U.S. v. Fredericks

• Decision Date: 15 December 1978
• Docket Number: No. 77-5802,77-5802
• Citation: 586 F.2d 470
• Parties: 4 Fed. R. Evid. Serv. 271 UNITED STATES of America, Plaintiff-Appellee, v. Valerie FREDERICKS, Craig Calver, and Leon Perry, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 470

586 F.2d 470

4 Fed. R. Evid. Serv. 271

UNITED STATES of America, Plaintiff-Appellee, v. Valerie FREDERICKS, Craig Calver, and Leon Perry,

Defendants-Appellants.

No. 77-5802.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1978.

Stuart A. Markus, Laurie S. Silvers, Miami, Fla., for Valerie fredericks.

Melvyn Kessler, Miami, Fla., for Craig Calver and Leon Perry.

Jack V. Eskenazi, U. S. Atty., Michael Sullivan, K. M. Moore, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

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

JOHN R. BROWN, Chief Judge:

Valerie Fredericks, Craig Calver, and Leon Perry have been found guilty by a jury for conspiring to distribute methaqualone hydrochloride (quaalude capsules), in violation of 21 U.S.C.A. § 846. The Government investigation which led to their convictions was hardly exemplary, but we find that none of the defendants' asserted points of error require reversal and we therefore affirm the judgments entered below.

I. The Evidence Before The Jury

The evidence introduced at trial consisted primarily of the testimony of three witnesses: Armando Marin and Robert Fredericks, both Special Agents with the Drug Enforcement Administration (DEA), and Robin Ehrlich, who was an unindicted coconspirator of the three defendants. ¹

Special Agent Marin testified that on July 30, 1977, while acting in an undercover capacity, he was introduced to Craig Calver by a Carlos Lagos-Martinez at Calver's residence. In the presence of Marin and an informant, Calver asked Lagos-Martinez if he was still interested in obtaining some guaaludes, and Lagos-Martinez said that he was.

Two days later, according to Marin's testimony, while in Lagos-Martinez's hotel room, he answered a telephone call for Lagos-Martinez from "Leon." The gist of Leon's message was that he had the 2,000 quaaludes that Lagos-Martinez desired. Marin told Leon that he, Marin, was to be the actual purchaser of the quaaludes and that he wanted 10,000 tablets, not 2,000. Leon told Marin that obtaining 10,000 quaaludes would take a while longer and that he would call Marin back later. Shortly thereafter, Leon called again and told Marin that he would be able to supply 10,000 tablets, but that Marin would have to pick them up at "Craig's house." Marin testified that he subsequently ascertained that Leon was referring to the apartment of Craig Calver.

Less than an hour after Leon's second call, Marin called Craig Calver's apartment. Calver answered the phone and Marin asked to speak to Leon. Calver told him that Leon was "getting something together" and was not there at the moment. Marin asked if Leon was getting the quaaludes together and Calver answered: "Yes. You are going to have to come and pick them up."

Marin then testified that about 9:00 p. m. on the same day, August 1, he went to Calver's apartment along with an informant. Both Calver and Leon Perry were at the apartment, and Marin was introduced to Perry by Calver. As Marin shook Perry's hand, he observed to Perry that they had earlier spoken to one another on the phone and Perry acknowledged that fact. Perry then asked Marin if he had the money for the quaaludes. Marin assured Perry that he did, but said that he would not reveal any money until he could see the quaaludes. Perry told Marin that the quaaludes were at his girlfriend Robin's house, which was a few buildings away, and that Marin would have to wait at Calver's apartment for a few minutes. Calver and Perry then left the apartment.

When Calver and Perry returned about ten minutes later, Perry told Marin that they would have to postpone the transaction for a while because there were too many police officers in the area. Calver indicated his agreement that the deal would have to be postponed. Marin then revealed the fact that he was a federal officer and arrested Calver and Perry.

Special Agent Fredericks corroborated some of the testimony given by Agent Marin. Fredericks testified that on the night of August 1, 1977, he, along with other agents, was stationed outside Craig Calver's apartment. In the course of his surveillance, he observed Agent Marin enter the apartment, defendants Calver and Perry leave the apartment, and finally Calver and Perry return to the apartment, after which he assisted Agent Marin in arresting the two male defendants.

