U.S. v. Cochran, 82-4164

• Decision Date: 24 January 1983
• Docket Number: No. 82-4164,82-4164
• Citation: 697 F.2d 600
• Parties: 12 Fed. R. Evid. Serv. 475 UNITED STATES of America, Plaintiff-Appellee, v. Bobby COCHRAN, a/k/a "Sundance", Teddy Doyle Butler and Bobby Fred Williamson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 600

697 F.2d 600

12 Fed. R. Evid. Serv. 475

UNITED STATES of America, Plaintiff-Appellee, v. Bobby COCHRAN, a/k/a "Sundance", Teddy Doyle Butler and Bobby Fred Williamson, Defendants-Appellants.

No. 82-4164.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1983.

Grady F. Tollison, Jr., Oxford, Miss., John B. Farese, Ashland, Miss., for defendants-appellants.

Glen H. Davidson, U.S. Atty., Thomas W. Dawson, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

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

Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Bobby "Sundance" Cochran, Teddy Doyle Butler, and Bobby Fred Williamson were convicted by a jury for conspiring to distribute and distributing cocaine in violation of 21 U.S.C. Secs. 846 and 841(a)(1). Cochran also was convicted for distributing one ounce of cocaine in violation of Sec. 841(a)(1). They now urge: (1) that the district court admitted co-conspirators' statements without obtaining independent evidence of an ongoing conspiracy; (2) that the proof at trial varied from the indictment; (3) that the jury's inspection of transcripts of an inadmissible recording caused reversible error; (4) that the government's failure to produce discoverable material deprived them of their right to a fair trial; (5) that the prosecutor's description of cocaine as "white death" caused reversible error; and (6) that the district court improperly admitted photographs of them taken after their arrest. Finally, they urge that the sum of the errors is prejudicial even if they were harmless when viewed singly. Finding no merit in these contentions, we affirm.

Danny Burns, a convicted cocaine dealer and government informant, introduced Bobby Cochran to an undercover agent from the Mississippi Bureau of Narcotics in August 1981. Working with the Alabama Bureau of Investigation and the Federal Drug Enforcement Administration, two Mississippi undercover agents met Cochran on September 11, 1981 in a motel in Muscle Shoals, Alabama. While the agents and Cochran were discussing a potential drug purchase, Bobby Fred Williamson arrived and was introduced to the agents as Cochran's "boss." Williamson told the agents about the quantity, quality, and price of cocaine he would be able to deliver. He also indicated that he would "find somebody to fix these people up."

Nothing happened until November when Dennis McAnally, a Mississippi agent, had several telephone conversations with Cochran and finally purchased one ounce of cocaine from Cochran on November 5. McAnally then told Cochran that he was interested in purchasing a kilo of cocaine. Despite an aborted attempt to purchase the kilo on November 19, McAnally maintained telephone contact with Cochran.

On December 21, McAnally called Cochran and arranged a meeting in Oxford, Mississippi. McAnally, accompanied by two other Mississippi agents, met Cochran, Williamson, and Teddy Doyle Butler in a parking lot around 11:30 p.m. The group then drove to a motel where Cochran and McAnally went to a "money room" and Williamson, Butler, and the other two agents went to a "coke room." Williamson, accompanied by an agent, left the room, drove to a pay telephone, and arranged for a sample of the kilo to be brought to the room for testing. Wayne Barley, a friend of Williamson's, then brought the sample to the room and "snorted" some of it with Williamson and Butler. ¹ After Barley left to pick up the kilo, Williamson and an agent unsuccessfully attempted to meet him. Upon returning to the room, Williamson ordered Butler to hold the sample over the toilet in case of a raid. He then left again to find Barley. Meanwhile, Barley brought the kilo to the room. Williamson returned around 3:30 a.m. and shortly thereafter all four men were arrested.

At trial, Cochran claimed entrapment, testifying that Danny Burns induced him to sell cocaine at a time when he was short of money. Cochran also testified that his co-defendants did not know he was transporting the kilo to Mississippi until they arrived in Oxford. It was then, he claimed, that they decided to assist Cochran with the delivery because they were "good friends."

