UNITED STATES оf America, Plaintiff-Appellee, v. Emerson MOLT, Defendant-Appellant.
No. 84-3164.
United States Court of Appeals, Seventh Circuit.
Argued June 4, 1985. Decided Sept. 10, 1985.
772 F.2d 366
Markowski attacks all of his convictions on the ground that the court admitted a statement by James Millsap, one of Markowski‘s underlings, that Markowski warned Millsap not to cooperate with the Government should it investigate his drug operation. Millsap testified that Markowski pointed to the open field in which they were standing and stated: “There‘s plenty of room out here, you know, for people to disappear and be buried and have lime thrown on top of their bodies.” This testimony, Markowski tells us, does not comport with
The testimony is relevant. Statements of conspirators may be admitted to prove a consрiracy‘s existence. United States v. Hickerson, 732 F.2d 611, 615 (7th Cir.), cert. denied, U.S. -, 105 S.Ct. 159, 83 L.Ed.2d 95 (1984). The testimony was useful here because Markowski denied that any illegal drug enterprise existed and accused ex-employees such as Millsap of lying. Testimony about a death threat showed the lengths to which Markowski would go in order to protect the secrecy of his enterprise, and it tеnded to undercut Markowski‘s credibility as a witness.
With respect to the balancing of relevance and prejudicial effect under Rule 403, we accord “great deference” to the district court‘s decision. United States v. Pizarro, 756 F.2d 579 (7th Cir.), cert. denied, U.S., 105 S.Ct. 2686, 86 L.Ed.2d 703 (1985); United States v. Medina, 755 F.2d 1269, 1274 (7th Cir.1985); United States v. Serlin, 707 F.2d 953, 959 (7th Cir.1983). The court did not abuse its discretion here. During a hearing outside the presence of the jury, the court cоnsidered the question carefully and then admonished Millsap to relate only what he was told, not how he felt during or after the statements. The court also knew that testimony about another threat of death had been admitted without any objection by defense counsel, and it was entitled to believe that the jury‘s knowledge of yet another threat would not unduly undercut Markowski‘s defense.
The conviction on Count 29 is reversed. The convictions on all other counts are affirmed.
Jerome Frese, U.S. Atty., Hammond, Ind., for plaintiff-appellee.
Sam Adam, Chicago, Ill., for defendant-appellant.
Before CUDAHY and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
An indictment charged Emerson “Bud” Molt and 40 others with conspiring to import and to possess with intent to distribute marijuana and cocaine. Ronald Markowski, the kingpin of the operation (see United States v. Markowski, 772 F.2d 358, also decided today), was tried separately. Others pleaded or were found guilty, fled, or were never captured. Molt was tried alone and convicted. One defendant remains to be tried.
Thе case against Molt consists principally of the testimony of five of the conspirators, four of whom placed Molt at meetings discussing drug smuggling operations or at the scene of specific importations. The evidence, properly taken in the light most favorable to the government, portrayed Molt as pilot, radio operator, off-loader, and factotum of a drug ring. Ronald Markowski, Frank Brady, and perhaps another were ringleaders. Brady owned land in Florida, which the smugglers used as a
The normal course of operations was for Markowski or one of his partners or employees to fly marijuana or cocaine from Colombia to an airstrip in the Bahamas. The smugglers would either store the drugs there for later trips or take them by air immediately to Florida or Georgia. Other participants would transport the drugs to Northern Indiana for distribution there and in Chicago.
Molt‘s role was as coordinator on the ground in the Bahamas, where he made sure planes could land safely, refueled them, unloaded drugs, and reprovisioned other smugglers. He also took to the air as a “cover” pilot, looking out for surveillance and potential interference on the ground. Once he helped rescue a stranded smuggler. Some of the evidence shows Molt discussing the dates and times of smuggling operations. We need not recount the evidence more fully.
