U.S. v. Pallais

• Decision Date: 04 March 1991
• Docket Number: Nos. 89-1283,89-1291,s. 89-1283
• Citation: 921 F.2d 684
• Parties: 31 Fed. R. Evid. Serv. 974 UNITED STATES of America, Plaintiff-Appellee, v. Henry PALLAIS and William C. Kelly, III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 684

921 F.2d 684

31 Fed. R. Evid. Serv. 974

UNITED STATES of America, Plaintiff-Appellee, v. Henry PALLAIS and William C. Kelly, III, Defendants-Appellants.

Nos. 89-1283, 89-1291.

United States Court of Appeals Seventh Circuit.

Argued Nov. 8, 1990.

Decided Dec. 21, 1990.

Rehearing Denied March 4, 1991.

Patricia J. Gorence, Paul Kanter, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Morris D. Berman, Giesen & Berman, Madison, Wis., for Pallais.

Jonathan Shapiro, Stern & Shapiro, Boston, Mass., for Kelly.

Before POSNER and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

After a two-week trial, a jury convicted William Kelly and Henry Pallais of multiple counts of participating in a large drug trafficking ring. (There were a number of other defendants, but they pleaded guilty.) Hatched in a meeting in Chicago in 1983, the ring was far-flung, with many operatives and a large volume of business. Substantial quantities of cocaine and marijuana were shipped by boat or private plane from Jamaica and Colombia (sometimes via Panama) to Puerto Rico, taken by boat to Florida, and shipped by diverse means to Wisconsin for distribution. Kelly, who lived in Florida, was one of the principals of the ring; Pallais was employed as a pilot. The ring was in business for five years, until broken in 1988. The judge sentenced Kelly to 35 years in prison and Pallais to 18 years; these are no-parole terms.

The appeals present seventeen issues, not all of which, however, require discussion. One, for example, has been resolved since the filing of the parties' briefs. It is whether the quantity schedules in 21 U.S.C. Sec. 841, which determine the severity of a defendant's sentence for trafficking in illegal drugs, define an element of the offense or merely cabin the judge's sentencing discretion. We have held that they do the latter. United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989); United States v. McNeese, 901 F.2d 585, 600-01 (7th Cir.1990).

Early in the trial, a juror saw the two defendants in handcuffs in the corridor outside the courtroom. The judge removed him from the jury, pursuant to a line of cases that considers it an infringement of a defendant's right to a fair trial to exhibit him to jurors handcuffed or otherwise shackled or in prison garb; the fear is that the jurors will assume that the defendant must be a criminal, and probably a dangerous one, altogether deserving of punishment. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 1693-94, 48 L.Ed.2d 126 (1976); Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.1982) (per curiam). Later another juror saw the defendants sitting in the back of the United States Marshal's car that had brought them to the court from their place of pretrial detention. Defense counsel, told about the incident by their clients, asked the judge to interview the juror to determine whether the juror's ability to render a fair verdict had been compromised by seeing the defendants in the marshal's car. The judge refused. We find no error. So far as appears, the marshal's car was unmarked and the only sign of custody was the grill between the front and rear seats. Many taxicabs have a protective grill, and for just the same reason (to protect the driver from passengers in the rear seat). There is no suggestion that the juror peered into the car or that if he had done so he would have seen the defendants in handcuffs--there is no indication they were in handcuffs. The defendants argue that the judge should have conducted a brief hearing to determine just what the juror saw and thought. But a judge is not required to interrupt a trial to question a juror every time defense counsel asks him to. Apart from the interruption, the juror may feel intimidated by being questioned by the judge in the privacy of the judge's chambers. There must be a reason to believe that the inquiry would be fruitful before the judge should launch it. The defendants' lawyers got the information about the juror from their clients, who could have told them whether the car was marked or their handcuffs in sight. By failing to obtain this additional information the lawyers failed to lay a foundation for further inquiry.

