U.S. v. Christian

• Decision Date: 13 March 1986
• Docket Number: 85-5005 and 85-5346,Nos. 84-5843,s. 84-5843
• Citation: 786 F.2d 203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry CHRISTIAN (84-5843), Joe L. Davis (85-5005/85-5346), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 203

786 F.2d 203

UNITED STATES of America, Plaintiff-Appellee, v. Harry CHRISTIAN (84-5843), Joe L. Davis (85-5005/85-5346),

Defendants-Appellants.

Nos. 84-5843, 85-5005 and 85-5346.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 31, 1986.

Decided March 13, 1986.

Lionel R. Barrett, Jr. (argued), Nashville, Tenn., for Joe L. Davis.

Joe B. Brown, U.S. Atty., Nashville, Tenn., Ross Alderman (argued), for the U.S.

Carol L. Solomon, Nashville, Tenn., Lionel R. Barrett, Jr. (argued), for Harry Christian.

Before CONTIE, Circuit Judge, PECK, Senior Circuit Judge and GIBSON, District Judge. ^*

CONTIE, Circuit Judge.

Joe L. Davis and Harry Christian appeal their convictions for distribution of heroin, 21 U.S.C. Sec. 841(a)(1), and conspiracy to distribute heroin, 21 U.S.C. Sec. 846, challenging the sufficiency of the evidence, several rulings on the admissibility of evidence, instructions to the jury, and sentencing. Defendant Davis appeals the district court's denial of his motion for a new trial based on the government's failure, pursuant to Davis' request, to disclose a government decision not to prosecute the government's chief witness in exchange for her cooperation in this case. For the reasons that follow, the judgments of the district court are affirmed.

I.

On April 19, 1984, defendants Joe L. Davis and Harry Christian were named in an indictment, which, in Count 1 alleged that Davis, Christian, Henry Edmondson, Wyndell Voorhies, John Johnson, and William Robinson did conspire to distribute heroin in violation of 21 U.S.C. Secs. 841(a)(1), 846. Count 3 charged that Davis distributed heroin on July 18, 1983 in violation of 18 U.S.C. Sec. 2, 21 U.S.C. Sec. 841(a)(1). Counts 2, 4, and 8 alleged that Christian violated 18 U.S.C. Sec. 2, 21 U.S.C. Sec. 841(a)(1) on June 28, 1982, September 22, 1983, and December 13, 1983, respectively.

On June 1, 1984, Davis filed a motion seeking to require the government to disclose all bargains and employment agreements with co-defendants or witnesses and the district court granted that motion. Trial was held July 20-31, 1984 and the following evidence was received.

Virginia Bowers testified that her husband Tyrone was on parole from the federal penitentiary and that she had agreed to cooperate with the Drug Enforcement Administration (DEA) in order to help her husband. Bowers agreed to buy drugs through contacts of her husband's. On July 28, 1982, Bowers told John Johnson she wanted to buy some brown heroin to sell it. Bowers testified that Johnson initially wanted to take her to Curtis Christian rather than Harry Christian, because "Harry's dope wasn't any good." Johnson went into a house with $100, came out, and the two rode around for fifteen to twenty minutes. When the two returned, Christian was standing in the doorway. Johnson went into the house, which he said was Christian's, and then went to a car, a brown Mercury. Johnson opened the car door and returned with some brown powder. Bowers identified Christian in court. On cross-examination, Bowers indicated that she was parked about ten to fifteen feet from the door of Christian's house. Bowers testified that she had seen Christian before.

Bowers contacted Henry Edmondson on about July 18, 1983 and told him she wanted to buy some brown heroin. Bowers and Agent Bell of the Tennessee Bureau of Investigation met Edmondson and picked up Wyndell Voorhies, who indicated that they could get some drugs from Joe Davis but that he would not be home until 3:30 p.m. Voorhies and Edmondson went to Joe's mother's house, while Bell and Bowers sat in the car outside Wyndell's house. Wyndell came back and said that Davis was "fixing up the package." Wyndell returned with Davis, and Bowers went with them behind Wyndell's apartment. "I was handing the money to Joe and he said, no, not this time. Wendell took the money and he gave it to Joe and Joe gave him a package and Wendell handed me the package." Bowers returned to the car and gave the package to Agent Bell. Bowers testified that Joe's last name was "Davis" and she identified Davis in court.

Bowers indicated that her utility bills were paid by the government but that she was given no salary. Bowers indicated that she received checks of $50, $75, and $100 from the government when she was in a financial bind, but that the government never gave her anything other than money for her help and never helped her husband. The government paid for Bowers' transportation and child care, and, at times, she was transported in the government's car. Bowers testified that in exchange for her cooperation, the government agreed to try to get her husband's time cut or move him closer to home. Bowers testified that she helped the DEA in order to get help with her utility bills. Kelley Goodowens, DEA agent, testified that Bowers was paid by the DEA $840 in 1982, $2,900 in 1983, and $2,450 in 1984. These payments were for gas, baby sitting, transportation, and utility bills.

