U.S. v. Roulette

• Decision Date: 20 March 1996
• Docket Number: No. 95-2526,95-2526
• Citation: 75 F.3d 418
• Parties: 43 Fed. R. Evid. Serv. 817 UNITED STATES of America, Appellee, v. Cedric L. ROULETTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 418

75 F.3d 418

43 Fed. R. Evid. Serv. 817

UNITED STATES of America, Appellee, v. Cedric L. ROULETTE, Appellant.

No. 95-2526.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1995.

Decided Feb. 1, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March

20, 1996.

Glenn E. Bradford, Kansas City, Missouri, argued, for appellant.

Marietta Parker, Assistant U.S. Attorney, Kansas City, Missouri, argued, for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and DUPLANTIER, ^* Senior District Judge.

DUPLANTIER, Senior District Judge:

Defendant Cedric Roulette was convicted after trial by jury of conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 846. Roulette was also convicted of two counts of distributing and causing to be distributed five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of using a firearm in relation to the distribution of cocaine base in violation of 18 U.S.C. § 924(c)(1). He appeals his conviction, contending that the trial judge made several erroneous evidentiary rulings and that he should have been granted a new trial because of evidence discovered after his trial. Defendant also argues that the judge should have directed a verdict on the gun count.

As to the gun count, the government concedes that Bailey v. United States, decided after Roulette's trial, controls and that the guilty verdict as to this count should be set aside. --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We conclude that the trial judge did not err in his evidentiary rulings or in denying a new trial and therefore affirm the judgment except as to Count Four, the gun count.

I. Factual Background

Roulette's participation in the drug conspiracy was primarily established by the testimony of detective Ray L. Tisinger, a Kansas City Police detective working undercover. The following is a summary of Tisinger's testimony.

Roulette's first sale occurred on January 8, 1990, when detective Tisinger arranged to buy one ounce of cocaine base through Freddie Barker, an unwitting intermediary who had previously purchased crack cocaine for Tisinger. While accompanied by Tisinger, Barker arranged for the sale of the crack cocaine by telephoning his source from a gas station. Tisinger and Barker then drove to the McDonald's restaurant across the street from the gas station to buy the drugs.

After Tisinger and Barker parked next to the McDonald's building, a white station wagon arrived, from which Roulette exited, accompanied by his co-defendant, Charles Harrison, Jr. Barker walked into the restaurant; Roulette and Harrison joined him. Barker then returned to Tisinger's car, where he reported to Tisinger that an ounce of cocaine would cost him $1,200. After Tisinger gave Barker the $1,200, Barker walked back into McDonald's, where he again met with Roulette ¹. Barker and Roulette then walked toward the men's bathroom of the restaurant. A moment later, Barker walked outside again to Tisinger's car and handed Tisinger 27.8 grams of crack cocaine wrapped in aluminum foil.

Roulette then walked out of the restaurant and came up to the passenger side rear window of Tisinger's car, while Tisinger remained in the front driver's seat. Roulette stood by the passenger side and bent down at a 45 degree angle such that detective Tisinger could clearly see his face. Roulette stated, "It's cool," and then handed Barker a piece of paper with a pager number. Barker then informed Tisinger that Tisinger could use the pager number to deal directly with Harrison. Detective Tisinger thus observed Roulette both inside the well-lit McDonald's and while he stood at the rear passenger door of Tisinger's car.

A second Kansas City Drug Enforcement officer, James T. Edding, testified that on the same date, January 8, he watched Harrison and a companion, whom Edding later confirmed to be Roulette, exit a drug distribution house at 3811 East 57th Street which he had under surveillance. Edding watched Harrison and Roulette get into a white station wagon and followed their car to McDonald's, where Tisinger bought the crack cocaine.

A second drug purchase occurred on the following day, January 9. Detective Tisinger used a pay phone at Clark's Service Station to page the number which Barker and Roulette had given him on the previous day. A male responded to Tisinger's page and agreed to send a runner to bring an ounce of crack cocaine to Tisinger. Fifteen minutes later, a white Ford Pinto pulled up next to Tisinger's car at the service station. Tisinger got out of his car and sat in the Ford Pinto next to the driver, whom Tisinger later identified as Cedric Roulette. Tisinger recognized Roulette as the same person whom he had seen on the previous day at McDonald's. Tisinger handed Roulette $1,200, and Roulette handed him an aluminum foil package containing 28.0 grams of crack cocaine. Tisinger made the face-to-face purchase of cocaine from Roulette while sitting next to him.

