U.S. v. Jackson

• Decision Date: 08 February 1977
• Docket Number: Nos. 76-1093,s. 76-1093
• Citation: 40 A.L.R.Fed. 907,549 F.2d 517
• Parties: , 1 Fed. R. Evid. Serv. 633 UNITED STATES of America, Appellee, v. James JACKSON, Appellant. UNITED STATES of America, Appellee, v. Harold HUDSON, Appellant. UNITED STATES of America, Appellee, v. Lushrie JARDAN, Appellant. UNITED STATES of America, Appellee, v. Spencer MIMS, Appellant. UNITED STATES of America, Appellee, v. Nathaniel MUHAMMAD, Appellant. to 76-1095, 76-1105 and 76-1112.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 517

549 F.2d 517

40 A.L.R.Fed. 907, 1 Fed. R. Evid. Serv. 633

UNITED STATES of America, Appellee, v. James JACKSON, Appellant.

UNITED STATES of America, Appellee, v. Harold HUDSON, Appellant.

UNITED STATES of America, Appellee, v. Lushrie JARDAN, Appellant.

UNITED STATES of America, Appellee, v. Spencer MIMS, Appellant.

UNITED STATES of America, Appellee, v. Nathaniel MUHAMMAD, Appellant.

Nos. 76-1093 to 76-1095, 76-1105 and 76-1112.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1976.

Decided Feb. 8, 1977.

Rehearing Denied in Nos. 76-1094-95 March 9, 1977.

Rehearing and Rehearing En Banc Denied in No. 76-1112 March

2, 1977 and in No. 76-1105 March 10, 1977.

Certiorari Denied April 25, 1977.

See 97 S.Ct. 1682.

Charles A. Gallipeau, Kansas City, Mo., for Jackson.

Mark W. Slatkin, Kansas City, Mo., for Hudson.

David F. Williams, Kansas City, Mo., for Jardan.

Lewis E. Pierce, Kansas City, Mo., for Mims.

David W. Russell, Kansas City, Mo., for Muhammad.

Bert C. Hurn, U. S. Atty., Michael De Feo (argued), and William M. Tetrick, Jr., Sp. Attys., U. S. Dept. of Justice, Kansas City, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, and HEANEY and WEBSTER, Circuit Judges.

GIBSON, Chief Judge.

This case involves a major drug distribution scheme centered in Kansas City, Missouri. In September, 1975, a fifteen count indictment was returned against James Jackson, Nathaniel Muhammad, Lushrie Jardan, Harold Hudson, Spencer Mims and Juan Pablo Garcia, ¹ charging a conspiracy to distribute heroin and cocaine and to possess heroin and cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition to the single count of conspiracy, Jackson was also charged with ten substantive counts alleging distribution of heroin or cocaine in violation of 21 U.S.C. § 841(a)(1) and with three counts alleging distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. ² Muhammad and Mims were each charged with two substantive counts of unlawful distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Hudson was charged only with conspiracy, as was Juan Pablo Garcia, who pled guilty prior to trial. The remaining five defendants, appellants here, were tried jointly and convicted as charged after an extensive jury trial.

The evidence portrays a well organized illegal conspiracy for the sale and distribution of controlled substances extending at least from early January, 1975 until July 23, 1975. Probative evidence of at least 61 overt acts, thirteen of which constituted substantive violations of federal narcotics law, was presented to the jury. Starting on March 7, 1975, Jackson made a series of seventeen sales of heroin or cocaine to federal agents or informants. Fifteen of these sales were made to Harold T. Vaughan, a special agent for the Drug Enforcement Administration (DEA). Jackson was the sole conspirator present at these illegal sales. His conduct during the course of the conspiracy, however, established a salient pattern of frequent contacts with Muhammad, particularly during negotiations for sales of narcotics and before and after these sales. On May 9, 1975, for example, Jackson visited Muhammad's residence both before and immediately after a sale of three ounces of heroin to Agent Vaughan. On both May 13 and May 31, Jackson went directly to Muhammad's residence following two sales of $1,800 worth of heroin each. On June 5, 1975, Jackson bifurcated a sale of seven ounces of heroin by first delivering five ounces to Agent Vaughan, then meeting with Muhammad and Mims, and finally returning to Vaughan with the remaining two ounces. Jackson visited Muhammad's residence immediately after completing the second part of the sale. On June 13, Jackson proceeded from a sale of twelve grams of cocaine directly to Muhammad's residence. On June 30, after Jackson sold 50 grams of heroin to Vaughan for $3,000 and boasted of "his man's" ability to bring a large quantity of 80% pure heroin to Kansas City, he immediately drove to Muhammad's residence. On July 9, Jackson went directly from Muhammad's residence to Vaughan's apartment, where a sale of 26 grams of heroin was made, and then returned to Muhammad's residence by a circuitous route. When, on July 11, Vaughan paid Jackson the balance of $1,300 due on the July 9 purchase, Jackson proceeded straight to Muhammad's residence. Finally, on July 23, Muhammad met with Jackson at Jackson's residence prior to Jackson's sale of thirteen grams of heroin to Vaughan for $1,600. Following this sale, Jackson drove to Muhammad's residence. When Muhammad was arrested on July 23, agents discovered on his person $1,000 in bills with pre-recorded serial numbers which had been given by Vaughan to Jackson for the thirteen grams of heroin. When Jackson was arrested on that same day, the remaining $600 in bills with pre-recorded serial numbers was recovered from him.

