United States v. Frank Patrick Rosales

right. Williams v. of a federal rivation she as defendants the Governor and names Field, 483, (9th Cir. of Cali- Attorney the General State fornia, right by adopting a federal judge, deputy a state trial state find such attorneys highway patrol- the First which held general, analysis state man, employees “liberty” of the State De- is a several the use of a motor vehicle (DMV), Motor Vehicles and the Ra partment process. due See protected interest 748, City (1st Riverside. per Lucey, 488 F.2d 878, (1st King, Wall To state a of action under cause 915, 275, Cir.), 74 S.Ct. 346 U.S. 1985(3), appellant must claim ra “some § Burson, 402 (1953); Bell v. L.Ed. 411 cf. cial, class-based, or invid perhaps otherwise 535, 539, 1586, 1589, 29 L.Ed.2d U.S. iously discriminatory animus.” Griffin v. (“Suspension licenses (1971) of issued 102, Breckenridge, 91 S.Ct. adjudi . involves action that state 1790, 1798, 29 L.Ed.2d No such licensees.”). important interests of cates claim was made. Therefore, application suspension portion of the amended Since comport motor vehicle license must such a alleges no complaint on acts on based § process requirements the due part (besides of the state defendants amendment of the Con fourteenth federal employees), merely lists their DMV stitution. names, no claim relief is stated as to Here, DMV employees appel- tested Also, judge, pre them. the state trial driving, lant’s skills at least three different action, sided enjoys ju over the mandamus “hearing Next she afforded times. dicial immunity in suits of this nature. See present of skills” she was lack where Stump Sparkman, 435 U.S. counsel, proceed elected without as (1978) (passim). 55 L.Ed.2d 331 result of revocation of her license Therefore, the dismissal of the 1983 action § The DMV recommended. then ordered as to the non-DMV state defendants her appellant license revoked and notified proper. Appellant accordingly. was accorded due recently, City Until of Riverside process. would a “person” not have been considered AFFIRMED. However, meaning within the 1983. of § Supreme Court has held Monell v. Department Services, of Social 56 L.Ed.2d 611 (1978),

Congress municipalities did intend other to be local units includ- persons ed among those to whom 1983 § America, UNITED STATES applies. governing bodies, Local there- Plaintiff-Appellant, fore, sued directly can be § monetary, declaratory injunctive or ROSALES, Frank Patrick where, here, relief the action that Defendant-Appellee. implements to be unconstitutional statement, ordinance, or No. 77-3282. policy executes a regulation, officially adopted decision of Appeals, United States Court promulgated body’s by that officers. Ninth Circuit. 436 at (emphasis 98 S.Ct. at 2035-36 Aug. original) (footnotes omitted). Therefore, Rehearing and As Amended Denial subject of Riverside City suit in Rehearing En Banc Oct. this case. DMV City employ

As to the and the ees involved allegedly who were requires

license dep- revocation: Francisco, (argued), San

Mark L. Webb Cal., plaintiff-appellant. Amelle, Stafford, H. Jesse E.

Emerson Francisco, defendant-appellee. Cal., for filed Hug, Judge, Circuit dissented and WALLACE, GOODWIN, Before opinion. HUG, Judges. Circuit

WALLACE, Judge: appeals ruling The United States sponte by made the district sua to introduced sought pressing trial for controlled against Rosales his At issue is admis- substance violations. of sibility testimony alleged an cocon- agent as statements of naming as his source spirator Rosales drugs. reverse.

I along with oth- was indicted 841(a)(1) violating 21

ers for U.S.C. §§ conspiring dis- by distributing negotia- plea tribute Pursuant cocaine. guilty tions, pleaded codefendants his charges, and indictment different pretrial to them. In confer- dismissed as motion, ence, own judge, the district conspiracy count questions about the raised doubts that expressed He against Rosales. the exist- evidence of was sufficient testimony ence of to admit the declara- agent of an as to undercover coconspirator tions an original one Rosales’ codefendants. that Del- agent’s would be testimony as his source Prete identified Rosales offer of government made an cocaine. evidence, independent of the proof of the declarations, it would intro- disputed conspiracy. the existence of a duce show ruled Following argument, oral from the bench that law. question of This is a doubt. reasonable and that been made had not confined are not Consequently, we suppressed. This the statements restricted or some other “clearly erroneous” fol- to 18 U.S.C. appeal, pursuant review, duty it is our standard lowed. to de- judgment independent exercise our II of- government the facts cide to create a were sufficient prove fered to governing rule The traditional conspir- existence of a question on the jury coconspirator declarations is admissibility of States, F.2d 543 acy. Felder v. United See Rule of Evidence in Federal now codified v. 657, 1976); (9th 663 Cir. United States by coconspirator 801(d): statement “[A] F.2d Airplane, Beech 533 Engine Twin One course and in further party during Tifft, 1976); v. 1106, (9th Cir. Funk 1108 objectionable conspiracy” is ance of the 23, (9th 1975); 5A Moore’s 515 F.2d 25 Cir. against grounds when offered hearsay (1977); 9 52.03[2], at 2662 C. Fed. Practice f certain re developed We have party. Miller, Practice and Wright A. Federal & met that must be before quirements 2588, (1971). 750 Procedure The one relevant may rule be invoked. evidence, there must be this case is statements, Ill proffered

