92 F.3d 973 (9th Cir. 1996), 95-30140, United States v. Collicott

Docket Nº:95-30140.
Citation:92 F.3d 973
Party Name:Serv. 6157, 96 Cal. Daily Op. Serv. 7730, 96 Daily Journal D.A.R. 10,106 UNITED STATES of America, Plaintiff-Appellee, v. Edward P. COLLICOTT, Sr., Defendant-Appellant.
Case Date:August 19, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 973

92 F.3d 973 (9th Cir. 1996)

Serv. 6157,

96 Cal. Daily Op. Serv. 7730,

96 Daily Journal D.A.R. 10,106

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward P. COLLICOTT, Sr., Defendant-Appellant.

No. 95-30140.

United States Court of Appeals, Ninth Circuit

August 19, 1996

Argued and Submitted April 9, 1996.

As Amended Oct. 21, 1996.

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[Copyrighted Material Omitted]

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Jeffry K. Finer, Finer & Pugsley, P.S., Spokane, Washington, for defendant-appellant.

Joseph H. Harrington, Assistant United States Attorney, Spokane, Washington, for plaintiff-appellee.

On Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, District Judge, Presiding. D.C. No. CR-94-0184-WFN.

Before: PREGERSON and TASHIMA, Circuit Judges, and JONES, District Judge. [*]

ROBERT E. JONES, District Judge:

Appellant Edward P. Collicott, Sr. ("Collicott") appeals from his conviction on three counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Surveillance and Arrest

On June 9, 1994, Spokane County Sheriff's Office Detectives ("Sheriffs") began surveillance

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of Collicott in Spokane, Washington. That day, Collicott rented a car in Spokane under a false name. Sheriffs observed Collicott driving this car, accompanied by Melauni Zaidi ("Zaidi").

At 9:52 p.m. that evening, Collicott checked into a motel with Zaidi in Yakima, Washington, under a false name. The surveillance team rented the room next door to Collicott. At 11:52 p.m., Sheriffs observed Collicott leaving the motel in his car. The surveilling officers followed Collicott and observed him exiting a convenience store with a white plastic bag. Collicott returned to the motel at 12:35 a.m.

Collicott and Zaidi checked out of the motel at 9:00 a.m. on June 10, 1994. Although two officers testified at trial that they observed Collicott put a white plastic bag into the rear passenger area of the rented car before driving away from the motel, neither officer stated that in their report.

Surveillance continued on the road. Shortly after Zaidi switched with Collicott as driver of the car, Sheriffs pulled them over. An officer observed Collicott reaching into the back seat of the car. When Sheriffs arrested Collicott, he falsely identified himself as William Collicott. Sheriffs obtained and executed a warrant, seizing $4,500 cash, syringes, balloons, and fake IDs, from Collicott's person. They found a white plastic bag behind the driver's seat containing 11 grams of heroin, 125 grams of methamphetamine, and 26.5 grams of cocaine.

Officer Chris Kehl ("Kehl") interviewed Zaidi at the time of the arrest. She had no cash or drugs on her. She was not charged with any offense.

II. Trial Testimony

At Collicott's trial, the Government called Zaidi as a witness. She testified that she is an unemployed mother and a drug addict who supports herself through prostitution. She denied dealing drugs, but explained that the only drugs she had sold in the past 10 years was one-eighth ounce of marijuana in 1986.

Regarding the evening she spent with Collicott at the Yakima motel, Zaidi testified that Collicott placed a 'pile of money' on the bed in the motel room. Sometime later, Collicott's friend, named Luis, allegedly entered the motel room while she was cooking and smoking cocaine in the room. After Luis left, she noticed a brown paper bag was in the room but the money that Collicott placed on the bed was gone. Zaidi also testified that she could not hear any discussions between Collicott and Luis, and admitted that she was impaired by cocaine at the time.

On cross-examination, defense counsel asked Zaidi whether she recalled telling arresting officer Kehl that Luis came to the motel room between midnight and 1:00 a.m. that morning. Zaidi did not remember making any such statement. The colloquy was as follows:

Q. All right. Well, do you remember a police officer Kehl, K-e-h-l, or Chris Kehl or something, interviewing you?

A. No, I don't.

Q. You don't remember telling him that this person you claim came to the room in Yakima came between midnight and 1:00 a.m.?

A. No, I do not remember saying that.

Q. You don't remember saying that?

A. No, I don't.

Tr. 194. Zaidi was excused after a brief redirect examination.

