United States v. Payden

• Decision Date: 26 November 1985
• Docket Number: No. SS 84 Cr. 566 (DNE).,SS 84 Cr. 566 (DNE).
• Citation: 622 F. Supp. 915
• Parties: UNITED STATES of America, v. Donald PAYDEN, Eugene Coleman and Anthony Grant, Defendants.
• Court: U.S. District Court — Southern District of New York

622 F. Supp. 915

UNITED STATES of America, v. Donald PAYDEN, Eugene Coleman and Anthony Grant, Defendants.

No. SS 84 Cr. 566 (DNE).

United States District Court, S.D. New York.

November 26, 1985.

COPYRIGHT MATERIAL OMITTED

Rudolph W. Giuliani, U.S. Atty., New York City (John K. Carroll, Asst. U.S. Atty., New York City, of counsel), for plaintiff.

Robert L. Herbst, New York City, for defendant Anthony Grant.

OPINION AND ORDER

EDELSTEIN, District Judge:

This opinion is the sixth relating to this case. The background facts may be read in the other opinions.¹ Familiarity with them is assumed.

At a robing room conference during the trial of this case, defendant Anthony Grant's attorney, Robert Herbst, stated that the government was about to introduce evidence against his client that constituted inadmissible hearsay and moved to exclude the evidence. (Tr. at 1641-42).² The court requested the government to present an offer of proof regarding this testimony. (Tr. 1704). Assistant United States Attorney John Carroll did so and the government and Mr. Grant both submitted memoranda on this issue. This procedure was followed to avoid any possible prejudice to Mr. Grant's co-defendants that would arise if the court admitted the evidence subject to connection with the conspiracy charged in the indictment, and later determined that the evidence was either totally inadmissible or admissible only as to Grant.

The court finds that the evidence consisting of statements by Grant and a third party is admissible as to defendant Grant. This evidence is not admissible as to the other defendants, Donald Payden (a/k/a "Country") and Eugene Coleman. Under these circumstances, a jury instruction is not sufficient to protect the interests of Payden and Coleman. Accordingly, the government is precluded from offering this evidence.

BACKGROUND

Viewing the facts in the light most favorable to the government, the offer of proof presented by the government consists of the following information. This information is contained in two DEA form Sixes (exhibits 3502 EE and 3503 B) as well as the government's memoranda and offer of proof. The "Sixes" were prepared by Special Agent Marvin Siegel, the case agent for the investigation and the officer personally involved in the incident with Grant and Special Agent Beatrice Leone who accompanied Siegel during the July 19, 1985 incident. The government would seek to introduce these facts through Special Agent Siegel and Special Agent Leone.

On July 19, 1984 at approximately 8:45 p.m., Special Agents Marvin Siegel and Beatrice Leone, while parked in the vicinity of 158th Street and Amsterdam Avenue, were approached by Anthony Grant. Grant offered to sell Siegel a variety of narcotics but Siegel initially rebuffed him stating that he did not believe that Grant would be able to sell him the quantity of heroin that he wished to purchase. Grant, disclaiming that he should not be telling Siegel this, then identified a location on Amsterdam Avenue as "Country's," and stated that all the heroin in the area was "Country's," and that "Country" could supply all the heroin Siegel needed. At that time Siegel observed Donald Payden a/k/a "Country" standing in front of the location Grant had pointed out.

Siegel then broke off his conversation with Grant, drove away, and returned approximately ten minutes later. At that time, Grant entered Siegel's automobile and they discussed a narcotics transaction. Siegel reported to Grant that he would be interested in doing business if Grant could get heroin from Country. Grant replied that his brother worked for Country and could supply all the heroin Siegel wanted; Grant also fixed a price of $35.00 per quarter.

Shortly thereafter, Siegel drove his automobile back to the vicinity of 158th Street and Amsterdam Avenue. Grant got out of Siegel's automobile and walked to an individual he later identified as "Eric." After a brief moment, Grant returned to Siegel's vehicle and told Siegel that Eric worked for Country and had heroin available for sale. Eric then briefly joined Grant at Siegel's vehicle and first asked Grant if Siegel was going to do the deal and then directed Grant to "do the transaction." Eric then rode away from the car on his bicycle.

Finally Siegel told Grant that he was reluctant to do the deal at that time but that he would return in the future. Grant gave Siegel a slip of paper with the phone number where he could be reached and Siegel departed.

Memorandum in Support of the Admission of Certain Evidence Relating to Incidents Occurring on July 19, 1984 at 2-3.

