*1 NORRIS, Before ALARCON and Circuit *,
Judges, Judge. and EAST District America, UNITED STATES of
Plaintiff-Appellee, ORDER opinion matter, court’s The this ORDONEZ, Oscar German Hernandez 530, amended, F.2d has been as set forth in Garcia, Rivera, aka Jaime date, the attached order filed on this Defendants-Appellants. government’s raised in the address issues 82-1506, Nos. 82-1508. petition rehearing suggestion for a for rehearing Judge en banc. Norris has with United States Court Appeals, general drawn his concurrence in Ninth Circuit. opinion and has set expres court’s forth an special Argued sion of his views 7, concurrence. July Submitted 1983. special A copy of his concurrence is at 23, Decided Dec. 1983. filed on tached to order this date which Denying Orders Rehearing and opinion contains the amendments Amending 27, Opinion June 1984. the court.** Specially Concurring Opinion panel unanimously has voted deny The June 1984. petition rehearing. Judge for a Alar- Opinion July 11, as Amended reject suggestion con voted to for re- hearing Judge en banc. Norris voted to
accept suggestion for rehearing en Judge
banc. East has recommended that suggestion rehearing en banc be
rejected. opinion pur- the court as revised
suant to the attached Judge order and Nor- special
ris’ concurrence were circulated to
the full court on June 1984. The full
court was also advised of the suggestion
for an en hearing banc and each member copy
received a government’s peti-
tion. judge
No requested court has
vote on suggestion rehearing en 35(b). Fed.R.App.P.
banc. petition rehearing for a is denied and suggestion rehearing for a en banc is Norris, Judge, opinion Circuit filed an rejected. concurring part. * East, 11, 1984, opinion July Hon. William G. Senior United States Dis- pub- amended filed Judge Oregon, sitting trict designation. for the District of amending at 737 E.2d lished order is published here. special ** follows concurrence the amended EDITOR’SNOTE: As the set amendments forth opinion. incorporated in the order referred to are *3 possession counts of of cocaine two (21 it the intent to distribute U.S.C. § 7). 841(a)(1)(Count 2 and Count Ordonez guilty found of an additional count the intent possession of cocaine with (Count 2) it and of the crime of distribute position organizer, super- occupying the visor, manager continuing criminal of a § 848) (Count 14). (21 enterprise U.S.C. in a We must decide whether entries (1) prove ledger were admissible to conspiracy of a or acts in further- existence thereof, (2) corpus delicti of the ance *4 possession cocaine with intent crime of it, (3) person that a is a to distribute and continuing enterprise, leader of a criminal identity person who made where the notation in the record is unknown. We have concluded insufficient presented foundational facts to dem- were onstrate the of the entries to matter prove the truth of the asserted. Accordingly, posses- reverse the we must continuing enterprise and criminal sion charges because the failed to lay proper foundation for the admissibili- prove ty of the entries to essential ele- ments of these offenses. conspiracy charge be-
We reverse impact of the inad- prejudicial cause of the O’Connell, Cal., George Angeles, L. Los jury’s on the fact missible entries plaintiff-appellee. for finding function. Stanley Greenberg, Joseph Vodnoy, I. T. that the court We have also determined Cal., Angeles, defendants-appel- Los for in the manner prejudicial committed error lants. appellant’s disposed it motion identity of the informer. to disclose the the facts in considera- We have set forth detail to assess the effect court’s ble NORRIS, Before ALARCON and Circuit evidentiary rulings on the fair- erroneous *, Judges, Judge. District EAST ness of the trial. .AMENDED OPINION I. ALARCON, Judge: Circuit FACTUAL BACKGROUND Hernandez-Garcia, also known German A. Presented at Pertinent Facts Trial Rivera, Jaime and Oscar Ordonez were enforcement officers guilty conspiracy possess Surveillance law
each found § An- (21 846) locations in Southwest Los cocaine U.S.C. of several and distribute * East, designation. United States Dis- Hon. William G. Senior sitting by Judge Oregon, trict District jury to infer that began September, in late 1981. This caller’s state- geles ultimately focused on three investigation proof that ments were Hernandez-Garcia Drive, Bay Marina Palm Street houses: was known “Jaime”. Boulevard. Police observed and Norwalk Ordonez was listed as one of the lessees packages persons transporting numerous on each "ofthe three homes searched. The locations. German Hernan- between the utility bills for these residences were also during twice was observed dez-Garcia paid rent in his name. The total each investigation; stage of the once prearrest dollars; thousand month exceeded several residence and on anoth- at the Palm Street Drive, $2,500 Bay for Marina for Nor- $700 accompanied by at a bar several er occasion Boulevard, Palm walk Street. $500 30, 1981 a On October co-defendants. payments usually These made Or- at the three resi- was conducted search government argued donez in cash. The was arrested at the resi- dences. Ordonez jury that Ordonez received substantial Bay Marina Drive. The officers dence on income the cocaine transactions be- from containing ledgers entries seized several high monthly payments cause the rental The search also disclosed narcot- Spanish. necessarily reflected an increase in his $350,000 cash, five paraphernalia, ics earnings previous years. from Ordonez’ immigra- passports, and some Colombian tax returns for 1976-1979 showed an aver- Hernandez-Garcia’s
tion forms. German $27,000. age only annual income of Ordo- sitting next to a suitcase which wife was nez introduced someone as “Jaime Rivera” $385,000 at the time of the contained the *5 Wright, manager Mr. a to of the Marina not arrested. One of the seizure. She was Bay property. Wright Drive Mr. testified issued to German Hernan- passports was that this individual was not German Her- forms were immigration The dez-Garcia. nandez-Garcia. resi- addressed to Ordonez at his Sunland dence. objection, ledgers defense Over during the search were admitted into date, seized Hernandez-
On the same German evidence. The trial court ruled outside the approached the Palm Street resi- Garcia presence jury, ledgers that the were of dence, pursu- entered after officers had co-conspirator excep- admissible under' the ant to the search warrant. The officers hearsay tion to the rule. Fed.R.Evid. pulled inside the German Hernandez-Garcia 801(d)(2)(E). give Approximately kilograms four of The trial court did house. . n $16,000 limiting and cur- the use any special cocaine United States instructions of rency received, were seized at the Palm Street it this evidence at the time was ledgers house. Additional were found at of the trial. throughout the course this location. Dental records in the names Frank, handwriting fingerprint ex- of Mr. and Mrs. Rivera were found. J. also pert, majority that a of the entries testified the dentist’s office Business records from ledgers were made at least four on $7,500 payment for Mrs. reflected cash persons. unidentified Rivera’s treatment. opinion fingerprints In five were Frank’s para- narcotics The officers also found ledgers by left on the German Hernandez- phernalia resi- at the Norwalk Boulevard fingerprint left one iden- Garcia. Ordonez location, During dence. the search at this handwriting appeared tifiable. Ordonez’ rang. asked to telephone One caller pages. several Hernandez-Gar- on German speak caller ordered one to “Jaime”. This handwriting on cia’s was not found of of cocaine. Another caller asked to kilo the entries. “Jaime, brother”, gave speak my to Agent Larry Lyons Drug Enforcement an on Pioneer Street Sanchez address qualified expert as an witness on “Co- located. Sanchez where the caller could be the “in- organizations” cocaine lombian he arrest- later went to that address where terpretation and records of Hernandez, of books German Hernandez- ed Antonio organizations.” Lyons testified asked narcotics brother. Garcia’s ledger possession were in a code the entries Garcia cocaine on these that interpretation by expert an required dates. which qualifications. experience and
