U.S. v. Davis
| Decision Date | 25 January 1988 |
| Docket Number | 86-1773,Nos. 86-1772,s. 86-1772 |
| Citation | 838 F.2d 909 |
| Parties | 24 Fed. R. Evid. Serv. 931 UNITED STATES of America, Plaintiff-Appellee, v. Larry C. DAVIS and John Newsome, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lee T. Lawless, Fed. Public Defender's Office, St. Louis, Mo., Thomas H. Boswell, Carbondale, Ill., for defendants-appellants.
Michael C. Carr, Asst. U.S. Atty., Benton, Ill., for plaintiff-appellee.
Before COFFEY and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Defendants-Appellants, Larry Davis and John Newsome, appeal their convictions for conspiring to distribute more than 1,000 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846. We affirm.
Larry Davis and John Newsome were charged with participating in a large marijuana distribution ring operating in southern Illinois from April, 1977 through November, 1983. The government's theory of the case was that Jack Hrvatin, the "kingpin" of the conspiracy, was the central figure of a large marijuana distribution network. On one side of the network, "sources" supplied marijuana to other members of the conspiracy. On the other side, "buyers" purchased the marijuana and, in turn, sold the marijuana to smaller distributors or to marijuana users. Many of the conspirators performed different roles within the conspiracy--acting as either "sources" or "buyers" depending on the circumstances.
In September of 1985, a grand jury indicted Davis, Newsome and twelve other persons. The indictment charged all the defendants with conspiracy to distribute more than 1,000 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846. 1 The indictment also named several persons as unindicted co-conspirators, including Jack Hrvatin.
Before trial, ten of Davis' and Newsome's co-defendants pleaded guilty. Davis and Newsome were then jointly tried with the two remaining co-defendants, Larry Bowen and Dave Bullock. Larry Bowen was accused of acting as a source of marijuana for Jack Hrvatin and other members of the conspiracy. Dave Bullock was accused of acting principally as a "buyer" from Douglas Hatchett, a marijuana dealer and unindicted co-conspirator.
At trial, the government's case, like many drug conspiracy cases, relied heavily on the testimony of the defendants' former Through the testimony of these witnesses, the government elicited abundant evidence of Davis' and Newsome's guilt. Davis' role in the conspiracy was that of a "stash house" operator. The government's primary witness against Davis was Tim Norton. Norton testified that he, along with his partner Larry Bowen, was a major source of marijuana for Jack Hrvatin. Norton stated that Bowen and he stored marijuana at two different houses in which Davis lived and that Davis received a cut of the profits from their sales. Norton testified that in the fall of 1978 a dealer from Florida delivered 50 pounds of marijuana to him at Davis' house in Carbondale, Illinois. Norton stored the marijuana elsewhere even though Davis had agreed to allow Norton to store the marijuana at Davis' house and distribute it from there.
associates. Most of these former associates had agreed to cooperate with the government after either pleading guilty to drug charges, being convicted of drug charges, or being granted immunity from prosecution. Two of these witnesses were indicted along with Davis and Newsome and had pled guilty. Others were involved in separate prosecutions on related charges. See United States v. Marks, 816 F.2d 1207 (7th Cir.1987). All told, 14 of the 18 witnesses the government presented at trial were involved in some aspect of the conspiracy and eleven testified pursuant to some type of an agreement with the government.
Norton then testified that in "approximately November of 1979" he had three or four bales of marijuana (each weighing 35 to 40 pounds) delivered to and stored at Davis' house in Carbondale. Davis was present during the delivery. Approximately a week to ten days later, Norton had another 250 pounds of marijuana delivered to Davis' house.
Later on, Davis resided at a farmhouse in DeSoto, Illinois. Norton testified that in April of 1982 he stored 5,000 pounds of marijuana at that farmhouse. The 5,000 pounds were delivered in two shipments and Davis assisted in transportation and unloading. Davis also helped guard and collect money for the marijuana. Of the 5,000 pounds, approximately 4,400 to 4,500 pounds were delivered to Jack Hrvatin.
Tim Norton's testimony concerning Davis' "stash house" operations was corroborated by many other witnesses. Jack Hrvatin testified that in 1980 he purchased a bale of marijuana at Davis' house on New Era Road in Carbondale. Hrvatin also testified that the 5,000-pound load of marijuana was stored at Davis' house in DeSoto and that Davis assisted in unloading the marijuana. One of Hrvatin's deliverymen, Sydney Hall, testified to helping unload the large load of marijuana with Davis and others at the DeSoto farmhouse.
