U.S. v. Davis
| Decision Date | 19 August 1998 |
| Docket Number | Nos. 97-1181,s. 97-1181 |
| Citation | 154 F.3d 772 |
| Parties | UNITED STATES of America, Plaintiff--Appellee, v. Fernando Dwane DAVIS aka Duane Davis, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Darnell HINES, Defendant-Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Paris WILSON, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Carlos Lamont CLEVELAND, Defendant-Appellant. UNITED STATES of America, Plaintiff--Appellee, v. DeShaun Raffles MURPHY, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Gerald JARRETT, aka Gerald Jarrett, aka Gerald Desean Jordan aka Gerald Shawn Jordan, aka Desean Gerald Jordan, aka Aaron Desean Johnson, aka Turk, Defendant-Appellant. to 97-1183 and 97-1230 to 97-1232. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Andrea K. George, Minneapolis, Minnesota, argued, for appellant Fernando Dwane Davis.
James Brian Sheehy, Minneapolis, Minnesota, argued, for appellant Darnell Hines.
Robert Gerard Malone, St. Paul, Minnesota, argued, for appellant Paris Wilson.
James Erwin Ostgard, Minneapolis, Minnesota, argued, for appellant Carlos Lamont Cleveland.
Thomas H. Shiah, Minneapolis, Minnesota, argued, for appellant DeShaun Raffles Murphy.
Richard John Coleman, West St. Paul, Minnesota, argued, for appellant Gerald Jarrett.
Beth L. Golden and Carol Needles, Minneapolis, Minnesota, argued (David L. Lillehaug, United States Attorney, and Rob Stefonowicz, on the brief), for appellee.
Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
Fernando Davis, Darnel Hines, Paris Wilson, Carlos Cleveland, Deshaun Murphy, and Gerald Jarrett were convicted of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 (1994), aiding and abetting possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1994), and aiding and abetting the use or carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1994). Hines, Cleveland, Murphy, and Jarrett were also convicted of use of a minor in a conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 861(a)(1) (1994). All six appeal their convictions and all except Davis appeal from the sentences imposed 1 by the district court. 2 We affirm.
On October 24, 1995, Agent Jeffrey Burchett of the Minnesota Bureau of Criminal Apprehension received a phone call reporting a missing juvenile, Janelle Gilliam. He contacted the juvenile's mother, Cathy Bjornos, who told him that men had come to Bjornos' house looking for Gilliam on the night of October 22, 1995, had given Bjornos a phone number where they could be reached if Gilliam returned home, and had called Bjornos' house five to six times later that night, at one point telling her that Gilliam had drugs belonging to them worth $16,000. Burchett also determined that the phone number belonged to Maria Scales and was assigned to an apartment at 909 East Eighteenth Street in Minneapolis, Minnesota.
Gilliam later contacted Burchett by telephone, and told Burchett that she had traveled to Detroit, Michigan, with Gerald Jarrett, Deshaun Murphy, and Carlos Cleveland. While in Michigan, she met Darnel Hines. She returned to Minneapolis by bus on October 22, 1995, carrying with her a package of narcotics. She informed Burchett that the drugs were being stored at a Red Roof Inn in Plymouth, Minnesota, and were being sold out of the 909 East Eighteenth Street apartment building.
Burchett obtained hotel records that Cleveland and Hines had registered for rooms at the Red Roof Inn during the month of October 1995. A hotel employee told Burchett that the individuals who had stayed in the rooms registered to Cleveland and Hines were currently staying in a room registered to Fernando Davis. Burchett obtained a warrant to search Davis's hotel room and contacted other law enforcement officers to assist in surveillance and in the execution of the warrant. The surveillance officers saw four individuals leave Davis's room and drive away. The officers stopped the car and identified the individuals as Hines, Cleveland, Tonya Washington, and Karen Bradley. The officers then searched Davis's hotel room where they found an unloaded Smith & Wesson .357 revolver and 84.9 grams of crack cocaine. Officers then placed Hines, Cleveland, Washington, and Bradley under arrest.
