810 F.2d 262 (D.C. Cir. 1987), 86-3005, United States v. Jordan

Docket Nº:86-3005.
Citation:810 F.2d 262
Party Name:UNITED STATES of America v. Garry JORDAN, Appellant.
Case Date:January 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 262

810 F.2d 262 (D.C. Cir. 1987)

UNITED STATES of America

v.

Garry JORDAN, Appellant.

No. 86-3005.

United States Court of Appeals, District of Columbia Circuit

January 27, 1987

Argued Nov. 3, 1986.

Page 263

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00354-01).

Sidney R. Bixler (appointed by this Court) for appellant.

Ariadne Symons, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Mark J. Biros, Asst. U.S. Attys., were on the brief for appellee.

Before WALD, Chief Judge, WILLIAMS, Circuit Judge, and WILL, [*] Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Garry Jordan was convicted of one count of aiding and abetting the distribution of phencyclidine ("PCP") and one count of distribution of PCP. See 21 U.S.C. Sec. 841(a) (1982); 18 U.S.C. Sec. 2 (1982). Based on a prior Maryland conviction for possession with intent to distribute PCP, the District Court enhanced his sentence under 21 U.S.C. Sec. 841(b)(1)(B) (Supp. III 1985). Jordan appeals both the conviction and the sentence.

I

The aiding-and-abetting conviction relates to a transaction that occurred on March 27, 1985. The police testimony at trial was uncontroverted. On March 26, Metropolitan Police Sergeant Miller instructed Gregory Washington, an informant, to meet "Garry" at Fun Factory Records and arrange to purchase drugs. Washington returned bearing a small bottle, apparently containing a PCP sample, which he attributed to Garry, and informed Miller that he had arranged a $3000 purchase from Garry for the next day.

On March 27, Miller, under cover, and Washington waited for Garry in a taxicab at the prearranged time and street corner. Detective Norris and another officer were also in the vicinity to observe the transaction. Appellant arrived on foot 50 minutes later, entered the rear seat of the taxicab, and asked if the money was ready. He declined to view the money because, he said, "my people aren't here yet"; then he departed. A minute or two later a man in a grey jogging suit passed the taxicab carrying a brown paper bag behind his back. Appellant then returned to the taxicab to notify Miller and Washington that the man in the grey jogging suit would deliver the PCP. He directed Miller to give the money to Washington, who would transfer it to appellant later. The man in the jogging suit--to whom Norris saw appellant

Page 264

signal after leaving the taxicab for the second time--gave the bag containing a bottle of liquid PCP to Miller and left. After Miller and Washington departed, Norris saw appellant drive away with the figure in the jogging suit.

The distribution conviction arose out of a transaction a week later. On April 4, Washington placed six telephone calls to appellant, which Norris and Miller recorded, to arrange a second PCP purchase. Miller testified that appellant, who was waiting at the designated location when Miller and Washington arrived, handed him a brown paper bag containing a bottle of PCP. He told Miller that this batch was a little stronger than the last one, and that "a couple more times and I'll be putting out some real high-test shit." Norris observed the transaction from afar and corroborated Miller's testimony.

II

The government's inability to produce Washington at trial--after considerable efforts, see Transcript at 180-81 (visited last known residence six to eight times; left messages with relatives), 184, 196-97 (questioned relatives); see also id. at 202-05--gives rise to appellant's two hearsay and confrontation-clause challenges. First, appellant challenges the District Court's admission, over objection, of the tape recordings of the telephone calls in which he and Washington plotted the April 4 transaction. Specifically, appellant directs our attention to one telephone call in which Washington and appellant arranged a meeting for 6:00 that evening, Memorandum on Admissibility of Tapes, Exhibit ("Exh.") A, at 7-8 (filed Nov. 19, 1985), and another in which Washington asked whether "it [is] stronger than it was last week," and appellant responded, "A little bit you know." Id., Exh. A, at 2.

Appellant's own incriminating statements were, of course, party admissions, and therefore not hearsay. See F ED.R.EVID. 801(d)(2)(A) (1986). He objects, instead, to the introduction of Washington's side of the conversations. Those statements, however, were not hearsay; they were admitted not for their truth, see id. 801(c), but "to make [appellant's] responses intelligible to the jury and recognizable as admissions," United States v. Lemonakis, 485 F.2d 941, 948 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974). The trial court so instructed the jury, both when the tapes were played and again in the final instructions. Nor was there any danger that the jury would misuse Washington's statements for their truth. It was utterly irrelevant whether Washington actually intended to meet appellant that night when he arranged the meeting, or whether he cared if "it" (whatever "it" may have been) was "stronger than it was last week." There having been no reason to test Washington's credibility, the introduction of his side of the conversations violated neither the hearsay rule nor appellant's sixth amendment right of confrontation. Id. at 949-50.

The second set of hearsay objections, which appellant raises for the first time on appeal, relate only to the aiding-and-abetting conviction. Sgt. Miller testified that Washington, after ostensibly meeting with Garry, returned with a vial of PCP, "which was a sample that [appellant] had obtained of the product that I was to purchase the next day." He later testified that before the transaction he "was aware [from Washington] that [appellant would] ha[ve] one other individual with him." Norris testified that he learned of the details of the planned deal "from Gregory Washington who had negotiated the transaction," and that he knew only from Washington that the money was subsequently transferred to appellant.

The government does not dispute that testimony derived solely from Washington was hearsay, see F ED.R.EVID. 801(c), whose admission without any special "indicia of reliability" could implicate appellant's constitutional right to confront witnesses against him, see Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). However, the error was harmless. See United States v. Hasting,

Page 265

61 U.S. 499, 510-11, 103 S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983). Even without any evidence of appellant's advance planning or ultimate receipt of the proceeds--the only facts to which the hearsay related--there was overwhelming, uncontroverted police testimony that appellant aided in and abetted the illegal transaction. Appellant made the initial contact in the taxicab, asked if the money was ready, and referred to the PCP suppliers as "my people." He then informed Miller of the messenger's identity, arranged for delivery of the money to himself, signaled to the messenger to...

To continue reading

FREE SIGN UP