U.S. v. Bey Jr

• Decision Date: 12 August 1999
• Docket Number: No. 98-1388,98-1388
• Citation: 188 F.3d 1
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. JOSEPH BEY, JR., Defendant, Appellant
• Court: U.S. Court of Appeals — First Circuit

Page 1

188 F.3d 1 (1st Cir. 1999)

UNITED STATES, Appellee, v. JOSEPH BEY, JR., Defendant, Appellant.

No. 98-1388

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Argued May 7, 1999

Decided August 12, 1999

[Copyrighted Material Omitted]

Dana A. Curhan, by appointment of the Court, for appellant.

Emily R. Schulman, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney was on brief, for appellee.

Before Stahl, Circuit Judge, Kravitch,^* Senior Circuit Judge, and Lipez, Circuit Judge.

KRAVITCH, Senior Circuit Judge.

In this appeal we address the joint-participant exception to the marital communications privilege, the propriety of a prosecutor's remarks to the jury during closing argument, and the requirements necessary to support a sentencing enhancement for the defendant's role as a supervisor of criminal activity. Discerning no reversible error, we affirm the defendant-appellant's convictions and sentence for importing cocaine into the United States.

BACKGROUND

Joseph Bey, Jr. stood trial on six counts of importing cocaine into the United States, in violation of 21 U.S.C. 952(a), one count of conspiring to import cocaine, in violation of 21 U.S.C. 963, and one count of attempting to import cocaine, also in violation of 21 U.S.C. 963. At trial, the government presented evidence that showed Bey recruited a number of unsuspecting couriers to transport large amounts of cocaine, diluted in bottles of alcohol, from Jamaica to the United States. Bey would recruit one or two persons at a time to assist him in filming various documentary films in Jamaica. Although the recruits typically had no experience in this type, of work, Bey convinced them that the work was easy, that he would train them, and that he would pay for all their expenses on the trip. Once in Jamaica, the recruits would take part in minimal filming with equipment that frequently did not work and spend the remainder of their time on vacation. When the recruits returned to the United States, Bey or someone else would give each recruit three bottles and ask them to take the bottles to John Moore or Vasco Harriott in the United States. Under the impression that the bottles contained only rum or wine for Bey's friends at home, the recruits would agree and bring the bottles into the United States. In fact, the bottles contained a solution of alcohol and cocaine.

Bey's defense at trial was that he was unaware of the real contents of the bottles and that he believed Moore legitimately was interested in the documentary work for which Moore had hired him. Moore testified for the government in return for promises of leniency; his credibility, therefore, was an issue at trial. The government also presented the testimony of Bey's wife, Catherine Bey, over Bey's objection. Catherine Bey testified that Bey was a knowing participant in the scheme to import cocaine.

DISCUSSION

On appeal, Bey, through counsel, argues that the government violated the marital communications privilege by forcing Bey's wife, Catherine Bey, to testify regarding confidential marital communications. He also argues that the prosecutor made a number of errors during the government's closing argument that require us to reverse his convictions. Additionally, Bey filed a supplemental pro se brief in which he added to his counsel's arguments ¹ and raised several additional challenges to his convictions and sentence, only one of which -- regarding the district court's calculation of his sentence -- merits extended discussion.²

I. Marital Communications Privilege

The marital communications privilege permits a federal criminal defendant to bar his or her spouse from testifying regarding confidential communications that took place during the marriage. See United States v. Picciandra, 788 F.2d 39, 43 (1st Cir. 1986). "Communications concerning crimes in which the spouses are jointly participating, however, do not fall within the protection of the marital communications privilege." Id. The district court in this case found that Catherine Bey became a joint participant in the conspiracy to import cocaine and that her testimony, therefore, fell outside the privilege.

We review a claim that the district court erroneously admitted testimony at trial in derogation of an evidentiary privilege for an abuse of discretion. See United States v. Reeder, 170 F.3d 93, 106 (1st Cir. 1999) (attorney client privilege), pet. for cert. filed (July 9, 1999); United States v. Short, 4 F.3d 475, 479 (7th Cir. 1993) (marital communications privilege). More particularly, in assessing whether the district court properly admitted a spouse's testimony pursuant to the joint-participant exception to the marital communications privilege, the court's evaluation of a testifying spouse's complicity in the underlying crime is a question of fact that we review for clear error. See Picciandra, 788 F.2d at 43.

