U.S. v. Percival

• Decision Date: 30 April 1985
• Docket Number: Nos. 83-1398,s. 83-1398
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William M. PERCIVAL, Carolyn Allen Percival, Randy L. Middleton, Defendants- Appellants. to 83-1400.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 600

756 F.2d 600

UNITED STATES of America, Plaintiff-Appellee, v. William M. PERCIVAL, Carolyn Allen Percival, Randy L.

Middleton, Defendants- Appellants.

Nos. 83-1398 to 83-1400.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 7, 1984.

Decided March 11, 1985.

Rehearing and Rehearing En Banc Denied April 30, 1985.

Frances C. Hulin, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Bernard L. Segal, San Francisco, Cal., Catherine H. Barbercheck, Lawrence E. Johnson & Assoc., Champaign, Ill., Craig L. Truman, Littleton Public Defender's Office, Littleton, Colo., for defendants-appellants.

Before FLAUM, Circuit Judge and PELL and WISDOM, ^* Senior Circuit Judges.

FLAUM, Circuit Judge.

Defendants-appellants William M. Percival, his wife Carolyn Allen Percival, and Randy L. Middleton were convicted under 21 U.S.C. Secs. 841(a)(1) and 846, following a jury trial, for conspiring to distribute cocaine. The Percivals were given twelve-year sentences; Middleton got fourteen years. William Percival was also convicted of possession with intent to distribute marijuana and hashish, for which he was sentenced to five years imprisonment, to run concurrently with his sentence on the conspiracy count.

On appeal, defendants allege that the trial court erred in refusing to grant their motions for severance or to instruct the jury on multiple conspiracies because the evidence at trial showed multiple conspiracies rather than the single conspiracy charged in the indictment. Carolyn Percival argues that the evidence presented at trial was insufficient to support her conspiracy conviction. William Percival appeals his conviction for possession with intent to distribute marijuana and hashish on the ground that the drugs forming the basis of the conviction were seized in violation of the Fourth Amendment's ban against illegal searches and seizures. Defendant Middleton also argues that he was entitled to an evidentiary hearing on his motion to dismiss the indictment based on discrimination in the selection of grand and petit jurors in the Central District of Illinois.

For the reasons set forth below, we affirm the convictions.

I. FACTS

A. The Conspiracy

Viewing the facts in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the following emerged at trial. Edward Gonzalez, who was not indicted in this case, was a major Florida-based cocaine importer. Gonzalez distributed cocaine to a national network of buyers, including defendant Randy Middleton of Denver, Colorado. In April or May of 1977, Middleton came to Gonzalez's hotel room in Miami, Florida. Middleton took about 500 grams of cocaine from Gonzalez and left the room. Soon thereafter, Middleton came back, told Gonzalez that he had sold the cocaine to some people, and turned over about $32,000. Middleton later returned with William Percival and Charles Yettke, both from the Champaign/Urbana, Illinois area. The four men then spent twenty to thirty minutes discussing the possibilities of future transactions in cocaine.

In June or July of 1977, Middleton and Gonzalez flew from New York to Indianapolis, Indiana, carrying one and one-half to two kilograms of cocaine. Percival met Middleton and Gonzalez at the airport and took them to Champaign, where they waited in a motel room while Percival sold the cocaine. Percival then paid them over $60,000 out of the proceeds.

In the fall of 1977, Gonzalez made five or six more trips to Illinois, always bringing at least two and one-half kilograms of cocaine at a price of $46,000 per kilogram. On one of these occasions, Yettke met Percival and Gonzalez in St. Joseph, Illinois (near Champaign) and paid them some money for cocaine that he had sold. On another occasion, Yettke and Percival went to Chicago to pick up cocaine from Gonzalez. The trips continued into 1978 and 1979, although at some point in 1978 Gonzalez started sending cocaine to his buyers through couriers rather than delivering it himself.

In May of 1978 Gonzalez drove from Florida to Denver, Colorado, carrying twenty-five kilograms of cocaine. Because neither Gonzalez nor any of his couriers was able to deliver cocaine to Percival in Illinois at that time, Percival, Carolyn Percival, and Yettke travelled to Denver in a rented mobile home to get some of the cocaine. Upon arriving in Denver, the Percivals and Yettke checked into separate motel rooms. Shortly thereafter, Percival and Middleton brought some cocaine to Yettke's motel room, where it was hidden until the return trip to Champaign.

