United States v. Harbin
United States v. Harbin
Opinion of the Court
Appellants David Harbin, Lonnie Mims, Nolan O’Quinn, William Stanely, Johnny Thompson, Descel Eldridge, Chuck Pruitt, and Roger Cleckler appeal from their convictions of conspiracy to possess marijuana and/or cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Appellants, and other alleged coconspirators
Appellants attack the validity of their convictions by asserting that the wiretape was illegal; that the prosecutor impermissi-bly commented on their failure to testify; that the trial court erred in denying their motions for a bill of particulars, for a continuance, and for the exclusion of evidence promised but — in noncompliance with the court’s order — not furnished to defendants before the trial began; that certain prejudicial telephone calls and one defendant’s post-arrest admissions were improperly admitted; and that there was insufficient evidence to convict some of the defendants of conspiracy. • With the exception of O’Quinn’s convictions for conspiracy to possess with intent to distribute both marijuana and cocaine and Cleekler's conviction on the cocaine count,, for which we find insufficient evidence, we find no reversible error in the proceedings below and affirm.
Appellants’ attack on the legality of the wiretap runs headon into our ruling sustaining it in the earlier prosecution, United States v. Hyde, 574 F.2d 856 (5th Cir. 1978), and no new allegations are presented in the instant appeal. Therefore, stare decisis leads us to reject these complaints.
Appellants’ attack on statements made by government counsel as comments on their failure to testify in violation of their fifth amendment rights, see Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), requires more discussion. The United States entered extensive wiretapped conversations as evidence at trial, which necessitated calling witnesses to identify the various voices heard on the recordings as those of particular defendants. During his closing argument the United States Attorney stated to the jury:
Now, you personally, of course, don’t have knowledge of the voices of various people in the case, but the people who testified said that they knew these people. They explained to you how they knew them and the circumstances of their voice identification.
He also declared, in another comment on prosecution witnesses:
And it was clear — it was clear as it could be that these people were telling the truth and that they were not holding back anything or getting anybody. Did you hear the defense attorney spring out anything, weren’t you trying to get this guy because you hate him? No, there is no undercurrent to that in this trial at all. These people were merely getting up here, if you want to use the term, “spilling the whole beans” on everybody. Just laid it right out.2
The test to be applied when it is claimed that a prosecutor has impermissibly commented on a defendant’s fifth amendment protected silence is whether or not “ ‘it can be said that the prosecutor’s manifest intention was to comment upon the accused’s failure to testify [or] was ... of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. Ward, 552 F.2d 1080, 1083 (5th Cir. 1977), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1978) (quoting Samuels v. United States, 398 F.2d 964, 968 (5th Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). We conclude that appellants have failed to satisfy either of these criteria. Rather than manifestly being intended to call the defendants’ silence to the attention of the jury, we believe that the prosecutor’s first statement was no more than a reminder to the jury that the defendants’ voices had been reliably identified by witnesses. And while the first statement could have been interpreted as an indirect reference to the fact that the jury had never personally heard the defendants’ voices from the stand, its character was not such that the jury would “naturally and necessarily” understand it as directed at the defendants’ silence.
The second statement assailed by defendants was even more innocuous. In context, it clearly did not address the defendants’ failure to take the stand by parading as uncontradicted government testimony that could have been disputed only by defendants. Cf. Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966) (finding an oblique comment was directed at defendant’s failure to testify because it pointed to the uncontradicted nature of testimony that only defendant could dispute). Instead, it was directed to defense attorneys’ inability to cast doubt on the testimony of government witnesses by demonstrating that they were improperly motivated by animosity toward the defendants or had told a tale slanted by incomplete disclosures of relevant information. Moreover, any damage conceivably inflicted by either statement was cured by the trial judge’s instruction to the jury that the defendants were under no obligation to testify. See United States v. Brown, 546 F.2d 166, 173-74 (5th Cir. 1977); United States v. Jennings, 527 F.2d 862, 871 (5th Cir. 1976).
