U.S. v. Talley

• Decision Date: 14 January 1999
• Docket Number: No. 97-5640,97-5640
• Citation: U.S. v. Talley, 164 F.3d 989 (6th Cir. 1999)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy L. TALLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 989

164 F.3d 989

UNITED STATES of America, Plaintiff-Appellee, v.Billy L. TALLEY, Defendant-Appellant.

No. 97-5640.

United States Court of Appeals Sixth Circuit.

Argued July 28, 1998.

Decided Jan. 14, 1999.

Frederick H. Godwin, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.

Arthur E. Quinn(argued and briefed), Memphis, TN, for Defendant-Appellant.

Before: JONES, RYAN, and MOORE, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendant-AppellantBilly Talley("Talley") appeals his conviction and sentence for two counts of solicitation to commit the murder of an FBI agent and witness informant.Talley asserts seven errors on appeal.For the reasons stated herein, we find that the district court did not err on any of these grounds, and affirm Talley's conviction and sentence.

I.

In late 1995, the Federal Bureau of Investigation ("FBI") began investigating an individual by the name of Kelvin Marr.Marr subsequently became a government informant and began providing information regarding criminal activity allegedly committed by Talley, who at that time was a lieutenant and deputy sheriff in the Shelby County Sheriff's Department in Memphis, Tennessee.In order to substantiate this information, Ellis E. Young, the primary investigator on the case and a Special Agent with the FBI, asked Marr to tape record conversations between Marr and Talley regarding various criminal activities.Marr complied with Young's request, and on several occasions, Marr recorded conversations he had with Talley and delivered them to Young.As a result of Young's investigation, Talley was subsequently arrested and charged with various criminal activities.¹Other than Young and Marr, there were no witnesses who could testify about the tapes Marr made of his conversations with Talley.

On January 27, 1996, shortly after his arrest, Talley contacted his friend, Ron Tyler. Tyler and Talley met and became close friends while Tyler was an inmate and Talley was a jailer at the Shelby County Jail.In fact, Talley had saved Tyler's life on one occasion and Tyler considered Talley to be his best friend.At one point, Tyler had even worked as an informant for Talley.Although this conversation was not recorded, Tyler testified at trial that Talley specifically asked him to "take 'um out and pop 'um," which Tyler understood to be a request for him to kill Young and Marr.According to Tyler, Talley explained that he wanted Young and Marr killed because he did not want to lose his job or go to jail based on the criminal charges against him.Tyler then immediately contacted his lawyer, who contacted the United States Attorney's office.The office assigned Special Agent John Seaberg of the FBI to interview Tyler and conduct an undercover investigation of Talley.

On January 30, 1996, Seaberg arranged for Tyler to tape record a conversation with Talley.Seaberg instructed Tyler to give Talley's friend and attorney at the time, Mark Saripkin, the number of a telephone booth in Little Rock, Arkansas, and an assigned time for Talley to call Tyler.²The conversation between Talley and Tyler proceeded as follows:

Tyler: All right.So I know what me and you's [sic] already talked about.

Talley: Right.

Tyler: And I know then ...

Talley: (Unintelligible), yeah.

Tyler: Listen, listen ...

Talley: Call it the thing.

Tyler: Huh?

Talley: Call it the thing.

Tyler: Call what?

Talley: What me and you talked about.

Tyler: What the pop?

Talley: Yeah.

Tyler: All right.We'll call it the thing then.All right.Listen, uh BILLY, don't you trust me?

Talley: Absolutely, a hundred percent.

Tyler: Then why [expletive] are we calling a lick, a [expletive] hit, a thing?

Talley: Yeah, well.

J.A.at 140-41.Tyler then informed Talley that he had spoken with Saripkin, about getting "stuff" on Marr and Young.J.A.at 147-48.Tyler stated that Saripkin had informed him that he had already obtained a picture of Marr, and that he would find out where Young lived.Tyler had previously indicated to Saripkin that he needed this information because he wanted to come into town and do the "thing" and then get out.Additionally, Tyler told Talley that in return for his help, he wanted Talley to do a "drive-by" shooting of individuals he held responsible for murdering his mother and shooting three of his children.Talley agreed to do the drive-by as soon as he got "this off [his] back."

