United States v. Rossi Garrison

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 98-1611EM, 98-1612EM, 98-1694EM
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No. 98-1611EM *
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United States of America, *
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Appellee, *
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v. *
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Rossi Garrison, *
* On Appeal from the United
Appellant, * States District Court
* for the Eastern District
_____________ * of Missouri.
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No. 98-1612EM *
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United States of America, *
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Appellee, *
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v. *
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Isaac Pike, *
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Appellant, *
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No. 98-1694EM *
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United States of America, *
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Appellee, *
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v. *
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Natasha Batey, *
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Appellant. *
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Submitted: November 17, 1998
Filed: February 22, 1999
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Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON,1 District
Judge.
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RICHARD S. ARNOLD, Circuit Judge.
Rossi Garrison, Isaac Pike, and Natasha Batey appeal their convictions
stemming from their involvement in a drug-distribution conspiracy, raising various
evidentiary and sentencing issues. We affirm.
1
The Hon. Robert T. Dawson, United States District Judge for the Western
District of Arkansas, sitting by designation.
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I.
On August 14, 1997, a superseding indictment was filed against sixteen people,
including the defendants, for their involvement at least since 1989 in a conspiracy to
distribute cocaine in the St. Louis, Missouri, area. The indictment alleged, among
other things, that Garrison, Pike, and others had arranged for couriers to travel back
and forth between Los Angeles and St. Louis, transporting cocaine and the funds
needed for its purchase. Garrison, Pike, and Batey went to trial, and fourteen couriers
testified against them. All three defendants were convicted of conspiracy to distribute
cocaine in violation of 21 U.S.C. § 846 (1994). In addition, Garrison and Pike were
convicted of money laundering in violation of 18 U.S.C. § 1956(h) (1994). Pike was
also convicted of six additional counts of money laundering under 18 U.S.C.
§§ 1956(a)(1)(B)(i) and 2 (1994) and 18 U.S.C. §§ 1957(a) and 2 (1994). Garrison
and Pike were each sentenced to thirty years in prison. Batey was sentenced to
seventeen and a half years in prison. All three defendants were sentenced to five-year
terms of supervised release.
II.
Garrison and Pike first argue that the District Court2 erred in allowing one of
the couriers, Beverly Jean Armstrong, to testify that she had received a threatening
telephone call, a couple of days before her cooperation with the government, from
someone who identified himself as “Ike.” Law enforcement agents investigating the
conspiracy had approached several of the couriers. Armstrong, who had made four
trips to California, testified that Mary Jane Coffman, who had recruited her, told her
that the agents had talked to several other members of the conspiracy. The agents
eventually contacted Armstrong and, on January 22, 1996, a Monday, they
2
The Hon. Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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interviewed her. On the Friday before, Armstrong testified, she received a telephone
call from someone with a male voice who identified himself as “Ike.” She testified
that “he informed me that I wasn’t to say anything. I was to keep quiet; and that if I
didn’t, then I -- they were going to do something to me and my daughter.” (Trial Tr.,
Nov. 13, 1997, at 11.) This testimony was allowed over the objections of defense
counsel.
On appeal, Garrison and Pike claim that the statements should not have been
admitted. Since Armstrong had never met Isaac Pike and was not familiar with his
voice, they argue, the foundation for authenticating the telephone conversation was
not properly laid. The defendants also claim that the testimony should have been
excluded under Fed. R. Evid. 403, because of its highly prejudicial nature, and under
Fed. R. Evid. 404(b), as evidence of other crimes inadmissible to prove character. In
addition, they argue that a jury instruction based upon this testimony was improperly
given.
In order to allow the courier to testify about the threatening phone call, the
District Court had two tasks. First, it must have concluded that there was enough
evidence to justify a finding that “Ike” was one of the defendants. Second, the Court
was required to decide that the probative value of the testimony was not substantially
outweighed by the danger of unfair prejudice. Having reviewed carefully the
transcript, we find nothing to suggest that the District Court abused its broad
discretion in admitting the testimony. Armstrong did not testify (and, of course,
could not testify) that the “Ike” who threatened her was the defendant Isaac Pike.
