U.S. v. Cox

• Decision Date: 22 January 1991
• Docket Number: No. 89-3308,89-3308
• Citation: 923 F.2d 519
• Parties: 32 Fed. R. Evid. Serv. 249 UNITED STATES of America, Plaintiff-Appellee, v. Raymond C. COX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 519

923 F.2d 519

32 Fed. R. Evid. Serv. 249

UNITED STATES of America, Plaintiff-Appellee, v. Raymond C. COX, Defendant-Appellant.

No. 89-3308.

United States Court of Appeals, Seventh Circuit.

Argued May 16, 1990.

Decided Jan. 22, 1991.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

James E. Foster, Funk & Foster, Hammond, Ind., for defendant-appellant.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and SNEED, Senior Circuit Judge. ^*

BAUER, Chief Judge.

This rather straightforward criminal prosecution raises two troubling issues: a district court's discretion to reject a plea agreement because the defendant will not admit guilt of the crime charged, and the proper procedure for providing to the district court a proffer of evidence of a conspiracy pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). Although the conduct of this case gives us pause as to both of these issues, we affirm the judgment of conviction.

I.

The facts here are not especially complex. Basically, Raymond Cox was charged with and convicted for being a small-time drug dealer. The operative indictment alleged conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and distribution of one-sixteenth of an ounce of cocaine, 21 U.S.C. Sec. 841(a)(1). The indictment also leveled these same charges, and three more, against one Raymond Talley, who pleaded guilty and testified for the Government.

The transaction that gave rise to the charges against Cox and Talley occurred on June 4, 1987. On that date, Talley asked a man who introduced himself as "Rico"--actually, undercover Lake County (Indiana) Narcotics Detective Raymondo Vasquez--if he wanted to buy some cocaine. After discussing price and quantity, Vasquez and Talley went to a bar to find Talley's source. Inside the bar Ray Cox was playing pool. Talley walked up to Cox and asked him if he had any cocaine available for sale. Cox didn't have any with him, but assured Talley that all he needed to do was make a phone call. Talley and Vasquez gave Cox an opportunity to finish his pool game, and then returned to the bar to make the deal.

Talley and Vasquez already had agreed on a price of $150 for one-sixteenth of an ounce of cocaine. Cox wanted the money up front, but Vasquez refused to give any money to these people he didn't know until he saw the drugs. Cox then made the call, and told the person on the other end of the line to give Talley the sixteenth. Cox again asked "Rico" for some front money, assuring him that his "wife" would give the sixteenth to Talley; but Detective Vasquez still refused. On Cox's instructions, Talley and Vasquez then drove to Cox's house. They parked down the street from Cox's house, where Talley demanded half of the money before proceeding further. Vasquez gave Talley $75, after which Talley walked up to Cox's second-floor apartment. Cox's live-in girlfriend answered the door and traded Talley the $75 for a small plastic bag of white powder. Back at the car, Talley exchanged the bag with Vasquez for the remaining $75, plus Vasquez gave Talley an additional $5 "for his troubles." Vasquez then returned Talley to the bar, but not before Talley offered to help Vasquez obtain more cocaine in the future. Talley reported back to Cox and handed him the remaining $75.

Detective Vasquez put the unopened plastic bag he received from Talley into a sealed, marked evidence envelope and stored it overnight in a locked cabinet at the Lake County Sheriff's office. The next day, June 5, 1987, Vasquez took the envelope to the Indiana State Police laboratory for analysis. Vasquez retrieved the evidence from the lab on June 16, 1987. He kept the envelope for a short time in the locked cabinet at the Sheriff's office, and then delivered it to the Lake County Police property room for storage. Vasquez resubmitted the sealed envelope to the lab on August 12, 1988, apparently because the chemist who performed the June, 1987 analysis subsequently left the employ of the Indiana State Police. Kristin B. Donley, a forensic drug chemist with the Indiana State Police's Lowell Regional Laboratory, opened the sealed envelope and plastic bag and tested the white powder contained therein on January 17, 1989. Donley determined that the bag contained 1.3 grams of powder that was 74% by weight cocaine, and entered this information on the official report. She then marked and resealed the bag and the envelope. Detective Vasquez picked up the evidence from the lab on June 14, 1989, and returned it to the Lake County Police property room.

