United States v. Randall, 71-3079.

• Decision Date: 18 March 1974
• Docket Number: No. 71-3079.,71-3079.
• Citation: 491 F.2d 1317
• Parties: UNITED STATES of America, Appellee, v. Johnetta RANDALL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

491 F.2d 1317 (1974)

UNITED STATES of America, Appellee, v. Johnetta RANDALL, Appellant.

No. 71-3079.

United States Court of Appeals, Ninth Circuit.

January 28, 1974.

Rehearing Denied March 18, 1974.

Martha Goldin (argued) of Saltzman & Goldin, Hollywood, Cal., for appellant.

Jonathan David Rapore, Asst. U. S. Atty., (argued) Los Angeles, Cal., for appellee.

Before ELY and GOODWIN, Circuit Judges and ENRIGHT,^* District Judge.

ENRIGHT, District Judge:

Johnetta Randall was found guilty, following a jury trial, on one count of a two count indictment charging violations of Title 26, U.S.C. Section 4705(a), transferring cocaine without obtaining from the transferee an order form issued for that purpose by the Secretary of the Treasury.

The trial court imposed a two year sentence but suspended its execution and placed defendant on probation for a period of three years.

The jurisdiction of this court to review the conviction is vested by 28 U.S.C. Sections 1291 and 1294, and Rules 3 and 4(b) of the Federal Rules of Appellate Procedure.

On this appeal the appellant's essential contention is that hearsay statements made by one Diana Edmond, a fugitive at the time of trial,¹ were admitted against the defendant, and thereby deprived her of a fair trial.

On December 22, 1970, at approximately 7:00 p. m., an undercover agent accompanied by an informant proceeded to an apartment in Los Angeles to purchase cocaine. The only people at the apartment were Diana Edmond and Charles Randall, the defendant's ex-spouse, also a fugitive at time of trial. Upon her arrival, the agent was informed that the cocaine had not yet arrived. The agent left to confer with other surveillance officers and returned in twenty minutes' time. Upon her return, the agent observed Charles Randall next to the defendant with cocaine in his hand. The agent was introduced to the defendant and a short dialogue occurred between Charles Randall and the agent concerning the cocaine. Those two then went to the kitchen to complete the sale and to discuss future purchases. By the time they had returned to the dining room, the defendant had departed. The transfer of the cocaine then took place without the agent providing the required form. Testifying in her own behalf, the defendant stated that she had brought her daughter so that the youngster could see her father as well as to obtain some Christmas money. On the basis of this evidence, the jury acquitted Johnetta Randall of Count One.

On December 31, 1970, the agent again went to the same apartment to make another purchase of cocaine. The agent testified that Edmond announced that the transaction would be between the two of them. Edmond then made a telephone call, and shortly thereafter, a telephone call was received. Soon a car honk was heard; Edmond took the money given to her by the agent and went downstairs. The agent from the apartment window observed Edmond meet the defendant and converse; then the defendant handed Edmond a blue Christmas box. Randall drove off, and Edmond returned to the apartment. Edmond opened the box and gave the cocaine contained within it to the agent.

Eliminated from this court's recitation of the facts are two hearsay statements made by Edmond incriminating the defendant. First, in response to a question by the agent, Edmond answered that Randall was coming over, thereby implying that she, Randall, was the courier of the narcotics. Second, after reception of the second telephone call, Edmond stated to the agent that Randall had instructed her to bring the money down when she (Randall) would arrive, and she would then give Edmond the cocaine.

When the prosecutor first asked the agent to recite what had occurred between Edmond and herself, defense counsel lodged a vigorous hearsay objection. A conference at the bench ensued. During the conference, government counsel was willing first to establish defendant's participation in an effort to lay a foundation for the admission of the hearsay; however, for the convenience of the jury, he desired to introduce the events chronologically. The trial judge permitted him to proceed chronologically, cautioning him, though, that should the statements and foundation not be properly connected, he would entertain a motion for acquittal.

We are not unmindful of the difficult circumstances which place the defendant in a position where she finds herself defending against words she did not hear, at times unknown to her, spoken by a person unavailable for cross-examination whose relationship to her is at best maintained by legal fictions. On the instant facts, we must nevertheless conclude that there was sufficient evidence independent of the statements to permit the admissibility of the statements themselves.

