U.S. v. Harrell

• Decision Date: 30 July 1984
• Docket Number: No. 82-3057,82-3057
• Citation: 737 F.2d 971
• Parties: 16 Fed. R. Evid. Serv. 141 UNITED STATES of America, Plaintiff-Appellee, v. Wilson Tony HARRELL, James Hawkins, Anthony Scire, Karl Heinz Harig, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 971

737 F.2d 971

16 Fed. R. Evid. Serv. 141

UNITED STATES of America, Plaintiff-Appellee, v. Wilson Tony HARRELL, James Hawkins, Anthony Scire, Karl

Heinz Harig, Defendants-Appellants.

No. 82-3057.

United States Court of Appeals, Eleventh Circuit.

July 30, 1984.

John P. Gaudiosi, Pompano Beach, Fla., for Anthony Scire.

Robert Stuart Willis, Jacksonville, Fla., for Harrell.

Mark P. Bryan, Federal Public Defender, Tampa, Fla., for Hawkins.

Kerry H. Brown, Tampa, Fla., for Harig.

Lee William Atkinson, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before FAY, VANCE and HATCHETT, Circuit Judges.

VANCE, Circuit Judge:

For the second time in just over a year, we review convictions involving the Tampa chapter of the Outlaws Motorcycle Club. ¹ Three of the four appellants in this case--James Hawkins, Wilson Tony Harrell, and Karl Heinz Harig--were color-wearing members of the chapter. Harrell (a/k/a "Roadblock" or "R.B.") was the chapter's apparent chief, while Hawkins ("Hawk") served as one of his top lieutenants and Harig ("Slow Karl") was a member of the rank-and-file. Tony Scire, who lived in Hialeah, Florida, allegedly supplied the chapter with cocaine for redistribution.

The prosecutions stem from a far-flung Outlaws drug distribution ring operated out of Tampa and Harrell's nearby lakehouse. All four appellants were convicted on Count One, conspiracy to possess with intent to distribute cocaine, methaqualone, and/or amphetamine and methamphetamine. Harrell and Hawkins were also found guilty on Counts Two (possession with intent to distribute cocaine) and Three (a Travel Act violation); Hawkins and Scire were found guilty on Count Six (possession with intent to distribute cocaine). Harig was acquitted on the latter count. We reverse Hawkins' conviction on Count Three. Finding no merit in the remaining contentions, we otherwise affirm. ²

I. SUFFICIENCY OF THE INDICTMENT

The opening round of this appeal commences with a sixth amendment challenge to the indictment on grounds of vagueness, pressed by Harrell and Harig. Their fire is trained mainly on Count One, the conspiracy charge. ³ We begin by observing that an indictment will pass constitutional muster:

if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.

Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240 (1962). An indictment that tracks the wording of the statute under which an offense is charged will meet these constitutional requirements if the language sets forth the essential elements of the crime, Hamling, 418 U.S. at 117, 94 S.Ct. at 2904, and adequately specifies the time, place and participants involved, United States v. Ramos, 666 F.2d 469, 474 (11th Cir.1982). Furthermore, an indictment for conspiracy need not be as specific as an indictment for a substantive count. United States v. Yonn, 702 F.2d 1341, 1348 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 283, 78 L.Ed.2d 261 (1983).

In Yonn, an indictment of virtually identical specificity survived a motion to dismiss. See 702 F.2d at 1348; see also Ramos, 666 F.2d at 474-75. Because we are unable to make a principled distinction between this case and Yonn, we conclude that appellants' salvo misses its mark. ⁴

The next volley, a set of related discovery objections, merits only brief mention. Appellants complain that they did not receive a bill of particulars until seven working days before trial. Given the trial court's substantial discretion to deny a bill of particulars altogether, we discern no reason for complaint on appellants' part. This is especially true since the trial court's broad discretion is reversible only for actual surprise, United States v. Hawkins, 661

