____________

No. 94-3463

____________ United States of America, * * Appellee, * * v. * * Jane Ellen Byrne, also known * as Peaches, Jane Sanchez, * Jane Mills, Jane Lehner, and * Rose Byrne, * * Appellant. *

____________ Appeals from the United States No. 94-3744 District Court for the

____________ Eastern District of Missouri
United States of America, * * Appellee, * * v. * * Anthony Luciano Santonelli, * * Appellant. *

____________ Submitted: September 12, 1995 Filed: May 14, 1996

____________ Before RICHARD S. ARNOLD, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

### The Honorable Jean C. Hamilton, Chief Judge, United State s 1 

### District Court for the Eastern District of Missouri. Jane E llen Byrne and Anthony Luciano Santonelli appeal from fina l judgments entered in the United States District Court for the Easter n 1 Dis trict of Missouri, upon jury verdicts finding them guilty of variou s drug trafficking and related offenses. For reversal, Byrne argues th e dist rict court erred in (1) finding her statement was voluntary, (2 ) admitting audiotapes and transcripts of certain in-person and telephon e conversations, (3) refusing to compel disclosure of the tape-recording and written report about an undercover meeting, (4) admitting testimony that
no one had submitted an administrative claim for certain cash seized at th e time of her arrest, a nd (5) calculating her criminal history category and the drug quantity for purposes of sentencing. For reversal, Santonell i argues the district court erred in (1) refusing to compel disclosure o f certai n grand jury transcripts, (2) denying his request to subpoen a witnesses to testify on his behalf at sentencing, and (3) calculating the drug quantity for purposes of sentencing. For the reasons discussed below , we affirm Byrne’s conviction and sentence as to counts 1, 6 and 9 an d remand her case to the district court as to count 8 for further proceeding s in l ight of Bailey v. United States , 116 S. Ct. 501 (1995). We affir m Santonelli’s convicti on on all counts, but vacate his sentence and remand his case to the district court for resentencing.

BACKGROUND FACTS

In Sep tember 1993 a confidential informant told local police tha t Santone lli was selling heroin. An undercover officer was assigned t o investigate. The und ercover officer met Santonelli and made arrangements to buy heroin from him. The undercover officer recorded their telephone calls and conversations.

### -3- On September 30, 1993, the undercover officer met Santonelli at a loc al restaurant parking lot. Santonelli sold the undercover officer 8 cap sules of heroin and 2 capsules of cocaine. Santonelli gave th e undercover officer his home telephone number and the beeper number of a “girl” named “Peaches” who Santonelli said worked for him.

On Oct ober 5, 1993, the undercover officer tried to contac t Sant onelli but was unable to reach him by telephone. The undercove r officer called the beeper number. The beeper was answered by “Peaches.” At that t ime the undercover officer did not know who “Peaches” was

. According to the government’s theory of the case, Byrne was “Peaches.” Th e undercover officer as ked Byrne to contact Santonelli. Byrne agreed to do so. Santonelli later contacted the undercover officer and set up another drug transaction at another restaurant parking lot. The undercover office r waited at the parking lot, but Santonelli did not appear. The undercover officer called Santonelli and arranged to meet him at an apartment complex

. The undercover officer met Santonelli as arranged and bought 10 capsules of heroin from him.
The next day, October 6, 1993, the undercover o fficer and Santonelli arranged another drug transaction at the apartment complex. The undercove r officer bought 10 more capsules of heroin from him.

OnOctober 19, 1993, the undercover officer called Santonelli at hom e but was unable to reach him. The undercover officer called the beepe r numb er. Byrne answered the beeper and agreed to meet the undercove r officer at a third restaurant parking lot. Byrne apparently contacte d Sa ntonelli because Santonelli called the undercover officer and the y arranged to meet at a supermarket parking lot, where the undercover office r bought 10 more capsules of heroin from him.

