United States v. Daley ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40712
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND ALPHONSO DALEY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas, Corpus Christi
(USDC No: C-01-CR-17-1)
April 24, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:1
A jury convicted Raymond Daley of possession with intent to
distribute approximately 1,365 kilograms of marijuana. The border
patrol arrested Daley after finding two million dollars worth of
marijuana in his tractor-trailer. The marijuana was hidden in a
couple of boxes of frozen french fries. On appeal, Daley argues
that the district court committed reversible error by admitting
hearsay evidence concerning telephone calls Daley made and received
1
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
1
in the days before his arrest. We find no reversible error and
affirm Daley’s conviction and sentence.
I
On January 14, 2001, Daley drove a tractor-trailer up to the
border patrol checkpoint south of Falfurrias, Texas. When
questioned, Daley lied and told the border patrol agent that he was
a United States citizen. He further indicated that he was taking
a load of frozen french fries to San Antonio. At the checkpoint,
a canine alerted a DEA agent to the possibility of drugs in the
trailer. The border patrol agent then asked Daley to pull his
truck into a secondary inspection area.
While in this area, the border patrol agent asked Daley for a
bill of lading. Daley produced two different bills of lading. The
first bill indicated that (1) the shipper was Georgia Freezer
Services located in Cartersville, Georgia, (2) the load was sealed
and contained frozen french fries, and (3) the destination was HEB
Food Corporation in San Antonio, Texas. The second bill of lading
conflicted with the first bill of lading. The second bill
indicated that (1) the shipper was Georgia Freezer Services; (2)
the load was sealed and contained frozen french fries; and (3) the
destination was HEB Food Corporation in McAllen, Texas. The second
bill of lading bore a handwritten note, signed by S. Morgan,
calling for delivery of the entire load of fries to San Antonio.2
2
At trial, the government introduced a third bill of lading
that Daley had shown to a Louisiana Public Service Commission
2
The border patrol agent then asked Daley about his travel
plans. Daley said that his job required him to deliver french
fries to HEB food stores located in McAllen and San Antonio.3
According to Daley, he first went to McAllen where S. Morgan,
wearing a HEB uniform, instructed him to proceed along with the
entire load to San Antonio. During this conversation, Daley told
the agent that he was present -- but remained in the cab -- when
the shipper loaded his trailer in Georgia. Throughout his dialogue
with the border patrol agent, Daley appeared nervous.
Eventually, the DEA agent and the border patrol agent searched
Daley’s trailer. They found 1,365 kilograms of marijuana. A jury
convicted Daley of possessing with an intent to distribute more
than one thousand (1000) kilograms of marijuana. See 18 U.S.C. §§
841(a)(1), 841(b)(1)(A). Because of previous convictions for
officer two days before his arrest. Daley did not show this bill
to the border patrol agent. The third bill of lading indicated
that (1) the shipper was Georgia Freezer; and (2) the destination
was HEB Food in McAllen. The third bill contained a seal number
different from the other two bills. It did not mention a delivery
to San Antonio.
Daley, who testified in his own defense, blamed the multiple,
inconsistent bills of lading on S. Morgan. According to Daley,
when he arrived in McAllen, S. Morgan took from him the bill of
lading that Daley had shown to the public service officer in
Louisiana. In its place, S. Morgan provided the two bills Daley
later showed to the border patrol agent at the checkpoint.
Notably, S. Morgan did not testify at trial. The government
contends that S. Morgan is fictitious.
3
Daley also testified that his boss, Newton Palmer, asked him
to fly down to Georgia from New York to deliver the fries to San
Antonio and McAllen. Palmer did not testify at trial.
3
larceny, grand larceny, and an attempted cocaine delivery, the
district court sentenced Daley to 240 months in prison, a ten-year
term of supervised release, and a special assessment. See U.S.C.
§ 841(b)(1)(A). Daley appeals his conviction and sentence.
III
As we have indicated, the focus of this appeal is hearsay
testimony concerning telephone calls Daley made and received before
his arrest. At trial, the government introduced Daley’s cellular
telephone into evidence. The cell telephone’s memory showed that
Daley made and received calls from a telephone number in the 956
area code. At trial, a DEA agent, Mills, testified that this phone
number belonged to Elizabeth Bazan. Mills further testified that
Bazan’s husband was under investigation for drug trafficking.
Mills based this “investigation” testimony on out-of-court
statements of other DEA agents. Daley timely objected to the
testimony on hearsay grounds. The district court allowed the
testimony in evidence.
On appeal, Daley argues that the admission of this testimony
constituted reversible error. We review the district court’s
decision to admit evidence for abuse of discretion. See United
States v. Wells, 262 F.3d 455, 459 (5th Cir. 2000) (citation
omitted).