with his government argued jury opinion, in his jury Lyons told cumulatively several entries established working papers, ledger ledgers consisted possessed that Ordonez cocaine on June cards, paid of funds to members a record entries, however, ledger 1981. None of the ledger, organization, a master a co- specifically referred to a transaction on ledger money and a caine distribution flow that date. According Lyons, ledger. ledgers the cocaine transactions of an or-
recorded II. through Septem- late ganization from ber DISCUSSION opinion, also testified that his Lyons Admissibility A. the Ledger Entries ledgers were business records made in For the Truth the Matter Assert- business, regular re- course ed daily including cocaine transactions flected argue Ordonez and Hernandez-Garcia made to numerous individuals. deliveries proper presented foundation was not necessary keep were These records track for the admission of the entries for large quantity of narcotics and cash the truth of the matter asserted under the exchanged. Lyons also stated that cod- co-conspirator exception to the precisely ed entries reflected the known agree. rule. We prices wholesale of cocaine. ledgers When the were first offered into entries made in Ordonez’ handwrit- evidence, interposed counsel Ordonez’s ing appeared one notebook and on two objection respect “foundational which, believed, separate Lyons cards ledgers.” The court part money flow and master informed, “I was further believe that the ledger. ledgers hearsay.” contents these are *6 Lyons testified that the names “Oscar” response objection, to this the court stated: appeared and “Jaime” numerous coming up It is because it was found ... entries. He stated that the three varia- up, If he I my can’t connect it will vacate tions of the name “Oscar” referred to Or- previous ruling. donez and the six variations of the name Thus, purport the court did not to rule on primarily “Jaime” referred to German Her- hearsay objections the at this time. testified, however, nandez-Garcia. He that appear It would from the court’s com- the name “Jaime” also referred to several ments, ledgers that the were received into persons. According Lyons, other to the point in physi- evidence at this the trial as entry decoded, for March as indi- objects cal found at the scene and not for brought by cated “arrived five kilos Jaime the truth of the matters contained in the and Oscar.” various entries. Lyons indicating construed this that as trial, Later in the defense object- counsel possessed Ordonez and Hernandez-Garcia to ledgers ed the use the entries in the pounds of cocaine with the intent to prove to the truth of the matters contained testimony distribute on that date. This concerning therein the narcotics transac- support allegations was used to tions referred to in Count and Count 11 ledgers Count 7 of the indictment. The __ narcotics transactions indictment. prove pos- were also used to that Ordonez listening argument After to from pounds sessed 48.4 both cocaine with intent to sides, 15, 1981, “Objection charged on the court stated: is over- distribute June good 11. No ruled. I will take a look at Count other evidence was offered support charges. during Subsequent- of these No one testi- the Rule 29 motions.” ly, requested that he saw Ordonez or pre- fied Hernandez- the court that counsel key refer to the transactions described in authorities on the Count “points and pare admission and the 11 or the so-called 7 and Count whether declarant issue of relationship.” Pursuant co-conspirator. corpus delicti was a order, government submitted objection Three. No was made con in which it trial memorandum supplemental cerning en argued: ground govern trial that the tries at on case, ample evidence con- there In this prevent ment had failed to sufficient foun conspiracy. necting each defendant requirements satisfy dational facts to ledg- admissions in the Accordingly, the of the Confrontation Clause.' Neverthe fully against admissible defend- are ers less, required plain are to review errors we co-conspirator admissions. Fed. ants although they affecting rights 801(d)(2). substantial R.Evid. brought were not to the attention of the motion, ruling on the Rule 29 Before 103(d). of Evid.Rule trial court. Fed.Rules observed: “We do have court first trial We are satisfied that a contention that the expert, Special Agent an testimony from comply failed to with the Con indicating that the business Larry Lyons involves frontation Clause substantial absolutely re- extensive records were rights which must be reviewed even in the type in this nature of business quired timely objection. absence of a United required was exactness and there business Traylor, 656 F.2d States v. transaction ...” of the contraband terms Cir.1981). however, Later, the trial court ruled give limiting Four. The court failed to admissible as admissions ledgers were concerning purpose instructions narcotics corpus delicti of the prove ledgers which the and the entries were alleged in Count 7 and Count transactions indepen- jury found “sufficient received into evidence. The was not 11. The court to establish the trustworthi- infer jury dent evidence told that could from the respect admissions ... with ledgers ness of the existence of the that the defend- possession counts.” substantive engaged in the ants were distribution narcotics. presented by analyzing Before the issues ledgers the entries in the
the admission of jury was not advised that the entries asserted, the truth of the matter for the ledgers were admissible following facts must be con- believe asserted. truth of the matter sidered: told that it could con- jury was not expressly rule One. The court did not ledgers proof of entries in the “as sider the ledgers for the admissible *7 charged of the crimes each of the elements concerning truth of the matter asserted the 11 if they found that in Count 7 Count conspiracy continuing or the criminal enter- were accurate and corroborated the entries Instead, prise charge. provision- the court reliable evidence. by other they ally ledgers, admitted the “because argument, the court on its own At oral raised were found.” No issue has been to comment motion asked the Government admissibility of court as to the before this admissibility ledger entries on the ledgers, matter the not for the truth of the matter After for the truth of the asserted. asserted, circumstantial evidence “to but as matter, filing original opinion in this the place and use of the show the character filing ordered the of additional this court found ...” the notebooks were where argument heard further on the briefs and Wilson, F.2d 641 at States United ledger entries for the admissibility of the (8th Cir.1976). truth the matter asserted. by the proof was offered Two. No government’s ar- Having the considered finding made and no was government admissibility of guments concerning the identity the concerning the court the rule ledger entries under ledger entries which the made the persons who 80 0 Clause, is in the nature of an admission or reaffirm which Confrontation
and the
corpus
prove
be used to
requisite
founda-
confession
our conclusion
presented by
government’s posi-
crime. And the
not
facts were
tional
admissibility
support the
it can.
