U.S. v. Patel

• Decision Date: 06 September 1989
• Docket Number: No. 88-2738,88-2738
• Citation: 879 F.2d 292
• Parties: 28 Fed. R. Evid. Serv. 503 UNITED STATES of America, Plaintiff-Appellee, v. Manu PATEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 292

879 F.2d 292

28 Fed. R. Evid. Serv. 503

UNITED STATES of America, Plaintiff-Appellee, v. Manu PATEL, Defendant-Appellant.

No. 88-2738.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1989.

Decided July 20, 1989.

Rehearing and Rehearing In Banc Denied Aug. 29, 1989.

Order on Denial of Rehearing Sept. 6, 1989.

Caryn Jacobs, Asst. U.S. Atty., Chicago, Ill., David J. Stetler, Asst. U.S. Attys. Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S.

Josette Skelnik, Robinson & Skelnik, Elgin, Ill., for Patel.

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

POSNER, Circuit Judge.

A jury convicted Manu Patel of four counts of violating federal narcotics law in connection with the importation from India of a ton of hashish having a street value of at least $4 million. The judge sentenced him to seventeen years and six months in prison. The appeal raises a number of issues but the only one that merits discussion is whether Patel was still a member of the conspiracy to import and distribute the hashish at the time his principal co-conspirator, Sheth, made statements that were recorded and later admitted into evidence against Patel; Sheth did not testify.

Customs inspectors had discovered the hashish in a shipment (purportedly of furniture and artifacts) from the Apex Trading Agency of Bombay to Global Impex, Inc., which had the same address as Patel's home in Roselle, Illinois. After the inspection, the shipment was allowed to continue on its way, accompanied however by federal agents. Its interim destination was a warehouse. When Patel arrived with moving trucks to remove the shipment from the warehouse, the agents arrested him and informed him that the crates contained hashish. Patel exhibited surprise, and claiming that he had nothing to hide agreed to cooperate with the government. He told the agents that he and Navin Sheth, a resident of India, were co-owners of Apex Trading Agency, that this was the third shipment he had received from Sheth, and that the previous ones had consisted of spices and groceries. Patel volunteered that Sheth was planning to phone him shortly from India with instructions for the distribution of the latest shipment. He added that after each of the first two shipments Sheth had come to Roselle to inspect the shipments, and together with two other Indians, one named Raji, had carried away parts of the shipments in a U-Haul truck before Patel distributed the rest.

The agents wanted Patel to make recorded phone calls to Sheth in which Patel would tell Sheth that a crate had broken open during the unloading of the shipment and had spilled hashish. The agents insisted that Patel use the word "hashish" in the calls. The phone conversations, conducted in an Indian dialect, were recorded, translated, and transcribed, and the transcripts were introduced into evidence at Patel's trial, over his objection. In the first and most important of the calls, after telling Sheth about the spill of the hashish, Patel asked, "Who is going to call?" Sheth was taken aback: "Didn't I tell you Tuesday morning?" Patel played dumb: "Tuesday morning? Somebody is going to call? ... You? Would you call?" "No, I wouldn't call. He will call you." "But, who is he?" To which Sheth replied: "Why you have been told about it? Why did you forget?" Patel: "Raj, Raj, Raj." Sheth: "You are Raj Kumar." As the call continued, Sheth became increasingly suspicious. He asked, "why are you using that word?" (presumably "hashish"). He added, "You know about all this to be not using them." In later calls, Sheth, swallowing his suspicions, gave Patel directions for the distribution of the hashish. As a result of the information conveyed by Sheth in these calls, as well as information obtained in calls that Patel made at the government's direction to members of the ring in the U.S., the other members--all but Sheth--were arrested. Sheth remained in India, and for reasons that no one has been able to explain to us cannot be extradited to the U.S. to stand trial for his part in the conspiracy.

The transcripts of the calls to Sheth exploded Patel's pretense of being an unknowing recipient of the hashish, and although there was other evidence of his involvement in the smuggling ring the government does not argue that the admission of the transcripts, if error, was harmless. The "theory" under which a co-conspirator's out-of-court statement is admissible is that each member of the conspiracy is the agent of every other member, and an agent's admission binds his principal. See Fed.R.Evid. 801(d)(2)(E); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Ammar, 714 F.2d 238, 255-56 (3d Cir.1983). The Advisory Committee's Note remarks the fictitious character of the agency rationale but does not question the rule. Patel, noting that the rule requires that the co-conspirator's statement be made "during the course and in furtherance of the conspiracy," Fed.R.Evid. 801(d)(2)(E); see also Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949), argues that when he made the calls to Sheth at the government's behest, he had quit the conspiracy, so Sheth was no longer his agent.

There is nothing in the rule about withdrawal, and of course a conspiracy could continue, and statements be made in the course and furtherance of it, after a particular member had withdrawn. But then it would not be a co-conspirator's statement; it would be a former co-conspirator's statement. See United States v. Mardian, 546 F.2d 973, 978 n. 5 (D.C.Cir.1976); United States v. Abou-Saada, 785 F.2d 1, 8 (1st Cir.1986); cf. United States v. Smith, 578 F.2d 1227, 1233 (7th Cir.1978). At all events, the government does not argue the point, but instead replies to Patel's claim that he had withdrawn from the conspiracy before the call by arguing that the only way to quit a conspiracy is to confess involvement in it to the government or to notify your fellow conspirators that you're quitting. Pressed at argument, the government's counsel reluctantly conceded that death might be a third way out, but sh...