Opinion
No. 22445.
December 20, 1968.
David W. Harris, Livermore, Cal., for appellant.
Wm. M. Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Ronald S. Morrow, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Before DUNIWAY, ELY and HUFSTEDLER, Circuit Judges.
Defendant Salazar appeals from a judgment of conviction of a violation of 21 U.S.C. § 174.
The sole contention on appeal is that the Court prejudicially erred in admitting over his hearsay objection testimony about statements made by appellant's coconspirator, Sesma, to the witness Saiz, a government undercover agent, because the declarations were not in furtherance of the conspiracy. The statements were a part of a conversation between Sesma and Saiz, which took place outside Sesma's house when Saiz came there to receive delivery of a large quantity of heroin. Appellant challenges that part of the conversation in which Sesma told Saiz that Sesma's source of supply was presently in the house packaging and preparing the heroin. Those statements, he argues, did not further the sale of the contraband, but were merely narrative remarks of Sesma, indirectly identifying the appellant. We disagree.
The District Court could have properly concluded that the statements furthered the conspiracy because Sesma made them to prevent Saiz from leaving before the sale was concluded. Sesma had failed to meet the delivery date originally set for the shipment, and he had reason to believe that his big customer would be suspicious about further delay. Saiz exhibited restlessness. After the statements were made, Saiz waited briefly, then knocked at the door. When Sesma answered, Saiz told him that he was tired of waiting. Sesma then admitted Saiz to the house, and Saiz saw the appellant in the dining room sifting heroin.
The judgment is affirmed.