U.S. v. Cole, s. 88-5512

• Decision Date: 19 December 1988
• Docket Number: Nos. 88-5512,s. 88-5512
• Citation: 857 F.2d 971
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley Asher COLE, a/k/a Oscar Ivan Cole, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dorrell Witham SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Diane SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kharim HAMIDOL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincent DOUGLAS, a/k/a Franklin Rubie, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clyde WALCOTT, a/k/a Ascentos White, Defendant-Appellant. to 88-5517.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 971

857 F.2d 971

UNITED STATES of America, Plaintiff-Appellee, v. Stanley Asher COLE, a/k/a Oscar Ivan Cole, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dorrell Witham SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Diane SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kharim HAMIDOL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vincent DOUGLAS, a/k/a Franklin Rubie, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clyde WALCOTT, a/k/a Ascentos White, Defendant-Appellant.

Nos. 88-5512 to 88-5517.

United States Court of Appeals, Fourth Circuit.

Argued July 26, 1988.

Decided Sept. 29, 1988.

Rehearing and Rehearing In Banc Denied Dec. 19, 1988.

Fred Warren Bennett, Federal Public Defender (Stanley Ford Needleman, Warren Anthony Brown, Jack B. Rubin, Baltimore, Md., Gregory Michael Wilson, Laurel, Md., Morris Lee Kaplan, Baltimore, Md., on brief), for plaintiff-appellee.

Katharine Jacobs Armentrout, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief) for defendants-appellants.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

K.K. HALL, Circuit Judge:

Stanley Asher Cole, Dorrell Witham Smith, Diane Smith, Hamidol Kharim, Vincent Douglas, and Clyde Walcott jointly appeal their convictions on various drug charges. All were convicted of at least one count of conspiracy to distribute five kilograms or more of cocaine and of possession with intent to distribute over five hundred grams of cocaine. Cole was also convicted of operating a continuing criminal enterprise ("CCE"), one count of alien smuggling and additional counts of distribution of cocaine and possession with intent to distribute. Dorrell Witham Smith was also convicted of passport fraud. The appellants raise several contentions on appeal. Finding none of them worthy of reversal, we affirm.

I.

The defendants' trial revealed a large-scale cocaine distribution ring, centered in Baltimore, Maryland, with its roots in Jamaica and led by Cole. From June, 1984 until March, 1987, the conspiracy prospered, utilizing sophisticated methods, including digital beepers to contact coconspirators, rental automobiles to avoid detection by police or competitors, and "stash" apartments to secrete cocaine. The conspirators also purchased legitimate businesses as fronts for their operation. In this regard, their largest investment was the purchase of the Exodus Nightclub from Anthony Boddiford. In all, records showed that over $100,000 of drug proceeds was invested in the nightclub.

Each of the defendants had a well-defined role in the operation. Dorrell Witham Smith ("Smitty") was the ring's supplier. He was a permanent alien resident of Miami, Florida, and would deliver a kilogram of cocaine to the organization at least once a month. A member of the ring would fly to Miami, pick up the cocaine, and return with it to Baltimore where it was ultimately sold on the street. Diane Smith, Cole's girlfriend, managed the Exodus Nightclub for the organization. More importantly, she rented the cars the ring used to conduct its street sale operation. Hamidol Kharim made contacts and actively sold cocaine for the ring. His home was also used as a central meeting place for the conspirators and his phone was used extensively to contact Cole's digital beeper. Vincent Douglas and Clyde Walcott were primarily street salesmen for Cole's ring.

In addition to operating the drug distribution ring, it was also proven at trial that on at least two occasions, Cole smuggled illegal aliens into the United States from Jamaica. Once in Baltimore, the aliens became workers for the Cole cocaine ring.

Defendants were tried together. All were convicted. Each timely noted an appeal and the appeals were consolidated for disposition.

II.

