U.S. v. Blevins

• Decision Date: 31 March 1992
• Docket Number: Nos. 91-5508,s. 91-5508
• Citation: 960 F.2d 1252
• Parties: 35 Fed. R. Evid. Serv. 185 UNITED STATES of America, Plaintiff-Appellee, v. Ervin Jahue BLEVINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joel Amos MITCHELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dewey Glen JOHNSON, Defendant-Appellant. to 91-5510.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1252

960 F.2d 1252

35 Fed. R. Evid. Serv. 185

UNITED STATES of America, Plaintiff-Appellee, v. Ervin Jahue BLEVINS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joel Amos MITCHELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dewey Glen JOHNSON, Defendant-Appellant.

Nos. 91-5508 to 91-5510.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1991.

Decided March 31, 1992.

Thomas Charles Jessee, Jessee & Jessee, Johnson City, Tenn., argued for defendant-appellant Mitchell.

Timothy Wayne Hudson, Slaughter, Hudson & Dougherty, Bristol, Tenn., argued for defendant-appellant Blevins.

William Gordon Ball, Knoxville, Tenn., argued for defendant-appellant Johnson.

Jennie L. Waering, Asst. U.S. Atty., Roanoke, Va., argued (E. Montgomery Tucker, U.S. Atty., on brief), for plaintiff-appellee.

Before WILKINSON, WILKINS, and HAMILTON, Circuit Judges.

OPINION

WILKINSON, Circuit Judge:

Ervin Blevins, Dewey Johnson, and Joel Mitchell appeal their convictions for participation in a drug distribution conspiracy and other drug-related offenses. These convictions came at the end of a complex seven-day trial. As the bases for reversal of the convictions, appellants now allege fourteen separate grounds of error. While we reject thirteen of these grounds as being without merit, we conclude that the introduction into evidence of testimony that six non-testifying co-defendants had pleaded guilty constituted error.

This error must be subjected, however, to harmless error analysis, which must be undertaken with care in a complex drug conspiracy case. Typically such multiple defendant cases present upon appeal difficult questions involving, inter alia, the admission of coconspirator statements, the scope and duration of the alleged conspiratorial conduct, and the introduction of confessions of non-testifying co-defendants that arguably implicate other defendants in the case. The dangers of unreliable or unfairly prejudicial evidence in such cases are significant, and courts must be alert to them. At the same time, these cases may present a technical minefield for prosecutors and judges which makes the perfect trial more the exception than the rule. The defendants in this case were not given a perfect trial, but they were given the fair trial to which they were entitled under the Constitution. We are left, after a careful review of the record, with the firm conviction that the error in this case was harmless beyond a reasonable doubt. We, therefore, affirm the convictions.

I.

The criminal prosecutions here stemmed from an undercover drug investigation conducted by the Drug Enforcement Administration in the Saltville area of southwest Virginia from May 1989 to March 1990. Acting on reports of methamphetamine and cocaine trafficking in the area, the DEA assigned Special Agent David High as its chief undercover operative in the Saltville probe. He was assisted throughout the investigation by a paid DEA informant known as Bear. High began the investigation by making small purchases of drugs from relatively minor dealers in the hope of eventually discovering the major distributors in the area.

Over the first few months of the operation, High purchased drugs from a number of individuals, and through these contacts, he became aware that Joel Mitchell occupied a prominent role in the drug trade in the area. When High later learned that Mitchell had been having difficulty in obtaining a cheap supply of cocaine, High shifted to a reverse undercover operation in which he and Bear portrayed themselves as drug suppliers rather than simply small scale purchasers.

The initial direct contact between High and Mitchell took place on February 16, 1990. At this meeting, High made clear that he could supply Mitchell with cocaine and marijuana. After a series of discussions and negotiations over the next few weeks, Mitchell agreed on March 2, 1990, to purchase three kilograms of cocaine and at least 35 pounds of marijuana from High and Bear. At Mitchell's request, High conducted a practice air drop on March 13, 1990, two days before the scheduled delivery of the drugs. On March 15, 1990, a team of law enforcement officers arrested Mitchell when he arrived at the site where the drugs were to be dropped.

