U.S. v. Cravero, No. 75-2718

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before BROWN, Chief Judge, TUTTLE and GEE; GEE; GEE
• Citation: 545 F.2d 406
• Parties: 2 Fed. R. Evid. Serv. 223 UNITED STATES of America, Plaintiff-Appellee, v. Richard Douglas CRAVERO, a/k/a "Ricky," Sharon Willets, Marianne Cook, Phillip Siegal, Ronald Clifford Chandler, and Bobby Eugene Miller, Defendants-Appellants.
• Docket Number: No. 75-2718
• Decision Date: 06 August 1976

Page 406

545 F.2d 406 2 Fed. R. Evid. Serv. 223 UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Douglas CRAVERO, a/k/a "Ricky," Sharon Willets,
Marianne Cook, Phillip Siegal, Ronald Clifford
Chandler, and Bobby Eugene Miller,
Defendants-Appellants. No. 75-2718. United States Court of Appeals,
Fifth Circuit. Aug. 6, 1976.
Rehearing and Rehearing En Banc Denied Jan. 7, 1977.
Certiorari Denied Feb. 22, 1977.
See 97 S.Ct. 1123.

Page 409

Milton Grusmark, Miami, Fla., for Cravero, Chandler and Willets.

Michael J. Osman, Miami, Fla., for Cook.

Albert G. Caruana (Court Appointed for Miller), Burton Young, Richard A. Sharpstein, North Miami Beach, Fla., for Miller and Siegal.

Robert W. Rust, U. S. Atty., Miami, Fla., Frederick W. Read, III, Appellate Sec., Robert J. Erickson, Atty., Crim. Div., Washington, D. C., Ronald W. Rose, Sp. Atty., Martin L. Steinberg, Miami Strike Force, U. S. Dept. of Justice, Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, TUTTLE and GEE, Circuit Judges.

GEE, Circuit Judge:

One or more of appellants challenge their convictions for various narcotics-related offenses ¹ on each of the following grounds: (1) the indictments should have been quashed because the Department of Justice Strike Force attorney who obtained them was not appointed directly by the Attorney General, and his blanket authorization to prosecute violations of federal criminal statutes failed to provide the statutorily-required specific designation of authority to conduct the grand jury inquiry; (2) the "continuing criminal enterprise" statute, 21 U.S.C. § 848 (1970), which formed the basis of one count in the indictment, is unconstitutionally vague; (3) each appellant's motion for a judgment of acquittal on all counts should have been granted because the evidence fails to support the convictions on any count; (4) appellants Siegal and

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Miller should have been granted a severance; (5) the narcotics and related paraphernalia introduced at trial were illegally seized and should have been suppressed; (6) the hearsay declarations of an indicted coconspirator who had previously been acquitted should not have been admitted; (7) the prosecutor improperly cross-examined a defense witness; and (8) newly discovered evidence justifies a new trial for appellant Cook. We state the facts pertinent to each point as we discuss it. The convictions are affirmed.

I. Prosecuting Attorney's Authorization to Conduct Grand Jury Inquiry

All appellants contend that the Department of Justice Organized Crime Strike Force attorney who presented the case to the grand jury was neither "specially appointed" nor "specifically directed" by the Attorney General to conduct the grand jury inquiry as required by 28 U.S.C. § 515(a) (1970), ² because he was appointed by an Assistant Attorney General and because his letter of authorization failed to designate the type of case to be prosecuted. Both grounds of attack fail. First, 28 U.S.C. § 510 (1970) permits the Attorney General to delegate to any other Department of Justice official "any function of the Attorney General," which includes the power to appoint special attorneys under section 515(a). ³ And by regulation C.F.R. §§ 0.55, 0.60 (1974), the Attorney General delegated to the Assistant Attorney General in charge of the Criminal Division, who signed the authorization here, the power to designate attorneys to present evidence to grand juries in all cases under his control. See In re Persico, 522 F.2d 41, 67 (2d Cir. 1975). Second, the letter of authorization, which "specially authorized and directed" the special attorney to investigate "violations of Federal Criminal Statutes by persons whose identities are unknown" in the Southern District of Florida and other judicial districts and "to conduct . . . any kind of legal proceedings, . . . including Grand Jury Proceedings . . . , which United States attorneys are authorized to conduct," is identical in language to the authorization that we recently upheld in United States v. Morris, 532 F.2d 436, 439-40 (5th Cir. 1976). We adhere to Morris and hold that the authorization need not mention the parties or the particular federal statutes ⁴ under which the indictment was sought.

