804 F.2d 853 (5th Cir. 1986), 86-3347, United States v. Miliet

Docket Nº:86-3347
Citation:804 F.2d 853
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert MILIET, Defendant-Appellant.
Case Date:November 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 853

804 F.2d 853 (5th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert MILIET, Defendant-Appellant.

No. 86-3347

United States Court of Appeals, Fifth Circuit

November 12, 1986

Rehearing Denied Dec. 9, 1986.

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[Copyrighted Material Omitted]

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Mark McTernan, New Orleans, La. (Court-appointed), for Miliet.

John Volz, U.S. Atty., Peter G. Strasser, Eddie Jordan, Asst. U.S. Attys., New Orleans, La., for U.S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant Robert Miliet appeals from his convictions for one count of conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and two counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1). Finding Miliet's contentions to be without merit, we affirm the judgment of the district court.

I.

This case is the fruit of an undercover narcotics operation conducted by the Drug Enforcement Administration (DEA). On two occasions, July 17, 1985, and August 1, 1985, Agent Brian Dorian went to the home of Ann Lacombe and Mark Ostarly and purchased cocaine. DEA agents eventually arrested the defendant, Robert Miliet, and charged him with supplying the cocaine sold to Dorian.

Ann Lacombe testified for the prosecution at Miliet's trial. Lacombe admitted that she actually sold the cocaine to Dorian, but identified Miliet and a woman named Vivian Sylvestri as the suppliers of that cocaine. According to Lacombe, Miliet and Sylvestri brought the cocaine to Lacombe's home prior to the sales. They remained hidden in a back room of the home until the transactions were completed and Agent Dorian had gone.

Lacombe's testimony was corroborated by Agent David Peralta, who conducted a surveillance of Lacombe's residence. Peralta identified Miliet as having been present at Lacombe's home on both July 17 and August 1. Peralta saw Miliet leave the residence with a woman following the July 17 sale to Dorian. Peralta also saw Miliet enter Lacombe's residence prior to Dorian's arrival on August 1.

Lacombe's testimony was further corroborated by Agent Dorian. Dorian testified that after he paid Lacombe on July 17, she handed the money to Ostarly. He in turn took the money to the suppliers who were waiting in the back room. According to Dorian, Lacombe identified Miliet as one of the suppliers. However, when Dorian asked to meet Miliet, Lacombe indicated that Miliet was unwilling to be identified. Instead Dorian discussed future cocaine deals with Miliet through a closed door. Dorian also testified about inculpatory statements made by Miliet following his arrest on September 13, 1985.

Miliet testified briefly in his own defense. Miliet denied being present at Lacombe's home on August 1. Miliet admitted he was there on July 17, but denied any involvement in the cocaine transaction.

The jury rejected Miliet's testimony and found him guilty of one count of conspiring to distribute cocaine, 21 U.S.C. Sec. 846, and

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two counts of distributing cocaine, 21 U.S.C. Sec. 841(a)(1). Miliet appeals raising a variety of challenges to his convictions.

II.

Miliet first contends that the district court erred in admitting hearsay statements of co-conspirator Ann Lacombe under Fed.R.Evid. 801(d)(2)(E). 1 For extrajudicial co-conspirator statements to be admissible: (1) there must be a conspiracy; (2) the statement must be made during the course and in furtherance of the conspiracy; and (3) the declarant and the defendant must be members of the conspiracy. United States v. James, 590 F.2d 575, 578 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The trial court alone is to determine whether the statements were admissible. Id. at 579-80. The trial court's determination is reversible on appeal only if clearly erroneous. United States v. Perry, 624 F.2d 29, 30-31 (5th Cir.1980).

The "trial court's threshold determination of admissibility is normally to be made during the presentation of the government's case in chief and before the evidence is heard by the jury." United States v. James, 590 F.2d at 581. At this point in the trial, "as a preliminary matter, there must be substantial independent evidence of a conspiracy at least enough to take the question to the jury." Id. (emphasis in original) (citation omitted). At the conclusion of all the evidence, "on appropriate motion," the trial court must determine whether the prosecution has satisfied the requirements of admissibility by a preponderance of independent evidence. Id. at 582.

In the instant case, the district court made a threshold...

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