United States v. David Silverman

771 F.2d 1193, 18 Fed. R. Serv. 915, 1985 U.S. App. LEXIS 23076

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 1985
• Docket: 83-1314
• Status: Published

Opinions

NELSON, Circuit Judge:

David Silverman appeals his conviction for conspiracy to distribute a controlled substance (cocaine) and three related offenses. Silverman claims that the district court improperly admitted statements under Fed.R.Evid. 801(d)(2)(E)(FRE) and erred in giving a “modified flight” jury instruction. We affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Silverman was indicted on August 23, 1983, by the Federal Grand Jury for the District of Nevada, for conspiracy to distribute a controlled substance; possession with intent to distribute a controlled substance; aiding and abetting; and interstate travel in aid of racketeering, in violation of 21 U.S.C. § 846 and § 841(a)(1) and 18 U.S.C. § 1952(a)(2) and (3). Silverman was tried together with his sister, Pearl Phoenix, and her husband, David Phoenix. The main witness against all three was a government informant, David Willard, who testified to the existence of a conspiracy to distribute cocaine involving Silverman as the supplier, Pearl Phoenix as the wholesaler, and Willard as the retailer.

Willard testified that he obtained cocaine from Pearl Phoenix. Sometime in 1982, he began to sell large quantities of cocaine to Robert Zeitziff. Zeitziff volunteered his private plane for trips to Los Angeles, where Pearl obtained her cocaine. Zeitziff, Willard, and Pearl made three flights to Los Angeles in Zeitziff’s plane.

The first trip took place on May 13, 1983, when Zeitziff flew Pearl and Willard to Van Nuys, California. According to Willard, Pearl had told him earlier that “her brother,” who lived near Van Nuys Airport, was her source of cocaine. Upon landing at Van Nuys, Willard called Valley Cab to request a cab for Pearl; Pearl went to a phone booth to make a call. Willard stated that Pearl had told him earlier that she was going to call her brother. Pearl then left alone in the cab. Cab records admitted into evidence showed that on May 13, a passenger was picked up at the Van Nuys terminal and was dropped off at the corner of Ventura and Louise, an intersection near David Silverman’s residence. Two or three hours later, Pearl returned with cocaine and then she, Zeitziff and Willard flew back to Reno, Nevada.

On May 31, the same trio again flew to Van Nuys. Willard again called Valley Cab, and Pearl again left to make a phone call, having told Willard that she had to call her brother. Cab records showed that a passenger was picked up on that date at Van Nuys airport and was dropped off at the corner of Winnetka and Ventura, another intersection close to Silverman’s residence. Cab records also showed that a passenger was picked up just over one hour later at the same corner and driven to the Van Nuys terminal. After Pearl returned with cocaine, the three returned to Reno.

On June 17, 1983, the same parties made a third trip to Van Nuys. As on the first two trips, Willard called Valley Cab and Pearl made a phone call. Cab records show that a passenger was driven on that date from the airport to Silverman’s residence, and a cab driver identified the passenger as Pearl. Willard testified that Pearl had earlier instructed him to wait by the phone for a call at about five o’clock. Pearl called Willard to say she was on her way back to the airport. Shortly thereafter, a car stopped near the terminal. At trial, Willard stated that the driver was a male who “look[ed] like Silverman,” but at that time Willard and Silverman had never met. Willard had seen a photograph of Silverman, however. Pearl got out of the car, and, again according to Willard, gave Willard a leather pouch containing six ounces of cocaine. Pearl informed Willard that she was going to go to San Francisco and would not go back to Reno with him and Zeitziff, then returned to the car, which was waiting for her. Willard and Zeitziff flew to the airport at Stead, Nevada, and, while driving to Reno, were stopped and arrested by the Reno Police Department for possession of six ounces of cocaine.

Following his arrest and subsequent indictment for possession of cocaine, interstate racketeering, and conspiracy, Willard entered into a plea bargain negotiation with the government and agreed to cooperate in an investigation. Willard subsequently taped a number of conversations between himself and the Phoenixes. During one of the conversations between Willard and Pearl, Willard asked her if her brother was “cool” with respect to money allegedly owed to him. Pearl replied, “Don’t worry.” The tapes, played to the jury, also contain other references to Silverman.

