U.S. v. Corbin

• Decision Date: 18 June 1984
• Docket Number: Nos. 82-3185,83-3086,s. 82-3185
• Citation: 734 F.2d 643
• Parties: 15 Fed. R. Evid. Serv. 1821 UNITED STATES of America, Plaintiff-Appellee, v. Willard M. CORBIN, Sr., Gary Bruce "Buddy" Ellison, Carl Ellison, Duane Leslie Levingston, Thurman J. Corbin, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Sampson Brewer WEBB, David Brewer Webb and Robert Colin Kelly, d/b/a Colin Kelly, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 643

734 F.2d 643

15 Fed. R. Evid. Serv. 1821

UNITED STATES of America, Plaintiff-Appellee, v. Willard M. CORBIN, Sr., Gary Bruce "Buddy" Ellison, Carl

Ellison, Duane Leslie Levingston, Thurman J.

Corbin, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Sampson Brewer WEBB, David Brewer Webb and Robert Colin

Kelly, d/b/a Colin Kelly, Defendants-Appellants.

Nos. 82-3185, 83-3086.

United States Court of Appeals Eleventh Circuit.

June 18, 1984.

Clyde M. Taylor, Jr., Tallahassee, Fla., for Webbs.

Clifford L. Davis, Tallahassee, Fla., for Kelly.

W.N. Avera, Gainesville, Fla., for Corbins.

Lewis M. Killian, Jr., Tallahassee, Fla., for G. Ellison.

Lynn Alan Thompson, Tallahassee, Fla., for C. Ellison.

Robert R. Hagaman, Naples, Fla., for Levingston.

Lyndia P. Kent, Asst. U.S. Atty., Tallahassee, Fla., for U.S.

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

Before RONEY, FAY and CLARK, Circuit Judges.

CLARK, Circuit Judge:

This is a direct appeal brought by eight defendants from their convictions in the district court for the Northern District of Florida, on federal drug conspiracy and perjury charges. We affirm.

The facts forming the basis of this prosecution were furnished in large part by two of the principal organizers of the conspiracy, Thomas and C.M. Stewart. The two testified that beginning in the spring of 1979, Thomas, C.M. and E.J. Stewart began to consider using a shrimp boat to haul a large quantity of marijuana from Colombia, South America to the United States. According to plan, E.J. Stewart arranged the purchase in Colombia, and in early July Thomas Stewart departed for South America in the shrimp boat.

Meanwhile, C.M. Stewart solicited the aid of appellants to offload the marijuana upon its arrival in the waters adjacent to Dixie County, Florida. The boat appeared off the shore of Dixie County in late July; two nights after its arrival the boat was offloaded. Appellant S.B. Webb acted as a lookout. Appellants Carl Ellison, Gary Ellison, Robert Colin Kelly, Duane Levingston and David Brewer Webb assisted in unloading marijuana off the shrimper and into smaller boats. They transported the marijuana to shore, where C.M. Stewart, together with appellants Thurman and Willard Corbin loaded the marijuana into trucks and hauled it away.

Several days later, the Stewarts determined that a number of the bales of marijuana were missing, and in an effort to locate them drew sketches of the offloading operation. These sketches were ultimately found by law enforcement officers in the trunk of a car rented by E.J. Stewart. C.M. Stewart was arrested in connection with the July 1979 incident in December 1980, and agreed to cooperate with the government as a witness in this case and as an informant in other unrelated transactions. A similar agreement was reached with Thomas Stewart. A grand jury investigation was subsequently commenced, in the course of which most of the defendants testified with respect to their involvement in the offloading incident.

All appellants, with the exception of Duane Levingston, were indicted on charges of conspiracy to possess a controlled substance in violation of 21 U.S.C. Secs. 841, 846; possessing with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2; conspiracy to import a controlled substance in violation of 21 U.S.C. Secs. 952, 963; and importing a controlled substance in violation of 21 U.S.C. Sec. 952 and 18 U.S.C. Sec. 2. All appellants, with the exceptions of Gary and S.B. Webb, were further indicted for making false, material declarations before a federal grand jury in violation of 18 U.S.C. Sec. 1623. The appellants were convicted of all crimes charged, with the exceptions of S.B. Webb, who was acquitted of conspiracy to possess and possessing with intent to distribute, and Gary Ellison, who was acquitted of perjury. The defendants raise five objections on appeal: 1) that preindictment delay violated their constitutional right to due process; 2) that the trial court erred in declining to grant defendants' motions for severances and misjoinder; 3) that evidence was insufficient to sustain their convictions; 4) that testimony impugning the credibility of a key government witness was improperly excluded; and 5) that evidence of defendant Kelly's previous drug dealings was improperly admitted. We shall address the appellants' claims in order.

