UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 15, 1986
UNITED STATES OF AMERICA
KATZIN, HARRY A/K/A "PORKY", HARRY KATZIN, APPELLANT
Appeal from the United States District Court for the Eastern District of Pennsylvania, CR 85-00123-01, District Judge: Hon. Edward N. Cahn
Before: Adams, Sloviter and Mansmann, Circuit Judges.
MANSMANN, Circuit Judge.
In this criminal appeal from a judgment of conviction and sentence, defendant Katzin alleges two trial errors and challenges the sufficiency of the evidence. We find the contentions to be without merit and, accordingly, will affirm.
Defendant was charged with Gary Bailey and Michael Parker in a six count indictment. Katzin and Bailey were charged in Count I with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. Count II charged Katzin with the distribution of 85.2 grams of methamphetamine and Count II charged him with the distribution of 109.3 grams of methamphetamine in violation of 21 U.S.C. § 841 (a) (1).
Bailey pleaded guilty and was sentenced. The case against Katzin and Parker was called to trial, and a jury returned a guilty verdict on all counts.*fn1 Katzin was sentenced to twelve years incarceration to be followed by six years of special parole. This appeal resulted.
Katzin presents three issues for our review. He first argues that the court erred in permitting Edward Gregory, a witness who cooperated with the government during the term of the conspiracy, to testify concerning various hearsay statements and also that the court erred in admitting tape-recorded conversations of the coconspirators. The core of Katzin's argument is that there was insufficient proof aliunde of the existence of the conspiracy to distribute methamphetamine to permit admission of all coconspirator statements. In Count I of the indictment Katzin, Bailey and Lawlor, with "other persons known and unknown", were charged as members of a conspiracy to distribute methamphetamine. The conspiracy began on or about December 1, 1983 and lasted to on or about August 30, 1984. Finding that the conspiracy alleged in the indictment had been established by independent evidence, the district court permitted the admission of the coconspirator statements. Thus, the court admitted into evidence tape recordings in which Gregory talked with Brian Klein, with Richard Poserina (who were not specifically identified as coconspirators in the indictment) and with codefendant Gary Bailey. Moreover, Gregory was permitted to testify to remarks that he heard other alleged coconspirators make during the term of the investigation.
In United States v. Ammar, 714 F.2d 238 (3d Cir. 1983), cert denied, 464 U.S. 936 (1984), we identified three conditions which must be met before coconspirator statements are admissible under Fed. R. Evid. 801(d)(2)(E): 1) there must be independent evidence establishing the existence of the conspiracy and connecting the declarant and the defendant to it; 2) the statement must have been made in furtherance of the conspiracy; and 3) it must have been made during the course of the conspiracy. Id. at 245.*fn2 As previously stated, the district court found that independent evidence established the conspiracy. In this regard, the applicable preponderance of the evidence standard requires that "the prosecution present sufficient proof leading the trial judge to find 'that the existence of the contested fact is more likely than its non-existence.'" Id. at 250, citing United States v. Trotter, 529 F.2d 806 (3d Cir. 1976). When reviewing the district court's determination of proof of a defendant's participation in a conspiracy by a preponderance of the evidence aliunde, we must look at the evidence in the light most favorable to the government, Ammar, supra, at 250, and decide if the district court had reasonable grounds to support its findings. Id. at 249.
Criminal conspiracy is an agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit the underlying offense. United States v. Inadi, 748 F.2d 812 817 (3d Cir. 1984). cert. granted, 105 S. Ct. 2653 (1985). In this regard, it is sufficient if the parties tacitly come to an understanding as to the unlawful purpose, and this may be inferred from significant circumstances. Id. Moreover, where as here "a number of parties combine to. ..distribute...narcotics there is a single conspiracy -- a so-called "chain" conspiracy -- despite the fact that there has been no direct contact whatsoever amongst some of its links." Id.
Reviewing the non-hearsay evidence against this legal backdrop, we conclude that the district court had reasonable grounds for concluding that a conspiracy to distribute methamphetamine existed involving Katzin, Lawlor, Bailey, Klein and Poserina. The independent knowledge of government witness Gregory concerning the operation of Katzin, Lawlor, Bailey and others is sufficient independent proof of the conspiracy to permit the admission of the coconspirator statements.
Gregory testified that he took Lawlor to Katzin's residence on several occasions in order to deliver cash payments and to secure methamphetamine. Gregory witnessed Lawlor enter Katzin's residence with money and return without the funds but with methamphetamine.
Gregory also testified to a conversation he had with Katzin in June of 1984 concerning methamphetamine. Gregory told Katzin that he was returning $2,600 to someone because he could not locate Lawlor. When Gregory inquired whether he could purchase methamphetamine from Katzin, Katzin replied affirmatively and gave Gregory his phone number.