Ervin Blevins and Dewey Johnson were also arrested on March 15. Blevins had been present at Mitchell's house on March 2 when the purchase negotiations were finalized, and he accompanied Mitchell, High, and Bear on a tour of Mitchell's property later that day to scout potential sites for the air drop of the drugs. Blevins was also with Mitchell on March 15 at the site of the planned drop, where Blevins was arrested. As to Dewey Johnson's involvement, Mitchell had made statements to High on March 13 and 15 indicating that he had a partner for the drug purchase. Dewey Johnson matched the description of the unnamed partner, and Johnson was arrested when he was found where Mitchell said his partner would be waiting on the day of the drug delivery.

A federal grand jury returned a twenty-seven count indictment against Mitchell, Blevins, Johnson, and eight other individuals on March 23, 1990. The indictment charged all eleven defendants with participation in a drug trafficking conspiracy and with various other individual crimes related to the drug activities. Prior to trial, eight coindictees entered guilty pleas, leaving only appellants to be tried. The trial of appellants lasted seven days. During the course of the proceedings, the district court entered a judgment of acquittal at the close of the government's case in favor of Joel Mitchell on the charges that he had engaged in a continuing criminal enterprise and money laundering and in favor of Dewey Johnson on a money laundering charge. The court submitted the remaining counts to the jury, which returned verdicts of guilty on all of them.

II.

Three assignments of error involve challenges to the application of Federal Rule of Evidence 801(d)(2)(E), which defines as non-hearsay statements made by a co-conspirator during the course of and in furtherance of a conspiracy. We find these three contentions to be without merit.

A.

Appellant Johnson claims that the district court erred in admitting co-conspirator Joel Mitchell's statements against him pursuant to Rule 801(d)(2)(E). Those statements, as related by Agent High, detailed Johnson's role in funding the drug purchases and also described his physical characteristics and the circumstances of a prior arrest involving significant quantities of marijuana. To admit evidence as a co-conspirator's statement, a court must conclude (1) that there was a conspiracy involving the declarant and the party against whom admission of the evidence is sought and (2) that the statements at issue were made during the course of and in furtherance of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987). Contrary to Johnson's assertion, a court in deciding these factual questions is not precluded from examining the out-of-court statements sought to be admitted; the court may consider those statements in conjunction with other evidence. Id. at 181, 107 S.Ct. at 2781-82. These preliminary questions are subject to a preponderance of the evidence standard of proof. Id. at 175, 107 S.Ct. at 2778-79. Any findings of fact with respect to these questions are subject to a clearly erroneous standard of review, id. at 181, 107 S.Ct. at 2781-82, and a district court's decision to admit evidence under Rule 801(d)(2)(E) may only be overturned on appeal if it constituted an abuse of discretion. See United States v. Curro, 847 F.2d 325, 328 (6th Cir.1988).

We find no such abuse of discretion here. Johnson's claim that the government offered no proof of his involvement in the conspiracy except for Mitchell's statements is simply incorrect. The government offered numerous pieces of evidence that linked Johnson to the description of the unnamed partner contained in Mitchell's statements. To take but one example, Johnson was found on March 15 at Mitchell's vacant store at precisely the time the drug delivery was to occur. Johnson's physical description matched that given by Mitchell. Johnson was found with $6400 on his person, and an additional $35,500 was found hidden in the vacant store. These two amounts added up to just over half of the money for the drug purchase--the amount that Mitchell indicated that "his partner" would be providing. When considered in conjunction with Mitchell's out-of-court statements regarding his partner, the independent pieces of evidence provided ample basis for the district court to conclude that the existence of a conspiracy between Johnson and Mitchell had been shown by a preponderance of the evidence. The fact that the evidence served to corroborate Mitchell's statements does nothing to undermine its independent status under Bourjaily. Given that Mitchell's statements were plainly made during the course of and in furtherance of the conspiracy, we find no error in the district court's admission of them.

B.

Johnson also contends that a trial court may not admit evidence under Rule 801(d)(2)(E) without first making a finding on the record that all the requirements for admissibility under that rule have been satisfied. He claims that no such finding was made in this case. Johnson filed a motion in limine seeking to exclude Mitchell's statements as evidence not falling within Rule 801(d)(2)(E). At a pretrial conference on July 2, 1990, and at the trial on July 3, the district court considered Johnson's motion to exclude the statements. Though the judge declined to make a final ruling, he pointed out that the statements at issue in this case seemed very similar to the ones whose admission had been approved by the Supreme Court in Bourjaily. Johnson's counsel did not object at the time Agent High testified to Mitchell's statements....