U.S. v. Bobo

Decision Date30 November 1978
Docket NumberNo. 77-5523,77-5523
Citation586 F.2d 355
Parties3 Fed. R. Evid. Serv. 1622 UNITED STATES of America, Plaintiff-Appellee, v. Augustus Charles BOBO, Jimmy Hancock, Jimmy Bruce Rowan, and Robert W. Kennington, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

John C. Rockett, Jr., Birmingham, Ala. (Court-appointed), Fred Blanton, Jr., Birmingham, Ala. (Court-appointed Co-counsel), for Bobo.

Roger C. Appell, Birmingham, Ala. (Court-appointed), for J. Hancock.

John Tucker, Jr., Birmingham, Ala., Rowan S. Bone, Gadsden, Ala., for Rowan.

J. Louis Wilkinson, Birmingham, Ala., for Kennington.

J. R. Brooks, U. S. Atty., Bill L. Barnett, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, * District Judge.

TJOFLAT, Circuit Judge:

Jimmy Bruce Rowan, Jimmy Hancock, Robert W. Kennington and Augustus Charles Bobo were convicted by a jury of conspiring to possess and distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1976). In addition, Jimmy Bruce Rowan was convicted of nine counts of possessing and aiding and abetting in the possession of heroin with intent to distribute, 1 in violation of 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976). 2 Rowan, Hancock, and Bobo were each sentenced to fifteen years on Count 1 of the indictment, the conspiracy count. Kennington was sentenced to ten years, to begin upon completion of a five-year state sentence he was already serving. Rowan was sentenced to fifteen years on each of the substantive counts, the first two terms to run consecutive to one another and to the sentence on Count 1, and the remaining seven terms to run concurrent with the prior terms.

Rowan claims (1) that his conviction is barred by the double jeopardy clause because it resulted from a retrial after the declaration of a mistrial to which he did not personally consent, (2) that the trial judge should have recused himself, (3) that a Government witness should have been barred from testifying for violation of Fed.R.Evid. 615, and (4) that a codefendant's confession was admitted in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Hancock and Kennington challenge the sufficiency of the evidence against them. Bobo contends that he was prejudiced by the improper admission of hearsay evidence of an offense extrinsic to his indictment. We affirm as to all the appellants.

I. FACTS

Only the Government presented evidence, and, according to the testimony of its witnesses, Jimmy Bruce Rowan operated a heroin distribution ring centered in Attalla, Alabama, from at least December of 1975 until his arrest in April 1977. Heroin was purchased from contacts in Detroit and Chicago and transported to Attalla, where it was cut and distributed for sale. Rowan's operation grew from approximately five people in 1975 to some fifty-two people at the height of the conspiracy in 1976, at which time a pound of heroin was being distributed each week. At that point it became evident that someone in the organization was "snitching," and a purge began. One member was murdered in July 1976, and the operation shrank until in April of 1977 only four trusted people were distributing four to six ounces a week.

Rowan was the ringleader of the operation. He made all of the buying trips to Chicago and Detroit, accompanied by one or more of the coconspirators. Jerry Thomas Grace, an unindicted coconspirator and the Government's chief witness, accompanied Rowan on several heroin buying trips from December 1975 until his arrest in August 1976. Grace was a user and would "shoot up" a sample of the heroin Rowan was buying to test its quality. He testified that Hancock was with them on one of these trips and was paid in heroin for coming along. He also testified to sales of substantial quantities of heroin to Kennington and Bobo.

On April 6, 1977, Rowan sold an ounce of heroin to an undercover agent named Larry Hahn. Rowan said he was going to make one more buying trip to Chicago and then stop for a year to let his name "cool off" with the investigative authorities. He offered to introduce Hahn to his source of supply in Chicago. The meeting was to have taken place in Chicago within the next few days, but Hahn did not go. Instead, stakeouts were set up in Attalla to await Rowan's return.

In the early hours of the morning of April 9, Rowan's car was spotted turning off the interstate into Attalla. Drug Enforcement Administration (DEA) agents and officers from the Attalla Sheriff's Department followed, and one of the officers saw defendant Roger Dale Willet jump out and run for the bushes. The car drove another twenty feet and then stopped in front of 901 West Fifth Avenue, the house owned by Rowan's father. As Rowan stepped out of his car, DEA agents approached him, identified themselves, and searched the car and Rowan. The only suspicious item discovered was a driver's license bearing the name Larry Pitt, which was found under the front seat of the car.

