United States v. Jay Blakey, Aka: Jerry Blakey, Jay Bleckey

960 F.2d 996, 1992 U.S. App. LEXIS 11115, 1992 WL 89351
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 20, 1992
Docket91-8111
StatusPublished
Cited by52 cases

This text of 960 F.2d 996 (United States v. Jay Blakey, Aka: Jerry Blakey, Jay Bleckey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jay Blakey, Aka: Jerry Blakey, Jay Bleckey, 960 F.2d 996, 1992 U.S. App. LEXIS 11115, 1992 WL 89351 (11th Cir. 1992).

Opinions

RONEY, Senior Circuit Judge:

This case involves a check which was originally a $5.00 check but had been made to appear to be a cashier’s check for $35,-000 when it was deposited into an account at Citizens and Southern National Bank (C & S).

We reverse defendant Jay Blakey’s two count conviction for conspiracy to defraud the bank and to possess a counterfeited and forged security under 18 U.S.C. § 371, and for aiding and abetting the possession of a counterfeited security under 18 U.S.C. § 513(a), because the trial court admitted into evidence a hearsay statement of a co-defendant which was not made in furtherance of the conspiracy.

Inasmuch as the Government is entitled to retry defendant, it is necessary to reflect that we would affirm the district court against defendant’s other contentions on this appeal:

First, that the check was not counterfeited but was in fact forged, so he was entitled to a judgment of acquittal because he was not charged under the forged security statute.

Second, that the court made two eviden-tiary errors: (a) denial of a mistrial when a witness mentioned that a co-defendant had filed an appeal, and (b) admission of “flight” evidence testimony concerning an [998]*998event that occurred three years after the check was deposited.

Third, that the court improperly denied a requested instruction on the conspiracy charge.

Fourth, that the court failed to explain why the sentence was above the sentencing guidelines range.

On March 25, 1987, the falsified check, purportedly from Ohio State Federal Savings and Loan, made payable to the American Refinance Group (ARG) was deposited into ARG’s checking account at C & S. ARG was owned solely by Ronald West-moreland and was in the business of financing the purchase and sale of low income rehabilitated residential properties. The deposit of the cashier’s check was made by Ronald Townsend, the Vice President of ARG and the sole signatory on the ARG account.

Testimony was presented at trial to show that the forged check was given by defendant Jay Blakey to Westmoreland and Townsend as payment for a $15,000 debt owed by Blakey to Westmoreland. Townsend was to deposit the check into the ARG account and return the $20,000 difference to Blakey. Over the next few days, several checks totaling $18,000 were written at Westmoreland’s direction and signed by Townsend. Although none of these checks were written to Blakey, they were credited against the $20,000 owed to Blakey. Additional checks were written against West-moreland’s $15,000 share of the deposit.

On March 31, 1987, C & S learned that the cashier’s check was being returned. C & S immediately debited the $35,000 from the ARG account, which at that point had a positive balance of $6,697.07, yielding an overdraft of $28,302.93.

Blakey objected to the admission into evidence of a certain statement of co-defendant Westmoreland, reflected in the statements of Bobby Smith, the Assistant Vice President of Fraud Investigation at C & S. Smith testified that Westmoreland told him that Westmoreland received the $35,000 check from a Jay Blakey.1 Westmoreland was not called to testify.

The Federal Rules of Evidence provide that a statement is not hearsay if “[t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Since there was sufficient evidence to establish the existence of a conspiracy and that defendant and Westmore-land were members of it, the question is whether the district court correctly ruled that the hearsay statement was in furtherance of the conspiracy.

Statements which serve a necessary part of a conspiracy by concealing it or impeding an investigation are admissible as statements made during and in furtherance of the conspiracy. United States v. Griggs, 735 F.2d 1318, 1325 (11th Cir.1984). Statements which simply implicate one co-conspirator in an attempt to shift the blame from another, however, cannot be characterized as having been made to advance any objective of the conspiracy. On the contrary, statements that implicate a coconspirator, like statements that “spill the beans” concerning the conspiracy, are not admissible under Rule 801(d)(2)(E). See United States v. Posner, 764 F.2d 1535 (11th Cir.1985).

The statement made by Westmoreland implicated a Jay Blakey, the name of this defendant. The statement pointing the [999]*999finger to this defendant as the source of the falsified check could hardly be considered to have advanced any object of the conspiracy. It is precisely the type of hearsay statement which cannot be admitted against a defendant. In fact, at the time the statement was made, the coconspirator had every incentive to point the finger at the defendant in order to shift the focus of the investigation away from himself.

The Government asserts that Westmore-land’s statement is admissible under Rule 801(d)(2)(E) because it is an attempt not to implicate a coconspirator, but to mislead the investigation. The argument is based on the testimony of Smith that he subsequently received an incorrect Las Vegas phone number for Blakey from Townsend, the signatory on the account into which the check was deposited. Although a Jay Bla-key resided at that number, it was not the Blakey who is the accused before us.2 The Government argues that Westmoreland’s statement is admissible because when combined with Townsend’s statement, it shows an attempt to mislead.

There is no evidence in the record, however, that Westmoreland knew any Jay Bla-key other than the defendant. Nor is there any evidence that Townsend was something other than mistaken as to Blakey’s telephone number. That there was another Jay Blakey in Las Vegas is not shown to have been known by Westmoreland. West-moreland’s statement cannot be rendered admissible as part of a combined effort to mislead without a stronger evidentiary showing that the statement was made to mislead the investigation and to cover up the conspiracy. This testimony violated defendant’s constitutional right to be confronted with the witnesses against him. His conviction must be reversed.

It is necessary that we rule on Blakey’s other contentions in the event of a new trial.

Counterfeit or Forged

The check at issue in this case originated as a $5.00 check drawn in 1983 on the Ohio State Federal Savings and Loan Association. By the time the check was deposited at C & S, it had been transformed into a cashier’s check for $35,000 with a falsified 1987 date and authorizing signature.

Blakey was charged with aiding and abetting the possession of a counterfeited security in violation of 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
960 F.2d 996, 1992 U.S. App. LEXIS 11115, 1992 WL 89351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jay-blakey-aka-jerry-blakey-jay-bleckey-ca11-1992.