U.S. v. Grinage

• Decision Date: 02 December 2004
• Docket Number: Docket No. 03-1405.,Docket No. 03-1207.
• Citation: 390 F.3d 746
• Parties: UNITED STATES of America, Appellee, v. Raynard GRINAGE, also known as Boogee, also known as Hans, also known as Harold Phillips; Sherry Cannon; Betsy Reneau, also known as Betsy Fernandez; Rodney Thomas; Edgar Arroyo; Michael T. Garvin, also known as Miami; Michelle Williams, also known as Michelae Williams; Dean Parks, Defendants, Sidney Osman, Mark Reneau, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 746

390 F.3d 746

UNITED STATES of America, Appellee, v. Raynard GRINAGE, also known as Boogee, also known as Hans, also known as Harold Phillips; Sherry Cannon; Betsy Reneau, also known as Betsy Fernandez; Rodney Thomas; Edgar Arroyo; Michael T. Garvin, also known as Miami; Michelle Williams, also known as Michelae Williams; Dean Parks, Defendants Sidney Osman, Mark Reneau, Defendants-Appellants.

Docket No. 03-1207.

Docket No. 03-1405.

United States Court of Appeals, Second Circuit.

Argued: April 23, 2004.

Decided: December 2, 2004.

Adam B. Siegel, Assistant United States Attorney for the Southern District of New York (Steven R. Glaser, Assistant United

States Attorney, Diane Gujarati, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Donald D. duBoulay, for Defendant-Appellant, Sidney Osman, New York, NY.

David Cooper, for Defendant-appellant, Mark Reneau, New York, NY.

Before: McLAUGHLIN and SACK, Circuit Judges, and GERSHON, District Judge.¹

GERSHON, District Judge.

Defendant Sidney Osman appeals from the judgment of the United States District Court for the Southern District of New York convicting him, after a jury trial, of the sole count against him, conspiracy to distribute and possess with intent to distribute one hundred grams or more of phencyclidine ("PCP"), in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 846. Osman argues that the admission of testimony from the case agent "interpreting" telephone calls, in which the agent had not participated, but had reviewed, was error and that the evidence was insufficient to support a conviction. In this opinion, we address Osman's appeal. For the reasons set forth below, the judgment of conviction as to Osman is vacated and the case is remanded.

All of Osman's co-defendants pled guilty. One, Mark Reneau, appeals from a judgment convicting him following his plea of guilty to both counts of a two-count information charging him with both the same conspiracy and a substantive PCP offense involving 5.4 kilograms of a substance containing PCP. In a summary order filed today, we resolve the appeal by Reneau and affirm his conviction.

BACKGROUND

At Osman's trial, the Government established the existence of a substantial conspiracy to distribute large quantities of PCP. The PCP was manufactured in California and then transported to New York City by Mark and Elaine (Betsy) Reneau and distributed in New York by Raymond Grinage, the lead defendant, to local dealers. Osman was charged with being one of those local dealers. Elaine Reneau, a cooperating witness, described the overall conspiracy and the role of Grinage and other individuals, including her husband Mark Reneau, in the conspiracy. Although Elaine Reneau testified that she knew Osman from high school in Belize, that she had seen him on a few occasions over several years on the street or at a social club in upper Manhattan that Belizeans frequented and that she had seen Grinage in Osman's presence, she did not implicate Osman in the conspiracy nor did she testify to any involvement by Osman in the drug trade.

The only other witness was the case agent, Scott Seeley-Hacker, a special agent with the Drug Enforcement Agency ("DEA"), who had supervised the wiretap of Raymond Grinage's cellular phone. The Government elicited at great length Agent Seeley-Hacker's background, his training and his experience in narcotics investigations. In particular, the Government elicited his experience in listening to drug traffickers speak on the telephone. He testified that, based upon his training and experience, he was familiar with the manner in which drug dealers speak, a manner that "is very cautious and often coded."

Received into evidence were some 2000 wiretapped calls from Grinage's cellular phone. The agent testified that he had listened to all of them; some pertinent calls he listened to "upwards of 20 plus times." Based upon his "investigation" and his understanding of the calls, he described in detail the Grinage organization and the roles of Grinage's supplier Rodney Thomas and customers, including Sherry Cannon, Michael Garvin and Edgar Arroyo. In his discussion of the calls between Grinage and individuals other than Osman, the agent did not identify any mention of Osman.

