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United States v. Molt

September 10, 1985

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EMERSON MOLT, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 83 CR 36--Michael S. Kanne, Judge.

Author: Easterbrook

Before CUDAHY and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

EASTERBROOK, Circuit Judge

An indictment charged Emerson "Bud" Molt and 40 others with conspiring to import and to possess with intent to distribute marijuana and cocaine. Ronald Markowski, the kingpin of the operation (see United States v. Markowski, No. 84-1874, also decided today), was tried separately. Others pleaded or were found guilty, fled, or were never captured. Molt was tried alone and convicted. One defendant remains to be tried.

The case against Molt consists principally of the testimony of five of the conspirators, four of whom placed Molt at meetings discussing drug smuggling operations or at the scene of specific importations. The evidence, properly taken in the light most favorable to the government, portrayed Molt as pilot, radio operator, off-loader, and factotum of a drug ring. Ronald Markowski, Frank Brady, and perhaps another were ringleaders. Brady owned land in Florida, which the smugglers used as a meeting place, and on Cat Island, Bahamas, which they used as a stopover on trips from Colombia. Molt was Brady's right-hand man and one of the pilots.

The normal course of operations was for Markowski or one of his partners or employees to fly marijuana or cocaine from Colombia to an airstrip in the Bahamas. The smugglers would either store the drugs there for later trips or take them by air immediately to Florida or Georgia. Other participants would transport the drugs to Northern Indiana for distribution there and in Chicago.

Molt's role was as coordinator on the ground in the Bahamas, where he made sure planes could land safely, refueled them, unloaded drugs, and reprovisioned other smugglers. He also took to the air as a "cover" pilot, looking out for surveillance and potential interference on the ground. Once he helped rescue a stranded smuggler. Some of the evidence shows Molt discussing the dates and times of smuggling operations. We need not recount the evidence more fully.

The court sentenced Molt to a total of eight years' imprisonment. He challenges the admission of co-conspirators' out-of-court statements, the finding that there was a single conspiracy, the conclusion that there was venue in Indiana, and the disposition of claims under the Jencks Act, 18 U.S.C. § 3500.

I

The five smugglers who testified against Molt recounted many conversations among other conspirators. Molt maintains that the admission of these statements violated the Confrontation Clause of the Sixth Amendment. A motions panel of the court found this argument unlikely to prevail and so denied Molt's application for bail pending appeal. United States v. Molt, 758 F.2d 1198 (7th Cir. 1985).

This court has held on many occasions that the only test for admissibility of a conspirator's out-of-court statement is whether the statement complies with Fed. R. Evid. 801(d)(2)(E). E.g., United States v. Williams, 737 F.2d 594, 610 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985); United States v. Xheka, 704 F.2d 974, 987 n.7 (7th Cir.), cert. denied, 464 U.S. 993, 104 S. Ct. 486, 78 L. Ed. 2d 682 (1983); Davis v. Franzen, 671 F.2d 1056, 1058 (7th Cir. 1982). the statements admitted here complied with Rule 801(d)(2)(E). They were made during the conspiracy and in furtherance of its objectives. Molt urges us to reconsider our position in light of United States v. Inadi, 748 F.2d 812 (3d Cir. 1984), cert. granted, 471 U.S. 1124, 105 S. Ct. 2653, 86 L. Ed. 2d 271 (1985), which holds that the Sixth Amendment requires the government to show that the conspirator-declarants are unavailable before it may introduce their declarations through others. See also United States v. Caputo, 758 F.2d 944 (3d Cir. 1985).

Because the Court has granted review in Inadi, it is unnecessary for us to treat the matter fully. The Supreme Court will do that, and if Molt files a petition for certiorari he will get the benefit of any favorable decision. We do not think that a favorable decision in that forum is likely, however, and we therefore do not think that Molt should receive relief pending the Court's ruling.

The co-conspirator rule is an old one. See 4 J. Wigmore, Evidence in Trials at Common Law § 1079 (J. Chadbourn ed. 1972). The Court has allowed the use of hearsay, despite objections based on the Confrontation Clause, when it bore sufficient indicia of reliability. E.g., Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980); Mancusi v. Stubbs, 408 U.S. 204, 213, 33 L. Ed. 2d 293, 92 S. Ct. 2308 (1972). The declarations of conspirators are usually reliable in the pertinent sense. They are contemporaneous statements in an ongoing business relation. The person who reports these statements may be unreliable, but he is in court and may be cross-examined. If the witness recounts the statements accurately, there is no particular reason to doubt that the business arrangements among the conspirators are other than as the statements depict them.

The declarations are reliable in the same sense that contracts or negotiations among legitimate business partners usually portray accurately the affairs of those involved. They are acts as much as they are reports. They have value independent of the truth of the matter stated. These statements are not pale substitutes for live testimony about what the conspirators did; their value usually lies in the very fact that people said certain things ...


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