U.S. v. Graham, 88-1159

• Decision Date: 14 October 1988
• Docket Number: No. 88-1159,88-1159
• Parties: 26 Fed. R. Evid. Serv. 1429 UNITED STATES of America, Plaintiff-Appellee, v. Arch Emmett GRAHAM, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 986

858 F.2d 986

26 Fed. R. Evid. Serv. 1429

UNITED STATES of America, Plaintiff-Appellee, v. Arch Emmett GRAHAM, Defendant-Appellant.

No. 88-1159

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1988.

Rehearing Denied Nov. 10, 1988.

John D. Nation, Douglas D. Mulder, Dallas, Tex., for defendant-appellant.

Mark H. Marshall, Asst. U.S. Atty. Helen M. Eversberg, U.S. Atty., Austin, Tex., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, KING, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Arch Emmett Graham ("Graham") was convicted of one count of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and one count of conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and sentenced to five years imprisonment on each count, the sentences to run concurrently. Graham now appeals on several grounds. Finding no error in his trial and that the evidence is sufficient to sustain conviction on both counts, we affirm.

I.

On July 2, 1987, Javier Pena ("Pena"), a special agent with the Drug Enforcement Administration, and Sharon Ross ("Ross"), a police officer, working undercover, met with Brian Williams ("Williams") to arrange the purchase of cocaine. The meeting took place at Jim's Restaurant ("Jim's") in Austin, Texas; Pena, Ross, Williams, and Graham were all present.

At this first meeting, Pena and Williams discussed the purchase of cocaine by Pena from Williams. According to government witnesses, Graham did not participate in the conversation, but was listening intently. After five to nine minutes, Graham got up and left the restaurant. After Graham left, according to Pena, Williams told Pena that Graham was one of Williams's runners. ¹ Later, when Pena indicated that he would want to make a second purchase of cocaine after the first transaction was completed Williams stated that Graham would drive the second shipment of cocaine to San Antonio for Williams. Plans for the second purchase were made for Friday, July 10.

Preparations for the first purchase continued. After several aborted attempts at completing the transaction, Pena called Williams on July 8 at 2:00 p.m. Williams told Pena that everything was ready to go, but that Pena should call back later to take care of the final details. When Pena called again, Williams told him that he had sent one of his men on a flight to pick up the cocaine and that the man would arrive back in Austin about 9:00 that evening. Williams and Pena also made arrangements to meet again at Jim's so that Pena could receive a sample of the cocaine.

At that meeting, which took place at 4:15 that same day, Williams stated that he had sent one of his runners by plane to Houston to pick up the cocaine and that it would be in by 9:00 or 9:30. In reference to the second transaction, Williams also asserted that "they" would be able to deliver the second pound of cocaine to Pena in San Antonio on Friday.

Shortly after this conversation, Graham arrived at Jim's in the company of an unidentified woman and sat down with Williams and Pena, who continued to discuss the two drug transactions. During a break in the conversation in which Williams left to make a phone call, Graham told Pena that Graham would drive the second pound of cocaine to San Antonio for Pena, because Graham was very familiar with the San Antonio area.

After Williams returned, Williams and Pena then discussed the first purchase of cocaine to take place that evening, with Pena agreeing to rent a room at a nearby motel to secure a location for completing the transaction. Graham, who Pena testified was listening but not participating in the conversation, acknowledged the meeting at the motel by nodding his head.

At the end of the meeting, Williams gave Pena a sample of cocaine hidden in a package of cigarettes. Again, according to Pena, Graham was present and listening to Williams when Williams told Pena that the package contained cocaine.

At 9:00 p.m., Pena called Williams and told him that he had secured a room at a different motel. Williams acknowledged the change and told Pena that "they" would be at the motel to deliver the cocaine at 10:00 p.m.

Williams and Graham arrived at the room at 10:05 p.m. As Williams entered, he handed Pena a brown paper bag which he had been carrying. As Williams and Graham sat on the bed, Pena removed a bundle from the bag, removed a small amount of white powder later identified to be cocaine, and weighed the remainder of the package. Williams assured Pena that the cocaine was "real good quality, you won't be disappointed." While the package was still on the scales, Pena asked Williams if the substance had come in by airplane, to which Graham replied "No," and, after hesitating, added "but it could have."

