U.S. v. Bovain

• Decision Date: 27 June 1983
• Docket Number: No. 81-7350,81-7350
• Citation: 708 F.2d 606
• Parties: 13 Fed. R. Evid. Serv. 1123 UNITED STATES of America, Plaintiff-Appellee, v. Annie Ruth BOVAIN, Willie Alfred Brown, Dean Rickett, William Laselle Thornton, Charles Finch, William Clyde Perkins, Alvin R. Heath, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 606

708 F.2d 606

13 Fed. R. Evid. Serv. 1123

UNITED STATES of America, Plaintiff-Appellee, v. Annie Ruth BOVAIN, Willie Alfred Brown, Dean Rickett, William Laselle Thornton, Charles Finch, William

Clyde Perkins, Alvin R. Heath,

Defendants-Appellants.

No. 81-7350.

United States Court of Appeals, Eleventh Circuit.

June 27, 1983.

Thomas W. Witcher, Decatur, Ga. (Court appointed), for Bovain.

Douglas N. Peters, Decatur, Ga. (Court appointed), for Brown.

Allan A. Ackerman, Chicago, Ill., for Rickett et al.

P. Bruce Kirwan, Atlanta, Ga. (Court appointed), for Thornton.

Brooks S. Franklin, Atlanta, Ga., for Finch.

Joseph M. Winter, Atlanta, Ga., for Perkins.

Cyril C. Hall, Pontiac, Mich. (Court appointed), for Heath.

William L. Harper, U.S. Atty., Julie E. Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The appellants were charged in the United States District Court for the Northern District of Georgia with unlawful distribution of, and conspiracy to distribute, heroin in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976). Three were found guilty only of conspiracy and four were convicted on both conspiracy and substantive distribution counts. Three other defendants were acquitted by the jury. Finding no error, we affirm.

In 1977, John Nichols, who later pled guilty and testified for the government, introduced Charles Finch, a resident of Atlanta, Georgia to Dean Rickett, who lived in Chicago, Illinois. Thereafter, Finch began traveling to Chicago and Indianapolis every four or five days to purchase large quantities of heroin from Rickett. Annie Bovain assisted Finch in cutting and selling the drug in Atlanta. Willie Brown bought heroin from them for resale to his own customers, one of whom was an undercover agent. The police learned through a reliable informant that a major heroin supplier lived at 3255 Chestnut Drive, Apartment 16, the residence of Annie Bovain. The agents set up a surveillance of the apartment and observed Brown and Finch entering the premises. On May 10, 1977, they obtained a search warrant and entered the dwelling, seizing a quantity of heroin just as Bovain and Finch were attempting to flush it down the toilet. Bovain, Brown, and Finch were then arrested in the apartment.

Soon after that time, Brown and Finch were tried and convicted in Florida on state narcotic charges. For awhile, the drug operation "cooled down," but Finch soon escaped from custody and by the autumn of 1978, Finch, Nichols, Rickett, Alvin Heath, William Thornton and William Perkins were all trafficking in heroin together. Twice in January, 1979, Nichols, accompanied by Finch, sold to an undercover agent heroin that Thornton and Finch had obtained from Rickett. Nichols also made several sales to Perkins, whose customers wanted small quantities. Agents of the Drug Enforcement Administration (DEA) arrested Nichols on February 28, 1978 and he thereafter began cooperating with the government.

On August 7, 1979, a grand jury indicted the appellants and several other defendants. The grand jury returned a superseding indictment on October 5, 1979. Trial began on December 4, 1979, but the district court declared a mistrial six days later. The second trial--against fewer defendants--did not begin until February, 1981. Nichols pled guilty and was a key witness for the prosecution. Three of the indicted participants were acquitted. Of the appellants, Heath, Perkins, and Brown were convicted only of conspiring to distribute heroin, whereas Bovain, Finch, Rickett, and Thornton were found guilty of both conspiracy and substantive distribution charges.

