U.S. v. Brugman

• Decision Date: 15 May 1981
• Docket Number: 79-5129,Nos. 79-5128,s. 79-5128
• Citation: 655 F.2d 540
• Parties: 8 Fed. R. Evid. Serv. 392 UNITED STATES of America, Appellee, v. Daniel A. BRUGMAN, Appellant. UNITED STATES of America, Appellee, v. Benjamin A. KING, a/k/a Bennie, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 540

655 F.2d 540

8 Fed. R. Evid. Serv. 392

UNITED STATES of America, Appellee, v. Daniel A. BRUGMAN, Appellant.

UNITED STATES of America, Appellee, v. Benjamin A. KING, a/k/a Bennie, Appellant.

Nos. 79-5128, 79-5129.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1981.

Decided May 15, 1981.

Milton E. Grusmark, Miami, Fla., for appellant in No. 79-5128.

Fred D. Clark, Charleston, W. Va., for appellant in No. 79-5129.

E. Leslie Hoffman, III, Asst. U.S. Atty., Charleston, W. Va. (Robert B. King, U.S. Atty., Wayne A. Rich, Jr., Asst. U.S. Atty., Charleston, W. Va., on brief), for appellee.

Before MURNAGHAN and ERVIN, Circuit Judges and ROBERT R. MERHIGE, Jr., United States District Judge, sitting by designation.

MERHIGE, District Judge.

Appellants, and seven other individuals, were indicted for numerous violations relating to drug trafficking activities.

Prior to trial, six of their co-defendants, pursuant to plea bargains with the government, entered pleas of guilty, and appellants, along with one Wesley Dean Kinison, proceeded to trial by jury.

After five days of trial, Kinison pleaded guilty to charges in two counts of the indictment, in accord with a plea agreement with the government which provided for Kinison to testify, as he did, on behalf of the government as to his involvement and that of his co-defendants, Brugman and King, in the drug trafficking activities which formed the basis of the indictment.

Brugman was convicted of each of the counts with which he was charged, encompassing conspiracy to distribute cocaine, a controlled substance, interstate travel in aid of a racketeering enterprise, and with possession of cocaine with intent to distribute.

King likewise was convicted of each of the counts with which he was charged, one being for conspiracy to distribute cocaine, a controlled substance, and three for possession of cocaine with intent to distribute.

Each of the appellants seeks reversal for alleged errors on the part of the trial court in denying a motion for a severance of the defendants, the admission in evidence of so-called similar acts, and finally violations of appellants' Sixth Amendment rights to effective assistance of counsel in permitting co-defendant Kinison to testify on the government's behalf; after having allegedly intruded upon appellants' attorney/client relationship.

While no contention of insufficiency of evidence is made, a brief summary is necessary in order to place the respective contentions in proper context.

The evidence revealed a wide ranging conspiracy between the parties named in the indictment which operated from March to December of 1978. The evidence also revealed that at the top of this vertically organized conspiracy was one Michael Sampson, who resided in the State of Florida, and who was revealed to be the principal supplier of cocaine. Immediately beneath Sampson were three of the named defendants, including appellant Brugman and Kinison, who, in support of the conspiracy to distribute and possess cocaine in the State of West Virginia, traveled in interstate commerce and engaged in interstate telephone conversations.

The role of Donald Bain, a named defendant, was to engage drug peddlers in the Kanawha/Charleston area of West Virginia. Bain utilized interstate telephone communications in his efforts and distributed the cocaine brought into West Virginia by Brugman and another defendant, Halstead, to local peddlers, such as appellant King, who in turn was assisted by two other individuals, Culpepper and Wright, who were also named defendants.

The evidence in support of the charges against each of the named defendants was, to say the least, overwhelming.

The Government, by utilizing those defendants who chose to plead guilty, as well as undercover agents, entangled the present appellants and their co-defendant, Kinison, in a strong and sturdy net which amply supports the respective convictions.

Concluding, for the reasons which follow, that the trial court scrupulously protected the rights of both Brugman and King from arraignment to conviction, we affirm.

Appellants first complain of the trial court's denial of their respective motions for severance.

Rule 8(b), F.R.Crim.P., provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Misjoinder is of course prejudicial per se. McElroy v. United States, 164 U.S. 76, 81, 17 S.Ct. 31, 33, 41, L.Ed. 355 (1896); Ingram v. United States, 272 F.2d 567, 570-71 (4th Cir. 1959), United States v. Kaplan, 588 F.2d 71, 74 (4th Cir. 1978).

