Opinion
Criminal No. 03-0006-2
December 10, 2003
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KE'S MOTION TO EXCLUDE EVIDENCE
THIS MATTER came before the court on Friday, December 5, 2003, for hearing of defendant Ke's motion to exclude certain evidence. Plaintiff appeared by and through its attorney, Assistant U.S. Attorney Patrick). Smith; defendant appeared personally and by and through his attorney, G. Anthony Long.
THE COURT, having considered the written and oral arguments of counsel, hereby grants in part and denies in part defendant Ke's motion to exclude certain evidence.
On March 15, 2003, plaintiff filed a one-count criminal complaint charging defendant Ke, Kazuo Toda, and others with one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of crystal methamphetamine, more commonly called "ice," in violation of 21 U.S.C. § 841(b)(1)(A) and 846. The complaint alleged a conspiracy lasting from April, 1999, to August, 2002, which had at least seven conspirators: this defendant, Toda, and Jacinto Maranan, as well as four persons identified only as "CWs." The CWs have since been identified by plaintiff as Masakazu Imamura; Barrel Quitugua; Wei, Shi Zhong; and, Maria Emul. The complaint also set out acts of the conspirators in furtherance of the conspiracy, including "ice" trafficking activity, and described the relationships between the conspirators.
On April 2, 2003, the grand jury returned an indictment charging the one count of conspiracy that had been alleged in the complaint. Plaintiff has produced Fed.R.Crim.P. 16 discovery materials, including reports detailing "ice" seizures from various co-conspirators and other "ice" trafficking activities of the conspiracy. The discovery also included a series of audio tapes between Commonwealth and Drug Enforcement Agency Task Force ("CNMI/DEA Task Force") informants and members of the conspiracy.
Additionally, on November 21, 2003, plaintiff provided certain Jencks Act materials: debriefing memos regarding Quitugua, Wei, and Emul. These memos detail the way in which the charged conspiracy operated. According to the discovery provided to date, the conspiracy involved Toda, who arranged for a supply of "ice" from Japan and then regularly provided it to Ke and Maranan. Ke in turn supplied Quitugua, Wei, Emul, as well as others, some of whom are identified in the debriefing memos. The court concludes that the scope and nature of the charged conspiracy, and the manner in which plaintiff intends to prove it, are set out in quite some detail in the discovery materials provided to this defendant.
Further, after his arrest on March 21, 2003, this defendant gave a statement to the CNMI/DEA Task Force officers, which detailed the existence of the conspiracy as well as his knowing participation in it. Ke identified his Japanese source of supply (Toda), and admitted to distributing "ice" to Wei, who defendant knew sold it in turn to others. This defendant also admitted giving "ice" to a Chamorro male he identified as Peter, and that he understood the "ice" was for re-sale by Peter to others.
Defendant Ke argues that several pieces of evidence should be excluded from the trial on two grounds: first, that the evidence is either legally irrelevant or only marginally relevant (and, consequently, that its probative value is outweighed by the danger of unfair prejudice to defendant, Fed.R.Evid. 403), and, second, that plaintiff wishes to introduce it primarily to inflame the passions of the jury against defendant.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Such evidence is admissible, unless otherwise provided. Fed.R.Evid. 402. "Unfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g. that aspect of the evidence which make conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude towards the defendant wholly apart from its judgment as to his guilt of innocence of the crime charged." United States v. Bailleaux, 685 F.2d 1103, 1111 n. 2 (9th Cir. 1982).
Here, relevance can be determined by considering the elements of the offense of conspiracy. "To establish a drug conspiracy, the government must prove: 1) an agreement to accomplish an illegal objective; and 2) the intent to commit the underlying offense." United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997). Because of the secretive and clandestine nature of drug conspiracies, "most conspiracy convictions are based on circumstantial evidence, and we allow juries to draw inferences as to the existence of an agreement from the defendants' conduct." Id. "We have thus recognized that `[a] conspiracy may be proven by circumstantial evidence that the defendants acted together with a common goal'." Id. (quoting United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1986)). "[A] jury may infer the existence of an agreement `if there be concert of action, all the parties are working together understandingly, with a single design for the accomplishment of a common purpose'." Iriarte-Ortega, 113 F.3d at 1024 ( quoting United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980)). See also United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978) (circumstantial evidence is intrinsically no different than direct evidence; circumstantial evidence can be used to prove any fact, including facts from which another fact is inferred).
Defendant's first argument is that the court should exclude as legally irrelevant any evidence of uncharged crimes; i.e. "substantive distribution or possession offenses." (Motion at 3). Defendant argues that since plaintiff does not need to prove an overt act as an element of a § 846 conspiracy, evidence that proves uncharged overt acts or substantive offenses is irrelevant, id., and is inadmissible under Fed.R.Evid. 404(b).