government
is that
to
.tion
(1)
(2)
as
admissions
ledger entries
assume,
purposes
will
for
of assist-
We
(3)
co-conspirator
as trust-
of a
statements
considering
issue
jng the trial court
this
government
The
records.
worthy business
jn
retrial,
of a
that the issue of
the event
satisfy
to
present
also failed
admissibility
entries for
of the Confron-
reliability requirements
adop.
the truth of the matter asserted as
tation Clause.
properly
tive admissions is
before this
by analyzing
begin
discussion
We
our
801(d)(2)(B)
court.
Rule
of the Fed-
Under
evidentiary theories advanced
each of the
not
eral Rules of Evidence a statement is
trial,
original
at
in the
government
by the
hearsay if
statement
offered
“[t]he
court, and on the
filed before
brief
against
party
and ...
is a statement of
raised in connection
points and authorities
adoption
which he has manifested his
or
rehearing.
petition for
with the
belief
its truth.”
government argues
posses-
that the
Requirement
Ad-
1. Foundational
.The
alone,
standing
slon °* a document
is an
missions
government
adoption of its contents. The
party opponent is
of a
The statement
Marino,
refers us to
United States u
either
if it is “his own statement
admissible
(6th Cir.1981)
F.2d1 120
and United States
representative capaci-
his individual
Canieso,
(2d Cir.1972)
F.2d
801(d)(2)(A). No evi-
ty.” Fed.R.Evid.
thig
gupport
proposition.
bold
The
presented
upon
dence
that the entries
us,
government
neglected
point
has
for March
1981 and
which the entries
however; that
in each of these cases n0
15,1981 were the statements of either
June
admiggi.
wag
objection
made at trfal to the
appellant.
jn
posses
bility 0£ tbe documents found
government’s
proof of the
1124;
sole
Marino,
sion of the defendant.
at
possession
crime of
of cocaine
distribu- Canieso,
importantly,
at 1232 n. 8. More
charged
in Counts 7 and 11 was
tion
in each
the evidence was not offered
case
govern-
based on the
entries. The
truth of the matter asserted. Mari
for the
handwriting expert
ment’s
could not identi-
1124;
at 1232.
law of
no
Canieso
dates,
fy the author of the entries for these
concerning the
this circuit
argument
government
At
oral
conceded document,
possession
found
persons
that the
who made these entries
defendant,
matter
for the truth of the
as-
Thus,
ledg-
were not identified at trial.
serted,
Tom v.
Poy
is set forth
Coon
testimony interpreting
ers and the
their
(9th Cir.1925).
States,
trict court made
judge
any
advanced before the trial
time
adoption of the state
manifested their
had
during the trial. The trial court was not
they
ledgers
or that
had dem
ments
upon
any
called
to
consider
to make
in their
is
their
truth nor
onstrated
belief
findings concerning
weight, sufficiency,
record that
any
there
this
credibility
facts,
foundational
support
such an inference. The
would
independent
expert’s interpretation
adop
entries were not admissible
entries,
prove
to
of the coded
cir
tive admissions under the law of this
conspir-
connection of the declarant
cuit.
considered,
acy.
theory
this
was not
Since
say
cannot now
that such evidence was
Requirement
Co-
Foundational
not available.
speculate
We decline to
on
Conspirator’s Statements
of this record that the trial court
the state
co-conspirator during
A statement
have been satisfied that sufficient
would
of and in
of a con-
the course
furtherance
present
satisfy
to
facts were
foundational
spiracy is
into evidence under
admissible
exception, ¿/the prosecu-
co-conspirator
801(d)(2)(E).
government,
Fed.R.Evid.
theory
timely
in a
man-
argued
had
this
tor
petition
hearing, argues,
in its
for the
theory
of admissi-
ner. For us to sustain
time,
first
the entries were made
below,
unfairly
presented
would
bility not
appellants’ co-conspirators in furtherance
opportunity
argue
appellants
rob
conspiracy.
and Hernan-
Ordonez
sufficiency
weight,
and trustworthiness
argue that the entries were not
dez-Gareia
proper
to establish a
foun-
of the evidence
co-conspira-
admissible as declarations of a
judge,
trial
or to offer
before the
dation
never identi-
tor because
declarant was
the facts now relied
proof to controvert
fied.
