United States v. Silverman
861 F.2d 571 (9th Cir. 1988)

ALARCON, Circuit Judge....

First, [David Silverman] argues that the district court erred in admitting into evidence the extra-judicial statements of an alleged co-conspirator. He claims that apart from the contested statements themselves, insufficient evidence established his connection to the conspiracy....

In our initial decision on this appeal, we affirmed the judgment of conviction. We subsequently granted the petition for rehearing and withdrew our initial decision. We sent our second opinion in this matter to the clerk's office for filing on June 22, 1987. We were compelled to withdraw that opinion the next day, however, because of the Supreme Court's decision in Bourjaily v. United States. Bourjaily distinguished decisions we had relied upon in our second opinion on the issue of the admissibility of a co-conspirator's statements.

Having reexamined the record in light of Bourjaily, a majority of the court has concluded that the district court erred in admitting the statements of David Silverman's alleged co-conspirator. Because that error was prejudicial, we now reverse....



Prior to trial, David Silverman, through his attorney Bruce M. Kaufman, filed a motion in limine requesting that the district court exclude certain hearsay statements allegedly uttered by his sister, Pearl Phoenix (Pearl), on the ground that the Government would be unable to demonstrate a preliminary fact upon which admission of the statements depended--David Silverman's connection to the alleged conspiracy. The district court denied the motion "without prejudice to object to the admission of such evidence at the time of trial or to move to strike same."


The Government's principal witness was David Willard (Willard). Willard testified pursuant to a plea agreement in which he promised to assist the Government in exchange for its promise to dismiss certain charges against him.

Willard testified that he purchased cocaine from Pearl and resold it to Robert Zeitziff (Zeitziff). On three occasions, Zeitziff provided a private airplane in which he, Willard and Pearl flew from Reno, Nevada to Van Nuys, California to obtain cocaine.

The first flight took place on May 13, 1983. After landing in Van Nuys, Willard called Valley Cab Co. to request a cab for Pearl. Willard testified as follows concerning Pearl's conduct and statements at the airport:

Q: And you called a cab for her?

A: I called a cab for her and she went outside to a pay phone and at which time--

Q: Why did she go to a pay phone?

A: She told me she was going to call somebody.

Q: Did she tell you who she was going to call?

A: Yes, she did.

Q: Who?

A: Her brother.

The record does not reveal whether Pearl completed this call or, if so, whom she called. The record does show that Pearl had two brothers, Frank Silverman and appellant David Silverman, both of whom resided in the western part of the San Fernando Valley.

Pearl departed in a cab. After having been away for two or three hours, she returned to the airport and gave Willard a package containing about six ounces of cocaine.

Zeitziff, Willard, and Pearl again flew to the Van Nuys Airport on May 31, 1983. Willard again called a cab for Pearl. The transcript contains the following testimony concerning this event:

Q: When you first got there what did you do, what did Bob Zeitziff do?

A: He went to take care of the plane.

Q: What did you do?

A: I went to call the cab.

Q: What did Pearl do?

A: She went to the pay phone.

Q: What did she do?

A: She called somebody.

Q: Who did she call?

A: Said her brother.

Mr. Kaufman[Silverman's counsel]: Objection.

The Court: What is the basis of the objection, please?

Mr. Kaufman: It's hearsay. Also calls for a conclusion of this witness.

Mr. Sullivan[government counsel]: Your Honor, I submit it's not hearsay. He's basically explaining what the witness did.

The Court: All right, the objection will be overruled.

Again, the record does not show that this call was in fact completed or, if so, which brother was called. On this occasion, Pearl was away from the airport for an hour or two. Upon her return, she gave Willard another package containing approximately six ounces of cocaine.

Pearl, Willard, and Zeitziff flew to the Van Nuys Airport for a third time on June 25, 1983. Willard testified that upon landing they followed the "same procedure." Willard testified as follows:

Q: Where did you go?

