U.S. v. Dyke
| Decision Date | 16 April 1990 |
| Docket Number | D,No. 760,760 |
| Citation | 901 F.2d 285 |
| Parties | UNITED STATES of America, Appellee, v. Andy DYKE, Appellant. ocket 89-1462. |
| Court | U.S. Court of Appeals — Second Circuit |
Alan R. Kaufman, Buchwald & Kaufman, New York City, for appellant.
Andrew M. Tomback, Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Ira M. Feinberg, Helen Gredd, Asst. U.S. Attys., of counsel), for appellee.
Before OAKES, Chief Judge, KEARSE and FLETCHER 1, Circuit Judges.
Andy Dyke appeals a judgment of conviction entered on September 14, 1989, in the United States District Court for the Southern District of New York, Charles M. Metzner, Judge, pursuant to a jury verdict finding Dyke guilty of distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988), and
of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(b)(1)(C) (1988). He also appeals the district court's computation of his sentence. We affirm the conviction and uphold the sentence imposed.
Dyke was arrested on January 25, 1989, for selling seven vials of crack cocaine to an undercover narcotics agent and for possessing with intent to distribute an additional seven vials, which he dropped to the ground after police officers moved in to arrest him. Also arrested that evening was Victor Alvarez, who was identified by the undercover narcotics agent who purchased the cocaine as being the "steerer"--i.e., the individual leading potential customers to the drug dealer. Charges ultimately were dropped against Alvarez.
At trial, Dyke's attorney argued that the police had arrested the wrong man. He based Dyke's defense on the fact that the purchasing undercover agent, in identifying the dealer to the other agents near the scene who arrested Dyke, failed to state that the dealer spoke with a strong Caribbean accent, a feature that Dyke argues is his most identifiable characteristic and would necessarily have been included in any description of him. However, the undercover agent testified at trial that he did not mention the dealer's accent to the arresting agents because the dealer had not spoken to him during the drug transaction. To counter this testimony, the defense sought to introduce into evidence a set of notes taken by a prosecutor who had interviewed the agent on the day of the arrest as well as the magistrate's complaint that had been filed the next day. Both documents indicated that the dealer had asked "How many?" after the agent requested some vials of cocaine. The district court ultimately admitted the magistrate's complaint, but also admitted into evidence, pursuant to the rule of completeness, see Fed.R.Evid. 106, the summary "buy report" prepared by the agent on the night of the transaction. The buy report did not indicate that the dealer said anything to the undercover agent throughout the transaction.
Dyke's attorney at trial also urged the jury to infer from the fact that charges against Alvarez had been dropped that Alvarez was the wrong man, and hence that the police had likewise arrested the wrong man when they arrested Dyke. However, the prosecutor in summation stated to the jury that charges against Alvarez had been dropped not because he was not in fact the person who directed the undercover agent to the dealer, but because the evidence was not quite strong enough to establish conclusively that he was working as a steerer for the dealer rather than simply being a "good samaritan" who knew his way around "the streets." Moreover, the district court instructed the jury:
This case is being submitted to you solely to determine the guilt or innocence of the defendant Andy Dyke. The fact that Alvarez is not on trial here with Dyke should have no bearing on the charge made against the defendant. Guilt is individual and you are concerned solely with the question of whether the proof justifies a finding by you that the defendant is guilty beyond a reasonable doubt.
The jury found Dyke guilty of distributing cocaine and of possessing cocaine with intent to distribute.
In calculating Dyke's sentence range under the Sentencing Guidelines, the district court added two points to Dyke's criminal history score pursuant to Guidelines section 4A1.1(d), see United States Sentencing Commission, Guidelines Manual Sec. 4A1.1(d) (Nov.1989), on the ground that Dyke had committed the offense while under "escape status." The record indicated that Dyke had pled guilty on January 6, 1988, in a Texas state court to the misdemeanor offense of possessing a handgun unlawfully, and had been sentenced to unsupervised probation for one year (with no geographic restrictions) and assessed court costs of $472. Following his failure to pay the court costs, the Texas court on February 19, 1988, had issued a bench warrant for his arrest. Finding that Dyke's sentence was still unsatisfied when he committed the offense at issue in this case because of his failure to pay the Texas court costs and the outstanding bench warrant for his arrest, the district court concluded that his
current crime was committed while he was on escape status and calculated his sentencing range accordingly.
On appeal, Dyke argues, first, that the district court erred in admitting the buy report into evidence under the rule of completeness since the document constituted inadmissible hearsay. We find no need to consider whether admission of the buy report was error, for if it was, it did not rise to the level of reversible error. See Fed.R.Evid. 103(a). Even assuming...
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