U.S. v. Walton
| Citation | 908 F.2d 1289 |
| Decision Date | 18 July 1990 |
| Docket Number | 89-1882,Nos. 89-1862,89-1864,89-1883 and 89-1884,s. 89-1862 |
| Parties | 30 Fed. R. Evid. Serv. 918 UNITED STATES of America, Plaintiff-Appellee, v. Loretta WALTON (89-1862), Charles Eddie Mitchell (89-1864), Eddie Lee Johnson (89-1882), Larry Noal White (89-1883), Rosemary Johnson (89-1884), Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Robert Haviland, Asst. U.S. Atty., Flint, Mich., for plaintiff-appellee.
Richard P. King, Flint, Mich., for Loretta Walton.
Paul D. Muller, Southfield, Mich., for Charles Eddie Mitchell.
Daniel D. Bremer, Flint, Mich., for Eddie Lee Johnson.
Jeffery C. Duffey, Susan G. James, Montgomery, Ala., for Larry Noal White.
Richard J. Amberg, Pontiac, Mich., for Rosemary Johnson.
Before KENNEDY and WELLFORD, Circuit Judges, and ENGEL, Senior Circuit Judge.
In these five consolidated appeals, defendants Loretta Walton, Charles Eddie Mitchell, Eddie Lee Johnson, Larry Noal White, and Rosemary Johnson seek relief from their convictions and sentences imposed on jury verdicts finding each guilty of conspiring to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846. For the reasons stated below, we: (1) AFFIRM the convictions and sentences of defendants Walton, Mitchell, and White, (2) AFFIRM the convictions of defendants Eddie and Rosemary Johnson, but (3) REVERSE the sentences of defendants Eddie and Rosemary Johnson and REMAND their cases for resentencing.
Because most of the complex facts in this case are unnecessary to the resolution of the case, only an abbreviated version will be recited here. Additional facts will be stated when needed for the resolution of the issues discussed. The defendants were convicted of participating in a conspiracy to distribute cocaine in Flint, Michigan, and Columbus, Ohio. The indictment alleged that the conspiracy began in 1980 and continued through the time of the indictment in 1988. The evidence presented at trial showed that Larry White was the leader of the conspiracy in the Flint, Michigan, area. He obtained large quantities of cocaine from suppliers in other parts of the country and arranged for its transportation, dilution, repackaging, and distribution by other members of the conspiracy.
The remaining defendants occupied various positions in White's Flint organization. Loretta Walton was one of White's chief lieutenants and was involved in all aspects of the conspiracy, including the pickup and delivery of cocaine, the pickup and delivery of money, the preparation and repackaging of cocaine for retail sales, and the sales themselves. Charles Mitchell was a Flint police officer during the conspiracy. He transported cocaine for the ring and provided protection for its activities, many times while in uniform. The Johnsons apparently were not as deeply involved in the conspiracy as were White, Walton, and Mitchell. They obtained small quantities of cocaine from other members of the conspiracy, diluted it, repackaged it into small lots, and sold it directly to users of cocaine.
The government conducted a lengthy investigation into the ring's activities prior to bringing the indictment. Wiretaps placed on Larry White's phones and a microphone hidden in his house provided a considerable amount of evidence against most of the defendants. Additionally, several members of the conspiracy testified against the defendants on behalf of the government, including Rolando Hernandez, a Miami-based supplier of cocaine for the conspiracy, and Russell Brown, who transported and repackaged cocaine for the conspiracy.
A jury found all of the defendants whose cases are on appeal here guilty of conspiracy to distribute cocaine. Following the preparation of presentence reports and hearings on the disputed issues, the District Court sentenced the defendants pursuant to the guidelines established by the United States Sentencing Commission. Loretta Walton and Charles Mitchell were each sentenced to 292 months imprisonment. Eddie and Rosemary Johnson were each sentenced to 41 months imprisonment. Larry White was sentenced to 480 months imprisonment, the maximum sentence authorized by statute.
Defendants Walton, Mitchell, and White challenge a passing reference by Russell Brown, a government witness, to a polygraph examination. The reference occurred during Brown's direct examination by the Assistant United States Attorney:
Q All right. Did you tell the DEA agent Dodson something about the cocaine business in Flint?