Appellants next contend that the trial court erred in denying their motions for a bill of particulars, for the exclusion of evidence requested in the motion for the bill of particulars and not provided them, and for a continuance after the government finally provided massive discovery on the second day of trial. After they were indicted for a conspiracy extending over two-and-one-half years (shortened to one-and-one-half years by a superseding indictment), defendants moved for a bill of particulars specifying the date and the location where each defendant allegedly conspired with each of the other members of the conspiracy and identifying all overt acts taken in furtherance of the conspiracy. At a pretrial motion hearing on September 12,1977, approximately two months before the date set for trial, the United States Attorney announced that he would voluntarily provide that information within ten days. The trial court deferred for the ten-day period further consideration of the motion for a bill of partic
The granting of a bill of particulars, the purpose of which is to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare his defense, to avoid or minimize the danger of surprise at trial, and to facilitate a plea of double jeopardy in the event of subsequent prosecution for the same offense, United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977); United States v. Martinez, 466 F.2d 679 (5th Cir. 1972), cert. denied, 414 U.S. 1065, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973), is a matter for the trial court’s discretion. Denial of such a bill cannot be reversed on appeal unless there was a clear abuse of that discretion or unless the defendant was actually prejudiced by surprise at trial. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Mack-ey, supra at 970. The determination to impose such sanctions as excluding evidence for violation of its own orders “is even more surely within the discretion of the ordinary court.” United States v. Mackey, supra. And the disposition of a motion for a continuance is similarly committed to the trial judge’s discretion and will not be reversed absent clear abuse. United States v. Moriarty, 497 F.2d 486, 489 (5th Cir. 1974). Consulting these standards, we find no error in the trial court’s denial of the motions for a bill of particulars, for exclusion of evidence, and for a continuance.
The trial court’s repeated directions to government counsel to make good their promise to provide the information sought in the bill of particulars and its arrangement for defendants to meet with the United States Attorney during a daylong recess in order to obtain the information precludes any finding that by failing to grant the motion for a bill of particulars the trial court abused its discretion and denied defendants “those materials necessary to advise them of the nature and cause of the accusation against them . . . .” United States v. Perez, 489 F.2d 51, 70 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). The court’s decision not to deprive the jury of the benefit of all testimony not contained in the taped conversations as a sanction for the government’s failure to comply with the court’s orders likewise cannot be ruled an abuse of its discretion. Defendants have not suggested on appeal that they suffered any specific prejudice from the government’s failure to disclose the information it had promised, United States v. Mackey, supra at 970, and defendants themselves were remiss in not calling to the court’s attention their difficulty in obtaining information from the prosecution before the trial started.
Defendants Eldridge and Thompson argue that coconspirators’ hearsay statements implicating them in the conspiracy were improperly admitted. The rule of United States v. Oliva, 497 F.2d 130, 132 (5th Cir. 1974), modified, United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc), was in effect at the time of trial and governs this case. Under Oliva a coconspirator’s hearsay declaration, made during the course of and in furtherance of the conspiracy, is admissible against an accused only if the government has established by independent evidence “a prima facie case of the existence of a conspiracy and of the defendant’s participation therein . . . Id.
In the present case, the government supplied the necessary predicate for admitting the taped conversations among Hyde, Pruitt and Harbin, whose admission Thompson challenges. The government’s independent evidence against Thompson included the testimony of Anita Clancy that she was a marijuana and cocaine dealer for Louis Hyde
The government also adequately established Eldridge’s knowing participation in the conspiracy by evidence independent of a taped phone conversation, challenged by El-dridge, between coconspirators Hyde and O’Quinn that characterized Eldridge as a dealer. Government witness Tondola Evans testified that she had been a marijuana dealer in Texas from March through August of 1976 and had worked for Eldridge in Texas by driving cars through border checkpoints for $500 per trip. Evans said that after passing the checkpoint and arriving in McAllen, Texas, she would leave the keys in the car, check into a motel room, and wait for Eldridge to come to the motel and contact her. This evidence of El-dridge’s participation in the marijuana conspiracy was circumstantial because Evans
Government witness Anita Clancy testified that Eldridge was present when she obtained marijuana from Hyde for distribution and that shortly afterwards Hyde told her that he and Eldridge no longer were engaged in drug transactions together. Eldridge did not object to this statement as itself inadmissible hearsay unsupported by independent evidence that he was involved in the conspiracy, and we will not lightly disregard the rule requiring objection to the admission of evidence at trial. The admission of Clancy’s testimony to Hyde’s declaration was not “plain error,” to be noticed absent an objection. Consequently, the jury could properly consider Hyde’s reported statement indicating that Eldridge had participated in the drug conspiracy. This evidence and the circumstantial evidence presented by Evans provided the necessary prima facie case that Eldridge had been a member of the conspiracy. Therefore, the Hyde-O’Quinn tape was admissible against Eldridge.
