U.S. v. Baker
| Decision Date | 02 September 1988 |
| Docket Number | 86-2199 and 86-2257,86-2083,86-2112,86-2111,86-2115,Nos. 86-2082,s. 86-2082 |
| Citation | 855 F.2d 1353 |
| Parties | 26 Fed. R. Evid. Serv. 1069 UNITED STATES of America, Appellee, v. Dale BAKER, Appellant. UNITED STATES of America, Appellee, v. Carnell MILLER, Appellant. UNITED STATES of America, Appellee, v. Ervin JACKSON, Appellant. UNITED STATES of America, Appellee, v. Virlin JACKSON, Appellant. UNITED STATES of America, Appellee, v. Michael PETTY, Appellant. UNITED STATES of America, Appellee, v. Vincent BEAUREGARD, Appellant. UNITED STATES of America, Appellee, v. Frank NOBLE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Cheryl A. Callis, St. Louis, Mo., for appellant Baker.
Paul J. Passanante, St. Louis, Mo., for appellant Carnell Miller.
Ian P. Cooper, St. Louis, Mo., for appellant Michael Petty.
Thomas Magee, St. Louis, Mo., for appellant Virlin Jackson.
Robert L. Devereux, St. Louis, Mo., for appellant Ervin Jackson.
R. Thomas Day, Jefferson City, Mo., for appellant Vincent Beauregard.
Michael K. Fagan, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before JOHN R. GIBSON, FAGG, and WOLLMAN, Circuit Judges.
After a joint criminal trial, a jury found all seven defendants guilty of conspiring to distribute a controlled substance in violation of 21 U.S.C. Sec. 846. In addition to their conspiracy convictions, Frank Noble and Carnell Miller were convicted of substantive offenses. The jury found Noble guilty of illegally transporting firearms in interstate commerce, 18 U.S.C. Sec. 922(a)(5). Miller was found guilty of being a felon in possession of a firearm, 18 U.S.C. app. Sec. 1202(a)(1) (1982 & Supp.1984) (repealed 1986), and of possessing a controlled substance with intent to distribute, 21 U.S.C. Sec. 841(a)(1). Further, Miller was required to forfeit the proceeds of his criminal conduct. All of the defendants appeal, and we affirm.
For over a decade, Miller and the other defendants engaged in a large-scale drug operation in north St. Louis. Miller ran this operation from several houses he owned in the area. The other defendants performed various functions in the drug conspiracy: providing the methamphetamine or other drugs; delivering these drugs to Miller's houses; participating in the later sale and distribution of the drugs from the houses Miller owned; and protecting the operation from detection or destruction.
Over the years, law enforcement officials executed search warrants for the various houses and recovered drugs from those houses. Miller, however, was able to move his operation to other locations, and thus, the conspiracy continued until police arrested Miller in 1985. These criminal proceedings followed. We now turn to address the defendants' numerous arguments for reversal of their convictions.
The defendants contend the evidence established multiple conspiracies when only a single conspiracy was charged and that they were prejudiced by this variance. The defendants also argue the district court committed error by refusing to instruct the jury on multiple conspiracies. In determining whether the evidence established a single conspiracy or multiple conspiracies, we view the evidence in the light most favorable to upholding the jury verdict. See United States v. Lee, 782 F.2d 133, 134 (8th Cir.1986); United States v. Towers, 775 F.2d 184, 189 (7th Cir.1985). We must decide whether the record contained evidence from which the jury could have found one overall agreement to commit an illegal act--here, the distribution of drugs. See Lee, 782 F.2d at 134.
According to the defendants, the testimony of Frank Noble's nephew, DeWitt established a conspiracy separate from the single conspiracy charged. Noble, the supplier for Miller's drug operation, furnished DeWitt with drugs for sale and distribution. DeWitt then sold the drugs from a house owned by Noble. DeWitt eventually stopped selling drugs, and Noble sold the house to Miller.
