U.S. v. Dorsey, 86-8337

• Decision Date: 22 June 1987
• Docket Number: No. 86-8337,86-8337
• Citation: 819 F.2d 1055
• Parties: 23 Fed. R. Evid. Serv. 333 UNITED STATES of America, Plaintiff-Appellee, v. Thomas DORSEY and Ronald Franklin Barr, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1055

819 F.2d 1055

23 Fed. R. Evid. Serv. 333

UNITED STATES of America, Plaintiff-Appellee, v. Thomas DORSEY and Ronald Franklin Barr, Defendants-Appellants.

No. 86-8337.

United States Court of Appeals, Eleventh Circuit.

June 22, 1987.

Robert E. Falligant, Jr., Savannah, Ga., for Dorsey.

C. Fred Partin, Louisville, Ky., for Barr.

Bobby Lee Cook, Summerville, Ga., William T. Moore, Jr., Savannah, Ga., for Shewmaker.

Hinton R. Pierce, U.S. Atty., W. Leon Barfield, Asst. U.S. Atty., Savannah, Ga., for U.S.

Appeals from the United States District Court for the Southern District of Georgia.

Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

In this appeal, Thomas Dorsey and Ronald F. Barr challenge their drug related convictions in the United States District Court for the Southern District of Georgia. After a review of the record and the applicable law, we affirm.

The appellants were among twelve individuals named in an indictment handed down on December 9, 1985 alleging four counts arising from an illegal drug importation scheme. Count One alleged a conspiracy to import marijuana in violation of 21 U.S.C. Section 963. Count Two charged a conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Section 846. Counts Three and Four alleged the substantive offenses of importation and possession with intent to distribute marijuana in violation of 21 U.S.C. Sections 952(a), 960 and 841(a)(1), respectively, as well as aiding and abetting in violation of 18 U.S.C. Section 2. Three of the twelve named individuals, Dorsey, Barr and Robert Joseph Shewmaker, ¹ pled not guilty to the charges and were tried jointly in the district court.

During the trial, the government introduced evidence, through the testimony of co-conspirators, of the defendants' participation in an enterprise, organized by James Reed, to import a boatload of marijuana from Colombia, South America for distribution in the United States. The testimony indicated that Reed began planning the venture in 1980, contacting numerous friends and former drug associates to acquire the necessary marine transportation, Colombian connections, off-load site, and land transportation for the contraband. Reed's plot materialized in November of 1980 when several of the conspirators sailed a shrimp boat, the "RAM," from Key West, Florida to Colombia and returned with a 20,000-pound cargo of marijuana. The RAM was off-loaded onto another vessel, the "Sally Ruth," sixty to seventy miles off the coast of Florida. The Sally Ruth then sailed to a designated site in St. Augustine, Florida where other members of the conspiracy transported the contraband to a "stash site" for eventual distribution.

The jury convicted Dorsey on both conspiracies charged in Counts One and Two but acquitted him of the substantive offenses alleged in Counts Three and Four. Barr was convicted on Count Four of aiding and abetting and possession with intent to distribute marijuana but acquitted on the other three counts.

I. Barr.

Barr raises as his sole issue the denial of his pretrial motion for severance filed pursuant to Fed.R.Crim.P. 14. ² He asserts that the evidentiary spillover from the great flood of incriminating testimony against his co-defendants prejudiced his right to a fair trial. Moreover, he claims that the evidence admitted under Fed.R.Evid. 404(b) of extrinsic acts committed by Dorsey and Shewmaker denied him the rights secured by the Confrontation Clause in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

As a general proposition, the law favors joint trials of defendants charged with a common conspiracy since the nature and scope of the confederation is often prohibitively large and the evidence against the individual defendants cumulative. United States v. Astling, 733 F.2d 1446, 1454 (11th Cir.1984). Rule 14 requires that the district court balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the public's interest in efficient and economic administration of justice. United States v. Hewes, 729 F.2d 1302, 1318 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). We review a trial court's denial of severance only for abuse of discretion. United States v. Watkins, 811 F.2d 1408, 1410 (11th Cir.1987).

