United States v. David Silverman

WALLACE, Before ALARCON and NELSON, Judges. Circuit NELSON, Judge: Circuit appeals his David conviction for to distribute a controlled (cocaine) substance and three related of- fenses. Silverman claims that the district improperly court admitted statements un- 801(d)(2)(E)(FRE) der Fed.R.Evid. and erred in giving flight” jury a “modified instruc- tion. We affirm his conviction. FACTUAL AND PROCEDURAL BACK- GROUND Silverman was August indicted on 1983, by Jury the Federal Grand for the Nevada, District of for to dis- substance; tribute a possession controlled with intent to distribute a controlled sub- stance; aiding abetting; and interstate racketeering, travel aid of in violation of 841(a)(1) U.S.C. 846 and and 18 § § 1952(a)(2) U.S.C. Silverman was § together sister, tried with his Pearl Phoe- nix, husband, and her David Phoenix. The main against witness all three was a government informant, Willard, who testified to the existence of a involving distribute cocaine Silverman as supplier, Pearl Phoenix as the wholesal- er, and Willard as the retailer. Pearl had earlier instructed him that he obtained cocaine to wait testified phone he Phoenix. Sometime for a call at about five o’clock. from large quantities of cocaine to say sell Pearl called Willard to she was on her began to airport. Zeitziff volunteered way Shortly Robert Zeitziff. back to the there- trips Angeles, after, to Los private plane stopped a car near the terminal. At Zeitziff, trial, obtained her cocaine. where Pearl that the Willard stated driver was a Willard, flights to Pearl made three Silverman,” and male who like but at “look[ed] plane. in Angeles Zeitziff’s Los that time Willard and had never Silverman photograph met. Willard had seen a 13, 1983, trip place May on The first took Silverman, got however. Pearl out of the and Willard to Zeitziff flew Pearl when car, and, Willard, again according gave to According to Wil- Nuys, Van California. pouch containing Willard a leather six lard, him that “her Pearl had told earlier Pearl informed ounces cocaine. Willard brother,” Nuys near Van Air- who lived going go that she was to to San Francisco Upon her source of cocaine. port, was go him and would not back to Reno with Valley Willard called landing Nuys, at Van Zeitziff, car, then returned and to Pearl; request a cab for Pearl went Cab to waiting for her. and which was Willard make call. Willard phone to a booth to a Stead, airport to the at Zeitziff flew Neva- had told him earlier that stated that Pearl da, and, Reno, driving while were Pearl going to call her brother. she was stopped arrested the Reno and Police in the cab. Cab records then left alone Department possession for of six ounces of May admitted into evidence showed on cocaine. 13, passenger picked up was at the Van a dropped off at the Nuys terminal and was Following subsequent his arrest and in- Louise, and an intersec- corner of Ventura cocaine, possession for inter- dictment near David Silverman’s residence.

tion racketeering, conspiracy, state and Willard later, returned Two or three hours plea bargain negotiation entered into a she, with cocaine and then Zeitziff and Wil- cooper- agreed with the and Reno, Nevada. lard flew back to investigation. subse- ate an Willard quently taped a of conversations again number May the same trio flew On himself and the Phoenixes. Dur- again Valley between Nuys. Van Willard called Cab, ing one of the conversations between Wil- phone make a again and Pearl left to Pearl, her if her call, lard and Willard asked having told that she had to call Willard respect money “cool” with a brother was her Cab records showed that brother. replied, allegedly owed to him. Pearl picked up on that date at passenger was worry.” tapes, played dropped “Don’t Nuys airport and was off at Van Ventura, jury, anoth- also other references to Sil- the corner of Winnetka contain verman. resi- er intersection close Silverman’s showed that a dence. Cab records also arrest, months after Willard’s Two up just over one

