U.S. v. Hall

• Decision Date: 23 January 2007
• Docket Number: No. 05-1205.,No. 05-1251.,05-1205.,05-1251.
• Citation: 473 F.3d 1295
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Zebedee HALL, also known as "Zee," also known as "Zeke," Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

473 F.3d 1295

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Zebedee HALL, also known as "Zee," also known as "Zeke," Defendant-Appellant/Cross-Appellee.

No. 05-1205.

No. 05-1251.

United States Court of Appeals, Tenth Circuit.

January 23, 2007.

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Submitted on the briefs:^* Zebedee Hall, pro se.

Stephen M. Wheeler, Wheeler Law Offices, PC, Evergreen, CO, for Appellant/Cross-Appellee.

William J. Leone, United States Attorney, Kathleen M. Tafoya, Assistant United States Attorney, and James C. Murphy, Assistant United States Attorney, Office of the United States Attorney for the District of Colorado, Denver, CO, for Appellee/Cross-Appellant.

Before TACHA, Chief Circuit Judge, BARRETT, and O'BRIEN, Circuit Judges.

TACHA, Chief Circuit Judge.

Following a jury trial, Defendant-Appellant Zebedee Hall was found guilty of one count of conspiracy to distribute fifty or more grams of crack-cocaine and aiding and abetting the same, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846, and 18 U.S.C. § 2, and one count of possession and distribution of fifty or more grams of crack-cocaine and aiding and abetting the same, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2. The District Court sentenced him to 151 months' imprisonment. Mr. Hall now appeals his convictions and sentence on a variety of grounds, and the Government cross-appeals Mr. Hall's sentence. We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM in part, REVERSE in part, and REMAND for resentencing.

I. BACKGROUND

In September 2000, after receiving a tip about a large scale crack-cocaine operation headed by Willie Small, the FBI Metro Gang Task Force ("Task Force") began an investigation. The Task Force worked with an informant who made multiple controlled purchases of crack-cocaine from Mr. Small and his associates while wearing a wire. It also used visual surveillance, video cameras, pen registers, and trap-and-trace devices to investigate Mr. Small's organization. The task force then filed an exhaustive 100-page summary of the investigation in federal district court seeking authorization to place a wiretap on Mr. Small's cellular and home phones. The court granted the authorization. The wiretaps were used to collect additional information about the operation over the course of several months.

On June 7, 2001, the FBI simultaneously executed numerous search and arrest warrants against suspected members of the drug conspiracy. Mr. Hall was one of the twenty-seven defendants ultimately charged in a seventy-seven count second superceding indictment that was centered around the large crack-cocaine distribution conspiracy headed by Mr. Small. Eighteen defendants pleaded guilty to various charges, and Mr. Hall and six others were tried together in a jury trial that lasted from September 22, 2003, to November 13, 2003. The Government summarized its theory of the conspiracy as follows:

The conspiratorial organization followed a pattern typically referred to as a "hub and spokes" conspiracy. Willie Small was at the center of the conspiracy whose objective was to distribute crack cocaine for money. Willie Small had set up an enterprise dedicated to giving convicted felons an opportunity to get back into the business of crack distribution upon their release from prison. Small would "front", or give on consignment without payment of money, crack cocaine to various convicted felons as they were re-entering society. Once they had sold that original amount of crack cocaine and re-paid the original purchase price, they could receive more crack cocaine, again on consignment, and re-sell that to make another profit. Eventually, it was the goal of the conspiracy that the re-developed distributor would become profitable enough to pay for crack cocaine in advance in ever-enlarging amounts, thus enabling Small to begin the process again with another newly released felon. The conspiracy depended upon the distributor felons being at different stages in the process of re-establishing their illegal businesses in order to provide funds to be able to "stake" a new member to crack cocaine in the beginning. One of the major reasons for making up his organization of convicted felons was Small's comfort level in dealing with people he felt relatively certain would not inform to police, even if caught with controlled substances. This structure gave a measure of comfort to all the members of the conspiracy, also.