With respect to the phone call itself, her testimony was only that she had received a
call from someone who identified himself as “Ike,” and that the caller had threatened
her. She also testified, however, that she understood from conversations with Mary
Jane and George Coffman that the person they were working for was named “Ike,”
that she herself would be traveling to California for “Ike,” and that “he would pay me
if I made these trips for him.” (Trial Tr., Nov. 12, 1997, at 135.) In addition, she
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testified that the voice that threatened her did not belong to any of the other males she
knew who were involved in the conspiracy, and, as the government asserts, the only
“Ike” involved in the conspiracy was Isaac Pike.
We believe the circumstances surrounding the telephone call satisfy the
requirements of Fed. R. Evid. 901(a), which provides that “authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” While the mere assertion by a person talking on the telephone of his or her
identity is not sufficient evidence of the authenticity of the conversation, the requisite
additional evidence “need not fall in any set pattern.” Fed. R. Evid. 901 advisory
committee’s note, ex. 6. Indeed, a “telephone conversation may be shown to have
emanated from a particular person by virtue of its disclosing knowledge of facts
known peculiarly to him.” Fed. R. Evid. 901 advisory committee’s note, ex. 4.
Garrison and Pike argue that testimony by Armstrong of the telephoned threat
was not relevant because it was not similar in kind to the crime charged. They were
on trial for conspiracy, however, and “[a]cts committed in furtherance of a conspiracy
are admissible as circumstantial evidence that the agreement existed . . ..” United
States v. Madrigal, 152 F.3d 777, 780 (8th Cir. 1998) (citing United States v.
Dierling, 131 F.3d 722, 730 (8th Cir. 1997)). This testimony bears directly on the
issue of conspiracy. It is evidence of the agreement Armstrong entered into to carry
drugs, and it is evidence of the length to which the conspirators would go to conceal
the existence of the conspiracy. Accordingly, we hold that the District Court did not
abuse its discretion in concluding that the probative value of the evidence outweighed
its unfairly prejudicial effect.
The defendants’ claim that the District Court improperly instructed the jury
with respect to the threat is also without merit. The disputed instruction reads as
follows:
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Attempts by a defendant to influence a witness in connection with the
crime charged in this case may be considered by you in light of all the
other evidence in the case. You may consider whether this evidence
shows a consciousness of guilt and determine the significance to be
attached to any such conduct.
(Appellant’s Addendum at 44.) Evidence of threats against witnesses is routinely
admitted against criminal defendants to show consciousness of guilt. See United
States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997); United States v. Dittrich,
100 F.3d 84 (8th Cir. 1996); United States v. DeAngelo, 13 F.3d 1228 (8th Cir.
1994). In addition, the instruction given by the District Court is a correct statement
of the law. United States v. Grajales-Montoya, 117 F.3d 356 (8th Cir. 1997).
Garrison argues separately that there was no evidence that he was involved in
threatening Armstrong, and that he was prejudiced because the jury may have found
him guilty by virtue of his association with Pike. The government presented
sufficient evidence at trial from which a reasonable jury could conclude that Garrison
was a member of the conspiracy (even he does not claim that the evidence against him
was insufficient), and it is well settled that members of a conspiracy are responsible
for acts committed by co-conspirators in furtherance of the conspiracy. We find no
error in the District Court’s instruction.
III.
We turn next to Garrison’s and Pike’s argument that the District Court should
have prohibited the government from introducing evidence of conduct that occurred
before the conspiracy was formed. The defendants object specifically to the
testimony of Shawn Staten, who testified that she sold cocaine to a person named
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“Cecil” in late 1982, and that “Cecil” had been accompanied by someone named
“Cuffy.” Staten later began selling cocaine regularly to “Cuffy,” and, through him,
met Garrison and Pike. When “Cuffy” was arrested, the government alleged,
Garrison and Pike stepped in and arranged to purchase drugs from Staten. When
Staten herself was arrested in 1989, Garrison and Pike approached Staten’s mother,
Johnetta Braxton, and the arrangement, with advice from Staten in prison, continued.
Braxton arranged for her mother, Rebecca Staten, to act as a courier, and Garrison
and Pike arranged to provide couriers from St. Louis. Although Garrison and Pike
were not participants in the original transactions with “Cuffy” and “Cecil,” those
transactions were the genesis of the conspiracy that would later be formed when
“Cuffy” and Shawn Staten were arrested. This testimony is direct evidence of the
establishment and structure of the conspiracy, and it was not error to allow its
introduction. See United States v. Rodrequez, 859 F.2d 1321 (8th Cir. 1988).
