385 F.3d 196 (2nd Cir. 2004), 02-1758, United States v. Morgan

Docket Nº:02-1758.
Citation:385 F.3d 196
Party Name:UNITED STATES of America, Appellant-Cross-Appellee, v. Wendy Lynn MORGAN, Defendant-Appellee-Cross-Appellant.
Case Date:September 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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385 F.3d 196 (2nd Cir. 2004)

UNITED STATES of America, Appellant-Cross-Appellee,


Wendy Lynn MORGAN, Defendant-Appellee-Cross-Appellant.

No. 02-1758.

United States Court of Appeals, Second Circuit

September 28, 2004

Final Submission: May 3, 2004.

Argued: Dec. 5, 2003.

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Samantha L. Schreiber, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney, of counsel),

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Brooklyn, NY, for Appellant-Cross-Appellee.

Benjamin E. Rosenberg, Swidler, Berlin, Shereff & Friedman LLP, New York, NY, for Defendant-Appellee-Cross-Appellant.

Before: CARDAMONE, SACK, and JOHN R. GIBSON, [*] Circuit Judges.

SACK, Circuit Judge.

Appeal by the defendant Wendy Lynn Morgan 1 from a judgment of conviction following a jury trial in the United States District Court for the Eastern District of New York (David G. Trager, Judge). The jury found Morgan guilty of conspiracy to import, importation, and possession with the intent to distribute controlled substances in violation of 21 U.S.C. §§ 963, 952(a), and 841(a) (1), respectively. Morgan argues that the evidence at trial was insufficient to establish that she knowingly and intentionally committed the offense. She further argues that the letter written by her co-defendant, Lori Hester, to Hester's boyfriend was improperly admitted hearsay with respect to the case against Morgan and that the district court therefore committed plain error by failing to instruct the jury not to consider it with respect to the charges against her. Because we conclude that the evidence was sufficient for conviction and that failure to give the instruction was not plain error, we affirm the judgment of the district court.


In setting forth the facts of this case, we are required to view all trial evidence in the light most favorable to the government; all permissible inferences must be drawn in its favor. United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995), cert. denied, 516 U.S. 1001, 116 S.Ct. 545, 133 L.Ed.2d 448 (1995). The facts of this case were elicited by the government largely from the testimony of Hester and the testimony of a United States customs inspector and a New York City police detective as to what Morgan said to each of them at or about the time of her arrest. Because the principal question before us is the sufficiency of the evidence at trial used to convict Morgan, we rehearse the testimony here in some detail.

Hester and Morgan were residents of Clarkesville, Georgia, a small town some eighty miles northeast of Atlanta. At the time of the trial that is the subject of this appeal, according to Hester, the two women were, and for some years previously had been, "best friends." 2 Trial Tr., Jan. 11, 2001, at 183.

During the winter of 1999-2000, Morgan and Hester were befriended by a man named Kareem Scott. According to Hester, Scott drove a white Mercedes Benz and told them that he worked in the fashion business, "with clothes and stuff." Id. at 187. Neither Morgan nor Hester knew where Scott lived or had a means of reaching him other than by leaving a call-back number on his pager. The two young women met with Scott some seven or eight times during that period.

In May 2000, Scott invited Hester and Morgan to accompany him to New York City "because," Hester said, "he didn't want to go by himself." Id. at 188. After deliberating for several weeks, the two

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women accepted Scott's offer. Days later, using plane tickets and $300 in cash given to them by a woman whom Scott described as his cousin, they flew to New York.

Scott met them in New York City, although he left a few days later to travel to Miami "on business." Id. at 190. According to Hester, while they were in New York, they were taken to a passport office by someone introduced to them by Scott. The reason Scott gave them was that "he didn't know where [they] might be going in a future trip, may be going overseas." Id. at 229. The women's efforts to obtain passports were unsuccessful, however, because Morgan did not have the required documentation with her. Shortly thereafter, the two women returned to Georgia.

According to Hester, about a week after returning home, she received a telephone call from Scott. Scott asked that Morgan and Hester "pick up some clothes" in Paris for him. Id. at 191. He offered not only to pay for the trip but also to pay them an unstated fee for their efforts. Hester testified that she thought that the trip involved "some kind of work" for Scott and agreed that Scott's offer was thus a "business proposition." Id. at 234. After the women accepted Scott's offer, he took them to Atlanta, where the women each succeeded in obtaining a passport.

