U.S. v. Garcia
| Decision Date | 28 April 1986 |
| Docket Number | 85-1460,Nos. 85-1427,s. 85-1427 |
| Parties | UNITED STATES of America, Appellee, v. Jose A. GARCIA, Appellant. UNITED STATES of America, Appellee, v. Thomas W. BARKER, Appellant. UNITED STATES of America, Appellee, v. Dana G. STEPHENSON, Appellant. UNITED STATES of America, Appellee, v. Thomas LAWRENCE, Appellant. UNITED STATES of America, Appellee, v. Roberto TRELLES, Appellant. to 85-1463. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alan G. Stoler, Miles W. Johnston, Jr., James M. Kelley, Gary R. Pearson & John Stevens Berry of Lincoln, Neb., for appellants.
Robert F. Kokrda, Omaha, Neb., for appellee.
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
Jose A. Garcia, Thomas W. Barker, Dana G. Stephenson, Thomas Lawrence, and Roberto Trelles appeal their convictions on various counts related to a conspiracy to possess and distribute controlled substances. The jury found all appellants guilty of conspiracy to distribute and of possession with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a) & 846. 1 In addition, the jury found each appellant guilty of several other varied offenses. The District Court 2 entered judgment against five 3 of the original seven defendants and granted in favor of the other two defendants a judgment of acquittal notwithstanding the verdict. 4 The five convicted defendants now appeal, challenging both their convictions and sentences. We affirm.
The essence of the government's case is that Stephenson and Garcia were partners in buying cocaine and distributing it in Lincoln, Nebraska and the surrounding area. They obtained the cocaine from Trelles in Miami, Florida, and stored the cocaine at the apartment they rented under assumed names. Stephenson and Garcia would occasionally meet at the apartment (Garcia-Stephenson apartment), having arranged their meetings by telephone using the code language of "working out at the Y." According to the government, Stephenson sold cocaine to Tiffany Tyrrell and Debra Frazier (who later married Tyrrell), who then distributed the cocaine to their customers, including several police officers. Stephenson also allegedly sold cocaine to Barker, Lawrence, and Russell Runyan. Barker, in turn, sold cocaine to various customers, including Jay Jarvis, who resold it to others. During the time of the conspiracy, Stephenson lived with Janet Languis at her home in Lincoln.
The investigation began in 1983 when the Lincoln Police Department received information that Tiffany Tyrrell was dealing in cocaine and other controlled substances. Undercover police officers purchased cocaine from Tyrrell on several occasions and then broadened the investigation by putting a pen register 5 on Tyrrell's telephone and on other telephones. From the data culled from the pen registers, the police obtained orders to wiretap Stephenson's telephone and to place an eavesdropping device in the Garcia-Stephenson apartment. The police combined wiretap information, physical surveillance, and Tyrrell's statements to undercover police officers and concluded that Garcia previously had traveled from Lincoln to Florida under an assumed name. Physical surveillance established that the participants in the drug conspiracy met occasionally in bars and at each other's residences. From the wiretaps, the police learned that Stephenson planned a trip from Lincoln to Miami in late March or early April 1984.
Stephenson traveled to Miami in early April 1984. Upon returning from Florida, Stephenson left the Eppley, Nebraska airport and arrived in Lincoln with a passenger. The sixty mile trip had taken him approximately one hour and a half. The police followed Stephenson to a bar, and then to the Garcia-Stephenson apartment. Stephenson entered the apartment alone and left a few minutes later. The police immediately arrested Stephenson without a warrant and searched him, his briefcase, and his car. The search yielded an airline ticket, business cards, and scraps of paper bearing various notations and telephone numbers. In Stephenson's car, the police found a small plastic tube or "coke straw" which contained cocaine. Later, pursuant to search warrants, the police found cocaine at the Garcia-Stephenson apartment and at Stephenson's residence.
In June 1984, a federal grand jury indicted appellants and five others for conspiracy to distribute and possession with the intent to distribute cocaine, and related offenses. Before trial, three of those indicted--Tiffany Tyrrell, Debra Frazier Tyrrell, and Russell Runyan--entered into plea agreements, and then testified against appellants at trial.
