U.S. v. Warner

• Decision Date: 17 November 1982
• Docket Number: Nos. 79-5411,80-5281,s. 79-5411
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Richard WARNER, Michael Charles Ward, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 545

690 F.2d 545

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Richard WARNER, Michael Charles Ward, Defendants-Appellants.

Nos. 79-5411, 80-5281.

United States Court of Appeals,

Sixth Circuit.

Argued May 26, 1982.

Decided Sept. 13, 1982.

Rehearing and Rehearing En Banc Denied Nov. 17, 1982.

Joseph J. Jerkins, James H. Geary (argued), Kalamazoo, Mich., for Thomas R. Warner.

Arthur James Rubiner, Southfield, Mich. (court appointed), for Michael C. Ward.

John A. Smietanka, U. S. Atty., Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., Mervyn Hamburg, Margaret I. Miller (argued), U. S. Dept. of Justice, Washington, D. C., for the U. S.

Before KENNEDY, Circuit Judge, BROWN ^* and SWYGERT, ^** Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Appellants Thomas Richard Warner and Michael Charles Ward appeal from their convictions of conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846, and of several counts of distribution of cocaine in violation of 21 U.S.C. § 841. On appeal, Warner contends that there was a prejudicial variance between the indictment and the proof, arguing that the evidence at trial showed multiple conspiracies while the indictment alleged that he participated in a single, wide-ranging conspiracy. He further contends that he was entitled to a jury instruction on multiple conspiracy. In addition, both Warner and Ward argue that the district court abused its discretion in denying their pretrial motions for severance. Ward also argues that the district court committed numerous other errors requiring reversal. We have reviewed these arguments in detail. Finding no reversible error, we affirm the convictions of both appellants on all counts, conspiracy and substantive.

I.

Appellants were charged under a twenty-three count indictment filed on June 21, 1979, charging them and nineteen others with narcotics violations. Count 23 of the indictment alleged that appellants had participated in a wide-ranging conspiracy to distribute cocaine in the Western District of Michigan. In addition, appellant Ward was charged in Count 5 with distributing three grams of cocaine. Appellant Warner was named in four counts charging distribution of cocaine.

Prior to trial, thirteen defendants pleaded guilty. Four of the remaining defendants were granted a severance. Warner and Ward were tried with Donald Cobb and Bradley Schrock, the remaining two defendants.

The evidence at trial can be summarized as follows:

During the spring of 1978, Charles Willette, who later became the government's informant, and defendant Donald Cobb were partners in the business of buying and selling cocaine. A major source for their cocaine was Dennis McCarthy, a resident of Holland, Michigan. ¹ Willette and Cobb regularly chartered airplanes to fly one or both of them from Traverse City, Michigan, where both resided, to Holland, Michigan, where they would meet McCarthy and purchase cocaine. They would then return to Traverse City and sell the cocaine at a profit. Willette testified that he was dealing in quarter pounds of cocaine every two to three days.

In May, 1978, McCarthy told Willette that a large cocaine dealer from Florida was coming to the Holland area. McCarthy identified the dealer as "M. W." and said that "M. W." delivered "the quantity" of cocaine to the Western Michigan area. McCarthy promised to introduce Willette to "M. W."

On May 23, 1978, Willette flew to Holland to purchase cocaine. McCarthy picked him up at the airport and took him to McCarthy's apartment, where Willette spent the night. The next day, McCarthy took Willette to Kalamazoo, Michigan, where they went to the home of defendant Bradley Schrock, who was one of McCarthy's cocaine suppliers. Willette, McCarthy, and Schrock then went to the Red Roof Inn, where Schrock had rented a room. From there, they went to the Valley Inn, also in Kalamazoo, where they met appellant Ward. Willette testified that he saw Ward open a briefcase. The briefcase contained vials of cocaine and a large amount of cash. ² Ward told them he was selling the cocaine for $4,000 an ounce. After testing the cocaine for quality, McCarthy, Willette, and Schrock each purchased a gram of cocaine from Ward. They then returned to Schrock's motel room, where they consumed some of the cocaine.

