U.S. v. Garrison

• Decision Date: 22 February 1999
• Docket Number: 98-1612E,98-1694EM,Nos. 98-1611E,s. 98-1611E
• Citation: 168 F.3d 1089
• Parties: 51 Fed. R. Evid. Serv. 607 UNITED STATES of America, Appellee, v. Rossi GARRISON, Appellant, United States of America, Appellee, v. Isaac Pike, Appellant, United States of America, Appellee, v. Natasha Batey, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1089

168 F.3d 1089

51 Fed. R. Evid. Serv. 607

UNITED STATES of America, Appellee, v. Rossi GARRISON, Appellant, United States of America, Appellee, v. Isaac Pike, Appellant, United States of America, Appellee, v. Natasha Batey, Appellant.

Nos. 98-1611EM, 98-1612EM, 98-1694EM.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1998.

Decided Feb. 22, 1999.

Robert G. Costantinou, Larry D. Hale, Douglas A. Forsyth, St. Louis, MO, argued, for appellants.

Edward J. Rogers, Asst. U.S. Atty., argued, for appellee.

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON, ¹ District Judge.

RICHARD S. ARNOLD, Circuit J.

Rossi Garrison, Isaac Pike, and Natasha Batey appeal their convictions stemming from their involvement in a drug-distribution conspiracy, raising various evidentiary and sentencing issues. We affirm.

I.

On August 14, 1997, a superseding indictment was filed against sixteen people, including the defendants, for their involvement at least since 1989 in a conspiracy to distribute cocaine in the St. Louis, Missouri, area. The indictment alleged, among other things, that Garrison, Pike, and others had arranged for couriers to travel back and forth between Los Angeles and St. Louis, transporting cocaine and the funds needed for its purchase. Garrison, Pike, and Batey went to trial, and fourteen couriers testified against them. All three defendants were convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (1994). In addition, Garrison and Pike were convicted of money laundering in violation of 18 U.S.C. § 1956(h) (1994). Pike was also convicted of six additional counts of money laundering under 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (1994) and 18 U.S.C. §§ 1957(a) and 2 (1994). Garrison and Pike were each sentenced to thirty years in prison. Batey was sentenced to seventeen and a half years in prison. All three defendants were sentenced to five-year terms of supervised release.

II.

Garrison and Pike first argue that the District Court ² erred in allowing one of the couriers, Beverly Jean Armstrong, to testify that she had received a threatening telephone call, a couple of days before her cooperation with the government, from someone who identified himself as "Ike." Law enforcement agents investigating the conspiracy had approached several of the couriers. Armstrong, who had made four trips to California, testified that Mary Jane Coffman, who had recruited her, told her that the agents had talked to several other members of the conspiracy. The agents eventually contacted Armstrong and, on January 22, 1996, a Monday, they interviewed her. On the Friday before, Armstrong testified, she received a telephone call from someone with a male voice who identified himself as "Ike." She testified that "he informed me that I wasn't to say anything. I was to keep quiet; and that if I didn't, then I--they were going to do something to me and my daughter." (Trial Tr., Nov. 13, 1997, at 11.) This testimony was allowed over the objections of defense counsel.

On appeal, Garrison and Pike claim that the statements should not have been admitted. Since Armstrong had never met Isaac Pike and was not familiar with his voice, they argue, the foundation for authenticating the telephone conversation was not properly laid. The defendants also claim that the testimony should have been excluded under Fed.R.Evid. 403, because of its highly prejudicial nature, and under Fed.R.Evid. 404(b), as evidence of other crimes inadmissible to prove character. In addition, they argue that a jury instruction based upon this testimony was improperly given.

In order to allow the courier to testify about the threatening phone call, the District Court had two tasks. First, it must have concluded that there was enough evidence to justify a finding that "Ike" was one of the defendants. Second, the Court was required to decide that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice. Having reviewed carefully the transcript, we find nothing to suggest that the District Court abused its broad discretion in admitting the testimony. Armstrong did not testify (and, of course, could not testify) that the "Ike" who threatened her was the defendant Isaac Pike. With respect to the phone call itself, her testimony was only that she had received a call from someone who identified himself as "Ike," and that the caller had threatened her. She also testified, however, that she understood from conversations with Mary Jane and George Coffman that the person they were working for was named "Ike," that she herself would be traveling to California for "Ike," and that "he would pay me if I made these trips for him." (Trial Tr., Nov. 12, 1997, at 135.) In addition, she testified that the voice that threatened her did not belong to any of the other males she knew who were involved in the conspiracy, and, as the government asserts, the only "Ike" involved in the conspiracy was Isaac Pike.

