U.S. v. Dekle, 84-3382

• Citation: 768 F.2d 1257
• Decision Date: 16 August 1985
• Docket Number: No. 84-3382,84-3382
• Parties: 20 Fed. R. Evid. Serv. 86 UNITED STATES of America, Plaintiff-Appellee, v. William Ervin DEKLE, Dwight Ragans, and Ronald Mangle, Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1257

768 F.2d 1257

20 Fed. R. Evid. Serv. 86

UNITED STATES of America, Plaintiff-Appellee, v. William Ervin DEKLE, Dwight Ragans, and Ronald Mangle,

Defendants- Appellants.

No. 84-3382.

United States Court of Appeals,

Eleventh Circuit.

Aug. 16, 1985.

William J. Sheppard, Elizabeth L. White, Jacksonville, Fla., for dekle.

Robert A. Harper, Jr., Tallahassee, Fla., for Ragans.

Aaron K. Bowden, Jacksonville, Fla., for Mangle.

Appeals from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and SIMPSON, Senior Circuit Judge.

GODBOLD, Chief Judge:

Appellants William Dekle and Dwight Ragans were indicted for conspiracy to possess marijuana with intent to distribute and with possession of marijuana with intent to distribute. Appellant Ronald Mangle was charged with aiding and abetting the Dekle-Ragans conspiracy and with perjury before a grand jury. The three were jointly tried. Dekle and Ragans were convicted for conspiracy but acquitted on the possession count. Mangle was convicted for perjury and acquitted on the aiding and abetting count. We affirm.

FACTS

Viewed in the light most favorable to the government, the evidence shows that Ragans told John King and Benjamin Morris that he recently had obtained 40 pounds of King and Morris took the 40 pounds to the location where the 140 pounds had been left. They made the switch of 40 pounds for 40 pounds. Neither Ragans nor Dekle was present.

marijuana from Dekle. Ragans wanted to switch the marijuana with an equivalent amount to be taken from a batch of 140 pounds that Ragans was involved with but with which, as far as the evidence shows, Dekle had no connection.

The "new" batch of 40 pounds was then stored at King's trailer, located on a farm. Third persons not charged in this case conspired to steal the 40 pounds. As they planned the theft they saw Dekle at the farm. The theft occurred. Ragans came to the scene, accused some of the third persons of the theft and said that there would be a meeting and that he was going to get Dekle. The meeting occurred, with Ragans, Dekle and some of the third persons present, and both Ragans and Dekle made a demand for the return of the stolen marijuana. Dekle added a threat that whoever took it was going to "do a trip in the hospital." Both Dekle and Ragans demanded that the third parties take a polygraph examination the next day. The following day, Koon, one of the third persons, telephoned Dekle and told him that he was not going to take the lie detector test. Dekle responded that Koon would have to "suffer the consequences thereafter." At the farm where the 40 pounds had been stored King and Morris appeared and took the polygraph examination, administered by Mangle. Ragans and Dekle were present at the farm.

Mangle first administered the polygraph examination to King inside King's trailer. Mangle told King that during the examination he would refer to the marijuana as "merchandise" and that the test would be composed of questions about what was taken and who might have taken it. After some preliminary questions, Mangle then asked King the present location of the "merchandise," whether King was responsible for moving approximately 40 pounds of "merchandise," and if King had any knowledge as to who did it.

Upon leaving the trailer King saw Ragans and Dekle outside. Morris went inside the trailer, was given the test by Mangle, and had essentially the same colloquy with him that King had. When Morris left the trailer he had a brief conversation with Ragans and Dekle in which they asked him how he had fared. Either Ragans or Dekle said that it looked "kind of bad for Monte Koon."

Later that day Mangle told Morris in the presence of Dekle and Ragans that Morris had done well on the test. Ragans then gave $50 to Morris and King.

Several months later Koon had another conversation with Dekle and Ragans about the stolen marijuana. Koon attempted to explain to Dekle and Ragans why he did not take the polygraph test. Dekle replied that Koon still should have taken the examination.

