U.S. v. Jackson, 84-5156

• Citation: 757 F.2d 1486
• Decision Date: 21 March 1985
• Docket Number: No. 84-5156,84-5156
• Parties: 17 Fed. R. Evid. Serv. 1406 UNITED STATES of America, Appellee, v. Gary JACKSON, a/k/a "Roe", Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1486

757 F.2d 1486

17 Fed. R. Evid. Serv. 1406

UNITED STATES of America, Appellee, v. Gary JACKSON, a/k/a "Roe", Appellant.

No. 84-5156.

United States Court of Appeals Fourth Circuit.

Argued Dec. 3, 1984.

Decided March 21, 1985.

Ronnie M. Mitchell, Fayetteville, N.C. (Christopher B. Godwin; Harris, Sweeny & Mitchell, Fayetteville, N.C., on brief), for appellant.

Francis J. Martin, Dept. of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., on brief), for appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

Gary Jackson appeals from his convictions in the United States District Court for the Eastern District of North Carolina of conspiracy to illegally possess drugs with intent to distribute and to unlawfully acquire and possess food coupons, 18 U.S.C. Sec. 371; various drug and illegal food stamp offenses, 7 U.S.C. Sec. 2024(b), 21 U.S.C. Sec. 841(a)(1); and use of a telephone in the scheme, 21 U.S.C. Secs. 843(b) and (c). Finding no prejudicial error, we affirm.

I

On the conspiracy count the government offered proof that Jackson participated in the conspiracy with Preston Jackson, Gary's nephew, and Michael Thompson, another relative, from April 7, 1983, until November 29, 1983. The district court admitted into evidence out of court statements implicating Jackson made by Preston Jackson and Thompson to government agents prior to April 7 concerning drug, gun and food stamp deals arranged by the undercover agents. The government also presented a taped phone conversation between agents and Gary Jackson arranging a deal for April 7, evidence that Preston Jackson and Thompson consummated deals outside Gary Jackson's house and evidence that Gary Jackson backed out of an arranged deal on April 1. The government did not establish face to face dealings between Gary Jackson and undercover agents.

Jackson first argues for reversal because the district court followed inadequate procedures in admitting the out of court statements of Preston Jackson and Thompson made to government agents under Fed.R.Evid. 801(d)(2)(E), which makes co-conspirator's statements during the course of and in furtherance of the conspiracy non-hearsay that is admissible against the defendant conspirator. Jackson contends that the court must conduct an on the record, away from the jury hearing to determine whether the government presented sufficient independent evidence of the conspiracy before invoking the co-conspirator statement rule. Jackson also argues that the trial judge erred in not making an explicit ruling that sufficient independent evidence exists and in not submitting the admissibility issue to the jury.

Jackson is correct that the court may admit co-conspirator's out of court statements under Rule 801(d)(2)(E) only if the government presents substantial independent non-hearsay evidence of the conspiracy and Jackson's connection to it. United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir.1976). However, as we have recently held, the trial court need not hold an on the record, away from the jury hearing to determine the admissibility question. United States v. Hines, 717 F.2d 1481, 1488 (4th Cir.1983). Moreover, the trial judge need not make an explicit ruling that sufficient independent evidence of the conspiracy exists before admitting the hearsay. Instead, the court may admit the hearsay and later declare a mistrial, or, when appropriate, exclude the hearsay and give a limiting instruction, if the government fails to connect up with independent evidence. See Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968); Hines, 717 F.2d at 1488. Finally, this court has rejected Jackson's argument that the jury should make the admissibility determination. Id. Hence, Jackson's allegations of error in the procedure followed by the district court to invoke Rule 801(d)(2)(E) have no merit.

II

Jackson next argues that the district court erred in admitting out of court statements of co-conspirators made in March because the indictment charges him with conspiracy beginning on April 7. Hearsay statements are admissible under Rule 801(d)(2)(E) even if no formal charge of conspiracy exists so long as the government establishes independent evidence of the conspiracy. United States v. Jones, 542 F.2d 186, 202 n. 31 (4th Cir.1976). In addition, upon joining the conspiracy, earlier statements made by co-conspirators after inception of the conspiracy become admissible against the defendant. United States v. LeRoux, 738 F.2d 943, 949-50 (8th Cir.1984). The evidence of consummation of deals outside Jackson's house in the middle of March and the deal arranged between Jackson and agents at the end of March constitute substantial independent evidence that fulfills the government's preponderance burden of proving the conspiracy's existence in March and Jackson's connection to it at that time. Hence, the trial court properly admitted the co-conspirator's statements made in March under Rule 801(d)(2)(E) even though the indictment did not charge Jackson with conspiracy during March. Moreover, even if the evidence did not show Jackson's connection to the conspiracy in March, the taped phone call arranging the April 7 deal constitutes ample independent evidence that Jackson joined the conspiracy in early April making the earlier statements of co-conspirators admissible against him.