On June 9, 2000, the day after they received their passports, Morgan and Hester again flew to New York. They brought with them a small blue duffle bag and had instructions to go to a Days Inn in Manhattan when they arrived. There, they would be met by a friend of Scott named "Dustin."

Morgan and Hester did as they were told. At or about nine or ten o'clock on the evening that they arrived in New York, after they had checked into the Days Inn, a man telephoned them. He referred to himself as Dustin. According to Hester, Morgan took the call. Dustin asked Morgan to come down to meet him, which she did. She returned to her room some five or ten minutes later with $1,000 in hundred dollar bills. It was, Hester said, for "spending money and stuff like that." Id. at 194.

The following day, June 10, Dustin returned to the hotel with airline tickets to Paris for Morgan and Hester. They were to depart that night.

During their two-day New York sojourn, Morgan and Hester bought souvenirs--including New York Police Department teddy bears, crossword-puzzle books, New York T-shirts, and New York Yankees hats--and a black bag in which to carry them.

As Morgan and Hester's departure time neared, Dustin picked them up at their hotel and drove them to the airport. He told them that they were going to Paris to pick up clothes. According to New York City Police Department Detective Lorraine Green, who interviewed Morgan at the time of her later arrest, Morgan said that when she was leaving for Paris, she had asked Dustin "straight up" if they were really going to pick up clothes, "because she didn't want to do anything illegal." Trial Tr., Jan. 10, 2001, at 119. Dustin reassured her that, yes, they were just going to pick up clothes.

The two women took the black bag of souvenirs with them to Paris as carry-on luggage. They checked the blue duffel bag with their clothes in it.

The instructions the two women received regarding what to do when they arrived in Paris were as vague as those they had been given for their arrival in New York. According to Hester, Dustin told the defendants that upon arriving at the Paris airport, they might be met by a friend of his; if not, they should call Scott,

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who would give them the friend's phone number. They never asked for or were told this man's name.

When Morgan and Hester arrived in Paris, after a stop in London, they were paged on the public address system to a service desk. There they were told, apparently by a representative of the airline on which they had traveled, that the checked blue duffle bag had been misplaced. They were instructed how to retrieve it when they returned to the United States.

Shortly thereafter, they were paged to the service desk again. The unnamed friend of Scott and Dustin was there to meet them. 3 He told Morgan and Hester that the three of them would be traveling together to the Netherlands. According to Hester, he said he lived there and that there, and not Paris, was "where the clothes [we]re." Trial Tr., Jan. 11, 2001, at 198. The three then flew to Amsterdam.

Once in Amsterdam, the man gave the two women $600 in local currency. He then dropped them off at a hotel for the night.

According to Hester's story, the following day, the man picked up the women at the hotel. The three drove to another city in the Netherlands--Hester did not know which--and there, Morgan and Hester were deposited at a Holiday Inn. How long they were to stay there they were not told.

The man called to check up on the women regularly during their stay. Meanwhile, Hester and Morgan, having been deprived of the use of the clothing in the lost blue duffel bag, each bought a new outfit for her personal use.

According to Hester's account, on June 13, 2000, the still-nameless man picked them up at the Holiday Inn. He took their black carry-on bag, which contained the New York souvenirs and the clothes they had worn on their trip. He instructed the women to go across the street to get something to eat, which they did. Some forty-five minutes later, the man returned, handed Morgan and Hester return airline tickets to New York that had been purchased that day, and drove them to the Amsterdam airport for their return to New York.

When the threesome arrived at the airport, the man unloaded three pieces of luggage from the trunk of the car in which they had been driving. Morgan told the officials at the time of her arrest and Hester testified at trial that they had not seen the luggage before. Hester testified that when one of the women asked the man where their black carry-on bag was, he informed them that he had put it in one of the pieces of luggage "with the clothes." Id. at 208. According to their story, neither Morgan nor Hester ever looked inside the luggage, not even to determine whether, in fact, their black carry-on bag or their clothing was there.

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