U.S. v. Walls

• Decision Date: 08 December 1995
• Docket Number: Nos. 94-3033,s. 94-3033
• Citation: 315 U.S. App. D.C. 111,70 F.3d 1323
• Parties: , 64 USLW 2386 UNITED STATES of America, Appellee, v. Riley S. WALLS, Sr., Appellant. UNITED STATES of America, Appellee/Cross-Appellant, v. Karen M. BLAKNEY, Appellant/Cross-Appellee. to 94-3037, 94-3054.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1323

70 F.3d 1323

315 U.S.App.D.C. 111, 64 USLW 2386

UNITED STATES of America, Appellee, v. Riley S. WALLS, Sr., Appellant.

UNITED STATES of America, Appellee/Cross-Appellant, v. Karen M. BLAKNEY, Appellant/Cross-Appellee.

Nos. 94-3033 to 94-3037, 94-3054.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 11, 1995.

Decided Dec. 8, 1995.

Rehearing Denied in Nos. 94-3033 and 94-3036 and Suggestion

for Rehearing In Banc Denied in No. 94-3036 Feb.

13, 1996. ^*

Appeals from the United States District Court for the District of Columbia, (92cr00234).

Robert S. Becker, Washington, DC, appointed by this court, argued the cause and filed the briefs for appellant Walls.

Barbara R. Miller, Washington, DC, appointed by this court, argued the cause and filed the briefs for appellant Jackson.

Robert Morin, Washington, DC, appointed by this court, argued the cause and filed the briefs for appellant/cross-appellee Campbell.

Peter M. Brody, Washington, DC, appointed by this court, argued the cause and filed the briefs for appellant/cross-appellee Blakney.

Barbara A. Grewe, Assistant United States Attorney, argued the cause for appellee/cross-appellant. With her on the briefs were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Roy W. McLeese, III, Assistant United States Attorneys.

Before: WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.

RANDOLPH, Circuit Judge:

The charges in this multi-count, multi-defendant drug prosecution stemmed from four transactions in which two undercover agents of the Drug Enforcement Administration purchased crack cocaine. The first trial ended in a mistrial, because of juror intimidation. The second trial resulted in the conviction of each of the four defendants. Riley Walls, who negotiated the deals and conducted the sales, received a mandatory life sentence pursuant to 21 U.S.C. Sec. 841(b). So did Jerome Jackson, Walls' partner and the source of the cocaine. Karen "Cookie" Blakney, who converted powder cocaine into the crack cocaine, received three concurrent sentences of thirty-months' imprisonment, plus a term of supervised release. Charles "Frank" Campbell, who served the same function as Blakney, received two concurrent sentences of thirty-three months' imprisonment, plus a term of supervised release. All four defendants have appealed, asserting trial and sentencing errors. The government has cross-appealed the district court's refusal, on the basis of the Eighth Amendment, to apply the minimum sentences required by Sec. 841(b) to Blakney and Campbell.

I

It would serve no useful purpose to begin with the customary narrative describing the four drug transactions, the negotiations that preceded them, and the activities of each defendant in the conspiracy. The issues relating to the trial may be dealt with summarily. To the extent necessary, we will fill in the facts as we go along. Part II of this opinion will deal with the sentencing issues raised by Walls and Jackson, and by the government in its cross-appeal of the sentences imposed on Blakney and Campbell.

Campbell's Sixth Amendment Claim. While two DEA agents, including one of the undercover agents, were booking Campbell, he incriminated himself. He started asking about his indictment, and wound up admitting that he cooked the crack cocaine. The district court denied Campbell's motion to suppress his statements, correctly rejecting his argument that the agents violated his Sixth Amendment right to counsel. The agents elicited none of Campbell's incriminating remarks. Compare Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). They did not create an atmosphere designed to induce him to talk about his crimes. Compare Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 1239-40, 51 L.Ed.2d 424 (1977). Campbell initiated the conversation by asking to whom he allegedly sold the crack. He was told it was the undercover agent. He then asked how the DEA came up with his nickname "Frank." The undercover agent simply replied that Frank Campbell was known in southeast Washington. At that point, Campbell began trying to minimize his involvement in the offenses. He continued talking despite the agents' warning that he was entitled to have an attorney present. At no time did Campbell ask to speak with his lawyer. The case thus fits squarely within the line of decisions holding that officers do not violate a defendant's right to counsel when the defendant volunteers information about his offense while officers ask routine booking questions, see, e.g., Robinson v. Percy, 738 F.2d 214, 219 (7th Cir.1984), or inform the defendant of the indictment, see, e.g., United States v. Cannon, 715 F.2d 1228, 1232 (7th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984).

