U.S. v. Carlson

• Citation: 547 F.2d 1346
• Decision Date: 17 December 1976
• Docket Number: 76-1395,Nos. 76-1363,s. 76-1363
• Parties: 1 Fed. R. Evid. Serv. 1247 UNITED STATES of America, Appellee, v. Donald Laverne CARLSON, Appellant. UNITED STATES of America, Appellee, v. Gary Clarend HOFSTAD, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1346

547 F.2d 1346

1 Fed. R. Evid. Serv. 1247

UNITED STATES of America, Appellee, v. Donald Laverne CARLSON, Appellant.

UNITED STATES of America, Appellee, v. Gary Clarend HOFSTAD, Appellant.

Nos. 76-1363, 76-1395.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 16, 1976.

Decided Dec. 17, 1976.

Rehearing and Rehearing En Banc Denied in No. 76-1363 Jan. 18, 1977.

Neal J. Shapiro, Minneapolis, Minn., for appellant Carlson in No. 76-1363; Wesley Anderson, St. Paul, Minn., on brief.

Mark W. Peterson, St. Paul, Minn., made argument for appellant, Hofstad in No. 76-1395; Bailey W. Blethen, St. Paul, Minn., on brief.

Mel I. Dickstein, Asst. U. S. Atty., Minneapolis, Minn., for appellee United States; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on brief.

Before GIBSON, Chief Judge, MARKEY ^* and STEPHENSON, Circuit Judge.

GIBSON, Chief Judge.

Defendants, Donald Carlson and Gary Hofstad, appeal their convictions on three counts of violating 21 U.S.C. § 841(a)(1) (1970). Carlson, Hofstad and their co-defendant, Wayne Dahl, were charged in a five-count indictment of participating in a cocaine distribution scheme. Count I of the indictment charged Carlson with distributing cocaine on July 25, 1975. Count II charged Dahl with distributing cocaine on August 8, 1975. All three defendants were charged in Count III with distributing cocaine on August 13, 1975, and in Count IV with possessing cocaine with intent to distribute on August 29, 1975. Finally, Count V charged Carlson, Hofstad and Dahl with conspiring to distribute cocaine from August 13, 1975, to August 29, 1975. Pursuant to pretrial motions for severance, the District Court ¹ severed Counts I ² and II and the case proceeded to trial on the remaining three counts. All three defendants were convicted upon a jury verdict on these counts. Carlson was sentenced to seven years on each count to run concurrently and Hofstad was given a four-year concurrent sentence on each count. Both were given a concurrent three-year special parole term on each count. Dahl did not appeal his conviction.

We will recite the relevant facts as adduced at trial. The evidence must, of course, be viewed in the light most favorable to the Government as the prevailing party. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The critical evidence in this case is derived generally from activities and conversations taking place on three days in 1975 August 8, August 13 and August 29.

On August 8, 1975, Agent Donald Nelson of the Drug Enforcement Administration (DEA) met with Dahl in Minneapolis, Minnesota, for the purpose of purchasing a quantity of cocaine. At the meeting, when Agent Nelson presented $1,150 to Dahl, Dahl stated that he would procure the cocaine from his source in a leather shop. The record shows that an individual named James Tindall owned a leather shop and had purchased cocaine from Carlson in the first part of August. Tindall had in turn distributed this cocaine to Dahl in early August. The jury could reasonably infer that Dahl went to Tindall's leather shop on August 8, secured a quantity of cocaine that Tindall had previously purchased from Carlson and returned to the site where Agent Nelson was waiting. The sale was then consummated.

On August 13, 1975, Agent Nelson arranged for a purchase of two ounces of cocaine from Dahl. In making the arrangements Dahl stated that "his man would be close by, but not with him" during this second transaction. Dahl later arrived at the scene of the purchase in a Cadillac being driven by Hofstad. Dahl approached Agent Nelson and was shown $3,000. Dahl then stated that "he and his man would go at that time to get the two ounces of cocaine." Dahl returned to the Cadillac and he and Hofstad drove directly to Carlson's place of business. Carlson, Hofstad and Dahl retreated into a nonpublic warehouse area of the building. As Dahl and Hofstad were leaving the building, Carlson was asked if he would be there when Hofstad returned. Carlson replied that he certainly would be there. Dahl and Hofstad then drove directly to the area where Agent Nelson was waiting. The cocaine was produced and the exchange made. Dahl accepted the money and returned with Hofstad to Carlson's place of business. Dahl was seen giving the money to Hofstad as they both entered Carlson's building. Carlson, Dahl and Hofstad again retired to the warehouse area. Soon thereafter, Dahl and Hofstad departed. A few days later, Dahl admitted to DEA Agent Ronald Tomcik that the person who accompanied him during the August 13 sale was his "connection" for cocaine. That person was Hofstad.

