U.S. v. Lewis

• Decision Date: 12 March 1993
• Docket Number: Nos. 92-1367,92-2117 and 92-1521,s. 92-1367
• Citation: 987 F.2d 1349
• Parties: 38 Fed. R. Evid. Serv. 434 UNITED STATES of America, Appellee, v. Gerald E. LEWIS, Appellant. UNITED STATES of America, Appellant, v. Gerald E. LEWIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1349

987 F.2d 1349

38 Fed. R. Evid. Serv. 434

UNITED STATES of America, Appellee, v. Gerald E. LEWIS, Appellant.

UNITED STATES of America, Appellant, v. Gerald E. LEWIS, Appellee.

Nos. 92-1367, 92-2117 and 92-1521.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1992.

Decided March 12, 1993.

Mark C. Meyer, Cedar Rapids, IA, argued, for appellant.

Kandice A. Wilcox, Asst. U.S. Atty., Cedar Rapids, IA, argued, for appellee.

Before FAGG and BOWMAN, Circuit Judges, and LARSON, ^* Senior District Judge.

BOWMAN, Circuit Judge.

Gerald E. Lewis appeals from his conviction for conspiring to distribute cocaine in violation of 21 U.S.C. § 846 (1988), and from the 292-month sentence imposed on him by the District Court. ¹ Lewis also appeals from the order entered by the District Court ordering the forfeiture under 21 U.S.C. § 853 (1988) of a 1990 Chevrolet S-10 Blazer and of a Panasonic cellular telephone that belonged to him, and from the District Court's refusal to order the government to return his Royal Coachman travel trailer to him in the same condition it was in when seized. The United States cross-appeals from the District Court's decision not to include certain conduct as relevant conduct in calculating Lewis's offense level. For the reasons set forth below, we affirm the judgment of the District Court.

I.

In February 1990, Royce Moore, who was cooperating with law enforcement personnel in their investigation of narcotics activity, informed Greg Brugman, a special agent with the Division of Narcotics Enforcement that he believed that he could purchase a large quantity of cocaine from Lewis. At Brugman's behest, Moore spoke with Lewis several times regarding such a transaction, and in May 1990 introduced Brugman, who was acting in an undercover capacity, to Lewis. Brugman played the role of the money man for the purchase of the cocaine.

Between May and August 1990, Moore and Brugman had numerous meetings and phone calls with Lewis. Many of these conversations were recorded. In the course of the discussions, Lewis indicated that his source for cocaine was a friend, Carlos, in Florida. Lewis telephoned Carlos at least once in the presence of Moore and Brugman, obtaining a price quote of $24,000 per kilogram of cocaine. Lewis subsequently reported that Carlos was having trouble coming up with five kilograms of cocaine, and, once this problem was resolved, reported that the price was going to be $26,000 per kilogram. It was arranged that Lewis, Moore, and Brugman would fly to Florida, where Lewis would introduce Brugman to Carlos, and where Brugman would purchase five kilograms of cocaine from Carlos. Lewis was to be paid $10,000 by Brugman for Lewis's role in arranging the transaction. On the morning of August 25, 1990, Lewis, Moore, and Brugman met at the airport in Cedar Rapids to fly to Florida. There Lewis was arrested.

Lewis subsequently was charged under a two-count indictment. One count of the indictment charged Lewis with conspiring between 1981 and 1990 to distribute cocaine in violation of 21 U.S.C. § 846 (1988). The other count charged that Lewis used or intended to use his Chevrolet S-10 Blazer, his Royal Coachman travel trailer, and his Panasonic cellular telephone to facilitate the commission of the offense, and sought the forfeiture of these items under 21 U.S.C. § 853 (1988).

At trial, Lewis, a licensed pilot, admitted that in 1982 he had flown a planeload of marijuana into the country from Jamaica. Lewis testified that he had been hired to do this by a man named Fernando Martinez, that he was to have been paid in cash, that he had received a pound of cocaine as security for the payment due him, and that when payment was not forthcoming he had sold the cocaine. Lewis also admitted that in 1984 he had delivered a pound of cocaine from Carlos to a purchaser in Texas. Lewis testified that he had received only gas money for the trip and that his principal motivation behind the trip was to visit Iowa.

The government introduced evidence that Lewis's involvement with drugs prior to 1990 was much greater than Lewis admitted. Recordings of Lewis's discussions with Brugman and Moore included statements by Lewis that he had carried money in bulk on airplanes numerous times; Brugman testified that Lewis had told him that Lewis had driven three kilograms of cocaine from Florida to Iowa in a pickup truck; two individuals cooperating with the government testified that in the early 1980's Lewis had told them that he had flown cocaine into the country; and a third individual cooperating with the government testified that Lewis had sold him a couple of ounces of cocaine in 1985.