passenger picked was agents Drug Enforcement Adminis- later at the same corner and driven hour door (DEA) knocked on tration Nuys terminal. After Pearl re- the Van came to the Silverman’s house. Silverman cocaine, the three returned to turned Silverman was door and stated David Reno. home; message agents left a for not at to answer some parties to call the DEA the same made Silverman On June When He called soon after. trip Nuys. questions. As on the first a third to Van with a agents returned that afternoon trips, Valley called and the two Cab arrest, gave a false for his he phone call. Cab records warrant Pearl made David Sil- again claimed that passenger driven on that show that a was hour, an home. Within resi- verman was not airport date from the to Silverman’s arranged DEA dence, attorney called the pas- and a cab driver identified later, days in two to turn himself senger testified that as Pearl. Willard 801(d)(2)(E). The first was Pearl’s did. He obtained reduction der FRE which he upon his surrender. statement to Willard that bail based her brother was her cocaine source. by jury verdict Silverman was convicted response The second was Pearl’s to Wil- on sentenced October question in telephone lard’s call after he Judgment 1983. of convic- December your had become an informant: “Is brother entered on December 1983. tion was [concerning delay paying cool for the appeal December 1983. He filed this response Pearl’s cocaine]?” “Don’t is based on 28 U.S.C. jurisdiction Our worry.” attorney objected Silverman’s at § statements, trial to the admission of both PRESENTED ISSUES alleging linking Silver- implicating Silver- I. Whether statements man to the was insufficient to supplier properly were man as a cocaine admit under FRE co-conspirator admitted as statements un- 801(d)(2)(E)and that neither statement was 801(d)(2)(E). der FRE made “in furtherance conspiracy.” (A) The amount of evidence of Silver- judge The district ruled that the foundation conspiracy. man’s “connection” to the indepen- sufficient because there was slight dent evidence of a connection be- (B) hearsay the statements Whether conspirators. tween Silverman and the Sil- “during” were made and “in furtherance contends, appeal, verman that the dis- conspiracy. of” the judge trict erred and the statements were jury II. Whether the instruction on Silver- erroneously admitted. “flight” given. properly man’s A. Silverman’s connection to the con- DISCUSSION spiracy Co-conspirator I. statements. Silverman contends that re de novo Silverman contends statements proper view is on the issue whether he was implicating him as the source of cocaine for connected to the of Review a improperly Pearl Phoenix were admitted prima conspiracy, case of the first facie 801(d)(2)(E). under FRE Co-conspirator test, prong of the has been established as statements are under admissible this hear de novo in this Circuit. United States v. say exception only judge if the trial deter Cir.1983), 548, (9th Layton, 720 F.2d 556 n. 4 proper mines that a A foundation exists. — denied, U.S. ---, rt. 104 S.Ct. ce proper proof, of foundation consists inde 1423, (1984); 79 L.Ed.2d 748 United States themselves, pendent of statements 870, Rosales, (9th Cir.1978). v. 584 F.2d 872 (1) prima establish a case for facie The evidence of defendant’s connection (2) conspiracy existence of the the de conspiracy to the must also constitute a knowing partic fendant’s connection to prima See, e.g., case. Miranda-Ur facie ipation in trial court iarte, 1349-50; F.2d at 649 United States challenged also had to find that the state 757, Cir.) Weiner, (9th (per v. 578 F.2d 769 (3) during ment was made the course of curiam), denied, 981, 439 99 cert. U.S. (4) objectives in furtherance of the of 568, (1978); 58 L.Ed.2d 651 United States the conspiracy.. v. Mi See United States Testa, 847, (9th 1977). v. F.2d 548 853 Cir.

randa-Uriarte, 1345, (9th F.2d 649 1349 agree We with Silverman and will review Cir.1981); Freie, United States v. 545 F.2d his connection to the con 1217, (9th Cir.1976) curiam), (per 1223 cert. spiracy to determine whether it de novo 430 U.S. 52 prima established a case. (1977). L.Ed.2d 356 facie that, The trial court stated hear- does not contend that a absent evidence, exist, say that he membership Silverman’s did not but rather knowingly could not established. It was not connected to it. There be fore, pieces admitted is whether two crucial of evidence un- the real issue this ease prima testimony of a resemblance established between Silver- facie man who the con man and the drove Pearl to the of Silverman’s connection case airport, and requires evi Silverman’s evasions with the the foundation Since spiracy. agents DEA who visited his home consti- hearsay state independent dence non-hearsay tute other evidence. ments, into must the evidence we divide evidence. hearsay non-hearsay questions quantum also in non-hearsay evidence of Silverman’s required to establish in the included volvement prima case his connection to the facie Willard, upon each Pearl’s statements conspiracy. The connection is an essential call Nuys, she had to in Van arrival factor for the foundation for admission of did not Since the defense her brother. hearsay evidence. “To demonstrate statement, admit first it was object minds, meeting one of them must be asserted. the truth the matter ted for United shown be [the defendant’s].” jury to consider Peterson, judge told v. (9th States 549 F.2d proposi Nixon, only two second statements See United States v. Cir.1977). that Pearl made the statements tion n. 701 & 94 S.Ct. 3104 & Willard, removing thus Glasser v. n. 41 L.Ed.2d 1039 801(c) States, hearsay FRE from the definition 60, 75, 315 U.S. 62 S.Ct. the truth of general- introduced for See as statements L.Ed. Federico, See ly United States the matter asserted.1 Fried, cert. Cir.), (9th Cir.1981) (Alarcon, J., 1344-49 denied, 255, 895, 58 439 U.S. S.Ct. (discussing 99 dissenting) development Anderson v. see also (1978); standard). 241 judge L.Ed.2d The trial found that States, 219-20, 211, United 94 417 U.S. met both the standard the evidence 2260, (1974). 2253, 41 20 The L.Ed.2d evidence”2 of a connection and “slight S.Ct. records, testi trip slight the taxi driver's evidence of a connec- taxicab “substantial appeal, he had to Silver- asserts mony that driven tion.” On visit, is “slight on the Willard’s evidence” of the connection man’s house third 203, (5th Cir.) ("evidence conspir two were considered 205 a[of 1. Even if these F.2d slight, acy], though to show [a] sufficient hearsay, they would be admissible under FRE [case]”), denied, 886, cert. prima facie 282 U.S. 803(3), exception for statements of then- 89, (1930); v. existing 75 L.Ed. Galatas 803(3) 51 S.Ct. 781 state of mind. See Fed.R.Evid. States, 15, (8th Cir.1935) (exception 80 F.2d 24 covers "a United statement of the declar substantial, existing (such may ("slight ant’s then intent, be state evidence ... still of mind ... as motive, 711, so, plan, ...)’’); sufficient”), denied, design and if cert. 297 U.S. [or] United Diez, 892, 574, (5th (1936); Meyers States v. 515 F.2d v. 895-96 n. 2 80 L.Ed. 56 S.Ct. 998 States, 433, Cir.) ("The (6th 1975) (applying F.2d context of co-con United 94 434 Cir. rule in 1052, statement), denied, guilt, jury having slight connect spirator 423 U.S. found evidence cert. 780, (1976). may ing conspiracy be sub 46 See also a defendant with 96 S.Ct. L.Ed.2d 641 denied, States, 830, and, is, (N.D. sufficient”), Wibye F.Supp. if it is cert. 832 v. United 87 stantial 583, 1059, 1949) (statement plans S.Ct. travel U.S. 58 82 L.Ed. 1545 Cal. of declarant’s 304 858, States, perform Phelps 867-68 "design to v. United 160 F.2d admissible to show or intent 1947) act"), (9th (8th ("an partic aff'd, specific Cir. defendant’s F.2d 181 Cir. individual 191 Here, 1951). conspiracy [may] ipation be Pearl’s demonstrates in an established statement brother, plan weight and intention call her and context her come substantial [from evidence], may properly purpose. though for that could be admitted in abstraction [it] 860, denied, plan clearly only slight”), is to the issue of 68 Pearl’s relevant cert. 334 U.S. seem 1525, (1948). Relying her between whether existed L.Ed.2d on 92 1780 Silverman, key See Unit Phelps, issue in this case. Meyers Circuit referred Ninth Ponticelli, 985, (9th v. F.2d 991 applying ed States 622 "substan "slight while evidence" admissible, Cir.) (to state of mind requirement. Nye be ”[t]he & Nissen v. evidence tial” 846, (9th in States, be some issue declaration must relevant Cir. 168 F.2d 852-53 denied, 1016, case”), 101 S.Ct. 1948) (evidence cert. U.S. 449 defendant’s was sufficient of 578, (1980). 476 abetting 66 L.Ed.2d aiding of sufficient crime so issue need not be connection evidence 613, reached), grounds, U.S. "slight other 336 origin can be evidence” term 2. The aff’d (1949). 619, States, 919 L.Ed. Tomplain 42 69 S.Ct. 93 follows. v. United traced as 1198 argues independent proof while Silverman

