411 F.3d 1210 (11th Cir. 2005), 03-15528, United States v. Matthews

Docket Nº:03-15528.
Citation:411 F.3d 1210
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrance MATTHEWS, a.k.a. Jack, a.k.a. Say Jack, Defendant-Appellant.
Case Date:June 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1210

411 F.3d 1210 (11th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terrance MATTHEWS, a.k.a. Jack, a.k.a. Say Jack, Defendant-Appellant.

No. 03-15528.

United States Court of Appeals, Eleventh Circuit

June 8, 2005

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William J. Sheppard, D. Gray Thomas, Sheppard, White & Thomas, P.A., Jacksonville, FL, for Defendant-Appellant.

Yvette Rhodes Harrison, Tampa, FL, Marcio W. Valladares, Asst. U.S. Atty., Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and GRANADE [*], Chief District Judge.

TJOFLAT, Circuit Judge:

Following a jury trial in the United States District Court for the Middle District of Florida, Terrance Matthews was convicted of one count of conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and two counts of obstruction of justice by intimidation of a witness in violation of 18 U.S.C. § 1512(b)(1). The district court sentenced Matthews to 292 months of imprisonment and ten years of supervised release on the conspiracy count and imposed concurrent sentences of ten years of imprisonment and three years of supervised release on each of the witness intimidation counts. On appeal, Matthews raises four issues: 1

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· whether wiretap evidence should have been excluded because the recordings were not sealed in compliance with 18 U.S.C. § 2518(8)(a);

· whether evidence of a telephone conversation not involving Matthews should have been excluded because it was hearsay, irrelevant, and unfairly prejudicial;

· whether there is sufficient evidence to sustain the witness intimidation convictions; and

· whether the district court erred by admitting evidence of Matthews's 1991 arrest under Federal Rule of Evidence 404(b).

Part I recounts the course of the proceedings in the district court. Parts II-V address Matthews's four claims. In Part V, we conclude that the district court committed error in admitting evidence of Matthews's 1991 arrest and that this error cannot be deemed harmless. For this reason, Matthews's convictions must be reversed.

I.

At trial, the Government presented evidence that Matthews was part of a significant, though somewhat informal and irregular, conspiracy to distribute cocaine in Jacksonville and Miami. DEA Agent Frank Orochena testified that the DEA began investigating the conspiracy in July 2000, when Nathaniel King, also known as "Peewee," offered to cooperate with them. Peewee was involved in the conspiracy as a courier. His job was to take cash from Jacksonville to Miami and then return to Jacksonville with cocaine for distribution there. Peewee's employer was Linwood Smith, a major participant in the Jacksonville end of the conspiracy.

In August of 2000, Peewee and an undercover agent bought five kilograms of cocaine in Miami with cash provided by Linwood Smith. On the return trip to Jacksonville, the DEA seized the cocaine in a staged stop. Peewee was allowed to "escape" so that the investigation would not be compromised. The DEA was then able to obtain authorization for wiretaps on Linwood Smith's cell phone and two cell phones owned by Farrell Alston, a major supplier in Miami. Smith's phone was monitored for sixty days. During this time more than 6300 calls were intercepted, 319 of which were deemed "pertinent," i.e., related to the conspiracy. Matthews was not involved or mentioned in any of the pertinent conversations. Alston's phones were monitored for thirty days, and more than 2400 calls were intercepted, 106 of which were deemed pertinent. One of the intercepted conversations was between Matthews and Alston; Alston testified that he and Matthews were discussing the sale of a kilogram of cocaine during the call. Matthews's name was also mentioned briefly in a conversation between Alston and Jason Moore, another member of the conspiracy.

The DEA intercepted the Moore-Alston conversation at 5:21 P.M. on March 20,

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2001. Near the end of the short call Moore told Alston that he would call "sa-ous" because he had "the number programmed." Alston testified that "sa-ous" was one of Matthews's nicknames; thus, Moore was going to call Matthews because he had Matthews's phone number programmed on his phone. Moore also told Alston that he would "be on your end 'bout Thursday, Friday" and would "need power pellets." According to Alston, "power pellets" are ecstasy pills. Alston told Moore that he would "get that set up for [him] then."

