U.S. v. Patterson

• Decision Date: 15 June 1987
• Docket Number: 85-1238,85-1239 and 85-1240,85-1237,Nos. 85-1236,s. 85-1236
• Citation: 819 F.2d 1495
• Parties: 23 Fed. R. Evid. Serv. 479 UNITED STATES of America, Plaintiff-Appellee, v. Randy Lamont PATTERSON aka Randy Brown, Marcus Wayne Edmundson, Tony Burton, Don Grogans, and Billy Ray Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1495

819 F.2d 1495

23 Fed. R. Evid. Serv. 479

UNITED STATES of America, Plaintiff-Appellee, v. Randy Lamont PATTERSON aka Randy Brown, Marcus Wayne Edmundson, Tony Burton, Don Grogans, and Billy Ray Brown, Defendants-Appellants.

Nos. 85-1236, 85-1237, 85-1238, 85-1239 and 85-1240.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 16, 1987.

Decided June 15, 1987.

Marcus S. Topel, Gregory D. Guy-Smith, San Francisco, Cal., Kurt Seibert, John Williams, San Jose, Cal., Charles Gretsch, San Francisco, Cal., Paul Delano Wolf, Oakland, Cal., for defendants-appellants.

Sanford Svetcov, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON, SKOPIL and CANBY, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

This appeal involves a multiplicity of issues, all spawned from the prosecution of a heroin distribution conspiracy. We affirm the convictions and the sentences, recognizing the district judge's outstanding efforts in conducting such a complex and exhaustive trial.

I. BACKGROUND

Unless otherwise stated in the text of this opinion, the facts are substantially as follows: Early in 1976, a criminal enterprise subsequently identified as "the Mob" began to deal heroin in San Antonio Village, a housing project in Oakland, California. The enterprise was masterminded and controlled by Felix Mitchell ("Mitchell"), the notorious "kingpin" of the enterprise. He structured the Mob as an organization and directed its covert heroin distribution activities in Oakland and in other cities. The organization was structured in such a manner that the twenty to twenty-five members served in a hierarchy of authority. Some members actually distributed the heroin on the streets, others collected the payments, while others acted as lookouts during the sales and notified the sellers on the streets of approaching police cars or undercover police officers. The organization used signals and walkie-talkies to notify the street sellers and to communicate with them during the heroin distribution periods. The proceeds from the heroin sales were delivered throughout each day to other members of the Mob up through the hierarchy. When Mitchell, at the apex of the hierarchy, received the proceeds, he would distribute payments to the Mob members for their participation.

The Mob became a lucrative organization, at times making up to $15,000 per day as a result of the heroin sales. To secure its sales areas, the Mob engaged in coercive activities which often erupted into "drug wars" with rival heroin distribution organizations. These activities included the slayings of Carlos Dorantes, Sandra Adamson, Vendetia Davis, Red Walker, Ricky Walker, Terry Hatter, and Charles Dorsey. Two other individuals, Helen Campbell ("Campbell") and Alvin Gay, were also shot, but survived the gunshot wounds they received.

The defendants, Randy Brown ("Patterson"), Marcus Wayne Edmundson ("Edmundson"), Tony Burton ("Burton"), Don Grogans ("Grogans"), and Billy Ray Brown ("Brown") were charged with conspiracy to distribute heroin under 21 U.S.C. Sec. 846. At trial, three former members of the Mob, Fred Sanders ("Sanders"), Norbert Bluitt ("Bluitt"), and Leslie Brigham ("Brigham"), who had become Federal Witness Protection Program witnesses for the government, testified to the heroin sales of the Mob, its distribution scheme and its participants and coercive activities, including the homicides. The evidence at trial consisted of the testimony of the Protection Program witnesses, other documentary evidence, extrinsic evidence, police reports and the testimony of additional witnesses.