The main thrust of Lewis's defense at trial was that he had withdrawn from any conspiracy after 1984, and that prosecution for the drug activities he admitted to having undertaken in the early 1980's was barred by the statute of limitations. Lewis testified that his purpose in dealing with Brugman and Moore was not to arrange a cocaine transaction, but rather to lure them to Florida where he would have turned them in to the Drug Enforcement Agency (DEA) for a sizeable reward. Lewis claimed that any statements that he had made to Moore and Brugman that were inconsistent with the amount of prior narcotics activity he admitted at trial were "puffing" designed to make Moore and Brugman think that he was an experienced drug dealer. Lewis testified that his job was merely to get Moore and Brugman to Florida, and that Carlos was in charge of contacting authorities.

Government agents, however, testified to a number of inconsistencies in statements Lewis had made at the time of his arrest regarding his supposed plan to turn Moore and Brugman in to the DEA. Sergeant Beckman testified that when Lewis was taken into custody, Lewis stated that he had been planning to turn Moore and Brugman in to a DEA agent whom Lewis knew in Florida. Sergeant Beckman and Agent Lamere testified that, after Lewis had been taken to the Federal Building, Lewis volunteered that what he and Carlos were really planning to do was to rob Brugman of the money Brugman was taking to Florida. Lewis denied making such inconsistent statements.

The jury found Lewis guilty of conspiring to distribute cocaine and found that the S-10 Blazer and the cellular telephone should be forfeited, but found that the government had not met its burden of proof with regard to forfeiture of Lewis's trailer. The District Court entered judgment upon the jury's verdict, sentencing Lewis to a term of imprisonment of 292 months and ordering the forfeiture of Lewis's S-10 Blazer and of his cellular telephone.

II.

Lewis first argues that the trial court erred in excluding testimony from Lori Shaner, who was dating Lewis, that Lewis had told her in advance of August 25, 1990 that his purpose in traveling to Florida was to turn Moore and Brugman in to the DEA. Lewis argues that Shaner's testimony should have been admitted under Federal Rule of Evidence 801(d)(1)(B), which provides that a prior statement by a declarant who testifies at trial may be admitted if the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication."

The government counters that, since Lewis had already testified regarding his prior statement to Shaner, the testimony was properly excluded under United States v. Dennis, 625 F.2d 782, 797-98 (8th Cir.1980). In that case, the defendant introduced prior consistent statements made by a witness during his grand jury testimony that supported the witness's trial testimony. The government then impeached the witness using prior inconsistent statements. The defendant sought to reintroduce the same prior consistent statements that he already had introduced in order to rehabilitate the witness. We affirmed the trial court's exclusion of this evidence.

We agree with Lewis that Shaner's testimony should have been admitted as a prior consistent statement under Rule 801(d)(1)(B). Dennis is inapposite because in that case the prior consistent statements, which already had been read into evidence, were made before the grand jury as part of a recorded legal proceeding. Thus, there was no issue as to whether or not the statements had actually been made. Rereading the statements from the same grand jury transcripts, and obtaining once more the witness's acknowledgement that he had made the statements would have been "mere repetition," id. at 797, with "no probative value," id. at 798.

The case before us is much more like United States v. Parry, 649 F.2d 292, 295-96 (5th Cir.1981). There, a defendant claimed that, at the time he conducted drug transactions, he believed that he was working for DEA agents. The defendant testified at trial that he had made a contemporaneous statement to his mother to this effect, and also sought to introduce his mother's testimony that he had made the prior consistent statement. The trial court excluded the mother's testimony. The Fifth Circuit reversed Parry's conviction based on the exclusion of the mother's testimony. Id. at 296 (stating that rather than being "merely cumulative, the excluded testimony was the only available evidence that could corroborate Parry's story that he had known of the agents' identities"); see also United States v. Gonzalez, 700 F.2d 196, 202 (5th Cir.1983) (suggesting that it is more prejudicial to exclude a witness's testimony that defendant made a prior consistent statement if the defendant already has testified that he made such a statement, since the jury is left to wonder why the witness will not corroborate the defendant's testimony).

Shaner's testimony that Lewis had made the statement to her would have tended to corroborate Lewis's testimony that he had made the statement and would have lent some measure of support to Lewis's defense. It should have been admitted into evidence. Nevertheless, although...