U.S. v. Andrews

• Decision Date: 22 July 1985
• Docket Number: No. 83-7698,83-7698
• Citation: U.S. v. Andrews, 765 F.2d 1491 (11th Cir. 1985)
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas ANDREWS, a/k/a Tank Andrews, Beverly Stokes, Ollie Tatum and Alvin Royster, Defendants-Appellants.

Page 1491

765 F.2d 1491

UNITED STATES of America, Plaintiff-Appellee, v. Thomas ANDREWS, a/k/a Tank Andrews, Beverly Stokes, Ollie Tatum and Alvin Royster, Defendants-Appellants.

No. 83-7698.

United States Court of Appeals Eleventh Circuit.

July 22, 1985.

Thomas Haas and Christopher Knight, Mobile, Ala., for Andrews.

Ronnie Keahey, Grove Hill, Ala., for Stokes.

Windell Owens, Monroeville, Ala. (Court-appointed), for Tatum.

N.P. Callahan, Jr., Birmingham, Ala. (Court-appointed), for Royster.

Jeff Sessions, III, U.S. Atty., Ginny S. Granade, Asst. U.S. Atty., Mobile, Ala., and Mervyn Hamburg, Dept. of Justice, Appellate Sec., Washington, D.C., for U.S.

Appeals from the United States District Court for the Southern District of Alabama.

Before VANCE and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Thomas Andrews, Beverly Stokes, Ollie Tatum and Alvin Royster appeal from their conviction for conducting illegal traffic in food stamps, in violation of 18 U.S.C.A. Sec. 371 and 7 U.S.C.A. Sec. 2024(b). Because we find no merit in any of their claims, we affirm.

I. STATEMENT OF THE CASE

A. The Facts

In September 1982, Tommy Johnson, a Mobile County police officer, arrived in Monroe County to participate with the Monroe County Sheriff's Office in an undercover operation. He was introduced to an informant, Irving Lee, and instructed to assume the identity of "Tim Richardson," a dealer in stolen goods. Following a briefing on September 8, 1982, Lee and Johnson drove to appellant Andrews' home in Monroeville. Lee introduced Johnson to Andrews, who asked Lee what kinds of items he had available. Lee stated that Johnson had food stamps. Andrews expressed an interest in acquiring food stamps, if they could not be traced, were not marked, and were intact within food stamp books. Johnson said that these conditions could be met, and that the stamps could be sold at approximately half of their value. No sale occurred on that day, but Johnson agreed to meet Andrews the next day at Andrews' house.

The next day the two resumed negotiations over the transfer of food stamps; the conversation was recorded by Johnson through the use of a body recorder. Andrews left to make a phone call, and soon after his return, the conversation was interrupted by the arrival of a woman, later identified as appellant Stokes. Andrews went to her car, conversed with her for a few moments, and emerged from the car with $200, which he gave to Johnson in partial payment for food stamps. Andrews agreed to meet Stokes an hour later, and she left. He subsequently assured Johnson that she could be trusted, and the two discussed a further transfer of food stamps. Andrews gave Johnson the remainder of the payment later that day, and subsequently received $500 worth of food stamps. Stokes was introduced to Johnson on September 22, 1982, at the fish market owned first by her husband and subsequently by Andrews. Andrews told Stokes that Johnson was his associate, that he would return the next day with food stamps and that she should "take care of" him.

On October 2, 1982, Andrews introduced Johnson to appellant Royster, then deputy sheriff of the Monroe County Sheriff's Office. Royster had previously told Andrews that he wanted to acquire a cassette radio; Johnson provided him with one, which he said was "hot" but had come from a distant location. When Johnson refused payment for the radio, Royster told Johnson to contact him if he ever had trouble in the area and Royster would do what he could to assist him. On January 10, 1983, Johnson, once again equipped with a body recorder, went to Royster's house to ask whether Royster would provide an escort for Johnson while he drove a stolen vehicle through Monroe County. Johnson told Royster that he had access to food stamps, which he had sold to Andrews at half price, and offered to make part of his payment to Royster in food stamps. Johnson added that it would not be necessary to advise Andrews that he had bought the food stamps; Royster replied that Andrews was being watched by the Sheriff's Office. On January 13, 1983, Royster escorted Johnson through Monroe County. In return for this service, Johnson gave Royster $200 in cash and $200 worth of food stamps.

Johnson transferred food stamps on several subsequent occasions to Andrews, who was sometimes accompanied by codefendant Vickie Mims. On January 25, 1983, Johnson and Andrews met to negotiate a transfer. They were driving together to the Prouty Realty Company when they saw appellant Tatum in another car on the street. Andrews stopped and left the car to talk to Tatum; all three men then drove to Stout Realty Company, Tatum's place of employment. After a brief stay there, Andrews and Johnson proceeded to the Prouty Realty Company. There Andrews entered the building and returned to the car with $300, which he gave to Johnson in exchange for $695 worth of food stamps.