A: I went to call a cab.

Q: Same cab company?

A: Same cab company and Mrs. Phoenix went to make a phone call.

Q: Did she tell you who she called?

A: Yes, sir.

Q: Who?

A: Her brother.

Mr. Kaufman: Objection, Your Honor.

The Court: All right, is that on the same ground as previously?

Mr. Kaufman: Yes, Your Honor.

The Court: Objection will be overruled on the same basis as previously.

This testimony does not establish whether the call was completed. It should also be noted that the court did not articulate the basis for its previous ruling. See quoted portion of the transcript concerning the May 31, 1983 extrajudicial statement set forth above. We must assume that the court overruled the objection because it accepted the prosecutor's theory that Willard was "basically explaining what the witness did."

Willard's testimony continued as follows:

Q: Did she tell you her brother's name?

A: Yes, sir.

Q: What was it?

A: David.

Q: Did she tell you his last name?

A: Silverman.

Q: Did she leave in the cab?

A: Excuse me, she didn't tell me she called David Silverman at that time. I knew the name was Silverman from before.

Willard further testified that on this occasion, after having been away from the airport for several hours, Pearl returned to the airport in a little blue car driven by a man. Willard made an in-court identification of Silverman, as "look[ing] like the individual" who was driving the car. On redirect examination, Willard stated that the driver "looked very much like him [David Silverman]." Willard testified that he had never met David Silverman, but had seen a photograph of him at Pearl's house prior to June 23, 1983.

Willard was arrested shortly after his return to Nevada following the third trip to Southern California. He to cooperate with the Government. As part of the bargain, Willard agreed to record his conversations with Pearl and her husband, David Phoenix.

The Government introduced a tape recording of an August 1, 1983 conversation between Willard and Pearl. The district court overruled David Silverman's objection to the playing of this tape without explanation. During this conversation, Willard asked Pearl, "Is your brother cool?" Pearl responded, "Don't worry." The court indicated that this statement was admissible as "co-conspirators' statements."

Following the playing of these recordings, Government counsel asked Willard whether Pearl or David Phoenix had told him, prior to May 13, 1983, the name of her supplier of cocaine. Mr. Kaufman, Silverman's attorney, objected to this question. The court then heard argument on the objection outside the presence of the jury. Mr. Kaufman argued that the Government had not satisfied its "foundational requirements" for the admission of the extrajudicial statements of a co-conspirator. The court overruled the objection stating that it was "a fairly close, tough question for the court to tackle but nevertheless I think that it does meet the test of [Fed. R. Evid.] 801(d)(2)(E) and so I'm going to permit the question to be answered." The court did not discuss the evidence that it believed satisfied the government's burden of establishing the preliminary fact to Silverman's connection to the conspiracy.

Following the court's ruling, Willard testified as follows:

Pearl Phoenix. I'm not exactly clear on the dates when she told me, but it was in Floriston at their house, the Phoenixes' house and she explained to me that David Silverman had essentially acquired the cocaine business and that was where she was getting the coke from.

It should be noted that Willard testified that this unrecorded extrajudicial hearsay statement was made by Pearl sometime prior to May 13, 1983. Furthermore, there is no evidence in the record from any witness who saw the person who furnished cocaine to Pearl on May 13, 1983, May 31, 1983, or June 25, 1983.


In an attempt to connect Silverman to the conspiracy, the Government offered evidence of cab rides taken by some person from the Van Nuys airport on May 13, 1983, May 31, 1983, and June 25, 1983. The general manager of the Valley Cab Co. testified that his business records showed that on May 13, 1983, a passenger was taken from the Van Nuys Airport to the intersection of Louise and Ventura, in Encino, California. The witness stated that this intersection is located in a commercial zone, approximately five miles from the airport. He further testified that his records disclosed that on May 31, 1983, a passenger was transported from the Van Nuys Airport to the intersection of Winnetka and Ventura, also a major commercial area. The witness stated that the distance between Louise and Winnetka on Ventura Boulevard is approximately six or seven miles. No evidence was introduced to prove that Pearl was the passenger in the cab on May 13, or May 31. The record is equally silent regarding whom, if anyone, the passenger contacted after exiting the cab at these two commercial locations.

