U.S. v. Silverman

• Decision Date: 16 September 1985
• Docket Number: No. 83-1314,83-1314
• Citation: 771 F.2d 1193
• Parties: 18 Fed. R. Evid. Serv. 915 UNITED STATES of America, Plaintiff-Appellee, v. David SILVERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1193

771 F.2d 1193

18 Fed. R. Evid. Serv. 915

UNITED STATES of America, Plaintiff-Appellee, v. David SILVERMAN, Defendant-Appellant.

No. 83-1314.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1984.

Decided Sept. 16, 1985.

Brian L. Sullivan, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.

Bruce M. Kaufman, Sherman Oaks, Cal., for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before WALLACE, ALARCON and NELSON, Circuit Judges.

NELSON, Circuit Judge:

David Silverman appeals his conviction for conspiracy to distribute a controlled substance (cocaine) and three related offenses. Silverman claims that the district court improperly admitted statements under Fed.R.Evid. 801(d)(2)(E) (FRE) and erred in giving a "modified flight" jury instruction. We affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Silverman was indicted on August 23, 1983, by the Federal Grand Jury for the District of Nevada, for conspiracy to distribute a controlled substance; possession with intent to distribute a controlled substance; aiding and abetting; and interstate travel in aid of racketeering, in violation of 21 U.S.C. Sec. 846 and Sec. 841(a)(1) and 18 U.S.C. Sec. 1952(a)(2) and (3). Silverman was tried together with his sister, Pearl Phoenix, and her husband, David Phoenix. The main witness against all three was a government informant, David Willard, who testified to the existence of a conspiracy to distribute cocaine involving Silverman as the supplier, Pearl Phoenix as the wholesaler, and Willard as the retailer.

Willard testified that he obtained cocaine from Pearl Phoenix. Sometime in 1982, he began to sell large quantities of cocaine to Robert Zeitziff. Zeitziff volunteered his private plane for trips to Los Angeles, where Pearl obtained her cocaine. Zeitziff, Willard, and Pearl made three flights to Los Angeles in Zeitziff's plane.

The first trip took place on May 13, 1983, when Zeitziff flew Pearl and Willard to Van Nuys, California. According to Willard, Pearl had told him earlier that "her brother," who lived near Van Nuys Airport, was her source of cocaine. Upon landing at Van Nuys, Willard called Valley Cab to request a cab for Pearl; Pearl went to a phone booth to make a call. Willard stated that Pearl had told him earlier that she was going to call her brother. Pearl then left alone in the cab. Cab records admitted into evidence showed that on May 13, a passenger was picked up at the Van Nuys terminal and was dropped off at the corner of Ventura and Louise, an intersection near David Silverman's residence. Two or three hours later, Pearl returned with cocaine and then she, Zeitziff and Willard flew back to Reno, Nevada.

On May 31, the same trio again flew to Van Nuys. Willard again called Valley Cab, and Pearl again left to make a phone call, having told Willard that she had to call her brother. Cab records showed that a passenger was picked up on that date at Van Nuys airport and was dropped off at the corner of Winnetka and Ventura, another intersection close to Silverman's residence. Cab records also showed that a passenger was picked up just over one hour later at the same corner and driven to the Van Nuys terminal. After Pearl returned with cocaine, the three returned to Reno.

On June 17, 1983, the same parties made a third trip to Van Nuys. As on the first two trips, Willard called Valley Cab and Pearl made a phone call. Cab records show that a passenger was driven on that date from the airport to Silverman's residence, and a cab driver identified the passenger as Pearl. Willard testified that Pearl had earlier instructed him to wait by the phone for a call at about five o'clock. Pearl called Willard to say she was on her way back to the airport. Shortly thereafter, a car stopped near the terminal. At trial, Willard stated that the driver was a male who "look[ed] like Silverman," but at that time Willard and Silverman had never met. Willard had seen a photograph of Silverman, however. Pearl got out of the car, and, again according to Willard, gave Willard a leather pouch containing six ounces of cocaine. Pearl informed Willard that she was going to go to San Francisco and would not go back to Reno with him and Zeitziff, then returned to the car, which was waiting for her. Willard and Zeitziff flew to the airport at Stead, Nevada, and, while driving to Reno, were stopped and arrested by the Reno Police Department for possession of six ounces of cocaine.