### Miranda v. Arizona , 384 U.S. 436 (1966). 2


### -4- On February 1, 1994, Drug Enforcement Administration (DEA) special agent Richard Bauer discussed the investigation with the local police and,
on t he basis of the information he received about the investigation , obtained a search warrant for Byrne’s apartment. The search warrant was executed the next day (February 2). The undercover officer was present. The agents knocked on the door and announced their presence and purpose bu t heard no answer. They forcibly entered the apartment and found Byrne in the living room surrounded by illegal drugs and drug paraphernalia in plai n view, including heroin, cocaine, crack, a digital scale, and a hand-held scale. The agents also found drug packaging materials, a triple-bea m balance scale, and a cutting agent (lactose). In addition, the agents als o found three firearms within Byrne’s reach, certain documents i n Santonelli’s name and papers that the agents described as “drug notes.”
The undercover officer (who was a woman) took B yrne into the kitchen and searched her person but found no drugs or ot her evidence. Byrne asked the undercover officer if she could get something to drink out of th e refrigerator. The undercover officer agreed. Byrne then drank a smal l amount of a yellowish liquid. The undercover officer became alarmed that Byrne might have swallowed “evidence” or somethi ng poisonous and, with the assistance of the oth er agents, tackled Byrne to the floor and handcuffed her

. Byrne told the agents that the liquid was methadone and refuse d medical treatment. Byrne was advised of her Miranda rights. 2

About a h our later the agents took Byrne to the local DEA office

. She was a gain advised of her Miranda rights. According to Bauer, Byrn e understood her rights, appeared to be unaffected by the methadone, an d agreed to cooperate with the investigation. Byrne again refused medical attention. She then made a statement

### The Honorable Lawrence O. Davis, United States Magistrat e 3 

### Judge for the Eastern District of Missouri.
-5- in which she identifi ed Santonelli as one of her heroin sources (his name
wa s redacted from the statement at trial) and described her dru g distribution activities in detail, including estimates of the amounts of heroin and cocaine she distributed weekly. Byrne was then released.

Santon elli was arrested later that same night (February 2) o n unrelated charges and was incarcerated pending trial.

OnFebruary 24, 1994, Byrne and Santonelli were indicted by a federa l grand j ury and charged with conspiracy to distribute and possess wit h intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. Santonelli was charge d with distribution of heroin or cocaine or both, in violation of 21 U.S.C. § 841(a) (counts 2-5, 7). Byrne was charged with using a communication facility to facilitate distribution of heroin, i n violation of 21 U.S.C . § 843(b) (count 6), possession and use of firearms in connection with drug trafficking, in violation of 18 U.S.C. § 924(c ) (count 8), and unlawful firearms possession, in violation of 18 U.S.C. § 922(g) (count 9).

On M arch 3, 1994, Byrne was arrested at another address, agai n surrounded by drug paraphernalia, including drug notes, scales and about $1300 in cash in her purse.

Pretrial suppression motions, including Byrne’s motion to suppress her s tatement made to the DEA, were denied. The magistrate judge foun d 3 that the statement was voluntary. At trial, Santonelli testified in his own defense; Byrne di d not. Santonelli conceded his participation in the drug transactions, but he denied any involvement in any conspiracy. Bauer testified that the cash found in Byrne’s purse at the time of her arrest
on

### -6-

March 3 represented drug proceeds and described the administrativ e forfeiture process. As part of his testimony about the forfeiture process , Bauer testified that no one had submitted a claim for the cash. A jur y found Byrne and Santonelli guilty on all counts.

Santonelli became dissatisfied with his appointed defense attorney and represented himse lf at sentencing. (The district court appointed the for mer defense attorney as Santonelli’s legal advisor.) On October 21 , 1994 , the district court considered and denied the defense motion t o subp oena certain witnesses to testify at the sentencing hearing. O n Octobe r 28, 1994, the district court considered and denied Santonelli’ s object ions to the presentence report, including his objections to th e calculation of the drug quantities attributable to him.

The d istrict court sentenced Byrne to a total of 197 month s impr isonment (137 months for conspiracy plus 60 months, to be serve d consecutively, for th e possession and use of a firearm in connection with drug traff icking), 4 years supervised release, a fine of $1800, and a special assessment of $200. The district court sentenced Santonelli to a total of 175 months imprisonment, 4 years supervised release, a fine o f $1500, and a special assessment of $300. These appeals followed.

