U.S. v. Bouck

• Decision Date: 12 June 1989
• Docket Number: Nos. 87-1651,87-1712,s. 87-1651
• Citation: 877 F.2d 828
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald BOUCK and Corey Day, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 828

877 F.2d 828

UNITED STATES of America, Plaintiff-Appellee, v. Ronald BOUCK and Corey Day, Defendants-Appellants.

Nos. 87-1651, 87-1712.

United States Court of Appeals, Tenth Circuit.

June 12, 1989.

Jerome H. Mooney of Mooney & Associates, Salt Lake City, for defendants-appellants.

Wayne T. Dance, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Before LOGAN, BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

A jury convicted Ronald Bouck of conspiracy (21 U.S.C. Sec. 846), three separate counts of possession of cocaine with an intent to distribute (21 U.S.C. Sec. 841(a)(1)), and one count of unlawful use of the telephone (21 U.S.C. Sec. 843(b)). The same jury convicted Corey Day of conspiracy (21 U.S.C. Sec. 846), three separate counts of possession of cocaine with an intent to distribute (21 U.S.C. Sec. 841(a)(1)), and one count charging an unlawful use of the telephone (21 U.S.C. Sec. 843(b)). ¹

Bouck was sentenced to eight years imprisonment on the conspiracy conviction and on one count of the distribution conviction, to be served concurrently, and he was also sentenced to a special parole term of three years on the distribution conviction. On the remaining convictions for possession with intent to distribute and unlawful use of a telephone, Bouck was placed on probation for five years to commence after he had served his sentences. Additionally, Day was sentenced to five years imprisonment on the conspiracy conviction and on one count of the distribution conviction, to be served concurrently, and he was also sentenced to a special parole term of three years on the distribution conviction. On the remaining convictions for possession with intent to distribute and unlawful use of a telephone, Day was placed on five years probation to commence after he had served his sentences. Both appeal their respective convictions and the sentences imposed thereon. ²

Both appellants argue the following: (1) the indictment charged one conspiracy, whereas the government's evidence showed multiple conspiracies; (2) the government's investigation constituted outrageous government conduct requiring a dismissal of all charges; (3) prosecutorial misconduct in closing argument to the jury; and (4) improper admission of hearsay evidence under the conspiracy exception. Additionally, Bouck argues that the evidence is insufficient to sustain his convictions on the three counts charging him with possession of cocaine with an intent to distribute. We are not persuaded by any of these arguments and, therefore, affirm.

The government's theory of the case was that for some time prior to the dates of the several offenses charged in the indictment, Scott Nichols, a co-defendant, and Milton Singleton, not a party to this action, had been importing cocaine from California and Florida into Salt Lake City, Utah. Upon arrival it was cut, packaged, and sold to others who in turn sold it at retail in the Salt Lake City area. Eventually, Milton Singleton was arrested in Florida and his sister, Bonnie Kemp, became concerned that Nichols, and others, were "taking over" her brother's drug business. Bonnie Kemp then enlisted the aid of her friend, John Clayton, to help her check into the situation.

Unbeknownst to Kemp, Clayton contacted the Federal Bureau of Investigation and reached an agreement to infiltrate the drug operation. Clayton became involved in the alleged conspiracy to the extent that he "kept the books" and, in connection therewith, attended various meetings of the conspirators, frequently in the company of Scott Nichols and others who actually imported and distributed the cocaine. Thereafter, Nichols continued to import cocaine from California and Florida to Salt Lake City, Utah, where it was distributed to various dealers.

Appellants' initial argument is that the government in the indictment alleged a single conspiracy but that its evidence established more than one conspiracy, and that such constitutes a misjoinder necessitating a dismissal of the conspiracy count because of duplicitous pleading. In thus arguing, appellants rely on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In that case the government conceded that it had alleged one conspiracy, but at trial had established eight, and the only issue was whether such a discrepancy was only harmless, or prejudicial. If it were harmless, the convictions apparently would have been upheld. See Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Be that as it may, the Supreme Court in Kotteakos held that the variance was prejudicial and reversed. In our case, however, the government makes no such concession as it made in Kotteakos and argues that its evidence established only one conspiracy involving many actors, large amounts of cocaine and a common goal, that is, making lots of money on a continuing basis.

In situations analogous to the present one we have constantly rejected the multiple conspiracy argument. See United States v. Dickey, 736 F.2d 571 (10th Cir.1984); United States v. Watson, 594 F.2d 1330 (10th Cir.), cert. denied sub nom. Brown v. United States, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). Further, the fact that Bouck and Day did not know the names of the sources for cocaine in Florida and California does not establish more than one conspiracy. In Watson, addressing the same general arguments as appellants raise here, we spoke as follows:

We have discussed the evidence in detail earlier. It suffices to note here that it demonstrated that Anderson supplied drugs from California to Thompson, the Tulsa wholesaler, who distributed them to various street dealers, including these three appellants. From evidence of the volume and nature of their operations, an inference may be drawn of awareness by appellants of the scope of the narcotics conspiracy.

Where large quantities of narcotics are being distributed, each major buyer may be presumed to know that he is part of a wide-ranging venture, the success of which depends on performance by others whose identity he may not even know. United States v. Heath, 580 F.2d 1011, 1022 (10th Cir.). We are satisfied that the evidence here shows a common design to acquire and distribute heroin and cocaine, id. at 1022, and that it was permissible to link the appellants with Thompson and Anderson. Whether the evidence was sufficient to establish the single conspiracy charge was a question for the jury.

Watson, 594 F.2d at 1339-40 (footnote omitted) (emphasis added). Accordingly, appellants' multiple conspiracy argument is not persuasive.

Bouck and Day next argue that the government's investigation constituted outrageous governmental misconduct which violated their fifth amendment right of due process and also was in violation of the doctrine of separation of powers between the legislative and executive branches of government, as set forth in article I, section 1 and article II, section 3. ³ The argument, though twofold, is in each instance based on Clayton's conduct as authorized and permitted by the Department of Justice. Appellants would have us believe that "but for" Clayton's activities there would not have been any importation of cocaine by them, or any other alleged conspirators, from Florida and California with subsequent distributions in the Salt Lake City area. ⁴ This hypothesis is seriously weakened by the fact that Scott Nichols, and others, were importing cocaine from Florida and California for distribution in the...