US v. Brown

755 F. Supp. 942

UNITED STATES of America, Plaintiff, v. Tommy BROWN, Defendant.

Crim. A. No. 90-CR-36.

United States District Court, D. Colorado.

January 8, 1991.

As Amended February 4, 1991.

COPYRIGHT MATERIAL OMITTED

Stephen Peters, Asst. U.S. Atty., Denver, Colo., for plaintiff.

Brian Holland, Denver, Colo., for defendant.

AMENDED MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This case is before me on partial remand from the United States Court of Appeals for the Tenth Circuit, "for the limited purpose of allowing defendant to lodge a proper motion for release pending appeal that conforms with 18 U.S.C. § 3143(b), Fed.R. App.P. 9(b), and 10th Cir.R. 9.5.6." This order is supplemental to my August 30, 1990 written order entered in accordance with Fed.R.App.P. 9(b) and 18 U.S.C. § 3143(b) in which I denied defendant's oral motion for release pending appeal. See Appendix A. The parties have fully briefed defendant's additional grounds stated in support of his renewed motion for release pending appeal and oral argument will not materially assist me in ruling upon the renewed motion.

The issue is whether any one or more of defendant's grounds stated in the motion establish that his appeal raises a substantial question of law or fact likely to result in reversal or a new trial. A "substantial" question under the Bail Reform Act "is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful". United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985).

I.

Defendant first contends that a substantial question exists whether I erred in denying his motion for judgment of acquittal based upon a lack of sufficient evidence to sustain his convictions on Counts 1, 44, 46, and 49 of the Indictment. I disagree.

The standard of review on appeal of a claim that the evidence is insufficient to support a defendant's conviction is distinct from the "substantial question" standard applicable under the Bail Reform Act. Nevertheless, the standard of review on appeal of a claim of "insufficient evidence" aids resolution of the substantial question issue. On appeal a defendant "bears a heavy burden" in challenging the sufficiency of the evidence at trial to support his conviction. United States v. Beaulieu, 900 F.2d 1531, 1533 (10th Cir.1990); see United States v. Moore, 919 F.2d 1471 (10th Cir. 1990); U.S. v. Maldonado-Campos, 920 F.2d 714 (10th Cir.1990); U.S. v. Ross, 920 F.2d 1530 (10th Cir.1990). Although defendant need not show that it is likely or probable that he will prevail on this issue on appeal, United States v. Powell, 761 F.2d 1227 (8th Cir.1985), I conclude that, in this case, this issue is neither "fairly doubtful", United States v. Affleck, supra, nor even a close question or one that could go either way. See United States v. Miller, 753 F.2d 19 (3rd Cir.1985); United States v. Giancola, 754 F.2d 898 (11th Cir.1985).

II.

Defendant next contends that a substantial question exists whether I erred in denying his motion to dismiss for grand jury abuse. For the reasons stated in United States v. The Law Firm of Zimmerman and Schwartz, P.C., 738 F.Supp. 407, 412 (D.Colo.1990), I conclude that no grand jury abuse occurred in this case. However, even assuming arguendo that grand jury abuse occurred, any error would be harmless beyond a reasonable doubt. See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); United States v. Kouba, 822 F.2d 768 (8th Cir.1987).

III.

Defendant also argues that reversible error occurred because I conveyed improperly to the jury that I had determined that the government had proved its conspiracy allegation. Specifically, defendant asserts that the procedure followed to determine admissibility of evidence under F.R.E. 104 and 801(d)(2)(E) resulted in my "judicial imprimatur" that the government had proven the conspiracy count to my satisfaction. Defendant's contention that a substantial question exists on this basis is disingenuous.

This defendant filed no pretrial motion for a James hearing. See United States v. Hernandez, 829 F.2d 988 (10th Cir.1987). Nine exhibits were admitted conditionally, in part under F.R.E. 801(d)(2)(E). I instructed the jury to "bear in mind that until and unless the Court otherwise admits them unconditionally, they are not admitted to establish the existence of the conspiracy; rather, the conspiracy will have to be established otherwise." No objection was made to this instruction. This defendant then began to object under F.R.E. 104 and 801(d)(2)(E). I recessed trial to conduct the in camera James hearing. The exhibits admitted to this point in the trial were also admissible as business records under F.R.E. 803(6).