We also reject Chuck Pruitt’s challenge to his conviction based on the admission of certain telephone tapes that he asserts were prejudicial. In one tape, Hyde accused Pruitt of having pulled a gun on him three separate times. In the other recorded conversation, Pruitt asked Hyde how the latter’s trial for battery was going. Hyde replied, “[Y]ou can’t never tell about six goddam square jobs up there on that damn jury . . ..” 'Pruitt delivered a vulgar expletive when he heard Hyde was being tried by a jury, and Hyde responded that “I ain’t about to go in front of no damn judge.” These remarks were irrelevant, but they were not directed to the guilt or innocence of Pruitt, and we believe that they were not of such an inflammatory character as to have affected the verdict as to the defendant’s guilt. Their admission was therefore harmless error.
Defendant Cleckler argues that the trial court erred in admitting his confession about marijuana dealing before the government established corroborative proof of the existence of the marijuana conspiracy. It is true that to sustain a conviction on an extra-judicial confession, independent evidence or corroborative admissions must have established the offense before the case was submitted to the jury. Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 99 L.Ed. 192 (1956). However, prior to this circuit’s en banc decision in United States v. James, 590 F.2d 575 (5th Cir. 1979)(en banc), the order of proof regarding extra-judicial confessions and the independent or corroborative evidence of the crime was entirely at the judge’s discretion. See, e. g., United States v. Baldarrama, 566 F.2d 560 (5th Cir. 1978), cert. denied, 437 U.S. 906, 98 S.Ct. 3094, 57 L.Ed.2d 1136 (1979). While James articulates a “preferred order of proof” by which trial judges are to “require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator” whenever “reasonably practicable,” 590 F.2d at 582, this rule was adopted only prospectively. Id. at 583. Cleckler’s assertion of error in the order of presentation regarding his confession is thus without merit.
Lastly, appellants Thompson, Eldridge, Harbin, Stanley, Mims, O’Quinn, and Cleck-ler challenge the sufficiency of the evidence to convict them of conspiracy to possess marijuana with intent to distribute. Appellants O’Quinn and Cleckler also challenge the sufficiency of the evidence to support their convictions on the additional count of
For an accused to be convicted of unlawful conspiracy, there must be proof beyond a reasonable doubt that a conspiracy existed, that he knew of it, and that, with this knowledge, he voluntarily became a part of it. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir. 1979) (en banc); United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978); United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). Intentional participation in a criminal conspiracy, however, “need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances.’ ” United States v. Malatesta, supra at 1381 (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). See United States v. Becker, 569 F.2d 951, 961 (5th Cir. 1978), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); United States v. Barrera, 547 F.2d 1250, 1255-56 (5th Cir. 1977). Moreover, to be guilty of a single conspiracy, the “conspirators need not know each other or be privy to the details of each enterprise comprising the conspiracy ... as long as the evidence is sufficient to show that each defendant possessed full knowledge of the conspiracy’s general purpose and scope.” United States v. Becker, supra at 961 (citations omitted); see United States v. Baldarrama, supra at 566; United States v. Perez, supra at 59-62.
Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accepting all reasonable inferences and credibility choices that support the jury verdict, United States v. Becker, supra at 959, we find substantial
The taped conversations, the testimony of coconspirators, and the evidence adduced by surveillance operations introduced at trial provided substantial evidence for the jury to find that a conspiracy to distribute marijuana existed and that at least one overt act was taken in furtherance of it. The evidence that appellants Thompson and El-dridge knew of the marijuana conspiracy and intentionally participated in it is outlined in our discussion of their challenge to the admission of the taped conversations of coconspirators, supra (pp. 779-780). The jury could reasonably have found that Thompson, by several times purchasing marijuana with named conspirators in Texas for distribution in Florida, knowingly and voluntarily participated in the conspiracy and was aware of its general scope and purpose. And it could reasonably have inferred that Eldridge also voluntarily participated in the conspiracy with knowledge of the essential nature and scope of the plan from evidence that he purchased marijuana in Mexico, transported it into Texas, and transferred it to Hyde for further distribution in Florida.