United States v. Shabani, 513 U.S. 10, 115 S.Ct.382 (1994) established that 21 U.S.C. § 846 imposes no requirement that plaintiff prove an overt act as an element of a drug conspiracy. However, neither Shabani nor any of the other cases defendant cites hold that proof of uncharged acts within the scope of the conspiracy is irrelevant as to other elements of the crime which are to be decided by the jury; here, the existence of the conspiracy and whether the defendant was a knowing participant in it. The Ninth Circuit has approved the introduction of uncharged conduct as direct evidence of a drug conspiracy. In United States v. Uriarte, 575 F.2d 215, 217 (9th Cir. 1978), the court approved admission of a defendant's prior specific act of drug trafficking — even though it was uncharged — finding that it was direct proof of the conspiracy in operation. See also United States v. Vaccaro, 816 F.2d 443 (9th Cir. 1987) (uncharged acts within the scope of the charged conspiracy are admissible to prove its existence); United States v. Diaz, 176 F.3d 52, 78 (2nd Cir. 1999) (uncharged acts may be admissible as direct evidence of conspiracy). The court concludes that whether or not the indictment charges overt acts is not part of its determination as to the admissibility of such acts. Oral testimony of witnesses about specific instances of "ice" trafficking within the scope of the conspiracy is relevant.
Further, the court finds that evidence of repetitive "ice" trafficking among a core group of participants tends to show, circumstantially, the existence of their illegal agreement to distribute "ice." Proof of the acts of the conspirators is admissible evidence of the existence of a conspiracy. See United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (inferences of existence of conspiracy may be drawn from concert of action and working together of parties; agreement need not be explicit, but may be inferred from circumstantial evidence).
Conspiracy convictions based on circumstantial evidence of the acts of a defendant and his co-conspirators have been routinely upheld. See e.g. United States v. Barragan, 263 F.3d 919, 922-23 (9th Cir. 2001) (defendant's drug sales, meetings with co-conspirators, and receipt of proceeds of drug sales sufficient basis for inference of guilt based on circumstantial evidence); United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001) (defendant's connection to conspiracy was inferred from circumstantial evidence, which included his presence, the purchase of items necessary for success of venture, and a substantial financial relationship to conspiracy); United States v. Hubbard, 96 F.3d at 1227 (9th Cir. 1996) (evidence of coordination, interaction, and cooperation among co-conspirators in odometer tampering conspiracy showed existence of conspiracy). The Ninth Circuit has afforded generous latitude to prosecutors in proving drug cases. See e.g. United States v. Fagan, 996 F.2d 1009, 1015-16 (9th Cir. 1993) (where evidence of possession of a gun was deemed admissible under Fed.R.Evid. 403 because guns are tools of the drug trade).
Evidence of acts that defendant and other conspirators committed in furtherance of the charged conspiracy is relevant to the charge because it helps prove both the existence of the conspiracy and this defendant's participation in it. This includes evidence of defendant's association with "ice" traffickers, which tends to show that such repeated contacts are knowing. Further, defendant Ke's own acts may also be used to prove the "state of mind" element. See Brady, supra 579 F.2d at 1127 n. 1 (intent may be proved circumstantially and can rarely be proved by other means). Proof that defendant personally distributed "ice" to his co-conspirators is probative of his knowing participation in the conspiracy charged and the probative value outweighs the prejudice to him.
Similarly, all of the other exhibits which defendant seeks to have excluded are relevant, not unfairly prejudicial, and admissible under the authority of the cases. The only exhibits which deserve more consideration are proposed exhibits 4, 5, and 6. These items are drug paraphernalia found in the possession of a member of the conspiracy during its existence and they are relevant on that basis. However, the court agrees with plaintiff "that there would be some unfairly prejudicial effect from the introduction of . . . the pipe," and because it concludes that possession of the pipe by a co-conspirator is too remote to the conspiracy, evidence of the pipe will be excluded and defendant's motion is granted as to that one exhibit. On the other hand, the two plastic bags containing methamphetamine residue are relevant and admissible. Both parties may examine plaintiff's expert and argue to the jury the weight which should be accorded such evidence. Photographs of members of the conspiracy are relevant to the issue of the existence of the conspiracy and the identity of its members.
The court also agrees that because plaintiff is offering as direct evidence the exhibits defendant seeks to exclude, Fed.R.Evid. 404(b) has no application. See e.g. United States v. Boone, 951 F.2d 1526 (9th Cir. 1991) ( citing United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir. 1987)); United States v. King, 200 F.3d 1207, 1214-15 (9th Cir. 1999) (direct evidence that is "inextricably intertwined" with crime charged is not subject to Rule 404(b)); United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (evidence that is "inextricably intertwined" with the crime charged is not subject to Rule 404(b)).
Defendant's Fed.R.Civ.P.16 objection to plaintiff's exhibits 24 and 25 was withdrawn, assuming he receives access to them within the next week.
The court finds that proof of defendant's acts and those of his co-conspirators within the scope of the alleged conspiracy are probative of the two elements that plaintiff must prove beyond a reasonable doubt at trial. Plaintiff is entitled to offer proof of such acts, and to argue that the existence of the conspiracy can also be inferred from the circumstantial evidence of what the conspirators did together. Similarly, defendant's knowing participation in the alleged conspiracy may be inferred from his repeated distribution of "ice" with his co-conspirators. Federal Rule of Evidence 404(b) has no application here because the evidence at issue in this motion will be offered as direct, not circumstantial, proof of the crime charged.
FOR THE FOREGOING REASONS, defendant Ke's motion to exclude evidence of the pipe found in Ms. Emul's purse is granted, the motion to exclude is denied as to the other specified pieces of evidence, and defendant's motion as to plaintiff's exhibits 24 and 25 is withdrawn, subject to being re-filed if defendant does not receive access to them within one week.