United States v. Coppola, No. 75-1001.

• Decision Date: 08 December 1975
• Docket Number: No. 75-1001.
• Citation: 526 F.2d 764
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Richard COPPOLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

526 F.2d 764

UNITED STATES of America, Plaintiff-Appellee, v. Frank Richard COPPOLA, Defendant-Appellant.

No. 75-1001.

United States Court of Appeals, Tenth Circuit.

Argued November 10, 1975.

Decided December 8, 1975.

COPYRIGHT MATERIAL OMITTED

Peter M. Shannon, Atty., Dept. of Justice (E. Edward Johnson, U.S. Atty., and Jerome M. Feit, Atty., Dept. of Justice, on the brief), for plaintiff-appellee.

James Robert Wyrsch, Kansas City, Mo., for defendant-appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

On November 28, 1973, a judgment was entered on a jury verdict which found the defendant, Frank Richard Coppola, guilty of first degree murder and conspiracy to commit murder, the alleged victim being Willard Hardaway. The statutes alleged to have been violated are 18 U.S.C. Sec. 371 (applicable to Count I), and 18 U.S.C. Sec. 1111. The defendant was sentenced to life imprisonment on the murder conviction and to five years imprisonment on the conspiracy. The sentences were ordered to run concurrently.

The identical cause has been before this court previously. On that occasion also the defendant was found guilty and the same sentences were imposed. The opinion in the prior case is reported in 479 F.2d 1153 (10th Cir. 1973).

The defendant was charged together with one Joe Cordova, Fred Molina and Natividad Baca. Prior to the trial, the charges against Cordova were dismissed. Those against Molina and Baca were reduced to manslaughter. As a result of the reduction, the defendants entered pleas of guilty and received sentences of ten years.

The background facts are set forth sufficiently in our prior opinion so that we need only give a general outline, keeping in mind that the government's theory was that Coppola, who was an inmate of the penitentiary at Leavenworth, Kansas, contracted with inmates Baca, Molina and Cordova to have Hardaway, also an inmate, killed. This resulted from Hardaway's alleged failure to deliver to Coppola a quantity of heroin which Coppola had arranged to have delivered inside the penitentiary.

As in the first trial, the basic factor was defendant's allegedly being the major supplier of heroin within the U.S. Penitentiary at Leavenworth. In our former opinion we held this fact relevant to prove the motive. The important aspect of this was that the homicide resulted from a dispute between appellant and Hardaway as to the amount of heroin delivered to Coppola by Hardaway. Hardaway had agreed on behalf of Coppola to have his (Hardaway's) wife secrete a package of heroin into the prison. Although the entire package was to have been delivered to Coppola, she was instructed by Hardaway to divide the heroin into two packages. One of these was delivered to Coppola, who at once recognized that one-half of the original quantity was missing. He held Hardaway responsible for this and at once proceeded to arrange a contract to have Hardaway killed. Coppola said he did this to maintain his control of the heroin traffic within the penitentiary.

On September 11, 1968, Hardaway was killed in his cell. The killer, Molina, struck him with a heavy piece of pipe which was later discovered in a nearby trash barrel. Inmate Baca was supposed to have acted as a lookout.

The witness, Marie Russell, the former wife of Hardaway, testified at the present trial that Hardaway had arranged for her to transport some heroin into the penitentiary on the day that he was to have graduated from a college course that was offered within the institution. According to her testimony, she had received the heroin at her home in Illinois. The arrangement was for the Hardaways to receive $500.00 from Coppola when she delivered it. She followed Hardaway's instructions and put it in two separate packages. Hardaway disposed of the packet which had been held back and not delivered to Coppola. When Deering, another inmate, delivered the package to Coppola, the latter said that all of his heroin was not there and that he would "take care of it." The witness, inmate Gawne, repeated this. A week later defendant told Deering that he had paid two Chicanos $500.00 to kill Hardaway. (He was apparently then referring to Cordova and Molina). Later, following transfer of Coppola and the other participants to the institution at Marion, Illinois, Coppola told Deering that Molina had killed Hardaway. The inmate witness, Gawne, corroborated this.

