U.S. v. Nicoll, 80-7363

• Decision Date: 07 January 1982
• Docket Number: No. 80-7363,80-7363
• Parties: 9 Fed. R. Evid. Serv. 1117 UNITED STATES of America, Plaintiff-Appellee, v. Jim NICOLL, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1308

664 F.2d 1308

9 Fed. R. Evid. Serv. 1117

UNITED STATES of America, Plaintiff-Appellee, v. Jim NICOLL, Defendant-Appellant.

No. 80-7363.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Jan. 7, 1982.

Mary Parker, Nashville, Tenn., for defendant-appellant.

Janet King, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, KRAVITCH and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellant Jim Nicoll was convicted by a jury of conspiracy to possess and distribute a controlled substance in violation of 21 U.S.C. § 846. On appeal he contends: 1) that venue was improper, 2) that the trial court erred in admitting statements of a co-conspirator, 3) that the evidence was insufficient to sustain his conviction, 4) that he was entrapped as a matter of law, and 5) that his withdrawal from the conspiracy prohibited his conviction. We reject these contentions and affirm the conviction.

I. Background

On August 2, 1978, Frank Ader contacted the Atlanta Drug Enforcement Agency (DEA) with information concerning drug transactions in the Atlanta area. Ader implicated one James Henry in a conspiracy to acquire and distribute cocaine, and at the urging of DEA special agent Melvin Smith, Ader contacted Henry about possible cocaine deals. In a series of telephone conversations, Henry indicated interest in purchasing large quantities of cocaine for buyers in Dallas, Texas and elsewhere. Ader and Henry agreed to meet in an Atlanta restaurant to work out the details of the transaction.

On August 6, Ader and DEA agent Tyrone Yarn met Henry as agreed, and Henry inquired if Yarn's "organization" could deliver ten kilograms of cocaine per week. Toward the end of the meeting, Henry told Ader to call Jim Nicoll in Dallas to make final arrangements for the cocaine delivery, and wrote Nicoll's home and business telephone numbers on the back of a business card. ¹ Henry agreed to call Nicoll and tell him to expect Ader's call.

The following day, DEA agent Smith called Nicoll at the business number supplied by Henry. Smith introduced himself as an "associate" of Ader's, and Nicoll acknowledged that Henry had contacted him to tell him to expect Ader's call. Smith and Nicoll then launched into a lengthy discussion on the details of the cocaine transaction. Nicoll insisted on a sample, which the DEA could not provide. Nevertheless, Smith and Nicoll had several other phone conversations between August and September in an attempt to work out the deal. The negotiations culminated in a meeting among Nicoll, Kathy Seeka (introduced as friend who knew a lot about cocaine), Smith, and DEA agent Gloria Woods, but the proposed deal fell through because of Smith's refusal to provide a sample. Smith had further conversations with Nicoll and Seeka attempting to salvage the deal, but finally on December 18 Nicoll backed out, stating the negotiations were taking too much of his time.

Subsequently, Nicoll, Seeka, and Henry were indicted on drug conspiracy charges. Henry moved for dismissal on double jeopardy grounds, and his trial was severed. Seeka managed to avoid arrest and was still at large at the time of Nicoll's trial. Nicoll was tried twice: the first prosecution ended in a mistrial; the second resulted in his conviction.

II. Venue

Appellant asserts that venue in the Northern District of Georgia is improper and therefore the conviction must be reversed. According to appellant, the only overt acts occurring in the Northern District involved Henry; if Henry is acquitted in his separate trial, ² no overt act of the conspiracy will have occurred in the district, thus making venue improper.

We find this argument without merit. For a crime such as conspiracy, which by its nature can be "committed" in a number of places, United States v. Cooper, 606 F.2d 96, 97 (5th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980), venue is proper in any district in which the government shows by a proponderance of the evidence that either the agreement or an overt act occurred. United States v. DeLeon, 641 F.2d 330, 336 (5th Cir. 1981). See 18 U.S.C. § 3237 (regulating venue for offenses begun in one district and completed in another.) Here the government's evidence showed that co-conspirator Henry engaged in several telephone conversations within the Northern District of Georgia concerning the acquisition of cocaine, and met with DEA agents in an Atlanta restaurant to work out the details of the delivery. The possible acquittal of Henry at some future date would reflect only on his personal guilt beyond a reasonable doubt and not on whether the government proved, by a preponderance, that an overt act of the conspiracy occurred in the Northern District.

