U.S. v. Mitchell, s. 83-5138

• Decision Date: 30 April 1984
• Docket Number: Nos. 83-5138,83-5154,s. 83-5138
• Citation: 733 F.2d 327
• Parties: 15 Fed. R. Evid. Serv. 1510 UNITED STATES of America, Appellee, v. Terry MITCHELL, Appellant. UNITED STATES of America, Appellee, v. Alvin MITCHELL, a/k/a "Any Pen" a/k/a "Pin," Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 327

733 F.2d 327

15 Fed. R. Evid. Serv. 1510

UNITED STATES of America, Appellee, v. Terry MITCHELL, Appellant.

UNITED STATES of America, Appellee, v. Alvin MITCHELL, a/k/a "Any Pen" a/k/a "Pin," Appellant.

Nos. 83-5138, 83-5154.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 8, 1984.

Decided April 30, 1984.

Waverly W. Jones, Jr., Christopher C. North, Norfolk, Va. (Cooper & North, Norfolk, Va., on brief), for appellants.

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Michael A. Cauley, Asst. U.S. Atty., Norfolk, Va., on brief), for appellee.

Before RUSSELL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

Alvin Mitchell and Terry Mitchell were convicted of conspiracy to distribute heroin, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). In addition, Alvin Mitchell was convicted on three counts, and Terry Mitchell on two counts, of distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The appellants allege various errors in their trial. We find no merit in any of appellants' contentions, and accordingly affirm the judgments of conviction.

In the fall of 1982, a task force including federal, state and municipal officers was formed to combat narcotics traffic in the Tidewater area of Virginia. In the Portsmouth area it centered upon the operations of the defendant Alvin Mitchell. Based upon undisclosed information, the authorities assumed that such defendant had in that area an extensive narcotics operation with a number of distributors. His operations were largely directed from the A & B Quick Service convenience market in the Lincoln Park area of Portsmouth. A newly-hired police officer, Victor L. Hill, was sent by the Norfolk Police Department to work in an undercover capacity in the Portsmouth area with a view of establishing contacts with 16 targeted individuals, including the defendant Alvin Mitchell and his distributors. A government informant Raymond Nottingham, who claimed to know the narcotics dealers in the area, was assigned to assist Officer Hill by identifying and introducing him to the members of the defendant Mitchell's operations. Officer Hill testified that with Nottingham's aid he met both the defendant Alvin Mitchell and his brother, the defendant Terry Mitchell, as well as the indicted but unapprehended co-conspirator Felix Sivells, whose street name was "Mr. C" or "Cadillac," and two dealers allegedly working for Alvin Mitchell, Anthony Stevenson, street named "Scum Dog," and Roland Roberts, street named "Blood Fiend."

At trial, Officer Hill also testified to conversations with the defendant Alvin Mitchell during a purchase of a substantial quantity of heroin from the latter. In this conversation, Officer Hill said that Alvin told him that the Portsmouth area was his "turf" (referring to the distribution of heroin) and warned Hill not to encroach, adding that if he did he would get "hurt." In such conversations Alvin Mitchell further inferentially identified Sivells, Stevenson and Roberts as individuals through whom he distributed heroin. Officer Hill also testified to various statements made to him by Stevenson and Roberts relating to the two Mitchells. He made purchases of narcotics from both defendants, as well as from some others who had been identified as connected with the Mitchell distribution operation. Hill was the Government's principal witness.

The Mitchell defendants, who did not testify themselves, called Nottingham as a witness in their behalf. In his testimony, Nottingham, a former addict with a record of at least four felonies, repudiated various written statements given by him to the investigating officers. He admitted, however, that after he had given these written statements and had cooperated with the investigation being conducted by Officer Hill, he had requested Government protection, claiming his life to be in jeopardy. He was given such protection. It was only after he had been brought back to Portsmouth to be used as a witness for the Government that he apparently determined not to testify as a Government witness. He eluded his protection after his return to Portsmouth, which was just a few days before trial herein began. Government authorities did not see him again until he showed up at trial as a witness for the defendants. As a witness for the defendants he, in effect, contradicted all the testimony given by Officer Hill, denied any acquaintance with either Mitchell and any introduction of Hill to "anybody," and said that all Hill's testimony of purchases of narcotics was fabricated.

The case was submitted to the jury, which returned a verdict of guilty against the defendants. From judgments entered on such verdict, the defendants have appealed. The claims of error assigned by the defendants were in some instances peculiar to one of the defendants and in other instances applied to both defendants. We shall first address the exceptions which are common to both defendants.

The first assignment of error common to both defendants relates to the admission of statements of alleged co-conspirators linking the defendants to the alleged conspiracy. It is the defendants' contention that the rule is that testimony or statements by alleged co-conspirators is not admissible in the Government's case in chief before a hearing and ruling by the trial judge that there is substantial evidence of the conspiracy independent of the out-of-court statement of the alleged co-conspirator. They urge that this alleged rule was violated in this case. The rule in this circuit, however, is that "a trial judge retains the option to admit conditionally the declarations of co-conspirators before the conspiracy has been independently established subject to the subsequent fulfillment of that factual predicate." United States v. Hines, 717 F.2d 1481, 1488 (4th Cir.1983).

There was considerable evidence, independent of any hearsay testimony, to establish the existence of a conspiracy. Much of this was supplied by admissions and declarations made by the defendant Alvin Mitchell to Officer Hill. For instance, the defendant Alvin Mitchell told Officer Hill in effect that he controlled the distribution of heroin in the Portsmouth area and he identified the individuals whose hearsay testimony was admitted as persons who distributed narcotics gotten from him. He identified in this conversation various individuals Officer Hill was to see in order to purchase various types of heroin. Thus, he told Hill that if he wished capsules he was to see "Blood Fiend" (Roberts) and that if he wanted "weight" he was to approach "Scum Dog" (Stevenson). On another occasion when Officer Hill had arranged to conclude a purchase with Alvin, he was told by Alvin that there had been "a change in plans and that [he] had to make the purchase from Cadillac" (Sivells). Officer Hill had other contacts with the defendant Alvin Mitchell evidencing Mitchell's operations and the involvement of those whose hearsay statements were admitted in the operations. As an instance of such activity, Officer Hill testified to purchases made on one or more occasions pursuant to the instruction of Alvin Mitchell. The Court in this case ruled, after hearing much of the Government's case-in-chief including that just detailed, that it was "fully satisfied that the conspiracy ... [had] been clearly established independent of any hearsay statements made by the people." This finding was, as we have seen, clearly sustained by the evidence.

The defendants would also find error in the fact that the case agent was excused from compliance with the district court's sequestration order and was permitted to be present and testify...