U.S. v. Silverman
| Decision Date | 16 November 1988 |
| Docket Number | No. 83-1314,83-1314 |
| Citation | 861 F.2d 571 |
| Parties | , 27 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, v. David SILVERMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce M. Kaufman, Sherman Oaks, Cal., for defendant-appellant.
Brian L. Sullivan, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before WALLACE, ALARCON and NELSON, Circuit Judges.
David Silverman appeals from his conviction for conspiracy to distribute a controlled substance (cocaine), possession with intent to distribute a controlled substance (cocaine), interstate travel in aid of racketeering, and aiding and abetting, in violation of 21 U.S.C. Secs. 846 and 841(a)(1) and 18 U.S.C. Secs. 1952(a)(3) and 2. He seeks reversal on two grounds.
First, he argues that the district court erred in admitting into evidence the extrajudicial statements of an alleged co-conspirator. He claims that apart from the contested statements themselves, insufficient evidence established his connection to the conspiracy.
Second, he contends that the district court erred in instructing the jury that a defendant's concealment of his identity from government agents would support an inference of guilt of the charged offenses. He asserts that because the concealment in this case occurred two months after the last act committed in the course of the alleged conspiracy and because the agents did not disclose the charges against him, no inference of guilt is justified.
In our initial decision on this appeal, we affirmed the judgment of conviction. United States v. Silverman, 771 F.2d 1193 (9th Cir.1985) (2-1). We subsequently granted the petition for rehearing and withdrew our initial decision. United States v. Silverman, 796 F.2d 339 (9th Cir.1986) (2-1). We sent our second opinion in this matter to the clerk's office for filing on June 22, 1987. We were compelled to withdraw that opinion the next day, however, because of the Supreme Court's decision in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Bourjaily distinguished decisions we had relied upon in our second opinion on the issue of the admissibility of a co-conspirator's statements.
Having reexamined the record in light of Bourjaily, a majority of the court has concluded that the district court erred in admitting the statements of David Silverman's alleged co-conspirator. Because that error was prejudicial, we now reverse.
Reversal based on prejudicial error in the admission of evidence does not bar retrial. United States v. Harmon, 632 F.2d 812, 814 (9th Cir.1980) (per curiam). We, therefore, address David Silverman's contention that the district court erred in instructing the jury on flight, to assist the Government in determining whether retrial of this matter is warranted.
Before presenting the compelling reasons that support our conclusions, we set forth the facts pertinent to a clear understanding of the issues we must resolve in this case.
Prior to trial, David Silverman, through his attorney Bruce M. Kaufman, filed a motion in limine requesting that the district court exclude certain hearsay statements allegedly uttered by his sister, Pearl Phoenix (Pearl), on the ground that the Government would be unable to demonstrate a preliminary fact upon which admission of the statements depended--David Silverman's connection to the alleged conspiracy. The district court denied the motion "without prejudice to object to the admission of such evidence at the time of trial or to move to strike same."
The Government's principal witness was David Willard (Willard). Willard testified pursuant to a plea agreement in which he promised to assist the Government in exchange for its promise to dismiss certain charges against him.
Willard testified that he purchased cocaine from Pearl and resold it to Robert Zeitziff (Zeitziff). On three occasions, Zeitziff provided a private airplane in which he, Willard, and Pearl flew from Reno, Nevada to Van Nuys, California to obtain cocaine.
The first flight took place on May 13, 1983. After landing in Van Nuys, Willard called Valley Cab Co. to request a cab for Pearl. Willard testified as follows concerning Pearl's conduct and statements at the airport:
Q. And you called a cab for her?
A. I called a cab for her and she went outside to a pay phone and at which time--
Q. Why did she go to a pay phone?
A. She told me she was going to call somebody.
Q. Did she tell you who she was going to call?
A. Yes, she did.
Q. Who?
A. Her brother.
The record does not reveal whether Pearl completed this call or, if so, whom she called. The record does show that Pearl had two brothers, Frank Silverman and appellant David Silverman, both of whom resided in the western part of the San Fernando Valley.
