U.S. v. Ladd, 88-1486
| Decision Date | 02 March 1989 |
| Docket Number | No. 88-1486,88-1486 |
| Citation | 877 F.2d 1083 |
| Parties | 28 Fed. R. Evid. Serv. 366 UNITED STATES of America, Appellee, v. Paul W. LADD, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Willie J. Davis, by Appointment of the Court, with whom Davis, Robinson & Smith, was on brief, for defendant, appellant.
Paul V. Kelly, Asst. U.S. Atty., with whom Jeremiah T. O'Sullivan, U.S. Atty., Boston, Mass., was on brief, for the U.S.
Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and BOWNES, Circuit Judge.
Paul W. Ladd, the defendant, was convicted by a jury on both counts of an indictment for counterfeiting crimes. Count one charged Ladd with possession of counterfeit currency, 18 U.S.C. Sec. 472; 1 count two charged Ladd with receipt of counterfeit currency, 18 U.S.C. Sec. 473. 2 Ladd appeals his convictions on several grounds. 3 For the reasons set forth below, we affirm on count one and reverse on count two.
"Our review of the facts is made in the light most favorable to the government and drawing all reasonable inferences in its favor." United States v. Foley, 871 F.2d 235, 236 (1st Cir.1989).
In 1984, Ladd and Elsworth Roston met; Roston was already an expert counterfeiter. The two quickly became close associates and decided to become business associates. Their business was to be the printing and distribution of counterfeit currency, with Roston doing the printing and Ladd handling the distribution in the Boston area. 4 Ladd was also to provide Roston with financial assistance. Both of them were to experiment with various chemicals that would remove the ink from small denomination bills in order to reprint them as higher denomination bills.
In 1986, Roston moved to California, but he and Ladd kept in touch by telephone. Roston moved frequently and never told Ladd how to reach him. Rather, Roston would contact Ladd by calling Ladd's house collect. Starting in December of 1986 and continuing through early 1987, Roston sent Ladd six packages of counterfeit currency totalling $157,000 in $100 and $20 bills. All shipments were addressed to Ladd at his house. The return addresses on the packages displayed the name "Mr. Pedro Gonzalez" at various incorrect addresses. Roston In exchange for the counterfeit currency, Ladd paid Roston approximately $7,000 in real currency via Western Union. These payments were made to a Mr. Michael Altman, another alias Roston used, and were made in such a way as not to require an address or location for the recipient.
also used the alias Pedro Gonzalez when calling Ladd collect.
In early 1987, Roston discontinued sending Ladd counterfeit currency because he felt that the amount Ladd paid was insufficient. Roston and Ladd had no further contact until October 29, 1987.
On October 14, 1987, Roston was arrested by the Secret Service; he immediately agreed to cooperate. He turned over $1,800,000 in counterfeit currency and named his distributors, including Ladd. Roston agreed to call Ladd and set up another shipment of counterfeit currency to him. On October 29, 1987, a Secret Service agent dialed Ladd's number, which was provided by Roston, and Roston spoke with Ladd. It was agreed that Roston would send Ladd a package containing $25,000 in counterfeit $50 bills and $10,000 in counterfeit $100s by overnight express, with the shipment arriving on Tuesday, November 3, 1987. The two also discussed their efforts to remove the dye from real money. This call was taped and the tape was introduced at trial.
The Secret Service sent a package from its California office to its Boston office containing the agreed upon amount using bills given to them by Roston. On November 3, Secret Service agents went to Ladd's address in a United Parcel Service (UPS) truck with the package. One agent, Allen Hobson, was dressed as a delivery man; two other agents were in the back of the UPS truck. There were other Secret Service agents in two automobiles.
As Hobson walked toward Ladd's house with the package, Ladd met him on the sidewalk and said "I'll take that package from you." Upon being told that identification was required, Ladd went into the house and returned with a driver's license. Hobson then had Ladd sign a sheet on a clipboard. Next, Hobson tore off the receipt that was on the package and had Ladd sign that. Ladd was then arrested. He had never touched the package containing the counterfeit currency.
Ladd was indicted on two counts: (1) possession of the counterfeit currency in late 1986 and early 1987 for which Ladd paid Roston $7,000, and (2) receipt of the package on November 3, 1987.
