U.S. v. Van Daal Wyk

• Decision Date: 19 February 1988
• Docket Number: No. 86-1951,86-1951
• Parties: 24 Fed. R. Evid. Serv. 1200 UNITED STATES of America, Plaintiff-Appellee, v. William P. VAN DAAL WYK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 494

840 F.2d 494

24 Fed. R. Evid. Serv. 1200

UNITED STATES of America, Plaintiff-Appellee, v. William P. VAN DAAL WYK, Defendant-Appellant.

No. 86-1951.

United States Court of Appeals Seventh Circuit.

Argued May 19, 1987.

Decided Feb. 19, 1988.

Thomas A. Else, Jr., Hieber Else & Assoc., Chicago, Ill., for defendant-appellant.

Eric J. Klumb, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before WOOD and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Out-of-court statements made by fellow conspirators of a criminal defendant are, under Federal Rule of Evidence 801(d)(2)(E), deemed not to be hearsay if made during the course and in furtherance of the conspiracy. William P. Van Daal Wyk was convicted of possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute. 21 U.S.C. Secs. 841(a)(1), 846. He contends that the court below erred in finding that statements offered against him at trial fit under 801(d)(2)(E). He contends that the court erred both in finding on the basis of evidence independent of hearsay that he participated in the conspiracy and in finding that certain statements were made in furtherance of the conspiracy. We will affirm.

I

William P. Van Daal Wyk was charged with eight other defendants in a thirty-six count indictment. Van Daal Wyk was charged in two counts: count one, conspiracy to possess cocaine with intent to distribute, and count fifteen, possession of cocaine with intent to distribute. He was tried separately, convicted on both counts, and sentenced to two concurrent twenty-year terms of imprisonment.

The principal issue in this case is whether the trial court erred in admitting coconspirator hearsay statements. Under Fed.R.Evid. 801(d)(2), "A statement is not hearsay if--... The statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801 thus removes certain coconspirator statements from the domain of Rule 802, which provides that hearsay is inadmissible unless it falls into one of the many exceptions.

For out-of-court statements to be admissible under Fed.R.Evid. 801(d)(2)(E), we have held that the government must prove by a preponderance of competent evidence independent ¹ of the statements (1) that the conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the statements were made during the course of and in furtherance of the conspiracy. See, e.g., United States v. Kaden, 819 F.2d 813, 819 (7th Cir.1987); United States v. Boucher, 796 F.2d 972, 974 (7th Cir.1986). United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir.1978). The showing may be made on the basis of circumstantial evidence. Kaden, 819 F.2d at 819 (citing United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979)). We disturb the district court's finding that these requirements are met only if it is clearly erroneous. United States v. Shoffner, 826 F.2d 619, 627 (7th Cir.1987); Kaden, 819 F.2d at 819.

The trial court in this case followed a procedure that we have long sanctioned. The court permitted the government to introduce at trial evidence of the statements on the basis of an offer of proof, subject to the condition that at the close of the government's case the defendant could move for a mistrial or for evidence of the statements to be struck. See Santiago, 582 F.2d at 1131; United States v. Frasch, 818 F.2d 631, 635 (7th Cir.1987). Van Daal Wyk made such a motion, which the trial court denied.

The government made the following showing at trial: James T. Brill ran a thriving cocaine wholesale distribution business based in Oshkosh, Wisconsin. Russell Buckner testified at trial about the operation. Buckner's chief job was that of courier between Brill and Brill's supplier. He delivered cocaine and money to and from Oshkosh for Brill, visiting such places as Chicago, Milwaukee, California, and Madison. He carried money in amounts up to $525,000 and cocaine in masses up to twenty kilograms.

From December of 1983 to August of 1984, the garbage at Brill's apartment was picked up not by sanitary workers but by Thomas Larson, a Special Agent of the Internal Revenue Service. Larson found ledgers used to record business transactions. He also found many handwritten notes. The tokens "lb" to "g" appear frequently in these notes: pounds and grams are units of measure frequently used in drug transactions. There were also notations containing the name "Bill" next to various numbers; the defense did adduce evidence that Brill dealt with others in the narcotics business named "Bill." Van Daal Wyk appeared in photographs found in Brill's garbage and others found later in his home. Shortly before Brill moved from the apartment, Larson found in the garbage a note to Brill informing him that federal agents were picking up his garbage. Larson continued to inspect Brill's garbage at his new address.