Initially, all appellants contend that the joinder of the various drug charges with Cole's alien smuggling charges constituted prejudicial error. They maintain that the initial joinder was improper under Fed.R.Crim.P. 8(a) because the alien smuggling count was unrelated to the drug counts and that severance was subsequently required because, under Fed.R.Crim.P. 14, evidence of the joined charges was unfairly prejudicial. Appellants also contend that the trial court erred by admitting the testimony of Joseph Boddiford concerning a statement made to him by Cole. Their position is that the prosecution was obligated, under both Fed.R.Crim.P. 16 and the terms of an informal discovery agreement, to turn the statement over to them before trial, and that the prosecution's failure to do so, should have precluded the admission of the evidence. We address each of these contentions in turn. ¹

In regard to the joinder of the alien smuggling and drug offenses, the appellants argue that there was no proof of an express agreement between Cole and the aliens that upon entry into the country they had to work for his organization and thus, even though they did eventually work for Cole, the drug conspiracy and the alien smuggling were not connected. ² They further argue that this joinder prejudiced them because the evidence of the alien smuggling made the drug conspiracy appear international in scope and more heinous than it actually was. Likewise, Cole maintains that the evidence of the drug conspiracy prejudiced his defense of the smuggling counts by making them appear to be part of a larger criminal enterprise. These arguments are without merit.

Under Fed.R.Crim.P. 8(a), two or more offenses may be joined in the same indictment if:

The offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or plan. (emphasis added)

Here, the indictment clearly alleged that Cole's smuggling of aliens was a means by which the drug conspiracy acquired new Jamaican workers. More importantly, proof at trial established that after Cole helped these aliens illegally gain entry into the United States, they began to sell cocaine for the organization within one month. Thus, even in the absence of proof of an express agreement between Cole and the aliens, both the allegations in the indictment and the proof at trial were more than adequate to establish the connection between the drug conspiracy and the alien smuggling charges. Unquestionably, the smuggling counts were "related to, and ... logically and intimately connected together with" the drug conspiracy. United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.1977). Consequently, these counts come within the bounds of permissive joinder as established by Fed.R.Crim.P. 8(a). Id. at 1105; United States v. Eades, 615 F.2d 617, 624 (4th Cir.1980) cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

Even though the counts were properly joined, it does not automatically follow that they were properly tried together. Fed.R.Crim.P. 14 states in part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

In ruling on a request to sever, a trial court must balance any possible prejudice to the accused against the interests of the efficient administration of justice. United States v. Jamar, supra at 1106. The striking of this balance is within the discretion of the trial court and the "exercise of this discretion will be overturned only for clear abuse affecting substantial rights of the accused". Id.; accord, United States v. Santoni, 585 F.2d 667, 674 (4th Cir.1978). The appellants have failed to show such an abuse of discretion.

There is always a potential of prejudice whenever counts are joined for trial. It arises from the possibility that the jury will improperly cumulate the evidence, finding guilt on all counts where if tried separately, the evidence of each specific count standing alone would be insufficient to convict. United States v. Carmichael, 685 F.2d 903, 910 (4th Cir.1982); Jamar, supra at 1106. However, this possibility of prejudice is greatly diminished where, as in this case, the evidence of the joined crimes "would be mutually admissible for legitimate purposes in separate trials for each offense". Jamar, supra at 1106; see also Carmichael, supra at 910; United States v. Berardi, 675 F.2d 894 (7th Cir.1982).

In the present case, certainly, evidence of the presence of the drug conspiracy would be admissible under Fed.R.Evid. 404(b) to show Cole's motive and purpose for smuggling illegal aliens. Likewise, evidence of the alien smuggling would be admissible in the drug conspirators' trial to show the context, and the entire breadth and scope of the conspiracy. See United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980). Although not all of the evidence of each of the joined crimes would have been admissible in separate trials of the individual counts, the fact that much of it could have been properly introduced greatly mitigates any prejudice to the defendants that results from the joinder. Jamar, supra at 1107; Berardi, supra at 900-01. Similarly, because much of the evidence of these crimes would have been admissible in separate trials, the interests of judicial economy were furthered by this joint trial. Finally, the trial court gave a cautionary instruction to the jury to safeguard against the possibility of cumulation of evidence and prejudice to the defendants. Berardi, supra at 901. Therefore, because of the decreased likelihood of prejudice and because of the strong interest of judicial economy present, we can not say that the trial court abused its discretion by not severing these counts.

III.

We turn next to a...