Collicott then called Officer Kehl to the stand. The direct testimony of Officer Kehl follows:

Q. Okay. You were interviewing Melauni Zaidi after she was--the vehicle was stopped?

A. Yes.

Q. And as part of your interview * * * you wrote in your notes and I presume this is something she told you?

A. Yes.

Q. That sometime between midnight and one o'clock, a person allegedly arrived and delivered drugs to that room?

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A. Yes.

Tr. 326.

After this direct testimony, the Government attempted to examine Kehl about the remainder of the statements made by Zaidi to Kehl at the time of Collicott's arrest. However, Collicott objected on the ground that the testimony was improper hearsay and beyond the scope of the direct. The court overruled the objection and allowed Kehl to answer the question. The following is the exchange between Kehl, counsel, and the court:

Q. Good afternoon. Did Melauni Zaidi give you any further information about what occurred in the motel room on June 9th, 1994?

A. Yes, she did.

Q. What else did she say happened?

[Defense Attorney]: Your Honor, I am going to object, it is beyond the scope of direct.

COURT: Overruled.

[Defense Attorney]: Can we have a sidebar so I could make a record?

COURT: All right.

[Defense Attorney]: Judge, I called [Kehl] for the one question and anything else is hearsay. * * *

COURT: I think you have opened it up when you asked him what she said regarding what transpired in the hotel room. I think we ought to get the whole story.

[Defense Attorney]: Well, I totally object, Your Honor, and there is no basis for it to come in at this point. There is no exception to it.

[Prosecutor]: Judge, this is under 609(b). Your Honor, extrinsic evidence to impeach a witness can come in and it is not subject to the hearsay rules.

COURT: Yeah.

[Defense Attorney]: I don't believe that is the case here. This is not--this is hearsay of that person. There is no exception that applies here. She had a motive to fabricate her story right from the start.

It is not a prior inconsistent (sic) statement to rebut a charge of recent fabrication. It doesn't fit in the mold. It is straight hearsay and it is beyond the scope of direct totally.

COURT: Well, in the first place, I don't think it is beyond the scope of direct and what is it that you expect him to say?

[Prosecutor]: That she was in the room. A friend of Ed Collicott's came in by the name of Luis. Luis had a brown paper bag and put the bag down. Ed Collicott spread money out on the bed and the money was given to Luis.

COURT: So she saw that?

[Prosecutor]: Yes.

* * *

COURT: No, I think you have opened it up, Mr. Johnson.

[Defense Attorney]: All right. Well I want the record to reflect my objection on the--

COURT: It does.

[Defense Attorney]:--grounds that it is hearsay and there in no exception for that to come in.

Tr. 326-28 (emphasis added).

After this exchange, the Court permitted Kehl to answer the Government's question as to what else Zaidi said to him:

A. She said that once the subject she knew as Luis arrived, he immediately tossed her a bag of cocaine and she began to rock it up, make it into crack cocaine, and while she was doing that, Luis gave a brown paper bag to [Collicott] and they began talking about various drug transactions and wanting to have additional drugs fronted to him and [Collicott] gave some money to Luis which he spread out on the floor and was counting while they were talking and she overheard something to the effect of $11,000 worth of drugs had been bought in the previous week by the Collicott family.

Q. And did she tell you who Luis was?

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Defense Counsel: Again, I am going to object to hearsay and I ask for a continuing objection.

Court: Granted, you have the objection.

A. She told me that she believed--well, she wasn't sure if Luis was his name, but however he was arrested in Spokane earlier in the year for possessing or dealing drugs.

Q. And who contacted Luis in Yakima, did she say?

A. That once they arrived at the hotel, [Collicott] was making phone calls trying to contact him.

Tr. 329-30.

After deliberating, the jury found Collicott guilty of possession with intent to distribute a controlled substance. Collicott seeks reversal of his conviction because (1) the trial court erroneously admitted damaging out-of-court statements by the cooperating witness through testimony by an arresting officer, (2) the trial court erroneously allowed use of Collicott's prior drug convictions, (3) the conviction was based on perjured testimony by the cooperating witness, and (4) the Government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose evidence to Collicott about Zaidi's involvement in previous drug deals.

DISCUSSION

I. Kehl's Testimony Regarding Prior Statements Made by Zaidi

Collicott contended at trial and on appeal that the district court erred in admitting hearsay by Kehl, which violated the rules of evidence and his constitutional...

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