Eleventh Circuit Court of Appeals - Published Opinions

Friday, April 18, 2008

Westry: Hearsay statement to a friend can be against penal interest

In U.S. v. Westry, No. 06-13847 (April 16, 2008), the Court affirmed convictions and vacated in part sentences for a number defendants convicted of drug trafficking morphine, methadone, oxycontin and other drugs.
The Court rejected a challenge to the sufficiency of the evidence of conspiracy. The Court rejected the claim that because the defendants were at time in competition with each other for drug suppliers or customers, they were not part of a conspiracy. The Court pointed to evidence of "interrelatedness" of the defendant’s conduct. The Court further noted that "the existence of healthy competition" did not negate supplying consumers’ demand. As to one defendant, the Court rejected a "mere presence" claim, pointing out that he accepted a cash payment from an undercover officer to pay for his drug trafficking-related travel.
The Court also rejected the claim that a hearsay statement from a cocaine addict (and eventual victim of overdose) regarding the source of his cocaine. The Court recognized that the statement was made to a friend. However, it still could be treated as a "statement against penal interest," because of the chance, "albeit slight," that the declarant’s admission that he was waiting for cocaine would subject him to severe penalties.
The Court found no error in the refusal to give jury instructions regarding the defense of withdrawal from a conspiracy. The only evidence of withdrawal was a statement that one defendant "wasn’t involved" anymore. Because withdrawal requires "affirmative action to disavow or defeat the purpose of the conspiracy," there was insufficient evidence to support a withdrawal instruction.
The Court also rejected a challenge to the Pinkerton jury instructions. The defendants had sought instructions that specified that the amount of drugs at issue, and the death of drug user, were reasonably foreseeable. The Court upheld instructions which more generally instructed the jury that a co-conspirator is responsible for others’ crimes that were "a reasonably foreseeable consequence of the conspiracy."
Turning to sentencing, the Court found no error in the application of the "death enhancement," based on the death of an addict from an overdose from an injection of methadone sold by the defendants. "Where a conspirator is involved in distributing drugs to addicts, some of which are even administered intravenously, it is a reasonably foreseeable consequence that one or more of those addicts may overdose and die."
As to one defendant, however, the Court agreed that the evidence was too "meager" to support a death enhancement, as it only showed his "presence and association" with a member of the conspiracy prior to the death of the addict. A defendant cannot be held accountable for a death that occurred prior to his entry into conspiracy.
The Court, however, affirmed the imposition of a firearm enhancement. The Court held that a firearm’s possession is a reasonably foreseeable consequence of a "long-standing operation of a drug house." In any event, any error in applying the enhancement was harmless, in light of the life sentences imposed on other bases.