U.S. v. Erwin
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-1024,85-1024 |
| Citation | 793 F.2d 656 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bonnie Burnette ERWIN, Maranetta Martin Smith, Tarenthia Esmarelda Erwin, Joe Neal, Jr., Glenda Rochelle Lawton, Robyn Anderson Norman, Jo Carol Erwin, Grace Helen Davis, Diana Carroll Berry, Tyrell Defaris Erwin, and Don Wayne Erwin, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Nicholas W. Wright, Dallas, Tex., for BB Erwin.
Mark S. Werbner, Dallas, Tex., for Smith.
Kenneth S. Harter, Santa Barbara, Cal., for T.E. Erwin.
Tarenthia Esdmarelda Erwin, pro se.
T. Alan Owen, David A. Witts, Dallas, Tex., for Neal.
James H. Wallenstein, Dallas, Tex., for Lawton.
Robert T. Walls, Jr., Dallas, Tex., for Norman.
Anderson Wallace, Jr., Dallas, Tex., for T.C. Erwin.
Keith Marks, Irving, Tex., (Court-appointed), for Grace Davis & Tyrell Erwin.
R. Keith Walker, James E. Murphy, Dallas, Tex., (Court Appointed), for Diana Carroll Berry.
J. Glenn Turner, Jr., Dallas, Tex., Robin Norman, Gatesville, Tex., (Court Appointed), for D.W. Erwin.
James T. Jacks, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.
Appeals from the United States District Court for the Northern District of Texas.
Before WISDOM, REAVLEY and JOHNSON, Circuit Judges.
Bonnie Erwin, Don Erwin, Jo Carol Erwin, Tyrell Erwin, Tarenthia Erwin, 1 Diana Berry, Joe Neal, Jr., Glenda Lawton, Maranetta Smith, Grace Davis and Robyn Norman appeal their convictions and/or sentences for various offenses relating to a drug conspiracy centered in South Dallas, Texas. We reverse all of the conspiracy convictions under Count 1, Don Erwin's racketeering conviction under Count 3, Jo Erwin's tax evasion convictions under Counts 26 through 29, and Grace Davis' perjury convictions under Counts 31 and 33. Otherwise, we affirm.
The indictment focuses mainly on the alleged activities and members of the "Erwin Organization," a multi-faceted criminal enterprise headed by Bonnie Erwin. Bonnie evidently entered the narcotics business sometime in the 1970's and expanded these activities in the early 1980's. Doubling as a legitimate watermelon farmer, he provided the brains, muscle and contacts for the Erwin Organization. Gradually, the Organization diversified, and encompassed the sale of cocaine to private customers and the passing of counterfeit fifty and hundred dollar bills.
The Organization operated as a loose family unit, with members adopting one another's names (or other aliases) for expediency or fellowship. Members included Bonnie's "family" (Robyn Norman and Tyrell, Tarenthia and Jo Erwin) and various young people from Tyler and Dallas, whom Bonnie promised to "take care of." Discipline was maintained within the ranks by occasional beatings, kidnappings, rumored solicitations of murder and one killing. 2
Bonnie lived with Robyn Norman at a series of residences in Dallas and with Jo Erwin at a house on 29th Street in Tyler. Glenda Lawton followed Bonnie; most of the other members lived in fluid groups of three or four, selling pills out of a chain of To shelter his profits from the Internal Revenue Service (IRS), Bonnie began placing newly-purchased vehicles and other property in the names of "Erwin Produce," Organization members, neighbors and relatives, allegedly including Grace Davis, Bonnie's former sister-in-law. He also ran the Catfish Oasis, a fast-food restaurant in Tyler; drug money was purportedly laundered through that business and its video games.
"fortified" 3 apartments in South Dallas (often rented under assumed names), watching for police, storing and dispensing drugs from Bonnie's several homesteads or storage lockers, collecting profits, maintaining sales records, and traveling to California or Chicago for supplies.
Bonnie's younger brother, Don, operated another, separate South Dallas drug business. Patterned after Bonnie's, Don's group also lived in fortified apartments from which pills were sold. Don recruited his own personnel although a few of Don's workers moved over to Bonnie's larger, more profitable organization. Bonnie acted as Don's principal drug supplier; Don also bought elsewhere.