Shortly thereafter Ragans appeared at Koon's home and told Koon that he had been sent by Dekle to tell Koon that he had to either pay back the money or return the marijuana. Koon said that, while he would pay back half the amount of stolen marijuana, he still did not admit involvement in the theft. Ragans replied that he would report this back to Dekle.

Later two unknown men appeared at Koon's home and assaulted him. Koon reported the matter to the local authorities.

A few days later Koon spoke with Dekle about the assault and Dekle stated that it had become "... out of his control ..." as some people had come from Atlanta and he had shown them the location of Koon's home. Dekle also expressed anger that Koon had reported the incident to the police. Koon asked Dekle if Ragans had reported Koon's offer to pay back half the marijuana, and Dekle replied that this had not been communicated to him. The following evening Koon revisited Dekle and was told that Dekle had checked with the "people" and that it was acceptable for Later Mangle appeared and testified before the federal grand jury, denying giving polygraphs concerning marijuana and denying having any conversations to that effect with either Dekle or Ragans.

Koon to pay back half of the marijuana as he had earlier proposed.

The grand jury returned an indictment charging Ragans and Dekle with conspiracy to possess marijuana with intent to distribute and with possession with intent to distribute. It charged Mangle with aiding and abetting the conspiracy and with the substantive offense of perjury committed before the grand jury. Each defendant moved for a severance, the motions were denied, and they were tried together. The foreman of the grand jury testified in the presence of the jury to the materiality of the representations made by Mangle before the grand jury. Ragans and Dekle were convicted on the conspiracy count, acquitted on the possession count. Mangle was acquitted on the aiding and abetting count and convicted on the perjury charge.

DISCUSSION

1. Variance.

Dekle contends there was a fatal variance between the indictment and the evidence introduced at trial. The basis of his contention is that the government did not prove his knowledge of or involvement with the 140 pounds of marijuana but at most proved his involvement in a separate conspiracy to possess with intent to distribute the 40 pounds. Assuming arguendo that the 140 pound transaction involved a separate conspiracy, there is no fatal variance. The indictment charged Ragans and Dekle with conspiring to possess with intent to distribute marijuana from February 1983 to July 1983. The evidence at trial established, with respect to the 40 pounds, such a conspiracy between the two of them and within the dates indicated.

The existence of multiple conspiracies requires reversal only where the defendant's involvement in a particular conspiracy is not the conspiracy charged in the indictment. See, e.g., U.S. v. Barnes, 681 F.2d 717 (11th Cir.1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983); U.S. v. Gold, 743 F.2d 800 (11th Cir.1984) (variance exists where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations).

2. Severance.

Appellant Mangle was not charged as a co-conspirator with Ragans and Dekle but with aiding and abetting that conspiracy and with perjury before the grand jury. He contends that the crime of aiding and abetting a conspiracy is not recognized in this circuit, and, therefore, he should not have been tried jointly with Ragans and Dekle. See Fed.R.Crim.P. 8(b). Mangle was acquitted on the aiding and abetting count. He argues that the issue of whether aiding and abetting a conspiracy is a crime is not moot because only if the question can be answered affirmatively could he be tried jointly with the other appellants. We disagree and do not reach the question because the perjury count provided sufficient grounds for joining Mangle with Ragans and Dekle.

Joinder is permitted under Rule 8(b) even though not every defendant is charged with every offense in the indictment. The relevant inquiry is whether all the charges arose out of the same series of acts or transactions. U.S. v. Corbin, 734 F.2d 643 (11th Cir.1984). Mangle was charged with and convicted of perjury, which prohibits making false, material declarations before a federal grand jury. Those declarations concerned whether he administered polygraph tests to various persons to determine who had stolen the 40 pounds of marijuana that Ragans and Dekle had conspired to possess with intent to distribute. Proof of the perjury involved proving one phase of the Ragans-Dekle conspiracy. The perjury charge and the conspiracy charge arose out of the same transaction, and there was no misjoinder under Rule 8(b). See Corbin, supra (where proof of perjury charges required proof of knowledge of substantive drug offenses, in that allegedly perjured testimony was uttered in response to questions concerning drug offenses, joint trial did not amount to misjoinder).

Mangle was also not entitled to a severance under Rule 14, because he has not demonstrated that he has suffered prejudice so compelling that it could not be...