U.S. v. Dickey, Nos. 83-1128

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BARRETT, McKAY and LOGAN; BARRETT; McKAY
• Citation: 736 F.2d 571
• Parties: 15 Fed. R. Evid. Serv. 1613 UNITED STATES of America, Plaintiff-Appellee, v. Gary L. "Scott" DICKEY, Dixie A. Harris, Robert Best, Carl Ray Smith, Edward M. Beasley, Sidney Lee Bradley, Marvin Ralph "Rusty" Hall, Stephen Pat Nichols, Alan Friedrich, Thomas Norton Adams, Defendants-Appellants. to 83-1137.
• Decision Date: 29 May 1984
• Docket Number: Nos. 83-1128

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736 F.2d 571 15 Fed. R. Evid. Serv. 1613 UNITED STATES of America, Plaintiff-Appellee,
v.
Gary L. "Scott" DICKEY, Dixie A. Harris, Robert Best, Carl
Ray Smith, Edward M. Beasley, Sidney Lee Bradley, Marvin
Ralph "Rusty" Hall, Stephen Pat Nichols, Alan Friedrich,
Thomas Norton Adams, Defendants-Appellants. Nos. 83-1128 to 83-1137. United States Court of Appeals,
Tenth Circuit. May 29, 1984.

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Kenneth P. Snoke, Asst. U.S. Atty., N.D. Okl., Tulsa, Okl. (Frank Keating, U.S. Atty., Tulsa, Okl., on the brief), for plaintiff-appellee.

Art Fleak, Jr., Tulsa, Okl., for defendants-appellants Dickey and Adams.

Don Grace, Oklahoma City, Okl., for defendant-appellant Harris.

James E. Wallace, Grove, Okl., for defendant-appellant Best.

Alan R. Carlson of Garrison, Brown & Carlson, Bartlesville, Okl. (Michael R. Brown, Bartlesville, Okl., on the brief), for defendant-appellant Smith.

Richard Esper, El Paso, Tex. (Joseph Abraham, Jr., and Charles Louis Roberts, El Paso, Tex., on the brief), for defendants-appellants Beasley and Bradley.

Patrick A. Williams of Williams, Donovan & Savage, Tulsa, Okl., for defendant-appellant Hall.

James E. Frasier of Frasier, Frasier & Gullekson, Tulsa, Okl., for defendant-appellant Nichols.

Joel Hirschhorn, Miami, Fla., for defendant-appellant Friedrich.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Ten defendants appeal from a jury verdict convicting each of them on one count of conspiracy to possess with intent to distribute, and to distribute marijuana and cocaine in violation of 21 U.S.C. Secs. 841 and 846 (Count I). Defendant Marvin Ralph "Rusty" Hall also appeals from a jury verdict convicting him on one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (Count II). The appellants raise several separate and several identical questions on appeal. In our view, the following issues are determinative of these appeals: (1) whether the trial court erred in denying various motions

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of the appellants by finding that there existed only one, continuing conspiracy, (2) if not, whether there was sufficient evidence presented to connect each appellant to the overall conspiracy, (3) whether there was sufficient evidence presented to sustain a guilty verdict as to appellant Hall on Count II of the indictment, (4) whether the trial court erred in refusing to order separate trials for the appellants, (5) whether comments made by the prosecutor in closing argument amounted to prosecutorial misconduct warranting a new trial for the appellants, (6) whether the trial court erred in the sentencing of appellant Hall (7) whether the trial court erred in sentencing appellants Beasley and Bradley to different terms, and (8) whether the trial court erred in its rulings on the admissibility of certain evidence.

I.

FACTS

Because a detailed review of the facts would be more voluminous than this opinion requires, we will present a summary of the pertinent facts established in the record.

In early 1977, Rodney Bragg, a government witness, met Rusty Hall and Ed Beasley while Bragg was engaged in a private aircraft sales and brokering business. This meeting was connected with Bragg's aircraft business. A second government witness, Doc Clanton, first met Hall and Beasley in the spring of 1977. At the same time, Hall met with Bragg concerning Hall's need for an airplane to haul marijuana from Mexico. Hall subsequently purchased a PBY aircraft (floating boat) for $40,000 from one Al Selcer, for whom Bragg sold airplanes. Because the PBY aircraft was in Costa Rica and the seller was unable to deliver it to Hall in Tulsa, Bragg, who had left the seller's company, Clanton, and another pilot were paid approximately $10,000 by Hall to pick up the aircraft and deliver it to him. Further, Hall paid approximately $12,000 for maintenance work to make the aircraft operational. Upon Hall's direction, Bragg later sold the aircraft and Hall received $100,000 from the sale.

In about June, 1977, Beasley and Bragg met in Tulsa, Oklahoma; Beasley gave Bragg a gift of approximately one pound of marijuana from Mexico and the two discussed the quality of Mexican marijuana. At about this time, Bragg, Clanton and Beasley formed a new airplane sales and brokering business called "Paloma Air Oklahoma, Inc." In about August, 1977, Bragg contacted Beasley about the "probability" of Beasley supplying a pound of cocaine to Bragg for a potential buyer in Tulsa. After Beasley flew to Tulsa from New Mexico, the original prospective buyer decided not to purchase the cocaine; therefore, Bragg telephoned Hall, who came to Tulsa and eventually purchased the pound of cocaine from Beasley for $20,000 in cash.

