U.S. v. Piper

• Decision Date: 26 July 2002
• Docket Number: No. 01-2500.,01-2500.
• Citation: 298 F.3d 47
• Parties: UNITED STATES of America, Appellee, v. Stanley M. PIPER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

298 F.3d 47

UNITED STATES of America, Appellee, v. Stanley M. PIPER, Defendant, Appellant.

No. 01-2500.

United States Court of Appeals, First Circuit.

Heard June 12, 2002.

Decided July 26, 2002.

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Edward S. MacColl, with whom Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA, LYNCH and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Following his conviction for both distributing cocaine and conspiring to engage in distribution, defendant-appellant Stanley M. Piper challenges the district court's admission of certain tape-recorded conversations between an alleged coconspirator, Anthony Stilkey, and various third parties. The court admitted these statements under Evidence Rule 801(d)(2)(E) (the so-called coconspirator hearsay exception). After careful consideration, we conclude that one of these conversations did not involve statements made in furtherance of the conspiracy (and, therefore, should have been excluded). Nevertheless, the erroneous admission of those statements does not warrant reversal, and the appellant's challenge to the sufficiency of the evidence is hopeless. Consequently, we reject Piper's appeal.

I. BACKGROUND

We present a balanced account of the background facts, gleaned from the trial transcript. Stilkey and the appellant worked together at Bath Iron Works in Bath, Maine. The activities with which we are concerned began on April 8, 1999, when Stilkey met with a man known only as Rodney. Unbeknownst to Stilkey, Rodney was an informant for the Drug Enforcement Administration (DEA), which had equipped him with a body wire and organized a surveillance team to monitor his movements.

The April 8 meeting took place at the Bath post office. During the meeting, Stilkey agreed to sell Rodney two "eight balls" of cocaine (roughly 3.5 grams apiece) for $500. After receiving the funds, Stilkey proceeded directly to the appellant's apartment. He handed over the money in exchange for two glassine baggies containing powdered cocaine. Stilkey removed some of the cocaine for his own use and delivered the remainder to Rodney at the post office.

Subsequently, Rodney told Stilkey that an acquaintance, Uri Shafir, wanted to purchase half an ounce of cocaine. Rodney arranged for Stilkey and Shafir to meet at the same post office on April 13, 1999. The surveillance team was alerted. Shafir (an undercover DEA agent) gave Stilkey a $500 "deposit." The two men then exchanged telephone numbers and agreed upon a pager code to signal that the drugs were ready for delivery. Stilkey repaired to the appellant's apartment and gave him the money. Upon leaving, Stilkey walked over to the appellant's automobile and placed something inside the glove compartment. The appellant emerged from his apartment, spoke briefly to Stilkey, and drove away.

Later that afternoon, Stilkey paged Shafir and arranged to meet him near Stilkey's place of abode. Shafir proceeded to this location and parked in a neighbor's driveway. Stilkey and his wife, Jennifer, testified that the appellant already was inside the house at that moment.¹ The appellant handed a bag of cocaine to Stilkey, who walked to Shafir's vehicle, showed him the drugs, and informed him that they would cost "an extra hundred." Shafir questioned both the quantity and the quality of the contraband. In response, Stilkey offered to get his source's scales to verify the weight.

In an effort to ease this impasse, Stilkey reentered his home and told the appellant that the customer "wanted to try [the drugs] first." The appellant balked at this suggestion. Stilkey then carried a set of scales outside, weighed the drugs in front of Shafir, and swapped the cocaine for an additional payment of $900. When Stilkey returned, he handed the money to the appellant.

A third, and final, episode took place on April 20, 1999. Shafir arranged with Stilkey to purchase a half-ounce of cocaine for $1,000. He drove to Stilkey's house and consummated the transaction there. Stilkey testified that the appellant furnished the cocaine and ultimately received the proceeds. At around the same time, the appellant left for Florida. Stilkey immediately tried to interest Shafir in purchasing drugs derived from a new source (one Paul Mounts) and the focus of the investigation shifted.

