United States v. David Silverman

cluded that the district court erred ad- WALLACE, Before ALARCON and mitting the statements of David Silver- NELSON, Judges. Circuit alleged man’s co-conspirator. Because that error prejudicial, ALARCON, we now reverse. Judge: Circuit appeals David Reversal prejudicial Silverman from based on error in his convic- tion for conspiracy to admission of evidence distribute a con- does not bar retrial. (cocaine), Harmon, trolled substance possession States (9th Cir.1980)(per curiam). We, intent to distribute a controlled substance there- (cocaine), fore, interstate address David travel in aid of racke- Silverman’s contention teering, aiding and abetting, and district court erred in instructing viola- jury flight, tion of 21 841(a)(1) U.S.C. 846 and assist the Government §§ 1952(a)(3) in determining U.S.C. and 2. He whether retrial seeks of this mat- §§ grounds. reversal on ter two is warranted.

First, argues he that the district court presenting Before the compelling rea- in admitting erred into evidence the extra- sons support conclusions, our we set judicial alleged statements of an co-conspir- pertinent forth the facts to a clear under- ator. He claims apart standing the con- of the issues we must resolve in tested themselves, insufficient this case. brothers, Frank had two FACTS I. PERTINENT Silverman, appellant David both of whom in Limine A. Motion part of the San resided the western Silverman, through trial, David Prior to Valley. Fernando Kaufman, filed a M. attorney Bruce having departed in a cab. After Pearl the district requesting that in limine motion hours, or three she away for two hearsay statements exclude certain airport gave and a returned to the Willard sister, Phoe- Pearl by his allegedly uttered containing ounces of co- package about six ground that the Govern- (Pearl), on the nix caine. a to demonstrate be unable ment would upon admission fact which

preliminary Zeitziff, Willard, again to and Pearl flew Silver- depended Airport May 1983. Nuys the Van —David alleged conspiracy. to the man’s connection again a for Pearl. The called cab Willard the motion “with- court denied The district testimony transcript following contains to the admission object to prejudice out concerning this event: trial or to the time of such evidence Q. you got there did When first what same.” move to strike do, Zeitziff do? you what did Bob plane. A. He to take care of the went Accomplice Willard Testimony B. Q. you do? What did was principal witness The Government’s A. I to call the cab. went (Willard). testified Willard David Willard Q. do? What did Pearl he in which plea agreement pursuant to a phone. pay A. to the She went in ex- the Government to assist promised Q. did she do? What certain promise to dismiss change for its somebody. called A. She charges against him. Q. did she call? Who purchased co- testified that he Willard her A. Said brother. it to Robert Pearl and resold caine from coun- occasions, MR. KAUFMAN Zeit- (Zeitziff). [Silverman’s three Zeitziff On he, Objection. airplane in which provided private sel]: ziff Reno, Nevada Willard, flew from and Pearl is the basis of the THE What COURT: to cocaine. Nuys, California obtain to Van objection, please? hearsay. Also It’s MR. KAUFMAN: May place on flight first took this witness. a conclusion of calls for Nuys, landing in Van Willard

1983. After request Valley [government a cab coun- called Cab Co. MR. SULLIVAN Honor, as follows concern- testified I it’s not hear- Pearl. Willard Your submit sel]: at the conduct and statements ing basically explaining Pearl’s what say. He’s airport: did. witness for her?

Q. you And called cab objection right, All THE COURT: her and she went overruled. I called a cab for will be A. phone at which pay and

outside to show that this Again, record does not time— so, or, completed if which in fact call was pay phone? Q. Why go did to a she occasion, Pearl called. On this brother call going to told me she was A. She or airport for an hour away from the somebody. return, gave she Willard Upon her two. go- Q. you Did she tell who she containing approximately package another ing call? of cocaine. six ounces Yes, did.

A. she Willard, Pearl, Zeitziff flew Q. Who? a third time on June Nuys Airport for Van A. Her brother. upon land- testified that 1983. Willard procedure.” “same ing they followed whether Pearl does not reveal The record follows: testified as Willard or, so, if whom she this call completed go? Q. you Where did that Pearl The record does show called.

A. I to call a cab. photograph went seen a of him at Pearl’s house prior to June Q. company? cab Same company A. Same cab Phoe- Mrs. shortly Willard was arrested after his phone nix went to make a call. return following to Nevada trip the third Q. you Did she tell who she called? Southern promised California. He coop- Yes, erate A. sir. part Government. As bargain, agreed Willard to record his con- Q. Who? versations with husband, Pearl and her A. Her brother. David Phoenix. Objection, MR. KAUFMAN: Your Honor. The Government tape introduced re- cording August an

THE right, COURT: All 1983 conversation that on the between Willard and ground same The previously? as Pearl. court overruled objec- David Silverman’s Yes, MR. KAUFMAN: Your Honor. tion to playing tape of this without THE Objection COURT: will be over- explanation. During conversation, this ruled on previously. the same basis as Pearl, Willard asked your “Is brother testimony This does not establish wheth- cool?” responded, Pearl worry.” “Don’t er completed. the call was It should also The court indicated that this statement was be noted that the court did not articulate admissible as “co-conspirators’ state- previous ruling. basis for its quot- ments.” portion ed transcript concerning Following playing of these record- 31, May extrajudicial statement set ings, Government counsel asked Willard forth above. We must assume that whether Pearl or David Phoenix had told court objection overruled the it because him, prior 13,1983, May to the name of her accepted prosecutor’s theory that Wil- supplier of Kaufman, cocaine. Mr. Silver- lard “basically explaining what the attorney, objected man’s question. to this

witness did.” The then argument court heard on the ob- testimony Willard’s continued as follows: jection presence outside the jury. of the Q. you Did she tell her brother’s argued Mr. Kaufman that the Government name? had satisfied its require- “foundational Yes, A. sir. ments” for the admission extrajudi- Q. was it? What cial of a co-conspirator. The A. David. objection overruled the stating that it Q. you Did tell she his name? last close, was “a fairly tough question for the A. court to tackle Silverman. but nevertheless I think that it does meet the test Q. Did she leave [Fed.R.Evid.] cab? 801(d)(2)(E) going and so I’m permit me, A. Excuse she didn’t me she tell question to be answered.” The court did called David Silverman at that time. I not discuss the evidence that it believed knew the name was Silverman from be- government’s satisfied burden of estab- fore. lishing the preliminary fact of Silverman’s Willard further testified that on this oc- connection to the conspiracy. casion, after having away from the Following the court’s ruling, Willard tes- airport hours, for several Pearl returned to tified as follows: airport in a little blue car driven man. Willard made an in-court identifica- Pearl Phoenix. I’m not exactly clear on Silverman, tion of “lookpng] like me, the dates when she told but it was in individual” driving who was the car. On house, Floriston at their the Phoenixes’ examination, redirect Willard stated that explained and she house to me that the driver very “looked much like him David Silverman had essentially acquired Willard [David testified that Silverman].” cocaine business and that was where he had Silverman, never met David but had getting she was the coke from. Concealment D. David Silverman’s testified that Willard noted should be It hearsay Identity His extrajudicial unrecorded by Pearl sometime made statement upon by relied piece of evidence The final Furthermore, there 13, May 1983. prior to connect David Silver- Government any wit- record from is no con- his evasive man furnished person who saw the who ness Drug En- agents of the when three duct 13, 1983, May May Pearl on cocaine (DEA) called at Administration forcement 1983. or June agents the DEA testified home. One of 23,1983, p.m., 4:00 August at about on Cab Rides C. Evidence of knocked on the her fellow officers she attempt to connect Silverman In an Waterbury, at 22601 of the residence door ev- offered conspiracy, the Government Hills, David Silver- California. Woodland person some cab rides taken idence response. opened the door man May Nuys airport on from the Van identified themselves as DEA officers 31, 1983, June 1983, May they wanted to ask agents and stated that Valley Co. manager Cab general questions. Al- some David records showed business testified that a war- though the DEA knew passenger was May Silverman had for the arrest David rant Airport to Nuys from the Van taken issued, this they did not then disclose Ventura, in Enci- of Louise and intersection The man at the door to him. information that this stated no, The witness California. not home. was replied that David Silverman zone, in commercial is located a intersection number, phone a re- agents DEA left The airport. miles from the five approximately be informed that David Silverman questing records dis- that his further testified He he one of them when he should contact 31, 1983, passenger a May on closed that returned. Nuys Air- Van transported thereafter, agents DEA were Soon intersection of Winnetka port to the through a radio transmission that advised area. Ventura, major commercial also a Waterbury had contacted 22601 at someone the distance be- stated that The witness agents DEA returned The DEA office. on Winnetka Ventura Louise and tween again Silverman the residence. David or seven approximately six is Boulevard falsely door. He identified at the appeared introduced to No evidence miles. The himself, claiming Jim Walker. to be passenger Pearl was the prove that time, then, dis- the first agents for DEA May The record May 13 or 31. cab a warrant Mr. there was “that closed whom, anyone, if regarding equally silent agents The DEA then arrest.” Silverman’s exiting after passenger contacted should contact David Silverman stated locations. at these two commercial cab possible. record DEA as soon also company’s records The cab business agents that the DEA no evidence contains 1983, 25, passenger a that on June showed of the David Silverman informed ever Airport to Nuys transported from Van the warrant or the charges contained evidence estab- Waterbury. Other 22601 alleged crimes to relationship of resided David lished that Silverman of the narcotics laws. or to violations sister Hills, Waterbury, Califor- Woodland 22601 away driving DEA were theAs iden- an in-court The cab driver made nia. area, supervisor contacted their from the passenger on this Pearl as the tification attorney that an and stated them radio stipulated, The Government occasion. him that David Silverman was advised had however, July 21,1983, the Govern- that on in at a later date. willing turn himself spread of had shown driver ment voluntarily surrendered David Silverman the driver from which photographs, twelve his volun- As result of days later. two passenger person as the another identified surrender, reduced tary Waterbury on June transported to 22601 by two-thirds. the bail 25.

