U.S. v. Davila, 91-2850

• Decision Date: 24 June 1992
• Docket Number: No. 91-2850,91-2850
• Citation: 964 F.2d 778
• Parties: UNITED STATES of America, Appellee, v. Benito P. DAVILA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 778

964 F.2d 778

UNITED STATES of America, Appellee, v. Benito P. DAVILA, Appellant.

No. 91-2850.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 10, 1992.

Decided May 15, 1992.

Rehearing and Rehearing En Banc Denied June 24, 1992.

Vincent M. Powers, Lincoln, Neb., argued, for appellant.

Bruce Wellesley Gillan, Lincoln, Neb., argued (Ronald D. Lahners and Bruce W. Gillan, on brief), for appellee.

Before ARNOLD, Chief Judge, MAGILL, Circuit Judge, and LARSON, ^* Senior District Judge.

MAGILL, Circuit Judge.

Benito Davila appeals his conviction for conspiracy to distribute marijuana, possession of marijuana with intent to distribute, and money laundering. He also appeals the sentence imposed by the district court. ¹ He raises seven claims challenging his convictions and seven claims challenging his sentence. Because we conclude that none of these claims have merit, we affirm.

I.

On October 18, 1990, Davila was indicted for conspiracy to distribute marijuana and cocaine, possession of marijuana with intent to distribute, distribution of cocaine, and money laundering. Following his arrest, Davila sought to cooperate with the government in exchange for a plea agreement. ² To determine whether a plea agreement with Davila would be beneficial, the government entered into a proffer agreement with him. Pursuant to this agreement, Davila would make an "off-the-record" statement about the assistance he could provide in the investigation or prosecution of other persons. The agreement also provided that the government could not use any information from Davila's statement in its case-in-chief, but that it could use the information on cross-examination to counter materially different testimony. Subsequent to Davila's statement, the government rejected Davila's offer of cooperation and refused to enter a plea agreement. Davila pled not guilty to all counts. At trial, Davila's counsel admitted that Davila was an "old time pot dealer," and focused his defense on the cocaine counts. His trial strategy worked. The jury found Davila guilty of only conspiracy to distribute marijuana, possession of marijuana with intent to distribute, and money laundering. The jury acquitted Davila of conspiracy to distribute cocaine and distribution of cocaine.

Following the trial, the district court obtained a presentence report on Davila that recommended a sentencing range under the Sentencing Guidelines. Because the government and Davila raised numerous objections to this report, the court held a sentencing hearing. At this hearing, Davila intended to establish, inter alia, that he was entitled to a downward departure from the recommended sentencing range for substantial assistance. His justification for this departure was that the government acted in bad faith when it entered the proffer agreement with no intent of entering a plea agreement. To establish this bad faith, Davila sought to call certain government representatives. The district court ruled that Davila could call these witnesses and question them about his willingness to cooperate, but that he could not question them about why the government chose not to enter a plea agreement with him. The court stated that it was limiting Davila's questions because "the prosecutor has sole discretion as to whom to prosecute and with whom to make cooperation agreements, including plea agreements."

The court subsequently resolved most of the contested sentencing issues in favor of the government. It concluded that Davila's total offense level was thirty-four based on a drug quantity of 1000 pounds of marijuana, a four-level enhancement for his aggravating role in the offense, and a two-level enhancement for obstruction of justice. The court refused to grant Davila a reduction for acceptance of responsibility. With a criminal history category of III, Davila's sentencing range was 188 to 235 months. Because the court concluded that Davila's criminal history category understated Davila's prior criminal conduct, however, the court departed upward from this range and imposed a sentence of 264 months for the conspiracy conviction, and 240 months for each of the remaining convictions, all to run concurrently. Davila now appeals both his convictions and his sentence.

II.

A. Conviction Claims

Davila raises seven claims challenging his convictions. First, he claims that two counts of the indictment did not properly charge him because they referred to him as a defendant named in the conspiracy count rather than by name. This claim is without merit. There is no requirement that the indictment state the defendant's name in each count. See United States ex rel. Nelson v. Wyrick, 422 F.Supp. 139, 140 (E.D.Mo.1976) (finding no defect in an indictment that did not mention the defendant by name in the body of the indictment, but referred to him as "the defendant"). Rather, allegations made in one count, such as the name of the defendant, may be incorporated by reference in another count. Fed.R.Crim.P. 7(c)(1).

