United States v. Stephen Federico

dissenting.

I dissent.

I would reverse the judgment on the grounds that the evidence is legally insufficient to connect appellant to the commission of any crime. In addition, I would hold that the district court’s errors in the admission of the binoculars and the notebook were prejudicial in view of the woeful weakness of the government’s case against Federico.

The government produced overwhelming evidence including a judicial confession that John Miller agreed to sell cocaine to a law *1345 enforcement agent. We are not, however, concerned here with the sufficiency of the evidence against Miller. Putting aside Miller’s hearsay statement to agent Cintron, the evidence produced against Federico consisted of the following facts.

One. Miller parked his car in a parking lot next to a brown Pontiac containing Federico who was in the driver’s seat, and a woman, seated on the passenger side of the vehicle.

Two. Miller approached the passenger side of the vehicle. There is no evidence in the record which would establish or from which it could be inferred that this meeting was prearranged or a chance meeting. Nor is there any evidence that Federico had ever met or seen Miller…

Federico appeals his conviction of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 ; possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1); and distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1). He challenges the sufficiency of the evidence to support his conviction on all three counts and asserts that certain evidence was erroneously admitted.

A. Facts.

Wayne Gilbert, a DEA informant, and John Miller conversed by telephone on August 1, August 6, and August 7, 1979. Their conversations were taped with Gilbert’s consent. Miller discussed obtaining *1340 cocaine to sell to Gilbert 1 and arranged to deliver it to Gilbert at Los Angeles International Airport on August 8.

Gilbert flew to Los Angeles as planned. There he met with DEA agents to coordinate surveillance of the drug transaction. Agent Cintron, posing as Gilbert’s friend, waited with him at the airport until Miller arrived. When Miller did arrive, he viewed $33,000 in cash, which had been placed in an airport locker, to verify that Gilbert had the money for the cocaine. Miller stated he did not have the cocaine with him but would obtain the cocaine…

658 F.2d 1337 9 Fed. R. Evid. Serv. 260 UNITED STATES of America, Plaintiff-Appellee, v. Stephen FEDERICO, Defendant-Appellant. No. 79-1684. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 3, 1980. Decided Oct. 13, 1981. As Amended Oct. 21, 1981. Victor Kenton, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. Stephen Kramer, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before GOODWIN and ALARCON, Circuit Judges, and THOMPSON, * District Judge. GOODWIN, Circuit Judge. 1 Federico appeals his conviction of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 ; possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1); and distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1). He challenges the sufficiency of the evidence to support his conviction on all three counts and asserts that certain evidence was erroneously admitted. 2 A. Facts. 3 Wayne Gilbert, a DEA informant, and John Miller conversed by telephone on August 1, August 6, and August 7, 1979. Their…