576 (1987); 144

E. Motion to Strike 97 L.Ed.2d United States v. David Silverman’s Co-Conspirator’s 1329, Fleishman, (9th Cir.), Statements 1337 684 1044, denied, 464, cert. 103 S.Ct. the Government’s case-in- At the close of (1982); 74 L.Ed.2d 614 United States v. chief, to strike the David moved Weaver, (9th Cir.1979); 594 F.2d statements, evidence of Pearl’s out-of-court Testa, United States v. 548 F.2d grounds “on the that the Government has (9th Cir.1977); Ledesma, United States v. lay required by failed to the foundation (9th Cir.), denied, 499 F.2d argued, Court.” David Silverman inter cert. alia, that the record contained no evidence U.S. L.Ed.2d 298 independent of the statements themselves (1974). preliminary These facts must be conspiracy. to connect him to the by preponderance shown evidence. Bourjaily, 107 judge The trial he commented that had proof conspiracy “trouble” with “the Our standard of review is uncertain. so far as David Silverman is concerned.” Prior to the in Bourjaily, decision we re pressed judge prosecutor trial viewed de novo a district court’s determi identify connecting the evidence David Sil- nation that the Government had sufficient response, verman to the ly predicate established the factual for ad prosecutor summarized the evidence dis- mission of co-conspirator’s statement. judge cussed above. The trial stated that Smith, See United States v. 790 F.2d he question” would consider “serious (9th Cir.1986) (whether Government overnight ruling and announce his requisite has made preliminary showing of morning. question “is a subject law day, judge The next the trial denied review”); de novo United States v. Ro David Silverman’s motion to strike the co- sales, (9th Cir.1978)(Wal conspirator’s judge statements. The trial lace, (whether J.) Government has made did not discuss the evidence on which he requisite preliminary showing of conspir ruling. judge based his The trial ex- acy law,” question “is a hence “we are plained: necessary “All that is is that there ‘clearly not confined to the erroneous’ or independent proof be that David Silverman some review”). other restricted standard of slight a had connection to the conspiracy or The dissent cites Bourjaily prop for the say slight some cases evidence of a connec- osition that “the district court’s conclusion conspiracy tion to the By was offered. that preliminary facts have been estab either test there is that much evidence. by preponderance lished a of the evidence That slight is there is a connection shown is reviewed for clear error.” Dissenting and up.” that’s about what it adds 583; op. at see id. at 585-586. The Bour II. Court, however, ANALYSIS jaily did not address the review, issue of standard of nor did it un A. Co-conspirator’s Admission equivocally declare prop which standard is Statements er. Gordon, See United States v. 844 F.2d Federal Rule Evidence 1397, (9th Cir.1988)(“The appropriate 801(d)(2)(E)provides: “A statement is not standard of review explicit ... was not an hearsay if ... statement is offered [t]he holding in Bourjaily.”). against party a and by is ... a statement a review, Under the de novo standard of co-conspirator party during of a the course we do not defer to the lower ruling court’s and in furtherance of the conspiracy.” freely but anew, consider the 801(d)(2)(E). matter as if Fed.R.Evid. An accused’s no decision had knowledge been rendered participation of and below. Ex in an al FBI, leged (9th ner v. conspiracy F.2d preliminary are facts Cir. 1980). must be established before Under the more extrajudicial “clearly deferential co-conspirator standard, statements of a can be erroneous” we accept intro must duced into Bourjaily unless, evidence. ruling v. United lower court’s reviewing after States, 2775, 2778, record, 107 S.Ct. the entire we are “left with the accept the defendant would cocaine that a mistake firm conviction definite co-conspirator. at 2781. The co- Id. United States committed.” has been conspirator’s statements were corroborated Co., 333 U.S. Gypsum States designat- appearance at the (1948), by defendant’s 525, 542, 92 L.Ed. 746 acceptance of place ed time and v. R.L. Edinburgh Assur. Co. in quoted the cocaine. Id. (9th Cir. Corp., 669 Burns Car, 1982); v. Travel Rent A Inc. Dollar Bourjaily Supreme Court held (9th Co., Indem. ers in consid- that the trial court had not erred Cir.1985). de- ering co-conspirator’s statements to termine whether the had es- Government carefully the record have reviewed We tablished, by preponderance a of the evi- here- the reasons discussed this case. For dence, preliminary facts of the defend- and firm in, left the definite we are with knowledge participation of and ant’s alleged the admission of conviction alleged conspiracy. at 2782. Because Id. in this case was co-conspirator’s statements fully contested statements corrob- were mistake, prejudiced one that serious a orated evidence of defendant’s own ac- requires us to conviction defendant. Our tions, unnecessary to the Court found it ruling, whether the district court’s reverse could decide “whether courts below novo ruling reviewed under the de solely upon co-conspira- relied have [the standard. For “clearly erroneous” or the hearsay statements to determine that tor’s] not, not, reason, and do decide we need conspiracy had established....” change has effected Bourjaily whether added); (emphasis at 2781-82 see id. Id. ap- heretofore of review in the standard (Blackmun, J., joined by Brennan and plied in this circuit. Marshall, JJ., (“It dissenting) is at least Bourjaily ruled in Supreme Court heartening to see that the Court re- ... plain meaning of Fed.R.Evid. question co-conspira- serves the whether may consid 104(a) the district courts is that alone, any indepen- tor’s statement without hearsay statements them er the contested evidence, the existence dent could establish evidence, in selves, along all other partic- and a defendant’s had determining whether the defendant it.”). ipation in in the con knowledge participated of and question left has answered the This court The Court spiracy. 107 S.Ct. at 2780. á Bourjaily. We have ruled that open prohibi extent that explained: “To the [the statement, co-conspirator’s out-of-court bootstrapping set forth in against tion alone, standing is insufficient to establish States, 60, 62 315 U.S. Glasser United knowledge had of and the defendant (1942) meant that 86 L.Ed. 680 S.Ct. ] particular conspiracy. in participated a hearsay not look to the state courts could (for Gordon, co-conspira- F.2d at 1402 any purpose, it has ments themselves admissible, to “there tor statements be 104(a).” superseded by Rule clearly been evidence, aside from the must some be at 2782. Id. S.Ct. statements, of the existence proffered hearsay Bourjaily, In the contested and the defendant’s involve- conspiracy to by offered the Government statements ment”). requirement To abandon amply preliminary facts were prove the proffered aside from the some evidence by The co- presented other evidence. corroborated statements be co-conspirator’s an FBI infor- conspirator Bourjaily knowingly partici- in told defendant show that the in a the defendant was involved alleged conspiracy mant that in would be pated co-conspirator, self-validating. conspiracy with the render all such agreed buy ruling and distribute “eliminate one of defendant had a would Such cocaine, this ex- safeguards reliability that the defendant kilogram a few pos- park- hearsay emption in his car at a certain hotel from the definition be would time, Bourjaily, 107 S.Ct. at ing certain that the co-con- sesses.” lot at a (Blackmun, J., Mar- joined by Brennan and the cocaine from the spirator would obtain shall, JJ., dissenting). lot, parking and that the informant circuit, leading Accordingly, believing this when the listener into the con- co-conspirator’s (and proponent spiracy stronger of the state with more members proof of defend members) ment offers no additional different and other aims than in participation in knowledge ant’s of and has.”). fact it must be excluded conspiracy, the statement Although, instructs, Bourjaily Fed.R. Where, hand, on the other evidence. 104(a)permits judge Evid. a trial to consid- offered, proof the court some additional is co-conspirator’s er the out-of-court state- proof, such must determine whether in assessing ment the statement’s admissi- co-conspirator’s state light viewed in of the bility, 104(a) Rule does not diminish the itself, by preponder ment demonstrates a unreliability inherent of such a statement. ance of the evidence that defendant knew Because of presumptive unreliability, participated conspiracy. of and in the co-conspirator’s implicating statement determining proponent whether alleged defendant in the conspiracy must showing permit has made a sufficient to by fairly incriminating be corroborated evi- the introduction into the co-con- wholly dence. Evidence of innocuous con- statement, spirator’s the district court by duct or statements the defendant will must in mind that bear out-of-court state- rarely sufficiently be corroborative of the presumptively ments are unreliable. See co-conspirator’s statement to constitute Bourjaily, 107 S.Ct. at 2781. When proof, by preponderance evidence, out-of-court statement is one made partici- defendant knew co-conspirator purporting implicate oth- pated conspiracy. Evidence of inno- conspiracy, reliability ers an unlawful its little, cent conduct does if anything, to en- doubly suspect. “[C]o-conspirator state- reliability hance the of the co-conspirator’s ments often ... have been considered to be statement. A co-conspirator’s statement, long somewhat unreliable. It has un- is presumptively which in- unreliable hence derstood that such statements in some alone, standing admissible is no more reli- may constitute, best, nothing cases more coupled able with evidence of conduct or, than the ‘idle chatter’ of a declarant is completely consistent with defend- worst, gossip.” Bourjaily, malicious ant’s conspiracy. unawareness of the (Blackmun, J., joined at 2790 Bren- Bourjaily provides example itself one Marshall, JJ., nan and dissenting); accord of incriminating sort evidence that suf Wong States, Sun v. United ficiently co-conspirator’s corroborates a 490 n. 419 n. 9 L.Ed.2d establish, statement to by preponderance (1963) Williams, (quoting The Proof of evidence, defendant’s connection to (1958)) (“ Guilt 135 ‘Even where ... In Bourjaily, the evidence accomplice evidence of an becomes admissi- showed that the defendant had committed against fellows, ble suspect it remains a criminal act that furthered evidence, because of the tainted source co-conspirator’s described in the statement. ”); from Davenport, which it comes.’ See 107 at S.Ct. 2781. Our own cases Clause and the Co-Con- Confrontation provide examples. See, similar e.g., spirator United Exception in Criminal Prosecu- Llano, Crespo 1532, States v. de 830 F.2d Analysis, tions: A Functional 85 Harv.L. (9th Cir.1987)(defendant 1543 1378,1386-87 (1972)(statements present was Rev. made during negotiations cocaine, by co-conspirator for sale of prior to ob termination of sample tained conspiracy government for “may ... suffer from the undercover taste, agent to exclusively price same kinds of translated self-serving of cocaine mo- Spanish possibly faulty English, tives and to appeared memories allegedly many post-termination prearranged infect location for the cocaine trans statements”); Levie, action); Paris, Hearsay United and Con- States v. 827 F.2d 395, spiracy: (9th Cir.1987) A (defendant Reexamination 400 the Co-Con- met with spirators’ Exception Rule, Hearsay intermediary just to the provided before latter 1159, 52 (1954) (“The Mich.L.Rev. government 1165-66 agent undercover with cocaine conspirator’s likely interest is sample, to lie in mis- and defendant arrived with one kilo-