Thornton, Rickett and Brown contend that the district court erred in denying their motions for severance. Fed.R.Crim.P. 14 provides for a severance when it appears that a defendant or the government is prejudiced by a joinder of defendants or offenses. The grant or denial of a severance is within the discretion of the trial judge, United States v. Butera, 677 F.2d 1376 (11th Cir.1982), and will be overturned only upon a showing of an abuse of discretion. United States v. Badolato, 701 F.2d 915 at 923 (11th Cir.1983); United States v. Riola, 694 F.2d 670, 672 (11th Cir.1983). The defendants must demonstrate that the denial of a severance resulted in "specific and compelling prejudice against which the trial court was unable to afford protection." Id. It is a generally accepted principle that in conspiracy cases, defendants jointly indicted should be tried together. United States v. Lippner, 676 F.2d 456, 464 (11th Cir.1982). Only if the jury could not "separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him" should severance be granted. The test is a stringent one. Id.; United States v. Brock, 669 F.2d 655, 660 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982).

Willie Brown alleges that he suffered compelling prejudice because he was not permitted to present his complete defense. The district court refused to admit testimony that Brown was incarcerated early in the conspiracy after his Florida conviction. The purpose of this evidence, according to Brown, was to demonstrate his lack of guilt in the later illegal acts committed by his alleged coconspirators. The government objected to such testimony on the ground that Brown would be suggesting to the jury that he was already being punished, and should not be penalized twice for the same crime. His codefendants claimed that the "spillover" effect of Brown's admission of guilt would unfairly prejudice them. The district court carefully weighed the competing interests and considered whether Brown would be denied equal protection if he were precluded from explaining his whereabouts from 1977 to 1979, while the other defendants could try to exculpate themselves. Ultimately, Brown's attorney was allowed to state to the jury that his client had been in jail during this time and that the evidence of events occurring after May 10, 1977 did not implicate Brown. Thus, he had the opportunity to show why he could not have participated in the illegal drug transactions transpiring after 1977. The fact that he was not permitted to dwell at length upon his earlier conviction cannot be said to have prejudiced his case, nor was it an abuse of the district court's discretion to limit the information on this matter.

William Thornton, on the other hand, insists that he was prejudiced by the "spillover" effect of Brown's acknowledged guilt despite the district court's efforts to limit its harmful impact on the other defendants. Consequently, he asserts that he was entitled to a severance. Both the Eleventh and former Fifth Circuits ¹ have emphasized that some bias is inherent in every trial, and only when "such prejudice appears to be compelling does severance become warranted." Lippner, 676 F.2d at 464, quoting Brock, 669 F.2d at 660 and United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973). The well established test for determining when the spillover effect of one codefendant's guilt results in compelling prejudice to another is

[w]hether under all circumstances of the particular case ... it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.

Badolato, at 924, and cases cited therein.

The resolution of prejudicial effect depends on the facts of each particular trial. This court has recently held, in two instances, that the government's introduction of extrinsic crimes evidence against some defendants did not prejudice the others. Badolato, at 924; Lippner, 676 F.2d at 465. The case at bar differs slightly in that the jury became aware of Brown's prior conviction through his own disclosure rather than through the efforts of the prosecution. However, as in Badolato and Lippner, the district court took great pains to instruct the jury that the evidence against each defendant must be weighed separately. Record, vol. 21 at 4-8. The acquittal of three defendants reinforces the conclusion that the jury was able to make distinct assessments of each case. Any possible spillover effect did not result in a tainted, "blanket" guilty verdict. Moreover, Thornton's drug transactions occurred after Brown's imprisonment, so there was little, if any, possibility of confusion or harmful overlap of the evidence. In these circumstances, we do not believe that Thornton suffered compelling prejudice as a result of the joint trial.

Rickett's motion for a severance was based on three reasons. First, he claims there was a misjoinder because the evidence revealed two conspiracies, not one as alleged by the government. He urges that the activities prior to the May 10, 1977 arrest were separate from the subsequent drug sales. We disagree. Even if there were two conspiracies, "[p]roof of multiple conspiracies does not automatically constitute a fatal variance from a [single] conspiracy charged." United States v. L'Hoste, 609 F.2d 796, 801 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980), quoting United States v. Wayman, 510 F.2d 1020 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975).

Rickett next maintains that his trial should have been severed because he and Finch asserted inconsistent and antagonistic defenses. This multi-defendant trial presented many pitfalls, and the trial court was mindful of the potential prejudice to other defendants because of the...