In the meantime, employees at the company from which Willette and Cobb were chartering airplanes grew suspicious that the two men were dealing in illegal drugs. On May 23, 1978, the company's bookkeeper notified the Michigan State Police. The police arranged for two undercover officers to pilot the airplanes chartered by Willette and Cobb from the company. In addition, the police placed Willette and Cobb under surveillance.

In late June, 1978, Willette heard that the police were watching his house. According to Willette's testimony, he then decided to go to the federal government and confess to dealing in cocaine because he feared that he might be arrested and because he knew that there was a major network of people transferring cocaine all over the country. He met with an FBI agent and a state police officer, and thereafter Willette worked with law enforcement officials as an informant.

In July, 1978, Willette introduced an undercover police officer, Michael Pifer, to Cobb and McCarthy. Pifer, posing as a cocaine dealer, purchased cocaine from Cobb, McCarthy, and several other dealers whom he met through McCarthy. Two of these dealers were Gerald Mead and Timothy Dick. ³

Dick and Mead testified that they were partners in a small cocaine business in Kalamazoo, Michigan, where they shared a house. During the period of the alleged conspiracy, appellant Warner was their only source of supply. Warner would "front" them large amounts of cocaine, which they would then try to sell. After making what profit they could on the cocaine, Mead and Dick would pay Warner what they owed him. Schrock and McCarthy both purchased cocaine from Mead and Dick on occasion.

On August 9, 1978, McCarthy telephoned Dick and told him that he had a friend (Officer Pifer) who wanted to buy four ounces of cocaine. Dick then called Warner, who said he would find out if the cocaine was available. Later that afternoon, McCarthy and Pifer went to Dick and Mead's house. Shortly after they arrived, Warner arrived carrying a thermos. Warner and Dick went to an upstairs bedroom. Warner opened the thermos, which contained three-fourths of a pound of cocaine. Warner and Dick then "cut" the cocaine with another white powdery substance. Dick sold two ounces of the diluted cocaine to Pifer for $3,980. In turn, Dick gave Warner $3,500. Warner left the remaining fourteen ounces of cocaine with Dick to see if he could sell any more of it. ⁴

On August 15, 1978, McCarthy called Mead and told him he wanted four ounces of cocaine. Mead went to Warner's house to get the cocaine, which he then sold to Pifer for $7,600.

In late September, 1978, Pifer told Mead that he had a friend who wanted to buy a pound and a half of cocaine. Mead telephoned Warner, who agreed to sell him that amount for $40,000. On October 2, Warner delivered a pound and a half of cocaine to Mead's house. Dick and Mead sold the cocaine to Pifer at the Kalamazoo County Airport. Pifer then arrested them.

After nearly eleven hours of deliberation, the jury found both appellants guilty of the conspiracy charged in Count 23 of the indictment. In addition, Ward was convicted of one count of distribution of cocaine. Warner was convicted of three counts of distribution and acquitted on the remaining count with which he had been charged. Following the verdict, the district court dismissed Ward's conspiracy conviction on the ground that the evidence before the grand jury was insufficient to support that charge. ⁵ Ward was then sentenced to ten years' imprisonment, to be served consecutively to two other federal sentences previously imposed. The court also imposed a six year special parole term. The court sentenced Warner to concurrent ten year terms of imprisonment on each count, fined him $50,000, and imposed a five year special parole term. This appeal followed.

II.

Appellant Warner's arguments on appeal center around his contention that the evidence at trial showed only multiple conspiracies rather than the single conspiracy charged in the indictment. He argues that the evidence showed at least two separate conspiracies, one involving cocaine transactions in the Traverse City-Holland area, and a smaller conspiracy in the Kalamazoo area involving himself, Mead, and Dick.

If an indictment alleges one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies, the resulting variance between the indictment and the proof is reversible error if the appellant can show that he was prejudiced thereby. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 81-82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Sutherland, 656 F.2d 1181, 1195-96 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982). In determining whether the evidence showed single or multiple conspiracies, we must bear in mind that the essence of the crime of conspiracy is agreement. "(I)n order to prove a single conspiracy, the government must show that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal." United States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981) (citation omitted). However, the government is not required to prove an actual agreement among the various conspirators in order to establish a single conspiracy. In one form of conspiracy, often described as a "chain" conspiracy, the agreement can be inferred from the interdependent nature of the criminal enterprise. United States v. Sutherland, supra at 1190-91. ...