U.S. v. Dennis
| Decision Date | 14 April 1986 |
| Docket Number | No. 85-3089,85-3089 |
| Citation | 786 F.2d 1029 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bobby Roy DENNIS, Sr., Sharon Denise Cohen, Clarence Bobby Jennings, Brenda Jewell Hurley, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
M. Alan Ceballos, Asst. U.S. Atty., Jacksonville, Fla., for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before HILL, Circuit Judge, and TUTTLE and HENDERSON *, Senior Circuit Judges.
This is an appeal from defendant-appellants' convictions and sentences on various narcotics-related charges. The defendants were indicted along with six other individuals, five of whom pled guilty and one of whom remained a fugitive through trial, in a twenty-two count indictment in September of 1984. The defendants filed numerous pre-trial motions, two of which--a motion to suppress certain evidence filed by one defendant and a motion for a continuance filed by another--are relevant to this appeal. Both of those motions were denied.
The jury found all four of the defendants guilty of the offense alleged in Count One of the indictment, which charged them with a five year long conspiracy "to knowingly, willfully and intentionally distribute and possess with intent to distribute quantities of controlled substances, including heroin, cocaine, marijuana, and talwin," in violation of 21 U.S.C. Sec. 846 (1982). Each defendant was also convicted of one or more substantive narcotics offenses. In addition, appellant Bobby Roy Dennis was convicted of engaging in a continuing criminal enterprise that yielded him substantial income and resources, in violation of 21 U.S.C. Sec. 848 (1982), and using a communication facility to facilitate the conspiracy set forth in Count One, in violation of 21 U.S.C. Sec. 843(b) (1982). Appellants Sharon Denise Cohen and Clarence Bobby Jennings were also convicted of making false and material declarations to a federal grand jury, in violation of 18 U.S.C. Sec. 1623 (1982). The sentences imposed will be discussed where relevant below.
The evidence at trial established that appellant Bobby Roy Dennis, Sr. (hereinafter referred to as "Dennis") and Johnny Bernard McClenton, a codefendant who pled guilty and testified at trial, jointly supervised and controlled a massive and highly lucrative five year narcotics distribution enterprise. The enterprise enlisted the assistance of a succession of young women who would package and store the drugs in their homes or apartments, frequently in return for the payment of their rent or other household expenses. The organization also employed street level "lieutenants" who would retrieve the packaged narcotics from the homes in which they were processed and stored and deliver them to street level sellers.
In exchange for financial remuneration, appellant Brenda Jewell Hurley (hereinafter referred to as "Hurley") stored marijuana, cocaine and heroin in her apartment for several months in 1982, during which time the enterprise operated out of that location. Appellant Sharon Denise Cohen (hereinafter referred to as "Cohen"), acting as a street level seller, sold cocaine and heroin out of her home. Appellant Clarence Bobby Jennings (hereinafter referred to as "Jennings") was a street level lieutenant.
On the first day of appellants' trial, the court conducted a lengthy voir dire examination of potential jurors. In response to questions from the court that were directed at learning whether any of the potential jurors harbored any improper bias as a result of their opinions about illicit drugs or had developed any prejudice as a result of their exposure to any pre-trial publicity concerning the case, five jurors stated that they might not be able to render an unbiased decision because of previous experiences unrelated to the case at bar. Following further voir dire examination of the panel by the court, those jurors were excused.
The evidence presented by the government at trial consisted principally of the testimony of a host of witnesses who had been employed in various capacities by the criminal enterprise. Written plea agreements between the government and two of Further facts will be provided where relevant to the analysis below.
those witnesses were introduced into evidence by the government over defense objections. Dennis and Cohen were also implicated in a diary/financial ledger that had been kept by one of the street lieutenants during his tenure with the organization and was introduced at trial. The prosecution's case against Dennis was further supported by a tape recording of a telephone conversation that had been intercepted pursuant to a 1980 court authorized wiretap. Dennis' pre-trial motion to suppress the recording had been denied.
