U.S. v. Williams

• Decision Date: 18 August 1986
• Docket Number: Nos. 85-1837,85-1844 and 85-1858,s. 85-1837
• Parties: 21 Fed. R. Evid. Serv. 692 UNITED STATES of America, Plaintiff-Appellee, v. David WILLIAMS, Debbie Williams, Wayne Russell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1024

798 F.2d 1024

21 Fed. R. Evid. Serv. 692

UNITED STATES of America, Plaintiff-Appellee, v. David WILLIAMS, Debbie Williams, Wayne Russell, Defendants-Appellants.

Nos. 85-1837, 85-1844 and 85-1858.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1986.

Decided Aug. 15, 1986.

As Amended Aug. 18, 1986.

Glenn A. Grampp, Lopp, Lopp & Grampp, Evansville, Ind., Philip R. Melangton, Jr., Melangton & Mower, P.A., Indianapolis, Ind., for defendants-appellants.

John J. Thar, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

David Williams, his wife Debbie Williams, and Wayne Russell are appealing from their convictions for conspiracy to violate drug laws, possession of illegal substances, and unlawful interstate travel. Each raises several issues for our review, and for the reasons stated below we reverse the one count against Debbie Williams. We affirm on all other counts.

I.

The charges against these appellants arose out of a methamphetamine distribution ring operating in the Evansville, Indiana area. According to the government's version of the facts, the methamphetamine was manufactured by Tim and David Harvey on their South Dakota ranch. Michael Riley and Darrell Ray Stephenson set up the Evansville distribution scheme in early 1981 and began purchasing quantities of the drug from the Harveys for sale in the Evansville area. By early 1982, Riley and Stephenson turned over the leadership of the ring to Michael Marlow and Bobby Dusch. Later that year, Stephenson became an informer for the Drug Enforcement Administration (DEA) and subsequently testified against the appellants at trial. After the Evansville ring eventually was uncovered by the DEA in 1984, Riley, Dusch, and Marlow, among others, were arrested and charged for their involvement. Each entered into a plea bargain agreement with the government and testified against the appellants at trial.

In the fall of 1981, David Williams was introduced to Michael Riley as a potential assistant in the distribution aspect of the scheme. When Riley turned over his participation in the drug ring to Marlow and Dusch, David Williams was among the customer-distributors he left them. Wayne Russell, who had known Marlow from childhood, apparently became a customer of Marlow and Dusch at about the same time. Bobby Dusch kept books and records of the drug transactions, and according to government exhibits, David Williams and Wayne Russell clearly were listed in those records as having purchased thousands of dollars worth of methamphetamine.

Throughout 1983 and the first half of 1984, David Williams (accompanied at times by Debbie Williams) and Wayne Russell engaged in various drug-related transactions and travels that will be discussed in more detail later in this opinion. During part of this time, the DEA gathered information about the drug scheme through wire interception of telephone conversations. Finally in August 1984, agents of the DEA obtained a warrant to search the Williams' residence and removed from that house some thirty-eight grams of methamphetamine and over $40,000 in cash, along with other items of evidence. At about the same time, the Harveys' South Dakota ranch was searched, revealing a laboratory for manufacturing methamphetamine and over thirteen pounds of the drug. David and Debbie Williams, Wayne Russell, and other members of the drug ring subsequently were arrested and indicted for their involvement.

II.

A. Debbie Williams--Count One.

Debbie Williams was charged in Count One with conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. Sec. 846 and in Count Twelve with interstate travel in violation of 18 U.S.C. Sec. 1952(b)(1). Since she was acquitted of the Travel Act charge, Debbie Williams appeals only her conviction on the conspiracy count. We find that the district court erred in admitting a co-conspirator's statement against her, and that without that statement, there was insufficient evidence to convict her of conspiracy.

