United States v. David Silverman

David Silverman appeals from his conviction for conspiracy to distribute a controlled substance (cocaine), possession with intent to distribute a controlled substance (cocaine), interstate travel in aid of racketeering, and aiding and abetting, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. §§ 1952 (a)(3) and 2. He seeks reversal on two grounds.

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

Second, he contends that the district court erred in instructing the jury that a defendant’s concealment of his identity from government agents would support an inference of guilt of the charged offenses. He asserts that because the concealment in this case occurred two months after the last act committed in the course of the alleged conspiracy and because the agents did not disclose the charges against him, no inference of guilt is justified.

In our initial decision on this appeal, we affirmed the judgment of conviction. United States v. Silverman, 771 F.2d 1193…

dissenting:

The majority reverses Silverman’s conviction on the ground that the district court improperly admitted two statements of a co-conspirator under the hearsay exception of Rule 801(d)(2)(E) of the Federal Rules of Evidence. The majority’s analysis of the foundation for admitting these two statements develops a rule of law inconsistent with the Supreme Court’s decision in Bourjaily v. United States, 483 U.S. 171 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987) (.Bourjaily ), and with our duty to affirm the factual findings of the district court if they are not clearly erroneous. I therefore dissent. In addition, I must disagree with the majority’s holding that it was improper for either the court or the jury to consider evidence that Silverman attempted to conceal his identity from DEA agents investigating the crime with which Silverman was charged. Considered in light of other evidence introduced to prove Silverman’s involvement in the drug conspiracy, Silverman’s conduct could properly support an inference that he was conscious of his guilt of the criminal activity that ultimately led to his conviction. I would, therefore, affirm Silver-man's conviction.

I

Prior to the…

861 F.2d 571 57 USLW 2375 , 27 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, v. David SILVERMAN, Defendant-Appellant. No. 83-1314. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1984. Resubmitted Feb. 24, 1988. Decided Nov. 16, 1988. Bruce M. Kaufman, Sherman Oaks, Cal., for defendant-appellant. Brian L. Sullivan, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before WALLACE, ALARCON and NELSON, Circuit Judges. ALARCON, Circuit Judge: 1 David Silverman appeals from his conviction for conspiracy to distribute a controlled substance (cocaine), possession with intent to distribute a controlled substance (cocaine), interstate travel in aid of racketeering, and aiding and abetting, in violation of 21 U.S.C. Secs. 846 and 841(a)(1) and 18 U.S.C. Secs. 1952 (a)(3) and 2. He seeks reversal on two grounds. 2 First, he argues that the district court erred in admitting into evidence the extrajudicial statements of an alleged co-conspirator. He claims that apart from the contested statements themselves, insufficient evidence established his connection to the…