A Yes.
Q Why did you do that?
A Well I thought it would help with my case.
Q The uttering and publishing charge was pending against you then?
A Right.
Q Okay. And you spoke with the DEA agent Dodson at that time?
A Right.
Q As a result of your conversation with Agent Dodson, were you called to a Grand Jury?
A No. I had to take a polygraph before that.
Following Brown's mention of the polygraph, defense counsel asked for and received a sidebar conference and moved for a mistrial. The court denied the motion but agreed to accept briefs on the subject. Following the sidebar conference, the government, in an attempt to minimize any possible prejudice from the witness' answer, asked the court to strike the witness' answer as nonresponsive and to instruct the jury to disregard it. The court advised the jury that the answer was not responsive to the question asked by the prosecutor, ordered the response stricken, and advised the jury to disregard it. No other reference to this or any other polygraph examination was made at any time during the five-week trial.
The following day, the court heard argument on the motion for a mistrial. Brown was examined outside of the jury's hearing. He testified that the polygraph examination he took was actually requested and administered by county prosecutors, not by any federal agent or prosecutor. He also stated that he never mentioned the polygraph examination to any federal agent or Assistant United States Attorney involved in the case and had no way of knowing whether the Assistant United States Attorney prosecuting the case knew he had taken a polygraph examination. The court again denied the motion for a mistrial and found that the government had not intended the reference to the polygraph. Although noting that the prosecutor had stated that the witness' unresponsive statement might have been deliberate, the court found that there was no evidence that Brown had made the statement in a deliberate attempt to prejudice the defense. At this hearing, the government also offered to stipulate that no agent of the United States had requested that a polygraph test be given to Brown and no agent of the United States had been informed of the results of any polygraph test Brown may have taken. Defense counsel declined to have the stipulation read to the jury.
Brown's testimony concerned, among other things: (1) a shipment of frozen fish containing hidden packages of cocaine that he transported for White, (2) his work for White breaking down several one kilogram shipments of cocaine into one ounce packages for resale, (3) his knowledge that Mitchell, then a police officer for the city of Flint, delivered cocaine for White, and (4) his observation that Walton often made cocaine pickups with White. Brown, who was in prison on other charges at the time of his testimony, admitted that he only agreed to testify in hope of receiving leniency in a state prosecution and a $2,000 payment by the federal government. Thus the credibility of his testimony was disputed.
Other witnesses and evidence also linked Walton, Mitchell, and White to the conspiracy. For example, Rolando Hernandez, who supplied White with bulk quantities of cocaine, testified to his supply activities and to Walton's actions as a courier for and confidante of White. Dennis Barker, who like Brown was only involved intermittently in White's operations, provided additional evidence against Mitchell. He testified that he had seen Mitchell, often in uniform, receiving large lots of cocaine from White for delivery. Phone wiretaps and a microphone located in White's house provided strong evidence against White and Walton and at least some additional evidence against Mitchell.
The defendants argue that any mention of a polygraph examination by a government witness should result in a mistrial, at least where that witness' testimony is important to the government's case. The defendants also argue that because Brown is a convicted felon we should presume he is sophisticated in matters of criminal procedure and intentionally referred to the polygraph in order to bolster his credibility. The District Court refused to find that the government had any advance knowledge that Brown would mention the polygraph test. Although the court acknowledged the possibility that Brown may have made the reference intentionally, it concluded there was no evidence to support this proposition and refused to create a presumption in favor of the defendants.
Had the District Court found that the government intended Brown to introduce the information concerning the polygraph examination, the reference might lead to reversal under circuit precedent. In United States v. Murray, 784 F.2d 188 (6th Cir.1986), for example, we held that a defendant's conviction must be reversed where an experienced FBI agent stated that he had asked the defendant to take a polygraph examination. That case is distinguishable for two reasons, however. First, the majority believed that the statement was deliberately made by an experienced government agent. Id. Regardless of Brown's motive, there is no suggestion of government misconduct in the case before us. Second, though it was not explicitly mentioned by the Murray Court, a statement suggesting that a criminal defendant either took and failed a polygraph examination or refused to take an...
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