United States v. David v. Smith, United States of America v. Matthew Koalkin

David Smith was convicted by a jury of operating a continuous criminal enterprise in violation of 21 U.S.C. § 848 , 36 counts of aiding and abetting the distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A), as well as three counts of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952 (a)(3). Matthew Koalkin was convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A) and 18 U.S.C. § 2 , aiding and abetting travel in interstate commerce in aid of racketeering in violation of 18 U.S.C. § 1952 (a)(2) and (3), and attempted distribution of cocaine in violation of 21 U.S.C. § 846 .

Smith and Koalkin appeal their convictions and raise a multiplicity of issues. The principal issue we address in this opinion is the admission of a calendar/drug ledger as a co-conspirator statement under Fed.R.Evid. 801(d)(2)(E). In United States v. Mouzin, 785 F.2d 682, 692 (9th Cir.1986), cert. denied, 479 U.S. 985 , 107 S.Ct. 574 , 93 L.Ed.2d 577 (1986), we held that a calendar/drug ledger was inadmissible as a co-conspirator statement because the government failed to…