independent of the prima make out a sufficient represented to the dis- government conspira existence of the facie case of the Drug of the Agent trict court that Bender Dixon, F.2d v. 562 cy.1 United States other offi- Enforcement Administration 1138, v. (9th 1141 Cir. following testify to the facts: cers would 1975), 609, (9th 612 Cir. Calaway, 524 1977, Bender, 18, acting un- On March denied, 424 U.S. dealer, went into dercover as a narcotics Accord, United (1976). States L.Ed.2d Sneaky bar called Pete’s Francisco 683, 701, Nixon, with Gino and discussed (1974). parties do not manager, purchase bar’s owner and rule, dispute this formulation of the but $3,000. At two ounces of cocaine for only to this case. application its p.m., around 6:30 Bender was still delivery of the application, Sneaky awaiting Pete’s discussing Before DelPrete to call we which standard of cocaine when he asked first decide out when or source to find review of the decision of the district court is connection DelPrete regard point we out the cocaine would be delivered. appropriate. In that on the bar and put telephone that we review not a then are asked to napkin bearing fact, placed law. The next to it a white but a conclusion first not whether the name “Frank” before the court was district name] [Rosales’ seven-digit by government appeared should and what to be a proof offered Del- believed, telephone Bender watched whether a number. then e., telephone call and i. “whether the evi Prete make had been made About wait for the cocaine. dence, favorably most continued to considered later at 7:40 permit a ration an hour and ten minutes government, was such as Sneaky suddenly DelPrete left jury,” p.m., by al conclusion States to enter a Nelson, (9th by Pete’s and was seen Bender 419 F.2d Cir. registered to Ro- Mercury Cougar beyond that a criminal existed conspiracy.” See United requirements furtherance are that there must be at Other 851-52; Testa, evidence, supra, slight independent 548 F.2d at least of the state- ments, 314 F.2d 735 n.21 of the defendant’s connection to the Carbo v. United seen, Dixon, (9th conspiracy, supra, and as Rosales United States v. As will Testa, 1141; dispute, proof offered F.2d at does not and, as Rule 801 ex- these additional satisfied states, plicitly requirements. be shown to that the statements “during have been made the course and facts, from this recitation Excluded agents observed sales. Surveillance testimony course, expected is Bender’s driving the car. Rosales Rosales was that DelPrete indicated which would show about five drove around the block for was his source of that Rosales him exited, en- after which DelPrete minutes ply- Pete’s, Sneaky requested tered inside, Bender, had accom- remained conspiracy is defined as combination “A accomplish to the bathroom of bar. some pany persons him or more two gave purpose lawful purpose, Inside the bathroom DelPrete Bend- some unlawful States v. means.” United er ounces cocaine. unlawful (9th Cir.), cert. Heck, 24,1977, the second distribu- On March 677, 42 charged, again tion Bender went to date Accord, Iannelli L.Ed.2d Sneaky purchase cocaine from Pete’s United only he an said had DelPrete. Bender (1975). Although the plane catch a but that hour and a half to in persons, viewed acts of two individual buy ounces of cocaine if it he would three innocent, perfectly isolation, might appear that time. could delivered within “ “relatively innocent act of otherwise ‘[a]n prescribing this short purpose Bender’s in viewed in the slight moment,” may, when period was to “surface” DelPrete’s time circumstances, justi surrounding context of Bender noticed that source of cocaine. ’ ” complicity . . fy an inference in Bender en- Rosales was the bar when supra, 524 F.2d Calaway, United States with tered saw DelPrete converse and Ragland, quoting at tones after Bender had Rosales in hushed 471, 478 (2d A few minutes placed his cocaine order. 19 L.Ed.2d 987 looked over and saw that later Bender approxi- at Rosales had left. This was standards, we Judged by these mately agents p.m. 4:25 ob- Surveillance jury a could rational think it manifest that Mercury his served Rosales enter doubt that ly beyond a reasonable conclude Cougar and drive to another location in namely a DelPrete conspiracy temporarily lost Francisco. He existed — agreement to sell co and Rosales had an but seen at about 4:50 sight, from course, a say, to caine. This not reentering Sneaky Pete’s foot. p.m. evid compelled this conviction would be directly to go saw Rosales Bender then timing of the combination and ence,2 but moment, him a after DelPrete and talk to guilt for a suggestive events here too went to which DelPrete and Rosales both or jury, from question take the judge to After a the kitchen area of bar. had proper foundation that the conclude two, and Rosales left minute or DelPrete cocon laid allow statements of been area, the kitchen Rosales resumed spirators into evidence. bar, summoned seat at the DelPrete Bender went case compare Bender into kitchen. us to this Rosales invites given he was into the kitchen where our circuit and elsewhere with others from about three ounces of cocaine Del- in convictions have been conspiracy cocaine, receiving the Bend- or eocon- Prete. After reversed for insufficient evidence bar, to be spirator at have been held er went back to his seat declarations argues inadmissible He hearsay.3 bought a round of drinks for strong or Rosales, himself, left. in these cases were and then facts for evidence, course, the court is the same reversals before be such as 2. The need not conviction, support only compel it. of cocon- a insufficient evidence as in exclusions Calaway, supra, inadequate spirator 524 F.2d at foundation statements —namely, prima been a case has facie out. made on the ex- 3. To such decisions turn the extent course, conspiracy, of the issue istence of a prior had no cocaine facts that DelPrete than stronger support prosecution purchases, comparisons Factual sort either of Bender’s is so here. limitations, drugs necessarily supplied however. Most have inherent pattern rely heavily upon cases conspiracy both those transactions. evidence, exist- and the of circumstantial Spanos, In inference from strength ence and of an the indictment agreed person evidence that a such arrangement between distribution specific necessarily unlawful acts others to commit pur- (the middleman Spanos, Godwin and interrelation- depend upon totality Spanos), and amphetamines chased Very individual facts. seldom ship many they ultimately were buyers to whom set of in one we find a facts do question about There was no distributed. to those in nearly to be so identical case between God- the existence in one that another that or about fact win and his customers* made has or has not been out Spanos sold to that on at least one occasion same in the other. compels the conclusion no Godwin. “[B]ut [was] Rather, case ask anew the in each we must Spanos had with Godwin that agreed whether, unique from this set basic Herring Godwin was to resell to under- [an considering the evi- of circumstances Id. agent] anyone cover else.” favorable government, dence most Thus, there lack would be to convict.

