*1 Trustees, Burroughs Board 1131-32 L.Ed.2d 543 is AF- judgment of the district court
FIRMED. America,
UNITED STATES of
Plaintiff-Appellee, CAWLEY,
Ralph Collins
Defendant-Appellant.
No. 79-1570. Appeals, Court of
Ninth Circuit. April
Argued and Submitted 1980. Sept.
Decided
Rehearing Denied Nov.
1347 *2 concerning “tips by evidence
say Drug Enforcement Admin- admitted, 4) improperly istration was hearsay concerning statements evidence admitted, improperly wife *3 process due because the that he denied evidence as failed disclose required by Brady Maryland, 18 and December Between December several agent DEA from a confidential informant that Mexi- up pound to a going man to deliver can Cawley, Cawley going heroin to pick his up in van to to drive Nevada Cawley returning and would be heroin lived, Salem, where he with the Oregon, 21 or on drugs early late on December agent, request 22. At the December up a continuous police local detectives set Cawley’s beginning at surveillance of house m. December p. 11:12 on on Cawley At 1:40 a. m. December co-defendant, Lopez-Diaz, Raymond his and parked in van and in front arrived The detectives ordered house. Ransom, Blackman, Rogers & Marc D. van, Cawley out Blackman, Portland, Or., defendant-ap- for them, read them frisked handcuffed pellant. were rights, they told them were their Bauman, Atty., Upon Asst. ques- Kenneth C. for the DEA. being detained Or., Portland, plaintiff-appellee. tioning, Cawley stated that van be-
longed but his he had to drive it. detec- permission he Cawley tive asked whether would con- Cawley After sent to a of the van. search SKELTON, Judge,* Before and FARRIS would, him said he the detective informed PREGERSON, Judges. Circuit that he did have to consent and read a prepared on “consent statement contained FARRIS, Judge: Circuit Cawley what asked to search” card. Ralph appeals his convic- Collins happen if he refused to consent and the possession tion for with intent to distribute him he could tell what detective said heroin and cocaine in violation of U.S.C. verbally they would do. con- then 1) 841(a)(1). primary His contentions are § search, sign sented refused unconstitutionally subjected to that he was consent card. 2) jeopardy, double that evidence obtained his searched van and found in a search of van should The detective warrantless cases, suppressed pillow two which had been because his consent heroin between other, inside voluntary, placed, the search was not that hear- one form * Skelton, Byron Judge, Senior Honorable G. Claims, sitting by desig- United States Court of nation. personally he admitted that he amination personal other containing toiletries and
bag he had offered to belong and that items, found to used cocaine later arrived, Cawley and information on agents provide When the DEA tak- formally arrested and exchange for consideration drug dealers convicted, local sheriff’s office. en to the Cawley was in his case. After govern attorney discovered that escapee was a federal Lopez-Diaz, who judge before a letter to the ment had sent time, agreement plea entered into was held recommend Cawley’s second trial testify against Cawley agreed which he Lopez-Diaz.1 treatment ing favorable one count for a dismissal of in return trial on the stipulated him and a subject first contends that he was count. other because the trial jeopardy to double twice. A mistrial was Cawley was tried mistrial and ordered improperly declared a trial, at the conclusion of the first should retrial. He *4 a jury judge the foreman advised the instruction, after Allen admonish- given an reach a jury that the was unable to unani- duty reach a verdict ing jury the of its proceeding mous verdict. In an unrecorded to deter- directing further deliberations present, judge which counsel were the at truly dead- jury whether the mine jury the foreman and apparently questioned locked, should have consulted or at least consulting without then declared a mistrial positions on the issue. counsel for their charge. Allen giving counsel or declared and a may A mistrial be trial, Lopez-Diaz, police the second the At violating without may defendant be retried detectives, agent govern- and a the provision the Fifth Amendment’s against Cawley. ment chemist testified (1) when “there is either jeopardy double objection, allowed judge Over the discharge of the necessity’ for the ‘manifest regarding the testify the DEA (2) pub or ‘the ends of original proceedings, response actions he took in to the infor- justice’ otherwise be defeated.” lic would the tips, mant’s but not content 1377, 1386 McCarthy, Arnold v. themselves, gave limiting the a 1978). Jury deadlock is a classic only instruction that the evidence was ad- necessity for a mis example of manifest agent’s the course of con- explain mitted to Washington, Cawley’s objection, Also over the trial. Arizona duct. 824, 832-833, testify judge Lopez-Diaz allowed 98 S.Ct. States, common law by Cawley’s (1978); Rogers