Gregory further testified that he witnessed Katzin deliver methamphetamine to Brian Klein at his residence in early 1984. Gregory also stated that he had purchased drugs from Klein on several occasions.
Gregory testified that he had witnessed Richard Poserina purchase methamphetamine from Lawlor at the garage at 2037-39 Blair Street, which was registered in the name of Eleanor Katzin (Katzin's mother), on a weekly basis during the course of the conspiracy.
Gregory testified that he saw Bailey make numerous purchases of methamphetamine from Lawlor at the garage on Blair Street. Moreover, Gregory was with Bailey on August 10, 1984 when Bailey purchased methamphetamine from Katzin.
Viewed in the light most favorable to the government, Gregory's detailed account of his independent dealings with the conspirators constituted reasonable grounds for concluding that a conspiracy to distribute reasonable grounds for concluding that a conspiracy to distribute methamphetamine existed.*fn3 Accordingly, the district court cannot be faulted for permitting Gregory to testify about the coconspirator statements or for admitting the tape recordings of Gregory in conversation with certain of the coconspirators.
Katzin's second argument alleges that the district court erred in allowing government witness Edward Gregory to interpret certain remarks made by parties in the taped conversations.
During trial several tape-recorded conversations were introduced, and the court permitted Gregory, who was a party to the taped conversations, to state his understanding of the speaker's words. Katzin claims this to be an error since the conversations did not involve code words but instead involved what he characterizes as "plain words," which according to Katzin required no interpretation.
Many of the words which Gregory explained, however, were shorthand terms understood only by the speakers. In some instances, the words were subject to two or more meanings and even appeared to have no meaning in the common layman's vernacular. The vernacular of criminals is not a shield to understanding the intended meaning of their language. United States v. Fowler, 608 F.2d 2, 10 (D.C. Cir. 1979). Moreover, a declarant intends that his statement to another be understood; therefore, it is hardly improper to allow the other party to the conversation to state what was understood. United States v. Brooks, 473 F.2d 817 (9th Cir. 1973). Accordingly, we find that the explanations of the conversations offered by Gregory were probative and thus, it was not an error for the district court to permit this testimony.
Katzin's third and final argument challenges the sufficiency of the evidence to support a finding of distribution of methamphetamine on August 10, 1984, the date Katzin, Bailey and Parker were arrested. Count II charges Katzin with the distribution of approximately 85.2 grams of methamphetamine to Bailey on August 10, 1984. Count III charges Katzin with the distribution of approximately 109.3 grams of methamphetamine to Parker on the same date. Bailey and Parker were found to be in possession of these amounts of controlled substance after they exited Katzin's residence. No controlled substance was found in the person of Katzin nor was any found in his home immediately before his arrest. Katzin argues that there is no evidence from which a jury could have concluded that Katzin transferred anything to either Bailey or Parker. in fact, Katzin avers that it is possible for Bailey to have supplied the methamphetamine to Parker, or vice versa, without the participation of Katzin.
Generally, when deciding sufficiency claims, we must determine whether there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's verdict. United States v. Adams, 759 F.2d 1099, 1113 (3d Cir. 1985), cert. denied, 88 L. Ed. 321 (1985). Here the evidence established that Bailey was connected to a drug distribution ring with Katzin prior to the August 10, 1984 date. Gregory testified that on August 10, 1984, he went to Katzin's residence with Bailey, who wanted to purchase a pound of methamphetamine. Gregory related that upon their arrival at Katzin's residence at approximately 3:00 P.M., Bailey went into a backroom with Katzin. About five minutes later, Bailey emerged from the room and had in his possession a package containing one-quarter of a pound of methamphetamine. Bailey told Gregory that he had to return to Katzin's at 5:00 P.M. later that day to pick up the remaining three-quarters of a pound. Gregory then informed the police about the upcoming transaction. Police officers witnessed Bailey appear at 5:00 P.M., as Gregory had notified them, and enter Katzin's residence. A short time later Bailey, Parker and Katzin exited the building. Officer Hoffman testified that he saw three men standing outside of the house in a semi-circle holding a conversation. He then witnessed Katzin hand Parker a clear plastic bag. As Hoffman gave the arrest signal, Katzin and Parker retreated to Parker's Cadillac which was parked nearby. Bailey fled in his silver van. The respective quantities of methamphetamine charged in counts two and three were found on Parker and on Bailey upon their arrest. This evidence, contrary to defendant's allegation, was sufficient to permit the jury to find Katzin guilty of distribution of methamphetamine beyond a reasonable doubt.
For the foregoing reasons, defendant's judgment of sentence will be affirmed.