U.S. v. Payne
| Decision Date | 23 August 1995 |
| Docket Number | No. 1558,D,1558 |
| Citation | 63 F.3d 1200 |
| Parties | UNITED STATES of America, Appellee, v. Eric C. PAYNE, Defendant-Appellant. ocket 94-1613. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael S. Sommer, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y., Alexandra Rebay, Asst. U.S. Atty., New York City on the brief), for appellee.
Louis R. Aidala, New York City, for defendant-appellant.
Before: VAN GRAAFEILAND, Senior Circuit Judge, KEARSE, and CALABRESI, Circuit Judges.
Defendant Eric C. Payne appeals from a judgment entered in the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, convicting him on two counts of a four-count indictment, to wit, one count of conspiracy to distribute crack cocaine and other narcotics, in violation of 21 U.S.C. Sec. 841 (1988 & Supp. V 1993) and id. Sec. 846 (1988) (count 1), and one count of distribution and possession with intent to distribute crack on December 18, 1991, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. Sec. 2 (1988) (count 3), and sentencing him principally to 210 months' imprisonment, to be followed by a five-year period of supervised release. On appeal, Payne contends principally that he should have been granted a new trial because the government failed to produce evidence that could have been used to impeach the credibility of one of its key witnesses. He also challenges various aspects of sentencing. For the reasons that follow, we find no basis for reversal.
The present prosecution arose from an investigation by the United States Drug Enforcement Administration ("DEA") into narcotics dealing from an apartment on Baltic Street in Brooklyn, New York ("apartment" or "Baltic apartment"). Between November 1991 and January 1992, DEA employed an informant with an extensive prior criminal record, Mike Soto, to make a series of narcotics purchases from persons operating in the apartment. In January 1992, several individuals other than Payne, all of whom eventually pleaded guilty to various federal or state charges, were arrested in the apartment by officers of the New York City Police Department ("NYPD").
Payne was arrested by federal authorities in July 1992 and was prosecuted separately. He was charged on the conspiracy and distribution counts described above, and on two other counts of which he was acquitted, to wit, distributing and possessing crack with intent to distribute on December 3, 1991, and carrying firearms in connection with drug trafficking. The government's evidence at Payne's trial included various physical evidence and the testimony of several witnesses, including Soto, DEA agent James Clifford, who supervised Soto's undercover purchases, and Deanne Wilkerson, who was one of the seven arrested by NYPD in January 1992.
Clifford and Soto described a series of undercover purchases of crack by Soto, supervised by Clifford, at the Baltic apartment beginning in November 1991. The first such transaction involving Payne took place on December 3, 1991. On that day, at Clifford's direction, Soto telephoned the apartment and asked to buy three ounces of crack. The woman who answered the phone advised Soto that she would contact her supplier to obtain the requested amount. Thereafter, Clifford, conducting surveillance of the apartment building, observed Payne and another man enter the building, leave about 15 minutes later, and then return. On his second entry into the building, Payne was carrying an open red potato-chip bag, from which he was eating potato chips. Clifford searched Soto and equipped him with a concealed microcassette recorder and $2,850 in cash to pay for the crack. Soto then entered the building and emerged a short time later carrying a red potato-chip bag, which contained three ounces of crack. Soto testified at trial that he paid the $2,850 to Payne for the crack. The tape recorder malfunctioned, however, and Soto's conversations inside the apartment were not recorded.
On December 18, 1991, Soto, supervised by Clifford as before but equipped with a recorder that functioned, again purchased crack at the Baltic apartment. Soto testified that five persons, including Payne, Rafael ("Ralph") Vargas, Sonia Rodriguez, and a woman he later learned was Wilkerson, were in the apartment. When Soto asked to purchase two ounces of crack, Payne pointed to some crack in a dish and responded that he had only 1 1/2 ounces, "a little more, a little less," but that he was expecting to have more within hours. A tape recording admitted at trial included the following conversation:
SONIA: (U/I) so all that he was able to get was one-five.
ERIC (Payne): Our man is, he's late right now.
After leaving the apartment and relating the substance of this conversation to Clifford and other agents, Soto, as instructed, called the apartment and told Wilkerson that he would wait until the full amount was available. Shortly thereafter, Clifford observed Payne and three others leave the building and drive away in a Cadillac.
Before Payne returned, Clifford reconsidered the decision to wait; he instructed Soto to return to the apartment and use the money he had been given to purchase the approximately 1 1/2 ounces of crack then available. Soto testified that when he returned to the apartment, Wilkerson pointed out a bag containing crack, and he took the bag and left $1900.
On leaving the building, Soto encountered Payne and Vargas, who had returned in the Cadillac. Soto recorded the ensuing sidewalk conversation:
Thereafter, Clifford directed Soto to return to the apartment to retrieve $350 of the $1900 Soto had left, representing the cost of the unpurchased half-ounce of crack. Soto testified that he returned to the apartment twice and on both occasions saw Payne counting money.
During the December 18 surveillance, Clifford took pictures of Soto, Vargas, and Payne as they conversed outside the building. One of the photographs was introduced at trial, and Soto and Clifford identified Payne in the photograph. The government also introduced tape-recordings of the two conversations Soto had recorded on December 18. Both Soto, who had dealt with Payne on December 3 and 18, and Clifford, who had conducted a postarrest interview of Payne, identified the voice of the dealer in the December 18 conversations as that of Payne.
In addition to the photograph and the tape-recordings, the government introduced, inter alia, the crack purchased in the apartment by Soto, and drug paraphernalia, cash, firearms and other narcotics seized from the apartment by NYPD in January 1992.
Wilkerson testified that she faced a potential sentence of 11 1/2 to 13 years' imprisonment and that she had entered into a cooperation agreement with the government, which would consider recommending a sentence reduction in exchange for, inter alia, her testimony In November 1991, Payne recruited Wilkerson to package crack that he would supply. She worked for Payne in a rented room in Brooklyn until early December 1991, when she relocated to the Baltic apartment. Thereafter, Wilkerson packaged crack and sold drugs supplied by several dealers, including Payne, who operated out of the apartment; each supplier generally took the proceeds from the sale of his own drugs. Wilkerson identified Payne as the dealer who supplied "[b]etween 85 and 90 percent" of the crack sold out of the apartment, bringing in as much as $1,000 to $2,000 per day.
against Payne. Her testimony with respect to Payne included the following.
Wilkerson testified that the crack sold to Soto on December 18 was supplied by Payne. Payne had instructed her by telephone that, if Soto elected to purchase the 1 1/2 ounces in the apartment, she should "tell Mike to leave the money." She testified that Soto had come to the apartment and left cash in exchange for a bag that she "presumed" to contain drugs. Wilkerson further described Payne and others counting the money left by Soto, and...
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