The cab company's business records also showed that on June 25, 1983, a passenger was transported from Van Nuys Airport to 22601 Waterbury. Other evidence established that David Silverman resided at 22601 Waterbury, Woodland Hills, California. The cab driver made an in-court identification of Pearl as the passenger on this occasion. The Government stipulated, however, that on July 21, 1983, the Government had shown the driver a spread of twelve photographs, from which the driver identified another person as the passenger transported to 22601 Waterbury on June 25....

At the close of the Government's case-in-chief, David Silverman moved to strike the evidence of Pearl's out-of-court statements, "on the grounds that the Government has failed to lay the foundation required by the Court." David Silverman argued, inter alia, that the record contained no evidence independent of the statements themselves to connect him to the conspiracy....

... [T]he trial judge denied David Silverman's motion to strike the co-conspirator's statements. The trial judge did not discuss the evidence on which he based his ruling. The trial judge explained: "All that is necessary is that there be independent proof that David Silverman had a slight connection to the conspiracy or some cases say slight evidence of a connection to the conspiracy was offered. By either test there is that much evidence. That is there is a slight connection shown and that's about what it adds up."



Federal Rule of Evidence 801(d)(2)(E) provides: "A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). An accused's knowledge of and participation in an alleged conspiracy are preliminary facts that must be established before extrajudicial statements of a co-conspirator can be introduced into evidence. Bourjaily v. United States. These preliminary facts must be shown by a preponderance of the evidence. Bourjaily.

Our standard of review is uncertain. Prior to the decision in Bourjaily, we reviewed de novo a district court's determination that the Government had sufficiently established the factual predicate for admission of a co-conspirator's statement....

The dissent cites Bourjaily for the proposition that "the district court's conclusion that preliminary facts have been established by a preponderance of the evidence is reviewed for clear error." The Bourjaily Court, however, did not address the issue of standard of review, nor did it unequivocally declare which standard is proper.

Under the de novo standard of review, we do not defer to the lower court's ruling but freely consider the matter anew, as if no decision had been rendered below. Under the more deferential "clearly erroneous" standard, we must accept the lower court's ruling unless, after reviewing the entire record, we are "left with the definite and firm conviction that a mistake has been committed."

We have carefully reviewed the record in this case. For the reasons discussed herein, we are left with the definite and firm conviction that the admission of the alleged co-conspirator's statements in this case was a serious mistake, one that prejudiced the defendant. Our conviction requires us to reverse the district court's ruling, whether that ruling is reviewed under the de novo or the "clearly erroneous" standard. For this reason, we need not, and do not, decide whether Bourjaily has effected a change in the standard of review heretofore applied in this circuit.

The Supreme Court ruled in Bourjaily that the plain meaning of Fed. R. Evid. 104(a) is that the district courts may consider the contested hearsay statements themselves, along with all other evidence, in determining whether the defendant had knowledge of and participated in the conspiracy. The Court explained: "To the extent that [the prohibition against bootstrapping set forth in Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942)] meant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a)."