DISCUSSION

I. Admissibility of Evidence

The court must determine whether the evidence is admissible and, if so, against whom. Each of the statements must be examined independently with respect to the individual defendants.

A. Statements by Eric

Eric, the individual that Grant talked with after meeting with Siegel and who later approached Siegel's automobile, made statements regarding the alleged deal between Grant and Siegel. Eric asked Grant whether Siegel was going to do the deal. After Grant nodded in the affirmative, Eric said "you do the transaction."

The statements are not hearsay. Rather, they constitute verbal acts which are not being introduced for the truth of the matter stated. See United States v. Alvarez-Porras, 643 F.2d 54, 58 (2d Cir.), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981). The statements are therefore admissible against all of the defendants. The mere fact that these statements were made is evidence that Grant and Eric were involved in the same conspiracy. It is not clear from these statements, however, that Eric and Grant are involved in the Payden conspiracy charged in the indictment.

B. Statements by Grant³

Grant is alleged to have made a number of comments regarding Donald Payden. Grant is also alleged to have made a statement that would tend to connect Grant to the alleged Payden-Coleman conspiracy.

1. Admissibility as to Grant.

Grant's own statements may be introduced against him as admissions. Fed.R.Evid. 801(d)(2)(A). These admissions may be used against Grant to connect him with the Payden conspiracy. E.g., United States v. Terry, 702 F.2d 299, 320 (2d Cir.), cert. denied, 464 U.S. 992, 104 S.Ct. 482, 78 L.Ed.2d 680, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); United States v. Archbold-Newball, 554 F.2d 665, 676-77 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977). Grant states that Eric works for Payden, and it is apparent from his statements and actions that he is working with Eric. Accordingly, as to Grant there is sufficient evidence to connect him to the Payden conspiracy.

2. Admissibility as to Payden and Coleman.

Simply because the statements are admissible as to Grant, the statements are not automatically admissible against Payden and Coleman because Rule 801(d)(2)(A) provides for the use of admissions only against the party making the statement. The court must determine the admissibility against Payden and Coleman as if they were being tried separately. See United States v. Archbold-Newball, 554 F.2d at 677. These statements may not be considered as evidence against Payden or Coleman unless they fall within the coconspirator exception embodied in Rule 801(d)(2)(E) or some other hearsay exception applicable to these codefendants. United States v. Lyles, 593 F.2d 182, 194 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Eubanks, 591 F.2d 513, 519 (9th Cir.1979) (per curiam); White v. United States, 394 F.2d 49 (9th Cir.1968); see also People v. Payne, 35 N.Y.2d 22, 27-28, 358 N.Y.S.2d 701, 315 N.E.2d 762 (1974) (admission received into evidence against declarant at his own trial not admissible as to coconspirator).

Under Rule 801(d)(2)(E), before a jury may consider out of court statements by a third party against a defendant, this court must be satisfied by a fair preponderance of the independent non-hearsay evidence that the defendant and the third-party declarant were in fact members of the same conspiracy, United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir.1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); see United States v. Cicale, 691 F.2d 95, 103-04 (2d Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983), and that this conspiracy is the conspiracy charged in the indictment, see United States v. Cambindo Valencia, 609 F.2d 603, 636 n. 25 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).⁴ In order to be considered against Payden and Coleman, the court must therefore find by a fair preponderance of the independent, non-hearsay evidence that Grant is a member of the Payden-Coleman conspiracy.

The first question is to determine what is the non-hearsay evidence connecting Grant to the Payden-Coleman conspiracy. The totality of the evidence connecting Grant to the Payden-Coleman conspiracy consists of testimony of Claudine Jones and the proffered testimony of DEA agents. Claudine Jones testified that she cut-up Payden's heroin into $25 and $50 bags. The agents would testify as to the events described in the DEA form Six. Specifically:

— Grant stated that all of the heroin sold in the area was Country's and that Payden was standing in front of Kenny's, a store on the block;

— Grant offered to sell "quarters," "spoons" and "half-spoons" to Siegel;

— Grant told Special Agent Siegel that Eric and Grant's brother worked for Country — Grant and Eric walked towards the automobile from the location where Payden was standing; and

— Eric then told Grant to do the transaction with Siegel.

The Government's contention is that based on this evidence, Grant was a member of the Payden conspiracy. Not all of this evidence, however, is admissible, specifically Grant's statement that Eric and Grant's brother work for Country, and the statement that all of the heroin...