U.S. v. Baker

• Decision Date: 13 December 1993
• Docket Number: 89-10303,89-10380,Nos. 89-10302,89-10456,s. 89-10302
• Citation: 10 F.3d 1374
• Parties: 38 Fed. R. Evid. Serv. 638 UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BAKER, aka "Eddie", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dwain Allen BAKER, aka "Butch", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward RUPLEY, Sr., aka "Dick", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Lawrence BONNENFANT, aka "Pidge," "Bird", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Katherine Jill RUPLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dwain Allen BAKER, aka "Butch", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Duane ROWEN, aka "Bobby", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Danny Eugene RUPLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BAKER, III, aka "Eddie", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee COLE, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dominic Alan CAVALLARO, aka "Dom", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward RUPLEY, Jr., aka "Richie", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Byron Melachia WIMBERLY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard E. RUPLEY, Sr., Defendant-Appellant. to 89-10459, 89-10464 to 89-10469 and 89-10567.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1374

10 F.3d 1374

38 Fed. R. Evid. Serv. 638

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BAKER, aka "Eddie", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dwain Allen BAKER, aka "Butch", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward RUPLEY, Sr., aka "Dick", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John Lawrence BONNENFANT, aka "Pidge," "Bird", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Katherine Jill RUPLEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dwain Allen BAKER, aka "Butch", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert Duane ROWEN, aka "Bobby", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Danny Eugene RUPLEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BAKER, III, aka "Eddie", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee COLE, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dominic Alan CAVALLARO, aka "Dom", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward RUPLEY, Jr., aka "Richie", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Byron Melachia WIMBERLY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard E. RUPLEY, Sr., Defendant-Appellant.

Nos. 89-10302, 89-10303, 89-10380, 89-10456 to 89-10459,

89-10464 to 89-10469 and 89-10567.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 1993.

Decided Oct. 19, 1993.

As Amended Dec. 13, 1993.

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Fred H. Atcheson, CJA, Arnold Brock, Jr., CJA, Kenneth Craig, CJA, N. Patrick Flanagan, CJA, Reno, NV, Fred D. Gibson, CJA, Las Vegas, NV, Loren Graham, CJA, Zephyr Cove, NV, Erik R. Johnson, CJA, David Nielsen, CJA, Carson City, NV, John Oakes, CJA, Reno, NV, Michael Powell, CJA, Gardnerville, NV, Lawrence D. Wishart, CJA, Reno, NV, for defendants-appellants.

Daniel Bogden, William M. Welch, III, L. Anthony White, Asst. U.S. Attys., Reno, NV, for plaintiff-appellee.

On Appeal from the United States District Court for the District of Nevada.

Before: PREGERSON, BOOCHEVER, and BEEZER, Circuit Judges.

BOOCHEVER, Circuit Judge:

This is an appeal from criminal convictions following one of the lengthiest and costliest trials in this nation's history. The trial lasted over 16 months, produced over 30,000 pages of transcripts, and involved over 250 witnesses and thousands of exhibits presenting evidence involving over 2,000 narcotics transactions spanning an 11-year period. Of the 24 defendants charged in the 44-count superseding indictment, 15 initially went to trial. Three defendants reached plea agreements during the trial. Eleven of the remaining 12 defendants join in this appeal. We are called upon to consider not only the approximately 50 individual issues raised on appeal, but the practical and human limitations of our jury system itself.

Richard Rupley, Sr., John Bonnenfant, Dwain Baker, Edward Baker, Daniel Rupley, Dominic Cavallaro, Katherine Rupley, Richard Rupley, Jr., Byron Wimberly, Robert Rowen, and Robert Cole (collectively, "Appellants") were members of a large criminal organization known as "the Company." ¹ The Company was headed by Rupley, Sr., who expanded his operations by recruiting many teenagers and young adults (including his 15-year-old son) into the organization. The central count of the superseding indictment charged all defendants with conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in California and Nevada between December 1981 and September 1987. Seven defendants were charged in a separate marijuana conspiracy, and four defendants were charged with conducting a continuing criminal enterprise. The remainder of the counts involved various combinations of defendants and primarily charged specific narcotics violations and interstate transportation in aid of racketeering.