In United States v. Griffin, 434 F.2d 978, 983-984 (9th Cir. 1970), cert. denied sub nom., Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), this circuit relied upon United States v. Ragland, 375 F.2d 471, 476 (2d Cir. 1967). In Ragland, Judge Waterman wrote:

Once some conspiracy, agency, or concert of action is independently shown, hearsay statements made in furtherance of such relationship are admissible. However, the independent evidence need not, as appellant suggests, be so clear and convincing as to compel emphasis original, absent contradiction, a finding of the fact sought to be proved.

The threshold requirement for admissibility is satisfied by a showing of a likelihood emphasis supplied of an illicit association between the declarant and the defendant although it might later eventuate that the independent evidence so admitted proves to be insufficient to justify submitting to the jury the issue of defendant\'s alleged guilty involvement with declarant. If the issue is submitted to the jury it then becomes the function of the jury, not the trial judge, to determine whether the evidence was credible and was convincing beyond a reasonable doubt. In determining preliminary questions of fact relating to admissibility of the hearsay the trial judge has wide discretion, and need only be satisfied, if he accepts the independent evidence as credible, that that evidence is sufficient to support a finding of a joint undertaking.

Moreover, the independent evidence of illicit association may be totally circumstantial . . . . Nor is it necessary in this circuit that such independent evidence be inconsistent with all reasonable hypotheses of innocence, as appellant suggests, either to legitimate its admissibility, or to support a conviction. It is true that an association with an alleged conspirator, without more, is insufficient to establish the necessary foundation for the admissibility of the incriminating statements. The accused must "in some sort associate himself with the venture, * * * participate in it as in something that he wishes to bring about * * * or seek by his action to succeed." Such association may be shown for example by the defendant\'s driving the car transporting the illicit subject matter under circumstances indicating a possession thereof. Mere presence at the scene of an offense when the accused is likely to be aware that an offense is to occur may be sufficient to base an inference of complicity when such presence either facilitates, or permits, the unlawful act. An otherwise innocent act of "relatively slight moment," may, when viewed in the context of surrounding circumstances, justify an inference of complicity, and the fact that the defendant maintained a silence throughout, while often relevant to his awareness and role in the transaction, does not conclusively negate his participation in it.

375 F.2d at 476-478 Citations omitted.

Here appellant asserts that the finding of not guilty rendered by the jury as to the first count must negate any reliance placed by the trial judge on that transaction in allowing into evidence the inculpatory hearsay relating to the second transaction. We disagree. Not only does this assertion not comport with the final portion of the above passage, but as a practical matter it would be extremely difficult, if not impossible, for trial courts effectively to instruct juries, by attempting to delineate the precise evidence that would be admissible as to specific counts, and not as to others, in a multi-count indictment as in the instant case. We too are aware of the different standards to be used by the jury and court in discharging their respective responsibilities. If the evidence as to the defendant's participation in the first transaction had been clear and convincing, and yet short of proof beyond a reasonable doubt, then the duty of the jury would have been to acquit, while it would have been in the court's discretion to consider those very same facts in weighing the admissibility of the hearsay related to the later occurrence.

When this previous activity, at the same apartment involving not only similar contraband but also an incriminating conversation in the defendant's presence pertaining to the cocaine, is coupled with the later sequence of events, i. e. the placing of the original telephone call, the almost immediate reception of a second call, the arrival soon thereafter of the defendant, the meeting between the declarant and defendant, and finally, the delivery of the contraband by the declarant to the agent, a sufficient basis to admit the hearsay is established.

We find the appellant's other contentions to be without merit.

The conviction is affirmed.

ELY, Circuit Judge (Dissenting):

I respectfully dissent. The appellant, charged with two counts of knowing and unlawful transfer of cocaine, was acquitted on the first count and convicted on the second count. The only evidence sufficient to sustain her conviction on the second count consisted of hearsay statements made by her alleged accomplice, Diana Jean Edmond, to a government agent. Those statements were offered at trial, not by Edmond, but by a government agent to whom the...