U.S. v. Bryce

• Citation: 208 F.3d 346
• Decision Date: 01 August 1998
• Docket Number: D,No. 98-1492,No. 1365,D-N,1365,98-1492
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. EWAN BRYCE, also known as Ian, Defendant-Appellant, DARREN JOHNSON, also known asice, also known as D, Defendant. ocket
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 346

208 F.3d 346 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. EWAN BRYCE, also known as Ian, Defendant-Appellant, DARREN JOHNSON, also known as D-Nice, also known as D, Defendant.

No. 1365, Docket No. 98-1492

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 3, 1999

Decided: August 24, 1999

As Amended on Denial of Rehearing Jan. 19, 2000

As Amended: March 7, 2000

Ewan Bryce appeals from the judgment of the United States District Court for the District of Connecticut (Chatigny, J.) convicting him, after a jury trial, of two narcotics offenses.

Reversed in part, affirmed in part, and remanded.

Judge Sand dissents in a separate opinion.

[Copyrighted Material Omitted] JOHN R. WILLIAMS, New Haven, CT, for Defendant-Appellant.

DAVID A. RING, Assistant United States Attorney, Hartford, CT (Stephen C. Robinson, United States Attorney for the District of Connecticut, on the brief), for Appellee.

Before: JACOBS and SOTOMAYOR, Circuit Judges, and SAND, District Judge.^*.

JACOBS and SOTOMAYOR, Circuit Judges:

Ewan Bryce appeals from the judgment of the United States District Court for the District of Connecticut (Chatigny, J.) convicting him, after a jury trial, of (i) conspiracy to possess with intent to distribute, and to distribute, cocaine (in violation of 21 U.S.C. §846), and (ii) possession with intent to distribute, and distribution of, cocaine (in violation of 21 U.S.C. §841(a)(1)). We find that the government's evidence was insufficient to prove that Bryce possessed or distributed cocaine "[b]etween on or about August 5 and August 6, 1997," the period specified in the indictment. In an opinion issued on August 24, 1999, we reversed the judgment insofar as it convicted Bryce of possession and distribution, affirmed the judgment as to the conspiracy count, and remanded the case to the district court for further proceedings. Without a change in the terms of the mandate, we now amend our previous opinion.

BACKGROUND

In 1997, federal law enforcement officers in Connecticut conducted surveillance of several persons suspected of narcotics trafficking, including the appellant, Ewan Bryce, and his co-defendant, one Darren Johnson. On August 5 and 6, 1997, agents intercepted and recorded a number of telephone conversations, eight of which are relevant to this case: seven calls between Bryce and Johnson ("the Bryce-Johnson tapes"), and one between Johnson and another individual, Edwin Gomez ("the Johnson-Gomez tape").

During their conversations, Bryce and Johnson used guarded and coded phrases to arrange a transaction in which Bryce would sell powder cocaine to Johnson for $22,500 per kilogram.¹ In their initial call on August 5, Bryce claimed to possess a quantity of what he called "straight." Johnson expressed interest in buying some of this "straight," and Bryce told Johnson to call him back later that night, presumably to arrange a meeting. But when Johnson called Bryce's cellular phone, there was no answer.

In a call early the next morning, August 6, Bryce told Johnson that he had already "let off" "like 6 of 'em... at 22-5." Approximately three hours later, Johnson telephoned Gomez and informed him, in less cryptic language, that Bryce was selling "straight powder" for "deuce deuce" and had "offed 7 of 'em yesterday [August 5]." Johnson and Gomez expressed concern that the price being quoted would depress the price in other transactions.

After discussing matters with Gomez, Johnson called Bryce back and said he would buy "two," to which Bryce responded: "Okay. Alright I'm gonna, um, call you back then." Two minutes later, before Bryce could return Johnson's call, Johnson called Bryce again and told him that he would actually buy more than two, so long as Bryce was indeed selling "straight." They agreed to meet at Bryce's home in fifteen minutes. That meeting apparently never happened, however, because Bryce called Johnson several hours later to say that he really only had "one" left, and that he did not "really wanna get rid of this one," but Johnson (by now quite put out) pleaded with Bryce to sell the "one" to him. Reluctantly, Bryce agreed, and they arranged to meet later that day. It is apparent that this meeting also never happened, because Johnson called Bryce on August 11 and asked him whether he still had "it." Bryce said he did, and they again agreed to meet.