James Davolis, a cocaine dealer, testified to buying cocaine from Brill and from Van Daal Wyk. Davolis regularly bought quarter and half pounds of cocaine from Brill until the end of 1984. Twice when Davolis was unable to reach Brill he bought an ounce of cocaine from Van Daal Wyk. Davolis had met Van Daal Wyk after joining a darts team that had Brill and Van Daal Wyk as members. Davolis ceased selling cocaine in mid-1985. He referred his customers to Van Daal Wyk for an agreed-upon commission.

Leon Luker testified that after he asked Brill where he could obtain cocaine, Brill responded that although he had none in his home, he would have "Bill" contact him that evening. Van Daal Wyk went to Luker's home that evening and sold Luker a quarter or half ounce of cocaine. Luker subsequently bought similar quantities of cocaine from Van Daal Wyk at least nine times. The first two transactions were cash on delivery: after that, Van Daal Wyk "fronted" the cocaine to Luker, meaning that Luker would pay the purchase price on Van Daal Wyk's next visit.

Randy Fischer, known as the "Fish Man," testified to buying an ounce or more of cocaine from Van Daal Wyk at least ten times, also using the "fronting" method of inventory financing. Van Daal Wyk stored a safe in the pantry of Fish Man's home, telling Fish Man that he thought someone might be watching him. On January 12, 1985, when Fish Man wished to buy three ounces of cocaine, Van Daal Wyk went into the pantry and returned with the three ounces. That day Fish Man sold the three ounces to Daniel Layber, an undercover narcotics agent for Wisconsin's State Division of Criminal Investigation. The three ounces were later tested and found to contain cocaine, of undetermined purity. Fish Man had sold cocaine to Layber twice previously. On the third occasion, Layber arrested Fischer.

Van Daal Wyk told Davolis that he had lost a kilogram of cocaine because of Fish Man's arrest. He told Davolis further that the lost kilogram had been in a safe, and that he owed Brill about $40,000 for it. Van Daal Wyk told Buckner that he was "paranoid about the pressures that were being placed upon him" as a result of Fish Man's arrest and was considering absconding.

Brill told Buckner that Fish Man had been arrested and that Fish Man was a dealer for Van Daal Wyk. Brill said to "beware of Fish Man," because he might now be a government informant. He also told Buckner to instruct one Lenny Arnold not to distribute any cocaine to Van Daal Wyk: "he felt there was too much heat on him from the Fish Man bust." He further told Buckner that Van Daal Wyk owed him $30,000 for cocaine lost in a safe that the Fish Man had had.

Before Fish Man's arrest, Van Daal Wyk had told Davolis that he had bought a safe and intended to secure an apartment to use as a "safe house." A "safe house" is not simply a house used to store a safe: rather, it is a place used to store contraband that one does not wish to have about one's own abode. On January 24, 1985, Van Daal Wyk leased an apartment in Oshkosh, where he subsequently lived. The next day the apartment across the hall was leased to one "Sarah Winston." Van Daal Wyk on one occasion paid the monthly rent for both apartments, in cash.

The results of a search of "Sarah Winston's" apartment were consistent with its use as a safe house. Found were plastic bags with cocaine residue; empty containers of Inositol, a white powder used to "cut" (dilute to increase volume and thus profitability) cocaine; and an empty bag of latex gloves. Buckner identified the type of packaging material found as the type used by Brill in transporting cocaine. In the closet, part of the ceiling had been cut away and a piece of wood fastened to it like a handle, such that the space above could be used as a hiding place.

The manager of the apartment house testified as to what she saw in Van Daal Wyk's apartment. She found money wrappers with denominations written on them, a piece of paper with names and weights written on it, and a pamphlet about drug smuggling. She also found a balance scale. Scales are a necessity in the narcotics business. They also have other uses; the manager testified that she had had one in her apartment with fruit in it.

We note first that some of the out-of-court statements in the above narrative, although they would be hearsay if offered as proof of the truth of their content, could properly have been considered by the court for other purposes in determining whether the requirements of 801(d)(2)(E) were met. For example, Brill's statement that Van Daal Wyk owed him money for lost cocaine from the safe would be hearsay if offered to prove that Van Daal Wyk actually owed Brill money for cocaine. But this case was not an action by Brill to collect on the debt. Evidence of Brill's statement had probative value in...