VOLUNTARINESS OF STATEMENT
Byrne first argues the district court erred in denying her motion to suppress her statement made during custodial interrogation by DEA agents and others. Byrne argues that her statement was not voluntary because she
was under the influence of a narcotic (methadone) at the time. She also argues the circumstances were inherently coercive because the interrogatio n
roomwas very small and because the agents physically intimidated her , denied her needed medical treatment, and threatened to arrest her if she did not cooperate. Byrne argues that the fact that the

### -7-

interrogation was not tape-recorded or video-taped is suspicious and that her appearance and behavior would have clearly supported her claim that sh e was under the influence of methadone at the time.
Although we review the district court’s factual findings for clear error, we review de novo the ultimate determinat ion that Byrne voluntarily made the statement. E.g., United States v. Makes Room , 49 F.3d 410, 414 (8th Cir. 1995) (noting same standard applied to assess validity of Mirand a waiver and voluntariness of statement under fifth amendment). We consider , as did the district court, the totality of the circumstances in order to det ermine whether the accused’s will was overborne. Id. We hold th e district c ourt did not err in finding that Byrne voluntarily made th e statement. Assuming for purposes of analysis that the unknown liquid was in fact me thadone, the DEA agent testified that the methadone did no t appear to have affected Byrne and that she refused an offer of medica l attention. According to the DEA agent, Byrne was coherent, composed and coop erative, although somewhat subdued, during the interrogation. Sh e state d that she understood her Miranda rights and agreed to answer th e investigators’ questi ons; she was not promised anything or threatened and was released from custody shortly after she made the statement.

AUDIOTAPES AND TRANSCRIPTS

Byrne next argues the district court abused its discretion i n admit ting the audiotapes and transcripts of in-person and telephon e conversations betweenthe undercover officer and Santonelli because there
was in adequate foundation establishing their authenticity. Four of th e audi otapes were recordings of drug transactions between the undercove r officer and Santonelli (on September 30 and October 5, 6 and 19); the fift h tape contained 10 telephone conversations between the undercover officer and either Byrne or S antonelli. There are some gaps on the audiotapes and in the transcripts.

### -8-

Byrne argues the audiotapes could have been altered or modified and thus did not accurately reflect the conversations.

We review questions involving the admissibility of evidence , including tape-recordings, for abuse of discretion. E.g., United States v. Roach , 28 F.3d 729 , 732-34 (8th Cir. 1994) (videotapes), citing United States v. McMillan , 508 F.2d 101 (8th Cir. 1974) (discussing guidelines fo r admit ting audiotapes), cert. denied , 421 U.S. 916 (1975). We hold th e district court did not abuse its discretion in admitting the audiotapes an d transc ripts. The existence of the audiotapes establishes that th e recording equipment was functioning properly and that the individual who made the audiotapes was sufficiently skilled in the operation of th e recording equipment. United States v. Roach , 28 F.3d at 733. Th e underc over officer who participated in the drug transactions and th e telephone calls identified the speakers on the audiotapes, described how the audiotapes had been made, handled and stored, and how the audiotapes had been reviewed aga inst the transcripts, and stated that the audiotapes had not been modified , edited or altered. The audiotapes themselves, the und ercover officer’s testimony and the absence of any evidence that th e audiotapes had been mishandled or otherwise tampered with established an adequa te foundation for the admission of the audiotapes and th e transcripts. The gap s in the audiotapes and the transcripts affected the weight of the evidence, not its admissibility.

FAILURE TO COMPEL DISCLOSURE OF CONVERSATION AND WRITTEN REPORT

The indictment alleged that the conspiracy began sometime i n September 1993 but all the acts of distribution or other violation s occurred on or after September 30, 1993. However, the undercover officer met Santonelli once before September 30, 1993, in the company of another underc over agent and a confidential informant. The meeting wa s tape-recorded, and the undercover officer also prepared a written report about the meeting. The audiotape and the

### -9-

written report were not disclosed during discovery pursuant to Fed. R

. Crim. P. 16 or as Jencks Act material following the undercover officer’s testimony pursuant to 18 U.S.C. § 3500. Byrne argues the district court should have compelled disclosure of the audiotape and the written report (and at the very leas t should have examined the audiotape and the written report in camera before so ruling). This issue involves what are essentially discovery matters which we review for abuse of discretion. E.g., United States v. Dijan , 37 F.3d 398 , 402 (8th Cir. 1994) (Jencks Act material), cert. denied , 115 S. Ct. 1418 (1995); U nited States v. Roach , 28 F.3d at 734 (Fed. R. Crim. P. 16)

