USA v. Hankey, 98-50359

• Decision Date: 18 February 2000
• Docket Number: No. 98-50359,98-50359
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAVERN HANKEY, aka Poo, OPINION Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1160

203 F.3d 1160 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAVERN HANKEY, aka Poo, OPINION Defendant-Appellant.

No. 98-50359

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 4, 1999

Filed February 18, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Gail Ivens, Glendale, California, for the defendant-appellant.

George S. Cardona and Edward P. Lazarus, Assistant United States Attorneys, Los Angeles, California, for the plaintiffappellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. 97-457-SVW

Before: James R. Browning and A. Wallace Tashima, Circuit Judges, and Robert E. Jones,¹ District Judge.

JONES, District Judge:

Lavern Hankey appeals his conviction and sentence for distributing and conspiring to possess with intent to distribute phencylidine ("PCP"). At trial, after Hankey's co-defendant testified that Hankey was not involved in the transactions, the district court admitted rebuttal testimony from a police gang expert that gang members who testify against one of their own are customarily beaten or killed by other members of their gang. In addition, the district court precluded the testimony of a defense lawyer, who was contacted by Hankey's girlfriend the day of his arrest, regarding the circumstances surrounding Hankey's confession. Upon conviction, the district judge sentenced Hankey to 188 months, basing his calculation partly on two drug infractions for which the defendant was not convicted. On appeal, the defendant challenges these three rulings.

1. Did the district court abuse its discretion under either FRE 702 or FRE 403 by admitting, for the limited purpose of impeaching for bias the exculpatory testimony of a co-defendant, the opinions of a police gang expert regarding the "code of silence" and repercussions for testifying against an affiliated gang member?

We conclude that the district court properly discharged its "gatekeeping" function as set forth in the Supreme Court cases of Kumho Tire, Joiner and Daubert² in admitting the gang expert's testimony. Further, with respect to FRE 403, the court did not abuse its discretion in ruling that the probative value of the testimony was not substantially outweighed by unfair prejudicial impact, particularly where the court gave a limiting instruction to the jury.

2. Did the district court abuse its discretion in refusing to allow a defense lawyer, who had been contacted by Hankey's girlfriend on the day of the arrest, to testify that the police told him that Hankey was being released, when in fact Hankey remained overnight and made a confes sion the next morning?

We hold, absent evidence that Hankey was aware of it, the alleged misconduct was not relevant to the voluntariness of Hankey's confession and therefore was properly kept from the jury.

3. Did the district court err in finding that defendant's "relevant conduct" for the purpose of sentencing included two crimes for which he was not convicted--a drug sale conducted on August 14, 1996, and an unconsummated drug sale arranged on October 30, 1996?

We conclude that the trial court's decision that these incidents were part of the same course of conduct of the defendant under U.S.S.G. S 1B1.3(a)(2) was supported by a preponderance of the evidence.

FACTS AND PROCEDURAL BACKGROUND

In 1996, the Drug Enforcement Administration (DEA) began an investigation of suspected PCP distributor James Anthony Welch.³ On August 14, 1996, a confidential informant arranged with Welch to purchase a quart of PCP for $1,500. Under DEA surveillance, the informant met Welch and drove with him to the 400 block of Spruce Street in Compton, California, where they met with an individual who identified himself as "Poo." Because neither Poo nor the informant had a container in which the informant could transport the PCP, the informant and Welch went to a liquor store to purchase a juice bottle. They then returned to the 400 block of Spruce Street, where Poo and Welch poured PCP into the juice bottle and gave it to the informant.

Law enforcement later identified "Poo" as Lavern Hankey, who lived in his mother's home on the 400 block of Spruce Street--the site of the PCP transactions in question.

On October 28, 1996, the DEA initiated another PCP transaction with Welch, using a second confidential informant. The informant met Welch at his home, where the informant was introduced to Nathaniel Mixon.⁴ A person whom the informant identified as Hankey then arrived in a green Ford Explorer, had a conversation with Welch, and drove away. Welch drove away shortly thereafter, followed by the informant and Mixon, who drove together. Welch led the informant and Mixon to the 400 block at Spruce Street, where Hankey was standing outside his parents' residence. After the informant gave Welch $1,400, Welch and Mixon walked over to Hankey, and returned to give the informant 32 ounces of PCP.