II. Unconstitutional Vagueness of the Continuing Conspiracy Statute

Appellants Chandler and Cravero argue that the "continuing criminal enterprise" statute, 21 U.S.C. § 848(b)(2) (1970), which makes a crime any violation of the statute if

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources(,)

is unconstitutionally vague in using the terms (1) "a continuing series of violations," (2) "a position or organizer, a supervisory position, or any other position of management," and (3) "substantial income or resources." The Second and Sixth Circuits

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have upheld the statute against precisely this attack in United States v. Manfredi, 488 F.2d 588, 602-03 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), and United States v. Collier, 493 F.2d 327 (6th Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 56, 42 L.Ed.2d 57 (1974) (quoting Manfredi as the sole basis for its decision). ⁵ We agree with these decisions on the grounds stated in Manfredi :

The conduct reached is only that which the violator knows is wrongful and contrary to law. See Screws v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). . . .

. . . Here . . . the statute might have been more artfully drawn, but no language has occurred or has been suggested to us that better expresses the congressional purpose. To sustain (appellant's) position would force us to hold that words cannot be devised to make it an offense to engage in the continuous sale and trafficking in heroin with a number of other people and with substantial sums of money changing hands; we feel that not to be the case and that, as applied to the conduct with which (appellant) was charged . . . the statute is not unconstitutionally vague.

488 F.2d at 602-03.

III. Sufficiency of the Evidence

All appellants challenge the sufficiency of the evidence to support their convictions on each count and claim that the lower court erred in refusing to grant any of their frequent motions for judgment of acquittal. But the evidence on each count so easily satisfies this circuit's test of sufficiency in reviewing a lower court's denying a motion for judgment of acquittal that reasonable minds could conclude that the evidence is inconsistent with the hypothesis of innocence, see, e. g., United States v. Prout, 526 F.2d 380, 384 (5th Cir. 1976) that we feel obliged to discuss only Cook's argument that the prosecution proved no more than her presence on the scene. Although "(m)ere presence at the scene of a crime . . . is not enough to prove participation in it," United States v. James, 528 F.2d 999, 1013 (5th Cir. 1976), Cook ignores not only evidence of the substantial nature of the narcotics-processing operation in her home, but also the presence of her fingerprints on most of the processing paraphernalia found in her bathroom and the discovery ⁶ of a number of packets containing cocaine and marijuana cigarettes in her bathroom, master bedroom, and living room. Viewing all this evidence and reasonable inferences therefrom in a light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), we think that the government sufficiently proved constructive possession under section 841(a)(1). ⁷

IV. Denial of Severance

Appellants Siegal and Miller, charged only with importation and conspiracy to import and possess with intent to distribute, object to the lower court's refusal to sever them from Cravero, who was charged additionally with possession and a continuing criminal enterprise. ⁸ But they were properly joined with Cravero under

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Fed.R.Crim.P. 8(b), ⁹ since all were charged with participating in "the same series of acts or transactions constituting an offense or offenses." Having been properly joined, their motion for severance was committed to the trial court's sound discretion, and denial of a severance will not be reversed unless appellants meet the heavy burden of demonstrating clear prejudice. See, e. g., United States v. Crockett, 514 F.2d 64, 70 (5th Cir. 1975). Their claim is that they were prejudiced by the introduction of evidence aimed solely at proving Cravero's guilt on the two additional counts, by Cravero's notoriety, by an inability to call other co-defendants as witnesses, and by the general strategic inferiority of a joint trial. But they proved no such prejudice. First, while some evidence was introduced solely to prove Cravero's guilt on the additional counts, neither appellant demonstrated either a "clear likelihood of confusion on the part of the jury to his prejudice," see Gordon v. United States, 438 F.2d 858, 879 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971) (citing cases), or an antagonistic defense, see United States v. Johnson, 478 F.2d 1129, 1131-34 (5th Cir. 1972); United States v. Wilson, 451 F.2d 209, 215 (5th Cir. 1971). ¹⁰ Second, although local newspapers published several potentially prejudicial news stories before and during trial, appellants have demonstrated no inherent prejudice in the trial setting or actual prejudice from the jury selection process, see Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), and the lower court took every possible measure to safeguard appellants,...