1. Pre-trial Santiago hearing.

A co-conspirator's hearsay statement is admissible against a defendant under Federal Rule of Evidence 801(d)(2)(E) "if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." United States v. Santiago, 582 F.2d 1128, 1134 (7th Cir.1978). The district court must find that the government has established by a preponderance of the non-hearsay evidence that the above elements are present, before the district court can allow the hearsay evidence to be introduced against the defendant. See, e.g., United States v. Shelton, 669 F.2d 446, 465 (7th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982). We have held, however, that once the government proves the existence of the conspiracy, it need present only "slight evidence" to prove that a particular individual was a member thereof. See, e.g., United States v. Gironda, 758 F.2d 1201, 1217 (7th Cir.1985); United States v. West, 670 F.2d 675, 685 (7th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982).

The district court here held a pre-trial "Santiago hearing" to determine the admissibility of the co-conspirator's statement against Debbie Williams. The statement at issue was allegedly made by David Williams to Michael Marlow during a drug transaction at which Debbie Williams was present. Apparently, David Williams told Marlow not to count the money that Marlow had been given in exchange for methamphetamine because Debbie already had counted it. The non-hearsay evidence introduced at the Santiago hearing in support of the admissibility of this statement was as follows. DEA Special Agent McGivney testified that in July 1983, David and Debbie Williams met with Michael Marlow in Colorado Springs and delivered between $22,000 and $24,000 in cash to Marlow. Mr. Thar, the prosecuting attorney, clarified this testimony later in the hearing by stating, "to put it more accurately, Mrs. Williams is present when Mr. Williams hands the money over." Special Agent McGivney also testified that after the transaction, David and Debbie Williams returned to Indiana with Marlow's children. Special Agent Blackketter then testified about the search that was conducted pursuant to warrant in the Williams' house. The search revealed some thirty-eight grams of methamphetamine and approximately $40,020 in cash in the vanity under the bathroom sink. At the conclusion of the hearing, the district judge entered his ruling, over defense objections, that the co-conspirator's statement was admissible against Debbie Williams, based on his finding that "the government has established by a preponderance of independent non-hearsay evidence that there existed a conspiracy and that these defendants were co-conspirators as charged in the indictment."

Debbie Williams argues on appeal that the government failed to establish that she was a member of the conspiracy, and therefore that the trial court erred when it admitted the co-conspirator's statement against her. Based on a review of the record we agree, because the record of the Santiago hearing reveals that the government did not present even slight evidence that Debbie Williams was a member of the conspiracy. The testimony relating to her involvement demonstrates only that she was associated with a few co-conspirators, most notably her husband, and that she was present during a drug transaction. This court has emphasized several times, however, that mere association with co-conspirators or presence at the scene of an offense or knowledge that something illegal is going on is insufficient to establish membership in a conspiracy under the slight evidence standard. See, e.g., West, 670 F.2d at 685; United States v. Regilio, 669 F.2d 1169, 1175 (7th Cir.1981); cf. United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir.1979). In West, for example, this circuit held that the admission of a co-conspirator's statement was error, since the government failed to establish that the declarant was a member of the conspiracy. The case involved a lucrative drug ring known as the "Family" and centered around a drug conspiracy operated by Family members incarcerated in Cook County Jail. One of the defendants, King, was a correctional officer at the jail who allegedly had accepted bribes in return for granting Family members special favors. The government sought to introduce a co-conspirator's statement to the effect that King was "all right" and would arrange for Family members at the jail to be tiered together. Testimony demonstrated that the declarant not only was a Family member, but also was incarcerated in the jail. The court held, however, that this established only the declarant's association with the conspiracy, and that without more, it failed to constitute even slight evidence that the declarant was a member of the conspiracy. 670 F.2d at 679, 685. See also United States v. Quintana, 508 F.2d 867, 880-81 (7th Cir.1975) (evidence insufficient to convict defendant of conspiracy where it established only that defendant associated with co-conspirators, was present in vicinity of illegal narcotics, may have possessed heroin, and had the opportunity to join the conspiracy).

In contrast, cases such as United States v. Regilio and United States v. Dalzotto involve evidence of presence plus suspicious circumstances suggesting membership in the conspiracy, and as a result, admissions of co-conspirators' statements were affirmed. In Regilio, the record contained evidence of phone calls indicating that the defendant had been notified of drug transactions, apparent reconnaissance efforts of the defendant at the scene of the crime, and attempts to flee. The reviewing court found the record sufficient to satisfy the slight evidence rule, since...