*4 STANLEY, District Judges, cuit Judge.* HOLLOWAY, Judge. Circuit Watson, Maxwell, Defendants-appellants timely these direct and Brown have taken under 21 appeals from convictions U.S.C. offenses conspiracy to commit § (distribut 841(a)(1),1 defined in 21 U.S.C. § distribute, intent to ing possessing or with etc., substance) and in 21 a controlled U.S.C. 843(b), (use facility a communication to § commission offenses facilitate substance; tribute, dispense, Stanley, or a controlled Jr. of the *The Honorable Arthur J. Kansas, designation sitting by District of by regulated the At- substances are Controlled authority 841(a)(1) provides: torney vested 1. 21 under the § U.S.C. General They him include 811-812. §§ U.S.C. subchap- (a) except as authorized this cocaine, heroin, and mari- as ter, substances such any person it shall unlawful know- 812(c). § huana. See U.S.C. ingly intentionally— or manufacture, distribute, (1) dispense, or to manufacture, possess intent dis- or with light government, favorable to the 841(a)(1))2 in 21 and from most defined U.S.C. § States, must, a substan as we Glasser United convictions of each 680; 60, 80, 62 S.Ct. 86 L.Ed. 843(b) tive under of such use of a U.S. offense § Krohn, major telephone. Appellants’ contentions intercepted (10th Cir.), tape recordings are that tele cert. denied sub nomine Hahn States, phone conversations thereof United transcripts 792; improperly permitted be used 56 United States v. Twilli were L.Ed.2d them, (10th Cir.), 81-82 we against gear, there was insufficient convictions, Yet, support disagree their and that with this contention. must was, event, conspir challenged have single there no since the admis charged. argu tape recordings acy proved other sion in evidence of certain Several made, are intercepts, ments also and we will discuss all telephone and since without having recordings might those some substance. the evidence not those rendered, support the adverse verdicts charged The indictment fifteen individu- we to a consideration turn first vari als, including appellants, with involving tapes. ous the use of issues those knowingly intentionally possess to distribute intent and to heroin distribute cocaine, and to use a to facili- I tate commission of such offenses. addi- Appellants Brown and Watson strenuous tion, appellants were each with one charged ly argue sup that there was error in not of knowingly intentionally using count *5 pressing recordings of certain tape inter e., facility, telephone, a communications i. a communications, cepted telephone in not accomplishment to facilitate the of and to suppressing transcripts intercept of certain possession intent accomplish with communications, phone permit ed and in distribute and the distribution of heroin and ting transcripts tape of the of recordings The conspiracy cocaine. a Califor- involved telephone by conversations to be used supplier, Anderson, nia a “Pete” Tulsa jurors.2a wholesaler, by Thompson, John assisted one Brooks,
Karen
and several
retailers or
in
tape recordings
The admission of
dealers,
Watson,
including appellants
street
subject to the rules
evidence is
of evidence
Maxwell, and Brown.
generally.
proper
means that a
This
foun
Appellants
admission,
claim there was insufficient
dation
laid for their
must be
in this
support
they
privi
evidence
case to
their convic-
be
must
relevant and not
evidence,
addition,
Viewing
together
leged.
tions.
all the
Federal Rules
therefrom,
with
original
all reasonable inferences
in
that the
provide
tape
Evidence
re-
count,
urged
appellant
propositions
Watson
2a. These
are
On
contentions
II, III,
custody
Attorney
committed
Appellants,
was
to the
V
IV and
of the Brief for the
years
for five
respectively
denying appel
General
to be
a
followed
claims of error in
parole
special
years;
term of five
he also
suppress
tape
re-
lant Brown’s motion to
record
four-year
a
ceived
concurrent
sentence on the
ings
intercepted
of certain
wire communica
Appellant
substantive
count.