The court sentenced Molt to a total of еight years’ imprisonment. He challenges the admission of co-conspirators’ out-of-court statements, the finding that there was a single conspiracy, the conclusion that there was venue in Indiana, and the disposition of claims under the Jencks Act,
I
The five smugglers who testified against Molt recounted many conversatiоns among other conspirators. Molt maintains that the admission of these statements violated the Confrontation Clause of the Sixth Amendment. A motions panel of the court found this argument unlikely to prevail and so denied Molt‘s application for bail pending appeal. United States v. Molt, 758 F.2d 1198 (7th Cir.1985).
This court has held on many occasions that the only test for admissibility of a conspirator‘s out-of-court statement is whether the statement complies with
Because the Court has granted review in Inadi, it is unnecessary for us to treat the matter fully. The Supreme Court will do that, and if Molt files a petition for certiorari he will get the benefit of any favorable decision. We do not think that a favorable decision in that forum is likely, however, and we therefore do not think that Molt should receive relief pending the Court‘s ruling.
The co-conspirator rule is an old one. See 4 J. Wigmore, Evidence in Trials at Common Law § 1079 (J. Chadbourn ed. 1972). The Court has allowed the use of hearsay, despite objections based on the Confrontation Clause, when it bore sufficient indicia of reliability. E.g., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). The declarations of conspirators are usually reliable in the pertinent sense. They are contemporaneous statements in an ongoing business relation. The person who reports these statements may be unreliable, but he is in court and may be cross-examined. If the witness recounts the statements accurately, there is no particular reason to believe that the busi-
The declarations are reliable in the same sense that contracts or negotiations among legitimate business partners usually portray accurately the affairs of those involved. They are acts as much as they are reports. They have value independent of the truth of the matter stated. These statements are not pale substitutes for live tеstimony about what the conspirators did; their value usually lies in the very fact that people said certain things on the spot to other conspirators. Testimony in court would not replicate what is important about the statements.
The Supreme Court twice has rebuffed objections under the Confrontation Clause to the use of coconspirators’ statements. See Delaney v. United States, 263 U.S. 586, 590, 44 S.Ct. 206, 207, 68 L.Ed. 462 (1924), which brusquely rejects a challenge to the traditional rule, and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), which sustains a state rule that admits evidence in addition to that permitted by the traditional formulation reflected in Rule 801(d)(2)(E). The Third Circuit said in Inadi that the Supreme Court had changed its mind. It rеlied on dictum in Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, that in the “usual case the prosecution must either produce, or demonstrate the unavailability of, the declarant ....” We do not think that the Court meant to repudiate Delaney and Dutton, which it did not mention in this passage. The opinion in Roberts went on to observe “the truism that ‘hearsay rules and the Confrontation Clause are generally designed to protect similar values’ and ‘stem from the same roots.‘” 448 U.S. at 66, 100 S.Ct. at 2539 (citations omitted). Although the Court ultimately may agree with Inadi, the probability that it will overrule Delaney and Dutton is sufficiently small that we think Molt‘s conviction should stand in the interim.
As an aside, Molt argues that the statements admitted in this case were not “in furtherance” of any conspiracy. The argument is feeble. Molt does not point to any one stаtement inadmissible for this reason. Our review of the record turned up only conversations concerning planning or review of the drug ring‘s exploits. The district court correctly found that the conversations were admissible under
II
Molt makes related arguments concerning the scope of the conspiracy and the venue of the prosecution.
Molt says that the jury erroneously found that there was one conspiracy instead of several. He claims that each importation was a separate conspiracy because not all the same people participated in each importation. But whether there was one conspiracy or many is a question of fact for the jury‘s determination. United States v. Schmucker-Bula, 609 F.2d 399, 403 (7th Cir.1980). The jury easily could have found a single conspiracy, occurring from 1977 through 1982, run by common leaders. Witnesses testified to the conspiracy‘s activities throughout this period. Three witnesses testified that Cаt Island was a refueling spot for multiple importations of marijuana and cocaine. Four eyewitnesses identified Molt as pilot, refueler, and radio operator for Cat Island. The jury was instructed that it had to determine whether a single conspiracy existed from 1977 through 1982. We see no reason to set aside the jury‘s vеrdict on this issue.
