U.S. v. Cox

• Citation: 934 F.2d 1114
• Decision Date: 24 May 1991
• Docket Number: No. 89-1109,89-1109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Bruce COX, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1114

934 F.2d 1114

UNITED STATES of America, Plaintiff-Appellee, v. Richard Bruce COX, Defendant-Appellant.

No. 89-1109.

United States Court of Appeals Tenth Circuit.

May 24, 1991.

Robert W. Cook (Kathy P. Bonham of Bonham, Peake & Hutchinson, Denver, Colo., on the brief), Denver, Colo., for defendant-appellant.

Stephen C. Peters, Asst. U.S. Atty., (Michael J. Norton, U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.

Before LOGAN and TACHA, Circuit Judges, and GREENE, District Judge. ^*

LOGAN, Circuit Judge.

Defendant Richard Bruce Cox was convicted by a jury of two counts involving illegal possession and transportation of firearms, and of six counts involving possession with intent to distribute and conspiracy to possess and distribute controlled substances. Defendant appeals his conviction, raising many issues which we discuss herein. ¹ We affirm.

On November 11, 1987, a Colorado state patrol trooper stopped defendant for speeding on a Colorado highway. The officer took defendant into custody after discovering that he was driving with a suspended license. As a passenger exited the vehicle defendant had been driving, the officer noticed a pistol butt protruding from a black bag on the front passenger seat floorboard. In front of the bag, the officer observed a large bucket containing a green leafy substance. A later search of the vehicle revealed that the bucket contained marijuana and several other controlled substances. The black bag contained a nine millimeter pistol, a .357 magnum revolver, and a .44 magnum revolver, all of which were loaded. As a result, defendant was charged with possessing and transporting in interstate commerce a firearm in violation of 18 U.S.C. Sec. 922(g)(1), and with carrying a firearm while committing a federal drug offense in violation of 18 U.S.C. Secs. 2 and 924(c). Defendant made bond and was released from jail.

On November 20, 1987, police arrested Thomas Sack in Colorado. During an ensuing search of Sack's motel room and truck, police discovered eleven bales of marijuana. Sack informed the police that he, defendant, and Jerry Dale Peters were involved in selling the seized marijuana. Using this information, police eventually charged defendant and Peters with conspiracy to possess and distribute, and possession with intent to distribute, in excess of 100 kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(vii) and 846.

On May 3, 1988, defendant again was arrested in Colorado after agreeing to distribute cocaine to a government informant. Based on this arrest, and a search of defendant's automobile, defendant was charged with possession with intent to distribute cocaine, ethchlorvynol, diethylpropin and codeine, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), 841(b)(2) and 841(b)(1)(D).

A federal grand jury indicted defendant on all eight charges, with counts one and two of the indictment (the marijuana offenses) naming both defendant and Peters, and counts three through eight (all other offenses) naming only defendant. Defendant and Peters were tried jointly and convicted by a jury on all counts.

I

A

Defendant first contends that the district court erred when it denied his pretrial motion for severance under Fed.R.Crim.P 8. He argues that counts one and two (the marijuana offenses), counts three and four (the firearms offenses) and counts five through eight (the cocaine, ethchlorvynol, diethylpropin and codeine offenses) involve three distinct and unrelated sets of activities that should have been tried separately.

Fed.R.Crim.P. 8(a), governing the joinder of offenses, provides in pertinent part: "Two or more offenses may be charged in the same indictment ... if the offenses charged ... are of the same or similar character or are ... parts of a common scheme or plan."