Maxwell
re-
intelligibility,
denying
tions for lack
with
ten-year
a
ceived
sentence to
with
be followed
hearing
suppress
out a
Watson’s motion to
special five-year parole
conspir-
term on the
tape recordings
intercepted
of certain
wire
concurrent,
acy
four-year
count and a
sentence
intelligibility,
for lack of
communications
on the substantive
found that
count. The court
determining
introduced
appellant Brown would not
from the
benefit
tape
evidence sufficient
to authenticate
record
provisions of the Federal
Corrections
Youth
involving
ings of certain wire communications
Act,
5005-5026,
applied
18 U.S.C.
§§
Brown,
appellant
denying appellant
and in
offenders,
4216,
young adult
§
see 18 U.S.C.
suppress transcripts
Brown’s motion to
of cer
years
her
be
sentenced
to four
followed
recordings
intercepted
tape
tain
certain
wire
five-year special parole
term on the con-
communications.
concurrent,
spiracy count.
She
received
three-year
sentence on the
count.
substantive
1783,
used,
U.S.
92 S.Ct.
leged speaker,
(emphasis
*6
admissibility is within the sound discretion
judge.
of the trial
v. Brink
United States
plainly says,
As the Rule
familiari
low,
1008, 1011(10th Cir.); United
560 F.2d
ty
may
acquired
with another’s voice
Jones,
465,
(10th
470
States v.
540 F.2d
particular speak
either before or after the
denied,
1101,
Cir.),
97
cert.
429 U.S.
S.Ct.
ing
subject
which is the
of the identifica
551;
1125, 51 L.Ed.2d
United States v.
Kirk,
1262,
tion. United
534 F.2d
States
229,
(10th Cir.).
Hodges,
F.2d
233-34
480
denied,
907,
(8th Cir.),
1277
cert.
433 U.S.
97
unintelligible portions are so
the
Unless
2971,
Thus,
S.Ct.
this issue. From our 101, (8th Cir.), McMillan, 105 tapes of the we conclude that there was no 508 F.2d cert. 1577, denied, 916, discretion no 43 abuse of the trial court’s 421 95 S.Ct. U.S. unintelligibility productive of substantial L.Ed.2d 782.
untrustworthiness. have considered all the conten
We Third, appellants argue that playing tapes the of the regarding tions prejudicial provide jury error to the transcripts the and are satisfied the use of transcripts tapes during with of the hearing there was no reversible error. Our playing tapes. generally of the See tapes persuades they of the us that are 130, Gerry, (2d 143-44 F.2d substantially intelligible accurate and Cir.), denied, 832, 54, cert. 96 S.Ct. transcripts substantially that the are accu (use transcripts upheld L.Ed.2d 50 Therefore, respect rate to the as well. judge difficulty because trial had under rights of these three there was standing them). Proof was offered of accu prejudicial no abuse of discre no error and racy transcripts pre-trial of the at a heari procedure tion by the trial court in the ng,6 permitted and the court their use dur and the regarding tapes followed trans ing playing tapes permit clear cripts.8
identification of the voices.7 The trial
however,
judge,
did not admit the tran
II
scripts
gave
in evidence. Instead he
a lim
instruction,
respect
With
to their convictions under 21
iting
repeated
which he
several
846,
trial,
during
appellants argue
times
all three
instructing
U.S.C. §
support
the evidence was insufficient
transcripts only
to use the
assist them in
listening
tapes
specifically, appel-
to the
their convictions. More
and not to consider
lants
transcripts as
In the
contend that
the evidence fell far
evidence.
sound
proof beyond
discretion of the
short of
judge,
trial
which was
reasonable doubt
here,
deliberate,
properly exercised
such limited use of
that each of them had the
know-
transcripts
permissible.
ing
specific
join
is
intent
conspir-
See United
John,
that,
States v.
(8th acy charged;
508 F.2d
in the
while viewed
Cir.),
denied,
cert.
light
U.S.
most favorable to
judicial
accuracy
coconspirator.
6. A
determination
statements
of a
Such state-
transcripts
use,
qua
hearsay
is not a sine
their
non of
ments are not
and are admissible if
Onori,
substantial,
see
independent, nonhearsay
United States v.
535 F.2d
there is
(5th Cir.),
practice
but is a
demonstrating
recommended
in the
of a con-
the existence
stipulation by
absence of a
counsel on the
spiracy involving
speaker
and the defend-
point,
Rochan,
cf. United
Andrews,
States v.