579 time and lo- prearranged presump- cocaine are gram of tor’s out-of-court statements transaction). presumptively tively cation unreliable. One unre- liable statement cannot be invoked to cor- course, proof Of evidence short of another, particularly when each roborate may commission of a substantive offense allegedly uttered the same declar- was show, by preponder also sufficient be ant.1 evidence, ance of the the defendant’s know admissibility of the contested state- ing participation alleged conspiracy. in the ments, therefore, hinges on whether the See, Stewart, e.g., United States v. 770 proffered by additional 825, (9th Cir.1985)(defendant F.2d 831 was to demonstrate David Silver- Government present at immediately seller’s house be conspiracy connection to the suffi- man’s transactions, fore drug each of three seller ciently corroborates the statements to over- immediately and defendant met after two presumed unreliability. come their We transactions, palm and defendant’s that the additional evidence fails conclude print envelope was found on that contained provide sufficient corroboration. drug), denied, 1103, cert. (1986); 88 L.Ed.2d 922 Evidence that David Silverman drove Mason, (9th States v. 658 F.2d airport sister to the on one occasion makes (defendant Cir.1981) only person was the only slightly probable more his connection visit seller telephoned between time seller hearsay do the state than his source to obtain contraband and time little ments alone. Such evidence shows provided government seller contraband to presence in the of a more than that he was agents). undercover conspiracy. involved relative who was attempted That Pearl to visit Silverman case, contrast, the present In the cocaine-buying expedi during one of her co-con proffered from the aside is, likewise, only marginally probative tions consist completely spirator’s statements hence conspiracy, involvement that David Silverman a conclusion ent with the contested marginally corroborative of conspiracy. The evi was unaware consistently recog statements. We have insufficiently corroborative dence is mere nized that evidence that a defendant statements to overcome out-of-court Pearl’s conspir of a ly associated with a member unreliability that makes presumption probative value demon acy has little standing inadmissible those statements to that strating defendant’s connection alone. See, v. e.g., United States Willard, Pearl told him that According to Cir.1979) (9th Weaver, F.2d her cocaine source. David Silverman passenger in (evidence that defendant was Nuys addition, trip to the on each Van package of cocaine wrapped truck and allegedly told Willard airport, Pearl passenger’s seat partly found under called, call, an or had going to she was “slight” even did not constitute responded Pearl also unspecified brother. alleged conspir connecting defendant inquired worry” when Willard “Don’t Griffin, 434 acy); v. United States concerning “cool” her whether brother Cir.1970) ap (9th (quoting with for cocaine. payment Ragland, proval United States denied, (2d Cir.1967), cert. 476-77 mutually cor statements are Pearl’s 19 L.Ed.2d assumes, the dis U.S. only if one roborative alleged (1968)) with an (“[A]n association does, indepen that each is apparently sent more, is insufficient conspirator, without dissenting op. 584. dently reliable. See for the necessary foundation establish the assumption is erro that such We submit incriminating admissibility of the above, co-conspira- [co-con- a explained neous. As however, any more reliable them does not make airport she was that statements at 1. Pearl’s Pearl’s statement any corroborative of or more admissible to going "her brother" were to call 803(3). particular her identifying brother —David—as a See Fed.R.Evid. prove Pearl’s intent. admissible, cocaine source. were such statements The fact that 580 statements.”)) denied, statements,