sufficient offered of Silverman’s connection consists required. completely evidence” “substantial of circumstantial evidence. Several infer over the correct for The confusion evidence, ences can be drawn from this the connection evidence has mulation of First, however. we infer that the sister engendered cases this Circuit.3 been trip. visited her brother on each Such vis clear, however, made We have ties, family its could betoken close but the required is “substantial evidence” priority, upon circumstances —that her first States v. “slight of a connection.” United arriving city stays in the of several 1320, (9th Cir.1984); Rabb, cocaine, consistently hours to obtain Perez, 654, 658 F.2d United States support an visit inference otherwise. him— (9th Cir.1981). Supreme most Court’s resembling When a man Silverman drove appears on the issue recent statement airport dropped Pearl to the after a cab had “substantial, independent address, evidence” require her at his and waited while she cocaine, conspir as well as of the of the connection delivered inferences that Silver- Nixon, present man was at the acy. 418 U.S. scene and aware of her transfer of cocaine are 701 & n. 94 S.Ct. 3104 & n. reasonable. (1974). false evidence constitutes evi clearly L.Ed.2d 1039 The standard guilt dence of Silverman's consciousness of calls for the to make an offer crime, of some which is circumstantial evi proof containing sufficient dence for his connection to this of Silverman’s connection to the prima constitute a case judge The trial must also have found facie Perez, of the connection. 658 F.2d at See that Silverman knew of his involvement 658; Freie, F.2d at United States v. the conspiracy. Miller v. United Cf. requirement 1222. The of a substantial States, 1967) Cir. amount of circumstantial evidence seems (failure to establish essential element of Nixon, appropriate under at 701 n. knowledge), cert. 390 U.S. n. 94 S.Ct. at 3104 & and the initial 19 L.Ed.2d 1285 If the slight” requirement rationale of the “but inference that he aided his sister obtain ing upon Angeles evidence.4 cocaine each visit to Los Federico, 1525, (1948). Compare Phelps United States v. 658 F.2d L.Ed. 92 1780 As the court 1337, (9th Cir.1981) evidence”); ("slight explained, 1342 possible is therefore for the cir "[i]t 1329, Fleishman, United States v. 684 F.2d 1338 partic cumstances on an individual defendant’s 1044, (9th Cir.) (same), denied, cert. U.S. 459 103 ipation conspiracy in an established to become 464, (1982) 74 L.Ed.2d 614 with United weight position substantial from their in and Zemek, 1159, (9th States v. 634 F.2d 1170 Cir. context, though they may abstraction seem in 1980) ("sufficient, evidence”), substantial cert. only slight.” partial quotation Id. at 867-68. A 916, denied, 1359, 450 101 S.Ct. L.Ed.2d U.S. 67 Phelps of was the basis for the Ninth Circuit’s 985, 1525, 341 and 450 U.S. 101 S.Ct. 67 L.Ed.2d adoption language that substantial evidence 905, 3031, 821 and 452 U.S. 101 S.Ct. L.Ed.2d 69 required conspiracy, is of the existence of a Weiner, (1981); 406 757, United States v. 578 F.2d slight while evidence of a defendant’s connec (9th Cir.) curiam), denied, (per 768 439 cert. Nye tion to the is sufficient. See & 981, 568, (1978) 99 58 L.Ed.2d 651 Peterson, States, 846, Nissen v. United F.2d 168 852-53 (same); 654, United v. States 549 F.2d (9th 1948) sufficient), (slight Cir. evidence is (9th ("substantial, Cir.1977) independent 658 ev 613, 619, grounds, on other 336 U.S. 69 aff'd S.Ct. idence”). Dixon, See also United States v. 562 (1949). Nye L.Ed. & 93 919 1138, (9th Cir.1977) ("the F.2d 1141 substantiali properly applied Nissen court the "substantial ty only of the need be ... test, however, slight amount evidence” but denied, 927, 1494, slight"), cert. 435 U.S. 98 S.Ct. quoted only "slight portion the evidence” of the (1978). L.Ed.2d 55 521 test. F.2d at This then became one 852-53. origins "slight phrase 4. The evidence” See, e.g., formulation of the Ninth Circuit rule. initially indicate that the term referred to cir Fleishman, United States v. 684 F.2d cumstantial evidence which amounts to substan (9th Cir.), denied, cert. 459 U.S. 103 S.Ct. evidence, indicating tial rather than a low stan 74 L.Ed.2d 614 United States v. weight dard for the of evidence on the issue. (9th Cir.1969). Knight, 416 F.2d States, Phelps See v. United 160 F.2d 862-63 Cir.1947), (8th denied, rt. 334 U.S. 68 S.Ct. ce reasonable, in- the together taken the furtherance of are threshold is Thus, findings judge’s the of fact. trial he was at scene of the present that ference it conclusion must be affirmed unless is inference of his con- and the one transfer clearly v. erroneous. See States guilt, judge trial could United the sciousness Cir.) (en McConney, 728 F.2d 1195 knowledge. See Mi- infer Silverman’s — banc), U.S. ---, 1352-53; cert. 105 S.Ct. randa-Uriarte, at 649 F.2d Unit- 83 L.Ed.2d 46 A “definite and Federico, ed States firm conviction of mistake” does not arise (9th Cir.1981). Therefore, we conclude that from review of this record. produced sufficient inde- the involve- pendent evidence of Silverman’s clearly The first statement was made a case of his prima ment to establish during pendency conspiracy. facie the Sil- the conspiracy. the “connec- connection to challenges judge’s verman the trial conclu- prong of the foundation the co- tion” sion that of the source was hearsay is thus conspirator satis- Willard, intended to information reassure fied. conspiracy, in rather furtherance than or conversational narrative comment. B. hearsay statements were Whether Layton, 720 F.2d See at 556-57. State- “during” “in made ments intended to reassure customers furtherance conspiracy. supply sources can be furtherance of of’ See, e.g., States also contends that two Mason, (9th Cir.1981). elements of the foundation for ad further judge’s this state- finding district that hearing statements were not mission of conspiracy’s objectives ment furthered judge The trial determined that satisfied. clearly not erroneous. hearsay challenged— the two first, was the source of that Silverman by The second statement was elicited second, cocaine for conspiracy, Willard after he had left that would not mind reassurance judge but the trial found that Pearl and payment during made delay continuing still in the con- Silverman were —were goals and in furtherance of course of judge’s finding this spiracy. The trial Silverman contends statement was furtherance of continu- “in furtherance” find we should review the ing conspiracy supported is also cases disagree. We We defer to ing de novo. a con- holding payment is crucial to findings that trial court decisions for state spiracy objectives. furthers its See “during made of” ments were course Testa, finding was F.2d at 855. This conspiracy, “in furtherance of” Thus, conclude clearly not erroneous. we exact of review on though the standard an for the adequate foundation existed has elucidated. those issues not been See hearsay against admission of the 615, Tille, v. F.2d 620 729 United States a Silverman. The established — (9th U.S. ---, Cir.), denied, cert. 105 case, independent the hear- prima facie — U.S. ---, 156, 83 93 and S.Ct. L.Ed.2d evidence, say of Silverman’s connection 164, (1984); 83 L.Ed.2d 100 Unit 105 S.Ct. court’s con- conspiracy, and district Whitten, 1000, v. 706 F.2d 1018 ed States dur- were made clusion that — (9th Cir.1983), denied, U.S. ---, cert. ing and in furtherance of 1593, 125 104 80 L.Ed.2d clearly were erroneous. not DeLuca, 1277, F.2d v. 692 (9th Cir.1982); Flight II. jury instruction 1284 United States v. San 744, doval-Villalvazo, (9th 620 F.2d 747 in challenges jury a Silverman Cir.1980). to his evasive behavior regarding struction attempt to agents DEA and his clearly appears ward the The erroneous standard by giving an alias. Giv “conceal himself” questions whether appropriate because the as evi- ing identity is admissible during in a false made the statements were 1200 guilt. arrangements before he

