On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Criminal No. 88-00034-01.
Sloviter and Becker, Circuit Judges, and Pollak, District Judge.*fn* Becker, C.j., concurring.
Welton Zolicoffer appeals from his conviction, following a jury trial, of seven offenses relating to trafficking in cocaine. Two counts dealt with possession with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 respectively; four counts charged use of a telephone to facilitate distribution of cocaine in violation of 21 U.S.C. § 843(b); and one count charged violation of the Travel Act, 18 U.S.C. § 1952(a)(3).
Even were we not required to view the evidence most favorably to the government as the verdict winner, see Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), there would be overwhelming evidence of Zolicoffer's involvement in the distribution of cocaine. Zolicoffer, a resident of Florida, was the supplier of large amounts of cocaine to Ned Oyler, a resident of Roxbury, Pennsylvania. Oyler, together with his wife Marilou, maintained a network which distributed over twenty kilograms of cocaine purchased from Zolicoffer beginning in late 1982 or early 1983. In February 1987, David and Sheila Schroll, two distributors for Oyler, approached law enforcement authorities, confessed their involvement in drug trafficking, and described Oyler's activities, including his association with Zolicoffer. David Schroll agreed to work undercover and taped his drug-related conversations with both Oyler and Zolicoffer. A search by federal agents of the Oylers' residence and business uncovered Oyler's drug records, which included references to his dealings with Zolicoffer. The Oylers thereafter agreed to cooperate with the agents.
At that time, Oyler owed Zolicoffer $37,000 for drugs Zolicoffer had previously supplied. Both Oyler and his wife spoke with Zolicoffer in several separate taped telephone conversations about payment of the $37,000 owed to him. During one of these conversations, on February 11, 1988, it was arranged that Zolicoffer would come to Pennsylvania the following day to pick up the money. On February 12 Zolicoffer was arrested upon his arrival at the Harrisburg International Airport, and thereafter charged with the crimes at issue.
Zolicoffer argues first that the trial court erred in admitting evidence of other crimes. At trial, Ned Oyler testified that Zolicoffer told him that he had participated in another cocaine deal and had received fifty kilograms as a commission. In addition, David Schroll testified about meeting with Zolicoffer to discuss obtaining marijuana and dilaudid. Schroll testified that Zolicoffer told him that marijuana was available, that dilaudid was difficult to obtain and very expensive, and that he was willing to supply Schroll with cocaine. The district court rejected defendant's objections to this testimony, finding that the evidence was admissible as "background." App. at 139. Schroll also testified about a transaction for heroin in which he participated with Zolicoffer. The objection to the latter on the ground that this was inadmissible under Fed. R. Evid. 404(b) was sustained, but it does not appear that the jury was instructed to disregard the testimony. Zolicoffer now argues that the introduction of all of the above evidence was evidence of other crimes which should not have been admitted.
While there is no general "background" exception to Rule 404(b), we conclude that the district court did not abuse its discretion in admitting this evidence. The evidence permitted the jury to infer that Zolicoffer had access to drugs, especially cocaine, and that he was willing and hoping to engage in large scale drug transactions. In light of Zolicoffer's defense that he was engaged in a seafood distribution business rather than a drug distribution business, we find this evidence more probative than prejudicial. See United States v. Echeverri, 854 F.2d 638, 644 (3d Cir. 1988); United States v. O'Leary, 739 F.2d 135, 136-137 (3d Cir. 1984), cert. denied, 469 U.S. 1107, 83 L. Ed. 2d 776, 105 S. Ct. 782 (1985); United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982), cert. denied, 462 U.S. 1134, 103 S. Ct. 3117, 77 L. Ed. 2d 1370 (1983).
Zolicoffer also argues that there was insufficient evidence to establish that the telephone calls which were the basis of the four convictions under 21 U.S.C. § 843(b) facilitated the knowing and intentional distribution of cocaine because they related to the attempt to collect the money owed to him by Oyler. This court has held that 21 U.S.C. § 843(b) can be violated by telephone calls facilitating a conspiracy. See United States v. Pierorazio, 578 F.2d 48 (3d Cir.), cert. denied, 439 U.S. 981, 99 S. Ct. 568, 58 L. Ed. 2d 652 (1978). Telephone conversations relating to a drug debt can be viewed as facilitating the conspiracy to distribute. See United States v. Theodoropoulos, 866 F.2d 587, slip op. at 19 (3d Cir. 1989). We also reject Zolicoffer's contention that the instructions on a violation of 21 U.S.C. § 843(b) were insufficient. There was no objection and the charge was not plain error.*fn1