Only approximately thirteen of the 2000 calls were played to the jury. The agent interpreted two calls played to the jury from Garvin and Cannon asking, respectively, for "about two" and "one and a half" as requests for quantities, by ounce, of PCP. The agent had previously testified that ounce quantities of PCP are diluted and resold for personal use as individual "dips." The Government also played a call between Elaine Reneau and Grinage, which, according to the agent, related to PCP distribution. The agent described his understanding of another call played to the jury as reflecting an arrangement between Arroyo and Grinage at which Arroyo would pick up drugs. According to the agent, on the 2000 calls, there was only one explicit reference to PCP and that was made by Grinage's girlfriend. The agent further testified that the participants were not using code.

Only three of the 2000 calls to Grinage were from Osman, and each was played to the jury in its entirety. The agent was permitted to interpret each of these calls to the jury, as he had interpreted the others. In the first call, made by Osman to Grinage on July 21, 2001, they had a dispute over money owed by Osman to Grinage in which Grinage cursed and threatened Osman, and Osman assured Grinage he would bring the money. The agent testified that, "Based on my knowledge of Raynard Grinage and his operation and the context of this call, I believe that this is a call where money is owed him over a drug debt, and he's demanding his money to be paid." The agent specifically identified the debt as being over a PCP deal. His basis for this conclusion was that Grinage had made other calls seeking drug money from other people. The second call, which the Government referred to in summation as the "key" to its case against Osman, occurred on August 7, 2001. Cannon tells Grinage she is calling him on Osman's phone and that Osman wants to speak to him. After saying that he doesn't want to get himself in any "situation," Osman tells Grinage, "I need something bad, bad, bad," and "I need about nearly four." Grinage responds, "I'm not up with the bullshit." Osman says, "No way, you, you, you look ... I'm going to pass there. I'm not gonna chat with you right now. I am coming around there." Grinage responds, "All right." After playing the tape, the prosecutor went through the conversation line by line, asking the agent his understanding of each sentence. In sum, the agent testified that Osman did not want to be in a situation where he owed Grinage money, as reflected in the earlier conversation, but that he badly needed four ounces of PCP; when Grinage rebuffed him, it was because of his failure to pay a prior drug debt and unwillingness to do a PCP deal with Osman without getting his money at the same time. When Osman said he would come to Grinage in person, the agent testified they were confirming to meet in person at the end of the call. The third call occurred about 12 minutes later; in it Osman indicates he dialed the wrong number and did not mean to call Grinage.

On cross-examination, the agent adhered to his interpretations, while acknowledging them to be "subjective." The agent also told the jury that his interpretations were "based on my knowledge of the entire investigation." In response to a question whether he assumed that Osman's conversation with Grinage was about drugs because of his knowledge regarding Grinage's activities, the agent said "yes," even though he had no personal knowledge at that time that Osman was a drug dealer. The agent also believed that Osman was with another person who wanted to buy drugs based upon the "totality of the investigation," and, he said, that conclusion was "consistent with other observations I made about other drug purchases that occurred during this investigation." He agreed that he had not made any observations of Osman.

Also in evidence were telephone records establishing that numerous additional, but unrecorded, telephone calls were made from telephones associated with Osman to Grinage over the period January to August 2001, within the dates of the charged conspiracy, and that, upon his arrest, Osman denied knowing Grinage. Finally, the plea allocutions of co-defendants Grinage, Cannon, Michael Garvin and Edgar Arroyo were admitted into evidence with appropriate limiting instructions that they were to be used only to establish the conspiracy and what the individuals themselves, and not Osman, had done. However, the taped conversations, other than Osman's, which the Government played to the jury were those between Grinage and Elaine Reneau, Cannon, Garvin and Arroyo, and it was the conversations of those individuals, who, the Government emphasized, had pled guilty to conspiracy, which the Government compared to the conversations of Osman. The Government also argued that Osman must have known he was dealing with drug dealers because both Cannon and Grinage had admitted that they were.

DISCUSSION

I. Standard of Review

On appeal, Osman contends that the district court erroneously admitted Agent Seeley-Hacker's testimony and that the error was not harmless. We review a district court's decision to admit evidence for abuse of discretion. United States v. Garcia, 291 F.3d 127, 139-40 (2d Cir.2002).

II. Lay Opinion Testimony

Rule 701 of the Federal Rules of Evidence provides that, where a witness is not testifying as an expert, "the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, [and] (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in...