dence of consciousness United made to surrender (9th (4) 672 Birges, himself voluntarily, States that an accom- — U.S. ---, Cir.), 104 cert. S.Ct. plice testified that David Silverman’s sister — U.S. ---, 1926,80 L.Ed.2d 472 and 105 told him that her brother David Silverman (1984). Shortly L.Ed.2d 131 83 was her No one source. testified that paid the after the officers second visit to any David Silverman had cocaine in his home, police. contacted the his counsel possession or he was aiding observed days himself in two later Silverman turned abetting or the commission of any crime. agreement pursuant between his to an No witness testified he heard David attempt counsel and did not police, and the speak any Silverman any words or commit Myers, to flee. See States v. United indicating agreed act participate that he Cir.1977); (5th F.2d Morris v. in alleged conspiracy, any per- nor did States, F.2d United Cir. anything son him illegal. observe do 1963). Wong See also Sun United in The critical issue this case is whether States, 483 n. 83 S.Ct. presented sufficient evi- 415 n. 9 L.Ed.2d dence that David Silverman was connected challenged jury We review instruc- knowingly and that he tion in of the whole trial the context and participated join with the intent to and to within jury instructions as whole. cooperate illegal agreement. in the I am James, United States v. 226- compelled evidence, because the dissent (9th Cir.1978). The instruction was not independent of the statements of a co-con- improper in context of the trial as spirator, legally insufficient to show recently re-emphasized whole. We have that David was a any member of preference allowing “flight” our toward ev- get jury, idence who will then ' My view of the in record this case differs probative light determine its value in my colleagues. from that of For that rea- Tille, circumstances. See States v. son, I quota- have set forth below extensive judge 729 F.2d at 622. district court tions reporter’s transcript from the to dem- doing properly acted so this case. onstrate legally the lack of sufficient evi- CONCLUSION slight dence of a connection of the defend- The foundation admission of the ant hearsay sufficient under evidence was FRE 801(d)(2)(E). flight jury instruction I proper. also conviction is af- firmed. PERTINENT FACTS AND AFFIRMED. PROCEDURE