The jury found Mr. Hall and his co-defendants guilty of various drug offenses. This court upheld the convictions and sentences of Mr. Hall's co-defendants in United States v. Small, 423 F.3d 1164 (10th Cir.2005). We now consider Mr. Hall's appeal.

II. DISCUSSION

A. Pretrial Motions

1. Motion to suppress wiretap evidence.

Prior to trial, Mr. Hall and his co-defendants moved to suppress the Government's wiretap evidence, arguing that inaccurate and misleading statements in the application and supporting testimony tainted the findings of the judge who approved the wiretap. Indeed, a defendant may challenge a facially sufficient affidavit on the ground that the police included deliberate or reckless falsehoods that were material to the district court's finding that the wiretaps were necessary. Small, 423 F.3d at 1172 (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). The District Court held a five-day hearing to determine the propriety of suppressing the wiretap evidence. Based on the testimony and evidence presented, the District Court denied the defendants' motion, concluding that the allegedly false statements were either not inaccurate or were not made intentionally or with reckless disregard for the truth. The court also concluded that the statements were not material to the issuing court's finding of necessity.

Mr. Hall raises challenges identical to those raised by his co-defendants in Small. We concluded that the District Court did not err in denying the motion to suppress. See Small, 423 F.3d at 1172-78. Mr. Hall concedes that this ruling controls his case. Accordingly, we need not repeat that analysis here.¹

2. Motion to sever Mr. Hall's trial from that of his co-defendants.

Mr. Hall moved to sever his trial from that of his co-defendants, arguing that a joint trial would be prejudicial because he would suffer from the spillover effect of evidence against his co-defendants, see Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (noting that prejudice may arise where evidence of a co-defendant's wrongdoing erroneously leads a jury to conclude that the defendant is guilty), and in order to allow him to present exculpatory testimony that he could not present in a joint trial. With respect to the latter contention, Mr. Hall provided an affidavit from Mr. Small, one of his co-defendants, indicating that he would be willing to testify to Mr. Hall's innocence if they were tried separately. After a hearing, the District Court denied the motion. Mr. Hall argues that this decision was error. Mr. Hall no longer argues that he was prejudiced by any spillover evidence entered against his co-defendants. Rather, on appeal, he argues only that the District Court's refusal to sever his trial prevented him from presenting exculpatory testimony from Mr. Small—specifically, that Mr. Small never sold drugs to Mr. Hall.

Multiple defendants may be tried jointly "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R.Crim.P. 8(b). Joint trials of defendants who are indicted together are preferred because "[t]hey promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro, 506 U.S. at 537, 113 S.Ct. 933 (internal quotation marks omitted). If joinder "appears to prejudice a defendant[,] [however,] . . . the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R.Crim.P. 14(a) (emphasis added). We review the district court's denial of a motion to sever for an abuse of discretion. United States v. Apperson, 441 F.3d 1162, 1190 (10th Cir.2006). "[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933. "Inasmuch as severance is a matter of discretion and not of right, the defendant must bear a heavy burden of showing real prejudice to his case." United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.1984)

In McConnell, this Court laid out seven factors relevant to evaluating Mr. Hall's claim that the District Court's failure to sever his trial prevented him from presenting exculpatory evidence from Mr. Small:

1) the likelihood that the co-defendant would in fact testify at the movant's severed trial and waive his Fifth Amendment privilege; 2) the significance of the testimony in relation to the defendant's theory of defense; 3) the exculpatory nature and effect of such testimony; 4) the likelihood that the co-defendant's testimony would be impeached; 5) the extent of prejudice caused by the absence of the testimony; 6) the effect of a severance on judicial administration and economy; 7) the timeliness of the motion.

Id. at 1445; see also United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996). The District Court considered these factors and found Mr. Hall's timely motion "completely without merit." The court assumed that it was likely that Mr. Small would waive his Fifth Amendment privilege and testify and that the nature of the testimony would be exculpatory. H...