Because I had advised the jury that the exhibits in question had been admitted conditionally, the government inquired whether I intended to instruct the jury as to my findings after the James hearing. Only defendant Zimmerman objected to the giving of such an instruction, and thus, defendant Brown would have been content for the jury to hear these findings. Because of defendant Zimmerman's objection, however, I exercised my discretion not to give any further instructions which would highlight the explicit findings required by Hernandez, Id. From that point forward, the evidence was simply received without limitation. Defendant Brown imposed no objection to this procedure, but now complains that this procedure constituted implicit judicial statement to the jury that the government had proved the conspiracy.

First, trial notes indicate that this defendant failed to preserve error in this regard by his failure to object to this procedure or request an appropriate limiting instruction. Indeed, this smacks of invited error. Second, the limiting instructions' language directs the jury's attention to the mere purpose for the evidence in question; no express or implied direction is given concerning its weight. Finally, complete closing instructions concerning the law of presumption of innocence, burden of proof, evidence, and conspiracy were given at the close of the case. I presume that the jury followed these closing instructions. United States v. Morris, 623 F.2d 145, 148 (10th Cir.1980).

IV.

Defendant further contends that a substantial question exists whether there was reversible error in the admission of hearsay statements pursuant to F.R.E. 801(d)(2)(E). He argues that his agency relationship or participation in the conspiracy must be demonstrated at the time of the making of the hearsay statement before a co-conspirator statement may be admitted under F.R.E. 801(d)(2)(E). I am not persuaded. This argument would apply only in cases arising before United States v. Andrews, 585 F.2d 961 (10th Cir.1978). See United States v. Morris, supra at 148 n. 3, cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980).

The settled predicates to be judicially determined by a preponderance of the evidence for admission of declarations of a co-conspirator are: (1) a conspiracy existed; (2) the declarant and the defendant against whom the declarations are offered were members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy. United States v. Mobile Materials, Inc., 881 F.2d 866 (10th Cir.1989). Of course, relevancy determinations must be made pursuant to F.R.E. 402 and 403. Id. These determinations were made at the conclusion of the James hearing and again at the conclusion of the evidence.

F.R.E. 801(d)(2)(E) permits admission of co-conspirator statements against a defendant who joins the conspiracy after the statements are made. See United States v. Murphy, 852 F.2d 1 (1st Cir.1988); United States v. Badalamenti, 794 F.2d 821 (2d Cir.1986); United States v. Jackson, 757 F.2d 1486 (4th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985); United States v. Balistrieri, 778 F.2d 1226 (7th Cir.1985); United States v. Leroux, 738 F.2d 943 (8th Cir.1984). This is particularly appropriate where, as here, the government must prove beyond a reasonable doubt the existence of a single chain conspiracy which has as its central purpose the commission of multiple criminal objects over an extended period of time. In such a conspiracy, some participants remain with the illegal enterprise from its inception until its conclusion and others join or leave it during its existence. See United States v. Petersen, 611 F.2d 1313 (10th Cir.1979); see also United States v. Mobile Materials, Inc., supra. (A conspiracy may be self-perpetrating and plugged into at any time.) A party may join or leave an ongoing conspiracy during its progress and thus become criminally liable for all acts done in furtherance of the scheme. United States v. Andrews, supra. It is entirely consistent with this rule to permit admission of co-conspirator statements against a defendant who joins a conspiracy after the statements are made. I conclude that defendant has failed to establish a substantial question on this issue. See United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir.1988).

V.

Defendant next argues that a substantial question exists whether reversible error occurred by failing to give his tendered jury instructions numbered 15, 17, and 18 regarding conspiracy and complicity. I conclude that no such substantial question exists because the jury instructions as a whole adequately stated the law of this case. See United States v. Suntar Roofing, Inc., 897 F.2d 469 (10th Cir.1990); United States v. Willis, 890 F.2d 1099 (10th Cir.1989).

VI.

Finally, defendant contends that a substantial question exists regarding computation of his offense level pursuant to the Sentencing Commission Guidelines. I rejected this contention in my written order of August 30, 1990 and reject it here.

First, defendant, as a lawyer, clearly abused a...