U.S. v. Singer, s. 83-1625

• Decision Date: 18 April 1984
• Docket Number: Nos. 83-1625,83-1626,s. 83-1625
• Parties: 15 Fed. R. Evid. Serv. 812 UNITED STATES of America, Appellee, v. Alan SINGER, Appellant. UNITED STATES of America, Appellee, v. John RENICK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 631

732 F.2d 631

15 Fed. R. Evid. Serv. 812

UNITED STATES of America, Appellee, v. Alan SINGER, Appellant.

UNITED STATES of America, Appellee, v. John RENICK, Appellant.

Nos. 83-1625, 83-1626.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1983.

Decided April 18, 1984.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., Larry D. Hale, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Silverglate, Gertner, Baker & Fine, Jeanne Baker, David Kelston, Boston, Mass., Kaveney, Fleming, Russell, Beach & Mittleman, Lawrence J. Fleming, St. Louis, Mo., for appellant Singer.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and HUNTER, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

A pound of cocaine hidden behind the rear seat of a Buick Skylark with Michigan license plates led to the conviction of Alan Singer and John Renick of charges of possessing with intent to distribute, and conspiring to distribute, the cocaine in violation of 21 U.S.C. Secs. 841(a) and 846 (1976). On appeal, Singer argues that the district court ¹ erred in denying his motion to sever his trial from Renick's and in admitting into evidence certain hearsay statements. Renick argues that his consent to search the automobile in which he was arrested was involuntary, and therefore the cocaine subsequently discovered should have been suppressed. Both argue that the United States Attorney indirectly commented during closing argument on their failure to testify, thereby violating their fifth amendment privilege. We affirm.

The story of the case against Renick and Singer begins with the arrest of Patrick O'Dea and his subsequent agreement to act as informant. In fulfilling that role, O'Dea attempted to arrange drug purchases from a number of individuals with whom he had previously done business, including John Renick. O'Dea and Renick had a number of telephone conversations between December 20, 1982, and January 16, 1983. Several of these conversations were recorded and played for the jury. O'Dea testified to the substance of others. Their conversations reveal the following events leading up to the arrest of Renick and Singer.

Prior to January 12, 1983, a number of calls were placed between Renick and O'Dea to arrange for the sale of a pound of cocaine. On January 12, Renick called O'Dea and told him he was preparing to leave Florida. On January 14, Renick again called and stated that he was six hundred miles away and was preparing to begin the trip to St. Louis. Renick also told him that "it was snowing quite a bit" and that "he had the accountant with him." O'Dea testified that he understood "the accountant" to refer to Singer. O'Dea contacted Renick upon his arrival in St. Louis, and the two made plans to meet at the St. Louis riverfront.

O'Dea was wired with a "Kel" transmitter for the riverfront meeting. At the meeting, O'Dea recognized the person with Renick as Singer. O'Dea insisted on getting a sample of the drugs immediately, but Renick wanted to wait until they went to O'Dea's house where he could continue watching a football game. O'Dea, objecting to this delay, testified that Singer's response was "its the only way it can be done" and that "we really can't get it out now" because "its hidden deep in the car." The three thus got into their cars to go to O'Dea's house. Renick and Singer were arrested as they drove away from the riverfront.

After reading Renick and Singer their rights and obtaining their consent to search the car, the police discovered behind the rear seat a package later identified as approximately one pound of cocaine. Renick and Singer were then brought to the St. Louis office of the Drug Enforcement Administration for processing. In response to a routine question concerning his occupation, Singer stated that he was a "self-employed accountant." At the same time, the arresting officers approached Renick and proposed that he consider cooperating with them in future investigations. Renick responded with the following statement:

Bob, I been doing this all my life, I still haven't got anything to show for it. I'm caught again. It must be my fate. I'm ready to take what I've got coming.

After the adverse jury verdict, Singer was sentenced to concurrent six-year terms with a three-year parole term. Renick was sentenced to concurrent eight-year terms with a three-year parole term.