Preindictment Delay

The incident giving rise to this prosecution occurred in July 1979. C.M. Stewart, a principal witness for the prosecution, was arrested in connection with the July 1979 smuggling operation in December 1980. In return for dropping all charges against him pertaining to that operation, C.M. Stewart agreed to testify against Corbin, et al., and to act as an undercover informant in a number of unrelated drug transactions. In January of 1981, C.M. Stewart's brother Thomas, the other principal prosecution witness in the instant case, likewise agreed to act as an undercover government informant. C.M. Stewart went undercover and did not become available as a witness until the end of 1981; Thomas was unavailable until April of 1982. The defendants in this case were indicted in July 1982.

Appellants contend that between the time that the government first became aware of the July 1979 smuggling incident, and the time defendants were indicted, four potential defense witnesses died. They argue that the preindictment delay was unreasonable, resulted in the prejudicial loss of some defense witnesses and the faded memories of others, and therefore violated the appellants' fifth amendment right of due process.

It is the law in this circuit that in order for preindictment delay to rise to the level of a due process violation, the defendant must make a twofold showing:

1) that the delay caused actual prejudice to the conduct of his defense; and

2) that the delay was the product of deliberate action by the government designed to gain a tactical advantage.

United States v. Lindstrom, 698 F.2d 1154, 1157 (11th Cir.1983). We need not reach the question of whether the delay was intended to gain tactical advantage, because the defendants have made no showing that they were prejudiced by the delay.

Faded memories occasioned by preindictment delay do not alone satisfy the actual prejudice requirement. United States v. Ramos, 586 F.2d 1078 (5th Cir.1978); United States v. Hendricks, 661 F.2d 38, 40 (5th Cir. Unit A 1981). The death of witnesses during the preindictment period on the other hand may demonstrate the requisite prejudice, provided that the defendants are able to demonstrate that the evidence thereby lost could not be obtained through other means. United States v. Lindstrom, 698 F.2d 1154, 1158 (11th Cir.1983). In this case, however, the defendants have done no more than list the names of the prospective "witnesses" who died between July 1979 and July 1982. They have given no indication of what these witnesses would have been able to testify to and whether the substance of such testimony was otherwise unavailable. As a consequence, they have made no showing that they were actually prejudiced by the deaths of these individuals.

Moreover, at least two of the witnesses died in late 1980, prior to the time the government had brought C.M. Stewart into custody and obtained his cooperation. Given that the government's case rested in large part upon the testimony of C.M. Stewart, defendants cannot pretend that the loss of these two witnesses was due to a failure on the government's part to bring charges prior to the time of their deaths. Because defendants have been unable to make a showing of prejudice, their claims of unconstitutional preindictment delay fail.

Motions for Severance

A. Severance of the possession and importation counts.

Appellants Carl and Gary Ellison argue that the trial court erred in denying their motions to sever counts one and two, conspiracy to possess and possessing with intent to distribute a controlled substance, from counts three and four, conspiracy to import and importing a controlled substance. The appellants insist that they wished to remain silent as to the possession counts, and testify as to the importation counts, but that the district court's refusal to sever the offenses effectively foreclosed them from doing so because they could not testify as to their complicity in the importation without suffering the adverse effects attendant to affirmatively expressing their wish to remain silent as to possession.

Rule 14 of the Federal Rules of Criminal Procedure, provides that:

If it appears that a defendant ... 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.

Rule 14 determinations are subject to an abuse of discretion standard of review; a showing of "compelling prejudice" is required before a trial court's ruling will be overturned. United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980).

The appellants here rely on Cross v. United States for the proposition that a defendant's wish to testify as to one count but not another may require a severance. 335 F.2d 987 (U.S.App.D.C.1964). As an initial matter, Cross limited its application to an accused who "wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence." Id. at 989 (emphasis supplied). The offenses in Cross were separate and distinct: robbery of a church, and robbery of a private residence, taking place on different days, in different places. In contrast, the importation and possession offenses involved here overlap as to time, place and evidence.

Moreover, Wright and Miller point out that arguments for severance made in...