U.S. v. Beverly

• Decision Date: 23 September 1993
• Docket Number: 1593,Nos. 1592,D,s. 1592
• Citation: 5 F.3d 633
• Parties: UNITED STATES of America, Appellee, v. William BEVERLY; William Pritchett, also known as O; and Reginald Brown, Defendants, Charles Tyrone White, also known as NFN Black, and Dana Foster, Defendants-Appellants. ockets 93-1016(L), 93-1038.
• Court: U.S. Court of Appeals — Second Circuit

Page 633

5 F.3d 633

UNITED STATES of America, Appellee, v. William BEVERLY; William Pritchett, also known as O; and Reginald Brown, Defendants Charles Tyrone White, also known as NFN Black, and Dana Foster, Defendants-Appellants.

Nos. 1592, 1593, Dockets 93-1016(L), 93-1038.

United States Court of Appeals Second Circuit.

Argued May 27, 1993.

Decided Sept. 23, 1993.

John J. Doherty, Cohoes, NY, for defendant-appellant White.

Lee D. Greenstein, Albany, NY, for defendant-appellant Foster.

Bernard J. Malone, Albany, NY, Asst. U.S. Atty. for the N.D.N.Y. (Gary L. Sharpe, U.S. Atty. for the N.D.N.Y., Joshua W. Nesbitt, Asst. U.S. Atty., on the brief), for plaintiff-appellee.

Before: NEWMAN, Chief Judge, FEINBERG, Circuit Judge, and KELLEHER, Senior District Judge. ^*

KELLEHER, Senior District Judge:

Charles Tyrone White and Dana Foster appeal from the judgments of conviction and sentences entered in the United States District Court for the Northern District of New York, Lee P. Gagliardi, Judge, following their trial before a jury on charges stemming from their participation in a conspiracy to sell cocaine base (crack) in Albany, New York. Specifically, White appeals from his conviction and sentence for: conspiracy to possess with intent to distribute and to distribute cocaine base, possession with intent to distribute cocaine base, and use of a firearm during and in relation to a drug trafficking crime. Foster appeals from his conviction and sentence for conspiracy to possess with intent to distribute and to distribute cocaine base and for being a felon in possession of a firearm.

Appellants, respectively, attack their convictions on grounds the district court erred in: denying Foster's motion for severance; restricting both appellants' ability to cross-examine some government witnesses; admitting a post-arraignment statement made by Foster; allowing the government to impeach White's testimony by eliciting testimony of prior incidents in which he had been involved with guns; denying Foster's request for a continuance just prior to the close of trial; and reading back testimony requested by the jury.

They attack their sentences on the ground the district court improperly used the testimony of two coconspirators as the basis for its calculation of the amount of crack attributable to them for sentencing purposes.

For the reasons stated below, we affirm.

Background

Foster and White were indicted together with William Beverly, William Pritchett, and Reginald Brown on charges of: (1) conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) & (b)(1)(B)(iii) and 21 U.S.C. Sec. 846; (2) possession with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) & (b)(1) and 18 U.S.C. Sec. 2; (3) unlawful use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1) & (2); (4) as to Beverly, Pritchett, and Foster, being a felon in possession of a firearm, in violation of 18 U.S.C. Secs. 922(g) and 924(a)(2); and (5) as to Pritchett, Beverly, and White, employing minors to distribute controlled substances, in violation of 21 U.S.C. Sec. 861 and 18 U.S.C. Sec. 2. ¹ The charges are based on the five named defendants' participation in a crack-selling organization led by Beverly and Pritchett in Albany, New York.

Beverly and Pritchett arrived in Albany in December 1990 and began selling crack. They soon began to recruit others, including Brown, to join them in selling crack. Beverly and Pritchett dubbed their growing gang the Boston Boys. ²

Sometime in late February or early March of 1991, White and Foster joined Beverly and Pritchett's gang in Albany. In connection with their crack dealing business, the Boston Boys purchased at least two handguns, which they used to protect themselves and their drugs: a Taurus .357 magnum revolver, Model 66, with a six inch barrel; and a Colt Trooper .357 magnum revolver with a six inch barrel.

In March 1991, as a result of several shooting incidents involving White, federal and state law enforcement officers in the Albany area began to investigate the Boston Boys.

On April 2, 1991, Beverly and Brown were arrested. On April 3, 1991, after attempts to elude the police, Pritchett and White were arrested along with Carmen Johnson, Greg Roberson, and Luther Harris, a fifteen year-old who was carrying 96 small plastic bags of crack. Police later recovered the two .357 magnums from Harris's apartment.

