U.S. v. Acosta, 84-1205

• Decision Date: 06 June 1985
• Docket Number: No. 84-1205,84-1205
• Parties: 18 Fed. R. Evid. Serv. 365 UNITED STATES of America, Plaintiff-Appellee, v. Manuel ACOSTA, Bobby Ray Weempe, Trinidad Aranda, Maria Aranda, Clarence Reynolds, Frankie Cooper, Billy Mel Alford, Donna Alford and Herbert Arney, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 671

763 F.2d 671

18 Fed. R. Evid. Serv. 365

UNITED STATES of America, Plaintiff-Appellee, v. Manuel ACOSTA, Bobby Ray Weempe, Trinidad Aranda, Maria Aranda, Clarence Reynolds, Frankie Cooper, Billy Mel Alford, Donna Alford and Herbert Arney, Defendants-Appellants.

No. 84-1205.

United States Court of Appeals Fifth Circuit.

June 6, 1985.

Max Christenson, Odessa, Tex., (court-appointed), for Bobby Weempe.

Vince D'Angelo, Albuquerque, N.M., for Trinidad Aranda & Maria Aranda & Manuel Acosta.

Clarence Reynolds, pro se.

James H. Anderson, Dallas, Tex., for Clarence Reynolds.

Lucien B. Campbell, Federal Public Defender, Kevin E. Shannon, Asst. Federal Public Defender, El Paso, Tex., for Frankie Cooper.

James H. Anderson, Dallas, Tex., for Reynolds, Billy Mel Alford, Herbert Arney and Donna Alford.

Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C., plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, RUBIN and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

The appellants comprise nine of sixteen defendants convicted in the federal district court in the Western District of Texas on one or more counts of an eleven-count indictment. Count 1 charged all defendants with conspiracy to possess in excess of 1000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 and Counts 2 through 11 charged various combinations ¹ of the alleged coconspirators with possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

The following issues have been raised on appeal by several of the appellants: (1) error by the trial court in not submitting the entire charge to the jury in writing; (2) error by the trial court in denying a James hearing and in admitting hearsay evidence prior to the establishment of a conspiracy; (3) insufficient evidence as to the substantive counts; and (4) insufficient evidence as to the conspiracy count. Additionally, individual appellants have raised the following issues: (1) error in admitting into evidence a remote prior conviction (Herbert Arney); and (2) error in denying a motion for severance (Manuel Acosta).

For the reasons discussed in the opinion, we reverse the convictions of Donna Alford on counts 5 and 6, and of Bobby Ray Weempe and Clarence Reynolds on count 8; we vacate the conviction of Herbert Arney on count 1 and remand for an on-the-record determination of admissibility of a remote conviction and we affirm the remaining convictions.

BACKGROUND

The indictment concerned various trips from the Dallas, Texas, area to the Big Bend Park area of Texas near the Mexican border to obtain large quantities of marijuana and bring it back to the Dallas area for packaging and distribution. Typically, a man and a woman would travel together in a motor home or recreational vehicle allegedly to give the appearance of a vacationing couple. They would be met by other named coconspirators and Spanish-speaking individuals who would load the vehicle with large trash bags full of marijuana. The alleged "mastermind" of the conspiracy, Billy Mel Alford, would pay the couple for driving the vehicle. Some individuals named as coconspirators participated only at one or the other end of the operations. Four members of the conspiracy testified for the government as its principal witnesses: Carol Gordon, Robert Bearden, Sandra Buck and Sheldon Barnum. All of these witnesses had been involved in the driving of the motor vehicle phase of the operations, thus coming into contact with the other conspirators in both Dallas and the Big Bend Park area.

The specific substantive counts involved trips made by the individuals listed in parentheses infra: on or about October 31, 1980, (count 2) (Bearden and Buck); on or about November 30, 1980 (count 3) (Bearden, Buck, and Sandra Hallett); on or about June 9, 1982 (count 4) (Bobby Ray Weempe arrested while driving a Winnebago loaded with 1315 pounds of marijuana); on or about July 1, 1982 (count 5) (Barnum and Hallett); on or about July 15, 1982 (count 6) (Barnum and Hallett driving to Big Bend Park); (Barnum and Melinda Altman driving back to Dallas); on or about August 13, 1982 (count 7) (Barnum and Donna Alford's younger sister); on or about September 17, 1982 (count 8) (Barnum and Buck); in October 1982 (count 9) (Barnum and Buck); on or about December 21, 1982 (count 10) (Fred and Carol Gordon with Frankie Cooper assisting in the vehicle's repair en route); on or about January 22, 1983 (count 11) (Fred and Carol Gordon accompanied by Jose Lozano who was instructed to stay out of sight in the Big Bend Park area).

