U.S. v. Forrester
| Citation | 60 F.3d 52 |
| Decision Date | 29 June 1995 |
| Docket Number | D,No. 1025,1025 |
| Parties | 42 Fed. R. Evid. Serv. 773 UNITED STATES of America, Appellee, v. Derrick FORRESTER, Defendant-Appellant. ocket 93-1824. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Theodore B. Heinrich, Asst. U.S. Atty. for the D.Conn., Bridgeport, CT (Christopher F. Droney, U.S. Atty. for the D.Conn., New Haven, CT, on the brief), for appellee.
Michael Young, New York City, for defendant-appellant.
Before OAKES, CARDAMONE and ALTIMARI, Circuit Judges.
Defendant-appellant Derrick Forrester ("Forrester") appeals from a judgment of conviction entered in the United States District Court for the District of Connecticut (Cabranes, J.), following trial to a jury. Principally upon the testimony of three cooperating conspirators and two government agents, Forrester was convicted of conspiracy to distribute and export cocaine and distribution of cocaine in violation of 21 U.S.C. Secs. 963, 846, and 841(a)(1). Although indicted in 1989, Forrester was not arrested and tried until 1993. He appeals the district court's denial, on both procedural and substantive grounds, of his post-trial motion for dismissal alleging the breach of his constitutional right to a speedy trial. He also argues that the district court made several evidentiary errors. We (1) affirm the district court's rejection of Forrester's speedy trial motion, and (2) reverse and remand for a new trial, principally as a consequence of evidentiary errors that collectively deprived Forrester of a fair trial. Accordingly, we do not decide the sentencing issue raised by Forrester.
According to the government's theory, Forrester was "Sam," one of two ringleaders of a cocaine smuggling conspiracy. Along with a partner called "Tony," who was never identified, Forrester was alleged to have directed smuggling by three young women from Connecticut who were used as couriers: Jerilyn "Jay" DeLuco ("DeLuco") was alleged to have recruited Paula Bagley ("Bagley") who, in turn, enlisted Pamela Golemba ("Golemba"). The scheme required the women to fly to London wearing baggy clothing to conceal several packages of cocaine strapped to their bodies. Forrester, along with "Tony," allegedly provided the drugs, helped the couriers obtain passports in Connecticut, paid for them to stay in a New York hotel, bought their loose-fitting clothing, and assisted in taping the bundles to the women's bodies. All three women pleaded guilty and testified at trial in exchange for reduced sentences. Another female courier and her male contact were arrested in London.
Forrester's defense was that "Sam" did not exist. He argued that the three couriers had fabricated the story after realizing the benefit they could derive from incriminating a higher-up. Forrester's version of the facts was fortified by the investigating agent's notes which, although written immediately following interviews with each of the three female couriers, made no mention of "Sam." The details of the scheme, which we describe in some detail, were as follows.
Following a phone call from then seventeen year old Doris Rodriguez ("Rodriguez" or "declarant"), the Stamford, Connecticut police began a stake-out of a hotel room at the Stamford Ramada Inn on February 3, 1989. A woman, later identified as co-conspirator DeLuco, was observed leaving the Stamford Passport Office and entering the hotel room. Agents of the Drug Enforcement Agency ("DEA"), whose assistance had been solicited by the police, followed and pretended to arrest Rodriguez in the hotel room on the ground that she was a runaway. Present in the hotel room were DeLuco and Forrester. No drugs or drug paraphernalia were found in the room. Away from the other two, Rodriguez surrendered roundtrip airline tickets from New York City to London, for herself and DeLuco. Although Rodriguez did not testify at trial, statements attributed to her were admitted over hearsay objections by the defense, for the alleged purpose of establishing that her encounter at the Ramada Inn with DeLuco and Forrester was "narcotics-related."
Almost three weeks later, DEA Special Agent Dale Seymour ("Seymour"), who had been present at the Ramada Inn on February 3rd, learned that a neighbor of DeLuco's, Darlene King ("King"), had obtained a duplicate passport and had a reservation to fly from New York to London on February 24, 1989. Seymour watched King depart from John F. Kennedy Airport. He testified that she wore loosely fitting clothes and that her departure was intently observed by a black female and a black male. After King's arrest by London authorities, a search revealed that she carried 1.99 kilograms of cocaine in packages secured to her person by a girdle. Her London contact was also arrested at that time.