After a mistrial, a second trial was held which resulted in the defendants being convicted under 21 U.S.C. Sec. 846 of conspiracy to distribute heroin. Felix Mitchell, who was tried with the defendants, was convicted of conspiracy to distribute heroin, as well as directing a criminal enterprise, tax evasion, and failure to file tax returns. With the exception of Don Grogans, all of the defendants received enhanced sentences as Dangerous Special Drug Offenders. Defendants Randy Patterson, Marcus Wayne Edmundson, Tony Burton, and Don Grogans jointly appeal the issues of severance, the admission of the Witness Protection Program witness testimony, the admission of coconspirator evidence as a violation of the right to confrontation, the admission of "obstruction of justice" evidence, and the denial of a motion for a new trial. Billy Ray Brown separately appeals the same issues. Patterson, Grogans, and Brown individually appeal denial of their motions to sever. Defendants also individually appeal specific alleged errors as set forth herein.

II. DISCUSSION

A. SEVERANCE

Before trial, each of the defendants moved to sever their trial from that of Mitchell. The district court denied the motion.

1. Standard of Review

We review the denial of a motion to sever under Fed.R.Crim.P. 14 for abuse of discretion. See United States v. Mills, 597 F.2d 693, 696 (9th Cir.1979). The test for abuse of discretion by the district court is "whether a joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial." United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982); see also United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980).

2. Severance from Mitchell

The defendants argue they should not have been tried with Mitchell because the evidence introduced showing his assets and income with respect to his tax evasion was irrelevant to their charge of conspiracy. In this, the defendants also posit that evidence of Mitchell's wealth was unduly prejudicial because without it the jury would not have found that the defendants were part of a conspiracy led by Mitchell.

The law regarding joinder of defendants is quite clear. See Fed.R.Crim.P. 8(b). "Joinder of multiple defendants is proper only if all of the offenses charged in the indictment arose out of the same series of transactions." United States v. Davis, 663 F.2d 824 (9th Cir.1981) (quotations omitted). A defendant charged with tax violations may be tried with other individuals charged in the same conspiracy if "[e]ven without the income tax counts evidence of the [ ] financial transactions would have been admissible...." United States v. Anderson, 642 F.2d 281, 284-85 (9th Cir.1981). Evidence of unexplained wealth is relevant in a narcotics conspiracy case if it creates a reasonable inference that the unexplained wealth came from the narcotics conspiracy. See United States v. Jabara, 618 F.2d 1319, 1321 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 70 (1980).

Here, evidence of the tax violations related directly to the conspiracy since it was the monetary evidence, the handling of large sums of money up through the hierarchy, which demonstrated the scheme of illegality. Also, Mitchell's wealth was a result of the heroin distribution plan carried out by the defendants and each of the Witness Protection Program witnesses identified each of the defendants as acting on behalf of Mitchell either as a street seller, distributor, money collector, lookout, or as one who protected the distribution scheme. Moreover, the defendants provide no explanation as to why the jurors could not fairly "compartmentalize" the conspiracy and tax evasion evidence and charges in their deliberations. See United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983). As a result, we cannot say the district court abused its discretion under Fed.R.Crim.P. 14 in denying the motions to sever. Furthermore, joinder of the defendants was proper under Fed.R.Crim.P. 8(b) since, even if error could be assumed to have occurred, it was harmless and failed to have any substantial influence on the verdict. See United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986) (citing Kotteakos v. United States 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)).

3. Individual Severance

In addition to the motions to sever from Mitchell, defendants Patterson, Brown, and Grogans individually moved to sever their trial from that of the other defendants. Their motions were denied by the district court on the grounds of judicial economy and that the defendants were charged with being a part of a conspiracy even if they had not participated in all of the overt acts the conspiracy committed.

The government conceded Patterson, Brown, and Grogans withdrew from the conspiracy by the end of 1980. [Resp. Br. at 46]. On this basis, Patterson, Brown, and Grogans argue their trial should have been severed from the other defendants' for two reasons: (1) their absence from the conspiracy after 1980 created a variance in proof--that two conspiracies rather than one were shown, and (2) even if only one conspiracy was shown, the post-1980 evidence was unduly prejudicial.

(a) Conspiracy

Viewing the evidence most favorably to the prosecution, we must decide whether any rational juror could have found a single conspiracy beyond a reasonable doubt. See United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). A single conspiracy exists, as compared with multiple conspiracies, where there is " 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir.1983), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) (quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341; 450 U.S. 985, 101 S.Ct. 1525, 67 L.Ed.2d 821; 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981)). A single conspiracy may include subgroups or subagreements. Id. The evidence need not...