An inmate witness, Killian Joe Herman, gave testimony which is particularly controversial on this appeal. Herman was shown to have been an orderly in the segregation division of the prison where Coppola, Molina, Cordova and Baca, the principals in the alleged murder of Hardaway, were confined. Herman had access to all of these individuals, and the controversial testimony consists of statements which he recounted to Coppola which originated with Molina and which in turn brought about comments from Coppola. Coppola was also shown to have made numerous admissions to Herman, and Herman described these on the witness stand. Coppola's attorney does not seriously dispute the court's action in receiving these admissions. He does contend that the testimony in which Herman described the statements that Molina in turn had given constituted hearsay and were not admissible under any exception. The main contention is that Coppola did not expressly or impliedly adopt or embrace these statements of Molina.

At the trial, defendant denied any involvement in the killing and offered the testimony of Cordova and Molina, both of whom testified that Coppola had nothing to do with the killing; he had not tried to kill Hardaway. Molina also testified that Hardaway had threatened him because he (Molina) owed him money and that he had assaulted Hardaway only because he was afraid of him.

Many contentions are offered. We do not consider each one, but we do take up those which have some appearance of merit.

First, that it was error to allow the witness, Killian Joe Herman, to testify to purported conversations that he had had with Molina. It is argued that these were not part of any conspiracy which may have existed and that the statements were not shown to have been voluntarily given; it was not shown that defendant had adopted those statements. A further claim is that it was error for the court to receive the testimony of the former Mrs. Hardaway as to her conversations with her husband.

Second, that the court erred in permitting the government to introduce evidence of other crimes. For the most part, this was evidence pertaining to Coppola's transactions in narcotics within the institution.

Third, that the court erred in failing to adequately instruct the jury not to allow anyone to communicate with them and not to read published accounts in the course of the trial.

Fourth, that it was error to not have the defendant present during certain pretrial hearings. This is meritless on its face.

Fifth, that it was error for the trial court to refuse instructions on the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter.

Sixth, that it was error for the trial court not to grant a mistrial when records of the United States Penitentiary were not produced until late in the trial, and it is further contended that it was error for the government to fail to produce the witness Lee Gordon.

Other errors include the presence before the grand jury of a special assistant to the Attorney General; the failure of the court to compel the government to elect between conspiracy and first degree murder; the court's rulings with respect to cross-examination of the various witnesses. These are also frivolous.

We are of the opinion that the judgment of the district court entered on the jury verdicts is to be affirmed.

I. THE HEARSAY PROBLEM

A. The Herman Testimony.

The primary challenge advanced by appellant as a basis for reversal is the alleged error of the trial court in receiving certain of the testimony of one Killian Joe Herman, an inmate who testified at great length for the government. He described conversations had with appellant, some of which were received as admissions, and others, the embattled ones, with respect to statements made by inmate Fred Molina to Herman when Herman, who was an orderly in the segregation area, made deliveries of heroin on behalf of Coppola to Molina. These deliveries were part of Molina's compensation for wielding the pipe that killed Hardaway. The problem assumes importance because at the first trial we held that at least some parts of Herman's testimony were hearsay and inadmissible. Herman at that trial testified that he had had a conversation with inmate Cordova, who was allegedly a prime mover in the conspiracy to murder Hardaway. The testimony which was the object of a pinpoint attack at the first appeal is described in our opinion as follows. As we have mentioned, Herman was speaking.

* * * He said Cordova "told me that Frank had hired him to get at somebody to kill Mr. Hardaway and he first approached him, wanted him to do it . . . and then Cordova said that he went ahead and made arrangements with Molina to have him do it."

479 F.2d at 1161.

* * * Herman was also allowed to testify over objection as to a statement made to him by Molina. Herman testified as to this: "He Molina said he wasn't getting enough stuff. That he wanted all his stuff and he was getting messed around."

479 F.2d at 1161.

It was argued on the previous appeal that these statements were admissible as statements of co-conspirators. Inasmuch as the statements were made months after the murder of Hardaway, we simply held that these were hearsay and not admissible under the co-conspirators exception; that the ruling admitting them was at odds with the Supreme Court's decisions in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct....