*1 original ly original until place imprisonment returned the institution his of not on circumstances, day. following These day required the in the of his attendance feder- argues, distinguish his case from Chi- Roy court, al the Government would be forced Agree- a violation of the co and constitute keep prisoner custody through- the in its necessitating dismissal the federal ment period necessary the out for final resolu- disagree. We indictment him. charges; tion of the federal to do otherwise would risk dismissal of the indictment for Chico, in In this Court noted factors noncompliance Agree- technical ruling Agreement the the course of that prisoners practice frequently not there ment. This had been violated: would imprisoned by never the federal in “were sult incarceration for several weeks or 1049, government,” 558 F.2d and the at jails, months in local often in disad- Agreement “fully purposes of the vantageous status, thereby “holdover” un- treatment, sec- satisfied” their id. The necessarily interrupting the rehabilitation appears ond factor been dominant. have prisoner bringing very of the about matter, was some fed- As a technical there Agreement that evil was enacted to imprisonment prisoners eral of the in Chi- prevent. Construing Agreement co, lockup at least in federal court been in have violated the circumstances of awaiting appearances. while their In ease, thereby precipitating in- serious essence, in recognized we that a Chico terruption programs, rehabilitative one-day interruption prison of state con- comport requirement would not with the posed prisoner’s finement no threat to a the Agreement “liberally should be rehabilitation sufficient to constitute a vio- purposes.” as to construed so effectuate its Agreement. Similarly lation in this IX. Art. Government, acting response in of the District Court is concerns, legitimate a caused brief inter- affirmed. ruption custody in Roy’s state no way detracted from his rehabilitation. presence in
Roy’s the District Court was only day.
needed for one The Government to return him to
failed Somers on the eve-
ning April for4 two valid reasons: con-
cern that prisoner history a a
escape posed security three- risk car hour ride after dark and for concern America, Appellee, UNITED STATES of prisoner specifi- best interests of the — cally that evening he not miss his meal. v. suggestion There is no con- that either the FORD, Defendant-Appellant. Miles security cern about or the desire to furnish 1185, No. Docket 85-1020. aRoy hot pretext meal was a bad Roy’s delay faith decision to return. The Appeals, United States Court of required Roy few extra hours to return Second Circuit. April on not interrupt Somers did his rehabilitation, deny any privilege nor him Argued May 1985. Mauro, at Somers. See United Aug. Decided 1985. 359-60, at supra, 436 98 S.Ct. 1846- 47.
Furthermore, finding we believe that a violation on circumstances of this oblige would
case the Government fu- cases to funda-
ture act conflict with the purposes Agreement.
mental When- prisoner
ever a could safe- returned be
61 Pitman, Atty., Henry Asst. U.S. New (Rudolph Giuliani, City Atty., York W. S.D.N.Y., Moritz, Stacey J. Asst. U.S. counsel), City, ap- for Atty., New York pellee. (Su- Cooney, Jr., City P. New York
John counsel), Knipps, City, K. New san York defendant-appellant. for LUMBARD, Before and CAR- OAKES DAMONE, Judges. Circuit LUMBARD, Judge: Circuit appeals Miles Ford from a conviction, entered trial after before District, Edelstein the Southern possess conspiracy and to distribute cocaine, intent to distribute U.S.C. (1982), distributing pos- and for and § sessing with intent to distribute cocaine. (1982); 21 U.S.C. 18 U.S.C. 2§ § (1982). Ford was sentenced concurrent one-year imprisonment terms of on each of counts, a three- the two be followed parole affirm. year special term. We 27, 1984, September the afternoon of On Police undercover Officer Sherranda Rush Detective Baxter of the and Cleveland New City along Department, York Police officer, vicinity another drove to the in Manhat- and Avenue 129th Street Lenox they group of tan. There observed a three 129th men on the northwest corner of and Lenox. got Rush and Detective Baxter