statements made v. United Campbell, during phone judge’s con- trial The early he had with her in Decem- versations he or she decision to declare a mistrial when ber, 1978, concerning purchase the deadlocked is accorded considers heroin found in the van. reviewing a be great by deference judge position is in the best cause the trial testimony In his on direct examina the relevant facts. Arizona to assess tion, Lopez-Diaz acknowledged that he was at 509-10 and Washington, supra, 434 U.S. escapee, living a federal that he was under n.28; n.28, Rogers at 832-833 and a false name and had false identification in States, These fac supra v. United at 1317. name, that he had been convicted for tors include offenses and that he had prior narcotics that it cannot jury’s opinion collective plea bargain agree entered into a written length of the trial and com- ment, agree, He testified that as described. issues, length of time plexity of the prom contained all the agreement written deliberated, whether the de- has by ises made to him timely objection a exchange testimony. for his On cross-ex- fendant has made yet been sentenced. convicted but had not 1. The letter was sent after testified already at first trial. had 851; supra, Washington, Arizona mistrial, exhaustion and the effects of at jury. or coercion on al would have objection by Cawley timely States, supra at 1317. An Rogers United reconsider whether judge lowed these factors court will consider appellate been reached. had indeed point of coercion judge properly determining whether here, Although length of deliberation Arnold v. his her discretion. exercised itself, question raises a taken at 1386. McCarthy, supra a mis justify was too short to whether it is factor most critical trial, in his discussion some factor revealed it is unable to jury’s own statement may have convinced with the foreman States, Rogers v. United reach a verdict. judge deliberation that further 1317; McCarthy, supra supra at Arnold therefore, was, futile and be jury’s statement rec necessity for a mistrial. We manifest declaring ground alone is an insufficient upon govern ognize that burden See, mis justify declaring the order ment entered over the defend trial if the order is objec objection, here there was no ant’s a communication Upon receiving supra, 434 Washington, tion. Arizona agreement can jury stating from 830. We cannot reached, question the must be on the limited record before us conclude independently to determine whether abused discretion.2 might further deliberations overcome *5 McCarthy, supra v. deadlock. Arnold con Cawley contends that his 1387; See, supra. United States v. freely was not sent to the search of van is a can determine that there appropriately freely consent was given. Whether necessity by ques for a mistrial manifest of given question is a fact and voluntarily Rogers v. tioning only foreman. finding will not be over the district court’s States, supra at 1317. He need United clearly turned unless erroneous. United nor with give instruction consult a further 760, Sierra-Hernandez, v. 581 F.2d States See, supra v. counsel. See United States 936, denied, (9th Cir.), 439 99 764 cert. (1978); 333, United S.Ct. sent a note to the Here 208, (9th v. F.2d 212 Dubrofsky, 581 States agree after 3½ stating that it could not 1978). finding Here of consent is Cir. deliberation, following of a trial of hours was erroneous. clearly Since concerning 2½ which were not days, issues nothing indicate to the detective conduct to was very complex. the note sent Since belonged pillowcases ing the search that mid-afternoon, unlikely it is about judge did not err in Lopez-Diaz, However, Cawley jury was exhausted. scope of finding they were within that objected does that he to the not contend of motion Cawley’s consent. The denial declaration of a suppress not error. object, His failure to fact Cawley also contends that place of what took we no record prejudicial error when he judge committed declared, is when the mistrial was critical tips admitted evidence of is when the here. A mistrial agent, tips both protect the de because is deadlocked as much Although the con hearsay and irrelevant. being by fendant from convicted coerced stated, was not Caw messages tent of the prosecution fair as allow the testimony con agent’s present impartial ley its chance to case an tip See, cerning after each revealed jury. supra United v. his activities See States present opportunity this had the complete pursuant court with a more Fed.R.App.P. record 10(c). 1350 there was Cawley argues that tips and that substance of the here to establish evidence pointed directly insufficient tips
would infer that
conspir
involved in a
drugs
Campbell
with
Cawley’s involvement
Lopez-Diaz.
wife’s van.
He ar
drugs
in his
acy
with
transportation
instruction,
by Lopez-Diaz
proper
testimony
with a
no
gues that
determining
evidence of
as
if there
may
court
admit such
be considered
should
why an offi
explain
argument.
reject
was admitted here
We
conspiracy.
ais
investigation as he did.
own ac
testimony
cer conducted
about his
Lopez-Diaz’s
Brown,
10, 12 (9th
United States
observed
and what he
tions and statements
Walling, 486
United States
is ad
Cir.
and statements
Cawley’s actions
denied,
1973), cert.
