U.S. v. Blake, 90-1829

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GOLDBERG and GARWOOD; CLARK; GOLDBERG
Citation941 F.2d 334
Parties34 Fed. R. Evid. Serv. 761 UNITED STATES of America, Plaintiff-Appellee, v. Peter BLAKE, aka David Clark and Winston Wilson, Defendant-Appellant.
Docket NumberNo. 90-1829,90-1829
Decision Date28 August 1991

John D. Nation, Dallas, Tex., for defendant-appellant.

Susan Greenberg, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

Peter Blake was convicted and sentenced under a seven-count indictment charging various weapons and narcotics offenses. He raises challenges to the indictment, to portions of the evidence admitted against him at trial, and to the sufficiency of the evidence on several counts. We affirm.


In March 1989, Blake purchased two semiautomatic pistols from a dealer at a trade show in Dallas. He completed the transaction forms using the alias of Winston Wilson.

In early April 1990, Dallas police officers observed Blake during a "reverse" drug transaction. An officer conducting undercover negotiations offered to sell two kilos of cocaine to Blake and another individual. Blake stood close by and observed the officer exchange the cocaine for $52,000. An arrest signal was given, and Blake's companion was apprehended. Blake escaped in a Nissan 300ZX. While not charged in the indictment, this drug sale was described to the jury in the government's rebuttal case.

Blake was arrested on April 12, 1990, after coming under police surveillance based on a warrant for his arrest regarding the firearms purchase under the alias of Winston Wilson. This surveillance culminated in a car chase, which ended in a wreck of the Nissan 300ZX in which Blake was a passenger.

At trial the government elicited testimony that, after his arrest, Blake spoke freely while in custody to law enforcement officers, confessing to a variety of criminal activities which included the conduct subsequently charged in the indictment. Blake denied these statements at trial, along with any other knowledge of criminal trafficking in narcotics. Blake did sign consents to search the wrecked car and two apartments. Officers testified that he told them where the key to one of the apartments could be found. They also testified that he described a hiding place under a kitchen baseboard where he had stashed crack cocaine, a gun, and money, and informed them of a cache of weapons and ammunition in a pillowcase in the bedroom.

The officers found an automatic submachine gun, 161 grams of crack cocaine, and $6,000 in cash hidden behind the baseboard. A pillowcase in the bedroom contained four 9mm pistols and ammunition. They also discovered razors, plastic baggies, and a set of scales. In the car, the officers found two loaded guns, one in a bag under the passenger floorboard and the other in the driver's purse.

Blake was indicted on seven counts. Count 1 charged use of false identification in the acquisition of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(1). Counts 2 and 7 charged possession of firearms by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Count 2 concerned Blake's purchase in March 1989 of the two semiautomatic pistols. Count 7 concerned the submachine gun and four 9mm pistols seized in the apartment after his arrest. Count 3 charged possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count 4 charged unlawfully receiving and possessing an unregistered firearm--the submachine gun hidden under the baseboard--in violation of 26 U.S.C. §§ 5861(d) and 5871. Counts 5 and 6 charged use of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Count 5 concerned the submachine gun found with the cocaine hidden under the baseboard. Count 6 concerned the four 9mm pistols found in the pillowcase in the bedroom.

A jury convicted him on all counts. The trial court imposed a total term of imprisonment of 50 years and 8 months. The district court also imposed a supervised release term of five years and made a special assessment of $350. Blake filed this timely appeal.


Blake argues that the indictment improperly joined two groups of offenses. He also raises several evidentiary issues from the district court's conduct of his trial. Finally, he challenges the sufficiency of the evidence against him on several of the counts.

A. Joinder of Offenses

Blake argues that the indictment charged two groups of offenses. Counts 1 and 2 concern his unlawful possession and acquisition of firearms in March 1989. The remaining counts all concern the events surrounding his arrest on April 12, 1990. The district court denied Blake's motion for severance of these two groups of offenses. Misjoinder is a question of law we review de novo. United States v. Park, 531 F.2d 754, 760 (5th Cir.1976).

The district court did not err. Rule 8 of the Federal Rules of Criminal Procedure is broadly construed in favor of initial joinder. United States v. Scott, 659 F.2d 585, 589 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 105 (1982). Rule 8(a) allows joinder of offenses if the offenses charged "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." FED.R.CRIM.P. 8(a). Both groupings of offenses contain the identical charge of unlawful possession of firearms by an illegal alien. Joinder was permissible under Rule 8(a). Blake does not allege any prejudice--much less substantial prejudice--flowing from the district court's discretionary decision denying severance of these counts. See Scott, 659 F.2d at 589. Accordingly, the district court's ruling allowing these counts to proceed to trial under a single indictment was not error.

B. Evidentiary Issues
1. Extrinsic evidence of a prior act of misconduct

In its case-in-chief the government elicited testimony from three Dallas police officers that Blake had admitted involvement in the crimes charged and in other criminal activity. On direct and cross-examination, Blake denied making any incriminating statements to the police officers. On rebuttal, the government called a detective of the Dallas Police Department to testify, over Blake's objection, about Blake's presence at the "reverse" purchase operation detailed in the facts above.

Blake contends this was improper impeachment, citing Rule 608(b) of the Federal Rules of Evidence. This rule provides:

(b) Specific instances of conduct.--Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

FED.R.EVID. 608(b).

Under Rule 608(b) it is error to attack a witness' general character for truthfulness by using extrinsic evidence of his conduct that has not resulted in conviction of a crime. United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980). We have, however, held that "Rule 608(b) should not stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness's testimony as to a material issue of the case." United States v. Opager, 589 F.2d 799, 803 (5th Cir.1979).

Blake's admissions, in which he indicated that he had been extensively involved in drug trafficking, was a primary part of the government's case-in-chief. As such, the admission that he was in the drug business was clearly a material issue in the case. When Blake denied making the incriminating statements to the police officers on direct, he called into question the veracity of the officers' testimony about the confession. The government was entitled to present evidence about Blake's prior involvement with drugs to corroborate the testimony about Blake's confession. Evidence of other drug transactions corroborates Blake's admissions about drug trafficking. That Blake was a drug trafficker tends to show that the guns and cocaine found secreted in his girlfriend's apartment were part of his drug business. We follow the recent decision in United States v. Cardenas, 895 F.2d 1338, 1345-46 (11th Cir.1990). Under indistinguishable facts, that court stated:

We do not believe that Rule 608(b) operates to exclude testimony such as this. Material relevant evidence, such as that presented by the government, which contradicts other material evidence does not tend to focus the jury's attention on an unrelated collateral matter, so as to confuse the jury and needlessly expend valuable time. Rather, such evidence aids the jury in determining whether a defendant actually and intentionally involved himself in the charged misconduct; its impeachment effect is merely ancillary.

Id. at 1346; see also United States v. Cousins, 842 F.2d 1245, 1248-50 (11th Cir.), cert. denied, 488 U.S. 853, 109 S.Ct. 139, 102 L.Ed.2d 111 (1988). The Ninth Circuit has likewise concluded that "[i]ndividual rules of evidence, in this instance Rule 608(b), should not be read in isolation, when to do so destroys the purpose of ascertaining the truth. This is especially so when a witness directly contradicts the relevant evidence which Rule 608(b) seeks to exclude." United States v. Batts, 558 F.2d 513, 517 (9th Cir.1977), opinion withdrawn and aff'd on other grounds, 573 F.2d 599, cert. denied, 439 U.S. 859, 99 S.Ct. 178,...

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