On January 31, 1983 and February 1, 1983, Johnson met Andrews at Stokes' house. On both occasions they proceeded, after initial negotiations, to the Prouty Realty Office where Andrews used the phone. On February 1, however, the two returned from the realty office to Stokes' home. Andrews took $200 worth of food stamps from Johnson and entered the house. Johnson left the car, walked up to the house and peered into the window. From this position, he saw Andrews hand the stamps to Stokes and receive a sum of money from her. Johnson returned to the car, after which Andrews exited the house and gave Johnson $100 in cash and one $50 book of stamps.

Andrews then directed Johnson to drive to Tatum's house, where Andrews got out of the car and knocked on a door adjacent to the carport. Tatum answered the door and the two conversed, following which Andrews returned to the car and asked Johnson for $600 worth of food stamps. When Johnson gave him food stamps valued at $630, Andrews returned to the door. From the car, Johnson saw Andrews give the food stamps to Tatum, and receive from Tatum a sum of money. Andrews then walked back to the vehicle and gave Johnson $300 in cash.

On February 21, 1983, Johnson went to Royster's house to ask him for a .357 magnum pistol. Royster said it would be difficult to get because the sheriff had ordered all confiscated weapons to be surrendered to the office, but he promised to try. Johnson gave Royster $105 worth of food stamps as "down payment" on the weapon. Later that day, Johnson called Royster and told him he would accept a sawed-off shotgun as a substitute for the pistol. Royster said he thought he could arrange it. On March 2, 1983, Johnson went to Royster's house to inquire about the weapon. Royster told Johnson he could find the shotgun at Andrews' house. Johnson subsequently met Andrews at a grocery store parking lot, and the two proceeded to Andrews' home. Andrews entered and brought out a shotgun. Johnson took the gun and drove to Royster's house, where he paid Royster $145 in food stamps.

B. Course of Proceedings

An eleven-count indictment filed in the United States District Court for the Southern District of Alabama charged appellants Andrews, Stokes, Royster, Tatum and co-defendant Vickie Mims (who subsequently pled guilty) with conspiracy to acquire and use food stamps illegally (count 1) and with the completed substantive offenses (counts 2-11), in violation of 18 U.S.C.A. Sec. 371 and 7 U.S.C.A. Sec. 2024(b). Counts 1 and 4 were dismissed and, following an unsuccessful motion for severance by appellants Stokes and Royster, appellants proceeded to a joint jury trial on the remaining counts. Appellants were convicted on all counts in which they had been charged (Andrews on seven; Stokes on two; Tatum on one; and Royster on three). This appeal followed.

II. GROUNDS OF APPEAL

A. Joinder and Severance

Appellants Stokes, Royster and Tatum argue that their joinder in a single indictment and their trial with appellant Andrews violated Fed.R.Crim.P. 8(b) (joinder of multiple defendants) and Fed.R.Crim.P. 14 (severance). Because alleged violations of Rule 8(b) and Rule 14 must be evaluated under different standards, these claims will be individually examined.

1. Joinder

Rule 8(b) allows joinder of two or more defendants 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." United States v. Russell, 703 F.2d 1243 (11th Cir.1983). Misjoinder under Rule 8(b) is prejudicial per se and requires a new trial. United States v. Kabbaby, 672 F.2d 857 (11th Cir.1982). In order to determine whether joinder is sound, a reviewing court must examine the face of the indictment. If the indictment's allegations, taken as true, establish a single conspiracy, and there is no claim of prosecutorial bad faith or an erroneous interpretation of law, the court must conclude that the initial joinder was proper. United States v. Russell, supra; United States v. Leach, 613 F.2d 1295 (5th Cir.1980); United States v. Levine, 546 F.2d 658 (5th Cir.1977). In some cases, however, it has been held appropriate to consider the evidence adduced at trial as well as the allegations of the indictment in deciding a Rule 8(b) claim. United States v. Leach, supra; United States v. Nettles, 570 F.2d 547 (5th Cir.1978). In considering the evidence or the indictment, the reviewing court must determine whether there was "a substantial identity" of facts and participants between the offenses charged. United States v. Marionneaux, 514 F.2d 1244 (5th Cir.1975). The character of the acts must have been similar, id., and each of the actors must have known that he acted in furtherance of a common plan in which other participants were involved, United States v. Levine, supra. But each participant need not have been involved in every phase of the venture, United States v. Russell, nor need he have known the identity and role of each of the other...