I. Severance

Singer first argues that the district court erred in refusing to sever his trial from Renick's. He argues that he was prejudiced by the unusually inflammatory nature of the tape-recorded telephone conversations in which Renick and O'Dea planned the transaction, the abundant evidence of past crimes and other bad acts committed by Renick, and Renick's incriminating post-arrest statement. In contrast, Singer argues that the evidence against him was weak, although he admits that it was legally sufficient for jury submission. He asserts, however, that "it fell far short of the overwhelming quantity and quality of evidence [necessary] to find that a failure to sever did not prejudice his right to a fair trial." Appellant's Brief at 25.

The general rule is that "persons charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts." United States v. Jackson, 549 F.2d 517, 523 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). The trial court's denial of a severance motion will not be disturbed on appeal absent an abuse of discretion and clear prejudice to the defendant's right to a fair trial. United States v. Bohr, 581 F.2d 1294, 1299, 1300-01 (8th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). Clear prejudice, however, is more than simply a better chance of acquittal at a separate trial. Id. at 1301. "[T]here must be some appreciable chance that [the] defendant[ ] would not have been convicted had the separate trial been granted." United States v. Bostic, 713 F.2d 401, 403 (8th Cir.1983).

The essence of Singer's argument is that he was clearly prejudiced by a joint trial due to the disparity in evidence introduced against each of the two defendants. Standing alone, this is insufficient grounds for severance. United States v. Kaminski, 692 F.2d 505, 520 (8th Cir.1982); Jackson, 549 F.2d at 525. In such cases, severance will be granted only if the jury is unable to "compartmentalize the evidence as it relates to separate defendants." Jackson, 549 F.2d at 525. The district court is given wide discretion in making this determination. United States v. King, 567 F.2d 785, 788 (8th Cir.1977).

It is true that the evidence against Renick was of a strong and incriminating nature. We cannot conclude, however, that the jury was unable to distinguish the evidence against Singer from that applicable only to Renick. The trial judge gave limiting instructions on the evidence of the telephone calls between O'Dea and Renick that did not contain any reference to "the accountant." Renick's discussion of his prior business deals and his post-arrest statement were clearly attributable to him and in no way implicated Singer. Any prejudicial effect to Singer from evidence of O'Dea's criminal activities resulted primarily from the extensive cross-examination of O'Dea by Singer's counsel. Our review of the record convinces us that the jury could properly compartmentalize the evidence against the two defendants.

Singer also asserts that the evidence against Renick, if not clearly prejudicial in its own right, became so when contrasted with the weakness of the government's case against him. We are convinced that Singer views the evidence against him too optimistically. The evidence shows that Renick told O'Dea that "he had the accountant with him," a person O'Dea understood and later recognized to be Singer. Singer subsequently told a DEA agent that he was self-employed as an accountant. O'Dea's testimony established that, at the riverfront meeting, Singer participated in the conversations concerning the necessity of completing the transaction at O'Dea's house. He testified that Singer said "it's the only way it can be done" and, when O'Dea persisted in asking for a sample, by stating "we really can't get it out now" because "it's hidden deep in the car." A search of the car in which Singer and Renick were traveling revealed the cocaine and a Hertz rental agreement bearing a credit card imprint with the name of Alan Singer. In light of this strong evidence against Singer, we do not believe there was an "appreciable chance" that he would not have been convicted had he been granted a separate trial.

II. Hearsay

Singer next argues that hearsay statements were improperly received into evidence against him. Specifically, he points to two statements made by Renick to O'Dea during unrecorded telephone conversations. The first is Renick's January 14 statement that "he had the accountant with him." The second is Renick's January 15 statement that "they had been driving all day" and "they were in town." Singer claims that these statements are not admissible as the declarations of a coconspirator under Fed.R.Evid. 801(d)(2)(E) because there existed no independent evidence that Singer was conspiring with Renick on January 14 or 15.

An out-of-court declaration of a co-conspirator is admissible against a defendant if (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the declaration was made during the course and in furtherance of the conspiracy. United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978); Fed.R.Evid. 801(d)(2)(E). Where the defendant asserts that no conspiracy existed at the time the challenged statements were made, the government must show by a "preponderance of independent evidence" that a conspiracy existed. United States v. Piatt, 679 F.2d 1228, 1232 (8th Cir.1982). This standard provides that a co-conspirator's statements...