In what turned out to be a full-dress rehearsal, the case against Cox was tried to a jury on June 12-15, 1989. After the jury retired to deliberate (and the alternates were sent home), one of the jurors had to be excused for health reasons. The trial judge decided to continue with the remaining eleven, see Fed.R.Crim.P. 23(b), but when almost twelve hours of deliberation and several notes back and forth failed to result in a verdict, the court granted the parties' agreed motion for a mistrial.

Shortly after the mistrial, Cox and the Government reached a plea agreement. In exchange for Cox's plea of guilty to the distribution charge, the Government agreed to dismiss the conspiracy charge and to accept a two-year cap on Cox's sentence. For reasons that are more fully discussed below, see infra at 523-24, the court rejected the plea agreement and set the matter for a second trial. The Government moved to dismiss the conspiracy count anyway, preferring to go to trial again on only the substantive distribution charge. Without objection from Cox, the conspiracy charge was dismissed. The court then took up various preliminary matters in preparation for the trial, which was to begin in four days. The Government informed the court that it planned to introduce against Cox several statements by Talley, just as it had in the first trial. The Government alleged that the statements were not hearsay but statements by a coconspirator. See Fed.R.Evid. 801(d)(2)(E) ("Rule 801(d)(2)(E)"). The Government suggested that it could provide the court with a proffer of evidence concerning the alleged conspiracy, to which the court responded, "[I]f you want to prepare a Santiago proffer, I will accept [it] for my review in camera only." Transcript of Proceedings on August 25, 1989 ("Plea Hearing Tr.") at 66.

The second jury trial began on August 29, 1989. Before seating the jury, the court considered motions in limine by both sides. In his three motions in limine, Cox sought to preclude the following pieces of evidence that came out: 1) the drug conspiracy charge to which Talley pleaded guilty also named Cox, 2) Talley's claim in the first trial that he had engaged in drug deals with Cox prior to the transaction on June 4, 1987, and 3) Cox's statement that he had distributed cocaine to his girlfriend on various occasions in the past. The court denied all three motions. As to the first, the court ruled that the Government's right and obligation to enter evidence concerning Talley's plea agreement included the right to explore the details of the charge to which Talley had pleaded guilty. Transcript of Proceedings on August 29, 1989 ("Trial Tr.") at 101-02. As to Cox's second and third motions, the court applied the four-part test for the admission of prior bad act evidence outlined in United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984), and concluded that the challenged evidence was admissible under Fed.R.Evid. 404(b) ("Rule 404(b)"). Trial Tr. at 73-84.

At the same pretrial conference, the court also ruled on the Government's Santiago proffer. The court ruled that the in camera proffer, which the court sealed until further notice, was sufficient to allow the conditional admission of Talley's statements as coconspirator statements; the condition being that the Government prove at trial by a preponderance of the evidence that a conspiracy existed, that the statements were made in furtherance of the conspiracy, and that Cox was a member of the conspiracy when the statements were made. Trial Tr. at 91-92. Counsel for Cox objected to the Santiago procedure used by the court. He argued that keeping the proffer secret from defense counsel prevented him from mounting an attack on the sufficiency of the proffer and from preparing to defend against the coconspirator statements themselves. Id. at 93-97. With this objection noted and rejected, the court proceeded to conduct the voir dire and seat the jury.

The following day, after the Government completed its case-in-chief, the court returned to the Santiago issue. The court ruled that the evidence adduced by the Government in its case-in-chief established the requisite elements for the admission of a coconspirator's statement under Rule 801(d)(2)(E). Accordingly, the court changed its conditional admission of Talley's statements to an unconditional one. Trial Tr. at 268. Counsel for Cox contested this finding on the merits, and renewed his objection to the ex parte nature of the procedure as well. Id. at 269-73. The court reaffirmed its Santiago ruling, and Cox proceeded with his defense case. Later that afternoon, both parties rested and the case went to the jury. After deliberating for about an hour, the jury returned a guilty verdict. The court later entered judgment on this verdict and sentenced Cox to three years imprisonment, to be followed by three years of supervised release. From that judgment Cox brought a timely appeal.

II.

Two of Cox's challenges to his conviction can be disposed of rather quickly. First, relying on the 13-month "hiatus" between when Vasquez first retrieved the evidence from the lab (June, 1987) and when he resubmitted it for a second analysis (August, 1988), Cox argues that the Government failed to establish a sufficient chain of custody for the cocaine. This contention is frivolous. Detective Vasquez testified that the sealed envelope was stored...