589 F.2d 92 (2nd Cir. 1978), 215, United States v. Lang

Docket Nº:215, Docket 78-1205.
Citation:589 F.2d 92
Party Name:UNITED STATES of America, Appellee, v. Nathan LANG, Defendant-Appellant.
Case Date:November 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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589 F.2d 92 (2nd Cir. 1978)

UNITED STATES of America, Appellee,

v.

Nathan LANG, Defendant-Appellant.

No. 215, Docket 78-1205.

United States Court of Appeals, Second Circuit

November 30, 1978

Argued Sept. 26, 1978.

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Denise Cote, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Richard D. Weinberg, Asst. U. S. Atty., New York City, of counsel), for appellee.

Barry Bassis, Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Before WATERMAN and MULLIGAN, Circuit Judges, and WYATT, District Judge. [*]

MULLIGAN, Circuit Judge:

On December 6, 1977, the defendant in this case, Nathan Lang, also known as "Cool Breeze," made the mistake of visiting Rikers Island, a New York City penal institution and the situs of a former incarceration. His hegira was prompted not by nostalgia but in order to retrieve some personal effects. Oddly enough he submitted to a routine search by a Corrections Officer. At his request Cool Breeze opened a black pouch he was carrying which contained a quarter-inch stack of brand new five dollar bills which were in four groups and each of which had identical serial numbers. When asked about the bills, Lang admitted that they were "play money", a street term commonly employed to describe counterfeit bills. Cool Breeze, not surprisingly, was arrested, given Miranda warnings and was indicted on January 19, 1978. His trial lasted about two days. It took the jury about the same time to reach a verdict and then only after two Allen charges to the jury. Lang was convicted on June 7, 1978 in the Southern District of New York and the district judge who presided over the trial was the Honorable William C. Conner. The crime for which Lang was convicted was the possession of 30 counterfeit five dollar Federal Reserve notes in violation of 18 U.S.C. § 472.

The principal characters in the transaction at issue include his girl friend Donna Paola (spelled Payola in the transcript) also known as "Chicago." While there seems to be little doubt about the romantic relationship between Cool Breeze and Chicago, there is a serious question about their business relationship, a central issue on this appeal. Cool Breeze did not testify and Chicago, for reasons not made evident in the record, was an unavailable witness. The alleged supplier of the counterfeit bills was Ronson Carey, also known as "Raheem," who was also an unavailable witness for reasons we shall discuss in some detail. Finally, there was the inevitable undercover Secret Service Agent, Douglas James, to whom Raheem had sold counterfeit bills originating from the same plates as the bills found in the possession of Cool Breeze. There was no issue concerning the defendant's possession of the counterfeit bills and no constitutional infirmity suggested as to

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his search, arrest and the seizure of the bills. While some issue was raised as to whether he was knowingly in possession of counterfeit bills, his admission that it was "play money" undermined any real question on this point. The principal issue in the view of the trial judge and the one which may well have bothered the jury in its prolonged deliberations, was whether the Government had succeeded in establishing beyond a reasonable doubt that Lang possessed the money with the intent to defraud.

The trial judge's comments, made during several conferences with counsel which appear in the transcript, leave little doubt that the major source of the Government's proof and in fact its only proof that Lang intended to pass the money on for a profit consisted of a taped telephone conversation between Carey and the undercover agent James, which took place on December 9, 1977, three days after Lang's arrest. The admissibility of the taped conversation, which the trial judge characterized as "critical" to the Government's case, presents the dispositive issue on this appeal. It was admitted with considerable misgiving by the district judge, who on two occasions suggested that if he had erred, the Court of Appeals would provide guidance. We have considered the matter in detail and conclude that the taped conversation was inadmissible hearsay, not within the exceptions to the rule proposed to be applicable and further that the error cannot be characterized as harmless. Therefore, we reverse the conviction. Cool Breeze is free on bail pending this appeal.

Considerably bowdlerized, the taped conversation in issue here contained statements by Carey that Cool Breeze had gone to Rikers Island "all dust up and high" (according to expert testimony street jargon meaning under the influence of an hallucinogenic drug); that he had the counterfeit bills with him at that time; that he had been "busted" (arrested); that Carey had never met Cool Breeze but had been "juggling" (dealing) with him through his girl friend (Paola) who was his "contact" (middle person). The Government argued, and the trial court ultimately accepted into evidence, the tape recorded conversation. The conversation was held admissible as an exception to the hearsay rule, as either a statement against penal interest by an unavailable witness, Fed.R.Evid. 804(b)(3), or, alternatively as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy", Fed.R.Evid. 801(d)(2)(E). Although their Runyonesque sobriquets are more colorful, we shall refer to the participants hereafter by their proper names.

I RULE 804(b)(3) STATEMENT AGAINST PENAL INTEREST

  1. Unavailability as a Witness

    Before the hearsay exceptions under Rule 804 become applicable, subdivision (a) of the rule requires that the declarant whose statement is sought to be introduced be unavailable as a witness. Judge Conner properly found that Carey was unavailable as a witness under Rule 804(a)(1), which provides that a declarant is unavailable if he is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement. Carey appeared in court with his attorney pursuant to subpoena and on direct examination by the Government invoked the Fifth Amendment with respect to any questions concerning the sale in issue. In contesting the finding of...

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