Officer Lenox, and out of their car walked towards As the cor- they 129th Street. neared bn ner, men, Ford, identified as the three later Thomas, Richards, ap- and Keith Waldron officers. Ford proached reached many and do them first asked “How Detective Baxter told Ford to want?” “see Rush, girl,” gesturing Officer toward [his] answered and Rush “Two.” intervened, immediately Richards Keith rocks,” Rush “nice told Officer that he had cocaine, and asked a reference freebase money. gave her for Rush Richards $40 buy pre-recorded money and Richards it and told Waldron Thomas it counted sever- “good.” Thomas then removed 804(b)(3), pocketbook, vials of cocaine from blue Evid. were offered to al show told Officer Rush choose two. Ford was not the and “steerer” the street so, men, then did the three sale. made thanked corner Richards statements to turned to the car. effect attempting with Baxter that Ford was officer, “steer” undercover backup team and The officers notified Thomas, get order free narcotics from Ford, provided descriptions Richards *3 first; but that Richards her Thom- reached go Ford Thomas. Officer then saw indicated as that he was associated with building 105 West Street into at 129th Keith he merely but that “saw” shortly emerge Thom- and thereafter day on the sale. Ford custody Thomas taken into on the as. was trial, of 129th Ave- northwest corner and Lenox before About weeks Ford’s nue; in- government Ford and Richards were arrested was counsel advised building, introduce, a social The part $40 side club. did not intend to buy $130, money, an additional and a blue post-arrest by statements made Rich- pocketbook containing 16 cocaine thereupon vials of and ards Thomas. Ford moved found ruling were on Thomas. for a admissibility on their Fed.R.Evid. as statements subsequently Ford and Thomas penal by interest unavailable witnesses. together convicted.1 tried and Neither de- Upon government’s objection and presented any fendant evidence. statement, objection Thomas’ to Richards’ appeal. three Ford claims errors on Judge Edelstein said he would exclude the First, Ford contends that the evidence thereupon statements. Ford offered a presented at trial was to insufficient sus version of dacted Richards’ statement. guilty argu tain a We verdict. find this part The essential Richards’ state- unpersuasive. ment Ford initiated the ment, proposed with the redacted version drug by asking transaction Officer Rush italics, is as follows: many” responded “how she wanted. She “Q: basically, you people So steer to to Ford that she wanted two. Ford was seller, money give take and then by during exchange money close and money in exchange to seller drugs compa and was later observed in the free crack [freebase cocaine]. ny of both his confederates. Unlike Unit Seller, get IfA: run 3 to customers Jones, (S.D.N. F.Supp. ed States v. myself. one Y.1984), where the evidence insuffi was defendant, cient show that the standing street,
across the was even aware that a Q: anyone today? Steer drug progress, sale inwas the evidence me, girl A: One gave $40 who came which credited shows that Ford cracks, said, guy and gave he actively participated in the street corner ’ ‘take what want. sale, therefrom, that he expected profit knowledge and that Ford with full acted Q: Only today? steered one illegal the character of the transaction. Yes, girl A: to me and came Steve challenges Ford next the exclusion up came gave and cracks. post-arrest hearsay by made statements Q: gave you money She you gave and Richards and prearraign Thomas money to Steve? by ment an interviews Assistant United A: Yes. Attorney. statements, States sought Q: Ford to introduce as declarations What doing green was kid jacket against penal pursuant interest to Fed.R. [defendant Ford]? 21, 1985, fugitive
1. Richards was a the time of the trial March and later nine sentenced to arrested, of Ford and Thomas. He was years prison. later pled guilty to one count of the on indictment Trying to steer have examined the authorities cited Doing thing. same We A: to smoke get supports one find by her. Wanted Ford and none which 5, get Run one. too. that it Ford’s claim was reversible error for statements, the district court exclude the her, you did? Q: get he didn’t But part of them. any or her, me get came to A: He didn’t she first.” Finally, contends that Ford objected the redacted government trial court committed reversible error version, incomplete it and arguing that was giving missing-witness sponte sua objected to the misleading. Thomas also charge jury. agree. We do version, ad- Edelstein redacted appropriate, judge may Where the trial his decision to exclude. hered to give an even in uncalled-witness instruction