U.S. v. Price

• Decision Date: 08 January 1998
• Docket Number: No. 96-5484,96-5484
• Citation: 134 F.3d 340
• Parties: 48 Fed. R. Evid. Serv. 732 UNITED STATES of America, Plaintiff-Appellee, v. Michael PRICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 340

134 F.3d 340

48 Fed. R. Evid. Serv. 732

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

No. 96-5484.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 8, 1997.

Decided Jan. 8, 1998.

April R. Ferguson (argued and briefed), Office of the Federal Public Defender for the Western District of Tennessee, Memphis, TN, for Defendant-Appellant.

Joseph C. Murphy, Jr., U.S. Attorney (argued and briefed), Memphis, TN, for Plaintiff-Appellee.

Before: KRUPANSKY and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge. ^*

OPINION

ROSEN, District Judge.

Defendant/Appellant Michael Price appeals his conviction on one count of aiding and abetting in the attempted possession of more than five kilograms of cocaine with intent to distribute. For the following reasons, we affirm.

I. INTRODUCTION

On May 15, 1995, a federal grand jury sitting in the Western District of Tennessee returned a one-count indictment charging defendant Michael Price ("Price") with aiding and abetting in the attempted possession of more than five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Price entered a plea of not guilty at his arraignment. Trial began on November 15, 1995. Following the conclusion of the Government's case-in-chief, Defendant made a motion for judgment of acquittal, which the court denied. Price did not renew his motion at the close of his defense proofs. On November 20, 1995, the jury returned its verdict of guilty on the one-count indictment. On March 22, 1996, the District Court sentenced Price to 151 months imprisonment, to be followed by a five-year term of supervised release. A timely notice of appeal was filed on March 28, 1996.

Price presents two issues for review: (1) Whether the District Court committed reversible error by refusing to permit the admission of certain hearsay testimony he sought to admit pursuant to Fed.R.Evid. 804(b)(3); and (2) Whether the proof introduced in the trial was constitutionally sufficient to establish the guilt of the defendant beyond a reasonable doubt.

II. FACTUAL BACKGROUND

In the spring of 1995, Memphis police received a tip from a confidential informant that a party was coming from Chicago to purchase fifteen kilograms of cocaine. As a consequence, Officer Leo Hampton ("Hampton") of the Organized Crime Unit of the Memphis Police Department, along with other officers, conducted a drug-related investigation at the Motel 6 on Brooks Road in Memphis, Tennessee. On April 28, 1995, Hampton set up surveillance at the Motel 6 parking lot using video equipment. That equipment recorded the arrival of four persons later identified as Price, Desmond Patnett ("Patnett"), Kevin Fosten ("Fosten"), and a female named Kim ("Kim") who had traveled together from Chicago to Memphis in two separate vehicles. The videotapes Hampton made of the surveillance were played at trial and showed Price carrying a blue tote bag, later found to contain more than $150,000, from a minivan into Room 238, the room registered to Price. Kim was staying in Room 229. Fosten later took the blue tote bag to Kim's room and then rejoined Patnett and Price in Room 238.

Hampton had wired Room 124 where the confidential informant was registered so the officers could overhear any conversations taking place in the room. The conversations that took place in Room 124 were recorded on the sound track of the second videotape. There is no visual record of what transpired in the motel room due to unexplained difficulties with the equipment.

Minutes after Fosten had taken the tote bag to Room 229, Patnett left Room 238, walked to the informant's room, and went inside, where he told the informant that he had brought a friend with him and that he (Patnett) could move "fifty in a month." While relating the dangers associated with drug dealing in Chicago, Patnett told the informant about the possibility of being robbed, kidnapped, and stuffed in the trunk of a car. Patnett told the informant that the money he was carrying was "in tens." The informant told Patnett that his product was "cocaine." After talking on the phone with Officer Blum, who was posing as a seller of cocaine, the informant told Patnett that the seller wanted to see the money. The informant suggested that Patnett show him the money and that Patnett bring his friend, too.