On August 26, 1997, federal agents arrested Johnson and another individual, one Michael McCausland. The next day, Bryce terminated the service on his pager; less than a month later, he began using a new cellular telephone. Soon thereafter, Bryce was also arrested.

Bryce and Johnson were charged in a two-count indictment. Count One alleged that the two conspired together and with others to possess with intent to distribute, and to distribute, cocaine in violation of 21 U.S.C. §846; Count Two alleged that between, on, or about August 5 and 6, 1997, Bryce possessed with intent to distribute, and distributed, cocaine in violation of 21 U.S.C. §841(a)(1).

A jury convicted Bryce on both counts.² The district court then sentenced Bryce to 124 months of imprisonment on each count (to be served concurrently) and five years of supervised release, plus a fine and an assessment.

DISCUSSION

Bryce challenges his convictions on several grounds: (i) that the district court erred in admitting certain hearsay evidence, see infra Section I; (ii) that the evidence presented at trial was insufficient to establish guilt under Count Two of the indictment (charging him with possession with intent to distribute, and distribution, of powder cocaine), see infra Section II; (iii) that the government procured testimony in violation of the federal anti-bribery statute, 18 U.S.C. §201(c)(2) (1994); and (iv) that the government's exercise of a peremptory challenge violated Bryce's right to equal protection. We reject the last two arguments in the margin.³

I

Bryce challenges his conviction on the ground that the district court erred in admitting certain hearsay evidence -specifically, the Johnson-Gomez tape, on which Johnson repeats Bryce's claim that he has cocaine for sale and has already distributed some to others. The district court admitted the tape pursuant to the catch-all exception to the hearsay rule, Fed. R. Evid. 807,⁴ which permits admission of hearsay if (i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence addressing that fact; (iv) its admission is consistent with the rules of evidence and advances the interests of justice; and (v) its proffer follows adequate notice to the adverse party. See id.; Parsons v. Honeywell, Inc., 929 F.2d 901, 907-08 (2d Cir. 1991).

Bryce does not dispute that the statements in the Johnson-Gomez tape were material, that the declarants were unable to testify, or that the government complied with the Rule's notice requirement. Bryce's objection is that admission of the Johnson-Gomez tape violated the Sixth Amendment's Confrontation Clause and therefore could not be deemed to have advanced the interests of justice. The resolution of this argument is linked to an evaluation of trustworthiness. See Idaho v. Wright, 497 U.S. 805, 813-21, 110 S. Ct. 3139, 3145-50 (1990) (indicating that under the Confrontation Clause, as under the hearsay rules, courts must evaluate the totality of the circumstances to determine whether a statement contains particular guarantees of trustworthiness that make the declaration especially worthy of belief); Mingo v. Artuz, 174 F.3d 73, 77 (2d Cir. 1999) ("A court must carefully examine each instance of incriminating hearsay in the light of all the circumstances, taking care to consider all reasonable motivations of the declarant to lie, before concluding that such evidence is so reliable that the defendant had no constitutional right of confrontation."); United States v. Matthews, 20 F.3d 538, 545 (2d Cir. 1994) (to satisfy Confrontation Clause, statement falling outside firmly rooted hearsay exception must provide such "particularized guarantees of trustworthiness" that "adversarial testing would add little to its reliability") (quoting Wright, 497 U.S. at 821, 110 S. Ct. at 3149) (internal quotation marks omitted).

The statements at issue in the Johnson-Gomez tape have a high degree of trustworthiness. As we noted in Matthews:

[O]rdinarily, a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of an accused, absent some circumstance indicating authorization or adoption. On the other hand, if the statement is made to a person whom the declarant believes is an ally rather than a law enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that that inculpatory portion is any less trustworthy than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be sufficiently established that its admission does not violate the Confrontation Clause.

20 F.3d at 545-46 (internal citations and quotation marks omitted). Several factors prove particularly relevant in this case: (i) the statements were obtained via a covert wiretap of which neither Johnson nor Gomez was aware; (ii) the statements were made during the same time period that Johnson was conversing with Bryce; (iii) Johnson's statements implicated both himself and Bryce as participants in a narcotics conspiracy; and (iv) Gomez was Johnson's colleague in the narcotics trade. Based on these factors, there is little reason to believe that Johnson and Gomez had any motive to lie, or were lying, during this telephone conversation. Cf. id. at 546 (co-defendant's statements implicating defendant in robbery found to be trustworthy because they were volunteered to co-defendant's girlfriend in privacy of own home...