On December 19, 2000, a federal grand jury indicted the appellant on charges that he had distributed cocaine on April 13, 1999, and had conspired with Stilkey to distribute cocaine during that month. See 21 U.S.C. §§ 841(a)(1), 846. The appellant protested his innocence and the case went to trial. After Stilkey testified about the three transactions described above, the district court, over objection, made a closely reasoned Petrozziello finding, see United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977), and admitted into evidence seven secretly recorded conversations that had taken place between Stilkey and various third parties.² Shafir, Jennifer Stilkey, a forensic chemist, and two members of the police surveillance team also testified for the government. The defense predicated its case almost entirely on the testimony of the appellant's girlfriend, who testified that she and the appellant attended "drug parties" with the Stilkeys, and painted a picture of all four as recreational users of cocaine. The jury found the appellant guilty on both counts and the court sentenced him to a 27-month incarcerative term. This timely appeal followed.

II. COCONSPIRATOR STATEMENTS

The central question in this appeal is whether the trial court erred in admitting into evidence any or all of the seven taped conversations. We turn first to that issue.

Hearsay evidence ordinarily is inadmissible in criminal trials. Like most general rules, however, that rule is subject to certain exceptions. One such exception allows an out-of-court statement made "by a coconspirator of a party during the course and in furtherance of the conspiracy" to be offered into evidence against that party. Fed.R.Evid. 801(d)(2)(E). To invoke this exception, "[t]he proponent of the statement bears the burden of establishing, by a preponderance of the evidence, that a conspiracy embracing both the declarant and the defendant existed, and that the declarant uttered the statement during and in furtherance of the conspiracy." United States v. Bradshaw, 281 F.3d 278, 283 (1st Cir.2002) (citation and internal quotation marks omitted), petition for cert. filed (June 25, 2002) (No. 02-5015). The first half of this two-part requirement demands the introduction of extrinsic evidence; coconspirator statements are not deemed self-elucidating, and to ensure admissibility the proponent must present other evidence sufficient to delineate the conspiracy and corroborate the declarant's and the defendant's roles in it. See United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir.1993); see also Fed. R.Evid. 801(d)(2)(E) (providing that the contents of the proffered hearsay statement, standing alone, are insufficient "to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered").

The appellant contends that the district court committed a global error in administering Rule 801(d)(2)(E) because it permitted the introduction of the tape-recorded conversations even though the government had failed to adduce sufficient foundational evidence to establish the existence of a conspiracy in which both he and Stilkey were participants. His backup position is that two particular conversations — one that occurred on April 8 and another that occurred on April 22 — were inadmissible on narrower grounds. We consider these contentions sequentially.

A. Foundational Evidence.

We give short shrift to the claim that the government failed to adduce sufficient evidence to demonstrate the existence of a conspiracy involving Stilkey and the appellant. This foundational requirement is satisfied as long as the government proffers sufficient evidence to establish, by a preponderance of the evidence, the existence of a conspiracy embracing both the declarant and the defendant. Sepulveda, 15 F.3d at 1180; Petrozziello, 548 F.2d at 23. The trial court acts as the gatekeeper; it bears the responsibility for resolving the question of whether evidence proffered under Rule 801(d)(2)(E) satisfies these criteria. See Fed.R.Evid. 104(a) (explaining that "[p]reliminary questions concerning... the admissibility of evidence shall be determined by the court"); see also Earle v. Benoit, 850 F.2d 836, 840-41 (1st Cir.1988).

Here, the government brought forth a cornucopia of extrinsic evidence (e.g., Stilkey's testimony about his relationship with the appellant, Jennifer Stilkey's corroborative testimony, Shafir's testimony, and the testimony of two surveilling detectives) from which a factfinder could conclude, more likely than not, that a conspiracy existed between Stilkey and the appellant to purvey cocaine. Thus, we reject the claim that the government failed to satisfy this foundational requirement.

B. The April 8 Conversation.

This brings us to the April 8 conversation. The appellant points out that this tape captured a conversation between Stilkey and Rodney (the government's informant). From this, he argues that statements made to a government informant cannot be admitted under the coconspirator hearsay exception because the informant, by definition, cannot be deemed to be a coconspirator.

This argument is decisively refuted by a long line of cases. See, e.g., United States v. Singleton, 125 F.3d 1097, 1107 (7th Cir. 1997); United States v. Flores-Rivera, 56 F.3d 319, 330 (1st Cir.1995); United States v. Formanczyk, 949 F.2d 526, 531 (1st Cir.1991). The black-letter...