U.S. v. Behrens

• Decision Date: 09 September 1982
• Docket Number: 81-1186 and 81-1253,Nos. 81-1086,81-1187,s. 81-1086
• Citation: 689 F.2d 154
• Parties: 11 Fed. R. Evid. Serv. 1149 UNITED STATES of America, Plaintiff-Appellee, v. Harold Dean BEHRENS, James D. Wilkett, James M. Wilkett, and Fred Weed, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 154

689 F.2d 154

11 Fed. R. Evid. Serv. 1149

UNITED STATES of America, Plaintiff-Appellee, v. Harold Dean BEHRENS, James D. Wilkett, James M. Wilkett, and Fred Weed, Defendants-Appellants.

Nos. 81-1086, 81-1187, 81-1186 and 81-1253.

United States Court of Appeals Tenth Circuit.

Sept. 9, 1982.

Certiorari Denied Dec. 13, 1982.

See 103 S.Ct. 573.

W. David Pardue, Oklahoma City, Okl., for defendant-appellant Harold Dean Behrens.

Gene Stipe of Stipe, Gossett, Stipe, Harper & Estes, Oklahoma City, Okl., for defendants-appellants James D. Wilkett and James M. Wilkett.

Jack L. Freeman, Edmond, Okl., for defendant-appellant Fred Weed.

James F. Robinson, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

These consolidated appeals follow defendants' convictions for conspiracy to unlawfully distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendants seek reversal of the verdict against them primarily on grounds of prejudicial suppression of evidence by the prosecution, improper evidentiary determinations by the trial judge, and insufficiency of the evidence. We affirm.

I.

In October 1980, a federal grand jury indicted seven persons for conspiracy to illegally distribute the narcotic Dilaudid. The named defendants included Harold Behrens, Dr. Thomas Conklin, Joe Hoover, Harvey Mize, Fred Weed, James D. Wilkett, and James M. Wilkett. The case against Mize was subsequently dropped by the Government, and the trial court later severed the actions against Conklin and Hoover. The remaining defendants were found guilty following a jury trial.

The facts relevant to this appeal are derived from the testimony of unindicted coconspirators and Government investigators, together with all reasonable inferences to be drawn therefrom, properly reviewed in the light most favorable to the prosecution. See United States v. Blitstein, 626 F.2d 774, 776 (10th Cir. 1980). The Wilkett defendants obtained large quantities of Dilaudid through prescriptions written by Dr. Conklin and filled by pharmacist Hoover. The Wilketts then distributed the Dilaudid to defendant Behrens and James Powell, an unindicted coconspirator who was the Government's primary witness. Behrens and Powell resold the drugs for profit. Bobby Weed, another unindicted coconspirator, frequently purchased Dilaudid from Behrens for illicit resale. Defendant Fred Weed loaned Bobby money for such purchases, directed Bobby to street customers for the drug, and took a percentage of Bobby's profit.

Defendants raise myriad arguments in support of their appeals. Defendant Fred Weed asserts that the indictment is fatally defective. All defendants contend that the Government failed to timely disclose exculpatory material. Defendants James D. Wilkett, James M. Wilkett, and Weed claim the trial judge erred by not adhering to the preferred order of proof vis-a-vis coconspirator hearsay, by not severing their cases from that of defendant Behrens, and by not declaring a mistrial after severing two defendants from the case. Defendants each separately assert various insufficiency of the evidence arguments as grounds for reversal of their convictions. Behrens and the Wilkett defendants also urge that evidence relating to prescriptions for Dilaudid, and the summaries of such evidence prepared by the Government, were erroneously admitted into evidence.

II.

A. The Indictment

The indictment charges that defendants and the unindicted coconspirators

"willfully and knowingly did conspire, confederate and agree together, with each other and with other persons unknown to the Grand Jury, to violate Title 21, United States Code, Section 841(a)(1), in that they combined, conspired, confederated and agreed to distribute a Schedule II narcotic controlled substance, to wit: Dilaudid, in violation of Title 21, United States Code, Section 846."

Rec., vol. I, at 1 (emphasis added). The substantive offense set out in 21 U.S.C. § 841(a)(1), however, prohibits any person from "knowingly or intentionally" distributing a controlled substance. Relying on Robinson v. United States, 263 F.2d 911 (10th Cir. 1959), defendant Weed argues that the indictment is fatally defective because it does not contain the "knowingly or intentionally" language. We have recently rejected an identical argument. See United States v. Perry, No. 81-1011, slip op. at 2-3 (10th Cir. July 6, 1982).