Shortly thereafter, while still in the motel room, Williams and Graham were arrested and immediately read their Miranda rights. Graham then turned to Pena, and, using Pena's undercover name, said, "Juan, you're my witness, you saw me, I never touched the dope." After repeating this exclamation several times, Williams told Graham to be quiet and that Williams was going to call an attorney.

II.

Williams and Graham were indicted as co-defendants on one count of conspiracy to distribute cocaine and two counts of distribution of cocaine. On November 17, 1987, the case was called for trial, at which point Williams pleaded guilty to the indictment. After listening to the government's summary of the evidence, Williams told the court that he had never told Pena that Graham was one of his runners or that Graham would drive the second purchase of cocaine to San Antonio.

The case went to trial on the issue of Graham's guilt. Pena testified as to Graham's involvement in the transactions, and specifically noted Williams's statements that Graham was one of his runners and that Graham would drive the second purchase of cocaine to San Antonio. On cross-examination, Graham's attorney attempted to ask Pena about Williams's denials made the day before, but the trial court sustained the government's objection to the questions and to the introduction into evidence of Williams's statements through Pena.

The jury returned a verdict of guilty on one count of distribution and the conspiracy count, and judgment was entered accordingly. Graham now appeals, alleging (1) that the trial court erred in refusing to allow Graham to impeach Williams's testimony by asking Pena about Williams's inconsistent statements, (2) that the evidence is insufficient to sustain Graham's conviction for either count, and (3) that the trial court instruction to the jury on the issue of intent impermissibly created a mandatory presumption of intent.

III.

Graham's first contention on appeal is that the trial court erred in refusing to allow him to cross-examine Pena on the statements made by Williams while pleading guilty. Because Pena testified as to Williams's statements concerning Graham made during their meetings at Jim's, Graham argues that Williams's subsequent denials of having made the statements are admissible under rule 806 of the Federal Rules of Evidence, which permits the credibility of a hearsay declarant to be impeached with any evidence which would be admissible if the declarant had in fact testified as a witness. ²

While pleading guilty before the same judge who conducted Graham's trial, Williams engaged in the following dialogue with the court after the prosecution had summarized the government's evidence against him:

THE COURT: Mr. Williams, do you have any disagreement with the prosecutor's summary of what you did?

DEFENDANT WILLIAMS: Yes, sir. One, I didn't state [Graham] was one of my runners to Pena and--let's see--the delivery to SA, I don't--Arch Graham couldn't never done anything without my word, without my say-so. And it would make no sense for him to be able to say anything like that.

THE COURT: I'm not following that part of it, Mr. Williams.

DEFENDANT WILLIAMS: Okay. It was said that Arch Graham said to [Pena] that he would deliver the second pound, or I had told him that I would have Arch deliver the second pound of cocaine. That's a false statement; I didn't say that at all. As a matter of fact, I denied San Antonio altogether.

Pena was present in court when Williams denied having made the statements. At Graham's trial the next day, Pena testified that during their first meeting, Williams first told him that Graham was one of his runners and later said that he would have Graham drive a pound of cocaine to San Antonio to complete the second transaction. ³ When Graham's counsel tried to cross-examine Pena with Williams's denials of the day before, the government objected, and the trial court sustained its objection. ⁴

A trial court's evidentiary ruling will be reversed only if it constitutes an abuse of discretion. See United States v. Westmoreland, 841 F.2d 572, 578 (5th Cir.1988). A careful analysis of rule 806 and Williams's two sets of statements reveals that, far from constituting an abuse of its discretion, the trial court's ruling is undoubtedly correct.

The purpose of rule 806 is to establish a standard for attacking the credibility of a hearsay declarant: "The credibility of the declarant may be attacked ... by any evidence which would be admissible for those purposes if declarant had testified as a witness." Fed.R.Evid. 806 (emphasis added). The Advisory Committee Notes accompanying the rule explain the underlying rationale for the rule by noting that "[t]he declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified." Fed.R.Evid. 806 advisory committee note. Under rule 806, therefore, any prior or subsequent inconsistent statements by Williams, the declarant,...