                F.2d 436, 451-52 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982);  United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979), which appellants do not allege.  Likewise, appellants were not entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to a list of government witnesses or a list of statements attributed either to the defendants or to other co-conspirators in the absence of a claim that such information was exculpatory.   United States v. Davis, 487 F.2d 112, 122 (5th Cir.1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974)
                

II. SEVERANCE

Harig urges that the trial court erred in refusing his motion for severance under Fed.R.Crim.P. 14. His burden on review is a heavy one. Denial of severance under Rule 14 is within the broad discretion of the trial court and is reversible only for abuse of that discretion. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). Because any joinder works a certain degree of inherent prejudice, denial of severance is subject to reversal only if the defendant musters proof that compelling prejudice flowed from the joinder. United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980).

Harig downplays his role in the unfolding conspiracy, describing himself as a "bit player". As a first ground for severance, he argues that he suffered compelling prejudice from the spillover effect of the far greater proof introduced against his co-defendants. A disparity in the quantum of proof, however, justifies severance only in the most extreme cases, as when a cautionary instruction could not furnish a cure. United States v. Johnson, 713 F.2d 633, 640 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). This is not such a case. The verdict, which acquitted Harig of Count Six, firmly demonstrated the jury's ability to sift through the evidence and render the individualized determination of Harig's guilt that obviated severance. See 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).

Nor did co-defendant Hawkins' offer to testify for Harig at a separate trial require a different outcome. The defendant who asserts a need for a co-defendant's testimony must establish the following predicate to demonstrate compelling prejudice requiring severance:

(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed.

United States v. Duzac, 622 F.2d 911, 912 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). In support of his motion for severance, Harig submitted an affidavit signed by Hawkins that stated:

The affiant has agreed and will be available to testify as a witness on behalf of Karl Heinz Harig as long as my constitutional rights are not jeopardized. I would be available in a separate trial and willing to testify as long as I am not on trial at the same time. If called during a joint trial, I will invoke my Fifth Amendment right to remain silent but in a separate trial would most likely testify. My testimony would be exculpatory in nature and would be relevant to the issue of innocence of KARL HEINZ HARIG. I will testify that KARL HEINZ HARIG has had no involvement with any controlled substance transactions.

These wisps of allegations are no less bare or conclusory than those that failed in DeSimone, 660 F.2d at 539-40. We therefore hold that the trial court was well within its sound discretion to deny Harig's motion for severance. ⁵

III. EVIDENTIARY RULINGS

Harrell and Harig freely admit that they were full-fledged members of the Tampa Outlaws Motorcycle Club, an organization that Harrell confesses is "virtually synonymous with criminal misconduct." On appeal, they level the lance of their allegiance at the government, charging that its introduction of vivid testimony portraying the often bizarre existence of the Outlaws was an unlawful attempt to prove their guilt by association. Appellants alternatively challenge the testimony as evidence of specific acts that was probative only of their propensity to commit crime, in violation of Fed.R.Evid. 404(b). ⁶

At trial the government read the jury Count One of the indictment, which detailed allegations concerning the manner and means of the conspiracy charged. Testimony elicited at trial supported these allegations. Onetime Outlaw Jerry Luke Owens, when asked how he supported himself during his membership in the club, replied, "Same as anybody else, drugs and women." He admitted that no man in the Outlaw fraternity held a legitimate job and that the members instead lived off the profits of drug sales and the income their girlfriends and wives, better known as "old ladies", earned from forced prostitution.

Several former Outlaws who turned government witness testified to the violence and threats of force that were used to assure their silence. Paul Clendening, for one, decided to break off from the club a week after he was forced to move into the Outlaws' clubhouse because he "got tired of getting beat up on and pushed around and all kind of stuff like that." When asked to identify the initials "G.F.O.D.", Clendening, echoed by witness William Barnes, replied: "God forgives; Outlaws don't." According to Clendening, the slogan referred to the Outlaws' Hammurabian code of an eye for an eye and a tooth for a tooth. As a consequence, both Clendening and Barnes joined the federal witness relocation program in fear for their lives. On the stand, Barnes openly admitted that he had donned a false beard and dark glasses for his appearance at...