Barring special circumstances, individuals indicted together should be tried together. United States v. Mandel, 591 F.2d 1347 (4th Cir. 1976); United States v. Mankins, 497 F.2d 1265 (4th Cir. 1974); United States v. Shuford, 454 F.2d 772 (4th Cir. 1971).

The test for joinder under Rule 8(b) is whether defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions".

The fact that each incident of participation may not have constituted a crime on the part of a defendant is of no consequence. "Participation" in the same series of transactions as referred to in Rule 8(b) does not require "participation" in each transaction of the series. See Haggard v. United States, 369 F.2d 968 (8th Cir. 1966).

It is to be kept in mind that the indictment under which these defendants were convicted, accused each of the nine named defendants with conspiracy, and alleged in support thereof the commission of more than sixty overt acts. The various overt acts, in turn, were alleged to a great extent, to constitute the several substantive charges against the named defendants. See United States v. Hargrove, 647 F.2d 411 (4th Cir. 1981).

Since we find joinder under Rule 8(b) proper, the respective motions for severance are to be considered under F.R.Crim.P. 14. Rule 14, F.R.Crim.P. provides that motions for severance are directed to the sound discretion of the trial court and will not be disturbed except where a defendant did not receive a fair trial; in short, in those cases where by virtue of joinder a "miscarriage of justice" has occurred. United States v. Santoni, 585 F.2d 667, 674 (4th Cir. 1978). The movant must show something more than merely a better chance of acquittal and "must overcome the burden imposed by a stringent standard of review". United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977); United States v. Santoni, supra, at 674 (4th Cir. 1978).

Here, appellants contend that the trial court abused its discretion in denying them severance, arguing that their co-defendant Kinison was named in eighteen counts, while Brugman was named in three, and King in four.

While much of the evidence adduced in the first four days of trial went to the guilt of defendant Kinison in regard to the eighteen counts with which he was charged, that same evidence went to support many of the more than sixty alleged overt acts charged in the conspiracy in which these defendants, as well as Kinison, engaged. It is to be noted, as well, that one or the other of appellants was implicated in at least seventeen of the charged overt acts supporting the conspiracy count.

This Court has heretofore expressed its view that "(s)everance will not be granted when the claim is based on the disparity of evidence adduced against individual defendants without a strong showing of prejudice,...." United States v. Mandel, supra, at 1371; United States v. Hargrove, supra; United States v. McGruder, 514 F.2d 1288, 1290 (5th Cir. 1979).

The language of Rule 8(b) assumes certain evidence may be admitted against one defendant not necessarily applicable to another. Daley v. United States, 231 F.2d 123, 125 (1st Cir. 1956). See also United States v. Miller, 340 F.2d 421, 423 (4th Cir. 1965); United States v. Santoni, 585 F.2d 667, 674 (4th Cir. 1978). A studied consideration of the transcript of the trial satisfies us that appellants were in no manner legally prejudiced by the denial of their respective motions for severance.

Appellants next contend that the trial court erroneously admitted testimony relating to certain marijuana and hashish transactions, or proposed transactions, between and involving government witnesses and the appellants, when neither appellant was charged with having dealt in either marijuana or hashish.

The issue first arose during the testimony of Charles Culpepper, a named defendant who had pled guilty prior to trial, who was called as a witness on behalf of the government.

Culpepper's testimony was directed to certain activities of the defendant Kinison that involved the sale of marijuana, hashish and cocaine. Upon objection by Kinison's then trial counsel, the court instructed the jury that the evidence was to be considered as to Kinison only, and then only "insofar as in your opinion it has a bearing or may go to show the opportunity, preparation, plan, intent, motive, knowledge or identity, as well as absence of mistake or accident on the part of the defendant Kinison, if any, in connection with the offense or offenses which are charged against him in the indictment.

It serves no other purpose whatever, but to caution you again that the defendant Kinison is not on trial with respect to either the Columbian marijuana or hashish."

Thereafter, excluding certain evidence relating to a transaction involving only marijuana, the trial court noted, "Insofar as reference to marijuana and hashish ... where it accompanies a shipment of cocaine, I see no particular problem with that ... it is so interwoven that it naturally comes as a part of the offense, it comes as a part in companion to the...