563 F.2d
ant. See United States v.
(5th Cir.) (accuracy
question
1259-52
Bell,
(10th Cir.);
965-66
United States v.
authentication).
Cir.).
1043-44
*7
out,
points
As the Bell case
such a determina-
McMillan,
191,
7. See United States v.
598 F.2d
admissibility
alleged
tion on the
of an
cocon-
(8th Cir.),
denied,
916,
105
cert.
95
spirator’s
preliminary ques-
statement
is now a
1577,
transcripts
S.Ct.
1337 awaiting a was telephone evidence showed several conver- had waived trial Thompson, alone proof sations with that cooperated government giv- with the in was insufficient to connect with ing testimony. her On cross-examination conspiracy charged. (Brief Ap- for the she stated that it was her understanding VI, 31, pellants, Proposition pp. 37-38). charges might against that the be dismissed might probation her or that receive she if rule sufficiency basic evi- she testified. said this was what her She challenged dence to sustain a conviction attorney hoped happen. would If she had appeal by Judge is stated Hill in United impression, not had she admitted she Twilligear, v. 81-82 States (10th Cir.): probably against would not have testified (Ill 310-315). defendants.
This court is bound to view evidence presented light in the trial court in the Brooks testified that she had known John most favorable to the to as- Thompson (“J.T.”), Hubert the Tulsa whole- certain if there is sufficient substantial drug operation, saler in this for nine circumstantial, proof, together direct and months. She distributed heroin and cocaine reasonable inferences to be drawn for him a and had installed at his therefrom, jury might from which a find residence her in name. When business was guilty beyond a defendant a reasonable good, Brooks normally “pretty would sell doubt. $2,000 close” to worth of heroin and cocaine course, in guilt day quantities priced (Id. is a at
Of
individual and
at
$50.
personal,
regards conspiracies,
289).
even as
dealer,
worked as a
She
street
turn-
is
application.
not matter of mass
United ing
proceeds
over the bulk of her
Thomp-
Butler,
494
States
F.2d
son,
away
but when he was
she would han-
Cir.).
agree
proof
And we
of the exist
larger
dle
transactions for him. She testi-
buyer-seller relationship,
ence of a
without
Anderson,
fied that she knew “Pete”
more,
inadequate
buyer
is
to tie
to a
supplier,
Thompson
California
and that
got
larger conspiracy
charged
such as is
here.
(Id.
303).
his
through Anderson.
“dope”
Torres,
See
States
F.2d
She referred to various street dealers
her
(2d Cir.);
Sperling,
United States v.
testimony,
including
appel-
all three of the
Cir.),
denied,
(2d
cert.
lants.
U.S.
A witness was Kar- Brooks, coconspirator. present bought en an indicted from She when Brown heroin leaned on the driver’s window of the van.9 knew the Thompson; and that Brown Cali to the other car and drove Watson returned supplier fornia Anderson. Brooks further Mark Allen occupant, off with another each other. said all three defendants knew stopped them a few blocks Hart. Officers (III 285-299). R. possessed Hart heroin. away and found that testimony of Karen In addition to the Maxwell, testimony of Karen As to Brooks, government there was playing with the supplemented Brooks was concerning telephone involving calls all tapes telephone conversations with of of already appellants. three For reasons stat- calls between Maxwell Thompson. Nine ed, that there was no error in we have held during Thompson, and all of which occurred permitting playing tapes of these period February a from four-day transcripts relating and the use of calls 14, 1977, through February were intro them. This evidence included the follow- m., example, p. duced. For at 12:46 on ing: February inquired 12 Maxwell an about As to Watson there was evidence of 13 “15,” $1,500. drugs “oz” for an ounce of for occurring February calls between 275). (Ill p. day R. At 6:05 m. that Max 13, February Eight 10 and 1977. of these quarter well ordered “a or two of ‘that were identified as calls Watson between 272).10 girl’,” (Id. at identified as