UNITED STATES of America, Plaintiff-Appellee, v. G. Timothy MARSHALL, Defendant-Appellant, 863 F.2d 1285

MERRITT, Circuit Judge. In this direct criminal appeal, the primary issue is whether the District Court should have instructed the jury that it could not find the defendant guilty solely on the basis of defendant’s uncorroborated admissions. Cases from the Supreme Court, this circuit and other circuits indicate that a defendant’s admissions, made after commission of an alleged offense, must be corroborated to guarantee reliability and trustworthiness. The District Court declined to give such an instruction. We, therefore, reverse and remand this case for a new trial.

On November 12, 1985, Robert Peluso, an informant for the Federal Bureau of Investigation and a former client of the defendant, visited defendant’s law office and sought to sell him cocaine. While wearing a recording device, Peluso offered to sell Marshall a pound or a half pound of cocaine. As a sample, Peluso gave Marshall two grams of cocaine free and suggested that he try it. Tr. 331. Thereafter, the defendant did not purchase, accept or make any other drug transaction. After accepting the sample, Marshall allegedly made a telephone call and arranged to meet people that evening.

Marshall testified that he faked the telephone call to give Peluso the impression that he and some of his friends were interested in buying drugs. Tr. 337. Although Peluso tried to contact Marshall many times thereafter to interest him in cocaine, the only additional significant contacts are set out below. The following day, November 13, Peluso visited Marshall's office, again wearing a recording device. The following conversation took place: Peluso: So how’d you like that? Marshall: [pointing to his nose] No, everything fine there. Peluso: Okay.

Marshall: But had, had an opportunity that uh this one person they did it through a can. Peluso: I don’t know uh ... Marshall: Yeah it just, the taste was there but the hit wasn’t but it could have been because it was the can cause they didn’t have (unintelligible) Peluso: Oh they didn’t have a pipe? Marshall: No. So that coulda been, that coulda been the problem there. Peluso: I’m tellin’ ya the stuff is, it’s un, it’s unwacked. Marshall: I’ve got three.

I’ve got three people, okay the one guy was gonna meet me last night but I, I had to judge a beauty contest at Chicago’s on Center Ridge Road so uh but it’s, it’s there. As long as, if everything’s decent. App. 147; Tr. 184. On November 22, Peluso told Marshall that he had a good deal. Peluso said that he could sell Marshall a half pound of cocaine and he would not expect payment until a week to ten days. Marshall rejected this offer. There were no meetings after this date between Peluso and Marshall, and they never arranged a drug purchase.

On April 11, 1986, Marshall was indicted on five counts: (1) conspiring to distribute cocaine and to possess cocaine with intent to distribute; (2) distributing cocaine; and (3) three counts of using a telephone to facilitate acts in violation of 21 U.S.C. §§ 846 and 841(a)(1). App. 6. After a jury trial, Marshall was found not guilty of the conspiracy count, and guilty of all other counts. The primary issue in this case centers on count two of the indictment: distribution of two grams of cocaine on November 12.

The government’s only evidence that distribution may have occurred on that day is the defendant’s ambiguous November 13 statements. Marshall contends that the District Court erred when it refused to instruct the jury that it could not find him guilty of count two simply on the basis of the uncorroborated November 13 admissions. Defendant requested an instruction on this point, citing Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), and United States v. Pennell, 737 F.2d 521 (1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). R. 31 at 10.

The District Judge refused to give the instruction. Tr. 468-69. In Opper v. United States, 348 U.S. 84, 90, 75 S.Ct. 158, 163, 99 L.Ed. 101 (1954), the Supreme Court held: “We think that an accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required.” The purpose for corroboration, as explained in Smith v. United States, 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954), is to “prevent ‘errors in convictions based upon untrue confessions alone.’ ” (citing Warszower v.

United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876 (1941)). The Court explained that the corroboration principle is rooted in “a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.” Smith, 348 U.S. at 153, 75 S.Ct. at 197. In Wong Sun v.