Second, Davila argues that the money laundering counts were fatally defective. This argument also is without merit. The money laundering counts track the language of 18 U.S.C. § 1956(a)(1)(A)(i) (1988), the money laundering statute, and set forth the specific facts constituting the offense. This is sufficient. ³ See United States v. Helmel, 769 F.2d 1306, 1322 (8th Cir.1985) (holding that an indictment setting out the elements of the offense and the specific facts constituting the offense is sufficient).

Third, Davila claims that the court erred in allowing the government to introduce out-of-court statements of Dale Wedland, a co-conspirator, because the government did not include Wedland's name in the list of co-conspirators the government sent to Davila. As a general rule, statements of co-conspirators are admissable if the government demonstrates that a conspiracy existed, that the defendant and the declarant were members of the conspiracy, and that the declarations were made in the course of and in furtherance of the conspiracy. See, e.g., United States v. Hoelscher, 914 F.2d 1527, 1539 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991). The district court specifically found that this standard was met and we find no error in its ruling. The district court also found that the government's inadvertent failure to include Wedland on the list of co-conspirators sent to Davila did not prejudice the defense. Accordingly, it refused to grant Davila's motion for mistrial. We agree that Davila failed to show any prejudice, and thus was not entitled to a mistrial. Cf. United States v. Porter, 850 F.2d 464, 465 (8th Cir.1988) (finding no reversible error because defendant failed to show any prejudice resulting from the government calling a witness not named on its pretrial witness list).

Fourth, Davila claims that he was entitled to a mistrial when the prosecutor asked a witness about what the prosecutor had previously told her. Given that this question was in direct response to questioning by defense counsel regarding the prosecutor's prior statement, we are not convinced the prosecutor's question was improper. Even if it was, Davila has not established prejudice. See United States v. Neumann, 887 F.2d 880, 886 (8th Cir.1989) (holding that reversible error premised on prosecutorial misconduct exists only when prosecutor's remarks are improper and defendant is prejudiced), cert. denied, 495 U.S. 949, 110 S.Ct. 2210, 109 L.Ed.2d 536 (1990).

Fifth, Davila argues that the trial court erred in allowing a witness to identify Davila in court following an impermissibly suggestive single-photo identification. Even assuming that the witness was shown a single photo of Davila, which is contested, we agree with the district court that the in-court identification was reliable under the totality of the circumstances. See United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991). The witness testified that he had ridden next to a person he identified as Davila for over one hour during daylight hours. At the very least, we find the in-court identification harmless beyond a reasonable doubt given the overwhelming evidence of Davila's guilt. See United States v. Wade, 740 F.2d 625, 628 (8th Cir.1984); United States v. Causey, 834 F.2d 1277, 1285 (6th Cir.1987), cert denied, 486 U.S. 1034, 108 S.Ct. 2019, 100 L.Ed.2d 606 (1988).

Sixth, Davila claims that the court erred in allowing a police officer to sit at counsel table for the government. We find no error. Precedent in this circuit clearly allowed the court to make this ruling. United States v. Jones, 687 F.2d 1265, 1267-68 (8th Cir.1982); see also Fed.R.Evid. 615 (entitling attorney for a nonnatural party to designate an officer or employee of the party who can remain in the court despite a sequestration order).

Finally, Davila challenges the district court's instruction on the conspiracy count. Specifically, Davila argues that because the indictment charged him with conspiracy to distribute cocaine and marijuana, the court's instruction requesting a special verdict on whether the conspiracy, if any, involved only cocaine, only marijuana, or both impermissibly amended the indictment. This circuit rejected this identical argument in a previous case. See United States v. Lueth, 807 F.2d 719, 732-34 (8th Cir.1986). Not only do we find the reasoning in this case correct, we are without power to overturn it. E.g., Woodard v. Sargent, 806 F.2d 153, 156 (8th Cir.1986) (one panel of this circuit cannot overturn the decision of a prior panel).

B. Sentencing Claims

Davila initially argues that the court should not have sentenced him under the Sentencing Guidelines. This claim is without merit. This circuit has ruled that the guidelines apply to conspiracies that began before the effective date of the guidelines and end after it, as did the Davila conspiracy. United States v. Tharp, 892 F.2d 691, 695 (8th Cir.1989)....