cocaine. and Thompson February which occurred on 12, m., Maxwell p. February Also at 9:38 on m., 12. In the first call at 1:23 a. Watson people “some Thompson told that he had “dog,” ordered “300” identified [dollars] visiting” “they wanted one of 181-82; 273; (I as heroin. R. III R. IV R. things girl.” Thompson quarter those 81, 512). Three hundred dollars would 478— Maxwell that he could come over and told purchased have a ounce from quarter get quarter. night a a call Thompson. Thompson invited Watson to 14, February Thompson after asked if he delivery. come to his house for At about quarter knew someone who wanted “a m., 1:45 a. surveillance officers saw an or- heroin), dog” (quarter ounce of Maxwell house, ange Vega Thompson’s arrive at (I 236). night said “Yeh.” R. Later that passenger got where a out and entered the arrangements during were made a call that house. In a second call at 11:32 a. m. that Thompson Maxwell would meet at the Blue day, Watson ordered another worth of $100 Thompson Goose. was followed thereafter heroin, Bestyet to be delivered at a market. Club, from his house to the Blue Goose Later surveillance officers saw Watson exit where he met with a black male in a vehi Vega the same Thompson and meet with (Ill 414-16). cle. R. Bestyet Tulsa, market and a hand-to- Brown, As to also intro- exchange hand between Watson calls, duced of numerous most of Thompson (IV 488-92). occurred. 14, occurring February them 12, p. February At 10:02 m. on m., 1977. For example at 11:04 a. on Feb- arranged purchase pick-up Watson ruary another al- Thompson referred cocaine, telling Thompson heroin and where leged Ray Jennings Alfred coeonspirator, he was. Surveillance officers observed (Fred), girl.” to “Chi Chi” for “some Sever- p. leave his house at 10:16 m. by appellant al calls an offer concerned He met Watson at a laundromat where and mink coat Brown to trade black suede van, Thompson’s drugs. p. February Watson walked to 4:47 m. on At 9. Such described as a “narcotics code.” United States circumstantial evidence indicate a delivery drugs. Manfredi, (2d Cir.), See United States v. Baldar cert. rama, (5th Cir.). denied, 41 L.Ed.2d repeated cryptic expressions by 10. The use of members of a narcotics has been
1339
was insufficient
to establish that
Thompson referred a cus-
during one call
conspiracy
members of the
as
them became
herself as “Carol” to
tomer who identified
They
say
also
charged in the indictment.
day
p.
At
m. that same
Brown
Brown.
5:12
proof
adequate
was
to link
even if the
by
could come
his
Thompson
asked
if she
conspiratorial
any of them to
con-
dresses,”
each or
pick up “number 1
residence and
duct,
they
deny,
all
there was never-
which
(Ill
quantities of cocaine.
R.
identified as
single con-
variance between the
theless a
272-75;
445-46). Again
IV R.
at 1:13 a.
the several discrete
spiracy charged and
m.,
February
permission
14 Brown asked
on
proven
have been
conspiracies which
Thompson’s
pick up
house to
by
to come
They contend that
the
by the evidence.
(Ill
273).
dresses.”
R.
At
“some of those
woefully inadequate to link
evidence was
m.,
February 14 Brown asked
2:44 a.
on
scheme involv-
appellants
the
to the overall
by “again”
if
could come
for
she
Brooks,
Thompson,
Ander-
ing defendants
morning.” (I
“one of those 50’s till
the
(Brief
Ap-
Jones.
the
son and Carlett
230;
447-51).
R.
IV
Furthermore,
58-59).
the exist-
pellants,
requires reversal be-
vigorous arguments
There are
ence of this variance
by
created
the
prejudice
testimony
the
of Karen Brooks
cause of the severe
made that
on defendants’
unreliable;
spill-over effect attendant
the
was unbelievable and
charge. Er-
single conspiracy
trial under a
only purchases
drugs
evidence showed
give
of refusal to
ror is also claimed because
themselves,
appellants
for the use of
requested instruction on
appellant Brown’s
testified; and,
course, that
the
Watson
conspiracies.
separate
the existence
recordings
unintelligible and inadmis
were
already rejected the latter
sible. We have
alia,
Kot
Appellants rely, inter
tapes
transcripts.