An hour-and-a-half later, the Government intercepted the Matthews-Alston call. During their conversation, Matthews asked Alston whether "J" (Jason Moore) had called him. Alston said that he had. Matthews then asked whether Alston had "put [Moore] on ... twenty-six street." Alston testified that "twenty-six street" was a code for the price of a kilogram of cocaine; thus, Matthews was really asking whether Alston had quoted Moore a price of $26,000 for a kilogram of cocaine. Alston replied, "[H]ell no I wouldn't give that to him for that." Matthews said, "Good. Just give it to me then." In other words, according to Alston, Matthews wanted Alston to give him the kilogram so that he could then sell it to Jason Moore. 2 At trial, Alston could not recall whether he actually sold Matthews this particular kilogram of cocaine.

In July and October 2001, the DEA arrested a number of members of the conspiracy. Among them were Farrell Alston, Anthony Wells, Shawn Richardson, James Brown, Antonio Austin, Jason Moore, and Rodney Cannon, all of whom eventually pled guilty and, pursuant to their plea agreements, cooperated with the Government and testified against Matthews.

Farrell Alston was the first of the conspirators to testify at trial. Alston testified to having sold more than 400 kilograms of cocaine during the course of the conspiracy. As part of Alston's plea agreement, the Government filed a§ 5K1.1 motion 3 on his behalf, which led to

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a five-level sentence reduction for substantial assistance. 4 Alston also received a three-level reduction for acceptance of responsibility. As part of the plea, the Government also declined to pursue any sentencing enhancements based on a firearm found on Alston at the time of his arrest. Alston was sentenced to 135 months in prison for his role in the conspiracy. Without the aforementioned reductions, his applicable guideline range was 324 to 405 months--235 to 293 months even taking into account in the reduction for acceptance of responsibility. The Government also filed a Rule 35 5 motion on his behalf that was pending at the time of Matthews's trial; Alston was hopeful that it would result in a further reduction of his sentence.

At trial, Alston testified to the following facts regarding the conspiracy: Alston and James Brown were partners in Miami, and Alston was introduced to Matthews through Brown. Alston was responsible for getting cocaine, and Brown had connections with buyers in Jacksonville, including Antonio Austin, Jason Moore, and Linwood Smith. At first, Alston and Brown used Peewee as a courier. Peewee would bring cash to Miami, and they would send twenty to forty kilograms of cocaine at a time back to Jacksonville. After Pewee "escaped" from the staged DEA stop, however, the Jacksonville customers began traveling to Miami to purchase the cocaine in person. Alston's main supplier was George Morales, but he also bought cocaine from Matthews a few times when Morales didn't have all that he needed. Specifically, he purchased cocaine from Matthews--usually five to ten kilograms, but once as much as twenty, at a price of $18,000 to $23,000 per kilogram--"no more than about five or ten times" in 1999 and 2000. He also sold Matthews one to three kilograms of cocaine on about five different occasions in 2000. He and Brown ceased doing business with Matthews, however, after he sold them some bad cocaine sometime in 2000.

After Alston was sentenced and incarcerated in federal prison in Miami, Matthews sent him four letters. The letters used pseudonyms, but Matthews stipulated that he wrote them, and Alston knew that they were from Matthews. The first letter began, "I been hearing some bad things about you old boy and it's coming from some people that seems to know you well." It continued, "[T]he talk is that you have went bad for those folks and you are lying on anyone to get time cut .... [T]here is anuff brothers in there for nothing on the count of another brother telling a lie on them." Matthews also urged Alston not to "be another sucker for those folks." Alston understood this to mean that Matthews knew that he was cooperating with the Government and wanted him to stop. The letter also encouraged Alston "to seek the lord and pray and read that bible every day and ask him to show you a way to get closer to him so you could be a better man in christ"; Alston testified that

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he and Matthews had never discussed religion before.

The letter next stated:

I know you heard about sleep got killed[;] he got shot up in the car one night[;] he died in the hospital a month later[;] thats why I say get your self right with the lord because we don't know when were leaving here but we won't to be right with Jesus.

"Sleep," also known as "Blind," owned a house in Miami where Matthews, Alston, and other members of the conspiracy met to drink, smoke marijuana, shoot dice, and hold dogfights. Alston understood Matthews to be advising him that he should get himself "right" with God because "you don't know when you're going to die." At this point, the Assistant United States Attorney (AUSA) followed up by asking, "And how did you take that? What did you understand that to mean?" Alston explained, "I was...

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