ALARCON, Judge, dissenting: Circuit A. Motion In Limine I respectfully dissent. insufficiency The issue of the of the evi- dence to connect Silverman to the The majority has affirmed the conviction conspiracy charged the indictment was of David for conspiracy to dis- presented first prior to the trial court cocaine, tribute possession with intent to September trial. On David Silver- cocaine, aiding abetting, distribute man filed a with the court con- document interstate racketeering travel aid of taining caption “Notice of (1) Motion and based on evidence that on three occa- Evidentiary Hearing Motion For Pre-Trial sions David may Silverman’s sister have Admissibility Coconspira- To Establish Of visited his home in San Fernando Val- ley, (2) Hearsay tor And Motion Statements To David Silverman “looks like” person Exclude Declarations: Memo- Nuys Third-Party who drove her to the Van (3) Authorities; Airport, randum of Points and Affida- misrepre- that David Silverman motion, police sented his vit In his shortly of Bruce M. Kaufman.” pretrial David Silverman asserted that a Willard testified that he flew to the Van any Nuys airport evidentiary hearing “would eliminate with Pearl Phoenix on three occasions 1983. The possibility jury impermissibly relying flight of the first was on May landed, 1983. After hearsay indepen- plane statements to establish Willard called a cab for Pearl Phoenix. dent of the de- Willard testified as follows concerning fendant’s connection to it.” David Silver- Pearl Phoenix’s conduct or statements on alleged only indepen- man also that “the this date: linking dent evidence Silverman to the al- Q. you And called a

leged conspiracy is Silverman’s mere asso- cab for her? sister, ciation with codefendant Pearl A. I called a cab for her and she went Phoenix, single alleged and a observation pay phone outside to a and at which by government informant of time—

driving airport prior his sister to the Q. Why go did she to a pay phone? departure.” Finally, their the defendant A. She told me she going was to call present stated that if allowed to somebody. pretrial hearing, at a he could demonstrate Q. you Did she tell who she go- extrajudicial declarations of the ing to call? alleged co-conspirators could not be intro- Yes, A. she did. against him duced because “there is insuf- Q. Who? ficient evidence as a matter of law to con- A. Her brother. charged nect him with the conspiracy.” objection No testimony made to this Thus, the district court was made aware concerning extrajudicial statement of a prior to trial that David objected co-conspirator. reveal, The record does any extrajudicial to the introduction of dec- however, that Pearl Phoenix has another “any by larations because statements made brother, Silverman, Frank who also lives in alleged any conspirator cannot be received Valley. West San major- Fernando against defendant upcom- Silverman at his ity “[sjince states that the defense did not ing trial and must be excluded” due to the object to statement it was admitted [this] government fact that the “will be unable to for the truth of the matter asserted.” The establish David membership Silverman’s district court did not so rule. Even if we conspiracy.” assume that this evidence was offered for government opposed request asserted, the truth of the matter proved it pretrial hearing to determine the admissi- no more than that she intended to call one bility co-conspirator “in statements of her brothers. It did not connect either judicial the interest of economy.” The dis- any commission of crime. trict court prej- denied the motion “without Furthermore, has over- object udice to to the admission of such looked the fact that when the evidence at the time of trial or to move to chief, rested its case in David Silverman’s added). (emphasis strike same." lawyer made a motion “to strike the testi- mony co-conspirator’s as it relates to the B. Extrajudicial Statements Offered having previously been intro- Against David Silverman grounds duced the Court on the that the The testimony accomplice David government lay has failed to the founda- (Willard) clearly established the ex- required by tion the Court.” The motion to istence of a between the witness strike was procedure denied. The followed and Pearl beginning Phoenix in the fall of by complied precisely counsel with the involving the sale of cocaine. The order, denying court’s in li- motion government did not attempt to connect mine, object counsel could at the time by independent David Silverman testimony of trial or move to strike con- any illegal may conduct that have oc- cerning extrajudicial statements on the prior May curred ground that the had failed to