IV.
Garrison and Pike argue that the District Court should have allowed cross-
examination of Eddie Marshall, one of the couriers, on the subject of a sexual
relationship he allegedly had with another witness, Mary Jane Coffman. The
defendants sought to question Marshall on that subject in order to demonstrate bias
or prejudice. The defendants claim that the District Court’s refusal to allow such
questioning also prevented them from establishing inconsistencies in the testimony
of different witnesses. This argument is without merit. Coffman testified before
Marshall, and was cross-examined at length. She testified that Marshall was a drug
courier, and, with respect to Marshall, this was the extent of her testimony, which was
corroborated by two other witnesses. When Marshall’s turn came, he testified that
Coffman had recruited him as a courier. The District Court did not err when it
prohibited cross-examination of Marshall on the subject of the alleged relationship.
Any tendency of the relationship to show bias or interest on Marshall’s part was
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remote, and the District Court did not abuse its discretion in limiting this aspect of the
cross-examination of Marshall.
V.
Garrison next argues that the government introduced evidence that it knew to
be false, and that it failed to disclose exculpatory evidence. He claims that plane
tickets and other business records introduced into evidence during the testimony of
Robert Aguilar, the owner of a travel agency used by the couriers, were fabricated;
that, in some instances, there is no record of the scheduled flights; and that testimony
about the flights was falsified. Garrison offers no credible evidence to support these
charges, which are based upon conflicts between the records and testimony given at
trial. In one example, a flight record suggests that a witness arrived at 4:19 in the
morning, while a law-enforcement agent who seized cocaine from the witness upon
her arrival testified that he worked from 3 p.m. to 11 p.m. that day. According to the
government, the record cited by Garrison concerns a flight from the previous day. In
another example, Kim Su Blanchard testified that she met Pike at his home on March
24, 1995, during the day, to pick up her payment for transporting a shipment of
cocaine from Los Angeles. An exhibit offered by the government indicates, however,
that Blanchard had a ticket for a flight that was not scheduled to arrive in St. Louis
until 9:57 that evening. The government acknowledges the discrepancy, suggesting
that the conflict may reflect on Blanchard’s credibility, but argues that, in any event,
it is not evidence of fabrication. There is also the testimony of Aaron Quinn, who
testified that he and his traveling companion, Mary Bell, met with Brian Cotton and
Gail Davis shortly after they returned from Los Angeles. According to Garrison,
Quinn’s testimony was inconsistent with an unrelated travel record which suggested
that Brian Cotton was in California that day. As the government notes, however,
there was evidence that the couriers often flew under names other than their own.
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We have cited only three of Garrison’s examples, but we believe none of them
has merit. His complaints go to the weight, not the admissibility, of the evidence, and
any inconsistencies between the records and the testimony were for the jury to
resolve.
VI.
Pike claims that the District Court should have allowed his counsel to read
portions of his medical records to the jury. The records, which were introduced into
evidence, described, at least in part, dialysis treatments that Pike was undergoing
during the course of the conspiracy. Had his counsel been able to read the records to
the jury, Pike argues, the jurors would have “know[n] that [he] could not have
engaged in the drug-related activity that some Government witnesses said that he was
. . ..” (Appellant’s Br. at 22.) The records were given to the jury to consider during
deliberations, but the Court denied Pike’s request to have them read to the jury,
suggesting instead that counsel summarize them. Pike’s counsel did not do this, nor
did he call attempt to call any witness to do so. We see no error here.
VII.
Garrison and Pike argue that the District Court erred in sentencing them each
to thirty years in prison. An objection to a two-level increase for obstruction of
justice is the basis for Pike’s claim. Because of the amount of drugs involved in the
conspiracy, the Court set Pike’s base offense level at 36. Pursuant to U.S.S.G. §
3B1.1(a), he received a four-level increase for his role as an organizer or leader of a
criminal activity that involves five or more persons. His two-level increase for
obstruction of justice under U.S.S.G. § 3C1.1 stemmed from the telephone threat
against Beverly Armstrong, and he argues that there was insufficient evidence to
support the enhancement. For the same reasons we have set out earlier in this
opinion, we disagree. The District Court’s finding that Pike threatened Armstrong
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was not clearly erroneous, and the Court acted within its discretion in enhancing his
sentence.