Doug Hatchett, an unindicted co-conspirator, testified that in May, 1982, he received a call informing him of the availability of a large quantity of marijuana. Hatchett then went to the farmhouse in DeSoto where he saw a large quantity of marijuana being stored. He subsequently purchased some of the marijuana and received assistance from Davis in loading the marijuana into his car. Another marijuana dealer, Carl Hottes, testified that in 1979 he purchased 15 pounds of marijuana from Larry Bowen at Davis' house in Carbondale.
Davis did not testify. Instead, he attempted to counter the government's case through evidence designed to cast doubt on the testimony of the government's witness. Davis' cousin (who was allegedly present during the delivery of some of the marijuana) testified that he was often at Davis' house in Carbondale and did not witness any marijuana-related activities. One of Davis' co-workers testified that Davis vacated the house in Carbondale in October of 1979; this testimony was apparently intended to create doubts as to Norton's testimony that he stored marijuana there in "approximately November of 1979."
A friend of Davis testified that she lived near the DeSoto "stash house" and visited the house approximately once a month. She testified to not seeing any marijuana-related activities at the house. Similarly, Davis' father testified that he kept livestock Newsome's role in the conspiracy was as a regular buyer of marijuana from Hrvatin. Jack Hrvatin testified that Newsome was a regular customer of his. According to Hrvatin, his sales to Newsome were in five-to-ten-pound quantities. Judy Hrvatin, Jack Hrvatin's wife, testified that Newsome was a ten-pound-per-week customer of her husband. Four of Jack Hrvatin's "deliverymen" testified at trial that they delivered marijuana to Newsome during the times alleged in the indictment. One of the deliverymen testified that between 1977 and 1980 he delivered five-pound quantities to Newsome on 47-57 occasions. Another witness, Doug Hatchett, also testified that he delivered marijuana to Newsome.
at the DeSoto farm and that he was not aware of marijuana-related activities.
Newsome admitted buying marijuana in amounts ranging from approximately five to ten pounds but claimed that his purchases were more sporadic than the government's witnesses had testified. While claiming to be a heavy user of marijuana, he admitted that he sold much of the marijuana he purchased. He also admitted knowing that Hrvatin sold to others. His defense was that he was not aware of any "plan" between Hrvatin and others to distribute large quantities of marijuana.
At the conclusion of all the evidence, the jury returned guilty verdicts against all four defendants. Davis and Newsome appeal on several grounds.
We first address Davis' and Newsome's contention that the proof at trial fatally varied from the indictment. The indictment charged Davis and Newsome with participation in a single, ongoing conspiracy that operated from April, 1978 through November, 1983. Davis and Newsome contend that the evidence produced at trial fatally varied from the indictment because the government proved multiple conspiracies at trial. According to defendants, the partnership of Tim Norton and Larry Bowen was Hrvatin's only source of marijuana. Norton testified that Bowen and he left the marijuana business from the fall of 1978 to late 1979 and again from the fall of 1980 to the fall of 1981. Thus, Davis and Newsome argue, the government proved only that three series of transactions occurred, not a single ongoing conspiracy. Even though the district court gave an instruction on single and multiple conspiracies, the defendants claim they are entitled to reversal because no evidence supported the government's single conspiracy theory. They contend that the allegedly fatal variance of the proof from the indictment allowed the government to introduce a great deal of prejudicial evidence of crimes unrelated to them. See United States v. Jackson, 696 F.2d 578, 584 (8th Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983).
In reviewing whether a single or multiple conspiracy was established after a defendant's conviction at trial, an appellate court must consider the evidence in the light most favorable to the government. United States v. Towers, 775 F.2d 184, 189 (7th Cir.1985). To establish a single conspiracy, the government must show that the "co-conspirators ... 'knowingly embraced a common criminal objective.' " United States v. Boucher, 796 F.2d 972, 975 (7th Cir.1986) (quoting United States v. Ras, 713 F.2d 311, 314 (7th Cir.1983)). However, the parties involved in a conspiracy do not have to know the other conspirators or participate in every aspect of the conspiracy....
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