spirator’s] cert. preponderance of the evi- 2170, U.S. 29 L.Ed.2d 160 dence fails to demonstrate that David Sil- (1971). participated verman knew of and alleged conspiracy. Accordingly, the dis- Although of Pearl’s association trict court in admitting erred Pearl’s extra- David, light with her brother viewed judicial identifying statements David Sil- Willard’s statement that Pearl told him verman as her cocaine source. source, that David was her makes the hear- say degree, more reliable to small some An error in the admission of evi simply evidence is innocent to demon- too requires dence only if the error reversal conspiracy strate David’s connection party’s affected a rights. substantial See by preponderance evidence, i.e., (1982) 28 U.S.C. (appellate court § likely make the connection more than not. give judgment shall regard without to er significant It is that Government rors that do rights not affect substantial presented no evidence that David Silver- parties); United Murray, States v. man was aware Pearl delivered co- (9th Cir.) (“An erroneous caine to after dropped Willard evidentiary ruling will be if reversed a de airport her off at the on June fendant right shows substantial has Likewise, evidence that David Silverman affected.”), denied, cert. temporarily identity concealed from the (1985). 88 L.Ed.2d 335 In DEA does sufficiently not corroborate present case, Pearl’s contested state prove, Pearl’s prepon- ments undoubtedly were the bases for the evidence, derance of the he knew of or jury’s conclusion that David Silverman was participated in with which guilty The district court’s charged. he was His concealment occurred error in admitting statements, there trip two months after Pearl’s last to Van fore, necessarily prejudicial and com Nuys. explain 11(B)below, As we Part pels Wright reversal. C. & A. Mil delay, coupled this two-month with the ab- ler, Federal Practice and Procedure any showing by sence of the Government (1973)(“[I]f at 289-90 § that David Silverman was aware that he support is insufficient to the verdict with suspected of involvement in any co- evidence, out the erroneously admitted crime, caine-related any renders inference error prejudicial.”) (footnote must be held guilt from such improper. concealment omitted). summary, recognize we B. The Flight Instruction Modified proffered Government some additional evi- dence to corroborate Pearl’s contested ex- ground Reversal on the of errone trajudicial statements. district court ous admission co-conspirator’s state characterized the additional evidence as preclude ments does not retrial of David “slight” but nevertheless found it suffi- Silverman on Jeopardy grounds. Double support cient to admission of Pearl’s state- See Harmon, United States v. 801(d)(2)(E). ments under Rule agree (9th Cir.1980) We (per curiam) (Double that the additional “slight,” evidence is if Jeopardy Clause does bar retrial after that, disagree but sup- error). reversal for trial guidance For the ports admission of Government, Pearl’s statements. We of the and the district court in believe that the prof- additional evidence retrial, the event of we next address the fered marginal- Government was so contention that the district court erred in ly corroborative that it failed to overcome instructing jury might that it guilt infer presumptive unreliability of Pearl’s from David Silverman’s concealment of Thus, statements. even the addition- identity from the DEA who called al evidence light is assessed of those at his home.2 2. The jury trial court instructed the committed, as follows: accused of a crime has been The intentional concealment of a defendant not of course sufficient in itself to establish crime, after the of a guilt; which, commission or after he is but it is proved, may a fact if

581 per reported progress police Flight only had investi instructions are valid if support gation carrying there is evidence sufficient to and defendant had been name and address of criminal defense at chain of unbroken inferences from the de guilt torney arrested), denied, fendant's behavior to the defendant's cert. 469 845, 156, charged. U.S. 848, 105 S.Ct. 83 L.Ed.2d 93 & of the crime United States v. 164, (1984); Feldman, 544, (9th Cir.1986), 105 S.Ct. 83 L.Ed.2d 100 788 F.2d 555 Hernandez-Miranda, denied; 1067, 955, United States v. 601 cert. 479 U.S. 1104, (9th Cir.1979) (upholding (1987). F.2d flight 93 L.Ed.2d 1003 The Fifth Circuit requirement clearly, instruction where defendant had has described this ex arraigned pIed guilty prior plaining justi and had that four inferences must be fleeing and, therefore, "(1) knew about fied: flight; (2) from the defendant's behavior to charges against him). flight We also consider to consciousness of immediately guilt; (3) guilt whether the defendant fled af from consciousness of Feldman, guilt concerning ter the crime. See 788 F.2d at consciousness of charged; the crime (finding flight improper (4) instruction from consciousness of where defendant's behavior was not imme guilt concerning charged the crime to actu diate); Hernandez-Miranda, guilt charged." 601 F.2d at al of the crime (stating flight Myers, (5th 1106 instructions should States v. 550 F.2d given flight Cir.1977), denied, not be unless was immediate or cert. 439 U.S. charges against (1978). defendant knew about the S.Ct. 58 L.Ed.2d 149 We have him); Myers, Myers analysis approval. see also 550 F.2d at 1051 cited the ("The immediacy requirement impor See, e.g., Feldman, 555; 788 F.2d at Unit tant.... The more remote in time the Guerrero, ed States v. (9th Cir.), 756 F.2d alleged flight denied, is from the commission or cert. offense, greater (1984). accusation of an 83 L.Ed.2d 270 something likelihood that it resulted from proof The inference from of an unfo feelings guilt concerning other than guilt cused consciousness of to conscious offense."). guilt concerning charged ness of the crime proven especially problematic. Flight totality has Under the of the circum identity present case, and concealment of can be consist stances in the we find that it innocence, guilt give flight. ent with or with of miscon was error to an instruction on David Silverman's concealment of his iden duct unknown to the Government.3 Ac tity cordingly, flight lacked sufficient connection to the we must evaluate instruc charged. by looking support criminal acts for which he was tions for facts that flight Although agree inference from to a consciousness of we with the Government that it is reasonable to infer from the fact guilt specific charged. crime For identity example, that David Silverman concealed his we consider whether the defend suspect police suspected that he was conscious that he was ant knew the him of a particular wrongdoing, crime. See United States v. ed of some the Government 7'ille, (9th Cir.) (uphold has offered no evidence from which it can guilt ing flight newspa be inferred that he was conscious of instruction where local feeling guilt necessarily jury light a actual doesnot reflect be considered the of all other case, determiningguilt guilt. evidencein the innocence. Whetheror not evidenceof con- cealmentshowsa consciousnessof or jury always will bear in mind that the guilt, imposesupon law never criminalcase the burden or a defendantin a significance any duty calling to be attachedto such evidence, exclusively are matters within the any producingany witnessor evidence. province jury. your Althoughmany considerationof the evidenceof 3. of our cases have involved you concealment are consistentwith innocence. These clude fear of ness to confrontthe appear shouldconsiderthat there flight concealment, principles rather than many fully reasons for this which are apply equally discussedbelow to both. See may in- Feldman, (defendant 788 F.2d at 555 altered being apprehended,unwilling- appearanceby shaving al). shortly beard beforetri- police, or reluctanceto suggest as a Witness.Letme alsothat Hernandez-Miranda, offense. any 1106; of There is no cocaine-related 601 F.2d at White, record that evidence in the David Silver- United States v. (8th Cir.1973) (flight of his sister’s criminal con- improper man was aware instruction agents DEA informed him where duct or “defendant was not advised of the during suspected that he was charged their visits crime ... ... at the time of his any having flight, attempted committed cocaine-related arrest occurred over shows, crime. For all the evidence he five months after charged, the transaction might concealing identity have been his and there no indication that defend- [was] having he was conscious of because com- ant knew at the flight time of his that he drug-related being sought mitted a offense unknown to was charged”). the crime Moreover, the Government. Because uncontradict- the other nonhearsay evidence in- suggests against ed evidence that David Silverman troduced him was insufficient to identity his concealed order to make connect him to conspiracy, the instruction arrangements through attorney flight necessarily sur- was prejudicial. voluntarily possible render rather than face III. CONCLUSION above,