That evening, hotel staff at the Red Roof Inn called Officer John Christiansen of the Plymouth Police Department and informed him that individuals had returned to Davis's hotel room. After arriving at the hotel, Christiansen saw three men leave the hotel room and get into a car which the police stopped. Davis was identified as the driver and Paris Wilson and Steve Howard as the passengers. The officers arrested Davis but released Wilson and Howard without questioning. Officers also discovered Gerald Jarrett and Deshaun Murphy still in the hotel room but did not arrest either of them.
The investigation by Burchett and other officers ultimately resulted in the indictment of eight individuals. Of those indicted, only the six appellants now before us proceeded to a jury trial. The two others, Patsy Kalfayan and Tonya Washington, entered guilty pleas and agreed to testify on behalf of the government. Another suspect, Steve Howard, was never apprehended. After a fourteen day trial, the jury found the defendants guilty of all counts of their indictments, and substantial sentences were imposed.
Further facts will be recited as is necessary in our analysis of the issues presented by the appellants.
The appellants contend that Agent Burchett's testimony as to the out-of-court statements of other witnesses was inadmissible hearsay. The government responds that Burchett's testimony was not hearsay because it was not offered for the truth of the matters asserted but instead was offered to explain his investigation of the alleged drug conspiracy. We review the district court's admission of evidence for a clear abuse of discretion. United States v. King, 36 F.3d 728, 732 (8th Cir.1994).
Agent Burchett is a special agent with the Bureau of Criminal Apprehension and was in charge of the investigation into the alleged drug conspiracy. At trial, Agent Burchett testified to information he learned solely through hotel or car rental documents or through the out-of-court oral statements of hotel staff, other police officers, and informants, including Janelle Gilliam and her mother, Cathy Bjornos. The defendants initially objected to each such instance, and the district judge then allowed the defendants to enter a standing objection on the basis of hearsay. The district court overruled the objections, reasoning that testimony as to what Burchett learned was not hearsay. The district court also declined to instruct the jury as to the limited purpose of Burchett's testimony.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). An out-of-court statement is therefore not hearsay if it is offered, not for the truth of the matter asserted, but instead to explain the reasons for or propriety of a police investigation. See United States v. Collins, 996 F.2d 950, 953 (8th Cir.1993). We have held, however, that evidence may not be admitted for the non-hearsay purpose of explaining an investigation where the propriety of the investigation is not a relevant issue at trial. See United States v. Blake, 107 F.3d 651, 653 (8th Cir.1997).
The government contends that defense counsel repeatedly attacked the criminal investigation as defective or improperly motivated and thereby placed the propriety of the investigation in issue. Appellants argue that defense counsel did not attack the investigation itself but merely the credibility of the government's witnesses. Burchett was the government's first witness, so if defense counsel raised the investigation as an issue, they must have done so during opening statements.
We conclude that, while defense counsel's attacks in their opening statements largely focused on the credibility of individual witnesses, the government could have reasonably interpreted their comments as attacks on the propriety of the investigation. Defense counsel stated that the evidence would show that the government did not conduct "any independent investigation" to verify Gilliam's story and made "automatic assumptions" about the defendants' guilt. We therefore hold that the investigation was placed at issue.
Having concluded that a relevant, non-hearsay purpose may have existed for the challenged testimony, we must next determine whether Burchett's testimony was reasonably directed towards that purpose. This determination is not based on the wording of Burchett's testimony, whether he testified in terms of what the informants stated or in terms of what he learned from them during his investigation. Instead, we compare the substance of the testimony to the non-hearsay purpose it is supposed to have served. Burchett's account of what he learned from Gilliam may have gone beyond what was necessary to explain his investigation, but, for the most part, the challenged testimony helped establish that Burchett conducted an independent investigation of Gilliam's claims and did not automatically assume the defendants' guilt. While we are troubled by the absence of a limiting instruction during Burchett's testimony, we are satisfied that the district court did not abuse its discretion in admitting the challenged testimony.
Davis argues that the district court erred in admitting evidence of his prior arrest for possession of a firearm. 3 The...
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