To demonstrate an abuse of discretion, the defendant must establish that the joint trial subjected him not just to some prejudice, but to compelling prejudice against which the district court could not afford protection. United States v. Harper, 680 F.2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In measuring the prejudice suffered by a defendant as the result of a joint trial, the primary inquiry is whether, as a practical matter, the jury could "follow the admonitory instructions and accordingly collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements, and conduct." United States v. Kabbaby, 672 F.2d 857, 861 (11th Cir.1982), quoting, United States v. Zicree, 605 F.2d 1381, 1389 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

Barr maintains that his conviction is proof that he suffered compelling prejudice from the weight of the incriminating testimony against his co-defendants. He says that the sparsity of the government's evidence against him would have resulted in his full acquittal in a separate trial. The mere fact, however, that the defendant would have had a better chance of a favorable verdict if tried individually is not compelling prejudice. Kabbaby, 672 F.2d at 861. The government presented evidence sufficient to support Barr's conviction for possession with intent to distribute marijuana. The trial judge took every precaution to ensure Barr a fair trial and the jury demonstrated its ability to separate and review the independent evidence against Barr by convicting him on one count and acquitting him on three others. United States v. Russo, 796 F.2d 1443, 1450 (11th Cir.1986).

Compelling prejudice also resulted, according to Barr, from the admission of extrinsic act evidence against his co-defendants in violation of his constitutional right of confrontation. This contention is similarly without merit. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the admission of a non-testifying co-defendant's confession implicating another co-defendant violated the latter's right of cross-examination secured by the Confrontation Clause. Following Bruton, our precedent has explicitly acknowledged that compelling prejudice requiring severance may result from the admission of an out-of-court statement admissible only against one non-testifying co-defendant that implicates another co-defendant. United States v. Astling, 733 F.2d 1446, 1454 (11th Cir.1984); United States v. Avery, 760 F.2d 1219 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986) (severance required where co-defendant's grand jury testimony admitted for purposes of perjury charge implicated another co-defendant).

In Barr's case, however, the extrinsic evidence admitted against his co-defendants did not implicate him in any way. The trial judge's limiting instructions as well as the cross-examination of the witnesses concerning Barr's lack of involvement in his co-defendants' past misadventures avoided any possibility of incrimination or jury confusion. Barr has alleged no Bruton violation and demonstrated no compelling prejudice resulting from the admission of the extrinsic act evidence against his co-defendants.

II. Dorsey.

A. Sufficiency of Evidence.

Dorsey first argues that there was insufficient evidence to support his conspiracy convictions. We review challenges to the sufficiency of the evidence under precepts set forth in United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983):

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

In making this determination, we view the evidence in the light most favorable to the government and accept all reasonable inferences and credibility choices by the factfinder. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984).

Dorsey was convicted of conspiracy to import marijuana and conspiracy to possess with intent to distribute marijuana. In order to sustain these convictions, a reasonable jury must be able to find that the government proved beyond a reasonable doubt that Dorsey had "deliberate, knowing, specific intent to join the conspiracy." United States v. Cole, 755 F.2d 748, 755 (11th Cir.1985). While each defendant must have joined the conspiracy intentionally, each need not be privy to all the details of the conspiracy or be aware of all the other conspirators. Id. Dorsey claims that the testimony at trial of his participation in the conspiracy was so inadequate and inconsistent that any rational juror must have entertained a reasonable doubt as to his intent to join the confederation of drug smugglers.

We disagree. Two co-conspirators confirmed Dorsey's participation in the planning stages of the conspiracies. Government witness Randolph Milligan described the early phase of the plan when Jerry Reed, ringleader of the conspiracy, contacted him seeking an off-load site and land transportation for a boatload of marijuana. Reed indicated to Milligan that a...