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United States v. Katzin

January 15, 1986

UNITED STATES OF AMERICA
v.
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

Author: Mansmann

MEMORANDUM OPINION

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.

I.

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.

II.

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 ...


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