jury entitled charged in particular conspiracy the the Nevertheless, we have examined the however, case, In indictment. there we cases to which Rosales refers and find the conspiracy was evidence from which distinguishable. each of them In two of inferred; charged could be if Rosales did Johnson, United v. cases, States these 513 we believe supply cocaine DelPrete —and States v. (2d 1975); Cir. F.2d permits ap- the that inference —it Grillo, (2d Cir.), 499 F.2d pears precise purpose that it was of for the 638, 42 L.Ed.2d filling Bender’s orders. (1974), it was clear from the record that the v. reasons, United States Ba- For similar buying, selling of contra supplying, and' surto, 1974), (9th 497 F.2d 781 Cir. does not accomplished entirely by persons were band conspiracy The of help Rosales. conviction accused, making the it ar other than thus reversed in defendant Travers was that guably likely more that the defendant was case because there was insufficient evidence spectator knowing or unknow merely a — participated conspiracy that he in the rath- ing not a in the criminal participant —and Id. simply er than knew of it. 792-93. Ong v. Similarly, activity. in permissible But a inference here is that Way Jong, (9th 1957), Cir. actually Rosales had not been the Ong supplier supplied cocaine the proof that which, it, drug prove intent previous by for a sale tended to Bender receive definition, that Ro- might played that he not have that role in includes the inference actively participated conspir- the transaction he was trial. sales in the Here, contrast, by acy.4 one could infer the (2d panel by cases merit Cir. where a divided of