See Giordenello
government.
upon by the
States, 480, 488,
United
contends that
state-
(1957) (The
2 L.Ed.2d 1503
person
of an
is admissi- S.Ct.
ment
unidentified
support
cannot
the admissibili-
co-conspirator exception
under the
ble
theory
for the
ty of evidence on a
raised
only authority
rule. The
cited
appeal
it would un-
first
time on
because
United States
support
suggestion
Whitten,
Cir.1983).
adequate
of an
fairly deprive the accused
dence).
See
(Consid-
assertions of unidenti-
on the out-of-court
1381,
(D.C.Cir.1968)
1383
405 F.2d
subjected
were never
persons
fied
who
for the admissi-
bases
eration of alternative
or cross-examination
trial refused
confrontation
received at
bility of evidence
unavailability was never demon-
presented
not
to whose
argument was
because
clearly
of this evidence
court).
strated. The use
the trial
prong
forth
the first
of the test set
violated
from
to determine
are unable
We
“[Wjhen
v. Roberts.
a
Ohio
would have
appellants
record whether
this
present for cross-examina-
declarant
is not
court,
the trial
persuade
been able
trial, the
Clause nor-
tion at
Confrontation
or rebuttal evi
through cross-examination
mally requires
showing
a
that he is unavail-
dence,
foundation could not
proper
66,
at 2539.
Thus, and Hernandez-Gar Ordonez past fact? counts cia were convicted of substantive
803
States,
269,
personal
the declarant have
Ottomano
United
468 F.2d
2. Did
(1st Cir.1972),
denied,
he related?
knowledge of the facts
273
cert.
409 U.S.
1128,
948,
260,
93
35
L.Ed.2d
reh.
ex-
government’s
Did the
evidence
denied,
1383,
93 S.Ct.
35
declarant acted
possibility
the
that
clude
(1973).
expressly
L.Ed.2d 616
This court
faulty
upon a
recollection?
adopt
refused to
the
rule in
Ottomano
under which
4. Did the circumstances
Snow,
United States v.
521 F.2d
734
provide any
made
reason
the assertion was
(9th Cir.1975)
2n.
and in United States v.
misrepresen-
that the declarant
to believe
Perez,
Cir.1981).
658 F.2d
660 n. 5
88-89,
the truth?
within a well-known
misrepresented
gest the declarant
rule,
co-conspira-
hearsay
such as the
role.
the defendant’s
exception,
per
tor’s
it is
with-
se admissible
Tille,
F.2d 615 at 621
violating the
States v.
out
Confrontation Clause.” United
(9th Cir.1984).1
Among
principle
the cases cited for this
is
appeal,
was,
upon
the court
not called
1. We have found one case from this circuit
express holdings.
reconcile its dictum with their
suggests
which
dictum
"statements
ago
long
Chief Justice Marshall
cautioned
‘firmly
exception
which fall into
rooted’
against reliance on dictum:
presumptively possess
rule
sufficient in-
disregarded,
is a maxim not
to be
It
reliability
satisfy
dicia of
so as to
the confronta-
general expressions,
every opinion,
are to
Bernal,
tion clause.” United
719 F.2d
States
connection
case in
be taken in
with the
which
(9th Cir.1983).
making
Before
they go beyond
expressions
those
are used.
If
observation, however,
panel
“Bernal
noted
case, they may
respected,
ought
but
not
challenge admissibility of that
does not seem to
judgment
subsequent
to control
in a
suit
appeal,
may
statement on
and so
have waived
very point
presented
when the
for decision.
any
objections.”
confrontation clause
719 F.2d
The reason of this maxim is obvious. The
at 2479.
question actually before this court
is investi-
court, in Bernal did not cite or discuss the
care,
gated with
and considered in
full
its
Perez,
law of this circuit set forth in
Snow
principles
may
serve
extent. Other
did
Adams. We assume that since Bernal
it, are considered in their relation to
illustrate
decided,
clause
violation of the confrontation
bearing
raise
possible
case
but their
on
*11
conspirator.
Papia,
four
United States v.
560
in Perez that
We noted
“[a]ll
[Dut-
Cir.1977).
n. 3
As set
present
not
order F.2d
elements need
be
ton ]
above,
repeatedly
clause.
In
forth
this circuit has
re-
satisfy
the confrontation
circumstances,
may
jected the
rule. Until Perez and
a statement
be
Ottomano
some
court,
objec-
sitting
this
clause
are overturned
over confrontation
Snow
admitted
banc,
apply
pass scrutiny under
en
we must
the Dutton fac-
if it does not
tions even
Snow,
simply
test. See
court in
was
prong
Dutton
tors. The
DeGudino
each
required
reliability
at 661.
to consider
under
734-35.” Perez
521 F.2d at
according
the Confrontation Clause
that the co-con-
concluded
In
we
Snow
The
ex-
law of the Seventh Circuit.
views
trustworthy be-
were
spirator’s statements
pressed in DeGudino are of no value to us
factors were
of the four Dutton
cause two
under these circumstances.
us,
matter before
be-
applicable.
In the
objection,
us,
proper
solely
Based
on the record before
we
the absence of
cause of
that,
to the trial court
conclude
even if
assume that the
presented
no evidence
the Dutton factors
statements
any
were admissible
the declara-
to show
co-conspirator, they
other indicia of
tions of a
applicable or that
were inad-
were
reliability
present.
missible under the Confrontation Clause.
petition
for a re
government,
The
its
Requirements
3. Foundational
for
rehearing en
hearing
suggestion
and
Admissibility
Business Records
banc,
decision of
states that
recent
“[t]he
argues
The
also
DeGudino,
DeGudino is United
States
transactions.
(8th Cir.),
denied,
F.2d 641
cert.
U.S.
Therefore,
ledger entries are ad-
(1976).
