United States v. Miles Ford

771 F.2d 60, 18 Fed. R. Serv. 863, 1985 U.S. App. LEXIS 22674
CourtCourt of Appeals for the Second Circuit
DecidedAugust 27, 1985
Docket1185, Docket 85-1020
StatusPublished
Cited by6 cases

This text of 771 F.2d 60 (United States v. Miles Ford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Miles Ford, 771 F.2d 60, 18 Fed. R. Serv. 863, 1985 U.S. App. LEXIS 22674 (2d Cir. 1985).

Opinions

LUMBARD, Circuit Judge:

Miles Ford appeals from a judgment of conviction, entered after a jury trial before Judge Edelstein in the Southern District, for conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. § 846 (1982), and for distributing and possessing with intent to distribute cocaine. 21 U.S.C. § 841 (1982); 18 U.S.C. § 2 (1982). Ford was sentenced to concurrent one-year terms of imprisonment on each of the two counts, to be followed by a three-year special parole term. We affirm.

On the afternoon of September 27, 1984, undercover Police Officer Sherranda Rush and Detective Cleveland Baxter of the New York City Police Department, along with another officer, drove to the vicinity of 129th Street and Lenox Avenue in Manhattan. There they observed a group of three men on the northwest corner of 129th and Lenox.

Officer Rush and Detective Baxter got out of their car and walked towards Lenox, bn 129th Street. As they neared the corner, the three men, later identified as Ford, Waldron Thomas, and Keith Richards, approached the two officers. Ford reached them first and asked “How many do you want?” Detective Baxter told Ford to “see [his] girl,” gesturing toward Officer Rush, and Rush answered “Two.”

Keith Richards immediately intervened, told Officer Rush that he had “nice rocks,” a reference to freebase cocaine, and asked her for money. Rush gave Richards $40 in pre-recorded buy money and Richards counted it and told Waldron Thomas that it was “good.” Thomas then removed sever[62]*62al vials of cocaine from a blue pocketbook, and told Officer Rush to choose two. Rush did so, thanked the three men, then returned with Baxter to the car.

The officers notified a backup team and provided descriptions of Ford, Richards and Thomas. Officer Rush then saw Ford go into a building at 105 West 129th Street and shortly thereafter emerge with Thomas. Thomas was taken into custody on the northwest corner of 129th and Lenox Avenue; Ford and Richards were arrested inside the building, a social club. The $40 of buy money, an additional $130, and a blue pocketbook containing 16 vials of cocaine were found on Thomas.

Ford and Thomas were subsequently tried together and convicted.1 Neither defendant presented any evidence.

Ford claims three errors on appeal. First, Ford contends that the evidence presented at trial was insufficient to sustain a guilty verdict. We find this argument unpersuasive. Ford initiated the drug transaction by asking Officer Rush “how many” she wanted. She responded to Ford that she wanted two. Ford was close by during the exchange of money and drugs and was later observed in the company of both his confederates. Unlike United States v. Jones, 605 F.Supp. 513 (S.D.N.Y.1984), where the evidence was insufficient to show that the defendant, standing across the street, was even aware that a drug sale was in progress, the evidence which the jury credited shows that Ford actively participated in the street corner sale, that he expected to profit therefrom, and that Ford acted with full knowledge of the character of the illegal transaction.

Ford next challenges the exclusion of post-arrest hearsay statements made by Richards and Thomas during prearraignment interviews by an Assistant United States Attorney. The statements, which Ford sought to introduce as declarations against penal interest pursuant to Fed.R. Evid. 804(b)(3), were offered to show that Ford was not the “steerer” of the street corner sale. Richards made statements to the effect that Ford was attempting to “steer” the undercover police officer, in order to get free narcotics from Thomas, but that Richards reached her first; Thomas indicated that he was associated with Keith Richards, but that he merely “saw” Ford on the day of the sale.

About two weeks before trial, Ford’s counsel was advised that the government did not intend to introduce, as part of its case, post-arrest statements made by Richards and Thomas. Ford thereupon moved for a ruling on their admissibility under Fed.R.Evid. 804(b)(3) as statements against penal interest by unavailable witnesses. Upon the government’s objection and Thomas’ objection to Richards’ statement, Judge Edelstein said he would exclude the statements. Ford thereupon offered a redacted version of Richards’ statement.

The essential part of Richards’ statement, with the proposed redacted version in italics, is as follows:

“Q: So basically, you steer people to seller, take money and then give money to seller in exchange for free crack [freebase cocaine].
A: If run 3 customers to Seller, get one myself.
Q: Steer anyone today?
A: One girl who came to me, gave $40 and guy gave 2 cracks, he said, ‘take what you want. ’
Q: Only steered one today?
A: Yes, girl came to me and Steve came up and gave cracks.
Q: She gave you money and you gave money to Steve?
A: Yes.
Q: What was kid doing in green jacket [defendant Ford]?
[63]*63A: Doing same thing. Trying to steer her. Wanted to get one to smoke too. Run 5, get one.
Q: But he didn’t get her, you did?
A: He didn’t get her, she came to me first.”

The government objected to the redacted version, arguing that it was incomplete and misleading. Thomas also objected to the redacted version, and Judge Edelstein adhered to his decision to exclude.

At the outset, we note that the unambiguous testimony of Police Officer Rush and Detective Baxter implicated Richards as receiver of the money, Thomas as supplier of the cocaine, and Ford as “steerer” of the transaction. That testimony contradicted the post-arrest statements of Richards and Thomas regarding Ford, thereby raising some question about the credibility of those statements. Further, there was no corroboration of the statements. Neither Ford nor Thomas offered any evidence. Even an explanation by Ford himself was lacking, as Ford did not take the stand. Although Ford argues that the statements are mutually corroborative, in view of the other evidence which contradicted those statements, Judge Edelstein acted within his discretion in excluding them. See United States v. Beltempo, 675 F.2d 472, 479-80 (2d Cir.1982).

An additional factor which the court could not ignore was Thomas’ objection to the admission of Richards’ statement.

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United States v. Miles Ford
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771 F.2d 60, 18 Fed. R. Serv. 863, 1985 U.S. App. LEXIS 22674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miles-ford-ca2-1985.