U.S. v. Paris

• Citation: 827 F.2d 395
• Decision Date: 04 September 1987
• Docket Number: No. 86-1030,86-1030
• Parties: 22 Fed. R. Evid. Serv. 970 UNITED STATES of America, Plaintiff-Appellee, v. Michael PARIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 395

827 F.2d 395

22 Fed. R. Evid. Serv. 970

UNITED STATES of America, Plaintiff-Appellee, v. Michael PARIS, Defendant-Appellant.

No. 86-1030.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 13, 1986.

Decided March 6, 1987.

Amended Sept. 4, 1987.

Eb F. Luckel, Jr., San Francisco, Cal., for plaintiff-appellee.

Ephraim Margolin, San Francisco, Cal., for defendant-appellant.

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

Before WRIGHT, SNEED and KOZINSKI, Circuit Judges.

ORDER

The panel has voted to amend its opinion, filed March 6, 1987. The amended opinion and Judge Kozinski's amended dissent are attached. This opinion supersedes the opinion published at 812 F.2d 471 (9th Cir.1987).

With the opinion so amended, the panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied, and the suggestion for a rehearing en banc is rejected.

AMENDED OPINION

SNEED, Circuit Judge:

Michael Paris, an Internal Revenue Service attorney, was convicted of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and conspiracy to distribute cocaine, 21 U.S.C. Sec. 846. He appeals, alleging numerous errors. We affirm.

I. FACTS AND PROCEEDINGS BELOW

On the evening of August 27, 1985, Gary Hafley, an undercover agent working for the Drug Enforcement Administration (DEA), met with Frederick DePalm in Emeryville, California, to purchase two kilograms of cocaine for $80,000. DePalm did not bring the cocaine, but both men agreed to meet later that night across the bay in San Francisco. Surveillance agents followed DePalm to San Francisco where they observed him meeting with appellant Paris at Paris's residence. After talking with Paris, DePalm met Hafley in front of a house on 23rd and Guerrero Streets.

DePalm told Hafley that he "had just come from the source's house," and that although the deal could not take place that night, the source had provided a sample. DePalm also said that the exchange had to take place the following evening or after Labor Day because the "source of supply was going to be back East for his parents' fiftieth wedding anniversary." Paris went to Cleveland, Ohio over the Labor Day weekend for his parents' fiftieth wedding anniversary.

Negotiations resumed on September 5. Hafley proposed to conduct the exchange himself. DePalm rejected this idea, telling Hafley that the "source was an attorney who didn't want to be seen." Eventually they agreed upon terms, and DePalm called his source to confirm their arrangement. DePalm then told Hafley the source would arrive in thirty minutes with one kilogram of cocaine, driving "a red Subaru or a white Toyota." Hafley left to notify other officers of the plan, and returned. Shortly thereafter, as Paris arrived in a white Toyota, DePalm said, "The guy is here." DEA agents then arrested DePalm and Paris. Hafley searched Paris's car and found a briefcase containing approximately one kilogram of cocaine.

Paris's defense theory at trial was that DePalm "set him up." He testified that the briefcase had been placed in his car by a man named "Michael" who asked him to deliver it to DePalm. Paris subpoenaed DePalm and claimed that DePalm would have admitted under oath that he set up Paris or would have identified "Michael" as the source of the cocaine. DePalm, however, facing the same charges as Paris, invoked his Fifth Amendment privilege against self-incrimination, and the trial judge excused him from testifying. The court later admitted in evidence DePalm's statements to Hafley as declarations of a co-conspirator under Fed.R.Evid. 801(d)(2)(E), and these statements constituted the chief evidence of Paris's guilt.

II. DISCUSSION

A. Framework of Discussion

To provide the framework of this portion of our opinion, it is necessary to set forth briefly a description of the alleged errors by the trial court upon which the appellant relies to obtain a reversal of his conviction. As will be apparent, appellant directs most of his fire at the very damaging statements made by DePalm to agent Hafley. Not only should these statements not have been admitted, but their admission amounted to constitutional error, argues the appellant. The remainder of appellant's alleged errors are of lesser importance. We now set forth each of appellant's arguments.

