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United States v. Boucher

decided: July 21, 1986.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES BOUCHER, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 84-CR-10010-Harold A. Baker, Judge.

Author: Ripple

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH , Senior Circuit Judge.

RIPPLE, Circuit Judge. Appellant James Boucher appeals his conviction for conspiracy to distribute cocaine pursuant to 21 U.S.C. § 846. We affirm the judgment of the district court.

I

In 1982, James Boucher was charged in a two-count indictment. Count one alleged conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Count two alleged that Mr. Boucher participated in the interstate transportation of controlled substances in violation of 18 U.S.C. § 1952(a)(3). The case was tried to a jury beginning on June 12, 1985. The evidence offered at trial showed the following: In 1980, Mr. Boucher was operating a legitimate log home business. In the spring of that year, he contracted to build a log home for Ed Freez. Mr. Boucher was assisted in this construction by several individuals including Steve Purcell, Scott Soebbing and James Hughbanks. In spring 1981, Mr. Boucher and Mr. Freeze entered into an agreement whereby Mr. Freeze would raise $30,000, which Mr. Boucher would use to purchase cocaine. In late summer 1981, Mr. Freeze persuaded Carl Kleen to invest $30,000 and John DeRoo to invest $2,000 in the scheme. all but $1,000 was turned over to Mr. Boucher, who informed Mr. Freeze that he would be leaving shortly for Florida to purchase the cocaine. Meanwhile, Mr. Boucher had established a similar relationship with James Hughbanks. Mr. Hughbanks obtained $7,000 from Scott Wittmer and Julie Stolz, which was turned over to Mr. Boucher on August 25, 1981. Mr. Boucher informed Mr. Hughbanks that he was leaving immediately for Florida to complete the purchase.

Several days later, Mr. Hughbanks saw and sampled the cocaine which Mr. Boucher purportedly purchased in Florida. Mr. Boucher informed Mr. Hughbanks that he had obtained approximately one pound of cocaine. The details of the purchasing excursion to Florida were corroborated by other witnesses-Scott Soebbing and Steve Bailey-who participated in the operation. Another witness, Steve Purcell, testified that he stored cocaine at his home for Mr. Boucher.

There was additional testimony that, in November 1981, Mr. Freeze again obtained investors. Mr. Freeze obtained $10,000 from William Blocker and $3,000 from Pat Reagan. From this fund, $10,000 was turned over to Mr. Boucher. Mr. Hughbanks also invested an additional $1,500 with Mr. Boucher in December 1981.

Based on this evidence, the jury found Mr. Boucher guilty on count one-conspiracy to distribute cocaine-and not guilty on count two-interstate travel in aid of unlawful activity. On June 19, 1985, Mr. Boucher filed a motion for a new trial on count one; the motion was denied. This appeal followed.

II

Mr. Boucher challenges his conviction on four independent grounds: (1) that the admission of certain hearsay evidence violated his due process rights; (2) that there was a variance between the conspiracy alleged and the proof at trial; (3) that the trial court erred in refusing to give a specific instruction offered by the defense; and (4) that the trial court erred in not granting the defense motion for acquittal or for new trial. We shall consider these issues separately.

A

The evidence offered against Mr. Boucher was largely testimonial in nature. The testimony was given by other members of the conspiracy who had been granted full immunity from prosecution in exchange for their testimony. Mr. Boucher contends that the admission of the hearsay statements of his coconspirators violated his due process rights. We disagree.

Fed. R. Evid. 801(d)(2)(E) provides that a statement is not excludable as hearsay if it is made by a coconspiratory during the course and in furtherance of the conspiracy. This court has held that, in order to meet the requirements of the rule, the government must prove, by a preponderance of independent evidence, which is not hearsay, that the conspiracy existed, that the defendant and the declarant were members of that conspiracy and that the offered statement was made during the course of and in furtherance of the conspiracy. United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir. 1978); see United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985), cert. denied, 474 U.S. 1076, 106 S. Ct. 838, 88 L. Ed. 2d 809 (1986); United States v. Gironda, 758 F.2d 1201, 1217 (7th Cir.), cert. denied, 474 U.S. 1005, 106 S. Ct. 523, 88 L. Ed. 2d 456 (1985).

In United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985), the court discussed, in some detail, the methodologies which a district judge "has the option of requiring the government to present a proffer of proof on the declarations and conspiracy that it will offer at trial. The court can then decide whether, if the government ...


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