On February 27, 1989, the authorities executed search warrants for three residences: King's, DeLuco's and a home on Durham Street, the address on Forrester's driver's license. A search of the Durham Street home revealed a kitchen calendar with several phone numbers scribbled on it. One was an international number with London's city prefix, next to which was written "Damon," the name of King's London contact.
Subsequently, Seymour sought to locate DeLuco. He learned from the Stamford Passport Office that Bagley had applied for a duplicate passport in the company of DeLuco. Bagley's passport application listed Golemba as her friend. Bagley, DeLuco and Golemba were all eventually arrested and charged in the same conspiracy. Each identified Forrester, both in court and on the basis of a prior photospread identification, as one of two leaders, known to them as "Sam." All three women testified against Forrester at trial in exchange for reduced sentences.
The testimony of the three couriers was substantially similar. We summarize the details of the scheme as recounted by Bagley at trial. Bagley testified that, in addition to DeLuco, she knew that two men, "Sam" and "Tony," were involved in the scheme. "Tony" explained the scheme to the three women at a restaurant in Enfield, Connecticut. Although "Sam" was present, he said little. "Tony" drove Bagley and DeLuco to Stamford so that Bagley could get a passport, and paid for their hotel stay. Then "Sam" drove Bagley to New York where she registered at a hotel for which "Sam" paid. The next night "Tony" took Golemba to the hotel. At some point while they were at the New York hotel, the ringleaders either paid the couriers half of the money they had been promised, or were present when the women were paid by someone else. Both men accompanied the women to a department store to shop for loose-fitting clothing, for which the men paid.
Bagley and Golemba by then held airline tickets purchased by "Tony." In an effort at subterfuge, they exchanged the tickets they held to a Caribbean destination for tickets to London. Shortly before Bagley's flight, "Tony" took her to a different hotel, where he was staying. Accompanied by an unidentified woman, "Sam" brought six packages of cocaine to the room. The woman and "Sam" taped the packages to Bagley before "Tony" took her to catch a flight to London. Bagley passed through Customs without being searched and checked into a London hotel room where "Tony" and "Sam" had secured a reservation in her name. Bagley delivered the drugs without incident. Golemba, who had arrived on a different flight, also met with no difficulty. The two couriers stayed in London for a few days. Upon their return to the United States, Bagley never again saw either "Tony" or "Sam." About a week after Bagley and Golemba returned, Bagley was contacted by agent Seymour. Around the same time, Bagley learned from DeLuco's mother that a warrant had issued for DeLuco's arrest.
On March 1, 1989, Seymour went to Bagley's workplace and interviewed her about the conspiracy. According to Bagley, she related the entire story to him at that time. She testified that she told the agent (1) about the meeting in the Enfield restaurant attended among others, by "Sam"; (2) that "Sam" drove her to the New York hotel; (3) that he and a woman helped tape the drugs on her body before her flight; (4) that "Tony" and "Sam" were both present when she and Golemba were paid; and (5) that "Sam" took her shopping for suitable travel clothes.
DeLuco, who testified first, provided the same information. She also testified that some two weeks after she made a successful smuggling trip to London, organized, as described above, by "Sam" and "Tony," she was at the Stamford Ramada Inn with Rodriguez and Forrester waiting for passports when agents removed the teenager. A few weeks later, she recruited Bagley and Golemba and attended the meeting in Enfield. In late February DeLuco made a test run to London, carrying no drugs, and was searched, a fact she reported to one of the two ringleaders. Shortly thereafter, "Tony" told her that her courier-neighbor, King, had been arrested. DeLuco fled to Missouri but eventually turned herself in to Seymour. Seymour interviewed her on March 2, 1989 at which point she described the entire scheme to him, including a full explanation of the roles of "Sam" and "Tony."
Golemba's trial testimony was to the same effect as that of Bagley. Like Bagley, she, too, was interviewed by Seymour on March 1, 1989. On cross-examination, Golemba testified that she had recounted the important details of the scheme to the agent, including information about "Sam" and "Tony." She also said that she had, during the interview, picked "Sam" 's photograph from several shown to her by Seymour.
Despite the testimony of the three couriers that "Sam" and "Tony" were not only the smuggling scheme's alleged ringleaders but handled virtually all of its particulars, and the testimony of all three women that they had shared with the DEA agent on March 1 and 2,...
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