U.S. v. Barnes, 77-5827

• Decision Date: 22 December 1978
• Docket Number: No. 77-5827,77-5827
• Citation: 586 F.2d 1052
• Parties: 3 Fed. R. Evid. Serv. 1278 UNITED STATES of America, Plaintiff-Appellee, v. Robert Luther BARNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1052

586 F.2d 1052

3 Fed. R. Evid. Serv. 1278

UNITED STATES of America, Plaintiff-Appellee, v. Robert Luther BARNES, Defendant-Appellant.

No. 77-5827.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 1978.

J. Roger Thompson, Frank J. Petrella, Atlanta, Ga., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Linda Collins Hertz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant Robert Barnes appeals from convictions on three counts: 1) conspiracy to import and possess cocaine with intent to distribute; ¹ 2) importation of cocaine; ² and 3) possession of cocaine with intent to distribute. ³ He was jointly tried with Donna Ballard.

According to the government's theory of the case, Appellant, Donna Ballard, Robert McClure, and Donna's sister, Lisa, ⁴ conspired to import and distribute cocaine. Donna, Lisa and McClure were arrested after a customs inspector discovered cocaine in McClure's suitcase. Barnes was arrested later. The group was returning from Cali, Colombia.

McClure became a government witness. He confessed that they had gone to Colombia to buy cocaine and to import it into the United States for distribution. He indicated that Appellant devised the plan whereby the young ladies would carry the drug into the country. According to McClure, a disagreement arose in Colombia and, as a result, McClure was left with the job of physically importing the cocaine. Appellant denied any part in the scheme.

Appellant raises the following six points on appeal: 1) The district court committed plain error by failing to instruct the jury as to the limited use for which it could consider the impeachment of Donna Ballard; 2) the court admitted the cocaine as evidence without a showing of proper chain of custody; 3) evidence of Appellant's past drug deals should not have been admitted; 4) having admitted evidence of the past drug deals, the court should have instructed the jury as to its limited use; 5) Lisa Ballard's hearsay statement should not have been admitted into evidence; and 6) the court erred by failing to answer a question from the jury before it rendered its decision. We affirm the conviction.

I. IMPEACHMENT EVIDENCE

Appellant Barnes asserts that the district court erred by failing sua sponte to instruct the jury on the limited purposes for which it could consider the impeachment of Donna Ballard. Although Donna had made a confession which fully implicated herself and Barnes, she testified on direct examination that neither she nor Barnes was involved in the crimes alleged. On cross-examination, the government questioned her extensively about facts which she had related in her confession. Donna denied making the confession, and she specifically denied the facts establishing that she, Lisa, McClure and Barnes had planned to import drugs into the United States. Part of the government's summation focused on Donna's confession. The government argued that Donna had in fact made a voluntary confession and that the similarity between Donna's confession, McClure's confession, Lisa's statement, and the testimony of two Drug Enforcement Agency (D.E.A.) agents corroborated the truth of Donna's confession. The judge and the jury decided the question of voluntariness against Donna. ⁵

We do not agree with Barnes' contention that the court should have included a limiting instruction when none was requested. In United States v. Hill, 481 F.2d 929 (5th Cir.), Cert. denied, 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d 742 (1973), we were presented with the same situation. Inconsistent out of court statements were used to impeach Hill's co-defendant who testified at trial on Hill's behalf. Hill argued that these out of court statements of his co-defendant were admitted as substantive proof against him. His counsel had failed to request a limiting instruction. We recognized in Hill that where a defense witness is impeached by the government by inconsistent prior testimony, "there is less potential for abuse since the Government has already presented its case and cannot count on the witness being called and questioned about facts in the statement." Id. at 932. Accordingly, we held that the trial court did not err by failing to instruct the jury on the use of the inconsistent statement when no instruction was requested.