1202 effectively conspiracy by independent the of which defendant connect the the rule. abolishes evidence. See United States independent Cir.), 580 cert. Reed, F.2d 726 Because counsel moved to strike the tes- — ---, 105 83 U.S. timony May concerning of the witness the States Wat L.Ed.2d 151 extrajudicial 1983 statement of a co-con- (9th Cir.) (the kins, 201, 204 trial spirator, objection required an was not challenged statements the judge may admit prevent use of this for the the evidence if motion to strike the subject a later matter connect truth of the asserted or to required establish the fails to prosecution conspiracy. The to the denied, 444 foundation), cert. majority’s the May conclusion that L.Ed.2d extrajudicial part statement formed of the “non-hearsay” independent is con- evidence strike, motion the ruling on the In trary to rules reflects a of evidence and if required was determine court district proce- misperception of the record and the connecting David Sil- evidence there was adopted by dure the trial court the trial for independent of verman to this matter. any co-con- statements of extrajudicial Instead, and Pearl Phoenix to the the court determined Willard flew spirator. Nuys airport again May on independent as evi- Van consider that it could again telephoned Valley Cab made co-conspirator’s statement dence the for Phoe- Company to obtain a taxi object- it not was May because transcript following nix. contains to, The May and the June ed concerning testimony this event: they because co-conspirators’ statements “basically Q. as ex- you got received did apparently were When first there what (Emphasis you do, did.” plaining what witness what did Bob Zeitziff do? added). are erroneous. Both conclusions plane. A. care He went to take of the above, previ- had the trial court As noted Q. you What did do? ously objection an to statements ruled that A. I went to call the cab. necessary not if co-conspirators Q. What did Pearl do? on the counsel made motion strike pay phone. A. She went to the had ground the accused not been con- Q. What did she do? I to the know no nected somebody. A. called She none, rule, majority has and the cited Q. did she call? Who provides co-conspirators’ statements A. her Said brother. can as evidence be considered Objection. MR. KAUFMAN: connecting to the crime to satis- an accused is the of the THE COURT: What basis requirements for the fy foundational objection, please? co-conspirators’ statements. admission hearsay. Also KAUFMAN: It’s MR. my colleagues The have judge trial calls for conclusion this witness. co-conspira- that a apparently concluded [government coun- MR. SULLIVAN “non-hearsay” tor’s statements can become Honor, hear- I submit its not Your sel]: changing labels and by simply say. basically explaining what He’s holding testimony was not offered witness did. Re- for the truth of the matter asserted. right, objection All THE COURT: admissibility, gardless theory will overruled. be co-conspirator’s quite law clear that a objec- overruling statement cannot admitted into evidence be court erred call,” question: until to the con- “Who did she connection accused tion. The The wit- clearly inde- spiracy has been shown called a conclusion. pendent her brother” co-conspirator’s cryptic of a statement. ness’ answer “Said discussion, hear- quiet- non-responsive and volunteered majority, has without points to this say testimony. ly requirement exception created an “non-hearsay procedure.” evi- followed the testimony part as “same record following contains the testimony: involvement in the dence of Silverman’s Thus, Q. while we are told that conspiracy.” go? you Where did was not offered for the this statement IA. went call a cab. asserted, majority truth the matter Q. company? Same cab “non-hearsay” this statement believes that A. Same company and Mrs. cab Phoe- proves that by Phoenix David Silver- phone nix went to make a call. of the We man was a member Q. you Did she tell who she called? that when a narcotics are asked to conclude Yes, A. sir. co-conspirator she trafficker tells a Q. Who? brother, extrajudicial this had called her A. Her brother. alone, declaration, standing proof, is inde- MR. Objection, KAUFMAN: Your declaration, pendent any co-conspirator’s Honor. conspir- is a member of a her brother THE right, All that on COURT: acy trafficking majority in cocaine. The ground previously? same as attempt explain logic does of this not Yes, MR. KAUFMAN: Your Honor. extraordinary proposition. THE Objection COURT: will be over- co-conspirator’s I this hold that would ruled on the same basis as previously. construed statement cannot be as evidence It should be noted that the court did not independent conspirator’s of a statement to articulate the previous basis for its ruling to the connect David Silverman quoted portion transcript con- {see argument government’s that this co- cerning the May extrajudicial conspirator’s hearsay, statement was not above). set statement forth We can con- merely explanation but an of “what the clude, however, adopted that the court did,” critical analysis. also defies witness prosecu- previously basis articulated extrajudicial If the statement admitted tor, “basically explain- i.e. that Willard was solely show that Pearl Phoenix made the ing what the witness did.” not statement to Willard and for its truth Immediately following proceedings states, how can as the state- above, transcript set forth reflects the prove ment be used to David Silver- following testimony: co-conspirator? man If was a we can use Q. Did you tell her she brother’s this as statement name? was connected to the con- Yes, A. sir. spiracy, accept must first truth of we Q. What was it? the extrajudicial declaration that Pearl A. David. Phoenix called her brother and then infer supplier Q.