The government concedes that Mills’s testimony constituted
hearsay not within any exception. See FED. R. EVID. 801, 802, 803,
4
804, 807 (defining hearsay and its exceptions). Clearly, the
government introduced Mills’s testimony -- i.e., that Bazan’s
husband was under investigation for drug trafficking -- for the
truth of the matter asserted -- i.e., that Bazan was, in fact,
under investigation for drug trafficking. See FED. R. EVID. 801
(defining “hearsay” as “a statement, other than one made by the
declarant while testifying at the trial, offered in evidence to
prove the truth of the matter asserted”). Accordingly, the
district court abused its discretion in admitting Mills’s testimony
concerning the drug trafficking investigation of Bazan.
This conclusion does not end our inquiry, however. For the
introduction of hearsay evidence to warrant reversal, the admission
of the evidence must not be harmless. See FED. R. EVID. 103(a). “In
determining whether the admission of hearsay evidence was harmless,
we must consider the other evidence in the case, and then decide if
the inadmissible evidence actually contributed to the jury’s
verdict.” United States v. El-Zoubi, 993 F.2d 442, 446 (5th Cir.
1993) (citation omitted). “We will find such testimony harmful and
reverse a conviction only if it had a ‘substantial impact’ on the
jury’s verdict.” Id. (citation omitted); see also Wells, 262 F.3d
at 463 (applying the “substantial impact” standard to the admission
of out-of-court statements contained in drug ledgers).4
4
Notably, Daley does not challenge the introduction of Mills’s
testimony under the Confrontation Clause. U.S. CONST. amend. VI.
Although he mentions the right to confront witnesses in passing,
nowhere in his brief does Daley make an argument under the Sixth
5
In deciding whether the hearsay evidence had a “substantial
impact” on the jury’s verdict, we must consider the evidence in
relation to the entire trial. See Wells, 262 F.3d at 463 (citing
United States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993)). Here,
the government argues that because the other evidence against Daley
was overwhelming, Mills’s testimony about Daley’s contact with a
suspected drug trafficker did not have a substantial impact on the
verdict. The evidence against Daley included: (1) Daley’s nervous
demeanor when questioned by the border patrol agent; (2) the fact
that Daley was carrying multiple, inconsistent bills of lading; (3)
the fact that Daley first went from Georgia to McAllen (a town on
the Mexican border) before proceeding to San Antonio; (4) Daley’s
previous conviction for an attempted cocaine sale from which the
jury could infer intent to distribute the marijuana; and (5) the
large quantity -- and consequently street value -- of the marijuana
in the tractor-trailer.
On the other hand, Daley argues that the admission of the
hearsay evidence did have a substantial impact on the verdict
because (1) the government made Daley’s telephone calls the
Amendment or reference any cases evaluating the admission of
hearsay evidence under the Confrontation Clause. See, e.g., United
States v. Ismolia, 100 F.3d 380, 391 (5th Cir. 1997). As a
consequence, Daley has waived any potentially cognizable
Confrontation Clause claims. See United States v. Thames, 214 F.3d
608, 611 n.3 (5th Cir. 2000); see also FED. R. APP. P. 28(a)(9)(A)
(Appellant’s brief must contain his “contentions and the reasons
for them, with citations to the authorities and parts of the record
on which the appellant relies. . . .”).
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centerpiece of its closing argument and (2) the large weight that
the jury was apt to give to the fact that Daley was in close
contact with a suspected drug trafficker.
Before proceeding with our analysis, we should again note that
Daley took the stand in this case and testified in his defense (to
be sure, a rarity in criminal cases such as this one). In doing
so, he attempted to explain his side of the story. In closing
argument, the government debunked Daley’s testimony by stating that
the “one bit” of evidence Daley couldn’t explain away was his phone
calls to Bazan. In fact, this line of argument formed a
significant part of the government’s closing argument. The
government now concedes that this “debunking” evidence constituted
inadmissible hearsay.
We find troubling the government’s argument on appeal. If, in
fact, the government did not expect the hearsay evidence to have a
substantial impact on the verdict, we do not understand why the
government spent one third of its closing argument explaining and
repeating this evidence to the jury. Clearly, the government
thought that this evidence was important for the jury to consider
closely; otherwise, it would have stressed the other evidence
against Daley at closing argument.
Nonetheless, we must consider the hearsay evidence in the
light of all the evidence at trial, not just the evidence
emphasized by the government during closing argument. See United
7
States v. Pepper, 51 F.3d 469, 472 (5th Cir. 1995) (citing El-
Zoubi, 993 F.2d at 446). As a consequence, because of the
magnitude of the other evidence against Daley, we think it is clear
that the jury would have quickly convicted Daley without this
hearsay evidence. He was, after all, a defendant with a previous
criminal record for an attempted cocaine sale, who lied about his
citizenship, who produced phoney bills of lading, who had been
entrusted with a valuable cargo of contraband, and whose story had
not been corroborated by testimony of any other witnesses (either
his boss or S. Morgan). Given this background, the hearsay
evidence that he had had a conversation with one whose husband was
under investigation for drug trafficking would not have much impact
to further demonstrate Daley’s guilt. Therefore, we hold that
Mills’s testimony did not have a substantial impact on the jury’s
verdict.
IV
For the foregoing reasons, we affirm Daley’s conviction and
his sentence.
AFFIRMED.
8