U.S. v. Boyd

• Decision Date: 19 February 1980
• Docket Number: 79-1492 and 79-1554,Nos. 79-1482,s. 79-1482
• Citation: U.S. v. Boyd, 610 F.2d 521 (8th Cir. 1980)
• Parties: 5 Fed. R. Evid. Serv. 43 UNITED STATES of America, Appellee, v. Paul BOYD, Appellant. UNITED STATES of America, Appellee, v. Danilo Zabala ARTEZ a/k/a Chico Artez, Appellant. UNITED STATES of America, Appellee, v. George CLARK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 521

610 F.2d 521

5 Fed. R. Evid. Serv. 43

UNITED STATES of America, Appellee, v. Paul BOYD, Appellant.

UNITED STATES of America, Appellee, v. Danilo Zabala ARTEZ a/k/a Chico Artez, Appellant.

UNITED STATES of America, Appellee, v. George CLARK, Appellant.

Nos. 79-1482, 79-1492 and 79-1554.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1979.

Decided Dec. 6, 1979.

Certiorari Denied Feb. 19, 1980.

See 100 S.Ct. 1052.

Wood R. Foster, Jr., Grossman, Karlins, Siegel & Brill, Minneapolis, Minn., for appellant, Boyd, in No. 79-1482.

Peter J. Thompson, Delaney & Thompson, Ltd., Minneapolis, Minn., for appellant, Artez, in No. 79-1492.

Mark W. Peterson, Friedberg & Peterson, Minneapolis, Minn., for appellant, Clark, in No. 79-1554.

Daniel W. Schermer, Asst. U.S. Atty., Minneapolis, Minn. (argued), and Thorwald H. Anderson, U.S. Atty., Minneapolis, Minn., on brief, for appellee.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Defendants Danilo Artez and Paul Boyd appeal from their convictions by a jury and defendant George Clark appeals from the district court's ¹ denial of a motion to withdraw a plea of guilty. The appeals have been consolidated. We affirm the convictions of Artez and Boyd, and the denial of Clark's motion.

On January 12, 1979, a federal grand jury returned a superseding indictment against defendants Danilo Zabala Artez a/k/a Chico Artez, George Clark, Marquetta Hays, Paul Boyd, and Wilbert Farrell Ratliff a/k/a Jimmy Taylor. The indictment charged the defendants had violated 18 U.S.C. §§ 2421-22 (Mann Act); 18 U.S.C. § 1952 (Interstate Travel in Aid of Racketeering); and 18 U.S.C. § 371 (Conspiracy).

The trial began on March 13, 1979. On March 21, 1979, defendant George Clark entered a guilty plea to one of three counts against him. On March 30, 1979, after two and one-half days of deliberation, the jury returned its verdict. Artez was convicted on eight of twelve counts; Marquetta Hays was convicted on all four counts with which she was charged; Paul Boyd was convicted on one of the four counts against him; and Jimmy Taylor was acquitted of the crime of conspiracy, the only charge against him.

On May 30, 1979, Artez was sentenced to fifteen years imprisonment and Boyd to four years imprisonment. The next day Clark, who had obtained a delay in sentencing, moved to withdraw his guilty plea. The court held an evidentiary hearing on Clark's motion and then, on June 26, 1979, denied the motion. On June 29, 1979, Clark was sentenced to three years imprisonment.

I. George Clark

Defendant Clark appeals the district court's refusal to withdraw his guilty plea. Withdrawal is allowed pursuant to the terms of Fed.R.Crim.P. 32(d). The trial started on March 13, 1979, and Clark entered a plea on March 21, 1979, after most of the evidence relating to his involvement had been received. Sentencing of defendant and his co-defendants who were found guilty by the jury was set for May 30, 1979. At Clark's request, his sentencing was postponed. The day after his co-defendants were sentenced, Clark, sought to withdraw his guilty plea.

Clark's contentions arise from the viability of a possible state charge under investigation by state law enforcement officials, which concerned an alleged kidnap of a young woman by Clark and co-defendant Jimmy Taylor. The prosecutor stated as a basis ² for the plea negotiations that state authorities would not proceed with their investigation if Clark received a jail sentence, otherwise they would proceed. Clark does not claim the assurance was broken, but states it was meaningless and fraudulent because state authorities never intended to prosecute him for this incident.

Fed.R.Crim.P. 32(d) distinguishes between motions to withdraw a guilty plea made before and after sentencing. Generally presentence motions are to be judged on a "fair and just" standard. United States v. Lambros, 544 F.2d 962, 965 (8th Cir. 1976), Cert. denied, 430 U.S. 930, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). In reviewing the denial of the motion to withdraw a guilty plea, we will reverse only for abuse of the trial court's discretion and the burden is upon the petitioner to establish his grounds for withdrawal of the pleading. Smith v. United States, 359 F.2d 481, 483 (8th Cir. 1966).