After leaving the informant's room, Patnett returned to Room 238. He and Price then went to Kim's room. When the two men left Kim's room, Price was carrying the blue tote bag. Price and Patnett entered the informant's room. When the informant asked the two men if there was newspaper (rather than cash) in the tote bag, Price replied, "Go through it." The tape recorded the sound of a zipper being moved and the rustle of paper. Price then asked to use the bathroom. There was the sound of a toilet flushing on the tape. Then Patnett left the informant's room, carrying the blue tote bag and its contents back to Kim's room. This left Price alone with the informant in Room 124. On the videotape Price is heard telling the informant that "we've come a long way" and asking "where's he at." Price then told the informant that "we usually have people bring our coke to us." When the informant told Price that he didn't care how much Patnett and Price got for selling the cocaine, Price told him that they wanted to keep things "nice and cool" and that he was a "patient man." Price then said that they were "heading back today" and that he was "ready now."

Officer Blum, acting undercover as a drug dealer, entered the informant's motel room, and just a few seconds later Patnett returned, but without the blue tote bag. Blum opened the large suitcase he was carrying to reveal assorted clothing and fifteen kilograms of cocaine. At trial, Blum testified that both Price and Patnett walked over to look at the cocaine inside the suitcase. Patnett then asked, "Fifteen?" Blum acknowledged that there were fifteen packets and then asked if they wanted him to test the packets. Both men nodded affirmatively. One said, "Uh-huh." Blum began to cut into one of the kilograms of cocaine with a knife when either Price or Patnett told him to cut the corner. Blum testified that neither man was able to test the drugs because the arrest team came into the room at that time and arrested Patnett and Price. Kim and Fosten were also arrested and the motel rooms were searched. In Room 229 the police found the blue tote bag, which was locked. At the police station, the tote bag was opened to reveal a cache of $151,424.01.

At trial, the Government called Detectives Blum and Hampton to testify. The Government also offered into evidence the two videotapes, the suitcase and cocaine, the motel receipt for Room 238 showing that Price had signed for that room, and the blue tote bag. Hampton explained the surveillance operation and introduced the video recordings. Blum testified that at the time of the transaction the wholesale value of cocaine was $10,000 to $15,000 a kilogram, making the amount of money found in the blue tote bag sufficient to cover the cost of the cocaine involved in this transaction. Based on his experience as a police officer, Blum explained that Price's job was to perform surveillance, assist Patnett generally with the drug deal and protect the investment. When asked to explain how a deal could be completed with no money present in the room, Blum testified that he thought the money was in the room based on the informant's information. Even though the cash was not actually in the room, Blum believed that there was an attempt to buy drugs, and only the premature arrest signal prevented the completion of the transaction.

Following the conclusion of the Government's case-in-chief, Defendant made a motion for judgment of acquittal, which the District Court denied.

Before commencing his proofs, Defendant moved the court to allow the admission of a statement made by Patnett subsequent to his arrest. In the statement, Patnett related that he was in Memphis to purchase fifteen kilograms of cocaine; that Price rode in the van with him and that he was there to help drive; that although he did not tell Price and the others why he was traveling to Memphis, he "assumed they knew"; that he asked them to help him drive by "making them some sweet offers"; that the money in the blue tote bag belonged to him. Defense counsel argued that Patnett's statement was a statement against penal interest, and as such, was admissible pursuant to Fed.R.Evid. 804(b)(3).

The District Court determined that Patnett's statement was not admissible under any theory, and specifically not under Fed.R.Evid. 804(b)(3), because of the lack of corroborating circumstances clearly indicating the trustworthiness of the statement.

Price, who had no previous felony convictions, was the sole defense witness at trial. Price testified that he had only met Patnett about three months prior to the trip to Memphis. He said that he, Patnett and Fosten traveled together from Chicago in a Dodge minivan, and that Kim later joined them, but she drove her Volkswagen. He said that the only prearrangement with Patnett for the trip to Memphis was that Price would assist in the driving, which he did, although Patnett drove the minivan for the greater part of the trip. Price testified that he received nothing from Patnett for coming to Memphis with him, nor was he promised anything. He came to Memphis because it was an opportunity to take some time off from his hectic work schedule in Chicago. Price said that Memphis was just a stopover point for him as he had plans to go on to Batesville, Mississippi.

Price further testified that when they arrived at the motel in Memphis, he checked into Room 238. According to Price, the money in the blue tote bag was not his and he had no interest in the drug transaction. He admitted meeting the confidential informant, but denied that he ever indicated...