Two months after Willard’s arrest, agents of the Drug Enforcement Administration (DEA) knocked on the door of Silverman’s house. Silverman came to the door and stated that David Silverman was not at home; the agents left a message for Silverman to call the DEA to answer some questions. He called soon after. When the agents returned that afternoon with a warrant for his arrest, he gave a false identity and again claimed that David Silverman was not home. Within an hour, his attorney called the DEA and arranged for Silverman to turn himself in two days later, which he did. He obtained a reduction in bail based upon his surrender.

Silverman was convicted by jury verdict on October 28, 1983, and was sentenced December 19, 1983. Judgment of conviction was entered on December 23, 1983. He filed this appeal on December 19, 1983. Our jurisdiction is based on 28 U.S.C. § 1291.

ISSUES PRESENTED

I. Whether statements implicating Silver-man as a cocaine supplier were properly admitted as co-conspirator statements under FRE 801(d)(2)(E).

(A) The amount of evidence of Silver-man’s “connection” to the conspiracy.

(B) Whether the hearsay statements were made “during” and “in furtherance of” the conspiracy.

II. Whether the jury instruction on Silver-man’s “flight” was properly given.

DISCUSSION

I. Co-conspirator statements.

Silverman contends that statements implicating him as the source of cocaine for Pearl Phoenix were improperly admitted under FRE 801(d)(2)(E). Co-conspirator statements are admissible under this hearsay exception only if the trial judge determines that a proper foundation exists. A proper foundation consists of proof, independent of the statements themselves, to establish a prima facie case for (1) the existence of the conspiracy and (2) the defendant’s connection to and knowing participation in the conspiracy. The trial court also had to find that the challenged statement was made (3) during the course of and (4) in furtherance of the objectives of the conspiracy.. See United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (9th Cir.1981); United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.1976) (per curiam), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977).

The trial court stated that, absent hearsay evidence, Silverman’s membership in the conspiracy could not be established. It admitted two crucial pieces of evidence under FRE 801(d)(2)(E). The first was Pearl’s statement to Willard that her brother David Silverman was her cocaine source. The second was Pearl’s response to Willard’s question in a telephone call after he had become an informant: “Is your brother cool [concerning delay in paying for the cocaine]?” Pearl’s response was “Don’t worry.” Silverman’s attorney objected at trial to the admission of both statements, alleging that the evidence linking Silver-man to the conspiracy was insufficient to admit the statements under FRE 801(d)(2)(E) and that neither statement was made “in furtherance of the conspiracy.” The district judge ruled that the foundation was sufficient because there was independent evidence of a slight connection between Silverman and the conspirators. Silverman contends, on appeal, that the district judge erred and the statements were erroneously admitted.

A. Silverman’s connection to the conspiracy

Silverman contends that de novo review is proper on the issue whether he was connected to the conspiracy. Review of a prima facie case of conspiracy, the first prong of the test, has been established as de novo in this Circuit. United States v. Layton, 720 F.2d 548, 556 n. 4 (9th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984); United States v. Rosales, 584 F.2d 870, 872 (9th Cir.1978). The evidence of the defendant’s connection to the conspiracy must also constitute a prima facie case. See, e.g., Miranda-Uriarte, 649 F.2d at 1349-50; United States v. Weiner, 578 F.2d 757, 769 (9th Cir.) (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); United States v. Testa, 548 F.2d 847, 853 (9th Cir.1977). We agree with Silverman and will review the evidence of his connection to the conspiracy de novo to determine whether it established a prima facie case.

Silverman does not contend that a conspiracy did not exist, but rather that he was not knowingly connected to it. Therefore, the real issue in this ease is whether the government established a prima facie case of Silverman’s connection to the conspiracy. Since the foundation requires evidence independent of the hearsay statements, we must divide the evidence into hearsay and non-hearsay evidence. The non-hearsay evidence of Silverman’s involvement in the conspiracy included Pearl’s statements to Willard, upon each arrival in Van Nuys, that she had to call her brother. Since the defense did not object to the first statement, it was admitted for the truth of the matter asserted. The judge told the jury to consider the second two statements only for the proposition that Pearl made the statements to Willard, thus removing the statements from the FRE 801(c) definition of hearsay as statements introduced for the truth of the matter asserted.¹ See United States v. Fried, 576 F.2d 787, 793 (9th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978); see also Anderson v. United States, 417 U.S. 211, 219-20, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). The taxicab trip records, the taxi driver's testimony that he had driven Pearl to Silver-man’s house on the third visit, Willard’s testimony of a resemblance between Silver-man and the man who drove Pearl to the airport, and Silverman’s evasions with the DEA agents who visited his home constitute other non-hearsay evidence.