from that he must be her you that fact Did his last she tell name? of cocaine. A. Silverman. Q. Did in the cab? she leave adopted syllogism apparently by my me, A. she didn’t tell me she Excuse

colleagues is as follows: that time. called David at I Nuys Van Pearl Phoenix went to to ob- knew the from name was Silverman be- tain cocaine. fore. told Willard Pearl Phoenix she tele- Thus, reporter’s an examination phoned her brother. transcript that in none of demonstrates Therefore, supplied her brother her with extrajudicial to her statements attributed sophis- cocaine. I cannot subscribe this state that she by Willard did Pearl Phoenix reasoning. tic had called her going she or-that brother, adopt Pearl Phoenix and returned If we were to David. colleagues, say could Nuys airport reasoning my on June we Van equal she called her upon landing they with certitude that Willard testified that close, fairly tough question Silverman, that it was “a that he is brother, Frank I conspiracy as the court to tackle but nevertheless connected therefore This of cocaine. meet the test of supplier think that it does Phoenix’s course, inference, fallacious as is 801(d)(2)(E) going permit is as I’m to the and so is con- David Silverman court did question to be answered.” The the conclusion he is also conspiracy because nected to the evidence that it at this time discuss not “her brother.” requirement believed met the co-conspirator’s statement to any facts of to on his return arrested Willard David Silverman’s connection establish 17, agreed 1983. He on June Airport Stead in ex- government cooperate with promise that government’s change for ruling, Following the court’s Willard tes- conspiracy, a plead guilty to if he would follows: tified as the re- made to dismiss would be motion exactly I’m not clear on Pearl Phoenix. indictment returned charges in the maining me, . told but it was the dates when she bargain part As of his grand jury. by the house, at their the Phoenixes’ Floriston agreed to government, explained to me that and she house Phoenix with Pearl conversations record essentially acquired David Silverman had husband, Phoenix. and her that was where the cocaine business and tape re- introduced a government getting the coke from. she was conversation be- cording telephone aof prejudicial co-conspirator’s highly This that oc- Pearl Phoenix tween Willard and admissible, as will be was not statement Kaufman, Mr. July curred on opin- dissenting further in this developed attorney, objected to the David Silverman’s ion, government failed to because the tape recording on of this admission legally present any sufficient the state- inter alia that it contained ground to the connecting David Silverman listening After co-conspirator. ments of a sidebar, the dis- counsel at argument right, we’ll admit “All trict court stated: Evidence Pearl Phoenix’s Cab C. did not state the basis

it.” The court Rides ruling. its of an recording was also made tapeA attempt to connect David Silver- In an Wil- conversation between August conspiracy, of- man to the Phoenix. Mr. Kaufman ob- lard and Pearl by Pearl of cab rides taken fered evidence tape of this as well. jected to the admission flights her following each of Phoenix objection without The court overruled states Nuys Airport. Van conversation, During this explanation. May May 1983 and that on your Pearl Phoenix “Is Willard asked taken to two locations Pearl Phoenix was court indicated that cool.” The brother David Silverman’s res- “near” or “close” to “co-con- was admissible as this statement testimony transcript of the idence. The spirators’ statements.” majority’s conclusion support the does not a location Pearl Phoenix went to record- Following playing of these home to David Silverman’s proximity close government counsel asked Willard ings, general manag- May 31. The May 13 or had told Pearl or David Phoenix whether Valley Company testified Cab er of the name of prior May him May that on records showed his business Mr. Kaufman supplier of cocaine. their from the passenger was taken The court then objected question. this Louise, Airport Ventura and Nuys Van objection outside argument on the heard Encino, stated The witness California. jury. Mr. Kaufman presence is a commercial portion of Encino that this had not again argued that area, five miles from approximately requirements.” its “foundational satisfied stating airport. objection overruled the The court May company’s the cab

On Pearl Phoenix visited David Silverman on trip. each passenger show that records Ventura, Winetka and dropped off at Therefore, David supplied her major business area. The witness stated with cocaine. This reasoning seductive that the distance between the intersection co-conspirators would make of all relatives Louise and Ventura and Winetka and family who maintain close ties with narcot- approximately

Ventura is six or seven traffickers, ics requiring without indepen- miles. dent evidence of their connection to the conspiracy. This cannot be the law. If it 25, 1983,Valley Company’s On June Cab is, then Mr. cynical Bumble’s observation trip business records show a from the Van may about the law be correct. Nuys Airport Waterbury. to 22601 Other established David Silverman D. Trip David Silverman’s To The Waterbury, resides at 22601 Woodland Nuys Airport Van Hills, California. Willard testified that the driver of the majority The has concluded that this evi- car that drove Pearl Phoenix to the Van dence that Pearl Phoenix took a cab to Nuys Airport on June “looked three different locations the San Fernan- very much like” David Silverman. The ma- Valley including trip do one to David Sil- — jority states that this evidence is sufficient supports verman’s an inference that home— support to a reasonable inference “that Sil- David Silverman was a member of a con- verman present at the scene and spiracy to traffic in cocaine knowledge with aware of her transfer of the cocaine.” As- agreement. majority of its The does not suming arguendo logical that this is a in- tell us logically how we can arrive at such ference, it would be indepen- insufficient surprising inference. Had Pearl Phoenix dent evidence to connect Silverman to the visited the Fernando San Mission on each conspiracy. occasion, independent proof would this be Peterson, We held in United States v. priests

that the resident are connected to (9th Cir.1977) 549 F.2d 654 that “Neither her cocaine activities? activity mere association and with a co-con- spirator knowledge nor even conspir-

