U.S. v. Crisp

• Decision Date: 01 December 1977
• Docket Number: Nos. 76-2656 and 76-4259,s. 76-2656 and 76-4259
• Citation: 563 F.2d 1242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert CRISP, Edward Perrone and Gungor Yatman, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Edward PERRONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1242

563 F.2d 1242

UNITED STATES of America, Plaintiff-Appellee, v. Robert CRISP, Edward Perrone and Gungor Yatman,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Edward PERRONE, Defendant-Appellant.

Nos. 76-2656 and 76-4259.

United States Court of Appeals Fifth Circuit.

Dec. 1, 1977.

Theodore J. Sakowitz, Federal Public Defender, Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for Crisp.

Melvyn Kessler, Miami, Fla., for Perrone.

Robert S. McCain, Fort Lauderdale, Fla. (Court-appointed), for Yatman.

Jack v. Eskenazi, U. S. Atty., Jay R. Moskowitz, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., John H. Burnes, Jr., William G. Otis, Attys., Dept. of Justice, Washington, D. C., for U. S. in 76-2656 and 76-4259.

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

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

RONEY, Circuit Judge:

A jury convicted the defendants of conspiracy and multiple counts of possession of cocaine with intent to distribute, 18 U.S.C.A. § 2, 21 U.S.C.A. §§ 841(a)(1), 846. On appeal, they challenge the sufficiency and propriety of the Government's evidence that the white substance they cut, snorted and sold was cocaine. Defendant Edward Perrone, the alleged organizer of a plan to distribute cocaine delivered to him at his massage parlors, claims prejudice from the failure to sever a separate continuing criminal enterprise count against him, 21 U.S.C.A. § 848, on which he was acquitted. Perrone also challenges the Government's failure to provide him with allegedly exculpatory statements by Donald Gould, a deceased co-conspirator. Finding no reversible error, we affirm.

The Government sought to prove the identity of the cocaine in two ways. First, it called two former Perrone employees who testified to numerous occasions, including those which formed the basis for the substantive counts, when the defendants referred to the white powder they were handling as "coke" or "cocaine," and snorted it. One witness snorted some himself. The defendants cut the substance, weighed it, tested it over a flame and under a microscope, and sold it for substantial sums of money. The defendants argue that this proof was circumstantial and cannot substitute for chemical analysis evidence. They conclude that the evidence was insufficient to convict them on the substantive counts. The nature of a narcotic drug, however, may be established by circumstantial evidence, so long as the drug's identity is established beyond a reasonable doubt. United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). The court here properly charged the jury, and the jury could have found beyond a reasonable doubt that the testimony of the two witnesses proved the substance was cocaine.

The second way the Government sought to prove the identity of the cocaine was by introducing at trial cocaine seized from one of Crisp's dealers, who was not a defendant. Building on their challenge to the circumstantial nature of their conversations about "coke," defendants argue that evidence was so sparse, and the connection between the cocaine in evidence and the conspiracy was so tenuous, that allowing the evidence had a prejudicial impact which far exceeded its probative value. The conversations, however, were admissible and relevant. Viewing the introduction of the cocaine alone, ample testimony connected it to the conspiracy. An undercover agent testified that after the Government seized the cocaine, defendant Yatman said that "the coke and other items belonged to (Yatman)" and that co-defendant Robert Crisp was worried about the arrest of the dealer and would be leaving for Detroit "until things cooled off." Another former cocaine dealer for Crisp testified that Yatman and Crisp were "really upset about the fact that (their dealer) had gotten busted with their merchandise." The trial judge did not err in allowing the cocaine to be introduced into evidence.

On appeal, Perrone alleges prejudice from the trial court's failure to sever the criminal enterprise count from the conspiracy and other substantive counts. Perrone did not seek severance prior to trial as required by Fed.R.Crim.P. 12(b)(5). The trial court did not abuse its discretion in denying the motion when it was made after the jury began its deliberations. The criminal enterprise statute is aimed at the organizers of criminal conspiracies having five or more members. Since trial, the Supreme Court has held that § 846 conspiracy is a lesser included offense of § 848 management of a criminal enterprise. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). On the facts of that case, the Court noted a joint trial on both § 846 and § 848 charges "could have taken place without undue prejudice to petitioner's Sixth Amendment right to a fair trial." Id. at 153, 97 S.Ct. at 2217. Similarly, Perrone suffered no prejudice here from the failure to sever because the evidence introduced to show criminal enterprise was also pertinent to either the conspiracy count or the other substantive counts of the indictment.

Perrone moved...