U.S. v. Nason

• Decision Date: 07 October 1993
• Docket Number: No. 93-1166,93-1166
• Citation: 9 F.3d 155
• Parties: UNITED STATES of America, Appellee, v. Michael NASON, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 155

9 F.3d 155

UNITED STATES of America, Appellee, v. Michael NASON, Defendant-Appellant.

No. 93-1166.

United States Court of Appeals First Circuit.

Heard Oct. 7, 1993.

Decided Nov. 2, 1993.

J. Michael McGuinness, by Appointment of the Court, with whom McGuinness & Parlagreco, Salem, MA, was on brief, for defendant-appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, ME, with whom Jay P. McCloskey, U.S. Atty., Bangor, ME, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

Appellant Michael Nason was charged with conspiracy to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1) & 846 and possession of marijuana in violation of 21 U.S.C. Sec. 844(a). Following a trial in the district court, the jury found him guilty as charged. Nason requests that this court reverse his conviction and remand his case for a new trial. On appeal, Nason argues that: (1) the trial court erred in denying his motion for severance of his trial pursuant to Federal Rule of Criminal Procedure 14; (2) this error deprived him of the ability to confront and cross-examine his codefendants in violation of his Sixth Amendment rights; (3) the trial court's instructions regarding conspiracy constituted reversible error; (4) the trial court erred regarding the admission of certain pieces of evidence seized; (5) the cumulative effect of the trial court's errors constituted prejudicial error depriving him of due process and a fair trial; and (6) the pursuit of appellant for the purpose of incriminating him violated his due process rights. Finding appellant's claims to be without merit, we affirm.

BACKGROUND

The government charged Michael Nason, Ellen Finch and David Finch with conspiracy to distribute marijuana. ¹ In addition, the government alleged that Nason conspired to distribute marijuana with numerous other persons who were not indicted. The Maine Drug Enforcement Agency ("MDEA") investigation that lead to Nason's conviction focused on Room 332 of the Scottish Inn Motel in Bangor, Maine.

Between May 23 and May 29, 1992, Room 332 was registered to Nason's girlfriend, Merry Lane. Shortly thereafter, a desk clerk added Nason's name to the registration card so that his calls could be directed to the room. Nason subsequently received telephone calls in Room 332 and supplies were delivered by the motel maid to him in Room 332. Many individuals visited Room 332, staying for only five to ten minutes, and a black Cadillac was observed in front of the room. The police were notified of this suspicious behavior.

When officers reviewed the motel's telephone records, they found that the occupants of Room 332 were calling the telephone numbers of known drug dealers. Officers then Nason arranged to sell Zappia the marijuana on May 27, 1992. Nason, Shubert and Zappia went to pick up the marijuana in Zappia's car. Because Nason suspected police surveillance, and Zappia feared that the police would not observe the transaction as previously planned, the two postponed the sale. During the interim, Shubert began to cooperate with the police.

decided to establish surveillance of the motel room and Nason. As a part of the investigation, the government enlisted the assistance of drug trafficker Gabriel Zappia in exchange for a plea agreement. Zappia asked his friend, Gilbert Shubert, to arrange for the purchase of marijuana from Nason. In response to Shubert's request, Nason contacted a supplier in order to obtain the marijuana.

Shubert and Nason met at the Ramada Inn on May 28 to complete the drug transaction. Nason told Shubert that he had "the dope" and that he would call his supplier who would deliver it. Nason said that if he had not been serious he would not have brought along white garbage bags. As they were leaving the Ramada Inn, the two men were arrested. At the time of arrest, Nason possessed two white garbage bags, a package of marijuana, and $980 in cash.

Nason had arrived at the Ramada Inn in a black Cadillac. After he got out of the Cadillac, the driver of the car drove to the Howard Johnson's nearby and parked facing the Ramada Inn. When Nason was arrested, the driver of the black Cadillac attempted to back out of the motel and ran into a police car. David and Ellen Finch were in the Cadillac. Both were arrested.

Nason had been at Room 332 on May 26 and again on May 28, shortly before his arrest. Inside the room, police found a suitcase containing a duffel bag with marijuana residue and a photo album with Nason's name on it. Other items found in the room included scales, two sandwich bags containing marijuana, empty sandwich bags, a programmable police scanner, and a cardboard box with Nason's name on it containing papers and photographs.

