U.S. v. Miller, 81-5395

• Decision Date: 21 December 1981
• Docket Number: No. 81-5395,81-5395
• Citation: 664 F.2d 826
• Parties: 9 Fed. R. Evid. Serv. 985 UNITED STATES of America, Plaintiff-Appellee, v. William Ray MILLER, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 826

664 F.2d 826

9 Fed. R. Evid. Serv. 985

UNITED STATES of America, Plaintiff-Appellee, v. William Ray MILLER, Defendant-Appellant.

No. 81-5395

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Dec. 21, 1981.

Dean & Hartman, Denis Dean, Miami, Fla., for defendant-appellant.

Kenneth W. Lipman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant William Ray Miller stands convicted of conspiring to transfer unregistered automatic firearms in violation of 18 U.S.C.A. § 371, possessing unregistered automatic firearms in violation of 26 U.S.C.A. §§ 5861(d) and 5871, and possessing and transferring automatic firearms with obliterated serial numbers in violation of 26 U.S.C.A. §§ 5861(h) and 5871.

Miller's first contention on appeal centers on the trial court's decision under authority of Fed.R.Evid. 801(d)(2)(E), ¹ to allow into evidence against Miller the statements of an alleged coconspirator of Miller during the course of and in furtherance of the conspiracy. When the government at trial sought to introduce the statements into evidence, Miller objected, asserting that the government had not shown that a conspiracy existed. Without substantial evidence, independent of the statement to be introduced, that a conspiracy existed to which Miller belonged, Fed.R.Evid. 801(d)(2)(E) would be inapplicable and the statement inadmissible. United States v. James, 590 F.2d 575, 580-81 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). ²

After excusing the jury, the court heard the parties' arguments concerning Miller's objection. The government, as evidence of a conspiracy, pointed to a recording of a telephone conversation between Miller and the coconspirator that the judge had heard earlier on a motion in limine. ³ It also proffered evidence that a government agent would testify that he had received guns from the coconspirator and that the coconspirator would testify that he had received the guns from Miller. Subject to the production of the proffered testimony, the judge ruled that the requirements of James were met.

Miller charges that the trial court erred in failing to hold an independent hearing to consider the testimony concerning the existence of a conspiracy. James, Miller asserts, requires such a hearing. We disagree.

In James the former Fifth Circuit did consider the manner in which proof should be presented at trial. That court observed that some courts have allowed the jury to hear statements by alleged coconspirators on the prosecution's promise later to "connect up" the statements to a conspiracy and noted that a defendant incurred no prejudice if the prosecution actually did later connect up the evidence. However, the court feared the danger of prejudice to a defendant if the prosecution did not later connect up the evidence, prejudice that a jury instruction to ignore the erroneously-admitted evidence might not eliminate, and it desired to avoid "the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to obviate (the) danger" of prejudice. 590 F.2d at 582. The court therefore suggested a preferred order of proof that would entail a showing that a conspiracy existed and that the defendant was connected to the conspiracy before admitting declarations of a coconspirator.

We note, however, though the former Fifth Circuit has on occasion suggested otherwise, see United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980), that the court did not in James require district courts to follow its preferred order of proof. The former Fifth Circuit explicitly stated that "(i)f it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to it being connected up." 590 F.2d at 582. In subsequent cases the former Fifth Circuit has continued to emphasize that James established no inflexible rule that a hearing must be held. The hearing is a mere tool that we believe generally will, most efficiently and with least chance of prejudice to the defendant, assist the judge in his ultimate determination of whether defendant was involved in a conspiracy. A judge may mold to the circumstances of each case the procedures for showing that a conspiracy existed if he finds a hearing not reasonably practical. With this in mind, the court concluded in United States v. Ricks, 639 F.2d 1305 (5th Cir. 1981), after discussing the various ways in which a court might hold a hearing, that "(w)hatever be the form of a hearing, its use is merely to inform the trial court" as to whether James standards for use of a coconspirator's statements had been met. Id. at 1309. With regard to the need to hold any hearing at all, the court noted that, though

(t)here is manifestly, greater danger of error without such information being gathered before trial commences, ... this sort of procedure is not mandated. If the risk is run and yet, at the end of the trial, the trial judge finds, upon appropriate motion, that a preponderance of the evidence proves the predicate facts, no error has occurred in the admission of the coconspirator statements.

Id. at 1310. Similarly, in United States v. Ocanas, 628 F.2d 353, 359-60 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1980), the court directly held that a trial court made no reversible error in failing to hold a James hearing on the admissibility of the statements of coconspirators. If the judge decides a hearing is not reasonably practical, it...