918 F.2d 1004 (1st Cir. 1990), 89-1061, United States v. McDowell

Docket Nº:89-1061.
Citation:918 F.2d 1004
Party Name:UNITED STATES of America, Appellee, v. Billy Ray McDOWELL, Jr., Defendant, Appellant.
Case Date:November 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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918 F.2d 1004 (1st Cir. 1990)

UNITED STATES of America, Appellee,


Billy Ray McDOWELL, Jr., Defendant, Appellant.

No. 89-1061.

United States Court of Appeals, First Circuit

November 14, 1990

Submitted Sept. 20, 1990.

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Billy Ray McDowell, Jr., pro se.

Daniel F. Lopez Romo, U.S. Atty. and Jose R. Gaztambide, Asst. U.S. Atty., on brief, for appellee.

Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

In a partial reprise of an earlier pair of appeals, defendant-appellant Billy Ray McDowell, Jr. bemoans his conviction on all three counts of an indictment charging several persons with aiding and abetting each other in the commission of various drug trafficking crimes. 1 Although we affirm his conviction, we believe that a new sentencing hearing is required.


McDowell was indicted with five other persons and tried with Frederick Browne and Darrin Taylor. The jury found them guilty on all counts. McDowell was sentenced last, and his appeal comes to us alone, not having been heard when Browne's and Taylor's appeals were argued. 2

We summarize the record in traditional post-conviction fashion, taking the facts in the light most hospitable to the prosecution. See United States v. Jimenez-Perez, 869 F.2d 9, 10 (1st Cir.1989); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987). In so doing, we borrow heavily from our earlier opinion in United States v. Browne, 891 F.2d 389 (1st Cir.1989).

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Browne's and Taylor's military flight from Howard Air Force Base, Panama, stopped in Puerto Rico en route to Charleston, South Carolina, arriving at Roosevelt Roads Naval Base on January 30, 1988. A customs search of the passengers' baggage revealed a duffel bag in which cocaine and a military garment bearing the name "Taylor" were found. Taylor was arrested. Browne immediately scurried to a telephone and placed a long-distance call to McDowell in Texas. Soon thereafter, Browne's duffel bag was searched. Cocaine was found. He, too, was arrested.

Browne and Taylor were advised of their constitutional rights. Both gave incriminating statements. They said, in effect, that they had been recruited in Panama by one Anthony Pearson to deliver the drugs. They also told of being instructed to take a commercial flight from Charleston to Dallas/Fort Worth to complete the delivery. Two notes with the same names and telephone numbers were found in their possession; the edges of the notes matched and appeared to have been written on one piece of paper. McDowell's telephone number appeared on the papers. At the officers' request, Browne agreed to call him. The ensuing conversations were monitored and recorded. One was a three-way conversation involving Pearson. On at least one other occasion, appellant called Browne. That call was also recorded.

Browne's and Taylor's involvement ended when a sham narcotics transaction was arranged. A Drug Enforcement Administration (DEA) agent, Francisco Sarra, posed as codefendant Browne. After Browne's telephone calls had paved the way, Sarra called appellant on February 1 and met him that evening at the Dallas/Fort Worth airport. During that meeting, Sarra provided appellant with keys to an airport locker. Upon attempting to open the locker, which he had been told contained the imported cocaine, appellant was arrested. He had the exact amount of the "delivery fee"--$4000 in cash--on his person. 3 After his arrest, appellant's vehicle was seized in an airport parking lot and a gun was found.

With this brief prelude, we turn to appellant's principal contentions, discussing further facts only as required to place specific arguments into proper perspective.

Suppression Issues

Appellant filed a pretrial motion to suppress the monitored telephone conversations and his discussions with Sarra at the airport. He filed no other pretrial suppression motions (although he seasonably challenged the admission of coconspirator statements at trial). We examine a variety of suppression issues against this backdrop.

1. The Telephone Conversations. A key to the underlying conviction was the prosecution's introduction of tape-recorded conversations between Browne and McDowell, as well as the three-way conversation in which Pearson participated. Appellant says that these conversations should have been excluded--but he offers no convincing basis for such an exclusion. It is beyond cavil that Browne consented to the telephone calls. The controlling statute is the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Secs. 2510-2521 (1982 & Supp. V 1987) (Title III). The statute specifically provides that telephone calls may be intercepted "where one of the parties to the communication has given prior consent to such interception." 18 U.S.C. Sec. 2511(2)(d); see generally Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir.1990) (discussing consent exception). Thus, the recordings were not barred by Title III.

Undaunted, McDowell makes two other exclusionary arguments anent these conversations. The first is derivative. We earlier held that Browne's incriminating statements to the authorities were, as to him, erroneously admitted into evidence under the fifth amendment and the rule of Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981) (once an accused has invoked his right to counsel, he cannot be subjected to

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further interrogation unless he, himself, initiates it). See Browne, 891 F.2d at 394-95. McDowell urges that since police questioning violated Browne's rights, Browne's ensuing conversations with McDowell should be regarded as poisoned fruit of this constitutional transgression, and hence, unusable in a court of law.

This artifice is no more than an attempt to resuscitate the long-dead doctrine of derivative standing. It overlooks that fifth amendment rights, like fourth amendment rights, are personal to the individual and may not be vicariously asserted. See, e.g., Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2183-84, 40 L.Ed.2d 678 (1974) (fifth amendment privilege is purely personal); United States v. White, 322 U.S. 694, 698-99, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944) (similar); see also Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969) (fourth amendment rights are personal rights); Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963) (similar); see generally Rakas v. Illinois, 439 U.S. 128, 140 n. 8, 99 S.Ct. 421, 428 n. 8, 58 L.Ed.2d 387 (1978) (fourth amendment standing requirement comports with fifth amendment privilege against self-inculpation "which also is a purely personal right"); 4 W. LaFava, Search and Seizure, Sec. 11.4 at 371 (2d ed. 1987) (cautioning "that a defendant, in any event, can prevail on a 'fruit of the poisonous tree' claim only if he has standing regarding the violation which constitutes the poisonous tree") (footnote omitted). Because McDowell had no protectable privacy interest at stake during Browne's interrogation, there could be no taint as to McDowell. Compare, e.g., United States v. Soule, 908 F.2d 1032, 1036-37 (1st Cir.1990) (discussing "derivative standing" principles).

Appellant's final attempt to bar the evidence is by branding it as hearsay. He asseverates that, since Browne was acting under the aegis of federal officers when he placed the crucial call, the statements were not admissible as coconspirator discussions under Fed.R.Evid. 801(d)(2)(E) because they were not made "during the course and in furtherance of the conspiracy." But we need not reach this issue; 4 since appellant actively participated in the talks and the tapes were duly authenticated at trial, the conversations were admissible as admissions against interest. See, e.g., Fed.R.Evid. 801(d)(2)(A), 804(b)(3). We explain briefly.

McDowell's own statements could, of course, be used against him; his part of the conversations was plainly not hearsay. Nor can a defendant, having made admissions, keep from the jury other segments of the discussion reasonably required to place those admissions into context. In this instance, the other parts of the conversations were properly admitted as "reciprocal and integrated utterance(s)," United States v. Metcalf, 430 F.2d 1197, 1199 (8th Cir.1970), to put McDowell's statements into perspective and make them "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, 1587, 39 L.Ed.2d 885 (1974); see also United States v. Byrom, 910 F.2d 725, 733 (11th Cir.1990); Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3244, 111 L.Ed.2d 754 (1990); United States v. Jordan, 810 F.2d 262, 264 (D.C.Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987); United States v. Price, 792 F.2d 994, 996-97 (11th...

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