Jackson further argues that the district court failed to provide adequate limiting instructions to the jury to limit their consideration of the out of court statements. The district court instructed the jury that where the statements established acts of Jackson occurring prior to the acts for which he was charged, the jury must limit the use of the evidence to issues of intent. The instruction is consistent with Fed.R.Evid. 404(b), and Jackson was not entitled to further instructions limiting the use of the properly admitted statements.

III

Jackson next alleges that the trial court erred in denying his motion for a bill of particulars to obtain the names of persons that the government alleged to be in the conspiracy and his motion in limine to exclude hearsay statements of persons not specifically charged as, or alleged to be co-conspirators. Although grant of a bill of particulars lies in the discretion of the trial court, the defendant may show abuse of discretion in denying the motion by proving unfair surprise. See Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927). Jackson alleges unfair surprise in that the court admitted hearsay statements of Preston Jackson even though Jackson lacked notice that the statements would be used. Jackson's claim of surprise is not believable in view of the fact that Preston, a near kinsman and undisputed compatriot of Jackson's, had recently been convicted on federal charges arising out of the same transactions leading to Gary Jackson's convictions. Moreover, Jackson makes no showing that any surprise that occurred prejudiced him. Hence, we find no abuse of discretion in denial of the motion for the bill of particulars. Jackson was not entitled to exclusion of out of court statements of co-conspirators not specifically charged as or alleged to be co-conspirators because Rule 801(d)(2)(E) does not require that formal charges of conspiracy exist. See Jones, 542 F.2d at 202 n. 31. Hence, the trial court properly denied Jackson's motion in limine.

IV

Jackson next argues that the government violated Fed.R.Crim.P. 16(a)(1)(A) in failing to disclose after a request for discovery statements of co-conspirators that contained statements that he made and statements that incriminated him. By its terms, Rule 16(a)(1)(A) requires the government to disclose oral statements of the defendant to be introduced at trial only if the defendant made the statement to a government agent during interrogation. See United States v. Percevault, 490 F.2d 126, 131 (2d Cir.1974). Moreover, Rule 16(a)(1)(A) in no way encompasses statements of co-conspirators simply because the statement implicates the defendant, and 18 U.S.C. Sec. 3500(a) expressly makes statements of witnesses including co-conspirators, not discoverable if the witness is a prospective government witness. See id. Nevertheless, courts have found that statements of co-conspirators must be disclosed if the government does not intend to call the co-conspirator as a witness. See United States v. Konefal, 566 F.Supp. 698, 705-07 (N.D.N.Y.1983) (cases in accord cited therein).

We agree with the reasoning of the court in Konefal that the defendant is entitled to disclosure of statements of co-conspirators if the co-conspirator is not a prospective government witness and disclosure does not unnecessarily reveal sensitive information. See 566 F.Supp. at 706-07. Rule 801(d)(2)(E) permits the government to introduce the statements of a co-conspirator against the defendant as if they were his own, and protection against unfair surprise justifies a disclosure requirement. Although Rule 801(d)(2)(E) makes the co-conspirator's statements non-hearsay, the out of court statements nonetheless lack the indicia of reliability that attaches to testimony given in the solemn atmosphere of a court by a witness subject to cross examination. By giving the defendant notice of the statements, he may properly investigate their origin and if grounds exist, attempt to discredit the statements.

Moreover, the policies behind 18 U.S.C. Sec. 3500(a), which limits discovery of statements, are not applicable because there is a lesser risk of intimidation of the witness or efforts to suborn perjury when the hearsay declarant is not a prospective witness. See Percevault, 490 F.2d at 131 (discussing policies behind the Jencks Act). The policy of protecting witnesses who agree to aid the government from intimidation is but tenuously implicated, and even if disclosure led...