contentions about the
States,
66
teakos v. United
contentions,
regard
With
to the former
1557;
L.Ed.2d
United States
S.Ct.
evaluating
credibility
of witnesses is a
Bertolotti,
(2d Cir.);
We have discussed here that to note earlier. It suffices Ill drugs supplied that Anderson demonstrated earlier, As Tulsa discussed all strenu- Thompson, from California to ously argue government’s to various wholesaler, them who distributed *10 1340 819-23, 832). In these circumstances we dealers, including appel- these three
street error to refuse the From evidence of the volume and feel that it was not lants. operations, concerning multiple nature of their an inference requested instruction by appellants Russo, awareness may be drawn of conspiracies. United States v. See conspiracy. scope denied, of the of the narcotics 1051, (10th Cir.), 1059 cert. 527 F.2d 831; 2226, 906, 96 48 L.Ed.2d S.Ct. of nar large quantities Where Chong, Lam Lek 544 F.2d United v. States distributed, major each being cotics are 58, Cir.), (2d cert. denied sub nom. 67-68 buyer may presumed to know that he is 1101, States, 429 97 Liganoza v. United U.S. venture, the success part wide-ranging 550; 1124, 51 L.Ed.2d S.Ct. depends performance by which on others Hobson, 765, Cir.), 775 cert. 519 F.2d identity he not even know. whose 283, denied, 931, 96 46 423 S.Ct. U.S. Heath, 1011, 1022 United States v. Salerno, 261; 485 L.Ed.2d United States (10th Cir.). the evi We are satisfied that denied, 260, (3d Cir.), cert. 415 F.2d 263 U.S. design here shows a to ac dence common 1596, 891. Thus we 39 L.Ed.2d S.Ct. cocaine, id. quire and distribute heroin and convinced there was no error in re are permissible that it to link requested instruction. fusing the appellants the and Ander son. Whether the evidence was sufficient IV single conspiracy charge11
to establish the 1022; question jury. was a for the Id. at appellants argue that the The indictment Ricco, (2d allegations in its was insufficient con- denied, Cir.), cert. U.S. spiracy. we will First consider the conten- 389. The trial 52 L.Ed.2d court thor denying tion that the trial court erred in oughly properly instructed the appellant Brown’s motion to dismiss the government’s proving the burden of the indictment for failure to state facts essen- conspiracy charged beyond a reasonable conspiracy tial constitute a under 21 We are satisfied that the record as doubt. specifically, appellant 846. More U.S.C. § supports jury’s guilt verdicts whole the says Brown that she is not identified within conspiracy charged. of the portion describing of the indictment objects clearly the conspiracy, noted, appellant As Brown makes figures conspiracy Thomp- main were argument the trial court related son, Brooks, Anderson and and that prejudicial giving committed error in not only allegations involving appear her in the requested multiple her instruction on con listing (paragraphs of overt acts 12 and spiracies. agree. We do not We feel that 49), which contains no statement that she adequately the instructions as a whole cov purchased, sold or distributed or narcotics question since the trial court ered clear Anderson, Thompson, she assisted ly charged had the performance Brooks or Carlett Jones proving beyond burden of a reasonable conspiracy necessary of functions to the continuation alleged, doubt as and that (Brief separate the evidence should be considered or success of the scheme. for the ly (V as to each defendant. Appellants, 21). individual 17— conspiracy charged conspiracy including procure- count one of the od used ment Anderson, by Thompson indictment was an unlawful knowingly of heroin and cocaine from intentionally possess repackaging with intent and dilution and quantities by Thompson distribute and to to caine, distribute heroin and co- smaller for resale to knowingly intentionally allegations and to acts included use others. The of overt telephones committing, causing and facilitat- in the indictment described the involvement of Thomp- ing possession the commission of source was with intent to sellers whose distribute, and the distribution of controlled son. substances. The indictment outlined the meth- pri- 1 of RAY alleges