Garrison’s argument is based upon a claim that the Court erred with respect to
the amount of drugs attributable to him. The amount of cocaine involved in the
conspiracy was found to be between 50 and 150 kilograms, and, accordingly, his base
offense level was set at 36. Like Pike, Garrison received a four-level increase for his
leadership role. The District Court sustained Garrison’s objection to a two-level
increase for possession of a dangerous weapon, leaving him was a total offense level
of 40, and an imprisonment range of 292 to 365 months. Garrison claims the amount
of drugs attributable to him was “unsupported.” We disagree. The calculation of
drugs bought and sold during the life of the conspiracy was based upon the testimony
of more than a dozen couriers. We believe there was ample evidence to support the
District Court’s finding.
VIII.
Natasha Batey contends that the evidence against her was insufficient to
support a finding of guilt. To support a conviction for a conspiracy under 21 U.S.C.
§ 846, the government must show an agreement between at least two people, the
objective of which was a violation of the law. United States v. Maejia, 928 F.2d 810
(8th Cir. 1991). A conspiracy need not be proved by direct evidence, but may be
inferred from circumstantial evidence. United States v. Foote, 898 F.2d 659 (8th Cir.
1990).
We must consider the evidence in the light most favorable to the government.
The evidence was that Garrison and Pike formed an agreement to purchase cocaine
supplied by a number of persons in California, and, in the course of the conspiracy,
hired other persons to act as couriers. With respect to Batey, we believe there was
sufficient evidence to justify a reasonable jury in concluding beyond a reasonable
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doubt that she participated in the conspiracy. There was testimony from one of the
couriers, Batrice Robinson, that Batey was present when Pike gave her the money for
her first trip to Los Angeles, and that Batey met her, paid her, and took possession of
the cocaine she brought from Los Angeles. Robinson also testified that Batey
contacted her about making a second trip to Los Angeles, provided her with an airline
ticket and money, and, again, met her upon her return and took possession of the
cocaine. There was testimony from another courier, Brian Cotton, that Batey assisted
Pike when Cotton was being provided money necessary for the purchase of cocaine
in Los Angeles.
Batey also argues that the District Court erred when it enhanced her sentence
for being a manager or supervisor pursuant to U.S.S.G. § 3B1.1. She argues, in fact,
that she should have received a decrease under U.S.S.G. § 3B1.2 because her
participation in the conspiracy was minor. We disagree on both points. First, we
have held that a defendant need only supervise “one or more other participants” to be
subject to an enhancement for being a manager or supervisor. United States v. Pena,
67 F.3d 153, 157 (8th Cir. 1995). In addition, the enhancement may apply even if the
management activity was limited to a single transaction. United States v. Flores, 73
F.3d 826, 835-36 (8th Cir. 1996). The evidence supports the finding that Batey acted
as a manager or supervisor, or, at least, the District Court was not clearly erroneous
in so finding. As the Court noted at sentencing, “there was . . . direct testimony from
Batrice Robinson that she got instructions from Miss Batey.” (Sentencing Tr. at 108.)
Second, there is no merit to Batey’s other sentencing argument, that she should
have received a decrease under U.S.S.G. § 3B1.2 because her participation in the
conspiracy was minor. To be a minor participant, Batey must have been “less
culpable than most other participants.” U.S.S.G. § 3B1.2, comment. n.3. As we have
discussed, there was ample evidence presented at trial that Batey was involved in the
conspiracy to transport cocaine from California and to deliver money to California
from St. Louis, and that she managed or supervised at least one other participant.
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Batey may not have been among the most culpable in the conspiracy, but we cannot
say the District Court erred in finding that she was not entitled to a reduction in her
sentence for being a minor participant.
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IX.
Garrison has filed a pro se reply brief, which we have considered. He has also
filed pro se motions, which we have considered, for remand, for a new trial, to correct
his sentence, and for release pending appeal. The motions are denied. Most of the
points urged in them have been addressed in this opinion. The others are not
significant, and we do not believe they deserve further discussion.
The judgments are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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