arrest his residence. As noted cooperation with the Government in We have concluded that the district court surrendering voluntarily resulted in a two- in admitting erred Pearl’s out-of-court thirds reduction in bail. statements implicating David alleged conspiracy under Fed.R.Evid. Further, David Silverman’s con 801(d)(2)(E). The Government failed to identity cealment of his occurred two present corroborative evidence sufficient to trip months after Pearl’s Nuys last to Van establish, by preponderance of the evi- and the last criminal act committed in fur dence, the preliminary facts of Silverman’s alleged therance of conspiracy.4 This knowledge of participation in the con- delay, two-month coupled with the absence spiracy. Since the improperly admitted any showing by the Government that hearsay was the principal evidence that David Silverman was aware of the nature David Silverman guilty was conspiracy, charges against of the him at the time he the court’s admitting error in the state- identity, concealed his any renders infer ments prejudicial. guilt ence of from such concealment im proper. Feldman, 555; See 788 F.2d at REVERSED. immediately Evidence that a recognize defendant fled charged We that Silverman was not after a crime supports was committed with, an infer- supplying with discrete acts of cocaine but flight by alia, ence that the was motivated a con- participating inter ongoing conspir- in an guilt sciousness of acy. that crime. dissenting As the time op. See at 589-590. The dissent between the commission of the offense and the would find flight that Silverman’s was "immedi- flight grows longer, grows the inference flight weaker. ate” during because the “occurred] or Myers, 550 F.2d at 1051. appropriate within an conspiracy time after the and ... directed [was] toward law case, enforcement Under the circumstances of this the two- agents investigating the crime.” Id. at delay 589-590. month between the last act in furtherance approach, Under the flight dissent's alleged Silverman's conspiracy and David Silverman’s would have been "immediate" whether identity it oc- concealment of his undermines the in- months, days, curred two years two flight or even two ference that Silverman's was motivated after commission of the last act in furtherance consciousness of involvement in an unlawful alleged conspiracy, of the acy conspir- because the Pearl. The fact that he con- ongoing identity itself was immediately upon being cealed his as a matter of law. con- view, approach our agents such an fronted the DEA is inconsistent both irrelevant. The not, time, logic immediacy with the require- did at that behind the inform Silverman suspected having precedents, that he ment and any with our committed agents which measure Moreover, immediacy crime. flight by because of a did defendant’s refer- See, long Feldman, confront alleged e.g., him until after ence to some the last discrete event. act (defendant's conspiracy, in furtherance flight 788 F.2d at 555 Silverman’s reaction must flight reasonably crime"); cannot be said to be related be "immediate United States v. offenses, charged other, Sims, (9th Cir.1980) the exclusion ("[fllight unknown offenses. immediately The evidence of Silver- after the commission of a therefore, flight, support crime’’); Hernandez-Miranda, man’s does not an in- 601 F.2d at 1106 guilt (defendant's ference of of the offenses flight with which he "immediately must be after charged. crime”). the commission of a