Counts one, two and five through eight are of the same or similar character; all involve either possession with intent to distribute or conspiracy to possess and distribute a controlled substance. Counts three and four, on the other hand, involve defendant's illegal possession of firearms. We conclude that the government adequately demonstrated that defendant possessed these firearms as part of a scheme or plan to possess and distribute drugs. Police seized these weapons on November 11, 1987, a date that falls within the time frame of the drug conspiracy alleged in count one; ² and coincides with count two's allegation that defendant possessed and intended to distribute marijuana on November 11, 1987. Moreover, police seized the weapons at the same time and from the same vehicle that they seized quantities of marijuana and other controlled substances. Accordingly, joinder of the charges in a single indictment was proper. See United States v. Valentine, 706 F.2d 282, 289 (10th Cir.1983) (joinder of weapons and drug charges proper when weapons seized at same time and place as drugs and drug paraphernalia).

Defendant alternatively contends that the district court violated Fed.R.Crim.P. 8(b) by refusing to grant defendant and Peters separate trials. We disagree. Defendant was charged in every count of the indictment; therefore, he was not entitled to severance under Rule 8(b). See United States v. Eagleston, 417 F.2d 11, 14 (10th Cir.1969).

B

Defendant next contends that even if joinder was proper under Rule 8, the district court erred by denying his motion for a separate trial under Fed.R.Crim.P. 14. Under Rule 14, if a defendant "is prejudiced by a joinder of offenses or of defendants in an indictment ... the court may order ... separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." The decision to grant separate trials under Rule 14 is "within the sound discretion of the trial court and its decision will not ordinarily be reversed in the absence of a strong showing of prejudice." Valentine, 706 F.2d at 289-90. Defendant's burden to show an abuse of discretion is a difficult one. Id. at 290. He has not met this burden.

Defendant argues that he was prejudiced and ultimately convicted on counts one and two (the marijuana offenses) because of lengthy testimony about Peters' marijuana smuggling activities. Absent an actual showing of prejudice, however, such an allegation does not warrant reversal. See United States v. Hack, 782 F.2d 862, 870 (10th Cir.) ("Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the 'spillover effect' from the evidence that was overwhelming or more damaging against the co-defendant than that against the moving party is sufficient to warrant severance.") (citation omitted), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). We are not persuaded that defendant was prejudiced by the district court's refusal to grant defendant and Peters separate trials.

Defendant alternatively argues that he was prejudiced because he wished to remain silent on counts one and two (the marijuana offenses), but testify and mount an entrapment defense on counts five through eight (the other drug offenses). When the district court refused to sever these offenses, defendant was forced either to testify or to remain silent on all counts.

In Valentine, 706 F.2d at 291, we discussed what a defendant who wishes to remain silent on some counts and testify on others must do before he is entitled to severance under Rule 14:

"[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information--regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other--to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying."

Id. (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970)). Accord United States v. Hayes, 861 F.2d 1225, 1231 (10th Cir.1988). Defendant failed to make such a showing. From the record before us on appeal, it appears that defendant did not even inform the court of his desire to testify on some counts and remain silent on others. At most, he may have informed the court of his intention to mount an entrapment defense on counts five through eight. See I R. tab 8 at 3 p 5; IV R. 57; Pro Se Brief of Defendant/Appellant at 4. Such a showing is plainly insufficient. See Valentine, 706 F.2d at 290-91 (although defendant informed district court that he wished to testify on some counts and remain silent on others, severance motion properly denied for failure to indicate nature of testimony to be given).

Finally, defendant argues that he was prejudiced because the jury, viewing the conclusive evidence presented on counts five through eight, may have "inferred a criminal disposition on the part of [defendant] and because of this," convicted him on counts one and two. Pro Se Brief of Defendant/Appellant at 4-5. Again we disagree; that the government's evidence was stronger on some counts than on others does not mandate severance under Rule 14. See United States v. Eades, 615 F.2d 617, 624 (4th Cir.1980), modified on other grounds, 633 F.2d 1075, cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). We find no indication that joinder of these offenses prejudiced defendant.

II

Defendant next argues that the government presented insufficient evidence to support his conviction on counts one through four and six through eight. In evaluating this claim we must decide whether a reasonable jury, viewing all evidence in the light...