U.S. v. Ferra

Decision Date24 April 1990
Docket NumberNo. 89-1507,89-1507
Parties, 30 Fed. R. Evid. Serv. 211 UNITED STATES of America, Plaintiff-Appellee, v. Jaime L. FERRA, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Maxine A. White, Matthew L. Jacobs, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Julius L. Echeles, Chicago, Ill., Paul E. Sicula, Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for defendant-appellant.

Before POSNER, COFFEY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Jaime Ferra was a fence specializing in weapons. He is in prison for selling both guns and cocaine to undercover agents. The district court departed from the Sentencing Guidelines, giving Ferra 120 months' imprisonment instead of the 41-51 months they prescribe. Although Ferra's appellate lawyer raises a dozen issues, only four call for comment: the adequacy of hearings on motion to suppress evidence and exclude co-conspirator hearsay, the propriety of an instruction telling the jury that errors of law are corrected on appeal, and the departure from the Guidelines.

1. In April 1988 a state judge issued a warrant authorizing a search of Ferra's tavern. The judge acted on the basis of oral testimony by detective Kenneth Leger of the Milwaukee police. Leger testified that a "confidential informant, along with another unknown person", had purchased cocaine from Ferra in that building within the last 72 hours. Leger also testified that the informant, whom he had known for five years, had furnished reliable information on numerous occasions. Counsel moved before trial to suppress the fruits of the search: cocaine, guns, and cash. The district judge denied the motion because Leger's description of the informant's reliability established probable cause. Leger did not testify at Ferra's trial. Sergeant Vincent Flores, who did, testified that his purchase of cocaine in the company of one "Nicky" was the basis of detective Leger's testimony in support of the warrant. According to Flores, "Nicky", who could no longer be located, was not a regular informant and did not even know that Flores was a police officer. Counsel renewed his motion to suppress and asked for a new hearing, arguing that Flores contradicted every material feature of Leger's testimony in support of the warrant; the district judge declined to take additional evidence on the subject and denied the motion.

Leger described a reliable informant who made a buy in the presence of an "unknown person". Flores described visiting Ferra's bar and using the services of Nicky, who was not an informant, to buy 1/16 ounce of cocaine for $50 and a stolen microwave oven. Flores testified to events that demonstrate probable cause for a search, but these are not the events relayed to the state judge; if Ferra is correct, what the state judge was told is fiction. Then the evidence must be suppressed, because having probable cause is not enough; the police must present the facts establishing that cause to the judicial officer. Whiteley v. Warden, 401 U.S. 560, 564-65, 91 S.Ct. 1031, 1034-35, 28 L.Ed.2d 306 (1971). It may be, however, that Leger and Flores were describing different buys, and that the informant to whom Leger referred is not Nicky. (Although Flores testified that his buy with Nicky was the basis of Leger's testimony, the two described transactions on different dates.) Perhaps Nicky was Leger's informant unbeknownst to Flores, and Nicky told Leger what had happened ignorant that the person with him at the time was an officer. These questions were well worth the court's time to explore, because on one view of the facts the evidence must be suppressed and on another the warrant stands. We shall remand the case for an evidentiary hearing on this question. Because the district court may conclude that the evidence is admissible, and because the other questions in this case may recur in a new trial if it is not, we shall press on.

2. Some of the testimony against Ferra concerned statements Israel Salva made. The prosecution depicts Salva as Ferra's co-conspirator; Ferra insists that Salva was simply a buyer of Ferra's guns. The evidence allows the district court to find by a preponderance, as Fed.R.Evid. 104 requires, see Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), that Salva and Ferra were co-venturers. An agent initially bought guns from Ferra through Salva, who turned the money over to Ferra; Ferra told the agent to go through Salva if he wanted to buy more. After Salva decided to cooperate with the government, he and Ferra had a recorded conversation in which Ferra undertook to supply additional guns through Salva. This recording did not become inadmissible on the theory that conversations after one conspirator has been "turned" cannot possibly be in furtherance of the conspiracy. Whether such an exchange is admissible depends on whether the conspiracy is over, which depends in part on whether the conspirator-turned-informant has withdrawn. Although the inference that a turncoat has withdrawn is strong, it is not inevitable, and the decision rests in the hands of the district judge. United States v. Patel, 879 F.2d 292 (7th Cir.1989). Anyway, parts of this conversation damning to Ferra were his own words, which could come in as admissions no matter Salva's status. Fed.R.Evid. 801(d)(2)(A).