We believe the circumstances surrounding the telephone call satisfy the requirements of Fed.R.Evid. 901(a), which provides that "authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." While the mere assertion by a person talking on the telephone of his or her identity is not sufficient evidence of the authenticity of the conversation, the requisite additional evidence "need not fall in any set pattern." Fed.R.Evid. 901 advisory committee's note, ex. 6. Indeed, a "telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him." Fed.R.Evid. 901 advisory committee's note, ex. 4.

Garrison and Pike argue that testimony by Armstrong of the telephoned threat was not relevant because it was not similar in kind to the crime charged. They were on trial for conspiracy, however, and "[a]cts committed in furtherance of a conspiracy are admissible as circumstantial evidence that the agreement existed ...." United States v. Madrigal, 152 F.3d 777, 780 (8th Cir.1998) (citing United States v. Dierling, 131 F.3d 722, 730 (8th Cir.1997)). This testimony bears directly on the issue of conspiracy. It is evidence of the agreement Armstrong entered into to carry drugs, and it is evidence of the length to which the conspirators would go to conceal the existence of the conspiracy. Accordingly, we hold that the District Court did not abuse its discretion in concluding that the probative value of the evidence outweighed its unfairly prejudicial effect.

The defendants' claim that the District Court improperly instructed the jury with respect to the threat is also without merit. The disputed instruction reads as follows:

Attempts by a defendant to influence a witness in connection with the crime charged in this case may be considered by you in light of all the other evidence in the case. You may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct.

(Appellant's Addendum at 44.) Evidence of threats against witnesses is routinely admitted against criminal defendants to show consciousness of guilt. See United States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir.1997); United States v. Dittrich, 100 F.3d 84 (8th Cir.1996); United States v. DeAngelo, 13 F.3d 1228 (8th Cir.1994). In addition, the instruction given by the District Court is a correct statement of the law. United States v. Grajales-Montoya, 117 F.3d 356 (8th Cir.1997).

Garrison argues separately that there was no evidence that he was involved in threatening Armstrong, and that he was prejudiced because the jury may have found him guilty by virtue of his association with Pike. The government presented sufficient evidence at trial from which a reasonable jury could conclude that Garrison was a member of the conspiracy (even he does not claim that the evidence against him was insufficient), and it is well settled that members of a conspiracy are responsible for acts committed by co-conspirators in furtherance of the conspiracy. We find no error in the District Court's instruction.

III.

We turn next to Garrison's and Pike's argument that the District Court should have prohibited the government from introducing evidence of conduct that occurred before the conspiracy was formed. The defendants object specifically to the testimony of Shawn Staten, who testified that she sold cocaine to a person named "Cecil" in late 1982, and that "Cecil" had been accompanied by someone named "Cuffy." Staten later began selling cocaine regularly to "Cuffy," and, through him, met Garrison and Pike. When "Cuffy" was arrested, the government alleged, Garrison and Pike stepped in and arranged to purchase drugs from Staten. When Staten herself was arrested in 1989, Garrison and Pike approached Staten's mother, Johnetta Braxton, and the arrangement, with advice from Staten in prison, continued. Braxton arranged for her mother, Rebecca Staten, to act as a courier, and Garrison and Pike arranged to provide couriers from St. Louis. Although Garrison and Pike were not participants in the original transactions with "Cuffy" and "Cecil," those transactions were the genesis of the conspiracy that would later be formed when "Cuffy" and Shawn Staten were arrested. This testimony is direct evidence of the establishment and structure of the conspiracy, and it was not error to allow its introduction. See United States v. Rodrequez, 859 F.2d 1321 (8th Cir.1988).

IV.

Garrison and Pike argue that the District Court should have allowed cross-examination of Eddie Marshall, one of the couriers, on the subject of a sexual relationship he allegedly had with another witness, Mary Jane Coffman. The defendants sought to question Marshall on that subject in order to demonstrate bias or prejudice. The defendants...