U.S. v. Davis

• Decision Date: 03 February 1977
• Docket Number: No. 75-2092,75-2092
• Citation: 546 F.2d 617
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth W. DAVIS, James B. Cobb and Ferrell Bennett, Jr., Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 617

546 F.2d 617

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth W. DAVIS, James B. Cobb and Ferrell Bennett, Jr.,

Defendants- Appellants.

No. 75-2092.

United States Court of Appeals, Fifth Circuit.

Feb. 3, 1977.

Michael A. Linsky (Court-appointed), Tampa, Fla., for Davis.

J. Scott Taylor (Court-appointed), Tampa, Fla., for Bennett.

Oscar Blasingame (Court-appointed), St. Petersburg, Fla., for Cobb.

John L. Briggs, U.S. Atty., Jacksonville, Fla., John J. Klein, Atty., Dept. of Justice Crim. Div., Washington, D.C., for plaintiff-appellee.

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

Before MORGAN and GEE, Circuit Judges, and HUNTER, ^* District Judge.

GEE, Circuit Judge:

Appellants Bennett and Cobb were convicted of conspiracy to import marijuana and of importation and possession of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 952(a), § 955, § 960(a)(1), (2), and § 963. Appellant Davis was convicted of conspiracy only. Bennett received concurrent two and one-half year sentences, followed by five years special parole; Cobb received concurrent eighteen-month sentences and five years special parole; Davis was placed on three years probation pursuant to 18 U.S.C. § 5010(a).

In November 1974, a DC-3 airplane landed at Winterhaven, Florida, carrying 500 pounds of marijuana. Cobb was arrested when he began unloading suitcases of marijuana from the plane into his waiting van; Bennett was co-owner of the DC-3, and Davis was in the plane, having served as Bennett's "representative" on the trip to and from Jamaica. ¹ Co-defendants Shepherd and Kiken pled guilty and testified for the government. The pilot of the plane, Barnett, proved to be a government informer who also was a key prosecution witness.

Appellant Bennett complains of the admission of testimony by these witnesses of his prior dope dealings. Bennett's sole defense at trial was that he was coerced into lending his plane to these smugglers by their threats of violence to himself and his family. Bennett's motivation and intent were at issue, and the trial judge admitted the evidence of previous importation of marijuana only as to Bennett. Before the complained-of testimony was admitted, the court gave the following instruction, admonishing the jury to consider the evidence only for the purpose of determining Bennett's intent and not as proof of commission of the acts charged:

In other words, if you should find from the evidence about to be given to you by the witness, Kiken, that the defendant (Bennett) prior to the time of the events charged in the indictment was involved in similar transactions, that evidence, evidence of what he did at some prior time, would not be proof that he did what is charged in this indictment.

He is on trial only with respect to what he did or didn't do under the charges in the indictment. Now, that is to say that the evidence that the defendant may have committed an earlier act of a like nature may not be considered in determining whether the accused Bennett committed any of the offenses charged in the indictment.

Now, if you should find beyond a reasonable doubt from other evidence in the case that the accused Bennett did the acts charged in the indictment, then you may consider evidence as to the alleged earlier acts of a like nature in determining the state of mind or intent with which the accused Bennett did the acts charged in the particular parts of the indictment or counts which you are considering and where proof of (an) alleged earlier act of a like nature is established by evidence which is clear and conclusive, you may draw therefrom the inference that in doing the acts charged in the counts of the indictment, the accused Bennett acted willfully and with specific intent and not through mistake, inadvertence or for any innocent reason.

Another limiting instruction was given at the close of trial. We find the trial judge properly exercised his discretion in admitting the evidence under the intent exception to the general rule excluding evidence of prior similar misconduct. Bloom v. United States, 538 F.2d 704 (5th Cir., 1976); United States v. San Martin, 505 F.2d 918 (5th Cir. 1974).

Appellants Cobb and Davis both complain that they were prejudiced by the admission of the prior importation schemes of Bennett. Davis urges that his motion to sever should have been granted to protect him from a verdict of guilt by association.

The joint trial of conspiracy defendants always presents the troublesome problem of limiting the jury's consideration of testimony admissible against some defendants but not others. But the decision as to whether the jury can sort out the evidence relevant to each defendant is firmly committed to the discretion of the trial court. The test which should guide the trial judge is set forth in Tillman v. United States :

"(C)an the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted."

406 F.2d 930, 935 (5th Cir. 1969), citing Peterson v. United States, 344 F.2d 419, 422 (5th Cir. 1965). Our court has held that the admission of past misconduct of some defendants does not dictate a severance to protect the other co-defendants from an inference of guilt by association.

It is further asserted by some appellants that the criminal records of their co-defendants below were prejudicial to their defense and should have been sufficient to warrant a severance. Similar grounds have generally been rejected. These grounds have been held insufficient even if the prior convictions were for similar offenses.

United States v. Perez, 489 F.2d 51, 67 (5th Cir. 1973) (citations omitted). Rather we have relied on careful instructions at the time such evidence is admitted to protect co-defendants in a conspiracy trial from the risk of guilt transference. Cf. United States v. Morado, 454 F.2d 167, 172 (5th Cir. 1972). Limiting instructions were given prior to the admission of testimony about Bennett's history of importing marijuana and at the close of the trial, charging the jury that the prior acts concerned only the defendant Bennett and did not concern the guilt or innocence of either Davis or Cobb. Our careful reading of the record in this case convinces us that the trial judge's instructions here were a model for imparting caution and care to the jury in its consideration of each defendant's guilt or innocence and in their reiterated strictures on the consideration of evidence of similar transactions or misconduct not the subject of the indictment. ² Neither Cobb nor Davis has convinced us that he was so prejudiced by the complained-of testimony that his conviction must be reversed.

Appellant Davis complains of the court's failure to grant his motion for acquittal on the charge of conspiracy. ³ A review of the lengthy transcript in this case reveals slight evidence that Davis willfully joined the conspiracy charged, but we agree with the trial judge that there was enough to send the question to the jury, and, viewing the evidence presented most favorably to the government, as we must, we refuse to overturn their verdict of guilty.

All three appellants complain that judicial commentary and questioning during this lengthy trial exceeded proper bounds and denied them a fair trial. It is true that the trial judge played an active role, at times pointedly examining witnesses and defendants. But a federal judge is not consigned to the role of moderator; he may elicit further information he thinks would benefit the jury, and he may comment on the evidence, provided he makes it clear that all matters of fact are...