Silverman also questions the quantum of independent evidence required to establish a prima facie case of his connection to the conspiracy. The connection is an essential factor for the foundation for admission of the hearsay evidence. “To demonstrate a meeting of minds, one of them must be shown to be [the defendant’s].” United States v. Peterson, 549 F.2d 654, 658 (9th Cir.1977). See United States v. Nixon, 418 U.S. 683, 701 & n. 14, 94 S.Ct. 3090, 3104 & n. 14, 41 L.Ed.2d 1039 (1974); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). See generally United States v. Federico, 658 F.2d 1337, 1344-49 (9th Cir.1981) (Alarcon, J., dissenting) (discussing the development of the standard). The trial judge found that the evidence met both the standard of “slight evidence”² of a connection and “substantial evidence of a slight connection.” On appeal, the government asserts that “slight evidence” of the connection is sufficient while Silverman argues that “substantial evidence” is required.

The confusion over the correct formulation of the connection evidence has been engendered by cases in this Circuit.³ We have made clear, however, that the evidence required is “substantial evidence” of a “slight connection.” United States v. Rabb, 752 F.2d 1320, 1325 (9th Cir.1984); United States v. Perez, 658 F.2d 654, 658 (9th Cir.1981). The Supreme Court’s most recent statement on the issue appears to require “substantial, independent evidence” of the connection as well as of the conspiracy. United States v. Nixon, 418 U.S. 683, 701 & n. 14, 94 S.Ct. 3090, 3104 & n. 4, 41 L.Ed.2d 1039 (1974). The standard clearly calls for the government to make an offer of proof containing sufficient independent evidence of Silverman’s connection to the conspiracy to constitute a prima facie case of the connection. See Perez, 658 F.2d at 658; United States v. Freie, 545 F.2d at 1222. The requirement of a substantial amount of circumstantial evidence seems appropriate under Nixon, 418 U.S. at 701 n. 14, 94 S.Ct. at 3104 & n. 14, and the initial rationale of the “but slight” requirement of evidence.⁴

The independent proof offered of Silverman’s connection consists completely of circumstantial evidence. Several inferences can be drawn from this evidence, however. First, we infer that the sister visited her brother on each trip. Such visits could betoken close family ties, but the circumstances — that her first priority, upon arriving in the city for stays of several hours to obtain cocaine, was consistently to visit him — support an inference otherwise. When a man resembling Silverman drove Pearl to the airport after a cab had dropped her at his address, and waited while she delivered cocaine, inferences that Silver-man was present at the scene and aware of her transfer of the cocaine are reasonable. The false identity evidence constitutes evidence of Silverman's consciousness of guilt of some crime, which is circumstantial evidence for his connection to this conspiracy.

The trial judge must also have found that Silverman knew of his involvement in the conspiracy. Cf. Miller v. United States, 382 F.2d 583, 587 (9th Cir.1967) (failure to establish essential element of knowledge), cert. denied, 390 U.S. 984, 88 S.Ct. 1108, 19 L.Ed.2d 1285 (1968). If the inference that he aided his sister in obtaining cocaine upon each visit to Los Angeles is reasonable, taken together with the inference that he was present at the scene of one transfer and the inference of his consciousness of guilt, the trial judge could infer Silverman’s knowledge. See Miranda-Uriarte, 649 F.2d at 1352-53; United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981). Therefore, we conclude that the government produced sufficient independent evidence of Silverman’s involvement to establish a prima facie case of his connection to the conspiracy. The “connection” prong of the foundation for the co-conspirator hearsay evidence is thus satisfied.

