U.S. v. Santiago

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before PELL and WOOD, Circuit Judges, and SOLOMON; HARLINGTON WOOD, Jr.
• Citation: U.S. v. Santiago, 582 F.2d 1128 (7th Cir. 1978)
• Decision Date: 22 August 1978
• Docket Number: No. 77-2021,77-2021
• Parties: 3 Fed. R. Evid. Serv. 1288 UNITED STATES of America, Plaintiff-Appellee, v. Miguel SANTIAGO, Defendant-Appellant.

Page 1128

582 F.2d 1128

3 Fed. R. Evid. Serv. 1288

UNITED STATES of America, Plaintiff-Appellee, v. Miguel SANTIAGO, Defendant-Appellant.

No. 77-2021.

United States Court of Appeals Seventh Circuit.

Argued April 12, 1978.

Decided August 22, 1978.

Ronald A. Himel, Chicago, Ill., for defendant-appellant.

Charles B. Burch, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and WOOD, Circuit Judges, and SOLOMON, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant Miguel Santiago and three others not involved in this appeal were charged in a one count indictment with the knowing and intentional distribution of heroin in violation of Title 21, United States Code, § 841(a)(1). The defendant was tried separately and convicted by a jury. ¹

There are three major issues: whether or not the trial judge made a preliminary determination as to the admissibility of the declarations of the joint venturers; and if he did, whether the correct legal standard of admissibility was applied and satisfied. The final issue is whether after the guilty verdict the defendant's continued claim of innocence was improperly considered by the trial judge at the time of sentencing. We affirm.

Factually this case is not an unusual narcotics case, but it serves to raise certain legal issues commonly encountered in joint venture or conspiracy cases under the Federal Rules of Evidence, which deserve some clarification in this circuit.

The facts need only be briefly summarized. This case was developed by a special agent of the Drug Enforcement Administration working the street undercover with a confidential informant. The negotiations for the purchase of a kilogram of heroin for $29,500 were initiated with two women codefendants of Santiago. After verifying that the supposed purchasers had the required money, the two women proceeded to walk to defendant's car a short distance away where they were observed by other agents to have a conversation with Santiago and a male codefendant. Santiago remained in his car, but all three codefendants returned to continue the negotiations. They suggested that they all go to the nearby car to weigh the heroin and complete the transaction. The agent buyer objected to that procedure. Then feigning a rejection of the transaction the agent left, but returned in a short time. Negotiations were resumed. The male codefendant explained that another individual nearby actually had possession of the heroin but was afraid to deliver. The negotiations as to how to culminate the transaction continued until the male codefendant also indicated his newly acquired fear of the transaction. At that point one of the women codefendants agreed that she would do it. She went back to the defendant in his car and after a short ride into an alley with him returned alone with the heroin wrapped in her coat. With the defendant in his car were the scales. Before it was all accomplished, there had been four separate trips back and forth by Santiago's codefendants between Santiago and the supposed buyers. It is very clear from the evidence that the defendant, who had had more narcotics experience than his associates, sought to insulate himself from the risk but not from the money. "The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941).

I.

Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a statement by a co-conspirator of a party made during the course and in furtherance of the conspiracy is not hearsay to be excluded under Rule 802. We shall refer to the joint venture in conspiracy terms. When a statement of a co-conspirator which would otherwise have been regarded as hearsay is proffered, a preliminary question arises under Rule 104 of the Federal Rules of Evidence. ² Both parties agree and so does this court that Rule 104 requires a preliminary determination by the trial judge as to the admissibility of the declaration of a co-conspirator. Under Rule 104 the competence of a co-conspirator declaration justifying its admissibility depends upon whether or not the existence of the conspiracy has been sufficiently established, and whether under Rule 801(d)(2)(E) the declaration was made during the course and in furtherance of the conspiracy.

