U.S. v. Peveto, s. 88-1061

• Decision Date: 26 July 1989
• Docket Number: Nos. 88-1061,88-1113 and 88-1116,s. 88-1061
• Citation: 881 F.2d 844
• Parties: 28 Fed. R. Evid. Serv. 604 UNITED STATES of America, Plaintiff-Appellee, v. Burl Allen PEVETO, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Melvin Ray RODGERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl Eugene HINES, a/k/a Geno Hines, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 844

881 F.2d 844

28 Fed. R. Evid. Serv. 604

UNITED STATES of America, Plaintiff-Appellee, v. Burl Allen PEVETO, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Ray RODGERS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carl Eugene HINES, a/k/a Geno Hines, Defendant-Appellant.

Nos. 88-1061, 88-1113 and 88-1116.

United States Court of Appeals Tenth Circuit.

July 26, 1989.

Order on Denial of Rehearing and Rehearing En Banc Oct. 30, 1989.

Don Ed Payne, Payne and Welch, Hugo, Okl., for defendant-appellant Burl Allen Peveto, Jr.

Julian K. Fite, Muskogee, Okl. (Betty Outhier Williams, Muskogee, Okl., was also on the brief), for defendant-appellant Melvin Ray Rodgers.

Stephen J. Greubel, Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant Carl Eugene Hines.

Paul G. Hess, Asst. U.S. Atty., E.D. Okl., Muskogee, Okl. (Roger Hilfiger, U.S. Atty., E.D. Okl., Muskogee, Okl., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and SAFFELS, District Judge ^*.

HOLLOWAY, Chief Judge.

These three appeals were companioned for argument. Defendant Carl Eugene

Hines (Hines) appeals his five count conviction for violating and conspiring to violate narcotics laws and for traveling in interstate commerce to promote narcotics manufacturing. Defendant Burl Allen Peveto, Jr., (Peveto) appeals his one count conspiracy conviction. We affirm their convictions and sentences. Defendant Melvin Ray Rodgers (Rodgers) appeals his four count conviction for violating and conspiring to violate narcotics laws, arguing in part that co-defendant Hines presented an antagonistic and mutually exclusive defense and that the trial court abused its discretion in denying his motion to sever. We agree and because Rogers was denied a fair trial, we reverse his conviction and remand for a new trial.

I Factual Background

On June 24, 1987 special Drug Enforcement Administration (D.E.A.) agents stopped a man named Gilbert Glasgow (Glasgow). While under surveillance Glasgow had purchased some laboratory equipment for Hines. Glasgow R. 5-7. The equipment included a boiling flask, separatory funnels, glass stoppers, plastic tubing, elbow fittings and stopcock grease. Glasgow R. 8-9. The United States Attorney's Office agreed not to prosecute Glasgow in return for his help in the investigation of Hines and Peveto, a disbarred lawyer. Glasgow R. 6.

Glasgow had known Peveto and Hines for several years. Glasgow R. 5. Hines introduced Rodgers to Glasgow on approximately June 21 or 22, 1987. Glasgow R. 5. On June 23 and 24, 1987, Rodgers rented a room at the Winchester Inn in Moore, Oklahoma. III R. 167-168. Glasgow delivered the laboratory equipment he had purchased to Hines and Rodgers at the Winchester and talked with them about the equipment and whether it met their expectations. Glasgow R. 11, 27-30.

A. Search of the Bryan County House

The investigation continued and on August 1, 1987 a home located in Bryan county, which belonged to Rodgers' brother, was searched. III R. 23-24. There was no furniture in the home, but numerous laboratory supplies were found, including beakers, flasks, a large crockpot containing amber colored liquid, an eggwhip attached to a rubber hose, a bottle of hydrogenchloride gas, rubber tubbing, and acetone. III R. 37-39. There was a dense fog in the house and a "very strong odor of ether." III R. 23-24. A three foot by four foot mirror was found in the bathroom with a large amount of white powdery substance on it, later determined to be amphetamine. III R. 39, 80-82. Round paper filters were found near the mirror, along with a triple beam scale, and some packaged amphetamine. III R. 39. Fourteen pounds of amphetamine were found and enough amphetamine oil to manufacture another 30 pounds. ¹ III R. 84-85. Glasgow said that some of the laboratory equipment at the house was equipment he had purchased for Hines. Glasgow R. 8-10.

Two loaded handguns were also found in the Bryan county home. III R. 48-49. Rodgers, Hines' wife, and co-defendant John Williams were arrested and taken into custody. III R. 24-25. Hines was found hiding in the attic and was also arrested and taken into custody. III R. 25-26, 54-55.