Campbell's Severance Motions. The district court properly denied Campbell's motions for a severance. The evidence of Campbell's participation in the conspiracy was overwhelming. Campbell's co-defendants repeatedly acknowledged his participation in the conspiracy; the undercover agents observed Campbell cooking the crack; and Campbell himself admitted his criminal activities. There was no gross disparity in the evidence against Campbell as compared with the evidence against his co-defendants, certainly nothing approaching the imbalance needed before a reviewing court will set aside a district court's discretionary judgment under Federal Rule of Criminal Procedure 14 to hold a single trial. See, e.g., United States v. Sampol, 636 F.2d 621, 647 (D.C.Cir.1980); United States v. Childress, 58 F.3d 693, 715 n. 6 (D.C.Cir.1995); United States v. Long, 905 F.2d 1572, 1581 (D.C.Cir.), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990).

The District Court's Designation of the Undercover Agents as Experts. Jurors as well as judges often need help in deciphering the jargon of those engaged in the drug trade. See, e.g., United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.1987); United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380, and cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987), and cert. denied, 484 U.S. 1061, 108 S.Ct. 1018, 98 L.Ed.2d 983 (1988). This trial is a case in point. The government introduced lengthy audio tapes of conversations between the defendants and the undercover agents. Through what often appeared to be gibberish, punctuated with vulgarities, the participants were communicating with each other. In the aborted first trial, the district court treated the undercover agents, pursuant to Federal Rule of Evidence 706(a), as experts in translating some of the more arcane portions of the conversations, thus putting the defendants on notice that the court would do the same in the second trial, as it did. See Scott v. Spanjer Bros., 298 F.2d 928, 931-32 (2d Cir.1962). We do not see how Walls, Blakney, and Campbell were prejudiced by what they see as erroneous appointments. That the agents' "specialized knowledge" would "assist the trier of fact to understand the evidence" (FED.R.EVID. 702) is beyond doubt. The agents conducted one side of the conversations and were trained in the language of the trade. Without their help, the jury might not have been able to understand such phrases in the recorded exchanges as: "shake" [cocaine]; "ready to shake out" [ready to purchase]; "rock it up" [transform cocaine powder into cocaine base]; "little runners" [individuals working for drug dealers]; "put some heat on that" [cook the cocaine]; "slice them joints up" [cutting the cocaine base]; "about eight pairs of shoes on it" [cocaine of a quality that could be cut eight times]. Walls, at least, concedes that the agents could have given their interpretation of these and other such remarks even if they had not been designated as experts. See FED.R.EVID. 701. To the extent the agents translated portions of the tapes the jurors could have understood without assistance, the defendants were not harmed. None of the defendants identifies any instance in which the agents purportedly misinterpreted their own remarks or the remarks of the defendants. ¹

Admission of the August 23 Audiotape. Campbell, Jackson, and Walls challenge the district court's ruling admitting an audiotape of an August 23, 1991, telephone conversation between one of the undercover agents and Blakney, in which Blakney identified Campbell and Jackson as members of the conspiracy and warned that Campbell could not be trusted. While there is severe doubt whether the defendants properly objected to the tape's admission, in which event we could reverse only for plain error, we will not pause over the standard of review. No error was committed. The tape consists of non-hearsay statements of a co-conspirator, properly received into evidence pursuant to Federal Rule of Evidence 801(d)(2)(E). Contrary to what these defendants tell us, Blakney's statements giving background information on key players and cautioning about other co-conspirators were "in furtherance of the conspiracy," as the rule demands. See United States v. Edmond, 52 F.3d 1080, 1111 (D.C.Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995). Another condition of admissibility in Rule 801(d)(2)(E) is that the statements were made "during the course" of the conspiracy. This too was satisfied. Co-conspirators remain members of conspiracies until they withdraw, an act requiring either "the making of a clean breast to the authorities or communication of the abandonment in a manner reasonably calculated to reach co-conspirators." United States v. Borelli, 336 F.2d 376, 388 (2d Cir.1964) (Friendly, J.) (citations omitted), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965); see also United States v. Weisz, 718 F.2d 413, 435 n. 132 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688, and cert....