Co-Conspirators' Statements

Appellants launch an attack against the district court's admission of statements as made during the course and in furtherance of a conspiracy under Fed.R.Evid. 801(d)(2)(E). The argument is broadly cast. Appellants do not specify which statements are claimed to have been improperly admitted but instead contend that Rule 801(d)(2)(E) was not available at all because the government failed to prove "by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the co-conspirator's statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy." United States v. James, 590 F.2d 575, 582 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

A finding of independent evidence to support a conspiracy will not be overturned on appeal unless clearly erroneous. United States v. Rodriguez, 689 F.2d 516, 518 (5th Cir.1982); United States v. Dean, 666 F.2d 174, 179 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). The district court allowed the statements after considering the James standards in both a pretrial hearing and at the end of the trial. Because we conclude that the government presented ample independent evidence of an ongoing conspiracy in which all three appellants were members, we cannot regard the district court's findings as clearly erroneous. We turn to that review.

This circuit has long rejected the proposition that "mere presence" at the scene of a crime is alone sufficient proof of the requisite agreement, see United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982), while simultaneously holding that participation in a conspiracy may be inferred from " 'a development and a collocation of circumstances.' " United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982) (quoting United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied sub. nom. Bertolotti v. United States, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979)). The negotiation at the Muscle Shoals motel on September 11 was sufficient to prove an infant conspiracy that then involved Cochran and Williamson. With a conspiracy adequately subscribed on September 11, "the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy become admissible against all as declarations or acts of co-conspirators in aid of the conspiracy." United States v. Torres, 685 F.2d 921, 926 (5th Cir.1982) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). Statements of Cochran and Williamson thus were admissible against each other and against Butler who later joined the conspiracy. That joinder was evidenced by a participation in the drug sale that was more than "mere presence." The district court's ruling under Rule 801(d)(2)(E) was not clearly erroneous.

Variance

The indictment charged that a conspiracy began "on or about November 1, 1981." The admission of co-conspirators' statements, made largely in November, rested on a conspiracy that began some fifty days earlier on September 11. Appellants characterize this difference as one between the dates of the conspiracy charged in the indictment and the conspiracy proved at trial and assert that it is a "fatal variance" that prejudiced the preparation of their defense. We disagree.

In this circuit, "an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and, 'within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.' " Russell v. United States, 429 F.2d 237, 238 (5th Cir.1970) (quoting 1 Wright, Federal Practice and Procedure, Sec. 125 at 247). We thus held in United States v. Tunnell, 667 F.2d 1182, 1186 (5th Cir.1982), that evidence of acts of bribery from October 1973 to March 1974 was admissible even though the indictment had charged defendant with bribery "on March 2 or 3, 1974." We reached a similar result in United States v. Grapp, 653 F.2d 189, 195 (5th Cir.1981), in which evidence referring to the middle of 1977 was admitted despite the indictment's charge of acts "on or about May 27, 1977."

With variance, our concern is whether the indictment, assuming it has otherwise alleged the elements of the offense, has so informed a defendant that he can prepare his defense without surprise and has protected him against a second prosecution for the same offenses. United States v. Hall, 632 F.2d 500, 504 (5th Cir.1980). Related concerns are raised by an inquiry into the reasonableness of differences between alleged and proved times of offenses, when time is not an element and we have said no variance exists, and the two-faceted inquiry into legality of a variance. That is, the concerns raised by a variance inform the inquiry into reasonable limits of the on or about allegation when time is not an element of the offense.

As these cases suggest, we have been hazy in defining any difference in analysis between proof and allegation of elements as distinguished from non-elements. They traverse similar factual terrain. Even when time is not an element of the charged offense, it nonetheless carries part of an indictment's notice load. A defendant must be given notice of the charge he is to defend. Adequacy of notice is not measured in technical pleading terms but by a pragmatic inquiry by the trial judge into whether on the facts of the case at issue the defendants knew what they were defending....