Beginning in mid-1981, police periodically raided the brothers' fortified apartments. Some raids were preceded by "buys." Don and two workers were caught in one raid; Bonnie's daughter, Tarenthia, in another; Bonnie's son, Tyrell, in three--once with his wife, Diana Berry, and twice with other co-workers; Glenda Lawton in one and Joe Neal in one. All except Neal received light sentences in state court; Neal served some time in state prison. Bonnie himself was picked up once, but released for lack of evidence. In 1983, both Tyrell and Tarenthia were also indicted for passing counterfeit money; Tyrell was convicted whereas Tarenthia was tentatively placed in a pre-trial diversion program.
Coupled with the acts of violence, the raids apparently had a demoralizing effect on the two groups. In early 1983, two of Bonnie's trusted workers agreed to talk to law enforcement officers. Thereafter, local police, the Drug Enforcement Agency and, ultimately, the IRS began investigating the operations intensely.
The first indictment came down in June 1984; four months later, a superseding indictment charged twenty-four people, including the appellants here, with counts ranging from racketeering to perjury. Bonnie was indicted for conspiracy, racketeering (RICO), continuing criminal enterprise (CCE), possession and distribution of drugs, counterfeiting, Travel Act and firearm violations, and income tax evasion. Don and Tyrell were charged with conspiracy, RICO, and possession with intent to distribute--Don was also charged with distribution; Tyrell, with a firearms violation. Maranetta Smith, the west coast supplier, was indicted for conspiracy and a Travel Act violation; Tarenthia, with conspiracy, possession with intent and counterfeiting; Jo, with conspiracy, possession with intent and income tax evasion. Neal and Berry were charged with conspiracy, as well as possession with intent; Lawton and Norman, with conspiracy and distribution. Davis was indicted for perjury before the grand jury investigating Bonnie's income tax liability. Most of the remaining indictees 4 pleaded guilty, many in exchange for testimony at the trial.
Following two postponements, the trial was set for early December 1984. All pretrial motions were denied.
One week before trial, the jury was selected. One black venireman became an alternate; the actual panel was all white.
All of the appellants are black. Just before the empanelling of the jury on the first day of trial, appellants moved to strike the jury on the ground that the prosecutor had used his peremptory challenges to remove all blacks. The motion was denied as untimely. Appellants then moved for a hearing or for the inclusion in the record of the race of the unselected jurors. The court took this motion under advisement; no ruling was ever explicitly made, and the motion was not reurged.
The trial lasted throughout December. The government presented numerous witnesses and documents. A large part of the evidence related either to Bonnie's tax evasion schemes or to the killing of Patrick Brooks and kidnapping of Leonard Johnson. Appellants Norman and Neal then testified in their own defense while other appellants submitted documentary evidence.
The jury voted to convict all the appellants, although Davis was acquitted on two counts. Appellants received sentences ranging from five years to 120 years and life without parole, plus substantial fines and forfeiture of property.
Appellants raise a number of issues. Four apply to virtually every appellant; the remainder relate specifically to the individual appellants raising them.
All of the appellants except Davis were indicted in Count 1 for participating in a single conspiracy to acquire, possess and distribute narcotics: preludin, pyribenzamine, pentazocine and cocaine. They now challenge their Count 1 convictions on various grounds.
During the jury instruction conference, Don Erwin contended that, while Count 1 of the indictment charged only a single overarching conspiracy, 5 the evidence, instead, established two or more smaller ones. According to his theory of defense, Don was entitled to an acquittal if the jury found that he belonged to a conspiracy other than the one charged in the indictment. Thus, he requested that the court instruct the jury to acquit him if it concluded that he was not a member of the charged conspiracy--even if it found him a member of a different conspiracy. 6 The other appellants joined in Don's request. The court, however, disagreed with their assessment of the evidence and, over objection refused to give Don's proposed instruction. 7 Appellants now contend that the court's refusal to instruct on their theory of defense constitutes reversible error. We agree.
It is well settled that whether the evidence shows one or multiple conspiracies is a factual question for the jury to decide. See, e.g., United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982); United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Becker, 569 F.2d 951, 961 (5th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). It is equally well established that a defendant is entitled to a separate instruction charging the jury on his theory of defense where he specifically and timely requests such an instruction and his theory has a "legal and evidentiary foundation." United States v. Washington, 688 F.2d 953, 958 (5th Cir.1982); see also United States v. Fowler, 735 F.2d 823, 828 (5th Cir.1984); United States v. Curry, 681 F.2d 406, 413 (5th Cir.1982). Thus, where the evidence...
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