U.S. v. Collins

• Citation: 652 F.2d 735
• Decision Date: 23 June 1981
• Docket Number: No. 80-1964,80-1964
• Parties: UNITED STATES of America, Appellee, v. Peggy COLLINS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 735

652 F.2d 735

UNITED STATES of America, Appellee, v. Peggy COLLINS, Appellant.

No. 80-1964.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1981.

Decided June 23, 1981.

David C. Godfrey, Clayton, Mo., for appellant.

Robert D. Kingsland, U. S. Atty., Charles A. Shaw, argued, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before BRIGHT and ROSS, Circuit Judges and HARRIS, ^* Senior district judge.

OREN HARRIS, Senior District Judge.

Appellant, Peggy Collins, was convicted by a jury in the District Court of the Eastern District of Missouri, ¹ on one count of possession of a controlled substance with intent to distribute and one count of conspiracy to possess a controlled substance with intent to distribute. This appeal challenges the two convictions.

An investigation by Drug Enforcement Administration (DEA) agents into the drug dealings of Thomas V. Schleuter resulted in the arrest of Schleuter and appellant. According to a confidential informant, Schleuter had said he could obtain 20,000 quaalude tablets from a pharmaceutical company. Subsequently, Officer Bill Carter, working in an undercover capacity, contacted Schleuter, and on February 21, 1980, purchased 100 methaqualone or "quaalude" tablets at Schleuter's apartment.

After this initial contact, Carter and Schleuter conversed several times to arrange future purchases. On April 2, 1980, Schleuter gave Carter a number where he could be reached that night. This number was listed to the appellant, Collins. Appellant and Schleuter were close friends and he had a key to her apartment.

A second transaction between Carter and Schleuter occurred on April 8, 1980. This sale, of some 500 tablets, was again made at Schleuter's apartment.

In order to discover Schleuter's source, DEA agents decided to purchase 10,000 methaqualone tablets. On July 7, 1980, Schleuter informed Carter the next sale would be at Collins' apartment and that he had a key. On July 9, 1980, the deal was confirmed for the following night. Later that same evening, Carter and two other officers began a surveillance of the apartment. Schleuter was observed arriving, going into the apartment and coming out with the appellant. Schleuter then left and went to his apartment.

At 8:30 p. m. the following night, Carter drove to Schleuter's apartment. He and another officer gave $28,500.00 to Schleuter, then followed him to appellant's apartment. When they arrived, Collins was seen standing at the upstairs window. She remained upstairs. Carter went to the apartment with Schleuter, who opened the door and entered. Schleuter went directly to a coffee table, opened a sliding door, and pulled out a white trash bag. Inside was a brown bag containing a large number of tablets.

As soon as he saw the tablets, Carter signalled the other officers, identified himself to Schleuter, and arrested him. Appellant was arrested upstairs and informed of her rights. Schleuter was then taken upstairs and appellant brought downstairs and seated on the couch behind the coffee table. Schleuter and appellant were questioned separately. While upstairs, Schleuter told the officers Collins was his source or supplier.

Collins and Schleuter were transported to DEA headquarters, where they were placed in the same hold-over cell. Schleuter testified Collins asked him what he had said. Schleuter told her "the truth" and she responded, "Well, either I'm going to have to pay for these quaaludes or I'm dead." Early on July 11, 1980, Schleuter gave a handwritten statement naming the appellant as his source for the methaqualone.

Appellant was indicted on July 28, 1980. On the indictment, there was a notation which recited the amount of bond and that each statutory charge carried a penalty of a maximum fine of $25,000.00 and a prison term of up to 15 years. Count I also contained a mandatory special parole term of three years to life.

Schleuter, pursuant to a plea bargain agreement, plead guilty to Count I three days before the scheduled trial and testified against the appellant. The government's motion to dismiss the other three counts of the indictment against him was pending during the appellant's trial.

Appellant argues numerous points for reversal.

I.

Appellant first argues that she was not properly informed of the charges against her and, hence, could not prepare an adequate defense or make appropriate decisions. The notation on her copy of the indictment concerning the range of punishment was that for a narcotic drug. Appellant's charges involved methaqualone, a non-narcotic controlled substance. Since the range of punishment for a non-narcotic is different, the information noted on the indictment was erroneous.

