United States v. Ronald Bruce Dixon

562 F.2d 1138 2 Fed. R. Evid. Serv. 357 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bruce DIXON, Defendant-Appellant. No. 76-2446. United States Court of Appeals, Ninth Circuit. July 13, 1977. Rehearing and Rehearing En Banc Denied Nov. 8, 1977. Robert W. Ripley, San Diego, Cal., argued for defendant-appellant. Harry D. Steward, U. S. Atty., Jeff Arbetman, Asst. U. S. Atty., (on the brief), San Diego, Cal., argued for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, * District judge. WALLACE, Circuit Judge: 1 Dixon was convicted after a jury trial of aiding and abetting the possession of 454 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1), and of conspiracy, in violation of 21 U.S.C. § 846 . On appeal, he contends (1) that the evidence was insufficient to sustain his conviction; (2) that a hearsay statement was improperly admitted; and (3) that the prosecutor made improper and prejudicial remarks in his closing argument. We affirm. I. 2 The government called two witnesses, Gregory Miller, an undercover police…

Dixon was convicted after a jury trial of aiding and abetting the possession of 454 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1), and of conspiracy, in violation of 21 U.S.C. § 846 . On appeal, he contends (1) that the evidence was insufficient to sustain his conviction; (2) that a hearsay statement was improperly admitted; and (3) that the prosecutor made improper and prejudicial remarks in his closing argument. We affirm.

I.

The government called two witnesses, Gregory Miller, an undercover police agent, and Edward Becker, the police officer who arrested Dixon. Miller testified that between 6:00 and 7:00 p. m. on March 5,1976, an informer introduced him to Michael Lloyd Johnson at Johnson’s residence. Previous to this meeting, the informer and another undercover police agent, Starks, had negotiated with Johnson for the purchase of one pound of cocaine for approximately $19,600. Miller was to consummate the deal. Johnson asked Miller to show him the money. Miller responded that he had the money but that it was a short distance from the residence. Miller, Johnson and the informer then went to a nearby service station where they met Robert…

dissenting:

I do not think the hearsay statement was properly admitted under the coconspirator exception. Fed.R.Evid. 801(d)(2)(E). In this case I fear that the overwhelming evidence of the conspiracy has overflowed to enhance the extremely thin evidence linking Dixon to it. His presence in the car *1144 could have an infinite number of innocent explanations; and his attempt to separate himself from an encounter with the police under the circumstances noted is hardly ' surprising.

Until now, the “slight evidence” required to link a defendant to an already proven conspiracy has been substantially more than this. As the majority notes, the evidence of the defendant’s connection, independent of the hearsay statement, must support a prima facie case; i. e., it must be sufficient to go to the jury. This circuit has recently held more extensive evidence of involvement to be insufficient when measured against the slight-evidence standard. United States v. Peterson, 549 F.2d 654, 657-8 (9th Cir. 1977).

Of course, there are suspicious circumstances. If defendants could be forced to answer questions, one could think of several for Dixon. But, viewing the government’s evidence against him…