925 F.2d 272 (8th Cir. 1991), 90-1381, United States v. Kindle

Docket Nº90-1381.
Citation925 F.2d 272
Party NameUNITED STATES of America, Appellee, v. Ervin KINDLE, Appellant.
Case DateFebruary 15, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 272

925 F.2d 272 (8th Cir. 1991)

UNITED STATES of America, Appellee,

v.

Ervin KINDLE, Appellant.

No. 90-1381.

United States Court of Appeals, Eighth Circuit

February 15, 1991

Submitted Oct. 11, 1990.

Page 273

[Copyrighted Material Omitted]

Page 274

Cheryl K. Maples, North Little Rock, Ark., for appellant.

Patrick Harris, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSON, [*] Senior District Judge.

HENLEY, Senior Circuit Judge.

Appellant Kindle was convicted of one count of 21 U.S.C. Sec. 846 (drug conspiracy), three counts of 21 U.S.C. Sec. 841 (possession of drugs with intent to distribute) and two counts of 18 U.S.C. Sec. 2 (aiding and abetting in the distribution of drugs or in the possession of drugs with intent to distribute). The district court 1 sentenced Kindle to 264 months in prison, five years of supervised release, a fine of $5,000.00, and a special assessment of $300.00.

In this appeal, Kindle complains that: (1) his attorney had a prejudicial conflict of interest, (2) his attorney provided ineffective assistance of counsel, (3) the D.E.A. case agent improperly communicated with sequestered witnesses during trial, (4) his confrontation clause rights were violated, (5) his case should have been severed from that of codefendants, (6) the evidence was insufficient to sustain a conviction, (7) hearsay admitted by the district court was not in furtherance of a conspiracy, and (8) the prosecution made improper closing arguments. Kindle's convictions on all counts are affirmed.

FACTS

We recite only such facts as have specific bearing on the issues raised by appellant. Kindle was charged in a joint indictment with three other defendants, Fobbs, Jones and Pearson. Pearson entered into a plea agreement and was not a defendant at the trial. The remaining defendants were tried together and were represented by separate counsel. The government called seventeen witnesses including several law enforcement agents, unindicted coconspirators, drug buyers, and an informant. The testimony principally consisted of first hand accounts of drug transactions and accounts of interaction among the defendants.

According to the transcript, appellant's trial counsel, Vess, and Fobbs' counsel, Hankins, shared the same office address. Appellant suggests the two were associated in the practice of law. According to appellee's brief, however, the two do not share the same phone number or phone listing. Appellee also states there is no firm listing containing the names of Hankins and Vess together. The record shows that both counsel represented to the district court that they practiced law separately as solo practitioners.

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The record indicates at least one witness reported that D.E.A. case agents sitting in on the trial communicated with sequestered witnesses during the trial. After this complaint was made, the district court ordered such communications to stop. A motion for mistrial was made but the district court overruled the motion. The record contains no evidence of the content of these communications or whether they were prejudicial to appellant in any way.

Appellant's trial counsel cross-examined all but one government witness and objected frequently to testimony and evidence. Trial counsel did not make any motion to sever, gave no opening statement, and made no motions to limit the use of evidence against appellant. The record also shows occasional instances of joint action by appellant's and codefendant's counsel. At one point Fobbs' attorney conceded on Fobbs' behalf the truth of certain facts necessary and perhaps sufficient to convict Fobbs on Count VII of the indictment. This count charged her, alone, with distribution of cocaine. No objection was made by counsel for the codefendants to this admission of facts.

Certain hearsay statements made post-arrest by an unindicted coconspirator to an arresting officer were admitted by the district court under the coconspirator evidence rule. Also, during closing argument, the prosecution referred to Kindle as "hot papa" and "boss" based on characterizations made by some of the witnesses. The record shows appellant...

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