97 S.Ct.
702 and that business ledger entries “falls within dence expert witness dispense not with did requirements] firmly foundational of a [the disagreed. The The court requirements. hearsay exception.” rooted Ohio v. Rob need there was no reasoned Court erts, 66, 100 448 S.Ct. at 2539. The U.S. appraisers affirmatively ex- to establish ledger proof entries were inadmissible as 803(6) “Rule ex- qualifications because pert of the matter for all of asserted the rea of a for the exclusion busi- pressly provides sons discussed above. source of information record if the ness Id. at a lack of trustworthiness.” indicates Prejudicial B. Evidence Effect of of simply did not address the Licavoli 622. Ledger Entries us. issues before 1. 7 11 Counts and argument sup government’s The ledger We have concluded admissibility is based on the false port of were inadmissible under the entries Con ledger qualify entries premise that the proof frontation Clause as of the matter hearsay is A statement business records. government asserted because the failed to pursuant record admissible as business (1) unavailability demonstrate 803(6) following if founda Fed.R.Evid. declarants, (2) the trustworthi unidentified proved: facts are tional statements, (3) the exist ness' of their and writing 1. The is made or transmitted requisite facts for ence of the foundational by person knowledge at or near the with any exception to the hear admission under time of the incident recorded. say rule. kept in the course of 2. The record is forthrightly conceded at government The regularly activity. conducted business that, entries, ledger it without the trial by These facts must be shown the testi- and prove that Ordonez German could not mony qualified of the custodian or other posses- guilty of Hernandez-Garcia were witness. charged distribution as sion of cocaine for admissible, The record how- will agree. 7 and 11. We Because in Counts ever, if the source of information or inadmissible as ledger entries were preparation in- method or circumstances of appellants possessed cocaine for proof that dicate a lack of trustworthiness. distribution, 7 we must reverse Counts legally admissible evi- 11. There was no comply government The failed to guilt of these crimes. dence of their requirement the business with the exception records rule. Enterprise Continuing 2. Criminal cus- produce did not compelled are to re We also a witness. No todian of the records as 14, charged Ordonez Count verse any person that was offered occupying position organiz of an kept by persons having records were er, manager continuing of a supervisor or knowledge the facts recorded personal enterprise in violation of 21 U.S.C. criminal made at or near the entries were or that § engaged in person A a continu of the transaction. No evidence the time (1) if he enterprise commits per- ing criminal presented to demonstrate that 806 possibility I II there is a reasonable that the subchapter
felony as defined
21,
(2) “such viola
admission of evidence
violation of the
13 of Title
Chapter
continuing
might
series
viola Confrontation Clause
have contribut
part
tion is
§
(2).
848(b)(1)
conviction,
21
ed to a
has the
tions.”
U.S.C.
§
refers to
persuading
appellate
as used in
848
term “series”
burden of
an
court
federal narcotics law viola beyond
more
that such
“three or
a reasonable doubt
error
Valenzuela,
v.
596
Florida,
States
tions.” United
was harmless.
Schneble
Cir.),
denied,
1361,
1059,
cert.
427, 432,
1056,
F.2d
92 S.Ct.
U.S.
In ful- dence. It is evident to us from our inde- ledg- ly exploited the evidence on the pendent based of this record that the ad- review prosecutor jury er entries. The told the ledger entries harm- mission of the was not “we have additional substantial evidence less error. conspiracy,
that there was a there was an organization, ledgers are the and those Count you’ve heard so much about.” German Hernandez-Garcia and Ordonez above, charged
For the
set forth
were convicted of Count which
reasons
possession with intent to distrib-
ledger entries were not admissible to them with
during the
conspiracy.
pounds
The ute 8.8
of cocaine seized
prove the existence of
30, 1982, search of the Palm Street
prove
of this evidence to
the truth of October
use
else-
residence. Ordonez was arrested
the statements contained
vio
disclosed that Ger-
Where where.
evidence
lated the Confrontation Clause.
identity
ing
person
disclosure of the
of
did
live at
Hernandez-Gareia
man
fact,
govern-
triggered
investiga-
In
Street house.
information
Palm
whose
successfully
the dis-
argued
before
prosecution.
ment
precipitated, this
tion which
Hernandez-Gareia
court
trict
that German
support
their motion
disclosure
standing
challenge
lacked
and Ordonez
appellants
identity,
the informer's
relied
Palm Street residence.
search of the
Angeles
of Los
Police
upon the affidavit
approached
As Hernandez-Gareia
support
filed in
Officer
B. Sanchez
Roberto
pulled
during the search he was
house
search
issued
this matter.
warrant
conducting the
by one
the officers
inside
alleged that on or about
Officer Sanchez
Thus,
no
there was
search.
7, 1981, he received information
October
Ordonez had actual
Hernandez-Gareia
confidential,
informer that
from a
reliable
of the cocaine
possession
or constructive
who
major
was
cocaine dealer
“Jaime”
They
con
during the search.
found
large
presently selling
amounts of co-
conspiracy
theo
2 under
of Count
victed
sold cocaine
the in-
caine. Jaime had
conspiracy
can be
A
ry.
member
previous
on ten
within
former
occasions
crime commit
substantive
convicted
days.
gave
informer
Officer San-
during the course
co-conspirator
aby
ted
telephone
chez Jaime’s
number. The tele-
conspiracy.
Pink
furtherance
phone
registered
Lago
number was
to Tito
States, 328
645-
U.S.
v. United
erton
Boulevard, Arte-
at 18617 South Norwalk
1180, 1183-85,
C.
affidavit,
Informer's
informer would have been
his
defense
material witness
bolster
seek
Hernandez-Gareia
Ordonez also
deny-
identity.2 The informer would
reversal of the district court’s order
mistaken
so, yes.
many persons
I believe
2. The record
sus-
A.
discloses
Q.
variations
I have on the
pected
being
with
dis-
There are five
connected
the cocaine
name,
organization
here
used the
"Jaime”.
Board
with the
tribution
name
Jaime.
you came
other
following portion
transcript
there
other than
across
is illus-
Is
phenomenon:
than one
these five?
trative
Hoinjer.
There was
A. There
also Jaime
all,
Q.
VODNOY:
First of
it be fair to
would
name,
a Jaime Medico.
say that we have the
Jaime?