4. Two other cited brief States, conspiracy mention. In Jensen v. United the Second con- Circuit reversed a (9th briefly the defend- Cir. we reversed in viction. The was visited defendant selling concealing her- procure ant’s conviction for by agreed one his trailer who had oin, apparently in that case agents. amphetamine for undercover Immedi- any event, charged. In the court visit, sight ately after the which was out of applied evi- a standard of review —that drugs. agents, produced the the middleman every hypothesis but dence must exclude Although we believe the case can distin- guilt following discredited flaw, facts, —that guished on its its more serious Nelson, year in United States points engages in is it the dissent (9th 1969). Cir. Nelson, by disapproved i. e. the kind of review judge The district before us in the case relied all innocence be insistence that inferences of heavily upon Stroupe, 538 United States v. F.2d argument This question of law. thus a is the further distinc- pursue need not writing if we were persuasive might between these could be drawn tions that not; However, arewe It is clear to a slate. upon before us. clean cases and the one circuit is and, a the law of this jury question my opinion, it a us that is remem- contrary. in this case. The district We must clearly existed concluding other- evidentiary was incorrect preliminary this is ber alleged Thus, although the evidence it ruling suppress, wise. a motion to coconspira- by statements made of decision that would be type akin is suppressed.5 have been tor should not acquit. The law the a motion to made on plainly established circuit has ninth AND REMANDED. REVERSED concerning admissibility findings trial court suppress on motion to are HUG, dissenting: Judge, questions fact under the reviewed as The before the I dissent. clearly standard. United States erroneous admissibility of a statement of of the one 1976); (9th Wysong, 528 F.2d 345 Cir. Federal Rule of Evi- co-conspirator Patterson, 492 F.2d 995 suppressed 801(d). The trial court dence (9th v. United Cir. Costello ground that there the statement on the (9th 1963); United Cir. F.2d independent of not sufficient evidence 1962). (9th en banc Page, F.2d 81 to make out statement true, determination This is whether that This was conspiracy. the existence conflicting evi- made on the trial court is As ma- evidentiary ruling. preliminary agreed facts. United States dence case, re- we are asked to jority views Hart, en banc law and not a conclusion of view the trial question of whether precise fact; we not confined to thus are law, of fact or one court’s determination of review. clearly erroneous standard put dispute, was facts are not in when the majority is that the analysis in focus in that en banc decision proof presented facts which offer of concurring dissenting opinions and, therefore, ques- be taken as true Hufstedler, and the Judges Duniway and of applying the court was one tion before be of fact held it to majority standard, legal to determine these facts to erroneous stan- governed by clearly were suffi- undisputed facts dard.1 prima facie case. cient to constitute a Viewing the court’s decision is the same trial majority contends that this clearly errone- under the press court must make the evidence decision that trial standard, acquittal and I not find decision it ous do when rules on motion (cid:127) imprecise Perhaps we too much of the 1. ask law That is the evidence. excluded between artificial somewhat distinction of this circuit. of law. fact and conclusion argues appeal, he did before 5. Rosales ruling is the inquiry is whether relevant court, Del or not that whether the district type trial court determination are admissible under Feder Prete’s statements appeal. It be deference should accorded 801, to admit them would al Rules of Evidence appear determined this circuit has would right “to be con his Sixth Amendment violate concerning findings by admis- trial court against him.” The with the witnesses fronted suppress, sibility on a motion to issue, reach nor do did not this district law, fact or aré entitled whether classed as it, rely upon it If continues we. clearly erroneous such deference by in the first instance should decided words, type is not the In other standard. governing constitutional stan trial court under appellate should of decision where Evans, See, g., e. Dutton U.S. dards. judgment the trial its substitute (1970); L.Ed.2d 213 clearly finding is court unless the trial court’s Snow, erroneous. denied, cert. Adams, (1976); L.Ed.2d (9th Cir.), and therefore I would erroneous affirm. America,

UNITED STATES Plaintiff-Appellee, Dolman, OLANDER, Wilber N. William Harrington, Gary Rondeau, Denne M. D. Schruder, Minnich, L. Gerald Arthur Wilson, Roy Defendants-Appellants. D. 77-3794, 77-3925, 78-1239, 78-1240, Nos. 78-1310, 78-1311 and 78-1312. Appeals, United States Court of Ninth Circuit.

Sept. Rehearing Rehearing En Banc

Denied Oct.

Case Details

Case Name: United States v. Frank Patrick Rosales

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 23, 1978

Citation: 584 F.2d 870

Docket Number: 77-3282

Court Abbreviation: 9th Cir.