In Bourjaily, the contested hearsay statements offered by the Government to





and statements made in the course of receiving medical care is that such out-of-court declarations are made in contexts that provide substantial guarantees of their trustworthiness. But those same factors that contribute to the statements' reliability cannot be recaptured even by later in-court testimony. A statement that has been offered in a moment of excitement--without the opportunity to reflect on the consequences of one's exclamation--may justifiably carry more weight with a trier of fact





Petitioner's reliance is misplaced. Coy and Craig involved only the question of what in-court procedures are constitutionally required to guarantee a defendant's confrontation right once a witness is testifying. Such a question is quite separate from that of what requirements the Confrontation Clause imposes as a predicate for the introduction of out-of-court declarations. Coy and Craig did not speak to the latter question. As we recognized in Coy, prove the preliminary facts were amply corroborated by other evidence. The co-conspirator in Bourjaily told an FBI informant that the defendant was involved in a conspiracy with the co-conspirator, that the defendant had agreed to buy and distribute a kilogram of cocaine, that the defendant would be in his car at a certain hotel parking lot at a certain time, that the co-conspirator would obtain the cocaine from the informant in the parking lot, and that the defendant would accept the cocaine from the co-conspirator. The co-conspirator's statements were corroborated by defendant's appearance at the designated time and place and by his acceptance of the cocaine.


The Supreme Court held in Bourjaily that the trial court had not erred in considering the co-conspirator's statements to determine whether the Government had established, by a preponderance of the evidence, the preliminary facts of the defendant's knowledge of and participation in the alleged conspiracy. Because the contested statements were fully corroborated by evidence of defendant's own actions, the Court found it unnecessary to decide "whether the courts below could have relied solely upon [the co-conspirator's] hearsay statements to determine that a conspiracy had been established...."

This court has answered the question left open in Bourjaily. We have ruled that a co-conspirator's out-of-court statement, standing alone, is insufficient to establish that the defendant had knowledge of and participated in a particular conspiracy. See [United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988)] (for co-conspirator statements to be admissible, "there must be some evidence, aside from the proffered statements, of the existence of the conspiracy and the defendant's involvement"). To abandon the requirement that some evidence aside from the proffered co-conspirator's statements be presented to show that the defendant knowingly participated in the alleged conspiracy would be to render all such statements self-validating. Such a ruling would "eliminate one of the few safeguards of reliability that this exemption from the hearsay definition possesses." Bourjaily, 107 S. Ct. at 2784 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting).

Accordingly, in this circuit, when the proponent of the co-conspirator's statement offers no additional proof of defendant's knowledge of and participation in the conspiracy, the statement must be excluded from evidence. Where, on the other hand, some additional proof is offered, the court must determine whether such proof, viewed in light of the co-conspirator's statement itself, demonstrates by a preponderance of the evidence that defendant knew of and participated in the conspiracy.

In determining whether the proponent has made a showing sufficient to permit the introduction into evidence of the co-conspirator's statement, the district court must bear in mind that out-of-court statements are presumptively unreliable. See Bourjaily. When the out-of-court statement is one made by a co-conspirator purporting to implicate others in an unlawful conspiracy, its reliability is doubly suspect. "[C]o-conspirator statements ... often have been considered to be somewhat unreliable. It has long been understood that such statements in some cases may constitute, at best, nothing more than the 'idle chatter' of a declarant or, at worst, malicious gossip." Bourjaily, 107 S. Ct. at 2790 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting)....

Although, as Bourjaily instructs, Fed. R. Evid. 104(a) permits a trial judge to consider the co-conspirator's out-of-court statement in assessing the statement's admissibility, Rule 104(a) does not diminish the inherent unreliability of such a statement. Because of this presumptive unreliability, a co-conspirator's statement implicating the defendant in the alleged conspiracy must be corroborated by fairly incriminating evidence. Evidence of wholly innocuous conduct or statements by the defendant will rarely be sufficiently corroborative of the co-conspirator's statement to constitute proof, by a preponderance of the evidence, that the defendant knew of and participated in the conspiracy. Evidence of innocent conduct does little, if anything, to enhance the reliability of the co-conspirator's statement. A co-conspirator's statement, which is presumptively unreliable hence inadmissible standing alone, is no more reliable when coupled with evidence of conduct that is completely consistent with defendant's unawareness of the conspiracy.