Following his arrest and subsequent indictment for possession of cocaine, interstate racketeering, and conspiracy, Willard entered into a plea bargain negotiation with the government and agreed to cooperate in an investigation. Willard subsequently taped a number of conversations between himself and the Phoenixes. During one of the conversations between Willard and Pearl, Willard asked her if her brother was "cool" with respect to money allegedly owed to him. Pearl replied, "Don't worry." The tapes, played to the jury, also contain other references to Silverman.

Two months after Willard's arrest, agents of the Drug Enforcement Administration (DEA) knocked on the door of Silverman's house. Silverman came to the door and stated that David Silverman was not at home; the agents left a message for Silverman to call the DEA to answer some questions. He called soon after. When the agents returned that afternoon with a warrant for his arrest, he gave a false identity and again claimed that David Silverman was not home. Within an hour, his attorney called the DEA and arranged for Silverman to turn himself in two days later Silverman was convicted by jury verdict on October 28, 1983, and was sentenced December 19, 1983. Judgment of conviction was entered on December 23, 1983. He filed this appeal on December 19, 1983. Our jurisdiction is based on 28 U.S.C. Sec. 1291.

which he did. He obtained a reduction in bail based upon his surrender.

ISSUES PRESENTED

I. Whether statements implicating Silverman as a cocaine supplier were properly admitted as co-conspirator statements under FRE 801(d)(2)(E).

(A) The amount of evidence of Silverman's "connection" to the conspiracy.

(B) Whether the hearsay statements were made "during" and "in furtherance of" the conspiracy.

II. Whether the jury instruction on Silverman's "flight" was properly given.

DISCUSSION

I. Co-conspirator statements.

Silverman contends that statements implicating him as the source of cocaine for Pearl Phoenix were improperly admitted under FRE 801(d)(2)(E). Co-conspirator statements are admissible under this hearsay exception only if the trial judge determines that a proper foundation exists. A proper foundation consists of proof, independent of the statements themselves, to establish a prima facie case for (1) the existence of the conspiracy and (2) the defendant's connection to and knowing participation in the conspiracy. The trial court also had to find that the challenged statement was made (3) during the course of and (4) in furtherance of the objectives of the conspiracy. See United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (9th Cir.1981); United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.1976) (per curiam), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977).

The trial court stated that, absent hearsay evidence, Silverman's membership in the conspiracy could not be established. It admitted two crucial pieces of evidence under FRE 801(d)(2)(E). The first was Pearl's statement to Willard that her brother David Silverman was her cocaine source. The second was Pearl's response to Willard's question in a telephone call after he had become an informant: "Is your brother cool [concerning delay in paying for the cocaine]?" Pearl's response was "Don't worry." Silverman's attorney objected at trial to the admission of both statements, alleging that the evidence linking Silverman to the conspiracy was insufficient to admit the statements under FRE 801(d)(2)(E) and that neither statement was made "in furtherance of the conspiracy." The district judge ruled that the foundation was sufficient because there was independent evidence of a slight connection between Silverman and the conspirators. Silverman contends, on appeal, that the district judge erred and the statements were erroneously admitted.

A. Silverman's connection to the conspiracy

Silverman contends that de novo review is proper on the issue whether he was connected to the conspiracy. Review of a prima facie case of conspiracy, the first prong of the test, has been established as de novo in this Circuit. United States v. Layton, 720 F.2d 548, 556 n. 4 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984); United States v. Rosales, 584 F.2d 870, 872 (9th Cir.1978). The evidence of the defendant's connection to the conspiracy must also constitute a prima facie case. See, e.g., Miranda-Uriarte, 649 F.2d at 1349-50; United States v. Weiner, 578 F.2d 757, 769 (9th Cir.) (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); United States v. Testa, 548 F.2d 847, 853 (9th Cir.1977). We agree with Silverman and will review the evidence of his connection to the conspiracy de novo to determine whether it established a prima facie case.

Silverman does not contend that a conspiracy did not exist, but rather that he was not knowingly connected to it. Therefore, the real issue in this case is whether Silverman also questions the quantum of independent evidence required to establish a prima facie case of his connection to the conspiracy. The connection is an essential factor for the foundation for admission of the hearsay evidence. "To demonstrate a meeting of minds, one of them must be shown to be [the defendant's]." United States v. Peterson, 549 F.2d 654, 658 (9th Cir.1977). See United States v. Nixon, 418 U.S. 683, 701 & n. 14, 94 S.Ct. 3090, 3104 & n. 14, 41 L.Ed.2d 1039 (1974); ...