Appendix — Moates v. United States

4

87 534

No.

tH --

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

ARTHUR MOATES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH MICHAEL ROBINSON

Judiciary Manor

301 Eye Street, N.W.

Washington, D.C. 20001

(202) 347-6100

Attorney for Petitioner

ABS Duplicators, Inc. — 912 Seventeeth Street NW, Washington DC 20006 — 298-5537

Ninketse sed

OO: an ep ea

TABLE OF CONTENTS

Page

OPINION of Judges Russell and Hall, Circuit Judges

Fourth Circuit, and Van Graafeiland, Circuit Judge

of the United States Court of Appeals for the Second

er ee a ee ee la

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 86-5635

UNITED STATES OF AMERICA Plaintiff-Appellee

v.

REYNIER EIRE Defendant-Appellant

No. 86-5636

UNITED STATES OF AMERICA Plaintiff-Appellee

v.

RICHARD WALTER NEELY, Defendant-Appellant

a/k/a Dickie

No. 86-5643

UNITED STATES OF AMERICA Plaintiff-Appellee

Vv.

ARTHUR MOATES Defendant-Appellant

2a

No. 86-5644

UNITED STATES OF AMERICA Plaintiff-Appellee

Vv.

BENAE FLOYD Defendant-Appellant

No. 86-5648

UNITED STATES OF AMERICA Plaintiff-Appellee

Vv.

SOPHIA FLOYD Defendant-Appellant

Appeals from the United States District Court for the Dis-

trict of South Carolina, at Greenville. G. Ross Anderson,

Jr., District Judge. (CR-86-92)

Argued: May 8, 1987 Decided: June 18,1987

Before RUSSELL and HALL, Circuit Judges, and VAN

GRAAFEILAND, Circuit Judge of the United States

Court of Appeals for the Second Circuit, sitting by

designation.

Stephen J. Henry; Kenneth M. Robinson; James R. Mann

for Appellants; John W. McIntosh, Assistant United

States Attorney (Vinton D. Lide, United States Attorney;

William C. Lucius, Assistant United States Attorney;

Marcia A. Mason, Third Year Law Student on brief) for

Appellee.

3a

PER CURIAM:

In this action five persons appeal their convictions for

conspiracy to possess cocaine with intent to distribute, 21

U.S.C. § 846; using the telephone in furtherance of their

illegal drug activities, 21 U.S.C. § 843(b); and possession

of cocaine with intent to distribute, 21 U.S.C. 6% 841(a)

(1). The appellants contend that the court made numerous

errors in the admission of evidence, that it improperly fail-

ed to sever the trial of one appellant, and that the trial

judge erred in not disqualifying himself at one appellant’s

sentencing hearing. We find that testimony regarding the

conversations between appellant Sophia Floyd and Detec-

tive Atkins was improperly admitted under the coconspi-

rator rule, but that this admission was harmless except as

to appellant Neely. We find the remaining charges of error

to be without merit.

i.

This case concerns a cocaine distribution ring that oper-

ated in the Greenville-Spartanburg area of South Caro-

lina. The cocaine was brought up from Florida by Nelson

Aguilar and allegedly sold to appellant Arthur Moates,

who arranged for local distribution. The Drug Enforce-

ment Administration (DEA) and Greenville police began

investigating the operation in March 1984. Two years la-

ter, on March 10, 1986, they obtained an order to intercept

wire communications on two telephone lines in Moates’

service station in order to uncover members of the conspi-

racy who had not been susceptible to discovery through

other investigatory techniques. The order named seven in-

dividuals, including Aguilar, Moates, and appellant Nee-

ly, and “others as yet unknown.” The wire interception

began on March 10, 1986, and terminated on April 9,

4a

1986. Tapes of 19 of these calls were later admitted into

evidence.