Q.
Is that
name?
Yes,
name,
just
A.
Jaime.
LYONS:
name,
Well,
really.
it is
A.
not
Q.
H.?
Is there also a Jaime
you
asking
are
Q.
am
for names
think
I
Yes,
A.
there is.
stand
a name.
names or which
reasonable
Q. Was
a Jaime
there also
Salsa?
all I can remember at the
A.
think that is
Yes,
I
A.
there is.
or find.
moment
Q. Was
a Jaime
there also
Toto?
two,
one,
your expert opinion
Q.
are
In
all
A—A.
four,
three,
five,
referring
six of these names
Agent Lyons?
Q.
person?
to one
looking
A.
I am
for that one.
No,
they
I
do.
A.
don’t believe
Q. Jaime Toto?
Is,
example,
Q.
Jaime Toto
same as
Yes,
A.
there is.
Jaime or Jaime H.?
Q. You found it?
person.
is the
A.
I do not believe it
same
A. Yes.
Jaime,
Q.
as Jaime
Is
Primo Jaime
same
Jaime,
you
Q.
will
Was there also a Primo
if
Toto?
look?
safety of that individual and that motion
testify that Antonio
called to
have been
will be denied.
likewise
person
known
Hernandez was
organi-
an
was involved with
“Jaime” who
The court’s order is not clear. The court
cocaine.
zation that sold
apparently concluded that
Hernan-
German
and Ordonez made a sufficient
dez-Garcia
the informer would
Ordonez asserts
showing,
affida-
based on Officer Sanchez’
to his defense
material witness
have been a
warrant, that
support
vit in
of the search
(cid:127)
position that
It is Ordonez’
14.
Count
testimony
the informer’s
would have been
supported
have
his the-
would
the informer
helpful
defense. The court made
to their
organization was
in the
ory that his role
materiality
finding
no
of the inform-
on
supervisor, manag-
not that of
menial and
potential testimony
reviewing
after
er’s
alleged
continuing
in the
er,
organizer as
government’s
As
in camera submission.
charge. Officer San-
enterprise
criminal
above,
indepen-
noted
it is evident from our
that the inform-
chez’ affidavit established
that no
dent review of these materials
facts
enterprise, as
er
the leaders
knew
presented by
hierarchy,
workings,
its inner
well as
demonstrate that the informer would
that,
position
memberships. It is Ordonez’
Thus,
helpful
appel-
to the defense.
affidavit,
allegations
on the
based
showing materiality
lant’s
remains unre-
testified that
would have
informer
futed.
Hernandez)
(Antonio
leader
was the
Jaime
States,
Roviaro United
organization.
(1957),
S.Ct.
L.Ed.2d 639
Su-
opposed the motion for
that,
govern-
preme Court held
where the
identity. Affi-
of the informer’s
disclosure
identity
opposes
ment
disclosure of the
from two law enforcement officers
davits
informer,
judge
an
a trial
must balance the
to the court for in camera
were submitted
public’s
protecting
interest in
the flow of
read these affidavits.
review. We have
right to
against
information
the individual’s
any facts that address the
Neither contains
prepare his
353 U.S. at
defense.
questions
by appellants.
factual
raised
The Court declined to formu-
There were no facts
the affidavits sub-
applied
respect
late a fixed rule to be
*15
mitted in camera that establish that Ger-
Instead,
stated:
to disclosure.
the Court
man
the “Jaime”
Hernandez-Garcia was
proper
renders non-dis-
“Whether a
balance
major
cocaine
sold
who was
dealer who
par-
depend
must
on the
closure erroneous
Ordonez,
narcotics to the informer or that
case, taking
ticular circumstances of each
person,
and not some
the leader
other
was
charged, the crime
into consideration
organization.
of the
defenses,
possible significance
possible
testimony, and other rele-
of the informer’s
material,
reviewing
After
this
the district
at
vant factors.
duction of the
it is a
We
balanc-
ing task,
comments whether these fac-
and defense counsel did articu-
court’s brief
given
proper weight. Artic-
quite
particular
late
for the
tors were
their
well
need
findings
However,
express
re-
of these factors in
disclosure.
the information
ulation
facilitate the
strong
in camera
con-
disclosure cases would
ceived
involves
reviewing
of the
court and avoid un-
public
cern for the
interest as well as
work
R.,
name,
any
ci
you
Did
find the
Jaime
A. I do not believe it is.
Q. I take it that Primo Jaime would not be
of the books and records?
the same as Jaime or Jaime H.?
A. Not that I can recall.
River,
That is correct.
name,
A.
you
Q. Did
Jaime
first
find
Q.
least at a minimum there are
So that at
name,
on
of the books and
and last
list,
correct,
three Jaime’s on that
that
three
records?
people?
different
No,
A.
I did not.
That is correct.
A.
trial court.
are
mindful of
balancing
task
We
also
necessary reversals.
extraordinary deviation from the custom-
Roviaro is crit-
by
courts
imposed on trial
ary safeguards provided by the Confronta-
process.
due
preservation of
ical to the
adversary system
tion Clause and the
instructed us that:
Supreme Court has
which results from a reliance on in camera
of an informer’s
“[wjhere the disclosure
proceedings that are conducted
ab-
of his communi-
identity,
of the contents
or
of the defendant and his counsel.
sence
cation,
helpful
to the de-
is relevant
an in camera
During
hearing,
the district
accused, or is essential to a fair
of an
fense
re-
court
is thrust
into the unaccustomed
cause,
privilege
of a
determination
surrogate
sponsibility
serving
as a
advo-
60-61,
way.” 353 U.S. at
give
must
being
defendant without
aware
cate
at 627-628.
of his confidential communications
able
from this record
cannot discern
We
questions
may
to seek his advice about
court determined that the
why
district
helpful
reveal matters
to the defense.
way
privilege must not
give
under the cir
Judge McGlaughlin of the Third Circuit
this case.