In about August, 1978, Bragg met with Beasley, Sidney Bradley, and another person in El Paso, Texas to discuss the importation and distribution of marijuana from Mexico. Part of the marijuana that was discussed was eventually to be delivered to Hall. Approximately one month later, Clanton flew Hall, Robert Best, and Bragg to Las Cruces, New Mexico to meet with Beasley about the possible purchase of marijuana. On this trip, Hall also planned to show his aircraft to a prospective buyer in Clovis, New Mexico. After arriving in Las Cruces, Hall, Best, Bragg, Bradley, Beasley, and alleged coconspirator "Hap" Taylor ¹ all went to a storage area adjacent to a residence where they observed approximately forty to sixty pounds of poor quality marijuana. After Best smoked some of the marijuana to "test" it, Hall and Best rejected it and all of the individuals subsequently left the area.

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In October, 1978, Bragg had a discussion with Beasley and Thomas Adams about the possibility of selling some Colombian marijuana in New Mexico and Colorado. Bragg later performed his assigned task of contacting Hall as a possible Colombian marijuana source. Bragg, Beasley, and Adams subsequently flew to Tulsa and met with Hall at his residence where they were "fronted" (advanced without payment) sixty pounds of Colombian marijuana by Hall. Later that evening, Beasley, Adams, Bragg, and Ruth Bragg (Rod Bragg's wife) agreed that the Braggs would transport the marijuana in the trunk of a vehicle to Albuquerque, New Mexico. After this was accomplished, Adams picked up the marijuana in Albuquerque. An agreement had been made between Clanton, Rod Bragg, Beasley, and Adams to invest $10,000 in the Colombian marijuana venture by paying Hall if the others failed to sell the marijuana within one week. On October 30, 1978, Clanton flew to Amarillo, Texas, to pick up $4,000 from Adams as part of the money owed to Hall; Clanton eventually gave the $4,000 to Hall.

On November 17, 1978, after Adams and Beasley failed to sell all of the Colombian marijuana in New Mexico, Clanton flew to Albuquerque to retrieve the unsold portion (twelve to twenty pounds). After Clanton returned it to Tulsa, some of the marijuana was fronted to Scott Dickey by Bragg. In early December, 1978, Taylor telephoned Clanton and identified himself as a friend of Beasley and Bradley. Taylor and Clanton subsequently met and Taylor said that he had a load of marijuana in his pickup truck to deliver in Tulsa, and that Beasley and Bradley were to arrive in Tulsa soon. Clanton then met Beasley and Bradley at Riverside Airport in Tulsa; Beasley told Clanton to contact Hall since the marijuana was for him. Hall told Clanton to have the others meet at his (Hall's) ex-residence and ex-place of business. Hall notified Best of the meeting and, as planned, Beasley, Bradley, Taylor, Clanton, Hall, and Best met at the pre-arranged site.

At the meeting, approximately 600 pounds of marijuana was unloaded from Taylor's pickup truck with each bale (sixty to eighty pounds) marked to indicate its quality. Hall directed the others which bales to load into his car and which bales to load into Best's pickup truck. Hall paid Beasley more than $130,000 for the marijuana from cash that he kept in an ammunition box in the trunk of his car. This box was similar to one later found at Hall's residence.

In late December, 1978, Carl Smith and Bradley flew into Tulsa in Smith's airplane carrying approximately 600 pounds of marijuana. Beasley had earlier told Clanton of the expected arrival of the Smith airplane. Bragg unloaded one bale of the marijuana (which had been fronted to him by Beasley) and left--he later shared the bale with Dickey. The others were worried about unloading the marijuana from Smith's airplane at Riverside Airport; Smith and Bradley, therefore, flew the airplane to a more secluded airport at Sand Springs, Oklahoma. Clanton and Beasley drove a rental car to the new location, and the four loaded approximately 300 pounds of the marijuana into the rental car. Smith and Bradley then flew to Muskogee, Oklahoma, to deliver the remaining marijuana to another individual. Beasley and Clanton drove the rental car to Hall's ex-business where they met Hall and Best. Hall directed the others to load his car with a certain amount of marijuana and to load the rest into Best's car. Hall paid Beasley approximately $60,000 in cash for the marijuana, again from the ammunition box in the trunk of his car.

In early January, 1979, Clanton met with Beasley and Smith in Socorro, New Mexico; they showed Clanton several bales of marijuana which were kept behind a travel trailer belonging to Smith. After Beasley and Smith requested him to do so, Clanton flew three bales back to Tulsa; one bale was for Bragg and two bales for a cousin of Bradley's in Muskogee. On or about January 15, 1979, a meeting called by Bradley was held between him, Clanton, and Bragg at a motel in Tulsa. At the meeting, Bragg

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paid Bradley for the marijuana he had received from Beasley and Smith.

Clanton was aware that Hall was interested in obtaining another cocaine source. Therefore, in February, 1979, Clanton telephoned Hall to solicit his...