. Under the Jencks Act a criminal defendant is ent itled to obtain, after the direct testimony of a government witness, prior statements of the witness which relate to the s ubject matter as to which the witness has testified. We hold the district court correctly refused to compel disclosure of the audiotape and the written report as Jencks Act material because th e pre-September 30 meeting was not the subject of the undercover officer’s direct examination testimony and was only collateral or backgroun d information. E.g., United States v. Pacelli , 491 F.2d 1108, 1120 (2d Cir. ) (statements which are strictly collateral to subject of testimony or only peripherally related are not producible under Jencks), cert. denied , 419 U.S. 826 (1974). We also hold the district court correctly refused t o compel disclosure of the audiotape and the written report under Fed. R

. Crim. P. 16. The audiotape and the written report were not written o r
reco rded statements made by Byrne or a written record containing th e substance of any relevant oral statement made by Santonelli in response to interrogation by any person then known to him as a government agent, Fed. R. Crim. P. 16(a)(1)(A), and were not intended for use by the government
as evidenc e in chief at the trial, Fed. R. Crim. P. 16(a)(1)(C). I n addition, disclosure would have revealed the identity of the confidential informant

. See United States v. Roach , 28 F.3d at 734 (non-witnes s confidential informant).

### -10-

COMMENT ON BYRNE’S RIGHT TO REMAIN SILENT

Byrne n ext argues the district court erred in admitting the DE A agen t’s testimony referring to the fact that no one had submitted a n adminis trative claim for the cash found in her purse at the time of he r arrest because it was an improper comment on her post-arrest silence. The cash had been seized as drug proceeds and was subject to administrativ e forfeiture. The DEA agent’s testimony about the administrative forfeiture pr ocess came out on re-direct, following cross-examination question s inferring that the purse in which the cash was found could have belonged to one of the other occupants of the apartment. The DEA agent explained that persons can submit claims for the return of seized property even afte r the sp ecified deadlines for doing so, but that a claim can be denie d because the seized property is drug proceeds. On re-direct examination, the DEA agent testified that certain documents f ound in the purse in which the cash was found connected the purse to Byrne.

We hold the district court did not abuse its di scretion in admitting this testimony. We do not think the DEA agent’s reference to the fact tha t no one had submitted an administrative claim for the cash found in Byrne’s purse constituted an indirect comment calculated to call attention t o Byrne’s post-arrest silence or that the jury wou ld have naturally regarded it as a comment on her post-arrest silence. Cf. United States v

. Montgomery , 819 F.2d 847, 853 (8th Cir. 1987) (whether prosecutor’s closin g argument constituted improper comments on defend ant’s failure to testify). The reference was ind irect and had been elicited on re-direct in order to clarify why the DEA a gent believed the cash represented drug proceeds and why the purse belonged to Byrne and not to one of the other occupants of the apartment. The reference also rebutted the inference that Byrne did not file a claim for the cash only because she did not receive timel y notice of the forfeiture proceedings.

### -11-

SENTENCING-- BYRNE

The di strict court excluded a prior conviction and sentence an d calculated Byrne’s cr iminal history category at level IV. The applicable guidel ine sentencing range was 110-137 months. The district cour t senten ced Byrne to 137 months imprisonment “because of [Byrne’s] pas t involvement in criminal activity.” Because the 137-month sentence falls wi thin the applicable guideline sentencing range at criminal histor y catego ry level V (130-162 months), Byrne argues the 137-month sentenc e indicates that the di strict court in fact improperly considered the prior conviction and effectively sentenced her at criminal history category leve l V. We disagree. Byrne’s analysis of the district court’s reasons fo r imposing sentence is wholly speculative and is not supported by the record