DENIAL OF MOTION FOR SEVERANCE

The decision to order severance of a trial pursuant to Federal Rule of Criminal Procedure 14 is a matter within the discretion of the trial court. United States v. Sabatino, 943 F.2d 94, 96 (1st Cir.1991). We reverse the decision to deny a motion for severance only upon a showing of strong prejudice, demonstrating a manifest abuse of discretion that deprived the defendant of a fair trial. United States v. Argencourt, 996 F.2d 1300, 1304 (1st Cir.1993).

Pursuant to Federal Rule of Criminal Procedure 8(b), defendants may be tried together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions, constituting an offense or offenses." See Sabatino, 943 F.2d at 96 (quoting United States v. Sutherland, 929 F.2d 765, 778 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 83, 116 L.Ed.2d 56 (1991)). In this case, Nason, David Finch and Ellen Finch were alleged to have participated in the same acts constituting the offenses, hence, they were properly joined for trial. Where a defendant requests a severance to secure the testimony of a codefendant, he must comply with the requirements set forth in United States v. Drougas, 748 F.2d 8, 19 (1st Cir.1984):

the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed....

Given such a showing, the court should (1) examine the significance of the testimony in relation to the defendant's theory of defense; (2) consider whether the testimony would be subject to substantial damaging impeachment; (3) assess the counter arguments of judicial economy; and (4) give weight to the timeliness of the motion.

Id. at 19; see also United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992).

Nason alleged that his co-defendants, Ellen and David Finch, would testify that there was no conspiracy among the three. Standing Since Nason did not make the preliminary showing that encompasses the first four factors of the severance test set out in Drougas, we need not examine whether the other criteria were met. We therefore hold that the judge below did not abuse his discretion in denying Nason's motion for severance.

                alone, however, such an allegation is insufficient to entitle the defendant to a severance.  Nason did not show, as required, that either David or Ellen Finch would in fact testify for Nason at a separate trial.  He did not file an affidavit from either David or Ellen to that effect.  See Drougas, 748 F.2d at 19;  see also Font-Ramirez, 944 F.2d at 45.   Nor did counsel for the Finchs represent that either David or Ellen Finch would testify for Nason at a separate trial.  See United States v. DeLuna, 763 F.2d 897, 920 (8th Cir.1985) (counsel for co-defendant stating in camera that client would testify if trials were severed is sufficient to show that co-defendant is likely to testify).  Furthermore, Nason did not show, as required, that the Finchs' testimony would exculpate him.  United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir.1991) (citing United States v. DeLuna, 763 F.2d 897, 920 (8th Cir.1985), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985));  see also Font- Ramirez, 944 F.2d at 45 (denial of motion for severance was not an abuse of discretion where co-defendant's affidavit in support of the motion did not provide the substance of the testimony and did not explain why the testimony was necessary or beneficial to the defense).  The evidence demonstrated that Nason conspired with a number of people other than David and Ellen Finch.  Other potential conspirators included Shubert, Merry Lane, and the supplier whom Nason contacted.  Thus, even without a finding of a conspiratorial agreement with the Finchs, the government still had a strong conspiracy case against Nason.  This conclusion is evident from the outcome of the joint trial, as the jury acquitted both Ellen and David Finch yet convicted Nason of conspiracy
                

SUFFICIENCY OF THE EVIDENCE

On appeal, we look at the evidence in the light most favorable to the prosecution. United States v. Sabatino, 943 F.2d at 97 (citing United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 40 (1st Cir.1991)). We draw all legitimate inferences and resolve all credibility conflicts in favor of the prosecution. Id. We will uphold the verdict if any reasonable trier of fact could have found the elements of the offense beyond a reasonable doubt. Id. (citing United States v. Mena, 933 F.2d 19, 23 (1st Cir.1991)).

Nason argues that the trial court erred in not dismissing the charges against him at the close of the government's case due to insufficient evidence. In essence, he argues that the evidence of conspiracy is inadequate because there was no second person who conspired with Nason to either distribute or possess marijuana. The record does not support this argument.

A defendant can be indicted and convicted even if the names of his co-conspirators are...