United States, the Court stated: It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused. 371 U.S. 471, 488-89, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963). This Circuit has long followed the principle enunciated in Opper and Smith, that a defendant’s extrajudicial, post-offense statements must be corroborated with independent evidence in order to assure reliability and truthfulness. United States v. Trombley, 733 F.2d 35, 37 (1984); United States v.

Pennell, 737 F.2d at 537; United States v. Daniels, 528 F.2d 705, 707-08 (1976); United States v. Davis, 459 F.2d 167, 170-71 (1972); United States v. Crowder, 346 F.2d 1, 5 (1965), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 (1965). Every other circuit has adhered to this principle. See Fallada v. Dugger, 819 F.2d 1564, 1570 (11th Cir.1987); United States v. Ianniello, 808 F.2d 184, 194-95 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3229, 97 L.Ed.2d 736 (1987); United States v.

Taylor, 802 F.2d 1108, 1116-17 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987); Gov. of Virgin Islands v. Hoheb, 111 F.2d 138, 141 (3rd Cir.1985); United States v. Garth, 773 F.2d 1469, 1479 (5th Cir.1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 693 (1986); United States v. Roth, 111 F.2d 1200, 1206 (7th Cir.1985); United States v. Todd, 657 F.2d 212, 217-18 (8th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1288, 71 L.Ed.2d 469 (1982); United States v. Johnson, 589 F.2d 716, 718 (D.C.Cir.1978); United States v.

Henderson, 467 F.2d 904, 906 (10th Cir.1972); United States v. Hall, 396 F.2d 841, 844-45 (4th Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 248, 21 L.Ed.2d 205 (1968); see also United States v. O’Connell, 703 F.2d 645, 647-48 (1st Cir.1983). Courts have held that proof that the criminal act took place — the so-called “corpus delicti” — will satisfy the corroboration requirement. See United States v. Opdahl, 610 F.2d 490, 492-93 (8th Cir.1979), cert. denied, 444 U.S. 1091, 100 S.Ct. 1056, 62 L.Ed.2d 780 (1980); United States v. Leavitt, 608 F.2d 1290, 1292 (9th Cir.1979); United States v.

Johnson, 589 F.2d at 718-19; United States v. Joseph, 333 F.2d 1012, 1013 (6th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). In cases where there is no clear proof of the corpus delicti, courts have required independent evidence corroborating defendant’s statements. Wong Sun, 371 U.S. at 489 n. 15, 83 S.Ct. at 418 n. 15; Smith, 348 U.S. at 154, 75 S.Ct. at 198; United States v. Fearn, 589 F.2d 1316, 1322 (7th Cir.1978). This Circuit’s opinion in Trombley is in point. A defendant was charged with transporting a stolen vehicle in interstate commerce. 733 F.2d at 36.

In a recorded conversation with an undercover FBI agent, defendant admitted traveling from Michigan to Texas in a car she knew was “hot.” Id. We stated: “[T]he government must introduce independent evidence to establish the trustworthiness of a defendant’s statement.” Id. at 37. In Trombley, as in this case, the defendant’s recorded, post-offense statement to an undercover agent discussing an essential element of the crime, required corroboration to establish trustworthiness and reliability. The need for corroboration is apparent in this case for two reasons.

First, the crime of distribution of cocaine may not have occurred. The so-called “corpus delicti” has not been established independently of defendant’s statement. See Smith, 348 U.S. at 154, 75 S.Ct. at 198. Second, Marshall claims that his statements were false and that he did not distribute any of the cocaine Peluso gave him. He claims he was simply trying to get rid of his former client Peluso. Independent corroborating evidence is, therefore, necessary to establish the reliability of the statements.

The record reveals some evidence which may tend to corroborate defendant’s statements that he distributed cocaine, but the jury was never advised that corroboration was necessary. It may have convicted on the basis of the uncorroborated statement alone. The District Court’s refusal to give the requested corroboration instruction was erroneous, and we are unable to say it was harmless.

Since the three facilitation counts are closely connected with the distribution count because the November 12th distribution appears to be the only crime which the telephone communications could have facilitated, we must reverse and remand for a new trial on all counts.