Count the indictment a con- JENNINGS THOMPSON’S spiracy January delivery from on about or or until on cocaine to defendant MAE 22, 1977, February or about within LILLIAN also known as BROWN “CHI Oklahoma, Northern District of and else- CHI.” *11 where, charging that the 15 named defend- 14, 1977, February 49. On or about at ants, including specified all “MAE LIL- m., m., about 01:13 a. and at about 2:44 a. BROWN, Chi’,” LIAN a/k/a ‘Chi did know- BROWN, defendant MAE LILLIAN also ingly, willfully unlawfully combine and CHI,” telephone known as “CHI had a conspire knowingly to and intentionally pos- conversation with defendant JOHN HU- sess with intent to distribute and to distrib- THOMPSON, Tulsa, Oklahoma, BERT in cocaine, ute heroin and controlled sub- which, substance, in concerned the ar- stances, knowingly and to and intentionally rangements for defendant MAE LILLI- telephone use a committing, causing in com- AN BROWN to come defendant mission of and facilitating the commission delivery THOMPSON’S house and take of of possession with intent to distribute and quantity of cocaine. distribution drugs. of narcotic We are satisfied that the con Further the alleges indictment spiracy allegations of the indictment were objects of the'conspiracy were to accom- be appellant charge sufficient as to Brown. A plished, alia, by Thompson inter making conspiracy of is sufficient if follows the arrangements to procure heroin and cocaine an statutory language and contains ade Anderson, from diluting and then quate to statement of an overt act effectu drugs, repackaging them in quanti- smaller object conspiracy, ate the of and the ties, and selling them “to various other co- requisite not be criminal in overt act need conspirators,” who would dilute and/or re- Sterkel, itself. 430 F.2d package drugs still further and sell 1262, 1263 Cir.). allegations The (10th must them to other customers. allegations The adequate inform the defendant of of the overt acts included references to serve, charge together nature of the and to defendant Brown as follows: conviction, judgment with the record and 11, 1977, 11. On or February about at protection against possible as sufficient m., about 11:01 a. defendant MAE LIL- jeopardy. double Id. at 1263-64. The in BROWN, LIAN also known as “CHI in instant dictment case satisfied these CHI,” had telephone conversation with requirements, charging the named defend unindicted co-conspirator Charles Etta conspiring particular .un ants with for the Saulters, Tulsa, Oklahoma, in which, in purposes alleged. in the lawful Moreover substance, trading concerned the of a acts, allegations later overt coat for narcotics. clearly alleged Brown was to have discussed 11, 1977, On or about February narcotics, have received trading m.,
about 11:04 a. cocaine, defendant ALFRED delivery and to have discussed RAY telephone JENNINGS had a taking con- by telephone arrangements for deliv versation with defendant allegations JOHN in the ery HU- of cocaine. Such THOMPSON, Tulsa, BERT Oklahoma, in judging may be overt acts considered which, substance, concerned the ar- indictment. sufficiency of the rangements for delivery by Strauss, THOMPSON See United States of a quantity of cocaine Cir.).12 ALFRED 159 case, prohibiting 12. We have considered the Strauss the conceal- § which tion of 18 U.S.C. by appellant Brown, clearly corporation. is relied on The but it is additional ment of assets of distinguishable. allegations in the indict- fraud statute combina- citation of the mail tion, etc., conspiracy, only there to matters were all actual reference directed ment was the creditors, fraud, part toward a scheme to relating defraud a viola- and thus to mail tributing They say conspiracy charge, With to the we controlled substances. respect IX, (counts X indictment met the fundamen- counts feel the substantive above, relating requirements respectively tal discussed and the and XV defendants Maxwell, Brown) charged use requirement constitutional to inform the Watson and committing, causing the defendant of the nature and cause of the of, against complied facilitating knowing accusation her. It also commission requirement plain, of a pleading possession intentional with intent to distrib- of controlled sub- ute and distribution concise and definite written statement stances, constituting conspir- the essential facts and that there was no See United States v. delivery of the substances after acy charged. offense the calls. DePugh, (10th Cir.); charged, Rule Since the actual offense which in- *12 Thus, 7(c), distribution, F.R.Crim.P. Brown’s proven, appel- cluded was not challenge sufficiency conspir- to proof the lants contend there was insufficient acy charge must fail. 843(b), of as by violation of was held § Leslie,
United
States
F.Supp.
