U.S. v. Kabbaby

• Decision Date: 05 April 1982
• Docket Number: No. 79-5333,79-5333
• Citation: 672 F.2d 857
• Parties: 10 Fed. R. Evid. Serv. 298 UNITED STATES of America, Plaintiff-Appellee, v. Charles KABBABY, a/k/a "Abdul", "The Arab", Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 857

672 F.2d 857

10 Fed. R. Evid. Serv. 298

UNITED STATES of America, Plaintiff-Appellee, v. Charles KABBABY, a/k/a "Abdul", "The Arab", Defendant-Appellant.

No. 79-5333.

United States Court of Appeals, Eleventh Circuit.

April 5, 1982.

Alan E. Weinstein, Miami Beach, Fla., for defendant-appellant.

Deborah Watson, Dept. of Justice, Appellate Section, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY and FAY, Circuit Judges, and EDENFIELD ^*, District Judge.

PER CURIAM:

Defendant Charles Kabbaby and eleven codefendants were charged in a sixteen-count indictment in the Southern District of Florida. The linchpin charges in the indictment were a RICO conspiracy, ¹ which included all the defendants, and a substantive RICO offense, ² which included Kabbaby and seven other codefendants. The predicate offenses for these crimes included contract murders, arson, distribution of narcotics and marijuana, counterfeiting twelve million dollars in United States Treasury bills, truck hijacking, loan sharking and massage parlor prostitution. Kabbaby was also indicted for conspiracy to distribute narcotics, ³ possessing with intent to distribute approximately 110.1 grams of cocaine on or about October 22, 1976, ⁴ possessing with intent to distribute 1.98 gram sample of cocaine in January 1977, ⁵ and using a telephone to facilitate his drug sales. ⁶

After a trial which lasted six months and generated a 63-volume record, Kabbaby was acquitted of all charges except Count VIII, the so-called "October 22nd transaction," involving a sale of cocaine by defendant to Peter Bizzigotti, a paid informant. Kabbaby attacks that single count conviction for improper joinder and other trial errors. We affirm.

The relevant facts concerning Count VIII presented to the jury are as follows: On October 22, 1976, Drug Enforcement Agency (DEA) Agent Harris searched informant Peter Bizzigotti and Bizzigotti's car to confirm that the informant was carrying no drugs. Agent Harris and Bizzigotti then drove the car to a Winn Dixie grocery store. Defendant Kabbaby arrived shortly thereafter in his own automobile. Bizzigotti went to defendant's car, got in, and returned to his car a few minutes later carrying a McDonald's bag containing a plastic bag of cocaine. Agent Harris gave Bizzigotti $5,600 to pay for the cocaine. Kabbaby left his car and entered the Winn Dixie store. Bizzigotti followed. An agent observed the two meet in an aisle. Bizzigotti returned to his car to rejoin Agent Harris. The two drove to another location where Bizzigotti was again searched. The $5,600 was not found. Kabbaby's and Bizzigotti's fingerprints were on the McDonald's bag.

Defendant raises five issues on appeal.

1. Joinder and Refusal to Sever

Defendant contends it was improper under Rules 8 and 14, Fed.R.Crim.P., to join Count VIII with the other counts in the indictment. ⁷

RULE 8

Defendant argues that severance under Rule 8 was required because the record "as it pertains to the October 22nd transaction is totally devoid of any connection whatsoever to any other defendant or alleged co-conspirator in the case." ⁸

Misjoinder under Rule 8 is prejudicial per se and if the limits of the rule are exceeded, severance is mandatory. United States v. Levine, 546 F.2d 658, 661 (5th Cir. 1977); United States v. Nettles, 570 F.2d 547, 551 (5th Cir. 1978). ⁹ For purposes of a Rule 8(b) motion, allegations of an indictment will be accepted as true unless the joinder is based on an improper legal interpretation or there are allegations of prosecutorial bad faith. United States v. Sutherland, 656 F.2d 1181, 1190 n.6 (5th Cir. 1981); United States v. Leach, 613 F.2d 1295, 1299 (5th Cir. 1980); United States v. Lane, 584 F.2d 60, 62 (5th Cir. 1978).