The purpose of an indictment is to inform the accused of the nature of the charges. It should be specific enough to avoid the danger of his again being prosecuted for the same offense. Hayes v. U. S., 296 F.2d 657 (8th Cir. 1961). The statutory citations on the indictment were correct. The appellant was apprised of the transaction and the charges against her. Appellant has pointed to no specific prejudice, but rather speculates on actions which she might have taken had the correct information been given. We fail to see that Collins was prejudiced by this information.

The appellant also contends the erroneous punishment information was put before the jury by the Court. The record reflects the trial judge informed the jury of the possible penalty (the erroneous one noted on the indictment), but only after the appellant's counsel had raised the issue in his cross-examination of Schleuter. Defense counsel asked Schleuter if he could have received up to 15 years on each count which had been dismissed after he entered into the plea bargain agreement. The Court then told the jury the charges had not been dismissed and that it was up to the Court to determine if the remaining charges would be dismissed. He also informed them of the possible punishment.

It is true the jury has no concern with the consequences of a verdict. Government of Virgin Islands v. Fredericks, 578 F.2d 927, 935 (3d Cir. 1978); Chapman v. U. S., 443 F.2d 917, 920 (10th Cir. 1971); Lyles v. U. S., 254 F.2d 725, 728 (D.C.Cir.1958), cert. denied 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771. The comment by the Court, however, was made to clear up any misunderstanding created by defense counsel. The information was before the jury due to the actions of the defendant. Furthermore, the Court informed the jury that sentencing in federal court was strictly up to the Court. We find no error requiring reversal.

II.

The second assertion by appellant is that even though a timely motion for discovery was filed, she was not given the handwritten statement of Schleuter, her alleged co-conspirator, prior to trial. She contends this statement was material to her defense. The statement was provided after the direct testimony of Schleuter.

Rule 16 of the Federal Rules of Criminal Procedure does not authorize the discovery or inspection of statements made by government witnesses. Furthermore, 18 U.S.C. § 3500, known as the Jencks Act, further excepts this material from discovery. Schleuter was a government witness and his statement was not subject to discovery. There was no error in Collins not being provided with his statement prior to trial.

III.

Appellant next argues the trial court abused its discretion in limiting defense counsel's cross-examination of Detective Carter regarding the entrance into her apartment. Schleuter testified he had returned the apartment key to Collins the night before their arrest. Defense counsel asked Detective Carter several questions about the entry into the apartment.

The trial court has wide discretion in the scope of cross-examination and, absent an abuse of this discretion, will not be reversed. U. S. v. Hitchmon, 609 F.2d 1098 (5th Cir. 1979); U. S. v. Davis, 546 F.2d 583, 593 (5th Cir. 1977), cert. denied 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391; U. S. v. Dickens, 417 F.2d 958 (8th Cir. 1969). The record reveals defense counsel thoroughly questioned and explored the subject with Detective Carter before being told to move to another subject. The questions were virtually identical, as were the answers given by Detective Carter. We cannot say the trial court abused its discretion in terminating the questions about the key.

IV.

The next assertion of appellant regards the admission into evidence of the methaqualone and Collins post-arrest statement. Appellant filed timely motions to suppress both of these. These motions were referred to the United States Magistrate pursuant to 28 U.S.C. § 636(b), were heard, and denied.

The drugs in appellant's apartment were seized while Detective Carter was on the premises. Appellant contends that because the government did not have a search warrant, the entry into the apartment made without her permission or the permission of another occupant, was an unreasonable intrusion. Appellant had requested and received her key from Schleuter the night before the arrest, after he had informed her he was in love with another woman. There is a dispute as to how entrance was gained to the apartment. Carter says Schleuter had keys in his hand but he did not actually see Schleuter use them. The government contends Schleuter had free access to the apartment and was in a position to consent to the entrance.

Appellant relies upon Payton v. N. Y., 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which holds, "... the fourth amendment to the United States Constitution ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." This case struck down a New York statute which allowed police officers to enter a home without consent to make a felony arrest. The officer here, however, entered to purchase drugs at the invitation of a co-defendant. Officer Carter entered the apartment at the invitation...