracy, Zavala's statements "in no way advanced the conspiracy," but instead merely "facilitate[d] [Miller's] role as an informer." In essence, Novoa contends that a statement must in fact "further the conspiracy" to be admissible as a statement made "in furtherance of" a conspiracy.

It is well established that statements made by a co-conspirator need not be made to a member of the conspiracy to be admissible under rule 801(d)(2)(E). See, e.g., United States v....