On October 30, 1996, the second informant contacted Welch to inquire about purchasing a gallon of PCP. Welch stated that in order to quote a price, he would have to "ask him." In a second phone conversation between the informant and Welch on the same day, a person in the background was heard to say, "give you a hell of a deal." When the informant asked for specifics, Welch asked the person, "He says like what, Poo? He say like what?" Welch then quoted the informant a price of $4,500. When the informant stated that he did not believe he could come up with the money before Friday, Welch responded by saying that the PCP would be divided up into quarts and sold by then. Welch urged the informant to "hurry up and get the cash." This deal was never consummated, because the DEA was unwilling to provide the informant with the necessary cash.

Welch was arrested in January 1997. Defendant Hankey was arrested in May 1997, and was kept overnight at the police station. The next morning, William Jackson of the Compton Police Department obtained a Miranda waiver from Hankey, who subsequently admitted that he remembered "giving Nate [Mixon] a bottle" of PCP on October 28, 1996.

The government charged Hankey and Welch with distribution of PCP in violation of 21 U.S.C. S 841(a)(1) (October 28 transaction) and conspiracy to possess with intent to distribute PCP in violation of 21 U.S.C. S 846 (which listed the October 30 unconsummated transaction as an overt act). It did not charge the defendants with any violation in connection with the August 14, 1996, transaction.

At trial, the government's case-in-chief consisted of the testimony of the second confidential informant, tape recordings of the informant's conversations with Welch, an aerial video tape of the October 28, 1996 transaction, testimony of law enforcement officers who monitored the informant's contacts with the defendants and observed the October 28 transaction, Hankey's confession, and redacted portions of Welch's confession.

Hankey's defense was that he was not the "Poo " who engaged in the transactions. He called LaRoy Rogers to the stand to testify that there was a second "Poo " in Compton-a rap artist who was associated with Welch. Welch, while testifying on his own behalf,⁵ corroborated Rogers' statement, claiming that the "Poo" who supplied the PCP was a rapper named Marcus Prea. Welch explained the proximity of the drug deals to Hankey's house by the fact that the house next door was vacant and being used as a local drug hangout.

In rebuttal, the government sought to discredit the exculpatory testimony of Rogers and Welch by offering the expert testimony of Mark Anderson, Compton Police Department Officer and member of an FBI anti-gang task force. Anderson testified at a motion in limine Federal Rule of Evidence 104 hearing, outside the presence of the jury, that Rogers, Welch and Hankey were members of affiliated street gangs, and that these gangs enforce a code of silence among their members that any affiliated gang member would be subject to violent retribution if one gang member testified against another.

The court refused to permit Anderson to testify at trial regarding Rogers' gang membership for lack of foundation. However, the court allowed him to testify before the jury regarding the gang affiliation of Welch and Hankey. Further, the court permitted Anderson to express his opinion that if a member of one of the affiliated gangs in the area testified against another member, the witness would be beaten or killed. At the trial, the court gave a limiting instruction regarding this testimony, telling the jury that it could consider Anderson's opinions as they related to Welch's testimony about Hankey's misidentification, and that it "ought not be a factor in your determination as to whether the government has proved the charges in this case . . .."⁶

Hankey sought to explain his post-arrest confession to the jury by arguing that it was coerced. Outside the presence of the jury, the defense alleged that Hankey, after his arrest, called his girlfriend and asked her to contact a lawyer, Carl Sherman. The defense claimed that the girlfriend called Sherman who, in turn, called the Compton Police Department, only to be falsely informed that Hankey's release was imminent and that there was no point in his going to the station house. The defense argued that this constituted a deliberate deception on the part of the police department, designed to obtain a coerced confession from Hankey, who was in fact detained overnight.

The district court allowed Hankey's girlfriend to testify to the jury that she had received a phone call from Hankey after the arrest and that, in response to this call, she had contacted Sherman. However, the court precluded the defense from calling Sherman to testify to the alleged conversation with the police department. The court ruled that although such deception could...