The details of these trips are set out in full in the opinion when relevant to the issues raised on appeal. Additionally, other events which transpired as part of the conspiracy but did not result in substantive counts in the indictment were described in the evidence and are described in detail in the opinion when needed to resolve the issues on appeal.

ANALYSIS

I. JURY CHARGE

The charge to the jury was given orally by the district court. Appellants Clarence Reynolds, Billy Mel Alford, Donna Alford, and Herbert Arney contend that the trial court abused its discretion in denying the defendants' motion requesting that the entire charge to the jury be submitted to the jury in writing given that a portion of the charge was submitted to the jury as written The jury's two inquiries were:

answers to two questions from the jury during its deliberations.

Would you define again what is the definition of "constructive possession" in regard to the counts in the "Western District of Texas" when some of those indicted were arrested for allegedly carrying out illegal acts in the Dallas area?

and

Does a person have to have either actual or constructive possession of an illegal amount of marijuana to be charged with conspiracy to transfer, possess and distribute marijuana?

Appellants urge that the particular written answers repeating portions of the oral charge that were received by the jury were heavily weighted towards the government's position, and that in view of the complexity of the issues of conspiracy and constructive possession, the jury should have had before it all of the charge in writing as to those issues in order to consider the charge as a whole ² and to avoid confusion by the jury Whether or not to use a written charge and whether or not to reply to a jury's request for additional instructions are both matters properly determined by the sound discretion of the trial judge. See United States v. Neiss, 684 F.2d 570, 572 (8th Cir.1982); Stephens v. United States, 347 F.2d 722, 725 (5th Cir.), cert. denied, 382 U.S. 932, 86 S.Ct. 324, 15 L.Ed.2d 343 (1965). Thus, there is no error in the district court's refusal to submit a written charge, unless in the totality of the circumstances of the case the written response to the jury's inquiries created an unbalanced charge prejudicial to the defendants. See United States v. Arrendondo-Morales, 624 F.2d 681, 690 (5th Cir.1980). As a general principle, it is proper for a trial judge to limit reinstruction to the specific request made by a jury. See, e.g., United States v. Shaw, 701 F.2d 367, 395 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984) (upholding the trial court's reinstruction on premeditation and the omission of an instruction on malice aforethought, applicable to both first and second degree murder, when the jury's request was for an explanation of the difference between the two types of murder); Neiss, 684 F.2d at 572 (upholding the trial court's refusal to include a self-defense instruction in a supplemental charge on second degree murder, malice, and manslaughter). But see United States v. Meadows, 598 F.2d 984, 987-88 (5th Cir.1979) (omission of any reference to intent in reinstructing on fraud was found to be highly prejudicial and to constitute reversible error). In Meadows, the omitted instruction may be viewed as necessarily an integral part of the issue concerning which the jury requested clarification. The government has argued in the present case that the district court was merely responsive to the specific inquiries of the jury in not giving more complete supplementary instructions.

and prejudice to the defendants. Appellants further contend that the court erred in failing to remind the jury of the burden and quantum of proof and of the presumption of innocence, and that it took no other measures to avoid prejudice to the defendants. ³

Appellants have claimed that the limitation favored the government's theory However, the question remains whether the reinstruction created an unbalanced impression of the law to the jury that was prejudicial to the appellants. This Court has expressed its concern about the dangers of incomplete supplemental instructions as follows:

                of the case.  In response to that very allegation, this Court has noted that "there is no error if the trial judge in supplemental instructions charges exactly as he was requested."   United States v. Chatham, 568 F.2d 445, 451 n. 10 (5th Cir.1978) (citations omitted).  Thus, the district court did not commit error per se by limiting its reinstructions to the specific inquiries of the jury
                

In giving additional instructions to a jury--particularly in response to inquiries from the jury--the court should be especially careful not to give an unbalanced charge. If the Judge chooses to give any additional charge and elects not to repeat the entire original charge, he should remind the jury of the burden and quantum of proof and presumption of innocence or remind them that all instructions must be considered as a whole or take other appropriate steps to avoid any possibility of prejudice to the defendant.

United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir.1970) (emphasis added). Appellants have vigorously asserted that the district...