An exception to Hill was announced in United States v. Sisto, 534 F.2d 616 (5th Cir. 1976). In Sisto, we held that where the government impeaches a defense witness by introduction of inconsistent statements and where this impeachment evidence also provides the only direct evidence of a crucial element of the offense, it is plain error not to instruct the jury with respect to its limited use. See also United States v. Palacios, 556 F.2d 1359 (5th Cir. 1977). In the instant case, unlike Sisto, there was substantial evidence other than Donna Ballard's confession which tended to show Barnes' participation in the crime. McClure's testimony described in detail the plan allegedly engineered by Barnes.

Moreover, it is not clear that testimony regarding Donna Ballard's inconsistent statement could not have been admitted as substantive evidence against Barnes. According to cases decided since Hill, such evidence may be admissible under Federal Rule of Evidence 803(24). United States v. Williams, 573 F.2d 284 (5th Cir. 1978); United States v. Leslie, 542 F.2d 285 (5th Cir.), Rehearing en banc denied, 545 F.2d 168 (5th Cir. 1976); United States v. Iaconetti, 540 F.2d 574 (2d Cir. 1976), Aff'g, 406 F.Supp. 554 (E.D.N.Y.). In Leslie, the appellant argued that the trial court erred by inadequately instructing the jury that prior inconsistent statements of a co-defendant could be used only for impeachment purposes. We held that even if the instructions were inadequate, the statements were admissible as substantive evidence. The appellant in Williams complained that the trial judge had admitted over objection a prior inconsistent statement Offered as substantive proof. We found the evidence to be admissible. Both decisions relied on Federal Rule of Evidence 803(24) which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Testimony regarding Donna Ballard's statement meets the criteria of Rule 803(24). First, there are a number of indicia of its reliability. Donna was available and in fact testified with respect to the statements credited to her. ⁶ Thus, the jury was able to assess for itself the veracity of Donna's statement. In addition, Donna's statement was strongly corroborated by the testimony of the agents who took it and by McClure's testimony. The accounts of the scheme given by McClure and by Donna in her confession were remarkably similar.

The content of Donna's confession also meets the test of probity under Rule 803(24)(B). Without this testimony, the jury was left to decide a "lying contest" between McClure and the agents on one hand, and Donna and Barnes on the other. Co-defendants Donna Ballard and Robert Barnes did not seek a severance. They were represented by the same counsel. When Donna testified and denied her role in the scheme, she also expressly exculpated Barnes. Given this posture, it would be particularly important substantively to rebut her testimony. There could hardly be a more effective method to do so than by her own words.

With respect to the final criterion under Rule 803(24), the interests of justice are best served when the jury is provided with as much information as possible on an issue so beclouded by conflicting testimony. See United States v. Williams, 573 F.2d 284 (5th Cir. 1978).

The decisions in Leslie and Williams augment the persuasiveness of Hill and seriously weaken Barnes' argument. Since the government may have been able over Barnes' objection to present testimony regarding Donna's confession as substantive evidence against him, Appellant Barnes can hardly complain that the trial judge Independently should have instructed the jury that this testimony could be used only for impeachment purposes.

II. PHYSICAL EVIDENCE

The appellant also assigns as error the admission into evidence of the cocaine taken from McClure at the airport. He asserts that, due to conflicting testimony as to the weight of the cocaine seized, the government failed to establish a chain of custody sufficient to admit the physical evidence, Exhibit 3. We cannot agree.

The Customs inspector who discovered the cocaine in the lining of McClure's suitcase testified that it was contained in a number of small plastic bags. The powder in each separate bag was field tested and each of them tested positive for cocaine. He identified his initials on the inside plastic bag in Exhibit 3. He turned the plastic bags over to Agent Putsche.

Agent Putsche found the gross weight of the powder, 11 plastic bags, plus an additional bag, to be 123 grams. He then placed all of that into an evidence envelope and sealed it. He identified the envelope in Exhibit 3 as the same one in which he had placed the substance he received from the Customs inspector, and which he had delivered to the laboratory.

The chemist identified the same envelope in Exhibit 3 from his identification markings found in at least three places. He noted...