During Christmas of either 1977 or 1978, the Percivals hosted a gathering at their home in Champaign at which Middleton and Yettke were also present with their wives. The evidence does not reflect whether this gathering was social or business-related.

One of the couriers who delivered cocaine for Gonzalez, Harold Slaughter, testified that between November 1978 and May 1979, he made six trips for Gonzalez to the Champaign area. On each occasion, Slaughter would contact Gonzalez shortly after arriving in Champaign to report the location of his motel room. Gonzalez would advise him that someone would be by shortly, and William and Carolyn Percival would come to the room shortly thereafter. The Percivals would pick up the cocaine from Slaughter and return to his room a few days later bringing large amounts of cash. On one occasion the Percivals cut into the packages of cocaine and sniffed it while in Slaughter's room to evaluate its quality, apparently because of problems with a previous shipment.

In June of 1979 Yettke was arrested in Champaign. A large quantity of cocaine and currency was seized from him at the time of his arrest. Thereafter, Gonzalez dispatched his couriers to Denver rather than to Champaign.

In the spring of 1980, Florida officials obtained authorization to wiretap Gonzalez's telephones. Some of the tapes were introduced into evidence at trial. In one tape, Middleton asked Gonzalez to send a courier with cocaine to Denver and indicated that he was going to talk to "the photographer." Yettke and Gonzalez both identified "the photographer" as William Percival. In a tape made on May 15, 1980, Middleton asked Gonzalez to send four kilograms of cocaine to Denver. Yettke testified that in May 1980 he obtained 500 grams of cocaine from Percival.

The defendants were indicted on May 27, 1982, along with eight other persons. Count 1 of the indictment alleged a conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Count 10 charged the Percivals with possession with intent to distribute marijuana and hashish in violation of 21 U.S.C. Sec. 841(a)(1). Counts 2-9 are not relevant to this appeal. Yettke, who was then serving a ten-year term for possession with intent to deliver cocaine, entered into a plea bargain with the government and testified against the defendants under a grant of immunity from prosecution. Gregory Quinlan (Gonzalez's buyer in Chicago) and Stephen Songer (Gonzalez's prospective buyer in California) were tried jointly with the defendants but were acquitted at the direction of the trial court before the case was submitted to the jury. Songer was acquitted because there was insufficient evidence that he had agreed to join the alleged conspiracy, and Quinlan was acquitted because of a failure of identification. All other persons either pleaded guilty or were dismissed before trial on motion of the government.

Gonzalez was convicted in January 1981 in Florida for conspiracy to import cocaine into the state of Florida, and was sentenced to thirty years imprisonment. Gonzalez testified against the defendants under a grant of immunity from prosecution.

Prior to trial, Middleton, Songer, and Quinlan moved for a severance and separate trials. The motions were denied. Early in the trial the Percivals moved for severance and Middleton renewed his severance motion, but these motions were denied as well.

Trial commenced on December 13, 1982. At the close of trial, defendants argued that the evidence reflected multiple conspiracies rather than the single conspiracy charged in the indictment. Defendants proffered a jury instruction on multiple versus single conspiracies but the court declined to give it. The jury rendered a verdict of guilty against all three defendants on Count 1, the conspiracy count, on January 6, 1983. On appeal, defendants allege that the evidence at trial proved multiple conspiracies instead of the single conspiracy charged in the indictment, and that the trial court accordingly erred in refusing to correct this fatal variance by granting their motions for severance or by properly instructing the jury on multiple conspiracies.

B. The Search and Seizure

Count 10 of the indictment charged William and Carolyn Percival with possession with intent to distribute marijuana and hashish. Although the jury found both defendants guilty, the trial court set aside Carolyn Percival's conviction on this count as against the weight of the evidence.

William Percival's conviction on Count 10 was based on a seizure of marijuana and hashish from the Percivals' residence on August 25, 1981, pursuant to a search warrant. In his affidavit in support of the search warrant request, Special Agent Herbert E. Koepp of the Drug Enforcement Agency stated that in September 1980, he was told by a known informant that the informant had obtained cocaine from Percival at Percival's residence on a number of occasions. On August 24, 1981, Koepp and other agents were conducting surveillance of the Percivals' home when a garbage truck came by and picked up five green plastic trash bags from the premises. The agents followed the garbage truck and subsequently stopped it and took custody of the five garbage bags. A search of the Percivals' garbage revealed one clear plastic bag and a number of torn pieces of clear plastic that appeared to be the...