U.S. v. Kane, s. 82-2971

• Citation: 726 F.2d 344
• Decision Date: 27 January 1984
• Docket Number: Nos. 82-2971,83-1970,s. 82-2971
• Parties: 14 Fed. R. Evid. Serv. 1506 UNITED STATES of America, Plaintiff-Appellee, v. Raymond KANE and Robert A. Scott, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 344

726 F.2d 344

14 Fed. R. Evid. Serv. 1506

UNITED STATES of America, Plaintiff-Appellee, v. Raymond KANE and Robert A. Scott, Defendants-Appellants.

Nos. 82-2971, 83-1970.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 17, 1983.

Decided Jan. 27, 1984.

Frank C. Furci, Miami, Fla., for defendants-appellants.

James Schweitzer, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

This story of narcotics peddling involves defendants traveling between Canada and the United States who are a little more sophisticated than defendants in the ordinary local narcotics case, but the issues are not. Defendant Kane questions the admission of evidence relating to his character and prior crimes, and the admission of certain prior statements he made to an undercover agent without his counsel being present. Defendant Scott questions the sufficiency of the evidence and joins in Kane's objection to the same evidence of Kane's prior statements to an undercover agent because of its impact on his own defense. ¹ We affirm.

Kane and Scott, along with Robert Kellar and Gerard Madden, were charged on April 19, 1982 in a two count indictment with conspiring to possess with intent to distribute cocaine and to distribute cocaine in violation of 21 U.S.C. Sec. 846 (Count I), and with distributing and causing to be distributed approximately one kilogram of cocaine in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (Count II). Kellar and Madden pleaded guilty and are not involved in this appeal. A jury found Kane and Scott guilty on both counts. ²

I. The Facts

Since sufficiency of the evidence is questioned, we summarize the facts in some detail. The story began in January 1982 in Toronto, Canada when Kellar inquired of Constable MacAulay, an undercover drug investigator for the Royal Canadian Mounted Police, whether he was interested in obtaining some "coke." The constable responded that he was, if it was of good quality. Kellar suggested that the constable meet with "the people." "The people," Kellar said, were not interested in an initial test sale of a few ounces, but would deal only in "keys," or 2.2 pounds of substance. Several weeks later the constable met Kellar again. Kellar advised the constable that his source was located near Chicago's O'Hare Airport. The minimum quantity "the people" would bother with was one pound for $40,000. Later, in a series of meetings and calls, the constable and Kellar worked out the details for a meeting to complete the transaction in March in two Chicago hotels. There was also a third hotel involved, but it was used only by undercover agents.

Upon his arrival in Chicago, the constable met with federal Drug Enforcement Administration (DEA) agents at the O'Hare Hilton Hotel to plan the snare. One agent assumed the role of a courier for the narcotics, and another the role of a moneyman. They left the O'Hare Hilton with the constable for the defendants' hotels. Upon arrival, the constable contacted Kellar, who informed him that he had been unable to contact his man, but agreed to go look for him since the constable was ready to do business.

DEA agents followed Kellar from the hotel to a residence. Kellar eventually emerged from that residence with Scott, and the two of them drove off. They stopped at two restaurants and then returned to one of their hotels. Kellar got out, and Scott drove alone to a store, came out with a grocery bag, and drove away.

Meanwhile, back at their hotel, Kellar gave the constable the news that he had met with his people and that "all is well." Kellar and the constable then left for the second of the defendants' hotels, where they met with the "moneyman" and the "courier" to check the money. Then it was back to the other hotel again for the constable and Kellar, accompanied by the courier. There in the parking lot Scott reappears, and Kane, wearing a white trench coat, appears on the scene for the first time. Kane removed a gym bag from the trunk of the car in which he had arrived, entered the hotel, and registered under an alias using a false address from Atlanta, Georgia. Kane lived in Miami, Florida.

