U.S. v. Allison, 88-4040

• Decision Date: 17 August 1990
• Docket Number: No. 88-4040,88-4040
• Citation: 908 F.2d 1531
• Parties: 30 Fed. R. Evid. Serv. 1066 UNITED STATES of America, Plaintiff-Appellee, v. Steven ALLISON, Anthinino Galloway, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1531

908 F.2d 1531

30 Fed. R. Evid. Serv. 1066

UNITED STATES of America, Plaintiff-Appellee, v. Steven ALLISON, Anthinino Galloway, Defendants-Appellants.

No. 88-4040.

United States Court of Appeals, Eleventh Circuit.

Aug. 17, 1990.

Ellis S. Rubin, Atty. Gen., A. Hinda Klein, Rubin, Rubin & Fuqua, P.A., Miami, Fla., Stanley P. Klein, State's Atty., Klein & Greenspun, Fairfax, Va., for defendants-appellants.

Ronald Hayward, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, and BRIGHT ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Defendants Allison and Galloway appeal their conviction for conspiracy to possess with intent to distribute cocaine and for aiding and abetting each other in the attempt to possess cocaine. Allison and Galloway, along with Donald Ervin and Michael Campbell, decided to purchase cocaine in Miami and to transport it to Washington, D.C. One of Allison's friends, Laboya Wicker, agreed to contact her sources in Miami to get the drugs. The conspirators flew to Miami for the deal. After learning that Wicker might be a Drug Enforcement Administration ("DEA") agent, the conspirators arranged to get the cocaine in Orlando from sources known to another of Allison's friends, Walter Johnson. Johnson's source in Orlando turned out to be a DEA agent.

After their arrests, Campbell and Johnson pleaded guilty to conspiracy and agreed to testify against the others. Ervin was never apprehended. Allison and Galloway were tried jointly and convicted. On appeal, Galloway claims that he was convicted on the basis of inadmissible co-conspirator hearsay testimony and that, even if the testimony was admissible, the evidence presented was insufficient to sustain his conviction. Allison challenges his conviction for insufficiency of the evidence and for discriminatory use of peremptory challenges to strike black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Galloway raises no Batson claim.

1. Co-conspirator Testimony

At trial, Galloway made a continuing objection to the admission of several out-of-court statements attributed to Donald Ervin and Allison and made during the course of the events leading to defendants' arrest. ¹ The prosecutor proffered these statements under Federal Rule of Evidence 801(d)(2)(E), which provides that "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy" is not hearsay and can thus be offered for the truth of the matter asserted.

When determining whether a co-conspirator's statement is admissible over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that there was a conspiracy involving the declarant and the defendant against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). Galloway concedes the existence of a conspiracy between Ervin, Campbell, and Allison to purchase cocaine. He also concedes that the challenged statements were made by members of the conspiracy during the course of and in furtherance of the conspiracy. Galloway's sole challenge is his claim that he was not a member of the conspiracy. Thus, he argues, out-of-court statements about the scope of the conspiracy were inadmissible and highly prejudicial.

Whether Galloway was a participant in the conspiracy is a preliminary question of fact that, under Federal Rule of Evidence 104(a), "shall be determined by the court." The evidentiary standard--unrelated to the substantive issues--is preponderance of the evidence. Bourjaily, 483 U.S. at 175, 107 S.Ct. at 2779. "There is little doubt that a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of the defendant and the declarant in the conspiracy." Id. at 180, 107 S.Ct. at 2781. Thus, under Bourjaily, the court can look at the substance of the challenged co-conspirator testimony, as well as independent evidence, to determine whether or not Galloway was a participant in the conspiracy.