Two of the appellants are sisters — Sophia Floyd and

Benae Floyd. Benae Floyd was Moates’ “number one girl-

friend” and allegedly had no prior connection to any drug

trafficking, although she had been questioned about others’

drug activities in the past. Sophia Floyd, on the other

hand, was at least on the fringes of this conspiracy because

she knew of the others’ illegal activities. In October 1985,

in order to earn some money and enlist the help of the

DEA in obtaining a transfer for her boyfriend who was

then serving time for an unrelated drug charge, Sophia

Floyd initiated a meeting with Detective Atkins and of-

fered to become his confidential informant. In this posture

she reported to Atkins at least once each week about the

drug-related activities of Moates, Neely, and others. She

did not implicate herself in these reports. Her relationship

with Atkins terminated on March 13, 1986, when an inter-

cepted conversation between Moates and Sophia Floyd re-

vealed that she was not just an observer, but was also an

active participant in the conspiracy.

On May 7, 1986, a grand jury returned a 22-count

indictment against the appellants and others charging one

count of conspiracy, twenty counts of using the telephone

in furtherance of drug activities, and one count of poses-

sion of cocaine with intent to distribute. Three of the de-

fendants — Aguilar, Galano, and Sullivan — entered guil-

ty pleas and testified on behalf of the government. The ap-

pellants were convicted of all charges against them on Au- .

gust 28, 1986.

II.

Benae Floyd appeals her conviction on the ground that

the only evidence of her participation in the drug traffick-

Sa

ing activities was contained in intercepted wire communi-

cations that should have been minimized. Benae Floyd was

Moates’ girlfriend and she apparently talked to him by

telephone several times each day. She was not included in

the affidavit used to obtain the wiretap, she had no prior

record of drug trafficking, and she was not a target or

under investigation at the time the wire interception be-

gan. She contends that because her conversations with

Moates for the first three days of the interception were in-

nocuous, the government had no basis for continuing to

listen to her calls. Rather, she argues, the government was

required to minimize her conversations under 18 U.S.C. §

2518(5):

. . . . Every order and extension thereof shall

contain a provision that the authorization to in-

tercept . . . shall be conducted in such a way as

to minimize the interception of communications

not otherwise subject to interception under this

chapter. |

The wire interception order in this case further specified:

Even if one or more of the normal interceptees or

their confederates, when identified is a partici-

pant in a conversation, monitoring will be sus-

pended if the conversation is not criminal in na-

ture or otherwise related to the offenses under in-

vestigation.

Despite the pattern of innocent conversations, the govern-

ment continued to listen to Benae Floyd’s calls and on

March 13, 1986, they recorded a conversation implicating

her in the drug activities.

In United States v. Clerkley, 556 F.2d 709 (4th Cir.

1977), cert. denied, 436 U.S. 930 (1978), we held that the

government need not exclude all innocent conversations

but must minimize unnecessary intrusions to the smallest

6a

degree possible, invoking a standard of reasonableness on

a case-by-case basis. /d. at 716. In analyzing a given case

courts should consider (1) the nature and scope of the al-

leged criminal enterprise; (2) the government’s reasonable

expectation as to the content of, and parties to, the con-

versations; and (3) the degree of judicial supervision while

the wiretap order is being executed. /d.

In the present case there is no allegation of insufficient

judicial supervision. Benae Floyd merely argues that after

three days of innocent conversation, the government had

no reasonable expectation that she would begin talking

about drugs. She further argues that although the govern-

ment is afforded greater latitude when confronted with

large narcotics conspiracies, Clerkley at 716, they still do

not have carte blanche to engage in a fishing expedition.

Under the facts of this case we cannot say that the court

abused its discretion in admitting these conversations.

Benae Floyd had previously been questioned about unre-

lated drug activities, and this indicates a possible associa-

tion with drug traffickers that reasonably gave the govern-

ment additional time to evaluate the innocence of her in-

tercepted conversations. Under such circumstances, the

lapse of four days between the inception of the wiretap

and the capture of an incriminating conversation was not

excessive and did not violate the minimization require-

ment.

Ill.

The appellants next contend that the recordings of the

intercepted conversations were obtained in violation of the

fourth amendment and thus should have been suppressed.