.
Byrne also argues the district court improperly adopted the estimate s of drug quantity contained in the presentence re port. The drug quantities were calculated on th e basis of Byrne’s statement that she distributed 10 grams of heroin and 21 grams of cocaine per week during the conspirac y (September 1993 through February 24, 1994). She argues the district court should have excluded any drugs attributable to transactions during th e month of September 1993 because there was no evidence of any dru g trafficking before September 30, 1993. We hold the district court did not
err in including the month of September 1993 in calculating the quantity of drugs

. E.g., United States v. Roach , 28 F.3d at 735 (drug quantit y findi ngs reviewed for clear error). The evidence showed that th e conspiracy was in existence in September 1993.
Finally, we note that in count 8 Byrne was convicted of the use of three firearms during and in relation to a drug trafficking offense i n violation of 18 U.S.C. § 924(c). These firearms were found about 2 feet from Byrn e, on the floor near the sofa on which she had been sitting , during the February 1994 search of her

### Brady v. Maryland , 373 U.S. 83 (1963). 4


### -12- apartment. This appeal was argued in September 1995; subsequently, i n December 1995, the Supreme Court in Bailey v. United States , 116 S. Ct

. 501, 506 (1995), clarified that the meaning of t he term "use" in 18 U.S.C. § 924(c) requires "ac tive employment." The district court has not had an oppo rtunity to consider the Bailey v. United States issue. For tha t reason, although we a ffirm Byrne's conviction as to counts 1, 6 and 9, we remand her case as to count 8 to the district court for further proceeding s in light of Bailey v. United States

.

GRAND JURY MATERIALS

Santonelli argues that he was denied due process because th e distri ct court denied his request to disclose certain grand jur y transcripts. Santone lli argues that the grand jury transcripts contained potentially exculpato ry material. The government’s attorney reviewed the substance of the gran d jury testimony in question with the district court out of the hearing of the jury; this portion of the trial transcript was then sealed. The dis trict court denied disclosure on the ground that the grand jury transcripts at issue were not exculpatory and thus not Brady 4 mater ial. This court has reviewed the sealed trial transcript, and w e agree with the district court that the grand jur y transcripts at issue are not exculpatory and thus not subject to disclosure under Brady v. Maryland , 373 U .S. 83 (1963). See Layton v. South Dakota , 918 F.2d 739, 742 (8t h Cir. 1990) (court of appeals reviewed in camera witness statements an d agreed with district court that they contained no Brady material), cert. denied , 499 U.S. 953 (1991).

REQUEST TO SUBPOENA WITNESSES FOR SENTENCING
Santonelli argues the district court erred in d enying his request to subpoena Byrne, the undercover officer and the DEA agent

### -13-

to testify at the sen tencing hearing. Santonelli wanted to question them about the different d rug quantities referred to in trial testimony and in their statements in the presentence report. For example, he argues that Byrne’ s statement about the drug quantities involved in the conspirac y increased the base offense level from 12 (less than 5 grams of heroin ; maximum 37 months imprisonment) to base offense level 28 (maximum 17 5 months imprisonment), a five-fold increase. He acknowledges that i n general the right of confrontation does not appl y to sentencing but argues that his case falls w ithin the narrow due process exception recognized in United States v. Wise , 976 F.2d 393, 401 (8th Cir. 1992) (banc) (relevant conduct greatly enhanced sentence), cert. denied , 507 U.S. 989 (1993).

We hold the district court did not abuse its discretion in denying the request to subpoena witnesses to testify at the sentencing hearing

. First, this is not the kind of case contemplated by United States v. Wise

. Santonelli and Byrne were convicted of a drug-trafficking conspiracy, and Byrne’s statement about the drug quantities invo lved in the conspiracy did not so greatly increase the sentence that would have otherwise been impose d so as to trigger due process concerns. The unde rcover officer and the DEA agen t testified at trial about Byrne’s statement and were subject t o thoroug h cross-examination. In addition, Byrne had indicated throug h defense counsel that, if subpoenaed, she would have invoked her fift h amendment privilege and refused to testify.

