880 F.2d 55 (8th Cir. 1989), 88-1464, United States v. Jones

Docket Nº:88-1464, 88-1465, 88-1526, 88-1535 and 88-1756.
Citation:880 F.2d 55
Party Name:UNITED STATES of America, Appellee, v. Paul H. JONES, Appellant. UNITED STATES of America, Appellee, v. Richard L. JONES, Appellant. UNITED STATES of America, Appellee, v. Toni PALAZZOLO, Appellant. UNITED STATES of America, Appellee, v. J.W. PHILYAW, Appellant. UNITED STATES of America, Appellee, v. Michael J. PALAZZOLO, Appellant.
Case Date:July 07, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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880 F.2d 55 (8th Cir. 1989)

UNITED STATES of America, Appellee,


Paul H. JONES, Appellant.

UNITED STATES of America, Appellee,


Richard L. JONES, Appellant.

UNITED STATES of America, Appellee,


Toni PALAZZOLO, Appellant.

UNITED STATES of America, Appellee,


J.W. PHILYAW, Appellant.

UNITED STATES of America, Appellee,


Michael J. PALAZZOLO, Appellant.

Nos. 88-1464, 88-1465, 88-1526, 88-1535 and 88-1756.

United States Court of Appeals, Eighth Circuit

July 7, 1989

Submitted Nov. 14, 1988.

Rehearing Denied in No. 88-1756 Aug. 10, 1989.

Rehearing Denied in Nos. 88-1464, 88-1465 and 88-1535 Aug. 23, 1989.

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[Copyrighted Material Omitted]

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Daniel Reardon, Dennis Hoffert, David Freeman, Federal Public Defender, St. Louis, Mo., for appellants.

Michael Fagan, Asst. U.S. Atty., St. Louis, Mo., for appellee.

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Before McMILLIAN and BOWMAN, Circuit Judges, and BOGUE, Senior District Judge. [*]

BOWMAN, Circuit Judge.

Each of the five appellants was charged with drug-related offenses in a six-count superseding indictment. Richard L. Jones, Toni V. Palazzolo, and Paul H. Jones were charged in Counts I and II with distributing and aiding the distribution of cocaine. See 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. J.W. Philyaw, Michael J. Palazzolo, Toni Palazzolo, and Richard and Paul Jones were charged in Count III with conspiring to possess and distribute marijuana and/or cocaine. 1 See 21 U.S.C. Sec. 846. Philyaw, Michael Palazzolo, and Richard Jones were charged in Count IV with possession with intent to distribute cocaine. See 21 U.S.C. Sec. 841(a)(1). Michael Palazzolo was charged in Count V with being a felon in possession of a firearm. See 18 U.S.C. Sec. 922(g). And Philyaw was charged in Count VI with traveling in interstate commerce with intent to distribute cocaine. See 18 U.S.C. Sec. 1952(a)(3).

The trial commenced on January 26, 1988 and on February 3, 1988 the jury found each of the defendants guilty as charged. The District Court 2 entered judgment and the defendants were fined and sentenced to prison. Their appeals followed, with Philyaw, Paul Jones, and Richard Jones filing a joint brief and Michael Palazzolo and Toni Palazzolo filing separate briefs.


We turn first to the issues raised by Philyaw, Paul Jones, and Richard Jones.


Philyaw and the Joneses first argue that the District Court erred by admitting evidence of Michael Palazzolo's previous convictions and "prior bad acts." They argue that the evidence was "in no way connected" to any conspiracy involving them and that it was highly prejudicial.

To resolve this issue, we distinguish the evidence of Michael Palazzolo's prior convictions from other evidence of his drug-related activities. Contrary to appellants' argument, Michael Palazzolo's prior convictions were not introduced to prove the conspiracy charged in Count III, but to prove Count V, the firearms charge against Michael Palazzolo. The trial judge made this clear, explicitly instructing the jury that the "prior convictions of Michael Palazzolo ... are to be considered only with regard to the gun possession charge against him. And only Michael Palazzolo." 4 Trial Transcript (Tr.) at 32. We have no reason to believe that the jury failed to follow the trial court's instruction. The convictions were properly admitted to prove Count V.