B. Whether the hearsay statements were made “during” and “in furtherance of’ the conspiracy.

Silverman also contends that two further elements of the foundation for admission of the hearing statements were not satisfied. The trial judge determined that the two hearsay statements challenged— first, that Silverman was the source of cocaine for the conspiracy and second, the reassurance that Silverman would not mind a delay in payment — were made during the course of and in furtherance of the goals of the conspiracy. Silverman contends that we should review the “in furtherance” finding de novo. We disagree. We defer to trial court decisions for findings that statements were made “during the course of” and “in furtherance of” the conspiracy, though the exact standard of review on those issues has not been elucidated. See United States v. Tille, 729 F.2d 615, 620 (9th Cir.), cert. denied, — U.S. ---, 105 S.Ct. 156, 83 L.Ed.2d 93 and — U.S. ---, 105 S.Ct. 164, 83 L.Ed.2d 100 (1984); United States v. Whitten, 706 F.2d 1000, 1018 (9th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); United States v. DeLuca, 692 F.2d 1277, 1284 (9th Cir.1982); United States v. Sandoval-Villalvazo, 620 F.2d 744, 747 (9th Cir.1980).

The clearly erroneous standard appears appropriate because the questions whether the statements were made during and in furtherance of the conspiracy are threshold findings of fact. Thus, the trial judge’s conclusion must be affirmed unless it is clearly erroneous. See United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, — U.S. ---, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A “definite and firm conviction of mistake” does not arise from review of this record.

The first statement was clearly made during the pendency of the conspiracy. Silverman challenges the trial judge’s conclusion that the identity of the source was information intended to reassure Willard, in furtherance of the conspiracy, rather than conversational or narrative comment. See Layton, 720 F.2d at 556-57. Statements intended to reassure customers on sources of supply can be in furtherance of a conspiracy. See, e.g., United States v. Mason, 658 F.2d 1263, 1270 (9th Cir.1981). The district judge’s finding that this statement furthered the conspiracy’s objectives is not clearly erroneous.

The second statement was elicited by Willard after he had left the conspiracy, but the trial judge found that Pearl and Silverman were still continuing in the conspiracy. The trial judge’s finding that this statement was in furtherance of a continuing conspiracy is also supported by cases holding that payment is crucial to a conspiracy and furthers its objectives. See Testa, 548 F.2d at 855. This finding was not clearly erroneous. Thus, we conclude that an adequate foundation existed for the admission of the hearsay evidence against Silverman. The government established a prima facie case, independent of the hearsay evidence, of Silverman’s connection to the conspiracy, and the district court’s conclusion that the statements were made during and in furtherance of the conspiracy were not clearly erroneous.

II. Flight jury instruction

Silverman challenges a jury instruction regarding his evasive behavior toward the DEA agents and his attempt to “conceal himself” by giving an alias. Giving a false identity is admissible as evidence of consciousness of guilt. United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, — U.S. ---, 104 S.Ct. 1926, 80 L.Ed.2d 472 and — U.S. ---, 105 S.Ct. 200, 83 L.Ed.2d 131 (1984). Shortly after the officers paid the second visit to his home, his counsel contacted the police. Silverman turned himself in two days later pursuant to an agreement between his counsel and the police, and did not attempt to flee. See United States v. Myers, 550 F.2d 1036, 1051 (5th Cir.1977); Morris v. United States, 326 F.2d 192, 195 (9th Cir.1963). See also Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963).

We review the challenged jury instruction in the context of the whole trial and within the jury instructions as a whole. United States v. James, 576 F.2d 223, 226-27 (9th Cir.1978). The instruction was not improper in the context of the trial as a whole. We have recently re-emphasized our preference toward allowing “flight” evidence to get to the jury, who will then determine its probative value in light of the circumstances. See United States v. Tille, 729 F.2d at 622. The district court judge acted properly doing so in this case.

CONCLUSION

The foundation for admission of the hearsay evidence was sufficient under FRE 801(d)(2)(E). The flight jury instruction was also proper. The conviction is affirmed.

AFFIRMED.

