U.S.A. v. Bailey, 01-1058

• Decision Date: 14 September 2001
• Docket Number: No. 01-1058,01-1058
• Citation: 270 F.3d 83
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. CLIVE W. BAILEY, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 83

270 F.3d 83 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. CLIVE W. BAILEY, Defendant, Appellant.

No. 01-1058

United States Court of Appeals For the First Circuit

Heard Sept. 14, 2001

Decided November 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge] [Copyrighted Material Omitted]

Terry Scott Nagel, for appellant.

Karen L. Goodwin, Assistant United States Attorney, with whom James B. Farmer, United States Attorney, was on brief, for appellee.

Before Selya and Lipez, Circuit Judges, and Doumar, Senior District Judge.^*

DOUMAR, Senior District Judge.

Defendant-appellant Clive Bailey was convicted of conspiracy to possess with intent to distribute marijuana and of aiding and abetting others to do the same. 21 U.S.C. § 846 and § 841(a)(1) (1994); 18 U.S.C. § 2 (1994). He was sentenced to 262 months imprisonment. Bailey appeals his conviction on the ground that the District Court allowed inadmissible hearsay into his trial, and he appeals his sentence on the ground that the lower court's determination of drug quantity under a preponderance of the evidence standard elevated his sentence above the five year maximum for trafficking less than fifty kilograms of marijuana. He claims that this contravenes the rule laid down in Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm the lower court's evidentiary rulings and therefore the conviction, but vacate its application of the sentencing guidelines in light of the rule in Apprendi and remand the case for re-sentencing consistent with Apprendi.

I. BACKGROUND

On February 10, 1998, federal agents, pursuant to a warrant, searched a barrel that had been shipped from Los Angeles, California, to Springfield, Massachusetts, and found 93 pounds (42.18 kilograms) of marijuana. While this search was in progress, Maureen Washington came to collect the barrel. Following conversations with the agents on the scene, Washington agreed to cooperate by having agents accompany her to deliver the barrel to its intended recipient. With two agents hidden in her van, she drove home where she made a telephone call to Clive Bailey's pager, punching in the code "411." Clive Bailey arrived within fifteen minutes, approached the van, and opened the rear door. He fled upon seeing the agents, but was apprehended. A search of Bailey's car yielded a pager displaying the number "411" on it. This pager indicated that the call originated from Washington's phone. Two barrels that were virtually identical to the one with 93 pounds of marijuana that Washington had come to pick up earlier that day were then found in Washington's apartment. While neither of these barrels contained any drugs, each of them had a distinct smell of marijuana. Bailey's palm print was found on the inside surface of the lid of one of those barrels. Bailey's defense was that he had been carrying on a romantic liaison with Washington, and that the "411" page was simply a code relating to that social relationship.

At trial, the government introduced three bills of lading and three delivery receipts, arguing that those documents linked the three barrels in the case to Bailey. The bill of lading for the barrel that was seized on February 10, 1998 was dated February 1, 1998 and stated that the barrel was being sent from Crown Fashion in Los Angeles, California, to Mazie's Fashion and Accessories in Springfield, Massachusetts (Mazie's was later determined to be a fictitious company), and would be picked up at the dock. The delivery receipt for this barrel, signed by "Maureen Washington," stated that the barrel weighed 100 pounds. That barrel in fact contained 93 pounds of marijuana.

Another bill of lading, dated December 29, 1997, also described a barrel shipment from Crown Fashion to Mazie's Fashion. Like the earlier bill, this bill of lading stated that the barrel would be picked up at the dock. The delivery receipt corresponding to this bill of lading revealed that the barrel weighed 110 pounds and that it was paid and signed for by "Maureen Washington" on January 6, 1998.

A third bill of lading dated October 15, 1997, described a barrel shipment from Steinberg Originals in Los Angeles, California, to Bay State Work Shop in Springfield, Massachusetts, also to be picked up at the dock. The delivery receipt corresponding to this bill of lading stated that the barrel weighed 500 pounds and was signed for by "Maureen Washington."

A loading dock employee, Bonnie Susan Clark, was present when Maureen Washington picked up and paid for the barrel on February 10, the day that the agents intervened and Washington brought them to Clive Bailey. Clark recognized Washington as the person who picked up the October, 1997 and January, 1998 barrels. She could not, however, identify Washington in court.