If the district
cumstances
expressed this dilemma as follows:
disclosure would have
court believed
judge
privy
trial
is not
to the activi-
[A]
might
have been
“highly relevant
been
cognition
ties or
of an informer and un-
(353
63-64,
U.S. at
helpful to the defense”
less the court is aided
evidence ...
it
629-630)
appellants,
it
of the
77 S.Ct. at
indulge
judicial guessing game
must
in a
dimension to
of constitutional
was error
and rule in favor of one interest at the
poten
solely
of the
deny disclosure
because
possible expense of the other.
If disclosure
danger to the informer.
tial
Day,
(3d
United States
384 F.2d
to a fair determination
is essential
Cir.1967)
J.,
(McGlaughlin,
concurring).
may require disclo
“the trial court
case
procedure
selected
the trial court
sure, and,
if the
withholds the
equivalent
provide
should
a substantial
information, dismiss the action.” 353 U.S.
rights
available to a criminal defendant
at 628.
77 S.Ct.
under the fifth and sixth amendment.
matter,
guess
In
left to
are
the informer was
the instant matter
within the
about
nature
interrogation
by the
produced
knowledge
appears
informer’s
for the accused were not
court. Counsel
convinced the trial court
there
have
they re-
present nor were
allowed to be
“particular
need for disclosure.”
questions for the assist-
quested to submit
circumstances,
Under the
we believe the
testing
memory
ance of the court
grant
failure to
for dis
court’s
motion
Instead,
informer.
credibility
prejudicial
Upon
closure was
error.
re
on
statements
the trial court relied
mand, the district court should conduct de
*16
of an officer
and the factual conclusions
novo in camera
proceedings
require
informer at some
spoken
had
who
its in
complete
that a
record be made of
unspecified time. Officer Sanchez’ affida-
camera
proceedings so that we can deter
had
silent as to whether the informer
vit is
mine if the Romero
balancing
test was
if
been asked
German Hernandez-Garcia
applied
presented
the
to
properly
to
facts
major cocaine
was the “Jaime” the
dealer
Fischer,
v.
See United States
the court.
purchased
from
he had
cocaine ten
whom
783,
(5th
(Reversal
Cir.1976)
is
531 F.2d
788
separate times. No reference to Ordonez
appellate
an
court cannot
required where
in
affidavit. The
appears
Officer Sanchez’
in
from the record whether the
determine
government’s submission to the court
testimony might
fair tri
ensure a
former’s
failed to address the is-
in camera review
al).
Did
of
concern to the accused.
sue
most
possess information which
recognize
conducting
the informer
We
that
the
helpful and relevant
to
in camera
proceedings, where disclo would have been
defense?
presentation of a
requested, is left to the discretion of
the
is
sure
810
Rawlinson,
(9th Cir.1973),
interrogation
This
denied,
984,
1579,
by
appropri
court is an
415 U.S.
94
39
the informer
the
S.Ct.
accommodating
pro
(1974);
the due
L.Ed.2d 881
ate means
see also United States
and the
(9th Cir.),
of the defendant
cess interests
505
Long,
v.
533 F.2d
cert. de
safety of
for the
the
government’s
nied,
829,
88,
concern
429 U.S.
97 S.Ct.
50 L.Ed.2d
Anderson,
509
(1976).
informer.
States
United
92
(9th Cir.),
denied,
724,
cert.
420
730
F.2d
in
prescribe
do not intend to
the
We
910,
831,
States v.
811 enterprise being criminal was conducted at Suppression Hernan- E. German places to be searched. No error oc- dez-Garcia’s Statements appellants’ curred the denial of motions contends that Hernandez-Garcia German suppress. reversible er- court committed the district suppress state- denying his motion to ror Error Alleged H. residence. Instructional at the Palm Street
ments made
“any
opening
in his
brief
argues
He
complains that the court failed
Ordonez
appellant prior to
by
made
statements
give
instruction
a lesser included offense
rights
being
of his Miranda
advised
his
continuing
on
criminal en-
sponte
sua
suppressed by the district
have been
should
§
terprise charge. 21
U.S.C.
25, 1982, the district court
May
court.” On
We need not reach this issue because we
“all state-
suppressing
filed a written order
judgment
have determined that the
must
prior to the defendant
ments made
[Ger-
be reversed as to each count.
It would
being advised of
man Hernandez-Garcia]
purpose
analyze
serve no useful
for us to
appellant is
rights...”
The
his Miranda
applicability
on this
an instruction
record.
the state of the
as to
mistaken
issue since we do not know what evidence
will be
retrial.
offered
the event of a
Admissibility
the Tax Return
F.
complains of the ad
Ordonez
CONCLUSION
years
tax returns for the
mission of his
evidentiary
through
review
1976
1979. We
The
has invited this court to
if the district court
rulings to determine
the entire
to determine
review
record
v. Ka
its discretion. United States
abused
whether there was sufficient circumstantial
(9th
Co.,
trict court made no
prejudicial
court committed
error in deny-
presence
facts,
ing
identity
of sufficient foundational
disclosure of the
of the inform-
er.
I
independent
expert’s interpretation
separately
write
on the issue of the
entries,
admissibility of
ledgers
evidence,
of the coded
to establish their
into
however,
I
because
that the
believe
Ninth
trustworthiness under Dutton. Counsel’s
upon by
Circuit cases relied
majority,
objection
failure to make such an
has com-
although controlling precedent, are incor-
pelled
ques-
us to
this constitutional
review
rectly decided.
plain
tion under the
error rule. A further
consequence of defense counsel’s error is
majority correctly
notes that
government may
that the
have been able to
Circuit,
circuits,
Ninth
unlike other
has re
present sufficient evidence and to articu-
adopt,
fused to
the rule that once a state
theory
satisfy
late a
which would
a trial ment falls within a
excep
well-established
court that
the entries were trustworthy.
hearsay rule,
tion to the
per
it is
se admis
.violating
sible without
the confrontation
We have determined that the dis
clause of
See,
the sixth amendment.1
e.g.,
prejudicial
trict court committed
error in
Tille,
United
615,
States v.