(9th
234
F.2d
his conversa
testimony missible. His
L.Ed.2d 479
94
39
sufficient to make
tions
(1974); United States
distrib
conspiracy to
prima facie case of a
denied,
Cir.),
409 U.S.
cert.
heroin,
requires.
rule
which is all the
ute
(1972);
34 L.Ed.2d
Calaway, supra at 612.
States,
328, 332
Busby v. United
exist, evi
conspiracy is shown
Once a
867, 82
1961), cert.
reasonable
establishing beyond a
dence
(1962).
connection —however
doubt a defendant’s
conspiracy
sufficient
slight
that—to
the dis
Cawley contends
knowing participation
his conviction
Lopez-Diaz to
allowing
court erred in
trict
Dunn, 564 F.2d
States
it. United
Kathy Campbell
testify to the statements
States
United
See
conversations between
during phone
made
be
may
Testa,
evidence
853. The
supra at
The court ruled that
her and
Turner,
States
United
circumstantial.
under Rule
the statements were admissible
denied, 429
Evidence,
Cir.),
801(d)
Rules of
143, 162 (9th
of the Federal
provides:
which
hearsay
is not
if
.
A statement
‘relatively
act of
innocent
“An otherwise
party
is offered
statement
[t]he
*6
in the
viewed
moment,’
when
may,
slight
.
.
.a
statement
a cocon-
and is
circumstances,
surrounding
of
context
during the course and
spirator
party
of a
complicity.
.
of
inference
justify an
conspiracy.
in
furtherance
612,
Calaway, supra
v.
where United States
statements are admissible even
Such
Ragland, 375 F.2d
quoting
v.
United States
charge
conspiracy.
no
of
United
there is
471,
1967).
(2nd
Here there
Snow,
730,
(9th
478
Cir.
F.2d
736
States v.
521
Cir.
van in which the heroin
denied,
1090,
evidence that
1975),
96
cert.
423
S.Ct.
U.S.
Kathy
883,
belonged
was found
(1976);
101
United
v.
47 L.Ed.2d
States
driving the van with her
253,
Cir.),
Cawley was
Perna,
(6th
cert.
that
491 F.2d
255
Cawley lived
934,
2646,
Campbell
that
and
denied,
permission,
41
417
94
U.S.
that
husband and
together as
(1974).
237
The statements can be
L.Ed.2d
ad-
evidence,
appeared
Lopez-Diaz’s
in
“Kathy”
name
only
admitted
if
is sufficient
Cawley’s name and
statements,
along
book
with
that
dress
apart from the
establish
number,
called
phone
that
once
conspiracy
speaker
existed and that
wom-
Cawley’s phone
told the
number and
part
conspir
and the
were
defendant
her-
could obtain
Dixon,
1138, an who answered that he
acy.
United States
oin,
Cawley’s
denied,
Lopez-Diaz later called
1977),
that
(9th
cert.
435
1141
Cir.
U.S.
Cawley
bring-
1494,
(1978); number and talked
98 S.Ct.
the woman
Oregon after
Testa,
ing the heroin to
852
United States
Cawley,
phone
who answered handed
Calaway,
Cir.
United States
Bend,
from
his home
Cawley
that
called
1975),
and
524
612
cert. de
F.2d
Lopez-Diaz. This
picking up
Oregon, after
nied,
47 L.Ed.2d
424
96 S.Ct.
infer-
justify an
evidence was sufficient
(1976).
733
1351
other
We have reviewed
conten-
Campbell was involved in a
ence that
conspiracy
to distribute heroin
tions
find them
be without merit.
did
The district
not
Affirmed.
admitting
in
her statements.
err
he
de
Cawley contends that
PREGERSON,
Judge (dissenting):
Circuit
Maryland,
process
Brady
due
under
nied
days
testimony on
Following two
of trial
1194,
wise exist where that evidence is cumula-
tive collateral. Shelton, Brady
The letter was not material. timely object (a objection one of several failure to after the trial determining sponte, pre whether a sua declared a does not factors useful mistrial properly clude our consideration of this issue. Cf. Ar exercised his discretion to declare F.2d.1377, McCarthy, jury). nold v. 1386-87 a deadlocked