Pearl departed in a cab. After having been away for two or three hours, she returned to the airport and gave Willard a package containing about six ounces of cocaine.
Zeitziff, Willard, and Pearl again flew to the Van Nuys Airport on May 31, 1983. Willard again called a cab for Pearl. The transcript contains the following testimony concerning this event:
Q. When you first got there what did you do, what did Bob Zeitziff do?
A. He went to take care of the plane.
Q. What did you do?
A. I went to call the cab.
Q. What did Pearl do?
A. She went to the pay phone.
Q. What did she do?
A. She called somebody.
Q. Who did she call?
A. Said her brother.
MR. KAUFMAN [Silverman's counsel]: Objection.
MR. SULLIVAN [government counsel]: Your Honor, I submit it's not hearsay. He's basically explaining what the witness did.
THE COURT: All right, the objection will be overruled.
Again, the record does not show that this call was in fact completed or, if so, which brother was called. On this occasion, Pearl was away from the airport for an hour or two. Upon her return, she gave Willard another package containing approximately six ounces of cocaine.
Pearl, Willard, and Zeitziff flew to the Van Nuys Airport for a third time on June 25, 1983. Willard testified that upon landing they followed the "same procedure." Willard testified as follows:
Q. Where did you go?
A. I went to call a cab.
Q. Same cab company?
A. Same cab company and Mrs. Phoenix went to make a phone call.
Q. Did she tell you who she called?
A. Yes, sir.
Q. Who?
A. Her brother.
This testimony does not establish whether the call was completed. It should also be noted that the court did not articulate the basis for its previous ruling. See quoted portion of the transcript concerning the May 31, 1983 extrajudicial statement set forth above. We must assume that the court overruled the objection because it accepted the prosecutor's theory that Willard was "basically explaining what the witness did."
Willard's testimony continued as follows:
Q. Did she tell you her brother's name?
A. Yes, sir.
Q. What was it?
A. David.
Q. Did she tell you his last name?
A. Silverman.
Q. Did she leave in the cab?
A. Excuse me, she didn't tell me she called David Silverman at that time. I knew the name was Silverman from before.
Willard further testified that on this occasion, after having been away from the airport for several hours, Pearl returned to the airport in a little blue car driven by a man. Willard made an in-court identification of Silverman, as "look[ing] like the individual" who was driving the car. On redirect examination, Willard stated that the driver "looked very much like him [David Silverman]." Willard testified that he had never met David Silverman, but had seen a photograph of him at Pearl's house prior to June 23, 1983.
Willard was arrested shortly after his return to Nevada following the third trip to Southern California. He promised to cooperate with the Government. As part of the bargain, Willard agreed to record his conversations with Pearl and her husband, David Phoenix.
The Government introduced a tape recording of an August 1, 1983 conversation between Willard and Pearl. The district court overruled David Silverman's objection to the playing of this tape without explanation. During this conversation, Willard asked Pearl, "Is your brother cool?" Pearl responded, "Don't worry." The court indicated that this statement was admissible as "co-conspirators' statements."
Following the playing of these recordings, Government counsel asked Willard whether Pearl or David Phoenix had told him, prior to May 13, 1983, the name of her supplier of cocaine. Mr. Kaufman, Silverman's attorney, objected to this question. The court then heard argument on the objection outside the presence of the jury. Mr. Kaufman argued that the Government had not satisfied its "foundational requirements" for the admission of the extrajudicial statements of a co-conspirator. The court overruled the objection stating that it was "a fairly close, tough question for the court to tackle but nevertheless I think that it does meet the test of [Fed.R.Evid.] 801(d)(2)(E) and so I'm going to permit the question to be answered." The court did not discuss the evidence that it believed satisfied the government's burden of establishing the preliminary fact of Silverman's connection to the conspiracy.
Following the court's ruling, Willard testified as follows:
Pearl Phoenix. I'm not exactly clear on the dates when she told me, but it was in Floriston at their house, the Phoenixes'...
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