B. Search of Hines' and Peveto's Apartments

According to Hines' trial testimony, he and Peveto moved from Sherman, Texas to some apartments in Irving, Texas in July of 1987. V R. 478. Hines told Glasgow on July 7, 1987 that he wanted to purchase some apartments for dope houses. Glasgow R. 35-36. When talking with Glasgow about who would assist in the purchase of On August 5, 1987, Peveto's apartment was searched and Peveto was arrested. ² A van registered to Hines' son, and seen earlier the same day at Hines' apartment, was found in Peveto's locked garage. IV R. 281-282. Precursor chemicals ³ were found inside the van. III R. 177-180. D.E.A. chemist Goldstein testified that 120 pounds of amphetamines could have been manufactured with the chemicals found in the van. IV R. 332. There was evidence that the ether found in the van was similar to that found in the Bryan county home. II R. 58. A traffic citation issued to Peveto was found. IV R. 315. A set of triple beam scales, a set of electric scales, a minuscule amount of amphetamine, a number of bottles, and some stickers were also found in Peveto's apartment. III R. 130, 180; IV R. 315-316.

                the houses Hines "wrote the word 'lawyer' on a piece of paper and pointed behind him."    Glasgow R. 39.  Glasgow knew that Peveto was a lawyer and thought Hines was referring to Peveto.  Glasgow R. 39.  Glasgow had talked with Hines before moving to Irving.  Glasgow R. 40.  And when Hines moved to Irving he gave Glasgow both his and Peveto's new telephone numbers.  Glasgow R. 37-38
                

On the same day Hines' apartment was searched. ⁴ A receipt for the chemicals matching those found in the van at Peveto's apartment and costing $6,888.18 was found. IV R. 262-263. Approximately one thousand small bottles were found in the garage, along with some stickers. IV R. 237.

Rodgers, Hines, Peveto, and Williams were charged in a seven count indictment. Williams alone was charged in count five with possession of cocaine; the jury acquitted him of that charge and all other charges. Rodgers was charged with knowingly and intentionally manufacturing amphetamine/methamphetamine in count one; possession with intent to distribute amphetamine/methamphetamine in count two; possession of amphetamine oil with intent to manufacture amphetamines in count three; and conspiracy to manufacture and distribute amphetamine/methamphetamine from May 29, 1987 to August 5, 1987 in count four, violations of 21 U.S.C. Sec. 841(a)(1) (1982), 18 U.S.C. Sec. 2 (1982) and 21 U.S.C. Sec. 846 (1982). Hines was charged in those same four counts, and in addition, was charged in count six with traveling in interstate commerce with the intent to promote narcotics manufacturing, a violation of 18 U.S.C. Sec. 1952 (1982) and 18 U.S.C. Sec. 2 (1982). He was also charged in count seven with the knowing and intentional possession of a firearm as a felon, in violation of 18 U.S.C. Sec. 922(g)(1) (1982) and 18 U.S.C. Sec. 2 (1982). Peveto was charged only with conspiracy.

C. Hines' Defense

Hines presented his defense first. To Rodgers' surprise, he put on evidence to show that he was working as a government agent. Revere Christophe, an employee of the Harrison County Sheriff's office, was introduced to Hines in 1984 or 1985 by Clifford Lee, a detective with the Oklahoma City Police Department. IV R. 375. Christophe talked to Hines about his desire to work as an agent and Hines in fact assisted in narcotics investigations. IV R. 375. Charles Lugo, supervisor for intelligence of the Drug Enforcement Administration in the Department of Justice, Los Angeles Division, said that Hines worked as a informant in a heroin trafficking investigation in the Dallas area in 1985. IV R. 394. And Special F.B.I. agent Michael Miller testified that he met with Hines and Lee in March of 1987 to discuss the possibility of Hines becoming an informant and said Hines said that he was working to set up drug dealers for Lee, so that he could be approved as an informant. IV R. 443-446. He said that he "came in contact with Mr. Peveto" and that he had a woman named Jo Jo Butler buy narcotics from Rodgers. IV R. 445-446. He said that he became acquainted with Rodgers and Peveto "so [he] could build a foundation to turn into the parole board to do the next case on." IV R. 449. Hines admitted buying glassware and chemicals, but said it was all part of his work as an informant. IV R. 448-457.

they specifically discussed information regarding Peveto. IV R. 400-402.

D. Rodgers' Defense

Rodgers was last to put on his defense. He had lived in the home owned by his brother in Bryan county, but had returned the home to his brother just weeks before the search. V R. 559-560. He said that on the day of the search he had gone to the house to pick up some appliances and furniture. V R. 542. A car which he had sold Hines earlier was at the house, so he knew Hines was there. V R. 543. He said that after he had entered the house, Hines would not let him leave so that he was there when the house was searched. V R. 544-545. He saw the weapons and said he was afraid to leave against Hines' will. V R. 544-545.

Rodgers' attorney objected strenuously when Hines elicited testimony supporting his defense. IV R. 445. See also IV R. 403-404. The trial court overruled the objection, refusing to grant a severance. IV R. 445. Rodgers had no record of previous felony or misdeameanor convictions. V R. 539. The only evidence that he was involved in prior narcotics dealing was presented through Hines' testimony in support of his defense. IV R. 446. And Hines' attorney relied in closing argument upon the testimony regarding Rodgers' drug involvement to strengthen Hines'...