Defendant Harbin bases his insufficient evidence claim on the contention that there was no evidence of a knowing agreement to conspire between him and any of the other alleged conspirators. However, the “government need not show that the conspirators articulated an express agreement . . ..” United States v. Becker, supra at 959. The record contains a series of taped phone calls made by Harbin to
The record also strongly refutes appellant Stanley’s argument that the evidence against him did not establish a conspiratorial agreement between himself and Hyde or any other coconspirator or prove that he took an overt act in furtherance of the conspiracy and that he thus was impermissibly convicted on the basis of mere association, without knowledge that a conspiracy existed and without his intentional participation therein. Initially, we note that any challenge to a conspiracy conviction under 21 U.S.C. § 846, predicated on the notion that a finding of guilt requires proof of an overt act in furtherance of the conspiracy, is based on a mistaken view of the law. While there must be proof of an agreement or common purpose to violate the law, no overt act in furtherance of the conspiracy need be alleged or proved under this section. United States v. Robinson, 591 F.2d 1202, 1205 (5th Cir. 1979); United States v. Beasley, 519 F.2d 233, 247 (5th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976).
Taped phone calls between Stanley and Hyde offer more than a sufficient basis for the jury to have found that he knowingly agreed to participate in the marijuana conspiracy and was aware of its general scope. In one conversation, Hyde and Stanley arranged for Hyde to “make a drop” to Stanley “of ten” at a specified time and for Stanley to contact “Tony,” who would “take three or four right off the bat.” It was reasonable for the jury to interpret this conversation as an agreement in drug parlance
From the dialogue on another tape, the jury could have reasonably inferred that Stanley called Hyde because he was worried that Hyde had been apprehended transporting a consignment of drugs, having heard that day that federal narcotics agents had seized 20,000 pounds of marijuana in a raid at a bridge and that Stanley and Hyde agreed that Hyde would deliver Stanley’s share of the newly obtained drugs to him on Wednesday night. This cumulative evidence renders Stanley’s claims of insufficiency meritless.
In his challenge to the sufficiency of the evidence, Lonnie Mims asserts that the government failed to establish that he was aware of any conspirators other than Hyde and that therefore the government did not prove the single conspiracy it charged but rather proved a multiplicity of conspiracies between Hyde and various people. Mims admits that the evidence unquestionably showed that he obtained marijuana from Hyde for distribution and that Hyde was the “hub” of a “wheel” conspiracy of which Mims was a “spoke.” Contrary to Mims’ claim, however, the evidence was also sufficient to support the jury’s conclusion that
The jury could infer that Mims was aware of the general scope of the conspiracy from Anita Clancy’s testimony that Hyde introduced her to Mims and that she then delivered marijuana obtained from Hyde to Mims on two occasions and from a taped conversation between Mims and Mrs. Hyde in which Mims asked for Hyde and inquired as to the whereabouts of “Joe,” whom the jury could reasonably have believed was Joe Middlebrooks, another named conspirator. Also, in this conversation Mims revealed that he knew that “Joe” lived in Texas and traveled between there and Florida and that he understood that Hyde did not have “too many” people he could give “it” [marijuana] to who would “collect” for him. The jury was entitled to interpret these statements as establishing that Mims knew of conspirators other than Hyde, including Middlebrooks and Clancy, and was familiar with the workings of the distribution scheme. Thus, there was ample evidence for the jury to find that Mims intentionally participated in the single conspiracy charged.
In contrast to the persuasive case mustered against appellants Thompson, El-dridge, Harbin, Stanley, and Mims, the government produced only taped telephone conversations between O’Quinn and Hyde that failed to provide a basis for reasonably inferring that O’Quinn was himself involved in the marijuana distribution scheme. In these conversations, O’Quinn asked Hyde about the local drug scene, expressing interest in Hyde’g drug-related activities and in those of other conspirators. However, the content and context of the conversations are consistent with O’Quinn’s claim that he was unfamiliar with the conspiracy's drug transactions and thus strongly support the hypothesis that at the time of the phone calls O’Quinn was not a eon-spirator. These conversations also cannot support a conclusion that O’Quinn made the inquiries in the process of joining the conspiracy, since they can be understood as revealing no more than that he was curious about the illegal drug activities.