Appellants raise numerous claims of error on this appeal. We will discuss the following issues raised by those claims in the order in which we have listed them below:
(1) Whether the trial court erred in admitting into evidence the tape recording made pursuant to a court authorized wiretap in 1980.
(2) Whether the trial court erred in sentencing Hurley, Cohen and Jennings on Count One in the absence of a special verdict indicating which drugs were found by the jury to have been objects of the conspiracy.
(3) Whether appellants Jennings and Cohen waived any right to object to the testimony of the grand jury foreman regarding the materiality of allegedly false statements they made before the grand jury.
(4) Whether the trial court abused its discretion in its conduct of voir dire.
(5) Whether the trial court erred in admitting into evidence the written plea agreements of two government witnesses.
(6) Whether the trial court erred in denying appellant Hurley's motion for a mistrial after the prosecutor commented on Hurley's character in his rebuttal argument.
(7) Whether the trial court erred in denying appellant Dennis' motion to inquire of the government into the reasons for its exercise of three of its peremptory challenges.
The remainder of the claims raised by appellants are clearly without merit and are addressed together in Part VIII below.
The government was permitted to introduce into evidence a tape recording of a telephone conversation between Dennis and David Weinstein, the owner of a local pharmacy, in which Dennis asked Weinstein whether he could provide Dennis with a large quantity of Talwin, a Schedule I narcotic substance. The recording was made on August 1, 1980, pursuant to a court authorized wiretap on a telephone located at the residence of Bonnie Joyce Phelps (a/k/a Bonnie Joyce Jackson). On July 16, 1980, as part of an investigation into essentially the same criminal enterprise that is the subject of this case, Assistant United States Attorney Thomas E. Morris had applied for and received authority to intercept and monitor communications over the home telephone lines of Dennis and Phelps, who was then Dennis' girlfriend. 1 Attached to and made a part of that application by reference was an affidavit executed by Federal Bureau of Investigation Special Agent Dennis Erich, setting forth, inter alia, the reasons why it was believed that alternative investigative techniques would not achieve the objectives the wiretap could achieve. On July 28, Morris filed a second application seeking authority to intercept communications over Phelps' telephone line at a new address to which she had moved. The court granted the application, resulting in the interception of the conversation between Appellant Dennis challenges the legal sufficiency of the July 28 application on this appeal, arguing that it fails to satisfy the statutory requirement that a wiretap application include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(1)(c) (1982). Appellants claim support for their position in dicta from this court's opinions in United States v. Bascaro, 742 F.2d 1335 (11th Cir.1984), and United States v. Domme, 753 F.2d 950 (11th Cir.1985). In both of those cases we approved the incorporation by reference of prior affidavits in an amended application that had been made necessary only because of a change in telephone number at the same address. In both cases the court distinguished amended applications arising from a change in the address of the person whose conversations were being intercepted. Indeed, the Domme court stated:
Dennis and Weinstein on August 1. The July 28 application included an affirmation of the applicant's belief that "normal investigative procedures appear unlikely to succeed," and incorporated by reference the prior affidavit of Special Agent Erich, which was said to "explain[ ] why normal investigative procedures have failed or reasonably appear unlikely to succeed if continued, or reasonably appear unlikely to succeed if tried." 2
Appellants point to Bagley v. State, 397 So.2d 1036 (Fla.App.1981), and Wilson v. State, 377 So.2d 237 (Fla.App.1979), which held amended applications to be insufficient as a matter of state law when they merely incorporated information contained in earlier applications. Their argument, however, is foreclosed by our decision in Bascaro. There, the government obtained an amended wiretap order, which was sought by incorporating the original application, because the subject of the wiretap had changed one of his phone numbers before electronic surveillance had begun. Appellants in Bascaro raised the identical argument presented here. In distinguishing Wilson and Bagley, the Bascaro court...
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