1 . Even if these two statements were considered hearsay, they would be admissible under FRE 803(3), the exception for statements of then-existing state of mind. See Fed.R.Evid. 803(3) (exception covers "a statement of the declarant’s then existing state of mind ... (such as intent, plan, motive, [or] design ...)’’); United States v. Diez, 515 F.2d 892, 895-96 n. 2 (5th Cir.1975) (applying rule in context of co-conspirator statement), cert. denied, 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d 641 (1976). See also Wibye v. United States, 87 F.Supp. 830, 832 (N.D.Cal.1949) (statement of declarant’s travel plans admissible to show "design or intent to perform a specific act"), aff'd, 191 F.2d 181 (9th Cir.1951). Here, Pearl’s statement demonstrates her plan and intention to call her brother, and could be properly admitted for that purpose. Pearl’s plan is clearly relevant to the issue of whether a conspiracy existed between her and Silverman, the key issue in this case. See United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir.) (to be admissible, ”[t]he state of mind declaration must be relevant to some issue in the case”), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980).

2 . The origin of the "slight evidence” term can be traced as follows. Tomplain v. United States, 42 F.2d 203, 205 (5th Cir.) ("evidence [of a conspiracy], though slight, was sufficient to show [a] prima facie [case]”), cert. denied, 282 U.S. 886, 51 S.Ct. 89, 75 L.Ed. 781 (1930); Galatas v. United States, 80 F.2d 15, 24 (8th Cir.1935) ("slight evidence ... may still be substantial, and if so, sufficient”), cert. denied, 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998 (1936); Meyers v. United States, 94 F.2d 433, 434 (6th Cir.) ("The jury having found guilt, slight evidence connecting a defendant with a conspiracy may be substantial and, if it is, is sufficient”), cert. denied, 304 U.S. 583, 58 S.Ct. 1059, 82 L.Ed. 1545 (1938); Phelps v. United States, 160 F.2d 858, 867-68 (8th Cir.1947) ("an individual defendant’s participation in an established conspiracy [may] become substantial [from the weight and context of the evidence], though in abstraction [it] may seem only slight”), cert. denied, 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed.2d 1780 (1948). Relying on Meyers and Phelps, the Ninth Circuit referred to "slight evidence" while applying the "substantial” evidence requirement. Nye & Nissen v. United States, 168 F.2d 846, 852-53 (9th Cir.1948) (evidence was sufficient of defendant’s aiding and abetting crime so issue of sufficient evidence of conspiracy connection need not be reached), aff’d on other grounds, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949).

3 . Compare United States v. Federico, 658 F.2d 1337, 1342 (9th Cir.1981) ("slight evidence”); United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.) (same), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982) with United States v. Zemek, 634 F.2d 1159, 1170 (9th Cir.1980) ("sufficient, substantial evidence”), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 and 450 U.S. 985, 101 S.Ct. 1525, 67 L.Ed.2d 821 and 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981); United States v. Weiner, 578 F.2d 757, 768 (9th Cir.) (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978) (same); United States v. Peterson, 549 F.2d 654, 658 (9th Cir.1977) ("substantial, independent evidence”). See also United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir.1977) ("the substantiality of the independent evidence ... need only be slight"), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978).

4 . The origins of the "slight evidence” phrase indicate that the term initially referred to circumstantial evidence which amounts to substantial evidence, rather than indicating a low standard for the weight of evidence on the issue. See Phelps v. United States, 160 F.2d 858, 862-63 (8th Cir.1947), cert. denied, 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed. 1780 (1948). As the Phelps court explained, "[i]t is therefore possible for the circumstances on an individual defendant’s participation in an established conspiracy to become substantial from their weight in position and context, though in abstraction they may seem only slight.” Id. at 867-68. A partial quotation of Phelps was the basis for the Ninth Circuit’s adoption of language that substantial evidence is required of the existence of a conspiracy, while slight evidence of a defendant’s connection to the conspiracy is sufficient. See Nye & Nissen v. United States, 168 F.2d 846, 852-53 (9th Cir.1948) (slight evidence is sufficient), aff'd on other grounds, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949). The Nye & Nissen court properly applied the "substantial amount of slight evidence” test, however, but quoted only the "slight evidence” portion of the test. 168 F.2d at 852-53. This then became one formulation of the Ninth Circuit rule. See, e.g., United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); United States v. Knight, 416 F.2d 1181, 1184 (9th Cir.1969).