The difficulty concerning all of Salva's statements is that Rule 104 calls for the district judge to make a preliminary determination that the declarant was a conspirator acting in furtherance of the criminal adventure. Ferra objected when the prosecutor first offered Salva's hearsay statements. The district judge declined to entertain evidence or make the findings required by Rule 104. See United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). Instead, the judge observed that

if I am told by the proponent of the evidence that that's what it is [co-conspirator declarations], why, then I would overrule the objection subject to [a] sanction....

The "sanction" the judge had in mind was that if "the evidence of the conspiracy does not come forth", then there would be a mistrial.

Although we have approved admission-subject-to-connection under Fed.R.Evid. 104(b), see United States v. Troop, 890 F.2d 1393, 1404 n. 18 (7th Cir.1989); United States v. Andrus, 775 F.2d 825, 836-37 (7th Cir.1985), this is an exceptional rather than a routine procedure. Andrus and Troop imply that it is appropriate only when the evidence on the question of conspiracy is extensive--which it is not in Ferra's case. Most of the time it is best to make a preliminary determination rather than to attempt at the end of the case to recollect whether the evidence satisfies the standard for admissibility. No one wants to retry criminal cases if something goes wrong in the process of supplying the foundation for the evidence. Especially not when there is a potential double jeopardy problem. Defendants ordinarily are entitled to a final decision by the first tribunal. Although a defendant's motion for a mistrial releases the strict "manifest necessity" standard, see United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), a court ought not routinely build into the case a feature that will force the defendant to move for mistrial in order to make a simple objection to the admission of evidence.

Even in a fairly complex case, the district judge should require the parties to state what they believe the evidence will establish and then decide whether that will suffice. The prosecutor will have to make good his promise, but at least everyone will know in advance that the prosecutor needs to establish such-and-such, and that doing so will carry the day. When the district judge brushes off the hearsay objection, the prosecutor does not know what is necessary or sufficient, and the subject may get lost amidst the many other issues. That may well have happened in Ferra's trial. We cannot find a definitive ruling in the record. Although at the end of the trial the judge said that "there are declarations in [the tape] that are in furtherance of the conspiracy", he did not explain why, or what distinguishes these from others. How to treat the words of a conspirator-turned-informant is a question of some delicacy, as Patel shows. As this case is being remanded to reconsider the basis of the April 1988 search warrant, we shall ask the district judge to make a focused decision on the co-conspirator hearsay question as well.

3. The instructions to the jury in United States v. Fiorito, 300 F.2d 424, 426 (7th Cir.1962), included this passage:

I had certain reasons when I sustained an objection, because I don't want to retry it again, I don't want to rehash certain parts of it again. You have heard it. If you forget it, that is part of the game, and if I forget it, that's part of the game. That's why we have a court of appeals, they will reverse me if I'm wrong. This is not the final judgment, there is a court of appeals to reverse me and a Supreme Court to review them. That's why we have a great system here.

Fearing that the jury may have understood the invitation to "forget it" to refer to the evidence or limiting instructions given in conjunction with its admission, and concerned that the reference to appellate review may have led the jurors to think that if they did "forget it" someone else would put things to rights, the court reversed the conviction. "[I]t was inferred [sic] that the jury's determination was not to be the final one but would be reviewed by this Court and the United States Supreme Court. Such dilution of the final responsibility of the jury as was thus inferred [sic] as permissible to the jury in its determination of the verdict is prejudicial to a defendant." Id. at 427.

The judge instructed Ferra's jury this way:

Your purpose as jurors is to find and determine the facts, the...

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