The Company's drug-related activities, as the district court found, "involved an extraordinary level of violence." The indictment charged, and the district court found by a preponderance of the evidence, that Company members furthered their criminal conspiracies by attempting to kill a United States Forest Service employee, shooting at a low-flying police helicopter, and planning the murders of state and federal narcotics agents and government witnesses. The district court further found that the Company dealt with perceived acts of disloyalty by murdering one member (Rosie Osick), attempting to murder another (Dale Richmond), and beating and forcibly raping a third (Crystal Channell).

Additional pertinent facts will be stated in the discussions of relevant issues.

I. Joinder

A

Perhaps the central issue of this case is whether the district court should have granted Appellants' motions to sever this massive trial into several more manageable, less prejudicial proceedings. The district court's denial of a motion to sever is reviewed for an abuse of discretion. United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir.),

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cert. denied, --- U.S. ----, 113 S.Ct. 475, 121 L.Ed.2d 381 (1992). "The test for abuse of discretion by the district court is 'whether a joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial.' " United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987) (quoting United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982)). This scope of review is "extremely narrow." United States v. Mariscal, 939 F.2d 884, 886 (9th Cir.1991); see United States v. Stirling, 571 F.2d 708, 733 (2d Cir.) (severance question is "virtually unreviewable"), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978); United States v. Campanale, 518 F.2d 352, 359 (9th Cir.1975) (trial court's severance rulings "will rarely be disturbed on review"), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).

Fed.R.Crim.P. 8(b) provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Because "joint trials 'conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial,' " United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986) (quoting Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968)), Rule 8(b) is construed liberally in favor of joinder. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989); United States v. Portac, Inc., 869 F.2d 1288, 1294 (9th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). " 'Co-defendants jointly charged are, prima facie, to be jointly tried.' " Mariscal, 939 F.2d at 885 (quoting United States v. Doe, 655 F.2d 920, 926 (9th Cir.1980)); see also Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993) (noting preference in federal system for joint trials of defendants who are indicted together); United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.) (defendants jointly charged in conspiracy cases are presumptively to be jointly tried), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980).

Fed.R.Crim.P. 14 limits the presumption of Rule 8(b) where otherwise proper joinder may prejudice a defendant:

If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

Rules 8(b) and 14 " 'are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.' " Bruton, 391 U.S. at 131 n. 6, 88 S.Ct. at 1625 n. 6 (quoting Daley v. United States, 231 F.2d 123, 125 (1st Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956)).

Recognizing that "some prejudice is inherent in any joinder of defendants," United States v. Vaccaro, 816 F.2d 443, 448-49 (9th Cir.), cert. denied, 484 U.S. 914, 108 S.Ct. 262, 98 L.Ed.2d 220, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987), we previously have focused our inquiry into the prejudicial effect of a joint trial on whether the jury may reasonably be expected to collate and appraise the independent evidence against each defendant. United States v. Sherlock, 962 F.2d 1349, 1360 (9th Cir.1989), cert. denied, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). Because limiting instructions may suffice to cure a risk of prejudice, Zafiro, --- U.S. at ----, 113 S.Ct. at 938, the judge's diligence in instructing the jury on the limited purposes for which various evidence may be used is a "critical factor" in assessing the jury's ability to compartmentalize the evidence against each defendant. Cuozzo, 962 F.2d at 950. We have also recognized that "[t]he best evidence of the jury's ability to compartmentalize the evidence is its failure to convict all defendants on all counts." United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.1987), cert.

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denied, 488 U.S. 974, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988). Both of these factors support the district court's denials of severance in this case.

Appellants do not contend that the district court was careless or lackadaisical in instructing the jury; they argue that there...