215
Rodriguez,
(D.C.Del.);
cf. United States v.
V
(9th Cir.).
307-09
appellants
strenuously argue
The
all
that
proof
the
was insufficient
to sustain their
There are variations
in the facts
convictions of the substantive
offense of
respect
appel
to each of these three
843(b),13
lants,
violation of 21
using
stronger against
U.S.C.
the
the
was
§
and
telephone to facilitate
the commission of
and Maxwell
than
defendants Watson
possessing with intent
to distribute
against
and dis- was
defendant Brown.14 Neverthe-
516-31).
(IV
indictment was held insufficient. That case is
R.
The
tween Watson and J.T.
wholly
indictment,
shortly
unlike the instant
Watson
outlined
record shows that
was arrested in
thereafter
company
above.
Allen
of Mark
the
Hart,
possession
heroin.
found in
of
who was
843(b)
(IV
546-54). Appellant Watson contends
13. Section
reads as
R.
follows:
testimony
as to him be-
is deficient
that this
facility
Communication
any
possession of
in
cause he was not found
drugs.
(b)
any person
It shall be unlawful for
Furthermore,
telephone
claims the
he
knowingly
intentionally
any
or
to use
com-
cocaine,
only
and Hart was
to
call related
facility
committing
munication
or in
Yet,
possession
the
heroin.
found in
of
causing
facilitating
any
any
or
the commission of
the call related to both
have found that
could
drugs
constituting
felony
act or acts
a
under
Watson,
pickup
from
and that after the
provision
subchapter
subchapter
of this
or
II
Baldarrama,
generally
see
United
chapter.
separate
of this
Each
use of a com-
Cir.),
personally
used
he had
F.2d
facility
separate
munication
shall be a
of-
suffi-
is therefore
the
The evidence
cocaine.
purposes
fense under this subsection. For
only
used the
that Watson
to show not
subsection,
cient
telephone
this
the term “communication fa-
possession with
J.T.’s
cility”
to facilitate
public
private
means
and all
and
own
his
but also to facilitate
intent to distribute
instrumentalities used
mission of
or useful
the trans-
distribution.
writing, signs, signals, pictures,
or
mail,
sounds of all kinds and includes
tele-
alleges that Max-
indictment
IX of the
Count
wire,
phone,
radio, and all
“discussed,
substance,
other means of
the sale
well and J.T.
communication.
phone
in a
conversation
to Maxwell”
of cocaine
m.,
February
p.
occurring
on
about 9:38
26).
tape
(I
The
of the call was
R.
1977.
alleges
14. Count X of the indictment
that Wat-
trial,
tape
played
and the voices on the
were
substance, delivery
son and J.T. “discussed in
(Ill
398-400).
clearly
Maxwell
R.
identified.
arrangements for a sale of heroin and cocaine”
visiting
“They
people
that some
are
states
phone
occurring
in a
p.
conversation
at about 9:39
quarter things
girl.”
m„
wanted one
those
February
(I
27).
on
R.
The
cocaine).
(Quarter
J.T. tells
ounce of
Maxwell
tape of this call from Watson to J.T. was
get
quarter
(I.R.
played
come
the
that he
204).
ounce.
tape
at trial. The voices
were
light
testimony
identified,
of Karen Brook’s
(IV
510-12),
testimony
R.
was
periodically possessed large
concerning
subsequent meeting
taken
J.T.
amounts
be-
Although the
enough.
sion is
indictment
less,
persuaded
substantive
we are
conjunctively that
the calls
allege
should be
did also
convictions of all these
position
of the substances as
upheld
present-
basis of the
aided
distribution
court,
distribute,
to
government
possession
ed
trial
well as
with intent
out in
accepted
spelled
the discussion it was
for the
sufficient
he
judge
the trial
when
or
prove
possession
the issue
distribu-
either
defendants’ motions for ac-
overruled the
tion offenses were facilitated. See Turner
690-701).
quittal.