Clark attempted to meet this burden by showing that co-defendant Jimmy Taylor, though acquitted on the federal charge, was not prosecuted by the state for the alleged kidnap, and that he received only a light sentence on an unrelated state charge. We believe the district court conducted a proper hearing, and determined that the state investigation was under way. The court concluded that the defendant received the benefit of his bargain because his plea and sentence to incarceration stayed the state investigation. It determined Clark failed to prove state authorities would not have prosecuted him. We cannot say this finding is clearly erroneous. We are satisfied that the district court's denial of the motion to withdraw the plea of guilty was not an abuse of discretion.

We also note that Clark did not attempt to withdraw his plea until after his co-defendants were sentenced to incarceration. The district court could have concluded that withdrawal would have allowed Clark to use the guilty plea as a means of testing the weight of the potential sentence, which is a primary policy ground for denying plea changes. United States v. Kay, 537 F.2d 1077, 1078 (9th Cir. 1976). See United States v. Simmons, 497 F.2d 177, 179 (5th Cir.), Cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 643 (1974).

II. Danilo Artez

A. Jury Misconduct

Defendant Boyd joined defendant Artez in alleging juror misconduct during the trial. The district court's opinion concerning this issue, United States v. Artez, 468 F.Supp. 456 (D.Minn.1979), recites in detail the circumstances surrounding the alleged misconduct. Briefly, alternate juror Hansen was excused from the case when the jury retired to deliberate. After being so discharged, Hansen had a brief discussion with co-defendant Jimmy Taylor. Hansen told Taylor that he knew of Taylor and Boyd through friends, and if he, Hansen, was on the jury they would have been convicted immediately.

The district court promptly conducted a hearing and Taylor testified to the above conversation. The court allowed the jury to finish deliberations and return the verdicts. It then questioned each juror about any conversations they may have had with alternate juror Hansen concerning the defendants, or any conversations they had prior to the beginning of deliberations concerning the guilt or innocence of any of the defendants. Eleven of the twelve jurors answered "No" unequivocally to all questions.

One juror, Mr. Jerome Buboltz, answered "Yes" to one question, and as a result was interrogated by the court. That inquiry appears at 468 F.Supp. 458-59. Apparently Hansen had said to Buboltz early in the trial that "it looks like they are all guilty, you know," or something similar. Buboltz answered questions from the court indicating he did not take the comment seriously or consider it in reaching his decision, which he stated was based only on evidence heard in court and exhibits received in evidence.

The defendants' contention is that the court should have also allowed defense counsel to question Mr. Buboltz and that alternate juror Hansen should have been called. We are satisfied by the district court's investigation of this issue and approve of its conclusion:

In summary, in response to defense counsel's allegations of juror misconduct, the Court interrogated the source of those allegations, Mr. Taylor, and each of the jurors individually after verdicts were returned. See, Taylor v. Mabry, 593 F.2d 318, 320 (8th Cir. 1979); United States v. Eagle, 539 F.2d 1166, 1170-71 (8th Cir. 1976), Cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); United States v. Williams, 545 F.2d 47, 51-52 & n. 5 (8th Cir. 1976). That interrogation and the verdicts themselves firmly convince the Court that the jurors who passed upon the guilt or innocence of the defendants were untainted by any misconduct. Further exploration of the alleged misconduct is unwarranted.

468 F.Supp. at 460.

B. Severance

Both Artez and Boyd raised contentions on appeal relating to whether defendants were so prejudiced by the joint trial as to require severance. The contentions made by Boyd are different than those made by Artez, but basically there is agreement that joinder under Fed.R.Crim.P. 8 was proper. Defendants argue that severance was mandated by Fed.R.Crim.P. 14 because of alleged prejudice resulting from the joint trial.

The principles which must be applied here were discussed in detail in United States v. Jackson, 549 F.2d 517, 523-29 (8th Cir.), Cert. denied,430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). That case first noted the general rule that persons charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts. The motion to sever is addressed to the discretion of the trial court and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown. A defendant must show something more than the fact his chances for acquittal would have been better had he been tried separately, he must affirmatively demonstrate the joint trial prejudiced his right to a fair trial. Id. at 523-24.

Boyd's major contention is that only two of twenty-eight witnesses testified with reference to his activities, and without the overwhelming bulk of other evidence which did not pertain to Boyd, but which was highly inflammatory, he would not have been found guilty of conspiracy.

A similar contention was made in Jackson, supra. That court stated that a "defendant is not entitled to severance merely because the evidence against a co-defendant...