On February 20, 1996, a federal grand jury returned a two count indictment against Talley.Count One concerned the January 27, 1996 unrecorded conversation between Tyler and Talley, and charged that Talley "solicited, induced and endeavored to persuade another person to kill, and attempt to kill" a Special Agent employed by the FBI, in violation of 18 U.S.C. § 1114, and a witness with intent to prevent that witness from testifying, in violation of 18 U.S.C. § 1512, all in violation of 18 U.S.C. § 373.Count Two concerned the January 30, 1996 tape-recorded telephone conversation between Tyler and Talley and charged Talley with the criminal violations specified in Count One.

The jury trial in Talley's case commenced on December 4, 1996.The key evidence presented by the government was Tyler's testimony and the tape-recorded conversation between Talley and Tyler.During the trial, the government provided each juror with an individual headset and a tape of Talley's January 30, 1996 telephone conversation with Tyler.The taped conversation was also played simultaneously in open court, and the government provided jurors with a written transcript of the tape recorded conversation to read while listening to the tapes.At some point, two jurors removed their headphones for a few minutes, complaining that there was static on the tapes and that portions of the tapes were playing too loudly.Both jurors indicated that although they had removed their headphones, they had continued to read the transcripts.At this juncture, Talley's attorney reasserted a previous objection to the headphones, arguing that the sound system was inappropriate because each juror could have heard the tapes differently.The district court overruled the objection, noting that the jurors all had copies of the transcript, and that to the extent that there were differences in the quality of sound on the tapes, all the jurors had the same information because of the printed transcript.

At trial, the government called Tyler as a witness, at which time he attempted to invoke his Fifth Amendment privilege against self incrimination.The district court, however, rejected this attempt and ordered Tyler to testify, noting that the government had granted him immunity pursuant to 18 U.S.C. §§ 6002and6003.During Tyler's cross-examination, the defense elicited that Tyler's real name was Ronnie Atkins, and that he had changed his name after enrolling in a federal witness protection program.Apparently, while serving time in jail on an unrelated charge, Tyler was informed that he was no longer eligible for the program.From the beginning of his involvement in the FBI's investigation of Talley, Tyler had requested to be reinstated in the program.Although the government refused to reinstate Tyler in the witness protection program, the FBI did provide him with money to relocate his family.

Also during the trial, Talley attempted to call Saripkin in order to refute portions of Tyler's testimony.Unlike Tyler, however, Saripkin had not been granted immunity, and on advice of counsel, Saripkin refused to testify.Talley then submitted an offer of proof as to Saripkin's testimony, which provided that Saripkin would have testified as follows: that he represented Talley; that during his representation he received contacts from Tyler, each of which Tyler had initiated except one; that he did not plan, scheme or conspire with Tyler or Talley to eliminate witnesses; and that during his conversations with Tyler, Tyler was extremely aggressive and domineering.

The jury found Talley guilty on both counts of the indictment, and on April 21, 1997, the district court sentenced Talley to 170 months' imprisonment on each count, to run concurrently.Talley was also ordered to serve a period of three years' supervised release and to pay a special assessment of $50.This timely appeal followed.

II.

Talley raises the following seven issues on appeal: 1) insufficiency of the evidence; 2) failure to grant a witness immunity; 3) hearsay and bad act evidence improperly admitted through evidence of a tape recorded conversation; 4) improper use of headphones by jurors; 5) improper empaneling of an anonymous jury; 6) denial of his motions for a mistrial; and 7) improper enhancement of his sentence pursuant to U.S.S.G. § 3A1.2(a).We analyze each of these arguments in turn.

A.Insufficiency of the Evidence

Talley first contends that the evidence the government presented at trial was insufficient to sustain his convictions, and thus, the district court erred in denying his motion for judgment of acquittal.In deciding whether the evidence is sufficient to withstand a motion for an acquittal, and support a conviction, the court views all evidence in the light most favorable to the prosecution and determines whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt.SeeUnited States v. Welch, 97 F.3d 142, 148(6th Cir.1996), cert. denied sub nom.Parker v. United States, 519 U.S. 1134, 117 S.Ct. 999, 136 L.Ed.2d 879(1997).In undertaking this analysis, this court neither independently weighs the evidence, nor judges the credibility of witnesses who testified at trial.Id.A court properly denies a challenge to the sufficiency of the evidence where "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v....