argued submitted san francisco california: February 1, 1993.
Appeal from the United States District Court for the Northern District of California. D.C. No. CR-89-602-EFL. Eugene F. Lynch, District Judge, Presiding
Before: Farris, Poole, Wiggins, Circuit Judges
Defendant James L. Beasley appeals his jury conviction for conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. He also appeals his sentence for the conspiracy conviction and for guilty pleas to violations of 18 U.S.C. § 371 (conspiracy), 26 U.S.C. § 7201 (tax evasion), 31 U.S.C. §§ 5324(3) & 5322 (unlawful structuring of currency transactions), 18 U.S.C. § 1014 (false statement in connection with a loan application), and 18 U.S.C.§§ 1512 & 1515 (tampering with a witness). This court has jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.
The government offered testimony that Beasley was the leader of a large San Francisco-based drug operation. Several witnesses testified that they had seen Beasley negotiate large cocaine purchases and sales. There was testimony that he was in possession of large amounts of cash, up to $2,500,000, from drug sales on several occasions. Witnesses testified of Beasley's involvement in a 50 kilogram cocaine deal in June of 1987, a 75 kilogram deal in December of that year, and a 50 kilogram deal in March of 1989. The government presented an abundance of additional evidence, which will be discussed as relevant below.
Beasley challenges the district court's decision to admit into evidence a drug ledger and a furniture tag taken from Carolyn Davis's purse. Beasley maintains that the documents are hearsay and that they were admitted improperly under the exception to the hearsay rule for statements of a coconspirator. In United States v. Huguez-Ibarra, 954 F.2d 546 (9th Cir. 1992), this court ruled that as long as drug ledgers are not being admitted to prove the truth of the writings contained therein, they are not inadmissible evidence under the hearsay rules. Id. at 552. The court concluded that "such evidence may come in if there is a sufficient showing of relevance and authenticity and if its probative value outweighs undue prejudice." Id. at 552-53. Huguez-Ibarra clearly indicates that the documents were not hearsay. Therefore, we review the district court's determination that the evidence was relevant and its implicit determination that the evidence was not unduly prejudicial only for an abuse of discretion. See id. at 553; United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991).
Here, as in Huguez-Ibarra, the ledger and furniture tag were sufficiently authenticated. See 954 F.2d at 552-53. Moreover, the presence of a drug ledger and the furniture tag in Davis's purse was relevant to bolster the government's evidence and to disprove Davis and Frye's explanation as to why they were in Los Angeles. We simply cannot say that the district court abused its discretion in ruling that the ledger and furniture tag were relevant evidence. Furthermore, Beasley has failed to show any prejudice that substantially outweighed the evidence's probative value. Accordingly, we affirm the district court's decision to admit the documents into evidence.
Beasley also contends that the district court erred when it admitted statements made by Davis to the police when she was stopped at the Ontario airport. Before a statement can be admitted against a defendant as a statement of a co-conspirator, there must be a preliminary showing by independent proof of the conspiracy's existence and the declarant's and the defendant's participation in the conspiracy. United States v. Peralta, 941 F.2d 1003, 1006 (9th Cir. 1991), cert. denied, 112 S. Ct. 1484 (1992). In addition, the statement must be made in furtherance and during the existence of the conspiracy. Id. Historically, this court has reviewed these preliminary determinations de novo. See United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). However, the Supreme Court has suggested that these matters should be reviewed only for clear error. See Bourjaily v. United States, 483 U.S. 171, 175 & 181 (1987) (Court indicated that these preliminary determinations involved questions of fact and concluded that the factfinding was not clearly erroneous). We need not decide which standard applies here because the district court did not err in its Conclusions as to these preliminary matters under either standard.
The only inquiry left then is whether the district court abused its discretion in determining to admit the evidence. See Peralta, 941 F.2d at 1006. Beasley points to nothing that would suggest that the district court has abused its discretion. The statements consisted of nothing more than Davis's contention that she was in Los Angeles on vacation. We conclude that the district court did not err by admitting the statements.
Beasley next contends that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), Federal Rule Criminal Procedure 16, and Roviaro v. United States, 353 U.S. 53 (1957), when it failed to inform him that one of the witnesses that he called to impeach a government witness had been a government informant. A prosecutor's duty to produce evidence under Brady is reviewed de novo. United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir. 1991), cert. denied, 112 S. Ct. 1585 (1992).
In Brady the Supreme Court held that a defendant has a due process right to favorable evidence in the prosecution's possession that is material to guilt or punishment. 373 U.S. at 87. Beasley complains because the government failed to disclose material in its possession that proved valuable in impeaching Beasley's own witness. The thrust of Brady, however, is to ensure that exculpatory evidence is revealed to the defense, not to allow the defense to see all the incriminating information the government may have on the defendant. See 373 U.S. at 87-68. We conclude that inasmuch as no ...