Bourjaily itself provides one example of the sort of incriminating evidence that sufficiently corroborates a co-conspirator's statement to establish, by a preponderance of the evidence, defendant's connection to the conspiracy. In Bourjaily, the evidence showed that the defendant had committed a criminal act that furthered the conspiracy described in the co-conspirator's statement....

Of course, evidence short of proof of the commission of a substantive offense may also be sufficient to show, by a preponderance of the evidence, the defendant's knowing participation in the alleged conspiracy. See, e.g., United States v. Stewart, 770 F.2d 825, 831 (9th Cir. 1985) (defendant was present at seller's house immediately before each of three drug transactions, seller and defendant met immediately after two of the transactions, and defendant's palm print was found on envelope that contained the drug), cert. denied, 474 U.S. 1103 (1986).

In the present case, by contrast, the evidence aside from the proffered co-conspirator's statements is completely consistent with a conclusion that David Silverman was unaware of the conspiracy. The evidence is insufficiently corroborative of Pearl's out-of-court statements to overcome the presumption of unreliability that makes those statements inadmissible standing alone.

According to Willard, Pearl told him that David Silverman was her cocaine source. In addition, on each trip to the Van Nuys airport, Pearl allegedly told Willard that she was going to call, or had called, an unspecified brother. Pearl also responded "Don't worry" when Willard inquired whether her brother was "cool" concerning payment for cocaine.

Pearl's statements are mutually corroborative only if one assumes, as the dissent apparently does, that each is independently reliable. We submit that such assumption is erroneous. As explained above, a co-conspirator's out-of-court statements are presumptively unreliable. One presumptively unreliable statement cannot be invoked to corroborate another, particularly when each was allegedly uttered by the same declarant.(1)1

The admissibility of the contested statements, therefore, hinges on whether the additional evidence proffered by the Government to demonstrate David Silverman's connection to the conspiracy sufficiently corroborates the statements to overcome their presumed unreliability. We conclude that the additional evidence fails to provide sufficient corroboration.

Evidence that David Silverman drove his sister to the airport on one occasion makes only slightly more probable his connection to the conspiracy than do the hearsay statements alone. Such evidence shows little more than that he was in the presence of a relative who was involved in a conspiracy. That Pearl attempted to visit Silverman during one of her cocaine-buying expeditions is, likewise, only marginally probative of his involvement in the conspiracy, hence marginally corroborative of the contested statements. We have consistently recognized that evidence that a defendant merely associated with a member of a conspiracy has little probative value in demonstrating the defendant's connection to that conspiracy....

the car with Pearl during one of her cocaine-buying expeditions, and her brother's subsequent attempt to conceal his identity from the DEA as a whole, rather than as independent pieces of evidence. The majority's analysis, in contrast, minimizes the probative force of this evidence by breaking it into isolated fragments. The majority examines each piece of evidence offered to show Silverman's link to the conspiracy separately, inquiring of each piece whether it is consistent with Silverman's innocence or indicative of his guilt. This mode of analysis cannot survive the plain language of the Bourjaily decision.

In sum, by requiring that the proponent of a challenged co-conspirator hearsay statement overcome the "presumptive unreliability" of the statement with "fairly incriminating" evidence which "demonstrates by a preponderance of the evidence that defendant knew of and participated in the conspiracy," the majority has attempted to transform the concerns of the dissenters in Bourjaily into the law of this circuit. I must, therefore, respectfully dissent.


The majority's analysis of the district court's admissibility determination in this case also ignores our very limited role in reviewing the factual findings of the district court. We do not review the finding of a sufficient connection to the conspiracy de novo, but may reverse only if we determine that the district court's finding is clearly erroneous. See Bourjaily, 107 S. Ct. at 2782; see also id. at 2778 ("the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court").(2)1

Under the clearly erroneous standard, a reviewing court may not reverse a district court's view of the evidence as long as it "is plausible in light of the record viewed in its entirety ... even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (construing Fed. R. Civ. P. 52(a)). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574. Moreover, the rule that deference must be paid to the original finder of fact applies even where the district court's findings do not rest on a credibility determination, but are based instead on inferences from other facts. Id.