Foster fled Albany after hearing of Beverly's and Brown's arrest. He was arrested in Cambridge, Massachusetts on July 11, 1991. On July 15, 1991, Agent John Morgan of the Bureau of Alcohol, Tobacco, and Firearms interviewed Foster in Boston. This interview occurred in the absence of counsel, while Foster was in custody, and after he had requested counsel at his arraignment. During the interview, Foster identified one Donnell Hanner from a photograph as a man who had once offered to sell him a gun on Lark Street in Albany. Foster stated that, when approached by Hanner, he told Hanner he was not interested in buying the gun but pointed Hanner in the direction of someone Foster thought might be interested in buying it. Foster did not identify to Morgan the identity of the person to whom he directed Hanner.

Beverly, Pritchett, and Brown entered into plea and cooperation agreements with the government. Foster and White did not.

In September, 1992, Foster and White were tried jointly before a jury. At trial, law enforcement officers, Beverly, Pritchett, Brown, and other unindicted coconspirators and associates testified against Foster and White. Agent Morgan testified to Foster's post-arraignment statement regarding Hanner's offer to sell a gun. Both Foster and White presented evidence including their own testimony.

White was convicted of conspiracy, possession with intent to distribute, and use of a firearm during and in relation to a drug trafficking crime. Foster was convicted of conspiracy and being a felon in possession of a firearm. The jury failed to reach a verdict for Foster on the charges of possession with intent to distribute and use of a firearm during and in relation to a drug trafficking crime.

Both Foster and White were sentenced on December 23, 1992. At the sentencing hearing, they disputed the presentence report's and the government's estimation of cocaine base attributable to them for sentencing purposes. The district court adopted the estimation contained in the presentence report which was taken directly from the testimony of Beverly and Pritchett.

White was sentenced to: concurrent 210-month terms of imprisonment on the conspiracy and possession counts; concurrent mandatory five-year terms of imprisonment on the firearms counts, to run consecutively to the 210-month sentences; and consecutive four-year terms of supervised release on the conspiracy and possession counts. Foster was sentenced to: a 235-month term of imprisonment on the conspiracy count; a ten-year term of imprisonment on the firearm count, to run concurrently with the 235-month term; and concurrent five-year terms of supervised release on both counts.

Both Foster and White filed timely notices of appeal.

Discussion

I. Denial of Foster's Motion for Severance

Appellants claim that because their defenses were antagonistic to each other, the district court abused its discretion in denying Foster's motion for severance.

There is a general preference for joint trial of persons indicted together, as Foster and White were in this case. Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). The decision whether to grant a motion to sever rests in the sound discretion of the trial court. Id. at ----, 113 S.Ct. at 938; United States v. Boyd, 610 F.2d 521, 525 (8th Cir.1979). Even if prejudice is shown, severance is not required. Zafiro, --- U.S. at ----, 113 S.Ct. at 938. And even when co-defendants have conflicting or antagonistic defenses, severance is not required. Id. at ---- - ----, 113 S.Ct. at 937-38.

Foster argues he was unduly prejudiced by the denial of his motion for severance in that, as a result of being tried jointly with White, he was deprived of the opportunity to cross-examine Beverly, Pritchett, and Brown regarding the paucity of references to Foster in several of their statements to the police following their arrests. Had he been granted severance, Foster argues, he would have been able to contrast the frequent mention of White in conjunction with guns in the statements of Beverly, Pritchett, and Brown with the comparatively infrequent mention of Foster. It is questionable whether evidence of the frequency with which White was mentioned in those statements would be relevant, admissible evidence in a severed Foster trial. But we need not resolve that question as Foster's ability to present his defense was not prejudiced by the joint trial.

In fact, Foster's counsel cross-examined Beverly, Pritchett, and Brown extensively regarding the limited mention they made of Foster in their post-arrest statements and the supposed inconsistency of this with their testimony at trial. In summation, Foster's counsel argued at length his theory that the relative absence of Foster from Beverly's, Pritchett's, and Brown's statements to police was inconsistent with their testimony at trial and demonstrated that Foster was neither involved in the conspiracy nor connected to the guns underlying the firearms charges. Moreover, as a result of White's opening the door to impeachment evidence regarding his extensive involvement with guns, the contrast Foster sought to draw emerged during the course of the trial.

Because Foster's and White's defenses were not truly antagonistic and Foster has failed to demonstrate any prejudice resulting from the denial of severance, we hold the district court did not abuse its discretion in denying Foster's...