There being no alleged prosecutorial bad faith, defendant's argument addresses the propriety of the legal interpretation of the charge involved and its place in this indictment. We uphold the district court for two reasons. First, the indictment alleges the October 22nd transaction is a predicate offense to the Count II RICO charge. The reasoning of United States v. Bright, 630 F.2d 804 (5th Cir. 1980), controls this point. In Bright, as in this case, defendants were alleged to have committed different predicate crimes. Three defendants moved for severance under Rule 8, arguing misjoinder because the predicate crimes they had allegedly committed were unrelated to the activities of their codefendants. In upholding the district court's denial of the motion, the Fifth Circuit stated:

(I)f this was not a RICO case, the defendants would have a valid argument of misjoinder.... The gist of a RICO offense, however, is that the defendant, through a pattern of predicate crimes, furthered a racketeering enterprise. The offense charged here is not the commission of the predicate crimes, but the furthering of the enterprise.... Thus viewed, it is clear the defendants were alleged to have participated in the same offense and joinder was not improper under Rule 8.

United States v. Bright, 630 F.2d at 812-13. Thus there is a logical, proper relationship between the transaction and the RICO charge in Count II.

Second, the October 22nd cocaine sale was also alleged as an overt act in furtherance of the conspiracy charges in Counts I and V. It is common and proper to allege overt acts as substantive violations and join them with conspiracy charges. See, e.g., United States v. Wooldridge, 572 F.2d 1027, 1029 (5th Cir.), cert. denied, 439 U.S. 849, 851, 99 S.Ct. 150, 155, 58 L.Ed.2d 151 (1978).

Contrary to defendant's argument, failure of the jury to convict him of participating in the broader conspiracy of which the October 22nd sale was a part does not require retroactive invalidation of the joinder. The exceptional circumstances found in other cases which justify examination of evidence adduced at trial in considering misjoinder claims are not present here. See United States v. Levine, 546 F.2d 658, 663 (5th Cir. 1977); United States v. Zicree, 605 F.2d 1381, 1387-88 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Nettles, 570 F.2d 547, 551-52 (5th Cir. 1978). Only a single conspiracy was alleged, not several unrelated conspiracies. The Government's failure to prevail on the RICO counts or conspiracy at trial does not render joinder improper under Rule 8.

RULE 14

Kabbaby argues that even if joinder was proper under Rule 8, the trial court erred in denying his motion to sever pursuant to Rule 14, Fed.R.Crim.P., which permits severance if it appears either party will be prejudiced by a joinder of offenses or defendants. ¹⁰

The grant or denial of a Rule 14 motion lies within the sound discretion of the trial judge and is reversible only for abuse of that discretion. United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980). To warrant severance under the rule, the defendant bears a heavy burden in demonstrating clear and compelling prejudice from the inclusion of the count in question "which could not be alleviated by the trial court and that he was unable to obtain a fair trial." United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. 1981).

The test for determining whether compelling prejudice from continued joinder exists is

(W)hether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.

In determining on appeal whether the jury was in fact confused, the court will look to the verdict. Convictions will invariably be sustained if it may be inferred from the verdict that the jury "meticulously sifted the evidence," as where it acquits on certain counts.

United States v. Zicree, 605 F.2d at 1389, quoting Tillman v. United States, 406 F.2d 930, 935-36 (5th Cir. 1969), vacated in part on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969).

Defendant contends the evidence regarding the October 22nd transaction was very weak, and that he probably would not have been convicted if evidence relevant to other counts had not been before the jury. Severance under Rule 14 is not required merely because the defendant's chances for acquittal would have been better if he had been tried in a separate trial on Count VIII. United States v. Dennis, 645 F.2d 517, 521 (5th Cir. 1981). It is true that "(o)ne of the hazards of a RICO count is that when the Government is unable to sustain a conviction under this statute, it will have to face the claim that the prejudicial effect of tarring a defendant with the label of 'racketeer' tainted the conviction on an otherwise valid count." United States v. Guiliano, 644 F.2d 85, 89 (2d Cir. 1981). Since defendant was acquitted on five of the six counts charged, however, it is clear that the jury "meticulously sifted the evidence," and that appellant was not prejudiced by a spillover of evidence relating to other counts or defendants. Consequently, we find the district court judge did not abuse his discretion in denying Kabbaby's motion under Rule 14.

2. Admission of Sue Pill's Testimony

Over objection, Sue Pill testified at trial she and her boyfriend Bobby Mix lived in Kabbaby's house for a few weeks in December 1975 and January 1976. She stated that on one occasion when codefendant LaPace visited, defendant gave a small amount of cocaine to her, Mix and LaPace for their personal use. She said LaPace liked the quality of the cocaine, and had asked if defendant could obtain more for him. Pill testified ...