In the hotel, Scott and Madden met Kellar in his room and then went down to the hotel lobby. All the defendants, Kane Madden, Kellar, and Scott, met and conversed for a few minutes in the lobby. When that meeting broke up, Kellar and Scott went to the room occupied by the constable and the courier to work out further transaction details. Kellar and Scott told the constable the "stuff" was already in the hotel. A little later, Kane, Madden, Kellar, and Scott gathered together again in one of the hotel rooms. In a few minutes, Kane, Madden, and Scott stepped into the hall. Kane was still wearing his white trench coat, which he demonstrated was not one you could ordinarily find at a local shopping center, as there were numerous special pockets sewn into the inside lining. Kane traded coats with Madden. Madden went alone in his borrowed coat to the other hotel and began to count the cash, $80,000, with the moneyman.

Kellar and Scott, who had remained, were just outside the door, but Scott left and returned carrying an ice bucket. He entered the room, dumped out the ice and produced the cocaine. It was tested for quality. The constable said he was satisfied and would advise the moneyman at the other hotel, where Madden had gone, to pay the price. Other agents then entered the room and arrested Scott and Kellar. A short time later, back at the other hotel, Madden stuffed the $80,000 in the numerous inside pockets of the white trench coat. In showing off the coat to the constable, Kane explained that they were all professionals and would be happy to do business with them in the future. Perhaps Madden has now changed his mind about that. He was promptly arrested by a different type of professional waiting just outside the room. The money was retrieved from the many pockets. Meanwhile, Kane had returned to the lobby of the other hotel where he was the last to be arrested. All four defendants were then transported to the federal building and the three-hotel narcotics escapade came to a close.

The defendants were given the Miranda warnings and processed. Kane was put in a holding room. Agent Sack went to the holding room after Kane indicated he wanted to call his wife. The agent asked Kane how he was doing. Kane's response was: "By now you have checked me out and you know I am pretty big." Kane went on to say that he had been in business for a long time and was now concerned about the safety of himself and his family. In addition, he discussed his connections with Colombians and Cubans, which arose because as a mechanic he repaired their boats. For the most part, Kane was telling the agent nothing new. Evidence was offered at trial by another undercover agent who testified that in a 1980 conversation with Kane in Miami, Florida, Kane had talked about his cocaine business and his ability to supply large quantities. The admission of both conversations is disputed in this appeal.

II. Kane's Issues

A. Kane's first objection is to the admission of his 1980 conversation with the undercover agent in Florida. He argues that the conversation was used to show his cocaine dealing past and to attack his character in violation of Rule 404(a), Fed.R.Evid. Rule 404(a), with certain exceptions not applicable here, prohibits the admission of evidence of a person's character or a trait of character for the purpose of proving that the person acted in conformity therewith on a particular occasion. Kane also argues that the admission of the Miami evidence was contrary to Rule 403, Fed.R.Evid., which excludes evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

The government supports the admission of the evidence as other crimes evidence admissible under Rule 404(b), ³ claiming that it satisfies the test applied in this circuit. The government and Kane have no substantial disagreement about what that test is. Kane cites United States v. Adderly, 529 F.2d 1178, 1180 (5th Cir.1976), which generally tracks the rule applied in this circuit. Other crimes evidence is admissible if: (1) the prior act is similar enough and close enough in time to be relevant, (2) the evidence is clear and convincing, (3) the probative value of the evidence outweighs its risk of prejudice, and (4) the evidence is needed to prove an essential element of the charged offense. United States v. Wormick, 709 F.2d 454 (7th Cir.1983).

The possible relevance of a prior narcotics conviction to show knowledge and intent in a subsequent narcotics case involving the same defendant cannot be disputed, see United States v. Juarez, 561 F.2d 65, 73 (7th Cir.1977), nor can the similarity of the acts. Nor can the nineteen months difference in time between Kane's original Miami conduct and the crime charged here render the Miami evidence too remote in time to be relevant. This court has held that five years between the prior acts and the indictment need not disqualify the evidence as being too stale. United States v. Zeidman, 540 F.2d 314, 319 (7th Cir.1976). The principal concern is in the balancing of the probative value of the evidence with its prejudice to the defendant.

Kane's knowledge and intent to commit the charged offenses were critical issues, and disputed by Kane. The government needed the disputed evidence to prove Kane's knowledge and intent. Other crimes evidence need not be the only evidence the government has on a contested issue in order for the evidence to be admissible. When weighed with other available evidence, if the evidence is reasonably necessary to meet the government's burden of proof beyond a reasonable doubt, then the evidence meets the fourth part of the admissibility test. United States v....