Appellants assert several grounds for overturning their convictions and reversing their sentences. According to appellants, the District Court committed reversible error by refusing to grant their motions for severance; by not allowing them to cross-examine certain prosecution witnesses about the witnesses' gambling activities; by allowing the testimony of three former co-defendants whose plea agreements rewarded them for such testimony; by refusing to suppress evidence culled from the wiretaps and eavesdropping devices; by refusing to suppress evidence seized from one of the appellants in a warrantless search; and by deciding there was sufficient evidence to allow the question of conspiracy go to the jury. In addition, appellants contest their sentences on the ground that the District Court sentenced them more harshly than the defendants who pled guilty and then testified against appellants at trial.
Appellants contend that the District Court erred in refusing to grant their pretrial motions for severance, both as to counts and as to defendants. Assuming that this issue was properly preserved for appeal (which is not entirely clear), we disagree. A motion to sever rests within a district court's sound discretion, and we will not reverse that decision absent a showing of clear prejudice indicating an abuse of discretion. United States v. Love, 692 F.2d 1147, 1152 (8th Cir.1980). "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. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). Appellants must show that the denial of severance clearly and actually prejudiced them. United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984).
Here, the proof of charges against each appellant was inter-woven with the proof of charges against other appellants. Discrete items of evidence at trial usually applied to at least two of the original defendants, and frequently to virtually all of them. We believe appellants have not met their burden of showing that the jury was unable to compartmentalize the evidence against them. Although each appellant was found guilty of conspiracy, each was also found guilty of varying numbers of the underlying offenses, indicating that the jury was able to distinguish between counts and defendants, and was not confused. Moreover, the District Court was not required to sever defendants or counts simply because the evidence may have been more damaging against one appellant than the others. Love, 692 F.2d at 1152. After reviewing the evidence in light of the jury verdict, we find that the District Court did not abuse its discretion in denying appellants' motions to sever the trials or counts.
Appellants next argue that the District Court erred by restricting their cross-examination of prosecution witnesses who were former co-defendants about the witnesses' and the appellants' gambling activities. However, appellants failed to make timely objections to the District Court's rulings limiting the scope of cross-examination. Trial Record at 1102, 1481 & 2272-73. Accordingly, the issue is not properly before us. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Cole v. Hunter, 726 F.2d 434, 436 (8th Cir.1984). Despite appellants' failure to make timely objections at trial, we may review the District Court's rulings under the standard of plain error. Fed.R.Crim.P. 52(b); Hawkins v. Missouri Pacific Railroad, 188 F.2d 348, 350 (8th Cir.1951). From our review of the record, we also are satisfied that the District Court's rulings limiting cross-examination on the subject of gambling did not affect appellants' substantial rights or result in a miscarriage of justice. See United States v. Berzinski, 529 F.2d 590, 594 (8th Cir.1976); Bernard v. Omaha Hotel, Inc., 482 F.2d 1222, 1224 (8th Cir.1973).
Appellants contend that it was reversible error for the District Court to allow their former co-defendants to testify against them at trial. Appellants argue that Tiffany Tyrrell, Debra Frazier Tyrrell, and Russell Runyan secured plea agreements that rewarded them for testifying against appellants and assuring that the jury convicted appellants. Essentially, appellants invite this Court to reconsider the issue initially raised in United States v. Waterman, 732 F.2d 1527, 1533 (8th Cir.1984) (). We believe, however, that appellants have mischaracterized the plea agreements in this case. Whatever the current status of the Waterman issue, the plea agreements here simply do not present that issue.
In Waterman, a panel of this Court decided that a plea agreement which the Court read as conditioning leniency to the plea-bargaining defendant on his testimony's leading to Waterman's conviction created a risk of perjury so great that even the jury's full knowledge of the agreement was insufficient to assure the fundamental fairness required by the due process clause of the Fifth Amendment. Accordingly, the panel held that the admission of such testimony is reversible error. Id. at 1530-33. The full Court then granted...
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