The government must produce evidence of a spouse's complicity in the underlying, on-going criminal activity before the district court may admit testimony regarding confidential communications between the defendant and the spouse. The spouse's involvement in the criminal activity, however, need not be particularly substantial to obviate the privilege. See, e.g., Short, 4 F.3d at 479 (noting that the spouse's "minor role" in aiding and abetting the defendant's conspiracy was sufficient to admit testimony regarding marital communications). In Picciandra, for example, we held that a spouse who had participated in discussions regarding the defendant's money laundering scheme and had delivered cash to one of the conspirators, was herself a co-conspirator and therefore a joint participant. 788 F.2d at 43. Similarly, in United States v. Hill, 967 F.2d 902, 912 (3d Cir. 1992), the court concluded that a spouse who had accepted drug deliveries, informed the defendant of the deliveries, and counted drug proceeds, was a joint participant in the defendant's drug crimes and therefore could testify against the defendant at trial.

During voir dire in the case at bar, Catherine Bey testified that she engaged in a number of acts similar to those described above and thus implicated herself as a joint participant in Bey's conspiracy to import cocaine.³ Catherine Bey testified that she knew the purpose of Bey's trips to Jamaica before he traveled there the first time. With that knowledge and despite her testimony that she sought to discourage Bey from engaging in criminal acts, Catherine Bey drove Bey to the bus stop so that he could travel to Jamaica, wired Bey money for his personal use while he was abroad, and knowingly accepted drug proceeds upon Bey's return from each trip. Catherine Bey also testified that she knew John Moore was part of the drug conspiracy, that she relayed messages from Moore to her husband, and that she contacted Moore at Bey's request so that Moore could send "expense money" to Bey in Jamaica. She further testified that she maintained Bey's cover story regarding the documentary expeditions in her conversations with various couriers that Bey had recruited. Finally, Catherine Bey testified that she drove Bey to the bus station so that he could travel to Boston to pick up proceeds from his criminal activity. The government contends that each of these acts implicated Catherine Bey as a joint-participant.

We observe no clear error in the district court's decision that Catherine Bey became a joint participant in the criminal activity. In particular, Catherine Bey's knowing acceptance of drug proceeds, her efforts to maintain Bey's cover story for the benefit of his unsuspecting couriers, and her decision to act as a go-between when Bey needed additional funds from Moore to conduct his criminal activity in Jamaica satisfy us that Catherine Bey became a joint participant in the drug conspiracy. See Short, 4 F.3d at 478-79 (spouse's preparation of false documents and other aid in concealing the crime sufficient to avoid the privilege); cf. United States v. Wood, 924 F.2d 399, 402 n.1 (1st Cir. 1991) (noting that "the distribution of the proceeds of a conspiracy is one of its central objectives") (quoting United States v. Ammar, 714 F.2d 238, 253 (1st Cir. 1983)).

We reject, however, the government's contention that the other conduct to which Catherine Bey admitted also constitutes evidence of joint-criminal activity. For example, Catherine Bey's admissions that she provided phone messages to Bey, wired food money to Bey in Jamaica, and ⁴ drove Bey to the bus station, could be evidence of nothing more than the mundane incidents of their marital relationship. Proof of a criminal conspiracy requires an act "in furtherance of the conspiracy," see Ammar, 714 F.2d at 251, which is distinct from an act in furtherance of a working marriage. See United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) (holding that joint-participation exception requires "wrongful complicity . . . not innocent or involuntary action, to forfeit the privilege.").

Finally, Bey argues that the district court should have limited Catherine Bey's testimony regarding her confidential marital communications to only the events in which she was a co-conspirator. Our review of the case law, however, reveals that a court may admit relevant confidential marital communications that take place after the spouse has become a joint participant in the criminal activity. See Short, 4 F.3d at 479. In this case, the district court scrupulously sustained Bey's objections to the government's queries into marital communications before Catherine Bey became a participant in the criminal conspiracy. Only after the government demonstrated Catherine Bey's complicity in concrete fashion, did the district court permit her to testify regarding her confidential communications with Bey that took place after she became a participant. Bey's argument, therefore, is unavailing.

II. The Prosecutor's Closing Argument

Bey also challenges the...