583 to the district standard clearly erroneous dissenting: Judge, WALLACE, Circuit co-conspirator state- finding that court’s con Silverman’s reverses majority further- during and in made were ments court that the district ground on the viction v. States conspiracy. United of the ance of a statements two improperly admitted Cir.1986). (9th 789, Smith, 794 exception hearsay under the co-conspirator ex Supreme Court the Bourjaily, In of Rules Federal 801(d)(2)(E)of the of Rule ex that requiring the rule rejected pressly analysis of the majority’s Evidence. conspiracy membership in a of and istence two state admitting these for foundation of independent by evidence be established of law inconsistent a rule develops ments Bour hearsay statements. the contested in Bour decision Court’s Supreme the with the Although S.Ct. at 2782. 107 jaily, 171, 107 States, 483 U.S. v. United jaily the question the whether open left Court (1987)(.Bourjai 2775, L.Ed.2d 144 97 S.Ct. the could constitute challenged statements factual affirm the duty ), to and with our ly admissibility, it their for own sole basis not they if are district court findings of the preliminary court, making in a “a held that In I dissent. therefore clearly erroneous. Rule under determination factual majori the disagree with addition, I must hearsay may the examine 801(d)(2)(E), either for improper it was holding ty’s that Id. sought to admitted.” be evidence consider jury to or the the court explicit holding Bourjaily in The Court’s his to conceal attempted that Silverman using against prohibition the ly abolished the investigating identity from DEA bootstraps by its own hearsay itself to “lift charged. was which crime with Glas competent evidence.” to level the intro evidence light of in other Considered 74-75, 60, 62 States, U.S. 315 v. United ser in involvement prove Silverman’s to duced (1942), which 467, 680 457, L.Ed. 86 S.Ct. conduct conspiracy, drug Silverman’s the circuits, including by eleven followed was that he inference an support properly could 1 J. Bourjaily. own, to prior our criminal guilt of the conscious Evi Berger, Weinstein’s & M. Weinstein convic ultimately led to his activity that (1986) (collecting dence, n. 33 11104[05] therefore, Silver- would, affirm I tion. evidence independent adopting cases man's conviction. so, held doing the Court requirement). a question whether preliminary I provided is a has been foundation proper deci recent Supreme Court's Prior court’s district one, that the and “factual” co-conspirator state Bourjaily, in sion facts have been preliminary conclusion only if this circuit in were admissible ments evi preponderance established evidence “independent found Bourjai error. clear is reviewed dence and of the conspiracy of the (“the existence of a existence 2778 S.Ct. at ly, 107 it,” conclud and connection involvement petitioner’s defendant’s and conspiracy dur fact”); made both id. statement questions “the ed that preliminary it are conspiracy.” of the court’s (holding in furtherance ing and 2782 at 548, 555 had government F.2d Layton, v. finding States factual United denied, involvement 465 U.S. Cir.1983), defendant’s (9th cert. established (1984). We preponderance 79 L.Ed.2d 104 S.Ct. erroneous). The clearly “sub provide government required Rule 104 the con that under evidence,” independent of stressed Court stantial Evidence, judge, the trial demonstrating statements, Rules Federal hearsay tested determi factual slight preliminary making least had “at defendant whatso “any nation, may consider existing an connection” in privileged exception of ever,” Rabb, States judge is that the formation, id. denied, Cir.1984), 471 U.S. (9th cert. it give the evidence and to “receive (1985). We entitled 85 L.Ed.2d experi judgment weight such of review standard applied a de novo Unit- quoting Id. counsel.” ence conspiracy and of a independent proof Matlock, ed 164, 175, States v. 94 with undisputed pur- 988, 995, (1974). L.Ed.2d 242 pose of each of her visits to the Nuys Van area cocaine, was to obtain the district A. court could properly infer that the “broth- er” Pearl referred to on each occasion was With these governing mind, principles in Silverman, David purpose and that the it is clear that there adequate was evidence phone each call was to arrange meeting a before the judge support trial to his deter- with is, her course, source. It possible that mination the government had satisfied speculate to that may Pearl plac- its have been burden of establishing Silverman’s con- ing a purely brother, social call to her or nection to the conspiracy. question The that actually she intended to before call differ- the trial court was a narrow one. ent However, brother. it is not our government The func- presented overwhelming tion to determine which evidence inferences to co-conspirators that draw Pearl and Wil- from the evidence of Pearl’s lard flew to on the San Valley Fernando on appeal. As the Court stated in three Bourjaily, purpose occasions for the of obtain- making in an admissibility determination, ing occasion, cocaine. On each Pearl left judge “the should receive the the in and airport evidence cab and returned one to give it weight such judgment as his three hours later and with several ounces of experience counsel.” 107 Thus, cocaine. question before the We do not sit to reweigh court evidence be- whether Pearl and Willard fore court, the trial only but obtained to cocaine from determine source Van whether the trial Nuys area, court’s conclusions but from were whom Pearl obtained clearly erroneous. Id. cocaine on each occasion. government presented evidence that pieces Pearl several intended to call which, Silverman, evidence combination, standing alone, arguably tended in- to that show Pearl sufficient to obtained the corroborate her cocaine statement that from Silverman First, on each Silverman was her source. occasion. There is no Willard, an evidence admitted actually member of Pearl the con- contacted Sil- spiracy, during testified that verman any Pearl explicitly had these calls. How- ever, brother, government identified her Silverman, David produced as additional her cocaine tending source. On evidence occasion, another to show that Pearl in fact asked if Willard her contacted Silverman and brother was obtained the co- “cool,” responded, Pearl caine from him. “Don’t worry.” Under Bourjaily, this evidence itself could First, taxicab records and the testimony be considered in conjunction with the other of the driver cab strong were evidence that evidence offered to show that Silverman Pearl took a to cab David Silverman’s resi- was the source from whom conspira- dence on at least one of the three occa- tors obtained their cocaine. Id. 107 S.Ct. at sions. Viewed in light of the evidence 2781 (rejecting proposition that since previously mentioned, the judge prop- could hearsay accomplices statements of are erly find that Pearl in fact to went Silver- unreliable, “they should not any part form man’s house that evening purpose for the of the for establishing basis a conspiracy”). of obtaining Moreover, cocaine. Next, government offered evidence that Pearl returned the airport approxi- occasion, that on each after arriving at the mately two hours later with six ounces of Nuys Van airport, Pearl told Willard that suggests cocaine she was successful in she going to call her brother. These this venture. Finally, Willard testified that statements, although made court, out very evening, Pearl returned to the were admissible as statements of party’s airport in a car driven a man who re- then-existing intent. 803(3). Fed.R.Evid. sembled Silverman, David gave the cocaine Viewing this evidence in conjunction with Willard, and then drove off with the man the hearsay statement identifying David resembling Silverman. Even without con- Silverman as Pearl’s cocaine source and sidering Pearl’s statement identifying Sil- Supreme Second, in of the spite at 578. light of the supplier, her verman Bourjaily, admonitions clear Court’s taken di- Pearl was showing that the im- minimizes majority fragments that eve- residence Silverman’s rectly to formed which portance approxi- airport ning returned conclusion. trial court’s basis cocaine, with later hours mately two approach I believe 579-80. id. at surely entitled the district to be inconsistent the evidence identifying testimony conclude repeatedly states opinion, which Bourjaily Pearl drove man who as the Silverman to view entitled court is the district was, in airport back to evidence, including contested foundational fact, supplier. Pearl’s whole, statements, as a rather hearsay evidence, considering this carefully After Bourjaily, fragments. as isolated than show- a sufficient found court the district Thus, if out- at 2779-81. “[e]ven conspiracy the link to ing of Silverman’s co-conspirators are by declarations of-court state- challenged Pearl’s independent of unreliable, courts must trial presumptively Bour- With Maj. op. at 575-76. ments. these statements to evaluate permitted be should also court that the ’s direction jaily by evidentiary as revealed worth for their including statements, those consider the case.” of circumstances particular the of Silverman identification specific Pearl’s Id. source, value probative the her cocaine as govern- the holding that majority’s The Silver- evidence circumstantial the cor- offer sufficient evidence failed to ment is dra- conspiracy involvement man’s iden- challenged out-of-court roborating the instructs Bourjaily heightened. matically supplier as Pearl’s of Silverman tifications evidence, in- pieces “individual us that Bourjaily. with reconciled be cannot point, prove in themselves sufficient state- First, states Pearl’s majority the sum of an it. The prove may cumulation in brother, to call her she intended ments that great- be may well evidentiary presentation hearsay statements challenged like her S.Ct. at parts.” 107 its constituent er than source, are as her identifying her brother consider permissible to it is Once 2781. thus cannot and unreliable presumptively identified Pearl testimony that Willard’s hearsay challenged state- the corroborate cocaine, for their source as the suppli- her her identifying brother ment from the drawn can be inferences clearly holding This op. at 579. Maj. er. provide the clearly evidence circumstantial holding in Bour- the Court’s with conflicts proof of Silver- preponderance required may, under court the district jaily conspiracy. to the connection man’s “any evidence 104, consider Fed.R.Evid. privi- exception of whatsoever,” with B. making prelimi- its information, when leged Bourjaily, determinations. nary factual majori- did the clear. How This seems so Bourjaily, 2780. Under at opposite conclusion? ty come this receive entitled judge was district errors fundamental two commits majority weight as give it such and by the offered the evidence analyzing when Id. counseled. judgment experience with conflict of which both government, ignores analysis majority’s Bourjaily. in decision Supreme Court’s that, ef- in rule establishes holding, and disap- Bourjaily’s disregarding both First, ignore court district fect, requires its no-bootstrapping rule proval evidence, including ad- any “unreliable” may, under court holding aof co-de- out-of-court missible [unprivi- “any 104, consider Fed.R.Evid. determining defendant’s fendant, when mak- whatsoever” information leged] pre- This is connection to determinations, factual ing preliminary its the Su- majority that a cisely the rule the district majority announces Bourjaily. overruled preme Court co-conspirator state- may not admit regard- majority differ I do not indepen- by corroborated it is ment unless produce obligation to government’s ing the maj. op. incriminating See evidence. dently some evidence corroborating house, chal- brother’s her presence brother’s lenged hearsay statements. Although the the car with Pearl during one of her co- Supreme question Court left this open in caine-buying expeditions, and her brother’s Bourjaily, subsequent our decision in subsequent attempt to conceal identity Gordon, United States v. whole, the DEA as a rather than as (9th Cir.1988), 1402 & n. 2 that, reaffirms independent pieces major- of evidence. The circuit, in this must there be some evi- ity’s analysis, contrast, minimizes the dence, in addition challenged state- probative force of this break- ments, of the existence of ing it into isolated fragments. The majori- and the defendant’s involvement in it. ty piece examines each of evidence offered However, by insisting that the additional to show Silverman’s to the conspiracy link government offered be in- separately, inquiring of piece each whether criminating enough to “pre- overcome the it is consistent with Silverman’s innocence sumptive unreliability” of the hearsay, or indicative of his guilt. maj. op. majority requiring transforms rule addi- 579-80. This analysis mode of cannot sur- tional evidence corroborating the hearsay plain vive the language of the Bourjaily statements into a rule requiring that the decision. government prove, by proof independent sum, In by requiring that proponent the of hearsay, the the that defendant knew of of a challenged co-conspirator hearsay and participated in the conspiracy. To re- statement overcome the “presumptive quire that the district court view corrobo- unreliability” of the statement “fairly with rating evidence independently any incriminating” evidence which “demon- out-of-court statement of a co-conspirator by preponderance strates of the evidence grounds on the that such statements are that defendant knew of participated and in “inherently simply unreliable” reestablish- the conspiracy,” 578, see id. at the majority es the gre-Bourjaily no-bootstrapping rule attempted has to transform the concerns in this A majority circuit. Supreme of the of the dissenters in Bourjaily into the law Court, a strongly dissent, over worded ex- of this circuit. maj. op. 577-78, {See at plicitly rejected proposition the that co-con- citing dissents.) Bourjaily must, I there- spirator statements are inherently so unre- fore, respectfully dissent. liable they “that should any not part form of the for establishing basis a conspiracy,” 2781,