Specifically, they contend tha the affidavit supporting the

intercept order failed to meet the requirements of 18

U.S.C. § 2518 because it did not give a “full and complete

7a

statement” of prior investigatory efforts so as to show ex-

haustion of other modes of investigation. This contention

is without merit. The government need not exhaust every

conceivable technique before applying for a wiretap.

Clerkley at 715. It may show either that traditional

investigative techniques have been tried and failed, or it

may show that they are unlikely to succeed. /d. The record

shows that the government clearly did so in this case, ex

plaining in sufficient detail the reasons why, after two

years of probing into this drug ring, other investigatory

techniques would be unsuccessful.

The appellants next raise a novel issue regarding the ap-

plication of Fed. R. Evid. 801(d)(2)(E). Under this rule,

the out-of-court statement of a conspirator is not hearsay

when the statement was made during the course and in fur-

therance of the conspiracy, and thus may be used against

his coconspirators. Based on this rule the court permitted

Detective Atkins to testify about Sophia Floyd’s out-of-

court statements given to him when she was acting as a

confidential informant. The appellants contend that So-

phia Floyd’s statements were hearsay and did not come

within the exception of Rule 801(d)(2)(E) because, as a

confidential informant for pay, she was not speaking in

furtherance of the conspiracy when she talked to Atkins. '

The record contains no analysis of the “in furtherance” re-

quirement by the court below.

'This case must be distinguished from those in which a

coconspirator who has become an informant talks to a third party in

his or her guise as a member of the conspiracy. In these situations the

efforts of the coconspirator to induce the third party to engage in in-

tercourse with the conspiracy clearly would be in furtherance of the

conspiracy and thus would be admissible under Rule 801(d)(2){E).

8a

Case law has consistently mandated that coconspirator

statements be in furtherance of the conspiracy. See United

States v. Nixon, 418 U.S. 683, 701 (1974); Anderson v.

United States, 417 U.S. 211, 218 (1974); Dutton v. Evans,

400 U.S. 74, 81 (1970); Wong Sun v. United States, 336

U.S. 440, 443-44 (1949); see also United States v. Urbanik,

801 F.2d 692 (4th Cir. 1986). Although Model Code Rule

508(b) and Uniform Rule 63(9)(b) eliminated the tradi-

tional requirement that the coconspirator’s statement be in

furtherance of the conspiracy, the drafters of Rule 801(d)

(2)(E) rejected this change and retained the “in further-

ance” requirement. See 4 Weinstein’s Evidence §

801(d)(2)(E)[01] at 801-233-34 (1985). Their purpose was

to strike a balance between the need to use conspirators’

statements to combat a kind of criminal activity that is in-

herently secretive, and the need to protect defendants

against inadvertent misrepresentations or deliberately fal-

sified evidence. Therefore, to be admissible, the statement

must advance an object of the conspiracy rather than

thwart its purpose. Courts interpreting this requirement

have scrupulously excluded certain kinds of statements

from the coconspirator exception: idle chit-chat, mere

bragging, descriptive comments, and statements delib-

erately inculpating other conspirators and knowingly

made to law enforcement agents. 4 D.W. Louisell & C.B.

Mueller, Federal Evidence § 427 at 348 (1980). See also Ur-

banik, supra.

The government’s theory in the present case is that Sophia

Floyd’s statements to Detective Atkins were made as part

of a deliberate cover-up and thus furthered the conspiracy’s

objective of remaining in business. See United States v.

Fahey, 769 F.2d 829 (1st Cir. 1985) (statement to FBI

agent by coconspirator admissible if intended to mislead

the agent); United States v. Diez, 515 F.2d 892 (Sth Cir.

9a

1975), cert. denied, 423 U.S. 1052 (1976) (statement to IRS

agent by coconspirator admissible when the statement was

“deceptive in design”). The problem with this theory by the

government is that it is sheer speculation. The record is

conspicuously devoid of any evidence of a cover-up. The

only support the government can find for its position is the

fact that Sophia Floyd initiated the relationship with

Atkins and that she always avoided inculpating herself in

her reports. Even under the most liberal interpretation of

the “in furtherance” provision, Sophia Floyd’s statements

cannot be construed as furthering any objective of the

conspiracy. There is no indication that she tried to lead the

investigators away from the conspiracy. To the contrary,

she led them foward the conspiracy and ultimately brought

about its demise. Although she withheld information from

Atkins about her own involvement in the conspiracy, this

is run-of-the-mill behavior for police informants, and such

withholding does not automatically convert otherwise reli-

able statements by informants into attempts to mislead or

deceive the investigators.

