United States v. Jaramillo-Suarez

CANBY, Circuit Judge. Fabio Jaramillo-Suarez (Suarez) appeals his conviction for conspiracy,. . ., and possession of cocaine with intent to distribute. . . . Suarez contends that numerous evidentiary and procedural errors committed at trial warrant reversal of his conviction. We disagree and affirm.

In September 1986, agents from the California Department of Justice, Bureau of Narcotic Enforcement (BNE) began an investigation of Suarez by conducting a surveillance of his activities. They identified a certain apartment in San Juan Capistrano as one frequently used by Suarez. . . .

At the San Juan Capistrano apartment, the BNE agents forced the door and found Suarez' girlfriend inside. In the master bedroom, the agents found $ 130,000 in a briefcase, registration slips for a 1985 BMW vehicle and a 1986 BMW motorcycle, and $ 8,000 and a pay/owe sheet in the top drawer of a dresser.

On September 22, 1986, border patrol agents at a secondary check point in San Clemente stopped a vehicle in which Suarez was a passenger. The federal agent found fifty-one $ 100 bills in Suarez' shoe. He also discovered Suarez' driver's license and a digital telephone paging device wedged between the console and passenger seat where Suarez had been seated. Suarez was arrested.

On appeal, Suarez contends that numerous errors occurred at trial, any one of which constitutes reversible error. We address each of these contentions in turn.

Analysis

I. Pay/Owe Sheet

Suarez contends that the district court erred by admitting into evidence a "pay/owe" sheet found at the San Juan Capistrano apartment. He claims the pay/owe sheet constitutes inadmissible hearsay not falling within any of the exceptions allowed by the Federal Rules of Evidence.3 Suarez further contends that, even if the pay/owe sheet falls within one of the hearsay exceptions, the government failed to lay the foundation required by United States v. Ordonez,. . . Specifically, Suarez contends that the government failed to establish that he had authored or was in any way connected to the pay/owe sheet.

==== Footnote 3 ====
Specifically, Suarez argues that the document does not constitute an adoption or admission under Fed. R. Evid. 801(d)(2)(B) or a business record under 803(6).
==== End Footnote ====

As an alternative argument to those based on the rule against hearsay, Suarez contends that if the pay/owe sheet was properly admitted to prove the apartment was used for drug trafficking, the district court erred by permitting a government agent to testify as an expert witness that the document found was a pay/owe sheet and that a pay/owe sheet is a common form of recording drug transactions.

Finally, Suarez contends that the admission of the pay/owe sheet violates Federal Rule of Evidence 404(b), by permitting evidence of a defendant's prior bad acts to prove his propensity to commit the crime charged. We reject all of Suarez' contentions.

A. Hearsay

Initially, Suarez asks too much of Ordonez . . . when he cites it for the proposition that drug-related documents are inadmissible for all purposes because they constitute hearsay. Ordonez simply holds that the rule against hearsay prohibits the admission of drug ledgers and pay/owe sheets to prove the truth of the matters asserted in them unless a proper foundation has been laid; Ordonez does not prohibit the use of the documents for all purposes. Most relevant for present purposes is our statement in Ordonez that the rule against hearsay does not stand as a bar to the admission of ledgers as "circumstantial evidence 'to show the character and use of the place where the [ledgers] were found . . . .' " (quoting United States v. Wilson,. . .). United States v. Crespo De Llano. . . (firearms, cash, mobile telephones, and paging devices found in a house were admissible as "probative of an overall narcotics trafficking conspiracy"); United States v. Bernal. . . (scale, vials, a calculator and attached notation pad, plastic bags, zip lock bags, and money admissible as evidence of narcotics trafficking). The pay/owe sheet in the present case was admitted for the specific and limited purpose of showing the character and use of the San Juan Capistrano apartment. Its role is no different from that played by the very large amounts of cash found in the same apartment. Because the pay/owe sheet's probative value for the limited purpose for which it was admitted was independent of the truth of its contents, the rule against hearsay was not implicated and the requirement of "a proper foundational showing for admitting the records to prove the truth of the matters asserted" was not triggered. . . .

Our conclusion is in accord with that of the Eighth Circuit in United States v. Wilson, . . . a case we cited with approval in Ordonez. In Wilson, the court held that, although drug ledgers found at an apartment frequented by the defendants could not be used to prove the truth of the statements made in the ledgers, they were properly admitted as circumstantial evidence "that the apartment was being used for drug trafficking." . . . The government was not required to prove the identity of the writer or writers. It was enough for the court that the government had established that the ledgers were found in one of the three houses the defendants frequented, even though that house was controlled by someone other than the defendants, and none of the defendants was present at the time the detective confiscated the ledger. In the present case, the government agent offered evidence that the pay/owe sheet was found in an apartment frequented by Suarez and rented to "Rick Suarez," and that other evidence such as vehicle registration slips belonging to Suarez were present in the apartment. The government's expert testified as to the nature of the document. This was enough of a showing to permit the pay/owe sheet to be admitted; the jury could consider the facts that the pay/owe sheet was evidence of drug-related activity, that it was linked to the San Juan Capistrano apartment, and that Suarez was also linked to the apartment.

In holding that drug-related documents may properly be admitted to prove the character and use of the place where found, we recognize the risk that the government or jury may erroneously rely on the document for the truth of the matters asserted therein. . . . The trial court here was equally aware of the risk, and clearly instructed the jury that the sheet was "being admitted for the limited purpose of showing the character and use of the place where it was found and not for the truth of any matters asserted or whatever is on there says." The judge gave a similar instruction at the close of evidence. We conclude that the trial court adequately guarded against the risk of unfair prejudice. . . .

The conviction of appellant Suarez is AFFIRMED.