Willet was found about three hours later in the vicinity of the house next door to 901 West Fifth Avenue. Plastic packets containing ninety-five grams of heroin were found on the ground thirty feet away from where Willet was apprehended. He was taken into custody by the Sheriff's office. When arrested one month later on the charges for which he now stands convicted, Willet confessed that on April 8 and 9 he had made a trip with Rowan to Chicago, where Rowan had purchased four ounces of heroin. Upon arriving back in Attalla, Willet had noticed they were being followed by the police. Willet stated that in accordance with a prearranged plan, he had jumped from the car with the heroin and had hidden in the woods, where he was later found and arrested. He said that he had thrown the heroin to the ground before he was discovered.

The indictment named the appellants and fourteen others. Count 1 charged all defendants with conspiracy to possess heroin with intent to distribute. Counts 2 through 16 charged several of the conspirators with individual substantive offenses of possession with intent to distribute. Rowan was charged with fourteen counts of possession, Bobo with two, Kennington with two, and Hancock with one. 3 The appellants and five others were brought to trial on these charges on August 1, 1977. On August 3, a mistrial was declared when it became apparent that the defense attorney cross-examining Grace, the Government's star witness, had represented Grace twenty years earlier in connection with another matter. The two defendants represented by that attorney were severed from the case, and the second trial for the remaining seven defendants began the following Monday, August 8. Five were convicted, see notes 2, 3 Supra ; hence these appeals.

II. ANALYSIS

Four defendants join in this appeal. Each appellant raises separate claims of error, and some join in the claims of others. We shall discuss the claims of each appellant in turn, with cross references where appropriate.

A. Jimmy Bruce Rowan

We first discuss Rowan's contention that his second trial was held in violation of his rights under the double jeopardy clause. 4 A decision on this claim requires careful scrutiny of the circumstances surrounding the declaration of the mistrial. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

After the Government completed direct examination of its chief witness, Jerry Thomas Grace, Mr. Bone, who represented two of the defendants, began to cross-examine. The parties had all agreed that cross-examination by any one defendant would be on behalf of all, with each having the right to ask additional noncumulative questions in turn. Mr. Bone began to explore Grace's criminal record, at which point the following exchange took place:

Q (Mr. Bone) And I think your next offense was what, sir?

A (Grace) Murder.

Q Murder?

A Yes, sir. You were my attorney. You should remember it well.

Q All right. I represented you.

I think you plead guilty to manslaughter, did you not, sir?

MR. BARNETT (the Assistant U. S. Attorney): Your Honor, may we approach

A Yes, I did, when you didn't show up at my trial.

MR. BARNETT: May we approach the bench?

THE COURT: Yes, I think you should. Come over here.

Record, vol. 3, at 311-12.

At the subsequent sidebar conference, Mr. Barnett suggested that Mr. Bone's prior representation of Grace raised a possible sixth-amendment-effective-representation question since his knowledge of privileged matters might limit the scope of his cross-examination to the detriment of the interests of his clients then on trial. Mr. Bone said he could not recall ever having represented Grace. Mr. Bowen, counsel for Rowan and acknowledged lead counsel for all the defendants, indicated he thought the possibility of prejudice remote in view of the fact that the alleged prior representation had taken place twenty years previously. Id. at 313. The Government said it would not be willing to go forward unless the conflict of interest were waived on the record by the defendants involved. At this point the jury was excused, after which the witness testified, in the presence of the defendants, that Mr. Bone had been paid to represent him in connection with a murder charge in 1958, that Mr. Bone accepted the money and discussed the case with Grace but did not represent him, and that Grace pleaded guilty to manslaughter on the advice of another attorney. Id. at 316-17. Grace also said that in the early part of 1976, during the time of the conspiracy alleged in the indictment, he had consulted Mr. Bone, at the advice of Rowan, about a charge of possession of three grams of heroin, an incident related to the case on trial. Id. at 319-20. Grace did not employ Mr. Bone to represent him at that time. Mr. Bone insisted that he could not...

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