SENTENCING-- SANTONELLI

Santon elli argues the district court improperly adopted th e presentence report’s calculation of the drug quantities attributable t o him. We r eview the district court’s drug quantity findings under th e clearly erroneous standard of review. E.g., United States v. Roach , 2 8 F.3d at 735. Because we agree with one

### This representation was based on mistaken information fro m 5 

### the probation officer. Brief for Appellee at 43-44 n.15.
-14- of Santonelli’s arguments, we vacate his sentence and remand the case to the district court for resentencing.
Santonelli argues the district court erred in a ttributing to him the drugs s eized in Byrne’s apartment at the time of her arrest on March 3 , 1994, because he had been in custody since his a rrest on February 2, 1994. The government’s atto rney stated that it was his understanding that those drugs had not been included in the presentence report’s calculations but that, even if those drugs were excluded from the calculations, Santonelli’ s offen se level would not change. This information was not correct. Th e 5 presentence report calculation of drug quantity did include these drugs an d their inclusion did c hange the offense level. Including the drugs seized from Byr ne’s apartment at the time of her arrest on March 3, 1994, 2. 7 grams of heroin and 2.5 grams of cocaine, increased the total drug quantit y attributable to Santonelli to slightly more than 400 kilograms of marijuan a equivalents and thus increased the offense level from 26 to 28. Because the sen tence may have been affected by this incorrect information, w e vacate Santonelli’s sentence and remand the case to the district court for resentencing.

We do not agree with Santonelli’s other arguments and address them briefly. Like Byrne, Santonelli also argues the district court should hav e exclud ed any drugs attributable to transactions during the month o f September 1993 because there was no evidence of any drug trafficking befor e September 30, 1993. We hold the district court did not err in including the month of September 1993 in calculating the quantity of drugs. Th e evidence showed that the conspiracy was in existence in September 1993.

### -15- Sant onelli also argues the 1.6 grams of crack cocaine found i n Byrne’s apartment at the time of her arrest should not have been attribute d to him. He argues there was no evidence that the crack cocaine was part of th e conspiracy and that it was more likely Byrne’s personal supply

. Including the crack c ocaine increased the total drug quantity to slightly
more than the 400-kilogram minimum of marijuana equivalents required for offense l evel 28. U.S.S.G. § 2D1.1(c)(6). We cannot say including th e crack cocaine in the calculation of drug quantity was clearly erroneous. It was reasonably foreseeable that crack cocaine , a form of cocaine, would be distributed by the members of a conspiracy that distributed heroin and cocaine.
Santonelli also argu es that the presentence report “double-counted” in calculating the drug quantity because the probation officer added the 5.4 grams of cocaine and the 7.78 grams of heroin seized from Byrne’ s apartments to the estimate of 10 grams of heroin and 21 grams of cocaine per week for the 25-week duration of the conspiracy. He argues that the drugs actually seized should have been subtracted from, not added to, the estimate d quantity. Assuming for purposes of analysis that it wa s “doubl e-counting” to add the drugs actually seized to the estimate d quantity of drugs based on Byrne’s statement, we hold that the error was harmle ss. The presentence report calculated the total drug quantit y involved i n the conspiracy on the basis of smaller amounts than Byrn e reported in her statement (10 grams of heroin per week rather than 10. 5 grams, a d ifference of 12.5 grams over the 25-week conspiracy). Tha t di fference alone would substantially offset the double-counting. I n addition, the present ence report did not include the drugs represented by the money seized in the calculation of the total drug quantity or an y enhancements for tran sactions near a protected location or obstruction of justice in the calcul ation of the offense level. Including these factors would have more than offset the double-counting.

### -16- Santon elli also argues that the district court should not hav e attri buted distribution of 21 grams of cocaine per week to him becaus e there was no evidence that Byrne’s cocaine distribution was reasonabl y foreseeable to him. He argues that he actually sold less than 1 gram of cocaine to the undercover officer and that Byrne had identified him only
as one of her two sources of heroin, not cocaine. We cannot sa y attrib uting to Santonelli the cocaine distributed by Byrne was clearl y
erroneous. Byrne’s distribution of cocaine was conduct reasonabl y foreseeable as part of the conspiracy.
Accordingly, we affi rm Byrne’s conviction and sentence as to counts 1, 6 and 9. As to count 8, we remand her case to the district court for further p roceedings in light of Bailey v. United States . We affir m Santonelli’s convicti on on all counts, vacate his sentence and remand his case to the district court for resentencing.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.