The taped conversations about cocaine between O’Quinn and Hyde and between Hyde and Joe Middlebrooks
Finally, we find merit in Roger Gleekler’s assertion that there was insufficient evidence to support his conviction for conspiracy to distribute cocaine but reject his similar contention with respect to his conviction for conspiracy to distribute marijuana. The evidence against decider on the marijuana
Cleckler’s confession is substantially corroborated by the testimony of Anita Clancy that on two occasions when she was present Cleekler bought several pounds of marijuana from coconspirator Pruitt. See Smith v. United States, 348 U.S. 147, 156-59,75 S.Ct. 194, 99 L.Ed. 192 (1954), and discussion supra, pp. 780-781. Although Clancy’s testimony does not coincide with Cleckler’s confession on all points,
However, th© record fails to provide sufficient evidence to support the jury’s verdict that Cleekler was guilty of conspiring to distribute cocaine. The sole proof of Cleckler’s involvement in cocaine transactions was Clancy’s testimony that Cleekler once sold three grams of cocaine to Pruitt, Hyde, Joe and Patricia Middle-brooks, herself, and her companion, which they personally consumed. This evidence does not establish that Cleekler conspired to distribute cocaine with O’Quinn, Jackie and Louis Hyde, Joe and Patricia Middlebrooks, and Petro Arenas, as charged. Rather, if believed, it would prove no more than that Cleekler sold cocaine to some of the named cocaine conspirators for personal use. We therefore reverse Cleckler’s conviction on the second count of conspiring to possess cocaine with intent to distribute.
In summary, because we find no merit in the challenges of David Harbin, Lonnie Mims, William Stanley, Johnny Thompson, Descel Eldridge, Chuck Pruitt, and Roger Cleekler to their convictions of conspiracy to possess marijuana with intent to distribute, we affirm their convictions. Because we find that the record fails to establish sufficient evidence to support the conviction of Nolan O’Quinn of conspiracy to possess marijuana and cocaine with intent to distribute, we reverse his convictions; and because we find insufficient evidence to support the conviction of Roger Cleekler of conspiracy to possess cocaine with intent to distribute, we reverse his conviction on the second count.
AFFIRMED in part and REVERSED in part.
. See United States v. Hyde, 574 F.2d 856 (5th Cir. 1978), describing the narcotics operation and law enforcement officers’ investigation, culminating in arrests of appellants in the present case and in Hyde and affirming the convictions of appellants’ alleged coconspira-tors in Hyde.
. Following the conclusion of the United States Attorney’s argument, defendant Mims’ attorney objected to the first statement, but the trial court overruled the objections. No objection was made at any time during the trial to the second statement of the prosecutor. However, if the second comment were “so grossly prejudicial that the harm could not be removed by objections or instructions,” there is “no duty on the part of a defendant in a criminal case [to object and] to move for a mistrial,” and the second statement’s permissibility may be considered on appeal. Benham v. United States, 215 F.2d 472, 473 (5th Cir. 1954).
. Hyde was convicted in a separate trial of being the “hub” of the wheel conspiracy involved in the present case. See United States v. Hyde, supra, note 1.
. See United States v. Malatesta, supra at 1382, abolishing the slight evidence rule as the standard for appellate review of sufficiency of evidence in conspiracy cases and requiring instead “substantial evidence” that, beyond a reasonable doubt, the accused knowingly participated in the conspiracy.
. The government introduced testimony by those familiar with the illegal drug world translating the taped calls.
. Joe Middlibrosks is a eoeensplrater not In-dieted in the present ease but tried and convict-§d with Hyde In a separate trial. See United States v. Hyde, 574 F.2d 856 (5th Cir. 1878),
. For example, while Cleekler denied receiving, buying, or selling cocaine, Clancy testified that the second drug transaction Involving Cleekler that she witnessed included not only a purchase of marijuana by Cleekler but also a sale of three grams of cocaine by Cleekler to Pruitt and several other parsons present at Pruitt's house, Moreover, Clancy testified that Cleck-ler bought marijuana from Pruitt, whereas Cleekler confessed to purchasing marijuana for resale from Hyde and did not mention involvement with any other conspirators.
. Cleckler's marijuana purchases reported by Clancy Involved quantities that could suggest to a reasonable juror that he Intended to resell the drugs and did not buy only for his personal use,
Reference
- Full Case Name
- United States v. David HARBIN, Lonnie Mims, Nolan O'Quinn, William Stanley, Johnny Thompson, a/k/a J. T., Descel Eldridge, Chuck Pruitt and Roger Cleckler
- Cited By
- 49 cases
- Status
- Published