The defendants argue that the indictment improperly charged separate marijuana and cocaine conspiracies rather than a single conspiracy to import both drugs. The government may not proliferate punishment by charging one conspiracy as multiple conspiracies. United States v. Cerro, 775 F.2d 908, 913 (7th Cir.1985); United States v. Powell, 894 F.2d 895, 897-98 (7th Cir.1990). The defendants point out correctly that the original scheme hatched in 1983 was to import both marijuana and cocaine. But as the years passed, the scheme bifurcated. Marijuana and cocaine are different drugs in terms of sources, channels of distribution, methods of shipment and processing, and customers. Fourteen of the original defendants were involved with one of the drugs but not the other. Had they all been joined in one giant conspiracy, they would have howled. It is true that our two defendants, the defendants who stood trial, were involved in both phases of the operation. But you can have overlapping conspiracies. A legitimate business enterprise can have many divisions, programs, activities, contracts; they are not all a single agreement just because a handful of top officers is in charge of the entire firm and some of the lower-level employees may work on more than one program or contract. The same is true with a criminal enterprise. The jury properly found two conspiracies.

The defendants complain about the use in evidence against them of coconspirators' out-of-court statements that (they claim) were not in furtherance of the conspiracy. Typical was a statement reporting Pallais' failure to drop a package of cocaine from his airplane in the proper drop zone and a statement that Kelly was known as "Big Guy" in the drug ring. To understand the objection you must understand the curious reasoning by which coconspirator statements are admissible (in the federal courts, pursuant to Fed.R.Evid. 801(d)(2)(E)) notwithstanding the hearsay rule, provided they are made in the course of, and further, the conspiracy. Ordinarily, if Witness X testifies that Y (who, let us say, to make the example as stark as possible, has since died) told him that defendant K was called "Big Guy," the testimony would be inadmissible to prove that K was "Big Guy," because Y would not be available for cross-examination. But if Y is a coconspirator of K, then any statement made by Y in the furtherance of their conspiracy is attributed to K, on the "theory" (called a "fiction" in the Note of the Advisory Committee on Proposed Rule 801) that each member of a conspiracy is the agent of each of the other conspirators whenever he is acting--including speaking--to promote the conspiracy (hence the requirement that the statement be in furtherance of the conspiracy). Van Riper v. United States, 13 F.2d 961, 967 (2d Cir.1926) (L. Hand, J.). Y's statement becomes a statement by K, and as such is an admission by a party; such admissions are not classified as hearsay statements. Fed.R.Evid. 801(d)(2).

The reasoning is impeccable as a matter of contract law; an agent can bind his principal by what he says; but what has this to do with the purpose of the rules of evidence, which, so far as relevant here, is to keep out unreliable evidence? The reliability of Y's out-of-court statement is not enhanced by the fact that he was a member of a conspiracy with K, about whom the statement was made. Nor is it apparent why from the standpoint of evidentiary reliability it should make a difference whether the statement was in furtherance of the conspiracy. Against this type of criticism it has been argued that coconspirators' statements "are reliable in the same sense that contracts or negotiations among legitimate business partners usually portray accurately the affairs of those involved." United States v. Molt, 772 F.2d 366, 369 (7th Cir.1985). But it is the character of these transactions, not the existence of an agency relationship, that makes the statements of the participants reliable; from the standpoint of evidentiary reliability it would make no difference whether the negotiation was between two partners of the same firm, or between two firms. Nor is the rule limited to contracts and negotiations; among the statements whose admission was upheld in Molt on the basis of the coconspirator exception were "conversations concerning planning or review of the drug ring's exploits." Id. (emphasis added).

A different and cleaner approach would be to cut loose from the agency issue and ask instead whether the particular hearsay statement was sufficiently reliable to be considered by the jury; and that is the tendency of the Federal Rules of Evidence, with their broad catch-all provision. Fed.R.Evid. 803(24). But the admissibility of coconspirators' statements made in furtherance of the conspiracy is a settled rule, now codified in the Federal Rules of Evidence and upheld against constitutional challenge in Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987), however odd and artificial it might seem as an original matter; so we need only consider whether the statements in question were made in furtherance of the conspiracy.

It could be argued that any statement by a conspirator, made while he is a member of the conspiracy, that concerns the conspiracy and has some informational content is in furtherance of it. The exchange of information is the lifeblood of a conspiracy, as it is of any cooperative activity, legal or illegal. Even commenting on a failed operation is in furtherance of the conspiracy, because people learn from their mistakes. Even identification of a coconspirator by an informative nickname such as "Big Guy" is in furtherance of the conspiracy,...