outset, unambig- we request At the note that parties. absence of from the testimony of Rush and uous Police Officer Armone, 863 F.2d United *4 implicated Richards as Detective Baxter (2d Cir.), 957, denied, 405 cert. 385 U.S. 87 supplier of money, ceiver of the Thomas 398, (1966). Here, 17 L.Ed.2d the S.Ct. 303 cocaine, of the and Ford as “steerer” the was invited Ford’s coun instruction when testimony That contradicted transaction. summation, suggested, in his sel that an Richards and post-arrest statements of the against government inference adverse the Ford, raising thereby regarding Thomas be drawn from failure to call a could credibility the of those question some about expert. fingerprint Further, no corrob- statements. there was is affirmed. conviction Neither Ford of the statements. oration Even any nor Thomas offered evidence. OAKES, (dissenting): Circuit by Ford was lack- explanation an himself Al- did not the stand. ing, as Ford take The central issue in this case is whether argues though Ford that the statements enough purposeful Ford manifested behav- corroborative, mutually in view are implicating him transac- ior the cocaine other evidence which contradicted those guilty jury for a returned a tion have statements, Judge within Edelstein acted against The Government’s case verdict. in excluding discretion them. See Unit- his role and abet- him turns on his as an aider 472, Beltempo, ed F.2d 479- States v. on his role the context tor—in (2d Cir.1982). undisputed But nature the as a “steerer.” that factor the transaction indicates An additional which the court Ford, the The evidence ignore objection could not was Thomas’ to not was steerer. played. admission of Richards’ statement. the Ford the leaves unclear role proposed argues redacted version was the Even that Ford initiated Government support of the case strong government’s many his “How question, transaction “gave 2 “guy” Thomas as the who utterance, however, you want?” Ford’s do trials, Although separate cracks.” that he initiate only indicates intended to unsuccessfully might sought, have Ford implicate It is transaction. insufficient problem, not address avoided this we need for which he him in the cocaine transaction corroborating the issue lack of because Although convicted. could be justify was sufficient to evidence alone beyond a doubt that Ford was not sure exclusion. it is hawking sunglasses stepladders, or that Ford was suppose also reasonable Furthermore, pro- version redacted hawking “joints” of not cocaine. marijuana, was, posed as the by Ford’s counsel conceded Detective herself argued, and mis- government incomplete men young that black cross-examination leading. It omitted the statement attempted marijuana to sell her trying police to steer woman have Ford was lead, many do “joints” with the “How in order to cocaine to a seller earn some 336). (App. I not know what want?” do smoke. majority- they disagree are that the other accounts because the “circumstances” expec- inference of says permit Ford’s version. sale; profit from Thomas’s cocaine
tation to Accordingly, required I am to dissent. he did do so. is not evidence improper that the argument court Ford’s hear
ly and Thomas’s excluded Richards’s cogent. is
say also The district statements ap admit the statements refused it concluded that
parently because satisfy the conditions
statements did
set forth in
for admission of
Rule
SAUERS,
Paul
Box
Atlantic
against penal interest.
hearsay statements
City, NJ 08404
is difficult to under
position
The court’s
v.
light
stand in
this court’s decisions in
COMMISSIONER OF
Lieberman,
United
Rule
a larger
if
statement
Third Circuit.
*5
inculpatory
itself
to the declarant. See
103;
Lieberman,
Garris,
meant statements “neutral as the de interest,” Garris,
clarant’s
(emphasis against Govern neutrality pre
ment’s claim that Garris
cludes the admission of statements excul
patory ato non-declarant such as Ford.
If instead the court’s denial of the motion independent based on assessment statements,
of the trustworthiness of the discretion;
then the court abused its there statements,
was no evidence clearly corroborative of Govern
ment’s case Thomas and untrustworthy.
are The Government’s flatly
claim that con the statements “are testimony,”
tradicted the officers’ **, inexplica
Government Brief 18 n. is question
bly lame. The Ford in of what
tended is here. is not a the issue That
question begged by accepting to be rejecting
views of the on faith and