It continues to be recognized that the trial judge retains the option of conditionally admitting the co-conspirator declaration evidence before the conspiracy has been independently established, but subject to the subsequent fulfillment of that critical condition. United States v. Stanchich, 550 F.2d 1294, 1298 (2d Cir. 1977); United States v. McCormick,565 F.2d 286, 289 n.5 (4th Cir. 1977), Cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769; United States v. Brown, 555 F.2d 407, 422-23 (5th Cir. 1977), Cert. denied, 435 U.S. 951, 98 S.Ct. 1578, 55 L.Ed.2d 801. In the event of such a failure a mistrial may be required, and even if not, an instruction for the jury to disregard the statements would be in order. Neither was requested, but neither was required in this case. Therefore, the defendant's objection that the jury was permitted to hear the incriminating statements of the co-conspirators contemporaneously with the independent evidence of Santiago's involvement in the conspiracy is without merit.

Whether or not the trial judge fulfilled his Rule 104 preliminary question responsibility is not as clear from the record made at the time admissibility was determined as is to be preferred. We must look elsewhere in the record. The issue was first raised when defendant prior to trial presented a motion In limine to exclude the use of the conspiracy declarations of the codefendants. In denying that motion after a hearing, the trial judge made a somewhat vague but sufficient finding that a Prima facie showing of the existence of the conspiracy had been established permitting the jury to hear and consider the declarations of the co-conspirators. Some support for relying on this prior determination is found in United States v. Haldeman, 181 U.S.App.D.C. 254, 330, 559 F.2d 31, 107 (1976), Cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250, although Rule 104 was not in effect at the time of the trial. That court determined that it was not inappropriate in ruling on preliminary questions to consider related evidence from a preliminary pretrial proceeding. Under Rule 104 the technical rules of evidence, except those with respect to privileges, are not applicable to the trial judge's preliminary question determinations. We see no necessity in this case for the trial judge during trial to have reconsidered the same matter in the absence of some new circumstance, merely in order to reaffirm his prior ruling, as defendant urges.

II.

We must next determine by what standard the sufficiency of the independent evidence of the conspiracy is to be measured, and then whether that standard was met. This problem has not been directly addressed by this court since Rule 104 became effective July 1, 1975.

It has long been the general rule in this circuit that the defendant who failed to prevent the admission into evidence of co-conspirator statements by convincing the trial judge that a Prima facie showing of the alleged conspiracy had not been established by the government by independent evidence was to be given a second chance to make a similar exclusion argument to the jury. The jury was then instructed that the acts and declarations of one of the alleged co-conspirators made during and in the furtherance of the conspiracy could not be used against another alleged co-conspirator until it had been established by independent evidence beyond a reasonable doubt that a conspiracy existed and that the other alleged co-conspirator was a member of that conspiracy. United States v. Santos, 385 F.2d 43 (7th Cir. 1967), Cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148. ³ Merely to state that rule raises doubts about its efficacy. Even though the jury was cautioned when a hearsay declaration was admitted, the jury was expected during its deliberations to sort through the evidence and to lay aside the often very prejudicial co-conspirator's hearsay statements and to immunize itself from its influence until it first found by other independent evidence that the conspiracy and the defendant's membership in it had been established beyond a reasonable doubt. The jury was then free to consider the co-conspirator's hearsay declarations. At that point conspiratorial guilt had in theory already been established. The co-conspirator's declarations could only confirm the judgment previously reached. To expect such a precise untainted jury performance must strain the confidence of even the most ardent admirers of the jury system, and is unnecessary. Long before the New Federal Rules of Evidence, Judge Learned Hand addressed the problem.

It is difficult to see what value the declarations could have as proof of the conspiracy, if before using them the jury had to be satisfied that the declarant and the accused were engaged in the conspiracy charged; for upon that hypothesis the declarations would merely serve to confirm what the jury had already decided. In strict logic these instructions in effect altogether withdrew the declarations from the jury, and it was idle to put them in at all. The law is indeed not wholly clear as to who must decide whether such a declaration may be used; but we think that the better doctrine is that the judge is always to decide, as concededly he generally must, any issues of fact on which the competence of evidence depends, and that, if he decides it to be competent, he is to leave it to the jury to use like any other evidence, without instructing them to consider it as proof only after they too have decided a preliminary issue which alone makes it competent....