B. Exculpatory Evidence

Although all defendants made a general request for Brady material, the Government failed to produce prior to trial certain grand jury testimony and police statements containing exculpatory information indicating that Behrens obtained some Dilaudid from Texas. The Government erroneously treated this Brady material as Jencks material, required to be produced at trial rather than pretrial. See 18 U.S.C. § 3500(b). All of the material was produced during the course of the trial. Defendants concede the production but claim they were prejudiced by its untimeliness.

The prosecutorial duty to provide defense counsel with exculpatory evidence stems from the Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady prohibits suppression of material evidence favorable to an accused when disclosure is requested by the defense. Id. at 87, 83 S.Ct. at 1196. However, the rule applies in situations involving "defendant's discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (emphasis added). This circuit has previously concluded that Brady is not violated when the Brady material is available to defendants during trial. See United States v. Alberico, 604 F.2d 1315, 1319 (10th Cir.), cert. denied 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 422 (1979).

We do not condone the Government's conduct in failing to liberally construe Brady in accordance with the trial judge's continuing order to do so. Nevertheless, defendants have not demonstrated that the delayed disclosure of evidence deprived them of a fair trial. See United States v. Jackson, 579 F.2d 553, 560 (10th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978). Defendants correctly note that their attorneys' trial strategy and cross-examinations might have been enhanced had the exculpatory material been provided earlier. The relevant standard of materiality, however, does not focus on trial preparation but instead on whether presentation of the evidence would have created a reasonable doubt of guilt that did not otherwise exist. Agurs, 427 U.S. at 112 n.20, 96 S.Ct. at 2401 n.20; Alberico, 604 F.2d at 1319. No such showing has been made by defendants in this case. Even though Behrens may have obtained some Dilaudid from Texas, there was abundant evidence that Stigler, Oklahoma was the source of a great deal of the Dilaudid that was distributed.

C. Preferred Order of Proof

Statements made by one member of a conspiracy are admissible evidence against coconspirators under certain circumstances. See Fed.R.Evid. 801(d)(2)(E). Such material is properly admitted evidence so long as the trial judge specifically determines that the Government has independently established

"it is more likely than not that (1) the conspiracy existed; (2) the declarant and the defendant against whom the conspirator's statement is offered were members of the conspiracy; and (3) the statement was made during the course and in furtherance of the objects of the conspiracy."

United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir.1979) cert. denied 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980). See also United States v. Radeker, 664 F.2d 242 (10th Cir. 1981); United States v. Stipe, 653 F.2d 446, 449 (10th Cir. 1981); United States v. Andrews, 585 F.2d 961, 966 (10th Cir. 1978). It is preferable for the Government to independently establish the conspiracy and the defendants' connection with it before introducing incriminating declarations of coconspirators. Petersen, 611 F.2d at 1330; Stipe, 653 F.2d at 449. This preferred order of proof should be adhered to absent "some substantial reason." United States v. Calabrese, 645 F.2d 1379, 1387 (10th Cir.), cert denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981).

Defendants Fred Weed and the Wilketts contend that the trial judge unjustifiably departed from this preferred order of proof without making the requisite independent evidence determination. A careful review of the trial proceedings undermines this assertion.

The record reveals that the trial judge scrupulously adhered to the preferred order of proof, requiring the Government to present nonhearsay evidence of a conspiracy and the involvement of each defendant. Coconspirator hearsay was introduced only after the judge announced that the requirement's safeguards had been substantially realized and that the trial had reached a point where continued application of the rule was not feasible. The court specifically found that departure from the preferred order "would facilitate the trial, without unfairness to the defendants, and with less confusion to the jury ...." Rec., vol. IX, at 518-19.

Prior to this departure from the preferred order of proof, independent evidence established that: (1) the Wilkett defendants sold Dilaudid on a number of occasions to Behrens and to James Powell for resale; (2) Powell and Behrens split the Dilaudid between them and sold it in the Oklahoma City area at a profit; (3) Bobby Weed purchased Dilaudid from Behrens in the presence of and using money provided by defendant Fred Weed; and (4) Bobby Weed also shared proceeds from Dilaudid "street sales" with Fred Weed. Based upon this independent evidence, the trial judge subsequently made the findings mandated by Andrews,...