Two other officers from the Drug Enforcement Unit also testified that they observed Roulette on January 9. Detective Donald Birdwell had Clark's Service Station under surveillance with binoculars on that afternoon. Shortly after 3:00 P.M., Birdwell saw Tisinger get out of his car and into the white Ford Pinto which Roulette was driving. Birdwell observed Roulette seated in the white Pinto and recognized him from a previous investigation. After Tisinger exited the car, Birdwell followed Roulette's white Pinto to 5409 Kensington Street and observed Roulette talking with Harrison outside the residence.

In addition, Detective Edding also saw Roulette pull up to the residence at 5409 Kensington Street which he had under surveillance on January 9. Edding had observed Roulette the day before at 3811 East 57th Street and at the McDonald's drug purchase. Edding saw Roulette exit his car and meet with Harrison on the porch of the house. The residence belonged to Harrison's mother and was later searched by police, who recovered cocaine base and tools of the drug trade from the house.

One hour after completion of the second drug sale, Tisinger positively identified Cedric Roulette from a photographic lineup as the person with whom he dealt on January 8 and 9. In his testimony, Detective Tisinger never expressed any doubt that Roulette was the person who sold him drugs on the dates in question.

II. The Laboratory Reports

Roulette contends that the district court erred by admitting into evidence laboratory reports which identified the substance involved in the case against Roulette as cocaine base, without requiring testimony by the person who conducted the tests or proof of her unavailability. Roulette does not challenge the reliability or routine nature of the reports.

Roulette argues that Federal Rule of Evidence 803(6) is inapplicable because the reports were not "kept in the course of a regularly conducted business activity." This contention is foreclosed by the explicit contrary holding in United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.1988) (laboratory reports identifying controlled substances are admissible as business records under Rule 803(6)), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989).

Roulette argues alternatively that admission of such reports without proof of the unavailability of the person who prepared the reports violates the Confrontation Clause of the Sixth Amendment. Baker held that "[f]irmly rooted exceptions to the hearsay rule do not violate the Confrontation Clause." Id. (citing Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). The admission of such government laboratory reports under the business records exception provides such a firmly rooted exception. Id. Roulette contends that Baker is not controlling in this case because the government did not prove that the lab technician was unavailable to testify. Nothing in the Baker opinion suggests that the holding is predicated upon the unavailability of the person who prepared the lab report; the opinion does not discuss the issue. In an analogous situation, the U.S. Supreme Court has held that the Confrontation Clause does not require proof of unavailability for admission of co-conspirator statements under Rule 801(d)(2)(E). United States v. Inadi, 475 U.S. 387, 399-400, 106 S.Ct. 1121, 1128-29, 89 L.Ed.2d 390 (1986). We reach the same conclusion as to business records under Rule 803(6); the district court properly admitted the laboratory reports.

III. Testimony of Janice Compton

Roulette contends that the district court erred when it allowed the testimony of Janice Compton, a government rebuttal witness, to impeach the testimony of Charles Harrison, Jr., a defense witness who was charged as Roulette's co-conspirator in the same indictment as Roulette and who had already pled guilty.

The government offered the testimony of Janice Compton to impeach Harrison's testimony at trial with prior inconsistent statements he made to Compton during an earlier interview. Compton served as Harrison's probation officer and conducted the interview while she was preparing his presentence report. On direct examination, Harrison stated that he had no contact with Roulette during 1990. Defense counsel then asked Harrison if he had ever asked Roulette to sell crack cocaine on his behalf during 1989 or 1990; Harrison responded that he had not. Defense counsel also asked Harrison if he had seen Roulette in 1987 and 1988. Harrison replied that he had seen Roulette in 1987 and 1988 on only a few occasions, and that on such occasions he and Roulette had gone to the movies or gone out together socially.

On cross examination, the government asked Harrison how many times he had been...