Although we can find no factually similar case in any

jurisdiction, our conclusion is in line with several other

cases in which a coconspirator’s statement was held inad-

missible under Rule 801(d)(2)(E). See, e.g., United States

v. Lang, 589 F.2d 92 (2d Cir. 1978) (statement to Secret

Service agent by distributor of counterfeit bills that one of

the distributor’s previous customers [the defendant] had

been arrested while possessing such bills did not advance

any venture in which the defendant had an interest);

United States v. Kessler, 530 F.2d 1246 (Sth Cir. 1976)

(statement by coconspirator made in an effort to secure

the release of a friend from prison did not further the con-

spiracy because the declarant “was working on a ‘frolic’ of

his own”). Sophia Floyd’s statements advanced only her

10a

private interests, and were to the detriment of the other de-

fendants.

Sophia Floyd’s hearsay statements were used at trial

against appellants Moates, Eire, and Neely. As to Moates

and Eire the improper admission of the statements was

harmless because there was overwhelming untainted evi-

dence of their participation in the conspiracy and their use

of the telephone in furtherance of illegal drug activities.

See United States v. Urbanik, 801 F.2d 692 (4th Cir.

1986). As to appellant Neely, however, the improper ad-

mission requires that we grant him a new trial. The only

other evidence presented against Neely was three intercept-

ed telephone conversations that allegedly referred to drugs

in code. Because the government sought to develop the

meaning of the code at least in part by the use of informa-

tion contained in the inadmissible statements, we cannot

say that their admission was harmless as to him. This does

not mean that on the retrial the government is foreclosed

from developing, through other testimony, the meaning of

the alleged code used in the intercepted conversations.

V.

Appellant Eire contends that the court erred in failing to

sever his trial from that of the other defendants because he

was not present during jury selection. Although Eire was

advised of his right to be present at jury selection he ap-

parently decided, after discussion with counsel, to remain

in Florida during jury selection. Because of his absence the

court ordered severance of his trial. After further discuss-

ing with counsel Eire moved to allow waiver of his pres-

ence at jury selection. The court questioned Eire closely,

granted the motion to waive, and withdrew the severance.

Eire now contends that the court erred in allowing him to

waive this right and denying him a separate trial, but he

lla

offers no cogent reason why the court erred. In Parker v.

United States, 184 F.2d 488 (4th Cir. 1950), we held that

the right to be present at jury selection is waivable except

for capital offenses. The record shows that Eire’s waiver

was made intelligently, understandably, and knowingly,

and thus the court’s allowance of waiver was not errone-

ous.

VI.

Finally, appellant Neely argues that Judge Anderson er-

red in failing to disqualify himself at Neely’s sentencing

hearing. The presentence report revealed that Judge

Anderson had represented Neely 18 or 21 years earlier

while he was in private practice. Neely at that time had

been accused of murder and, with counsel from Anderson,

had agreed to plead guilty to manslaughter. Judge Ander-

son disclosed to both parties his prior representation of

Neely and noted that he had no independent recollection

of Neely or the case. Neely made no objection to Judge

Anderson proceeding with sentencing. Given Judge An-

derson’s full disclosure, the absence of actual impropriety,

and Neely’s failure to request recusal, see United States v.

Sartori, 730 F.2d 973 (4th Cir. 1984), we find no reversible

error in Judge Anderson’s failure to disqualify himself.

in summary, we affirm the judgments of convictions of

appellants Moates, Eire, Benae Floyd, and Sophia Floyd.

We vacate the judgment of conviction of appellant Neely

and remand for a new trial.

AFFIRMED IN PART.

VACATED AND REMANDED

IN PART. ;