III. Co-Conspirator's Statements

Appellant asserts that the trial court erred in admitting certain statements by Henry tending to implicate Nicoll in the cocaine conspiracy. Appellant argues that the trial court should have held a "James hearing" prior to admitting the hearsay statement, and that the government failed to show by a preponderance of the independent evidence that Henry and Nicoll were involved in the same conspiracy. Appellant also argues that even if the government laid the proper predicate for admissibility under the co-conspirator's hearsay exception, one tape of a conversation between Henry and the DEA is inadmissible because of a gap in the conversation.

We reject appellant's arguments. In United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), the court delineated the standards applicable to the admission of co-conspirator's statements under Fed.R.Evid. 104(b) and 801(d)(2)(E). To admit the statements initially, the trial court must find by substantial independent evidence that a conspiracy existed, that the statements were made in furtherance of the conspiracy, and that the declarant and defendant were members of the conspiracy. Id. at 580-81. Upon proper motion at the close of all the evidence, the trial court must review the evidence and conclude that the government has shown the three predicates to admission by a preponderance. Id. at 582-83. See United States v. Gray, 659 F.2d 1296, 1301 (5th Cir. 1981).

In James, the court indicated that the preferred order of proof was for the government to establish the conspiracy and the connection of the defendant and declarant with it prior to offering the statements as evidence. James, supra, at 582. This statement led many trial judges to conduct a "James hearing" outside the presence of the jury to develop the conspiracy evidence before admitting any co-conspirators' statements. We have never mandated such a hearing, however, and in fact the James court noted that the order of proof was discretionary with the trial judge. Id. Our only concern in these cases was that the trial judge become familiar with the evidence of the conspiracy prior to admitting the co-conspirators' statements, and therefore avoid a wasteful mistrial in the event inadequate evidence was produced. See United States v. Ricks, 639 F.2d 1305, 1309 (5th Cir. 1981). Here the trial judge had already heard the government's evidence in the prior prosecution of Nicoll that ended in a mistrial. We agree with the trial court that under the circumstances a "James hearing" would have wasted the court's time.

Nor do we find that the government failed adequately to prove the predicate elements for the admission of Henry's statements. Appellant contends that the evidence aside from the statements is insufficient to connect Nicoll and Henry in a cocaine conspiracy. The independent evidence, however, included several phone calls between Nicoll and DEA agents that implicated Henry in the conspiracy. In the first phone call between DEA agent Smith and Nicoll, Nicoll acknowledged that Henry had called to tell him to expect such a call. Nicoll then launched into a long discussion with Smith about the details of the cocaine deal, leaving the inexorable inference that Henry's call had informed him of the pending cocaine transaction. ³ Henry's name reappeared in that conversation and subsequent conversations in the context of Henry being a conduit for negotiations about the deal. ⁴ Although Henry and Nicoll were associates in an unrelated legitimate business, and mere association with a person involved in a conspiracy is insufficient to prove participation in the conspiracy, United States v. Horton, 646 F.2d 181, 185 (5th Cir. 1981), the telephone conversations between Smith and Nicoll indicated that more than simply a business relationship existed between Nicoll and Henry; we conclude that these conversations provided proof by a preponderance that a conspiracy existed and Nicoll and Henry were connected with it. See Horton, supra, at 184-85 (orders by one conspirator for a third party to pay large amounts of cash to a second conspirator permitted inferring agreement to defraud Federal Government and provided basis for admitting co-conspirator's statements); United States v. Atkins, 618 F.2d 366, 368-70 (5th Cir. 1980) (taped conversations between defendant and co-conspirator, though using "veiled language and Delphic references" provided adequate basis for admission of co-conspirator's statements).

Finally, we do not agree that the trial court abused its discretion in admitting a tape of a conversation between Henry and the DEA despite a short gap in the tape. In United States v. Greenfield, 574 F.2d 305 (5th Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), the court held that tapes that contained inaudible portions were nevertheless admissible unless the inaudible portions were "so substantial as to render the recording as a whole untrustworthy." Id. at 307 (quoting United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, ...