First, appellant attacks DePalm's use of the Fifth Amendment privilege. It was an invalid assertion and, if valid, its assertion violated appellant's Sixth Amendment rights.

Next, appellant contends that the admission of DePalm's statements was contrary to Fed.R.Evid. 801(d)(2)(E) and in violation of Fed.R.Evid. 806.

Third, the appellant argues that DePalm's statements, even if otherwise admissible, would violate the Confrontation Clause and deprive him of due process.

Fourth, appellant complains that the exclusion of his offered testimony of a former DEA agent was error.

Fifth, appellant insists that he was entitled to an instruction to the jury requiring that it agree on a single set of facts to prevent his conviction as a member of a conspiracy with respect to which the jury was not unanimous.

Finally, appellant decries the sentence he received on the ground of disparity with that given DePalm.

We shall discuss each of these contentions in the order set forth here.

B. Right to Compulsory Process

As set out above, Paris claims that DePalm's assertion of the privilege against self-incrimination was invalid, and thus the court's refusal to compel DePalm to testify violated Paris's Sixth Amendment right to compulsory process to secure the attendance of a witness. Paris also argues, in the alternative, that his Sixth Amendment right to compulsory process should have overridden DePalm's Fifth Amendment right not to testify.

1. Standard of Review

Initially, we note that Paris failed to raise his compulsory process claim below. Paris filed a pretrial motion objecting to the introduction of DePalm's statements on various grounds, including the claim that admission of the statements would violate the Confrontation Clause because DePalm's assertion of the privilege did not render him "unavailable." Paris never argued, however, that DePalm's exercise of his privilege against self-incrimination was invalid or that his unavailability would violate Paris's right to compulsory process. When no objection has been made, we review a challenge on appeal under the "plain error" standard. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). Reversal for plain error occurs only in the exceptional situation where it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. Id.

2. Validity of DePalm's Fifth Amendment Privilege

To assert the privilege against self-incrimination, the claimant must be "confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination." United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980) (quoting Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968)). Prior to trial, DePalm pleaded guilty to possession with intent to distribute, and the government promised to dismiss the conspiracy charge. He had not, however, been sentenced. A convicted but unsentenced defendant retains his Fifth Amendment rights. ¹ United States v. Miller, 771 F.2d 1219, 1235 (9th Cir.1985); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978). The trial court did not err in allowing DePalm to rely on the privilege.

3. Sixth Amendment Versus Fifth Amendment

To support his claim that his Sixth Amendment right to compulsory process overrides the valid assertion of the Fifth Amendment privilege, Paris argues that the trial judge should have required the government to grant immunity to DePalm, or should have granted a continuance until after DePalm's sentencing. We have held, however, that "[t]he Sixth Amendment right of an accused to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive his Fifth Amendment privilege. Nor is an accused entitled to compel a prosecutor to grant immunity to a potential defense witness to get him to testify." Trejo-Zambrano, 582 F.2d at 464 (citation omitted). We reject the argument that the trial court erred in failing to grant a continuance. To obtain a continuance a defendant must move for one. United States v. Steffen, 641 F.2d 591, 595 (8th Cir.), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981). Paris did not do so, and the court's failure sua sponte to delay the trial was not plain error. ² Paris was not denied his Sixth Amendment right to compulsory process.

C. Admission of DePalm's Statements Under the Federal Rules

Paris next attacks the admission of DePalm's out-of-court statements on the ground that it was contrary to certain Rules of Evidence.

1. Foundational Requirements Under 801(d)(2)(E)

It has been said that Rule 801(d)(2)(E) means that "before admitting a statement of a co-conspirator into evidence against a defendant, the court must have independent evidence of the existence of the conspiracy and of the defendant's connection to it, and must conclude that the statement was made both during and in furtherance of the conspiracy." United States v. Layton, 720 F.2d 548, 555 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984) (italics added). Findings of fact with respect to the foundational requirements for admission of co-conspirator statements, we have held, are...