The defendants stress that DeWitt was unable to identify Miller at the trial and may not have known the other defendants with the exception of Noble. Nevertheless, DeWitt was aware of Miller and did not have to be personally acquainted with Miller or the other defendants in order to participate in the single conspiracy. See United States v. Massa, 740 F.2d 629, 636 (8th Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); United States v. Brewer, 630 F.2d 795, 799-800 (10th Cir.1980). We have carefully considered the record, and we conclude that Noble and DeWitt were not involved in a conspiracy separate from the single conspiracy charged.
The defendants also argue that separate and distinct conspiracies were established by the early criminal activities of Miller and Vincent Beauregard. At the trial, the Government introduced evidence of Miller's drug-related activities in the late 1960s, which included several arrests. Additionally, the Government presented evidence that in late 1969 and early 1970 police twice investigated a St. Louis residence for narcotics. Beauregard was present and arrested both times. The record, however, contains no evidence to show these activities constituted separate conspiracies. Rather, the incidents were only isolated criminal acts that were unrelated to each other.
Finally, Noble and Beauregard contend the evidence established separate conspiracies between Miller and each of them. We disagree. Noble, as the supplier to this large operation, and Beauregard, as a member of Miller's selling entourage, knowingly contributed to the single, ongoing drug conspiracy. See Massa, 740 F.2d at 636; see also Brewer, 630 F.2d at 799-800. The evidence does not support a finding of separate conspiracies here.
Although various defendants entered the conspiracy at different times and performed different functions, the conspiracy had one criminal objective: to sell large quantities of methamphetamine or other drugs. This type of enterprise, by its very nature, is a loosely knit organization, Brewer, 630 F.2d at 799, and a jury may find a defendant guilty of conspiracy even if that defendant plays only a "minor role in the total scheme," United States v. Lee, 743 F.2d 1240, 1250 (8th Cir.1984). The evidence established a single conspiracy, and thus, the district court did not commit error by refusing to give a multiple conspiracy instruction. See United States v. Kirk, 534 F.2d 1262, 1269 (8th Cir.1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977); see also Towers, 775 F.2d at 189.
Similarly, because the evidence established a single conspiracy, we conclude the district court did not abuse its discretion by denying the defendants' motions to sever. In general, the individuals " 'charged in a conspiracy should be tried together, particularly whe[n] proof of the charges against the defendants is based upon the same evidence and acts.' " United States v. Garcia, 785 F.2d 214, 220 (8th Cir.) (quoting Lee, 743 F.2d at 1248), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). Although several defendants claim the evidence against them was slight compared to the evidence against the other defendants, "the [d]istrict [c]ourt was not required to sever defendants * * * simply because the evidence may have been more damaging against one [defendant] than the others." Id.
The defendants argue the Government's introduction of earlier criminal acts by Beauregard and Miller constituted other crimes evidence and thus violated Federal Rule of Evidence 404(b). We need not decide whether these criminal acts were properly admitted because we conclude that any error in admitting this evidence was harmless. See United States v. Nichols, 808 F.2d 660, 663 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987).
We do not believe the defendants have been prejudiced. First, only Miller and Beauregard were involved in these criminal activities. Because none of the other defendants was implicated, the jury could have easily separated this evidence to reflect only on Miller and Beauregard. Second, the record contained evidence clearly connecting Miller and Beauregard to the drug conspriacy. Thus, the impact of these earlier acts was minimal. See United States v. O'Connell, 841 F.2d 1408, 1423 (8th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988). Finally, the strong evidence against all of the defendants convinces us that the jury's verdict was not affected by these isolated criminal acts. See Nichols, 808 F.2d at 663-64.
Several defendants assert the district court committed error in admitting evidence that murder and assault occurred during the course of the conspiracy. In addition, Noble challenges the Government's introduction of a 1979 arrest in which he was found in possession of a pistol and drugs. The Government responds by arguing that these matters were admissible as evidence of the conspiracy. We agree.
The district court has "particularly broad discretion" in determining the evidence to be admitted at a conspiracy trial. United States v. Apker, 705 F.2d 293, 298 (8th Cir.1983) (), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984). Here, the evidence was relevant to the operation of this ongoing conspiracy. See, e.g., United States v. Cintolo, 818 F.2d 980, 997-98 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987); United States v. Bueno-Risquet, 799 F.2d 804, 813-14 (2d Cir.1986); United States v. Markowski, 772 F.2d 358,...
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