On August 29, Dahl met with Agent Tomcik and informed him that one pound of cocaine was available for sale. Dahl stated that he had a "connection" who "goes by the name of Pat on the street." It is undisputed that Carlson's common nickname is "Pat". Dahl and Agent Tomcik agreed on the price of $22,000 for the cocaine and agreed to complete the sale later that day at a local Holiday Inn motel. After making these arrangements, Dahl and Hofstad were observed at the Neighborhood Periodicals Club, an enterprise owned by Hofstad. Surveillance was established and Dahl was seen exiting the building. He looked at his watch and appeared to be watching or waiting for someone. Ten minutes later, Carlson arrived at the Neighborhood Periodicals Club and entered the building. Dahl and Hofstad left a few minutes later and drove to Carlson's place of business. They then returned to the Neighborhood Periodicals Club. Fifteen minutes later, Dahl again came out of the building, walked to the corner, looked around and waved to Hofstad to follow. As they began to drive away, Hofstad stopped the car and looked around. They then proceeded to the Holiday Inn where Dahl left the car to meet with Agent Tomcik. When Dahl presented the cocaine for the sale, he was arrested. Hofstad was arrested shortly thereafter. Carlson returned to the Neighborhood Periodicals Club at 5:15 p. m. and remained there until 6:30 p. m. As he was leaving, he was arrested.

I.

The most crucial question raised on this appeal involves the propriety of admitting the grand jury testimony of James Tindall in evidence at trial. A recitation of the events leading up the admission of this testimony is necessary to achieve a proper perspective of this issue.

Tindall testified before the grand jury which was investigating various narcotics violations involving Carlson and other individuals. Tindall stated to the grand jury that he had purchased cocaine from Carlson on two occasions in early August, 1975, and that some of this cocaine had in turn been distributed to Dahl. The Government's proof at trial inferentially showed that this cocaine received by Tindall was the same cocaine sold to Agent Nelson in the cocaine transaction of August 8, 1975. The Government intended to call Tindall as a witness at trial to testify in line with his grand jury testimony.

However, on March 15, 1975, the evening before the commencement of the trial in this case, Tindall advised a DEA agent, John O'Connor, that he did not desire to testify at trial because he feared reprisals. When Agent O'Connor questioned Tindall about specific threats, Tindall responded equivocally. O'Connor reminded Tindall of the grand jury testimony and told Tindall that even though Carlson was aware of that testimony Tindall had not suffered any harm from Carlson. Tindall stated: "Yes, I know, but if I don't testify at trial at least I'll have a chance. If I do, it will be over for me." When Tindall continued to evade any questions as to the source of the threats, Agent O'Connor inquired: "Do you realize that in refusing to discuss this particular topic with me you are in essence confirming the fact that you received threats from Carlson?" Tindall responded: "I know. You have got the message." On the following day in the presence of Tindall's attorney, the Government verified that Tindall would not testify at trial. When asked if he had deliberately lied to the Government, Tindall stated that he had always been truthful with the Government and before the grand jury. Further, in a conversation with Agent Nelson, Tindall said he did not want to discuss the reason for his not testifying. In response to Nelson's inquiry as to whether Tindall thought that Carlson would kill him if he were to testify, Tindall stated that "he did not want to have to find out."

The next day, March 17, 1975, Tindall was called as a witness at trial outside of the presence of the jury and he informed the court that he would refuse to testify on Fifth Amendment grounds. The prosecutor informed Tindall and the court that he had received authorization to grant Tindall use immunity from his trial testimony. After consulting with his attorney, Tindall again refused to testify, was held in contempt of court and was sentenced to six months imprisonment. The Government then offered in evidence the grand jury testimony of Tindall. The District Court heard testimony from DEA Agents O'Connor and Nelson to determine why Tindall refused to testify and whether the grand jury testimony should be admitted. After hearing evidence which was highly suggestive of threats and intimidating overtures directed toward Tindall by Carlson, the District Court concluded that the grand jury testimony should be admitted. The District Court also ruled that Carlson was a danger to witnesses in the case and revoked his bond. The court ruled that Tindall was "unavailable" as a witness and, in a post-trial hearing in which some conflicting evidence was heard on this subject, the court explicated this ruling: "Well, I am convinced * * * as I said before that Mr. Carlson made Mr. Tindall unavailable for trial. I think this is clear."

At the outset we accept, based upon the District Court's findings and the evidence adduced in the trial court proceedings, that Tindall refused to testify because...