At the close of the government's case, the district court held a James hearing and determined that Galloway was involved in the conspiracy. ² A James determination will not be reversed unless clearly erroneous. United States v. Perez, 824 F.2d 1567, 1570 (11th Cir.1987). The record shows that (1) Galloway was present at the initial meeting of the co-conspirators, at the Classic's Nightclub, in which they discussed the drug deal; (2) Galloway gave Allison money to finance airfare to Miami for Allison, Wicker and Campbell; (3) Galloway flew to Miami with Ervin and shared a hotel room with Ervin while the details of the drug purchase were negotiated; (4) Campbell was arrested in possession of a note with Galloway's name and hotel number; (5) Campbell cleared arrangements for the Orlando purchase through Galloway and Ervin; (6) Galloway arranged for Mark Thompson to serve as a courier to drive him and the drugs to Washington, D.C.; (7) when the deal in Miami soured, Galloway arranged for his courier to drive Ervin and himself to Orlando where they would complete the drug purchase; and (8) Galloway, present when Johnson picked up the money, reputedly told Johnson that, "We have $60,000 for the deal. It's in the drawer." We see no error in the court's findings. The co-conspirator testimony was properly admitted.

Several of the statements Galloway challenges are actually statements made by him to witnesses who testified about these statements at trial. These statements were allowable as party admissions under Federal Rule of Evidence 801(d)(2)(A). "Any and all statements of an accused, so far as they are not excluded by the doctrine of confessions or by the privilege against self-incrimination, are usable against the accused and are not hearsay." United States v. Clemons, 676 F.2d 122, 123 (5th Cir. Unit B 1982) ³. Admissibility of such statements depends on neither membership in a conspiracy, nor proof of an ongoing conspiracy. Piatt, 679 F.2d at 1233; see also United States v. Archibold-Newball, 554 F.2d 665, 676 (5th Cir.1977) ⁴ (defendant's incriminating admissions, as related at trial by co-conspirators, were not hearsay).

2. Sufficiency of Evidence

In reviewing a conviction for sufficiency of the evidence "[t]his court must view the evidence in the light most favorable to the government, ... and determine whether the jury could have found defendant guilty beyond a reasonable doubt." United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989) (per curiam). "The evidence need not be inconsistent with every reasonable hypothesis except guilt, and the jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial." Poole, 878 F.2d at 1391. " 'In applying this standard all reasonable inferences and credibility choices must be made in favor of the jury verdict, and that verdict must be sustained if there is substantial evidence to support it when the facts are viewed in the light most favorable to the government.' " United States v. Pintado, 715 F.2d 1501, 1503 (11th Cir.1983) (per curiam) (quoting United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982)). The court is not restricted to the evidence adduced during the government's case-in-chief. The court may examine all the evidence presented at trial.

The jury in this case had the opportunity to consider not only the evidence presented in the prosecution's case, but the testimony of defendants themselves. This is important. "Presented with two narratives, one tending to establish the defendants' guilt and another tending to establish innocence, the jury was entitled to choose the account offered by the government." United States v. Goggin, 853 F.2d 843, 846 (11th Cir.1988). " '[W]hen a defendant takes the stand in a criminal case ... the jury is free to disbelieve him and reject his explanation as a complete fabrication.' " Goggin, 853 F.2d at 846 (quoting United States v. Cotton, 770 F.2d 940, 945 (11th Cir.1985)). The jury may view defendant's false explanatory statement as substantive evidence proving guilt. See United States v. Howard, 895 F.2d 722, 724 (11th Cir.1990); United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988); United States v. Elledge, 723 F.2d 864 (11th Cir.1984).

Both Galloway and Allison were convicted of aiding and abetting the attempted purchase of cocaine and of conspiracy to possess cocaine. To convict a defendant of conspiracy, the government must prove (1) that an agreement existed, (2) that defendants knew of its general purpose, and (3) that defendants voluntarily participated in the conspiracy. Howard, 895 F.2d at 724.

a. Galloway

Galloway does not dispute the existence of an agreement to purchase drugs or his knowledge of the general purpose of that agreement. He argues that he did not participate in the conspiracy. The evidence is adequate, however, to show that Galloway played a central role in aiding and abetting the transaction. As set out in part 1 above, the facts show that throughout the conspiracy, Galloway acted knowingly and voluntarily. Galloway testified that he knew from the outset that Ervin was going to Miami to purchase drugs. Based on Galloway's testimony and other evidence, the jury could easily infer that Galloway had full knowledge of the conspiracy and could conclude that Galloway actively participated in the conspiracy.

Galloway elected to present an active defense, as is his right. Galloway claimed that he went to Miami to purchase an antique car and that Ervin asked to accompany him. Galloway admitted giving Allison money for the Miami airfare, but he claims that Ervin asked him to advance the money and then...