(V
398, 420,
States,
v. United
90 S.Ct.
642,
appellants. there was evidence Anderson a VI sent suitcase $14,000 containing February 12. The Lastly, appellants prejudicial claim error challenged was therefore evidence relevant them, objections by in the admission over possession large to establish of a Anderson’s relating evidence to a seizure of narcotics cash, drugs and para- amount of narcotics and other the home of coconspira- items at phernalia within a reasonable time after the Fresno, tor Anderson in California. activities, appellants’ as well as to corrobo- Appellants point to the conclusion of the government’s testimony rate the government’s case the introduction of functioning of the conspiracy. concerning evidence a search of Anderson’s agree We cannot the trial home in Fresno large and the seizure of a judge ruling erred in his potential that the quantity cocaine, of heroin forty-nine prejudice did not call for exclusion of lactose, pounds of one hundred bricks of that, the evidence. provides Rule 403 al mannite parapherna- and various narcotics relevant, though be excluded scales, including sifters, lia strainers and probative if its value is substantially out spoons. addition, $16,000 in cash was alia, weighed, inter danger of unfair discovered in a bedroom drawer and anoth- prejudice, issues, confusion of the or mis $10,013 er between the mattresses. leading the jury. This determination is Objections were irrelevancy made of un- within the sound discretion of the trial der Rule prejudice 402 and of unfair out- Krohn, judge, supra, value, weighing probative under Rule F.2d at find no and we abuse of that Appellants say F.R.E. there was no discretion in this case. connecting any of them to a conspiracy to remaining We have considered the argu- *14 import narcotics from California or with ments of and find them to be
Anderson, and
powerful
that the
effect of without merit and to call for no further
the
evidence on the
prejudicial.
was
discussion. We conclude that no reversible
The argument
any
is renewed that in
event
error is
accordingly
demonstrated and
no more than multiple conspiracies were
judgments are
shown,
proof
with
any
as to
conspiracy to
AFFIRMED.
import narcotics from
being
California
a
prejudicial variance
from the
McKAY,
Judge, dissenting:
Circuit
charged.
any
One does not have
sympathy
to have
We dealt with the single-multiple conspir-
for drug
express
deep
dealers to
a
concern
acy issue earlier and concluded that
about the erosion of fundamental doctrines
proof of a conspiracy embracing importa-
liberty
when that erosion occurs in cases
tion from California was
go
sufficient to
This case
dealing
drug
repre-
with
dealers.
jury.
agree
We
with the trial court’s
example
continuing
sents one more
ruling that
the evidence concerning the
concept
“[g]uilt
that
with
erosion
us
items seized at Anderson’s California home
personal,
remains
even
individual
was relevant
to show the existence and respects conspiracies. It is not a matter of
scope of the conspiracy. It was conceded
Kotteakos
application.’’
mass
v. United
government
that the raid
States,
750, 772,
occurred
U.S.
S.Ct.
argument
15. A
imply
similar
is
suggest
made that since distri-
not
or
that she intended to or did
bution was an essential element for conviction
distribute
cocaine. For
reasons stated
843(b),
disagree
Brown under §
the indict-
above we must
and hold that the sub-
making
charge.
ment was
charge against
defective in
that
stantive
Brown in
defendant
says
allege
She
that the indictment
pleaded.
did not
that
count XV was sufficient as
actually
delivery
she
took
of cocaine and did
(1946).
proof
absence of substantial
as to
civil or criminal standard of which
would show that
these defendants were
America,
UNITED STATES of
knowingly
by agreement
involved
with
Plaintiff-Appellee,
Thompson’s
James
California
Anderson —
supplier.
majority
in this case makes
leap by
enshrining
further
in the crimi
BARRON,
John Franklin
Daniel James
essentially
nal law what
is
“affecting
Frey,
Johnson,
and Duane Lee
Filburn,
commerce” rationale of Wickard v.
Defendants-Appellants.
63 S.Ct.
1.
not
without
I
2. When one examines the evidence
An-
page
majority
made this observation earlier
in United States
derson set forth on
1344 of the
Heath,
J.,
(McKay,
why
opinion,
prosecutors