107 C. S.Ct. at and observed that such statements “could probative themselves be The majority’s analysis of the district of ... participation the of ... the defend- court’s admissibility in determination ant ... in the conspiracy.” Id. As a court ignores case also very our limited role in appeals, of we are not free adopt reviewing findings factual of the dis- views of the reject dissenters and those of trict court. We do not review finding the majority Supreme Court. of a sufficient connection to the conspiracy Second, in light of Bourjaily’s novo, observa- de may only but reverse if we deter- tion that piece evidence, “a unreliable in mine that the district court’s finding is isolation, may quite probative become clearly erroneous. See Bourjaily, 107 by evidence,” corroborated other 2782; id. at S.Ct. at see (“the id. also at 2778 2781, the district court clearly entitled existence of a conspiracy petitioner’s to view the evidence of attempts Pearl’s involvement it are preliminary questions brother, call her her identification of her that, of fact 104, under Rule must be re- source, brother as her her visit to her court”).1 solved Responding dissent, my majority sug- maj. op. at 576. Bourjaily The statement in gests Bourjaily's that statement clearly that dictum, trial was not nor it appear does to be "factfinding" court’s in that merely case "was [not] a careless repeated- mistake. The Court clearly may binding erroneous” not be ly on this question stressed that the whether the defend- Supreme because the Court did not “un- ant was a member of question is a equivocally declare proper.” fact, 2778-79; which standard is see S.Ct. at that the district cannot approach be This court. standard, a clearly erroneous Under Bourjaily. reconciled a district reverse may not reviewing court long as it as the evidence majority states view of example, the court’s For record viewed light of to Silverman’s Pearl traveled that plausible “is arriving though at immediately convinced after entirety ... even its residence fact, trips it cocaine-buying the trier her sitting one of airport as had it asso- than “mere” different more little weighed have demonstrates would majori- City, op. at 579. While the Maj. Bessemer City v. ciation. Anderson ly.” is as “innocent” of this evidence 84 ty’s view S.Ct. 470 U.S. one, not the it is permissible certainly a (construing (Anderson) (1985) L.Ed.2d for Pearl’s be- explanation only plausible States 52(a)); also see Fed.R.Civ.P. observed, given the previously As (9th havior. n. 5 McConney, Nuys and trip to Van of Pearl’s purpose clearly banc) (explaining Cir.) (en brother her previous identification her 52(a) in Rule set forth test erroneous only cocaine, it is “source” her proceedings), criminal to both civil applicable rea- probable, highly but plausible, 824, 105 denied, 469 U.S. t. cer her brother to visit chose she son (1984). “Where L.Ed.2d from him. cocaine evening was to obtain evi views permissible two are there circumstances, it seems Indeed, under the them choice between dence, factfinder’s a cocaine- person on unlikely highly Anderson, clearly erroneous.” be cannot interrupt would trip to California buying 1511. More call social purely paying mission her paid must be that deference over, rule event, majority’s any a relative. applies even fact finder original demon- piece of analysis of this findings not do court’s the district where there are two than that more strates no determination, are but credibility a rest on then, follows, it. It views permissible other from inferences on instead based between choice court’s district that the Id. facts. erroneous. clearly be cannot them case, court’s the district at present at Anderson, In the estab- evidence substantial finding that con- to the connection Silverman's lished to dis- attempts majority Similarly, the inferences drawn on the rested spiracy evening Pearl the that on count evidence presented evidence the circumstantial from residence, ac- Silverman’s visited Anderson, Under government. by the to the returned she companied her when rest on that court district findings of the later, with five hours some two airport, enti- are the facts from drawn inferences concludes majority The cocaine. ounces of trial a accorded deference same to the more than tled little shows evidence that this The Id. credibility presence determinations. court’s “was that Silverman present- conspiracy.” the evidence analysis of in a majority’s involved who relative hearsay the to infer possible admission support the it is Again, ed while the defer- this occasion disregards on utterly presence Silverman’s ride,” and majori- “along the The simply court. district he was due to the ence from some her cocaine of- obtained Pearl piece each ty reexamines is evening, this inference hearsay statement source other the to corroborate fered of this construction plausible only from not case, inferences and, draws in each activities of Pearl’s The evidence evidence. rejected by necessarily the evidence therefore, 2782; conclu- its Bourjaily, see id. at making this "factfinder” when as a acts factfinding was not court’s the district 2781; judge, sion that determination, and id. us, though the even binds clearly erroneous under evaluating foundational with the statement precede its not Court did to "receive 801(d)(2)(E), entitled Rule therefore,_” not be- hold, doI "We judg- words weight as his give it and such court, to appellate liberty, as an are at counsel,” we lieve The at 2782. experience id. ment requirement on "plain impose statement” clearly erroneous certainly applied the Court Supreme Court. States factfinding court’s to the standard cm oo-ao

