U.S. v. Tyler
| Decision Date | 08 January 1975 |
| Docket Number | No. 73-3320,73-3320 |
| Citation | 505 F.2d 1329 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Clinton TYLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sam W. Kleinfeld, Miami, Fla. (Court-appointed), for defendant-appellant.
Robert W. Rust, U.S. Atty., Michael Patrick Sullivan, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
Robert Clinton Tyler was indicted below under Counts I and V of a five-count indictment charging violations of narcotics laws. Count I charged that Tyler and two others conspired to possess cocaine with the intent to distribute it, in violation of Title 21, U.S.C. Sec. 846. Count V charged that Tyler and one of the alleged co-conspirators, Ramon Armand, actually possessed approximately 823 grams of cocaine with the intent to distribute it, in violation of Title 21, U.S.C. Sec. 841(a)(1). From jury verdicts of guilty on both counts and judgments of conviction entered thereon, Tyler brings this appeal. We reverse.
Government agents had been observing and negotiating with Tyler's alleged co-conspirator, Ramon Armand, from February 1 to March 29, 1973, hoping to uncover Armand's source of cocaine. During this period a government agent had made one purchase of approximately 378 grams of cocaine from Armand. On March 29, Armand met government undercover agent Gillis at a Denny's Restaurant in North Miami, Florida, and the two discussed possible purchase by Gillis of two kilograms of cocaine from Armand.
Details were arranged for a transaction to take place later that evening. Armand stated that he was obtaining cocaine from a 'new source.' Armand and Gillis, pursuant to these arrangements, met at Armand's apartment at approximately 5:30 that afternoon. The agreement called for Gillis at this point to pay Armand the $25,000 purchase price for the cocaine in advance and wait in the apartment while Armand left to obtain the cocaine, return and deliver it to Gillis. But Gillis now indicated that he wished to see a sample of the cocaine before parting with the $25,000. Armand agreed with this. After pausing to count the money, he left in his automobile, ostensibly to get the cocaine sample.
Armand was under surveillance from the time that he left his apartment. Government agents testified that he drove to a garage apartment, later identified as the appellant Tyler's residence. Armand parked his automobile and ascended the stairs to the apartment, where he disappeared from the agent's view. Within about five minutes Armand left the apartment and reentered his automobile, driving around the streets near Tyler's apartment for a short while. He then returned to the apartment and talked briefly with an individual on the street corner. There is conflicting testimony whether this individual was the appellant Tyler. 1 Armand then went upstairs once more to Tyler's apartment.
Shortly thereafter, Armand came down from the apartment followed by Tyler. Armand in his car and Tyler in his van drove to the vicinity of Armand's apartment. Once there, Armand parked near his apartment and joined agent Gillis in Gillis's automobile. Tyler parked his van some distance behind Armand's car, got out and stood waiting with a Chivas Regal liquor carton under his arm. Gillis testified that he asked Armand where the cocaine sample was and Armand replied that he had brought the entire quantity with him and that his source was also with him, gesturing in Tyler's direction. Gillis immediately placed Armand under arrest and radioed other agents to close in and arrest Tyler.
Agent Hill approached Tyler and informed him that he was under arrest. After advising Tyler of his right to remain silent, Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Hill asked Tyler whose 'stuff' he had in the Chivas Regal carton. Tyler responded that it was his. Examination of the contents of the carton revealed a plastic bag containing what was later proved to be the 846 grams of cocaine. Hill then asked Tyler 'Who is the man?' and 'Where's the other kilo at?' At this point, according to Tyler's testimony, he responded 'Right now I really don't know what you're talking about, because I really am not going to answer any questions, because I don't know what you're talking about.'
At trial, Tyler explained his refusal to answer questions with the following: 'I didn't know what was going on and he (Agent Hill) was telling me anything I said might be used against me.' Tyler explained his possession of the Chivas Regal carton containing the cocaine by stating that a fellow musician, Pepe Rodriguez had introduced him to Armand one afternoon at a rehearsal session. The following day, Pepe brought the Chivas Regal carton with him to Tyler's apartment where another rehearsal was scheduled. As Pepe prepared to leave the apartment later in the day, he explained to Tyler that he was expecting his friend Ramon (Armand) to come by and asked Tyler if he would mind giving Ramon the Chivas Regal carton when he came. Tyler agreed and placed the carton on a table in the corner of his living room. Tyler testified that the carton was 'all folded up and sealed up like it was new.' Only moments after Pepe left, Ramon arrived at the apartment and asked where Pepe was. Tyler responded that he had just left. The two went onto the stair landing to see if they could not overtake Pepe, but he was nowhere to be seen. Ramon then asked whether Pepe had left anything for him, to which Tyler answered that he had and indicated the Chivas Regal carton in the corner of the living room. Ramon then asked Tyler whether he would like to come to Ramon's apartment to join some friends for some drinks, and Tyler answered that he would. Ramon then told Tyler to bring the Chivas Regal carton and to follow him. As it turned out, the party at Armand's was a bust.
Tyler urges that reversible error occurred in the trial below in two respects. The first ground is that hearsay testimony as to Armand's identifying him as his source was improperly allowed to go to the jury. The government did not call Armand to the stand to testify, although he was apparently in custody in Miami and available at the time of trial. Tyler contends that there was insufficient independent evidence of his participation in a conspiracy with Armand to warrant admission of the hearsay under the co-conspirator exception to the hearsay rule. He asserts further that introduction of the hearsay denied him his Sixth Amendment right to confront and cross-examine the witnesses against him. Cf. Dutton v. Evans, 1970, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213. Because we decide the case on the co-conspirator exception to the hearsay rule, we find it unnecessary to reach this alternative contention.
We determine that there was an insufficient independent showing that Tyler entered into a conspiracy to distribute cocaine to permit admission of Armand's statement under the...
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...1974), and followed in subsequent decisions, See, e. g., United States v. Rodriguez, 509 F.2d 1342 (5th Cir. 1976); United States v. Tyler, 505 F.2d 1329 (5th Cir. 1975). If the judge is satisfied that this test has been met, then under existing law the jury is instructed, both when the hea......
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