Court-approved wiretaps of the telephones of Jackson, Mims and Jardan produced evidence of various conversations between Jackson and Mims and between Mims and Jardan which were interpreted by federal agents to relate to sales of narcotics. Mims, Jardan and Hudson were participants in an arrangement with Garcia which involved the purchase of a large amount of heroin. Mims and Jardan traveled to El Paso, Texas, on June 14, 1975, where they obtained approximately one kilogram of brown heroin from Garcia, a citizen of Mexico. Although they paid Garcia only $7,000 of the $40,000 purchase price, he allowed them to take the heroin back to Kansas City, on the understanding that Jardan would quickly acquire the additional money, return to El Paso and pay Garcia in full. After a fruitless three day wait in El Paso, Garcia telephoned Jardan, who quibbled over the quality of the heroin and sought to obtain a lower price. It was agreed that the heroin would be returned to Garcia by a man with a missing finger, defendant Hudson. On June 17, Hudson delivered a package to Garcia in El Paso, which was short approximately one-quarter kilo. Hudson stated that he "really (didn't) know anything about that", but called Jardan, talked to him and then allowed Garcia to talk to him. Eventually Jardan and Garcia reached a new agreement for the purchase of twenty ounces of the heroin. They were arrested on July 10, 1975 in New Orleans, Louisiana, where they were meeting to consummate the first step of the new deal. A search of Garcia's hand luggage following his arrest revealed twenty ounces of heroin.

Defendants' joint jury trial commenced on December 1, 1975, and ended on December 13, 1975, with their convictions on all charges. All defendants appeal.

I

Muhammad, Mims and Jackson challenge the validity of the voir dire examination conducted by the trial court. They contend that this case was " unusually sensitive" because of its concurrent racial and religious aspects and that a "most searching and most thorough" examination of jurors was, accordingly, required in order to reveal prejudice. It is defendants' position that the only adequate means of voir dire examination under the circumstances of this case would have been an in camera questioning of individual veniremen by defense attorneys.

All defendants requested permission to conduct voir dire examination themselves, assisted by experts. Muhammad filed a written pretrial motion requesting in camera voir dire by defense counsel. An evidentiary hearing was held at which defendants presented expert testimony on the question of racial prejudice. The trial court subsequently overruled defendants' motions and determined that it would adhere to the usual practice in the Western District of Missouri and conduct the voir dire examination itself. The trial court solicited initial and follow-up questions from defense counsel. Counsel for Jardan and Muhammad proffered and the court considered a total of 252 voir dire questions. The court also announced its willingness to question jurors individually and in camera where general questioning revealed that a particular venireman might be prejudiced.

The form and scope of voir dire examination are matters left to the broad discretion of the trial court. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Cosby, 529 F.2d 143, 147 (8th Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976); Fed.R.Crim.P. 24(a). The trial court here asked most of the approximately 250 questions submitted by defendants, many of which went to the issues of racial prejudice and exposure to pretrial publicity. Where general questioning revealed potential prejudice, follow-up questioning of individual veniremen was conducted by the trial court in camera. Examination was particularly penetrating with regard to the sensitive issues of exposure to pretrial publicity and racial prejudice. See Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); United States v. Crow Dog, 532 F.2d 1182, 1198 (8th Cir. 1976), cert. denied, 426 U.S. 917, 96 S.Ct. 2620, 49 L.Ed.2d 370 (1976); United States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974). A review of the record shows that the trial court's voir dire examination combined careful attention to the identification of possible prejudice with skillful avoidance of the confusion and delay that may arise when a jury is selected in a multiple defendant case where there is the potential of conflicting defenses. We conclude that the trial court did not abuse its discretion in its conduct of the voir dire examination. ³

II

Many contentions raised on this appeal relate to the question of whether defendants were so prejudiced by the joint trial as to require severance. Defendants were joined pursuant to Fed.R.Crim.P. 8 and the propriety of this initial joinder has not been contested. Rather, each defendant contends that although the initial joinder was proper, prejudice resulted therefrom...