In the present case, the district court's finding that substantial evidence established Silverman's connection to the conspiracy rested on the inferences drawn from the circumstantial evidence presented by the government. Under Anderson, findings of the district court that rest on inferences drawn from the facts are entitled to the same deference accorded a trial court's credibility determinations. The majority's analysis of the evidence presented to support the admission of the hearsay statements utterly disregards the deference due to the district court. The majority reexamines each piece of evidence offered to corroborate the hearsay statement and, in each case, draws inferences from the evidence necessarily rejected by the district court. This approach cannot be reconciled with Bourjaily.

For example, the majority states that the evidence that Pearl traveled to Silverman's residence immediately after arriving at the airport on one of her cocaine-buying trips demonstrates little more than "mere" association. While the majority's view of this evidence as "innocent" is certainly a permissible one, it is not the only plausible explanation for Pearl's behavior. As previously observed, given the purpose of Pearl's trip to Van Nuys and her previous identification of her brother as her "source" for cocaine, it is not only plausible, but highly probable, that the reason she chose to visit her brother that evening was to obtain cocaine from him. Indeed, under the circumstances, it seems highly unlikely that a person on a cocaine-buying trip to California would interrupt her mission by paying a purely social call to a relative. In any event, the majority's analysis of this piece of evidence demonstrates no more than that there are two permissible views of it. It follows, then, that the district court's choice between them cannot be clearly erroneous. Anderson, 470 U.S. at 574....

In conclusion, the majority's analysis permits this court, on the basis of a cold record, blithely to reject the district court's factual findings and reassess the probative value of the evidence presented to the district court.

In a conspiracy case, what effect does a "not guilty" verdict have on the admissibility of the acquitted co-conspirator's statements under Rule 801(d)(2)(E)? The problem can arise in this situation: At the joint trial of two defendants, A and B, B's statements are admitted against A and B under Rule 801(d)(2)(E). Following Bourjaily, the court considered B's statement itself in determining that a conspiracy existed and that the statement was in furtherance of the conspiracy. But B was acquitted; A was convicted. A argues on appeal that because the conspiracy count would not be available on retrial, the prosecution would not be able to introduce B's statement, and thus that the admission of B's statement at the first trial was erroneous. Does the subsequent acquittal of the alleged co-conspirator retroactively render his statement inadmissible? See United States v. Carroll, 860 F.2d 500 (1st Cir. 1988), page 984, below.

1. 1. Pearl's statements at the airport that she was going to call "her brother" were admissible to prove Pearl's intent. See Fed. R. Evid. 803(3). The fact that such statements were admissible, however, does not make them any more reliable or any more corroborative of Pearl's statement identifying a particular brother--David--as her cocaine source.

2. 1. Responding to my dissent, the majority suggests that Bourjaily's statement that the trial court's "factfinding" in that case "was [not] clearly erroneous" may not be binding on this court because the Supreme Court did not "unequivocally declare which standard is proper." The statement in Bourjaily clearly was not dictum, nor does it appear to be merely a careless mistake. The Court repeatedly stressed that the question whether the defendant was a member of a conspiracy is a question of fact, see 107 S. Ct. at 2778-79; that the district court acts as a "factfinder" when making this determination; and that the judge, when evaluating foundational evidence under Rule 801(d)(2)(E), is entitled to "receive the evidence and give it such weight as his judgment and experience counsel." The Court certainly applied the clearly erroneous standard to the district court's factfinding in Bourjaily; therefore, its conclusion that the district court's factfinding was not clearly erroneous binds us, even though the Court did not precede its statement with the words "We hold, therefore,...." I do not believe we are at liberty, as an appellate court, to impose a "plain statement" requirement on the United States Supreme Court.


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