Additionally, Clark remembered receiving a call shortly before the February, 1998 shipment, from a man who wanted to know if her company had received a shipment for Mazie's. Records showed that a call had been placed from Bailey's phone on February 6, 1998, four days before Washington came to pick up the barrel addressed to Mazie's with 93 pounds of marijuana. The government argued that the phone caller with an interest in the Mazie's delivery was Bailey himself.

Finally, the government introduced evidence that Bailey had a "connection" in California, one Seaford Colley, a California resident to whom several calls were made from Bailey's phone. The government also introduced a Western Union receipt showing that on June 23, 1997, Bailey had wired $2,500 to Colley in California.

In sum, the three barrels looked the same, they all came from California, and they were all signed for by "Maureen Washington." One shipment even bore the same fictitious name and address for the consignee as the one seized on February 10. The two barrels found in Washington's home smelled of marijuana, and one had Bailey's palm print inside of it. Phone calls were made from Bailey's phone to the loading dock in Massachusetts four days prior to the shipment that was seized and to Seaford Colley in California, along with a wire transfer of $2,500 to Colley.

II. THE EVIDENTIARY ISSUE

Washington disappeared prior to Bailey's trial. At trial, an agent testified to the actions Washington took following her agreement to cooperate. The agent testified that "after she [Washington] agreed to deliver [the barrel] to the intended recipient, she drove the van with two of our task force agents hiding in the back of the van to her residence." He further testified that she made a phone call to the "intended recipient" and punched in the code "411." Also at trial, the government introduced evidence that Bailey drove an expensive car yet was unemployed and had no other visible source of income. Bailey's attorney objected to the admission of this evidence, and Bailey now appeals.

On appeal, the district court's denial of Bailey's evidentiary objection on hearsay grounds is reviewed for abuse of discretion. United States v. Barone, 114 F.3d 1284, 1293 (1st Cir. 1997). Out of court statements offered not for their truth but "offered only for context," do not constitute hearsay. United States v. Catano, 65 F.3d 219, 224 (1st Cir. 1995).

For example, an out-of-court statement might be offered to show that the declarant had certain information, or entertained a specific belief, or spoke a particular language; or it might be offered to show the effect of the words spoken on the listener (e.g., to supply a motive for the listener's action). See generally 5 Weinstein's Federal Evidence § 801.03[4], at 801-14.1 to 801-15 (2d ed.1999).

United States v. Murphy 193 F.3d 1, 6 n.2 (1st Cir. 1999).

In this case, the agent's testimony was not hearsay because it described conduct and provided context; it did not introduce statements for the truth of the matters asserted. The agent described how Washington brought his colleagues and himself to the rendevous point and made a phone call summoning the "intended recipient." This Court has held that directions from one individual to another, or statements offered only for context, do not constitute hearsay. Catano, 65 F.3d at 224. Washington's making a phone call, and her driving the agents to the rendevous, was non-assertive conduct and outside the scope of the hearsay rule. United States v. Mendez-deJesus, 85 F.3d 1, 3 n. 2 (1st Cir. 1996). She did not orally identify Bailey; she summoned him by sending a page. The agent did not testify that Washington pointed at Bailey or in any way made an out of court declaration regarding his identity. In sum, this was not hearsay, so the district court did not abuse its discretion in admitting the testimony.

Regarding the testimony about Bailey's car and finances, at trial the government had an FBI agent testify that 1) to his knowledge, Bailey was unemployed, but 2) he had "certain fixed expenses," which included monthly payments on two car loans and on child support. Over Bailey's objection, the agent also testified that Bailey had purchased a Jeep Cherokee in July, 1996 and that it cost $30,000, and that his loan payments ranged from $700 to $1500.

According to the record, Bailey's objection to this evidence failed to state a ground. This court has held that "objections to evidentiary proffers must be reasonably specific in order to preserve a right to appellate review." United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). In other words, a litigant is obliged to "call [his specific objection] to the attention of the trial judge, so as to alert [the judge] to the proper course of action." Id. (quoting Notes of the Advisory Committee on Evidence Rule 103(a)). A lack of specificity bars the party allegedly aggrieved by the admission of the evidence from raising more particularized points for the first time on appeal. Had Bailey asserted hearsay as a basis during the trial, the...