that evening demonstrated that she trav- requirements of Rule 801(d)(2)(E)by intro- directly eled to Silverman’s residence from ducing evidence that the defendant visited the airport and returned with Silverman co-conspirator night drug that a approximately two hours later. There was place. transaction Mason, took In DEA no evidence sug- before district court agents, hoping apprehend a conspirator’s gesting any that she met person with other “source,” arranged a transaction with one than evening. Silverman that It is certain- co-conspirators them- stationed ly that, possible arriving after at Silver- selves outside his house. agents The DEA residence, man’s she her obtained cocaine testified that Mason was the only person to source, from some other and that she then visit the evening. house that According to asked her give brother to her a ride back to agents, up Mason house, drove airport. However, just it is as reason- and, after a five-to-ten minute stay, drove able to infer from this evidence that Silver- away. Shortly thereafter, occupant man himself supplied the cocaine to Pearl. the house told the DEA that he had We thus have no basis for concluding that drugs, but they were “hidden.” the district court’s construction this evi- occupant then went outside the house dence is clearly erroneous. and came back with a manila envelope con- cases cited majority sup- taining cocaine. Id. at 1268-69. port of its construction of the evidence We held that the observations of the offered government are inapposite. agents provided DEA “a reasonable basis Weaver, United States v. for supposing that played, Mason a mini (9th Cir.1979), for example, we held mum, the role of the courier” in con presence Weaver’s in a truck containing spiracy. Id. at 1269. based We this deter cocaine, standing alone, sufficient mination on the facts that the occupant of to establish his knowledge of and partic- the house an told agent undercover that he ipation in a conspiracy possess and dis- expected a delivery from his “source” that tribute cocaine. Id. at However, 1274-75. evening, that Mason the only we visitor to did not hold that such evidence had night house on the question, probative little and that value when considered occupant shortly along produced thereafter other relevant evidence of a envelope manila containing defendant’s connection cocaine. to a Id. at conspiracy. Thus, Weaver was 1268-69. although pre-Bour- presence decided the under mere at jaily no-bootstrapping rule, drug the scene of which transaction may barred not be the district court from considering sufficient the chal- under to Weaver establish a de lenged hearsay when assessing fendant’s involvement in a conspiracy to the weight of the foundational evidence cocaine, distribute Mason establishes that by offered the government. Thus, the dis- presence, evidence of light viewed in the of trict court could not evaluate the evidence evidence, other including hearsay evidence, of presence Weaver’s in the vehicle in the suggesting the defendant’s involvement in light of relevant hearsay evidence implicat- may the conspiracy, be sufficient form to ing him in the conspiracy. Indeed, in the basis of admissibility an determination Weaver the only evidence, apart from the 801(d)(2)(E). under Rule See also United hearsay statements indicating that Weaver Fleishman, States v. 684 F.2d 1338 any was in way to conspir- connected the (9th Cir.) (evidence that defendants were acy, presence was his in the vehicle. Un- present during negotiations and had re present like case, the there was no evidence peated with conspirators contact sufficient suggesting that co-conspirators Weaver’s under 801(d)(2)(E)), Rule denied, cert. 459 regarded him as their or attempt- “source” U.S. 74 614 L.Ed.2d ed to contact for purpose him the of obtain- (1982); States Federico, United v. 658 F.2d ing cocaine. (9th Cir.1981) 1343 (evidence that de In contrast, in United Mason, v. States fendant present was at scene drug of (9th Cir.1981), we held that transaction and drove others to rendezvous the government satisfied the foundational sufficient under Rule 801(d)(2)(E)),over- guilt may infer that it jury structing the v. States grounds, other on ruled his attempt to conceal (9th Cir. Silverman’s from 1255, 1259 Bright, De who agents at DEA the identity from banc). (en 1984) The his home. him question at to tempted that evidence states majority Finally, the con that Silverman’s concludes majority his to conceal attempted that identity lacked sufficient his of cealment DEA officials by confronted identity when which acts with criminal to connection not evi- was investigating guilt. his infer jury for a to charged he was partici- of and knew that Silverman dence held, we have I do believe disagree. I reaching this In conspiracy. in the pated that de either majority suggests, rejects a again once conclusion, majority must im attempt concealment at fendant’s necessarily by drawn inference reasonable act or last criminal his mediately follow that majority states court. the district aware must be a defendant suggests evidence “uncontradicted maj. against him. See charges particular identity his concealed David Silverman indicate Rather, cases our 581. op. at through his arrangements order make approach in flexible a more have used we rather voluntarily surrender attorney to be the defendant’s whether determining his residence." possible arrest face than See, guilt. an inference supports havior reason- this is a Although op. at Maj. Tille, 729 F.2d States e.g., United “uncontradicted interpretation able value Cir.) (“[t]he probative (9th only infer- 622 not the evidence,” certainly isit circumstances”), all the depends on flight Silver- the evidence of “suggested” ence 845, 105 denied, U.S. identity t. his to conceal attempts man's two cer (1984). soIn hold involve- L.Ed.2d investigating S.Ct. argu rejected flatly circum- also these have ing, In we ment prove must infer- government an draw ment stances, powerless arewe be, of the crime which “aware may though it the defendant ence, reasonable no need I see sought.” district by the Id. rejected he was necessarily which circum “totality of Anderson, this depart from court. us. in the case before approach at 1511. stances” Silver- sufficient evidence There per- analysis conclusion, majority's prompted conduct was evasive man’s a cold court, the basis mits to infer jury for the apprehension fear court’s reject record, blithely to properly instructed jury was guilt. probative findings reassess factual the inference whether could determine to the dis- presented value evi the other light of be drawn should reconcile impossible isIt court. trict it. before dence in this analysis of majority’s of review our guiding the rules with case I (mistakenly, were Moreover, if we even determinations factual court’s district either requiring test adopt a suggest) to In Anderson. Bourjaily and forth set showing or a conduct evasive “immediate” that majority’s conclusion addition, the knowledge had some the defendant that government offered criminal activ- suspected of the he was that court’s district support to insufficient arrest, I that believe his prompted ity that pre- our even face of findings flies While here. satisfied has been test such a acknowledge that which Bourjaily cases attempt to not did Silverman that it is true in- defendant’s of a circumstantial after months identity until “two conceal to may suffice ain volvement maj. op. see Nuys,” trip to Van last Pearl’s conspiracy. to his connection establish necessarily indi- not fact does therefore, dissent. must, I met in is not “immediacy” test an that cate reason had no case. Silverman present II of that the time identity at to conceal agents drug enforcement transaction —the majority’s dissent must also I and he time at that him approach not did in in erred holding that had no to fear suspect reason that he was possible, While it is as the majority main- of ed drug involvement tains, id. at that Silverman’s evasive However, Silverman “immediately” did at conduct was prompted by fear that he was tempt to identity conceal his ques when suspected of some drug-related other con- by drug tioned agents enforcement at his duct, we have never conditioned the admis- residence. instinctively reacted sibility flight of evidence on the govern- to the possibility apprehension by con ability ment’s to rule out every hypothetical cealing his identity, which is all that is suggested by the Every defendant. in- required to “immediacy.” demonstrate stance flight is susceptible to more than See, e.g., Feldman, v. States 788 one interpretation. A person caught flee- (9th Cir.1986) (“It F.2d is the in ing from store or bank in which an armed impulsive stinctive or character of the de robbery has place taken is free argue fendant’s behavior ... indicates fear the jury that he was merely an innocent apprehension gives evidence of bystander concerned for his safety. How- flight such possesses.”), trustworthiness as it ever, the possibility that flight has an denied, rt. 479 U.S. ce 955, explanation innocent has never bar (1987), 93 L.Ed.2d 1003 quoting Unit to its admissibility. ed Myers, States Applying proper standard to the (5th Cir.1977), denied, cert. present case, it is clear that Silverman’s (1978). L.Ed.2d evasive conduct was prompted by fear addition, In majority’s assertion that suspected he was in drug- involvement Silverman’s attempt at concealment oc- related activities. Silverman attempted to curred after a delay” “two-month is errone- conceal his identity the moment he had ous. Silverman was not charged merely reason to believe that he suspected with isolated acts of supplying cocaine. He involvement in the cocaine conspiracy, that charged with an ongoing conspiracy. is, DEA officials him confronted It is difficult to ascertain when his “last at his residence. It significant that Sil- criminal Where, act” occurred. here, again gave verman a false identity later the “criminal act” is ongoing affair, an an afternoon, after the agents left a mes- act concealment which occurs during or sage him with to call the DEA to answer within a reasonable time after conspir- questions. some agents question acy and which is directed toward law en- were not police officers, local but Drug forcement investigating the crime Agency officials, who identi- Enforcement clearly requirement satisfies a that the con- fied themselves presence as such. Their duct be “immediate” to the crime. residence, Silverman’s expressed their in- I must disagree also with majority’s terest in questioning Silverman, their conclusion that no suggests return to his residence later that day, sure- Silverman knew of the against accusations ly indicated to Silverman that he was sus- him. Silverman did know, sure, to be pected of involvement illegal with drugs, that he ultimately charged would be and by the government, federal at that. conspiring to deal cocaine in violation of conclusion, federal law. It is fair say attempt Silverman’s most criminals are similarly conceal ignorant his identity officers, about the from DEA particular charges they face, when will viewed in caught. light if of other sug- reason, For this it not gesting guilt, does make clearly sense to is sufficient to require that a support defendant par- know of inference that Silverman was ticular against accusations him prereq- as a conscious of guilt concerning the activi- uisite to finding that his ty evasive that led arrest, conduct to his even under the supports an guilt inference of majority’s the crime ill-advised new rule. I must charged. maj. op. See Rather, at 582. it therefore disagree with the majority’s con- is sufficient that the defendant have reason clusion that the district court erred in in- to believe suspected he is of the structing criminal the jury it might guilt infer activity that ultimately led to his arrest. from Silverman’s false statements to the undisput- as hearing forthwith reasons, ance I dis- same For agents. DEA class. of the ed members holding that majority’s from sent considering from barred court all jurisdiction district over reserves panel This admissibility making its ap- this case arising this evidence out of future matters 801(d)(2)(E). Rule under determination court. the district pealed conviction. Silverman’s over affirm jurisdiction I would has court The district undisput- hearing as to compliance deci- pending the class

ed members 87-3586. appeal No. opinion sion over jurisdiction has court also The district paragraph 24 pursuant this matter Health Settling Mental Stipulation have for relief the claims Claims as any nor has adequately addressed Plaintiffs/Appellants, al., any D., as to et been held compliance hearing JEFF of the class. members v. rehearing will be enter- for petition No al., ANDRUS, et D. Cecil issue forthwith shall and mandate tained Defendants/Appellees. 2. Fed.R.App.P. No. 87-4377. appeal 87-3586, 87-4377. Nos. 87-3586, a appeal regard to No. With Appeals, Court States regarding

United will follow opinion decision and Circuit. Ninth class. disputed members PART, IN RETAINED IN REMANDED Nov. 1988. and Submitted Argued PART. 16, 1988. Nov. Decided Aid Belodoff, Legal Idaho A. Howard Idaho, John- Boise, Charles Inc., Services, Robison, Olson, Char- Johnson, III,

son, Idaho, plaintiffs/ Pocatello, tered, appellants. Gen., Atty. Angelo, Deputy De Michael Idaho, Boise, Jim Div., Welfare Health and al., Diaz, DIAZ; et Socorro M. Arnulfo Boise, Idaho, Gen., Jones, Atty. State Plaintiffs-Appellants, defendants/appellees. Idaho, for DIS- UNIFIED SCHOOL

SAN JOSE Defendants-Appellees. al., TRICT, et

88-2626. No. Appeals, Court States NELSON, BOOCHEYER Before Ninth Circuit. Judges.

BRUNETTI, Circuit Aug. Submitted Argued and ORDER 17, 1988. Nov. Decided Decem- in its agreed court district theAs Decision Memorandum ber treatment” receive should minors these “all Mem- in its found

and, November decision orandum members undisputed are that there be No. 87-4377 appeal class, order we compli- for a remanded

Case Details

Case Name: United States v. David Silverman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 16, 1988

Citation: 861 F.2d 571

Docket Number: 83-1314

Court Abbreviation: 9th Cir.