The fact may that Pearl Phoenix have acy’s proven existence—not here—meets visited her independent proof brother is not require the standards we link to a defend- any part. trips act on his These lose conspiracy ant to the charged. Id. at 658. their only innocent nature if we construe majority’s The presence reliance on mere at light them in of Pearl Phoenix’s statement illegal the scene and awareness of an trans- that her brother David Silverman was her action as sufficient support to an inference supplier. evidence, however, Basic rules of contrary of connection to a permit do not us to look to the statements long law of this established circuit. co-conspirator of a until indepen- there is dent of a connection of the accused to E. David Silverman’s Concealment Of said, If Pearl Phoenix had Identity His True prior to a visit to the San Fernando Mis- upon The final evidence relied sion, priest suppli- that a resident was her majority support of its conclusion that er, majority would the believe that her visit independent evidence was offered to show to that independent proof church was Silverman was connected to the Willard- priest was a member of conspiracy? Phoenix conspiracy attempt is his to con- majority appears apply the follow- ceal agents his from the federal ing analysis concerning to the evidence questioned who him. Without discussion trips: taxi cab any authority, or citation to Pearl Phoenix went to the San Fernando concludes that this evidence “constitutes Valley three times to obtain cocaine. guilt evidence of Silverman’s of some spirator test.”) does not meet the Proof

crime, circumstantial evidence which is person knowledge conspiracy.” had of the exist to this his connection ence of associated questioned who federal officers conspirators enough to an is not connect not advise him that a did David Silverman accused to the charging him with issued warrant had been Basurto, 497 F.2d at 793. of an Proof Willard, Pearl Phoenix conspiracy with a conspiracy connection with accused’s distribute cocaine. No David Phoenix extrajudicial must be before the established circumstantial direct or conspirator statements of a can be intro prove that presented by duced into evidence. United States v. Nix prior to knowledge, had David Silverman on, n. officers, that a arrival of 3104 n. L.Ed.2d existed. cocaine distribute Fleishman, States Furthermore, the record shows Cir.), cert. 459 U.S. evasive conduct was the David Silverman’s 74 L.Ed.2d 614 attempt to arrest until result of his avoid present legally any failed to attorney arrange for his he could call admissible evidence of David voluntary When David Silver- surrender. or conduct Silverman’s words that estab voluntarily days la- man two surrendered any lished that he was a member of con ter, cooperation with his spiracy. No witness testified that David a was rewarded with two-thirds reduction any illegal act Silverman committed or bail. of the amount recommended spoke directly any indirectly words that or that Assuming arguendo under these conspiracy him to a co connected to sell circumstances, unique of iden- concealment upon by caine. Most of the evidence relied tity temporary at least a con- demonstrates to connect David Silverman to ,of guilt something, of it does sciousness conspirato consisted of the conspiracy not show that David Silverman had knowl- rial of his words and deeds sister Pearl edge of a of the existence and Phoenix. I was a member thereof. not con- would extrajudicial If we exclude state- anyone vict of three other and Phoenix, only by ments made solely the basis an- offenses of a false remaining evidence consists of request identity swer a for his while the cab Pearl Phoenix took a taxi ride to her stalling for accused was time to surrender occasion,' one he brother's residence on voluntarily. Nuys Airport during was at the Van time Willard received cocaine from his sis- II ter, gave he a false name to and that buy agents federal in order to time to make LEGAL CONTROLLING PRINCIPLES arrangements volun- to surrender himself A person may not be convicted of con- tarily. evidence establishes his associ- This (1) spiracy proves unless the sister, presence his ation with his at the (2) existed that the distribution, perhaps scene of a cocaine knowingly participated in the con- accused guilty something. about It conscious Friedman, spiracy. prove does not that David Silverman know- (9th Cir.1979). mere Neither in a ingly participant was a presence at the scene of a nor associ- crime by majority in this alleged conspirators reached ation is suffi- result with of is extension the Com- prove knowingly that the case a draconian cient to accused corruption blood. in a mon doctrine of of participated conspiracy. United Law Parliament, law Weaver, Prior to 594 F.2d its abolition States v. England the heir of a Cir.1979). provided also United v. Ba- See States or surto, (9th Cir.1974) person attainder treason convicted of property his felony not transfer (“[m]ere activity a con- could association his blood was considered heirs because Everett, corrupted. Avery v. be 317, 324, 18 N.E. N.Y. treason England,

“In attainders perpetual corruption of blood

worked person at- of the estate

forfeiture heirs,

tainted, of his or to the disinherison his heirs. those who would otherwise be were made to suffer innocent children

Thus of the offence of their ancestor.”

because Riswick, 202, 210, v. Van Otto

Wallach (1876). In 23 L.Ed. 473

92 U.S. type injustice in preclude this

order States, the Fed-

the United the drafters of provided that “no Attain-

eral Constitution Corruption Treason shall work

der of

Blood, except during or Forfeiture the Life Const, the Person attainted.” U.S. art.

Ill, today’s cl. 2. The effect of hold- § guilty if one’s of con-

ing is that sister

spiracy, may guilty he also be found of that

crime if the evidence shows no more than

mere association with his sister and that he police shortly

concealed his agreed voluntarily. he to surrender

before join agreement

I in the reached cannot my colleagues. America,

UNITED STATES

Plaintiff-Appellee, McKOY, Defendant-Appellant.

Frank

No. 84-1085. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Nov. 1984. Sept.

Decided

Case Details

Case Name: United States v. David Silverman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 16, 1985

Citation: 771 F.2d 1193

Docket Number: 83-1314

Court Abbreviation: 9th Cir.