729 F.2d
621
denying
identity
disclosure of the
(9th Cir.1984);
Arbalaez,
United States v.
Thus,
informer.
this matter must be re
1453,
(9th
719 F.2d
Cir.1983);
1459
United
manded for a new trial. We believe it
Perez,
654,
States v.
658 F.2d
660 & n. 5
unfair,
would
under the
circumstances
(9th Cir.1981).
circuit,
In this
only United
case,
of this
bar
from
Bernal,
1475,
(9th
States v.
719 F.2d
attempt
further
to use these entries
Cir.1983),
accepted
has
the rule
per
se
asserted,
for the truth of the matter
if
admissibility.
view,
In my
Bernal
takes
legally
available,
sufficient evidence is
approach
the correct
question.
to this
may satisfy
which
requirements
rule that “statements
fall
within a
co-conspirators exception and the trustwor
‘firmly
exception
rooted’
to the hearsay
requirements
thiness
of the Confrontation
possess
rule presumptively
sufficient indi
Clause and the
law
circuit. There
this
reliability
cia of
satisfy
so as to
the con
fore,
event that
clause,” id.,
frontation
clearly
mandated
try
elects
again,
this matter
the trial
by Supreme
precedent
Court
and should be
court is
proceed
directed to hold de novo
adopted by this circuit.
ings concerning the admissibility of the
I believe that
the Ninth Circuit cases
ledgers,
if offered for the truth of the
rejecting per
se
are based on
asserted,
matter
findings
and to make the
misreading
Roberts,
of Ohio v.
448 U.S.
required by
opinion
authorities
56,
2531,
(1980),
Our cases the under rule significance 901(a) of the distinction between the of the Federal Rules of Evidence. exception “firmly rooted” involved the court found exception unusual v. Roberts the Ohio polio lists consist of contents [t]he when, in Dut- Only at issue in Dutton. smuggled spon- and their names aliens ton, exception to the deals with an court numbers, sors, dates, telephone dollar hearsay widely recog- rules which is not figures, payment. records of Given go beyond question nized a court the must smuggling testimony outlining the the rules in under the techniques operation, the contents clause order resolve the confrontation provided prima facie polio lists case, dealing present In the we are issue. by they evidence that were written [sic] ex- co-conspirator well-established smuggling con- involved someone- ception, exception included an within Furthermore, the lists were spiracy. Federal Rules of Fed.R.Evid. Evidence. house, the head- the Castillo seized from 801(d)(2)(E). Therefore, our decision operation, and this also quarters by Supreme should controlled facie of their provides prima evidence “[reliability Court’s clear statement authenticity. more in a case can be inferred without at 1355. Id. firmly within a where the evidence falls hearsay exception.” rooted v. Rob- Ohio now ledgers at issue the case before erts, U.S. at 100 S.Ct. at organization’s members us identified the into our Evans not enter Dutton v. should cash and co- and listed disbursements of analysis. ledgers, bearing finger- caine. The defendants, found in a prints view, my approach to the the correct headquarters serving house ledgers case question in this whether operation. transactions with Undercover set two-step analysis are admissible conspiracy expendi- members of DeGudino, 722 out States United to en- were correlated First, tures defendants Cir.1983). 1355-56 F.2d DeGudino, ledgers. tries in the As ledgers or identi- must be authenticated here did not -rebut 901(a). Second, ledg- defendants Fed.R.Evid. fied. ledgers as written co-conspirator authenticating shown to be ers must be *20 56, 2531, conspiracy (1980), someone distribute 65 L.Ed.2d 597 drugs. the and with cases of other circuits. The isolation of this circuit question on the next turned to the in- second DeGudino per mistaken, se is a indeed quiry: polio whether the lists were admissi- puzzling, Supreme stance. Since the Court co-conspirator’s exception. ble under drafted the rules within included found that The court Evidence, Rules of Federal can as- clearly of the lists the contents show that sume that Court did not these believe their author was familiar with the work- rules violated confrontation clause. conspiracy. ings The fact that the pay- contain dates and lists records they
ment is evidence that written were
during conspiracy. the course of
names, figures, telephone dollar are
numbers evidence that the lists were
utilized to maintain information neces-
sary smuggling to continue the activities conspiracy. Since this evidence America, UNITED STATES by any not countered evidence that Plaintiff-Appellee, lists were time made at other during conspiracy
than that the v. were not made lists to further con- O’CONNOR, Michael spiracy, we hold that the lists ad- Defendant-Appellant. co-conspirator’s missible statements. America, UNITED STATES Id. at 1856. Plaintiff-Appellee, regarding Similar circumstantial evidence author(s) purpose, contents and v. ledgers exists in present case. Be- ESPINOSA-VELEZ, Leon Mario cause this evidence was not rebutted Defendant-Appellant. defendants, ledgers here are admissible co-conspirator’s America, statements. UNITED STATES of Plaintiff-Appellee,
Although unclear, argument their ap- pellants apparently also contend that even v. ledgers if the are pur- admissible for the CASTANEDA, Luis Eduardo poses proving the existence the con- Defendant-Appellant. spiracy, ledgers still must surmount “reliability” another inquiry in order to America, UNITED STATES of sustain a conviction on the substantive Plaintiff-Appellee, Appellant's counts. Supplemental Brief at v. argument 8. This is without merit. The CASTANO-MEDINA, Jose Libardo by appellants support cases cited of this Defendant-Appellant. proposition actually are concerned question adequate different whether an 82-1566, Nos. 82-1573 to 82-1575. foundation had been laid to establish ad- States Appeals, United Court of missibility of statements under co-con- Ninth Circuit. spirator exception. United States Wein- er, Cir.1978); (9th F.2d United Argued July Submitted 1983. Robinson, States F.2d July 12, Decided Cir.1981). sum, I believe that the Ninth Circuit cases on confrontation issue clause are Roberts,
in conflict with Ohio v.