The conclusion that there was but one conspiracy disposes of Molt‘s further argument about venue. Venue is proper in any district where an “offense was begun, continued, or completed.”
The concession was appropriate, for the evidence establishes several overt acts in the Northern District of Indiana, the northern terminus of the smuggling operation. The drugs ultimately were transported into the district. The evidence also shows that Markowski flew a plane used in at least one smuggling trip from Gary, Indiana, to Valparaiso, Indiana, so that a conspirator could “sweep” the plane to detect electronic bugs. Another plane was inspected in LaPorte, Indiana. Markowski and another conspirator met in Gary, Indiana, to inspect a plane that had been used to smuggle marijuana. LaPorte, Gary, and Valparaiso are in the Northern District of Indiana. These and other overt acts in the district were all part of a five-year conspiracy to import and distribute drugs. The fact that Molt was never in the district is immaterial. Brown, 739 F.2d at 1148.
III
The final argument rests on the Jencks Act,
At trial two witnesses testified that they had spoken to Florida law enforcement authorities and had testified before a Florida state grand jury as well as a grand jury in the Northern District of Indiana. John Devoe, a third witness, recalled that he had testified before federal grand juries in Minneapolis-St. Paul, Boston, and South Bend, a state grand jury in Florida, and the Royal Bahamian Commission, and that he had spoken with agents of the FBI, DEA, and IRS. After Devoe testified, Molt‘s counsel objected that he had not obtained transcripts or notes of all of Devoe‘s statements. During argument on this motion, the prosecutor stated that he had reviewed transcripts from Devoe‘s testimony before the Royal Bahamian Commission and at federal trials in West Palm Beach and Minneapolis-St. Paul. The prosecutor represented that he had found almost nothing in those transcripts relating to the subjects Devoe had addressed in Molt‘s trial, but he gave Molt‘s counsel material in those transcripts relating to plea agreements and to Devoe‘s meeting with the conspiracy‘s Colombian cocaine supplier.
The prosecutor had another Assistant U.S. Attorney review Devoe‘s testimony before the Boston grand jury. The prosecutor certified that there was nothing in the transcript relating to Devoe‘s testimony on direct. The court granted Molt‘s counsel‘s request to question Devoe more specifically about earliеr testimony and statements. Devoe stated that the first time he had told any federal or state official about the escapades involving Molt was a “couple days” before he testified against Molt. After this reply, Molt‘s counsel had no further comment on the Jencks Act issue until a post-trial motion for a new trial. He then protested only that he had not been given a continuance before trial, which he had requested in order to obtain witnesses’ testimony before Florida state grand juries and the other conspirators’ trials in the Northern District of Indiana. Molt did not raise a Jencks Act complaint with respect to any of Devoe‘s testimony before federal grand juries or statements to federal officials.
The argument about the continuance is empty. The Jencks Act provides that a government witness‘s statement or report shall not be available until after the witness has testified on direct examination. United States v. Harris, 542 F.2d 1283, 1291 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977);
The complaint that the govern-
To the extent Molt is arguing that he should have received copies of witnesses’ statemеnts made to federal grand juries or investigators, his argument fails on the facts. Molt had transcripts of witnesses’ testimony both before the Northern District of Indiana grand jury and at Markowski‘s trial in the same district. The only witness who spoke with or testified before federal authorities outside Indiana was John Devoe. Molt did not make the neсessary motion (see
AFFIRMED
SWYGERT, Senior Circuit Judge, concurring.
Although I agree with the reasoning of the Third Circuit in United States v. Inadi, 748 F.2d 812 (3d Cir.1984), cert. granted, U.S. -, 105 S.Ct. 2653, 86 L.Ed.2d 271 (1985), holding that the confrontation clause of the sixth amendment requires the government to show that a non-testifying coconspirator is unavailable to testify before his hearsay statements can be admittеd pursuant to
UNITED STATES of America, Plaintiff-Appellee, v. John FISHER, Defendant-Appellant.
No. 84-1755.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 28, 1985. Decided Sept. 11, 1985.