The final Government witness was Robin Ehrlich, the unindicted coconspirator. She testified that she shared an apartment with Leon Perry and that on August 1, 1977, Perry told her that some people would be dropping by. Later that day, according to Ehrlich's testimony, the defendant Valerie Fredericks arrived by taxi with a suitcase. Ehrlich testified that while in the presence of herself, Perry, Fredericks, and another individual, the suitcase was opened revealing stacks of foil packages, which Fredericks referred to as quaaludes. Fredericks then stated that before she relinquished the quaaludes, she would have to receive some money, and she was assured that some men were coming with the money.

Ehrlich also testified that later during the same evening, after 9:00 p. m., she and Fredericks left Perry's apartment. When asked why they left the apartment, Ehrlich responded that she was concerned about Perry's whereabouts and Fredericks "wanted to find out what happened with the deal." According to Ehrlich's subsequent testimony, the two women went to Craig Calver's apartment, where they found Calver and Perry and a number of agents.

After the Government rested its case, Special Agent Marin was recalled to the stand by the defense. At that point it was brought out that he had arrested Valerie Fredericks at Calver's apartment approximately twenty minutes after she had arrived there.

This account of the testimony heard by the jury is not a complete account of the facts relevant to our disposition of this appeal. But we have separately presented the evidence before the jury in order to respond to the first contention made by each of the three appellants that there was insufficient competent evidence to sustain the jury's verdict that they had conspired to distribute quaaludes. Each of the appellants also urges that their convictions must be reversed on three other grounds. We will supply the background for each of those contentions when we respond to them in the course of this opinion.

II. Sufficiency Of The Legally Competent Evidence

At the close of the prosecution's case-in-chief, each of the defendants moved for acquittal on the ground that the prosecution had failed to introduce sufficient, legally competent evidence to prove that a conspiracy existed, that each defendant knew about it, and that each defendant voluntarily participated in the conspiracy. ² The defendants' motions were denied. The test for sufficiency of proof on a motion for judgment of acquittal, and on review of the denial of such a motion, is whether the jury might reasonably conclude that the evidence, viewed in the light most favorable to the prosecution, is inconsistent with every reasonable hypothesis of the accused's innocence. E. g., United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, Cert. denied, 1971, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.

Assuming for the moment that all the evidence recounted above was properly admitted, there is no question that it was sufficient for the jury to exclude every reasonable hypothesis but that of the defendants' guilt. The jury could infer the existence of an illegal conspiracy and the defendants' knowing and willing participation in it from the initial meeting of Calver and Special Agent Marin at Calver's apartment, from the phone conversations Marin had with Perry and Calver negotiating and making arrangements for the sale of 10,000 quaaludes, from the conversations that occurred at Calver's apartment when Marin went there to complete the sale, from the postponement of the deal by Perry and Calver because too many police were in the vicinity, from Fredericks' arrival at Perry's apartment with a suitcase of quaaludes and the conversation between Fredericks and Perry about money, and from Fredericks' trip to Calver's apartment to find out what was happening with the deal. ³ And the jury was warranted in deducing from this evidence inferences that excluded beyond a reasonable doubt any possibility of innocence.

The crucial question then is whether all this evidence was properly admitted for the jury's consideration. In their briefs, the appellants challenged the admission of Robin Ehrlich's testimony in its entirety on the ground that it was obtained and introduced in violation of both their constitutional rights and hers. In Part VI of this opinion, however, we reject this argument and hold that notwithstanding any violation of Robin Ehrlich's rights, appellants were not entitled to the suppression of her testimony.

In oral argument, appellants raised an additional objection to the competence of the evidence. Each appellant claimed that the prosecution failed to establish the necessary foundation for the admission of various coconspirator statements against all of the defendants and not just the declarant. F.R.Evid. 801(d)(2)(E) provides that statements made by a coconspirator during the course and in furtherance of the conspiracy are not hearsay and may be admitted against other coconspirators. ⁴ Nevertheless, such statements cannot serve as the sole proof that the defendant against whom they are admitted indeed was a member of the conspiracy. The Government must produce independent evidence both that the conspiracy existed and, with respect to any defendant coconspirator against whom the statements are admitted, that he or she was a member of that conspiracy. ⁵ The Government may use, however Any otherwise admissible evidence in meeting this threshold...