U.S. v. Chatman, s. 91-6335

• Decision Date: 21 May 1993
• Docket Number: Nos. 91-6335,92-6129,s. 91-6335
• Parties: 38 Fed. R. Evid. Serv. 825 UNITED STATES of America, Plaintiff-Appellee, v. J.C. CHATMAN, true name Jon Chatman, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1510

994 F.2d 1510

38 Fed. R. Evid. Serv. 825

UNITED STATES of America, Plaintiff-Appellee, v. J.C. CHATMAN, true name Jon Chatman, Defendant-Appellant.

Nos. 91-6335, 92-6129.

United States Court of Appeals,

Tenth Circuit.

May 21, 1993.

Edward Y. Crandall, Oklahoma City, OK, for defendant-appellant.

Frank Michael Ringer, Asst. U.S. Atty., Oklahoma City, OK (Joe Heaton, U.S. Atty., with him on the brief for No. 91-6335; Timothy D. Leonard, U.S. Atty., Oklahoma City, OK, with him on the brief for No. 92-6129), for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and O'CONNOR, District Judge. ^*

TACHA, Circuit Judge.

J.C. Chatman appeals his conviction for possession with intent to distribute, and distribution of, cocaine base in violation of 21 U.S.C. § 841(a)(1), conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, and using a telephone to facilitate the conspiracy in violation of 21 U.S.C § 843(b). Mr. Chatman was indicted along with six other people for participating in a conspiracy to traffic cocaine from Los Angeles to Oklahoma City. He was arrested in Oklahoma on February 19, 1991. The cases against Chatman and four codefendants were consolidated for trial and Chatman was sentenced to life imprisonment and five years supervised release.

On appeal, Chatman contends that the district court: (1) improperly denied severance; (2) failed to suppress evidence obtained through a warrantless vehicle search; (3) entered judgment where there was insufficient evidence to support the conviction; (4) admitted hearsay evidence; (5) erroneously applied the United States Sentencing Guidelines; and (6) improperly denied his motion for a new trial based on newly discovered evidence. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I. SEVERANCE

Mr. Chatman contends that the district court erred in failing to grant him a separate trial because the admission of a nontestifying codefendant's confession violated his rights under the Confrontation Clause of the Sixth Amendment. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Court held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name but any reference to his or her existence." Id. at 211, 107 S.Ct. at 1709; see also United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir.1988).

Codefendant Ronnie Miller confessed to the police in a statement that implicated Chatman. Chatman made a pretrial motion for severance so that he would not be incriminated by Miller's confession when it was entered against Miller at trial. The district court denied the motion after the statement was redacted to remove any reference to Chatman, and an arresting officer testified to Miller's confession at trial. ¹ The court instructed the jury to consider the statement "only as it relates to Defendant Ronnie Miller" and not "in any manner against any other Defendant in this case."

We find no Bruton violation because, as Mr. Chatman concedes, Miller's redacted statement removed any reference to Chatman or his existence. Chatman argues that severance should have been granted nonetheless because he was linked to Miller's statement by other evidence admitted at trial. This inferential incrimination argument is unavailing where, as here, the jury was properly instructed that Miller's confession was not to be considered against any of the other defendants. We find that the requirements of Richardson have been met and affirm the district court's denial of severance.

II. SUPPRESSION

Chatman appeals an order denying his motion to suppress cocaine base seized during a warrantless search of the trunk of his rental car. The car, a white Mercury Cougar, was parked in the parking lot of the apartment building where Chatman was arrested. Following an evidentiary hearing, the district court found that there was probable cause for the search and held that the search fell under the automobile exception to the Fourth Amendment bar against warrantless searches. We review the district court's factual findings under the clearly erroneous standard and view the evidence in the light most favorable to the district court's findings. United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992). The determination regarding the reasonableness of the search is a question of law which we review de novo. Id.

Under the automobile exception, a warrantless search is permissible if there is probable cause to believe that the vehicle contains contraband. California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406 (1985); United States v. Crabb, 952 F.2d 1245, 1246 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1981, 118 L.Ed.2d 579 (1992). After reviewing the record, we conclude that the officers had probable cause to search the vehicle.

The officers were working with a confidential informant who bought cocaine base from Chatman on February 17, 1991 at 457 N. Air Depot, Apartment No. 9 in Midwest City, Oklahoma. The informant was wired with a radio transmitter so that the officers surveilling outside the apartment building could monitor the conversation. During the process of the sale, Chatman left the apartment, retrieved something from the trunk of a blue Lincoln Town Car parked in the parking lot, and returned to the apartment. The informant reported that Chatman returned with cocaine base.

On February 19, 1991, the informant returned to the same location to again purchase cocaine base from Chatman under the same circumstances. This time, after Chatman agreed to the sale, Codefendant Ronnie Miller left the apartment and the officers saw him retrieve something from the trunk of the white Cougar and return to the apartment building. The informant reported that Miller placed cocaine base on the table when he returned to the apartment. The informant then left the apartment, ostensibly to get money for the purchase from her car, and the officers served a search warrant on the apartment. During the search, the officers found a set of car keys which they were told belonged to the white Cougar. They proceeded to search the Cougar where they discovered the cocaine base at issue. Based on the information obtained from their surveillance and the confidential informant, we affirm the district court's finding of probable cause and denial of the motion to suppress.

III. SUFFICIENCY OF EVIDENCE

Appellant argues that, because there was insufficient evidence to support his conviction on all counts, the district court erred in failing to grant his motion for acquittal. To review the sufficiency of the evidence supporting a criminal conviction, we examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992).

First, Chatman contends that there was insufficient evidence to support his conviction on all counts because the accomplice testimony from the government's witnesses was neither credible nor corroborated. Chatman argues that the testimony was not credible because the accomplices had agreed to cooperate with the prosecution for their own benefit and because of inconsistencies in the testimony. We must rely on the district court's findings regarding witness credibility unless they are clearly erroneous. Ibarra, 955 F.2d at 1409.

The appellant's arguments are unavailing. The testimony was corroborated in part by a tape-recorded conversation in which the government's confidential informant negotiated to purchase cocaine from Mr. Chatman, by a police officer's testimony about the surveillance and arrest, and by a search warrant. Moreover, a conviction based on accomplice testimony may be affirmed if the district court properly instructed the jury that accomplice testimony must be carefully scrutinized, weighed with great care, and received with caution. See United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir.1984). Here, the district court instructed the jury that "the testimony of an accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care." We find that the jury was properly instructed.

Second, Chatman contends there was insufficient evidence to support his conspiracy conviction because there is no record evidence that he agreed with anyone to distribute cocaine or that he benefitted from the alleged conspiracy. To establish a conspiracy, the government must show that two or more persons agreed to violate the law, the defendant knew of the essential objectives of the conspiracy, and the defendant knowingly and voluntarily participated in the conspiracy. United States v. Sasser, 971 F.2d 470, 477 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1292, 122 L.Ed.2d 683 (1993). While an agreement need not be explicit and may be inferred from the facts and circumstances of the case, the evidence must show that the coconspirators' conduct was in some way interdependent. See United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990). Interdependence is shown if the defendant's conduct facilitated the endeavors of other coconspirators or the venture as a whole. United States v. Horn, 946 F.2d 738, 740-41 (10th Cir.1991). One does not become a participant in a conspiracy merely by...