At trial, Roston testified for the government and the tape of his conversation with Ladd was introduced as evidence. The government also introduced a tape of a February 25, 1987 conversation between Ladd and Herman Buffington, one of Ladd's distributors. This tape was made after Buffington was arrested by the Secret Service and he had agreed to cooperate with the Secret Service. The court allowed this tape into evidence under Fed.R.Evid. 804(b)(5).
Ladd was convicted on both counts. He was sentenced to thirty months in prison on each count, to run concurrently. The court also ordered a period of three years of supervised release and a $50 special assessment on each count for a total of $100.
A brief review of the events surrounding the introduction of the tape is necessary. Prior to trial, the government informed Ladd that it would introduce the tape; at this time, it was, however, contemplated that Buffington would testify. After the jury was impaneled, the prosecutor told both the court and the defense attorney that in response to a government subpoena Buffington's attorney had told the prosecutor that Buffington would refuse to testify on fifth amendment grounds. At trial, the government sought to introduce the tape under Rule 804(b)(5). 5 The I don't like the idea that Buffington is not here, and that conversation was innocuous. Did this conversation add anything to this case? You just gave him an appeal case, and I don't think it was necessary. You should have looked at the transcript first.
government did not produce Buffington nor did it introduce any other evidence which connected the tape to counterfeiting. The tape does not refer explicitly to counterfeiting; rather, it uses the term "funny stuff." The court allowed the tape into evidence over Ladd's objection. After it was played to the jury, the court commented
We view the issue whether the district court properly admitted the Buffington tape under the residual hearsay exception as a close one, as indeed the district court recognized. To be admissible under Rule 804(b)(5), a hearsay statement must be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts."
This tape was offered as part of the government's evidence with respect to Ladd's possession of the currency sent to him in late 1986 and early 1987. Roston identified counterfeit bills that the government had seized from Buffington. Through the Buffington tape, the government attempted to demonstrate that Ladd was the intermediary. While somewhat probative on this point, Roston's own direct testimony on these matters, corroborated by the Roston-Ladd tape, appears substantially stronger. Ladd's taped conversation with Buffington is short, and its probativeness is further diminished by the speakers' veiled references to (presumably) counterfeit bills ("funny stuff"). There was no direct evidence that "funny stuff" actually meant counterfeit bills. Still, the jury might reasonably have understood the Buffington tape to concern counterfeiting. In addition, references to past transactions by Ladd may have been admissible as admissions by a party under Fed.R.Evid. 801(d)(2). And, of course, the decision of the trial judge is reversible only for abuse of discretion.
The panel members are divided on this issue. Whether or not the Buffington tape was admissible under Rule 804 is of no moment, however, if the admission was in any event harmless. See, e.g., United States v. Medina-Gasca, 739 F.2d 1451, 1454 (9th Cir.1984). In United States v. Mateos-Sanchez, 864 F.2d 232, 237 (1st Cir.1988), we set forth the harmless error test:
In determining whether or not error was harmless, a reviewing court must assess the record as a whole to determine the probable impact of the improper evidence upon the jury. United States v. Currier, 821 F.2d 52, 56 (1st Cir.1987). "The prejudicial effect of the improper evidence must be weighed against the impact of the properly admitted evidence to determine whether or not the evidence complained of might have contributed to the conviction." Id. at 56-57.
The properly admitted evidence, outlined above, clearly proves Ladd's possession of counterfeit currency in late 1986 and early 1987. The innocuous nature of the Buffington tape neither added to nor detracted from the other overwhelming evidence pointing toward Ladd's guilt. The error in admitting the Buffington tape was harmless. 6
Ladd attacks his conviction for receipt of counterfeit currency in November 1987 on the basis that he did not in fact receive it. We start by noting that neither of the parties have cited, and we have been unable to locate, any case dealing with the definition of receipt under 18 U.S.C. Sec. 473. We draw our analysis, therefore, from cases dealing with receipt in other contexts in the criminal law.
We turn first to cases involving receipt of a firearm. In Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the Supreme Court described the relationship between receipt and possession:
[P]roof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon. "[W...
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