Counsel for Christian attempted to question Bowers about some state drug charges against her and her husband initiated prior to her assistance and later dropped. Bowers testified, out of the presence of the jury, that there was no connection between these cases and her assistance. The court refused to allow examination before the jury on the ground that Christian could establish no connection between Bowers' assistance and dropping of the charges. Christian and Davis moved the court to allow further inquiry into the prior charge against Bowers pursuant to Fed.R.Evid. 608(b), but the motion was denied. Defendant Christian proffered the evidence of other crimes he sought to introduce to impeach Bowers. Larry Barnes, detective sargeant for the Franklin Police Department, testified that he met Tyrone and Virginia Bowers in September 1981 regarding an investigation of the two for selling "T's and Blue's." Barnes indicated that a controlled buy was made from Virginia Bowers.

Ramona Bell, special agent with the FBI, testified that she and Bowers met Edmondson and Voorhies in setting up the buy from Davis. Bell was not present at the transaction but testified that she gave Bowers $200 and received a package in return. On September 22, 1983, Bell called Edmondson and asked him to set up a buy. Bell went to Edmondson's apartment where Christian called and directed them to meet him at Wyndell Voorhies'. Bell stayed in the car, Wyndell came out and said "Harry is in there waiting for you," and Edmondson went in. Edmondson returned to the car, was given $450 by Bell, returned to the house, then brought the package of heroin to the car. As they left, a black male came out of Voorhies' apartment. Bell testified that she saw that individual in court. "He's seated to my right. He's wearing a tan and rust colored sweater over the top of a blue and white striped shirt." Edmondson gave Bell a telephone number to call for future transactions.

On December 13, 1983, Bell contacted Edmondson for help in reaching Christian. Bell and Edmondson drove past Christian's house, but Christian, in a car outside, motioned them to leave. They agreed to meet at Voorhies' apartment. Edmondson and Bell met Christian, and Bell paid Christian $1,300. Christian left, then later returned and gave Edmondson the heroin. Bell later bought heroin again from Voorhies. Bell indicated that she never saw Christian hand Edmondson anything, only that, when a horn blew, Edmondson went outside, and the next time she saw him, minutes later, Edmondson had the heroin. Edmondson told Bell that Christian gave him the heroin.

William Tucker, DEA agent, followed Bowers and Edmondson on June 28, 1982 and received the heroin. Tucker saw Johnson go into the house, then he came out and went with Bowers to Ed's Pizza. Nothing in Tucker's or his partner's report confirms Bower's story that Johnson retrieved anything from a brown-colored car on the scene. Bowers was also followed on June 28, 1982 by Agent Bernard Redd.

Henry Edmondson testified that he pleaded guilty to each charge and had no plea agreement. Edmondson testified that he used heroin, and that he helped Ramona Bell get heroin about 12 or 14 times because Bowers called him and asked him to make some purchases for her. Edmondson corroborated Bell's testimony regarding the purchase of heroin for $450 from Christian. Edmondson testified that he received the heroin from Christian and gave Christian the money. Edmondson helped Bell buy heroin for $1,300 from Christian on December 13, 1983. Edmondson testified that he knew Christian for about eight or nine years and that the last purchase of brown heroin took so long because Christian said he had to wait for Joe Davis to get off of work. Edmondson confirmed Bell's version of the September 22, 1983 buy. During Edmondson's testimony the following exchange took place:

Q. [Mrs. Solomon, Christian's counsel] Now, is it not true that you have also been indicted for some--

THE COURT: Sustain the objection.

MRS. SOLOMON: I'm sorry.

THE COURT: Ladies and gentlemen of the jury, you will absolutely disregard anything about indictment. That's improper. It's absolutely improper. On your oaths you will strike that from your mind.

Let counsel approach the bench.

(Conference at the bench.)

THE COURT: That's a cheap, dirty trick, you it is. You're not going to pull that stuff in my court. You understand that?

MRS. SOLOMON: Yes, sir.

THE COURT: You do it one more time, and I'll work on you. Step back. Don't tell me you didn't know the difference.

MRS. SOLOMON: May I ask about jumping off the cliff for the cocaine? That's what I was getting at, I forgot, I just didn't order it right.

THE COURT: Ask him what?

MRS. SOLOMON: He testified about when they caught him with cocaine he jumped off the cliff with the cocaine, and I just accidentally said indictment. That's the one in Court right now. I was going to ask him about the circumstance.

THE COURT: That's the one...