Appellants' argument that the trial court erroneously admitted evidence of Michael Palazzolo's "prior bad acts" stems from a misapprehension of the government's theory of the case. 3 The superseding indictment charges appellants with joining a drug distribution conspiracy involving Michael and Toni Palazzolo that had been operative since 1981. See Designated Record (D.R.) at 23 (alleging that an overt act of conspiracy occurred in July 1981); see also Bill of Particulars, D.R. at 116

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("No precise beginning date can be ascribed to the conspiracy; however, it was in existence as of July 21, 1981 and continued with various known and unknown coconspirators continuing, joining, leaving and/or re-joining the conspiracy through June 22, 1987."). The evidence to which appellants object showed that on a number of occasions from 1981 through 1986 Michael Palazzolo possessed significant amounts of marijuana, cocaine, and cash. 4 By presenting evidence of these drug-related activities the government sought to establish that Philyaw and the Joneses joined not merely a short-term "cocaine combine," Brief for Philyaw and Joneses at 26, but, as charged, a continuous, "nearly six-year-[old] ... drug enterprise." Brief for Government at 19. In other words, evidence of Michael Palazzolo's drug-related activity throughout the 1980s was evidence of the very conspiracy charged against all the named defendants. The evidence thus went directly to the crime charged and fell outside the purview of "prior bad acts." See United States v. Black, 692 F.2d 314, 316 (4th Cir.1982); see also United States v. Cerone, 830 F.2d 938, 948 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988).


Appellants next argue that Paul Jones's constitutional rights were violated when the District Court refused to reopen the evidence to allow him to testify.

The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion. United States v. Walker, 772 F.2d 1172, 1177 (5th Cir.1985); United States v. Larson, 596 F.2d 759, 778 (8th Cir.1979). Appellants assert, without citing a case that so holds, that because the right to testify "reaches to the very heart of" the adversarial process, whether to reopen the evidence to allow a criminal defendant to testify should not be left to the trial court's discretion.

Although criminal defendants have a constitutional right to testify on their own behalf, the right must sometimes " 'bow to accommodate other legitimate interests in the criminal trial process.' " Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973)). Accord Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988). Unquestionably, the need for order and fairness in criminal trials is sufficient to justify firm, though not always inflexible, rules limiting the right to testify; and, of course, numerous rules of undoubted constitutionality do circumscribe the right. See Rock, 483 U.S. at 55-56 n. 11, 107 S.Ct. at 2711 n. 11; Ortega, 843 F.2d at 261; cf. Chambers, 410 U.S. at 302, 93 S.Ct. at 1049 ("In the exercise of [the right to present witnesses], the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."). The constitutionality of a rule limiting a criminal defendant's right to testify depends on whether the limitations the rule places on exercise of the right are justified by countervailing interests. See Rock, 483 U.S. at 56, 107 S.Ct. at 2711-12.

The rule generally limiting testimony to the evidence-taking stage of trial does not unconstitutionally infringe upon a defendant's right to testify. While placing

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only a minor limitation on the right, the rule promotes both fairness and order in trials, interests which, of course, are crucial to the legitimacy of the trial process. 5 In the interests of fairness and order, it simply imposes a commonsense requirement that the right to testify be exercised in a timely fashion. And consonant with the Supreme Court's admonition in Rock, the rule is not "arbitrary or disproportionate to the purposes [it is] designed to serve." Rock, 483 U.S. at 57, 107 S.Ct. at 2712. In contrast to the state law struck down in Rock, which left the trial court no discretion to admit a criminal defendant's hypnotically refreshed testimony, under the rule at issue here the district court retains discretion to reopen the evidence to allow the defendant to testify. Without reasonable rules regulating the presentation of evidence and arguments, courts could not effectively function. We find here no constitutional infirmity. 6


We next consider issues of joinder and severance raised by Michael and Toni Palazzolo.

The joinder and severance issues in this case are governed by Federal Rules of Criminal Procedure 8 and 14. 7 Rule 8 establishes the requirements for joinder of offenses or defendants in the same indictment. Rule 14 allows the trial court to order severance, even though joinder of offenses or defendants is proper under Rule 8, if it appears that the defendant or government is prejudiced by the joinder. The objective of both Rules is to balance the prejudice inherent in joint trials against the interests in judicial economy.


Michael Palazzolo first argues that the District Court erred by failing to sever for separate trial the firearms charge (Count V) from the other charges. He argues that joinder of the offenses was improper under Rule 8(a), or in the alternative, Rule 14.

In arguing the propriety of joining the firearms charge with the narcotics charges, both Palazzolo and the government rely on Rule 8(a) rather than 8(b). This is quite logical, considering the language and structure of Rule 8, and there is precedent in this Circuit for basing joinder of offenses arguments in cases such as this

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on Rule 8(a). See, e.g., United States v. Moeckly, 769 F.2d 453, 464-65 (8th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct...

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