U.S. v. Keck, s. 84-1283

• Decision Date: 30 August 1985
• Docket Number: 84-1393 and 84-1394,84-1336,84-1344,Nos. 84-1283,s. 84-1283
• Citation: 773 F.2d 759
• Parties: 18 Fed. R. Evid. Serv. 1101 UNITED STATES of America, Plaintiff-Appellee, v. Elmer KECK, Larry Hill, Diane Hise, Diana Elliott, Terry Beasley, and Debbie Hill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 759

773 F.2d 759

18 Fed. R. Evid. Serv. 1101

UNITED STATES of America, Plaintiff-Appellee, v. Elmer KECK, Larry Hill, Diane Hise, Diana Elliott, Terry

Beasley, and Debbie Hill, Defendants-Appellants.

Nos. 84-1283, 84-1336, 84-1344, 84-1393 and 84-1394.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 1985.

Decided Aug. 30, 1985.

Richard Cox, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Asher O. Geisler, Geisler Waks & Geisler, Decatur, Ill., for defendants-appellants.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

After a joint trial, a jury convicted defendants Larry and Debbie Hill, Elmer Keck, Diane Hise, Diana Elliott, and Terry Beasley on various drug charges, including conspiracy to distribute controlled substances in violation of 21 U.S.C. Sec. 846. Defendants challenge their convictions on appeal. They contend, among other things, that the indictment was defective, that the district court abused its discretion in failing to grant a severance, that the district court improperly instructed the jury on the nature of a conspiracy, and that the court abused its discretion on certain evidentiary rulings.

I. Facts and Proceedings Below

On January 11, 1983, the Government obtained a court order permitting it to intercept and record telephone conversations made to and from Larry and Debbie Hill's residence. Over the next six weeks, agents of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) recorded numerous phone conversations between Larry or Debbie Hill and the other defendants. The Government offered and the court admitted thirty-six of these conversations at trial. During these conversations, defendants discussed narcotics extensively, using terms such as "snowblow," "coke," and "T," which Government witnesses testified are slang terms for cocaine and phencyclidine (PCP). Defendants argued, and the jury apparently rejected, that the absence of any direct references to cocaine and PCP in these conversations precluded the Government from establishing that drugs were discussed in the conversations. In fact, in some of the conversations admitted at trial, Larry Hill admonished the other defendants not to say anything over the telephone.

While these conversations constituted the core of the Government's case against defendants, the Government also offered testimony of various undercover agents who had conducted surveillance of defendants' activities and who had arranged a number of cocaine purchases from two of the original defendants who pled guilty before trial. During the final purchase, which precipitated defendants' arrests, agents recovered one and one-half pounds of cocaine from the floor of Terry Beasley's car, which, according to the Government, Beasley intended to deliver to a DEA agent in exchange for $41,000. Following defendants' arrests, agents executed search warrants on the homes of Larry and Debbie Hill, Elmer Keck, Terry Beasley, and Diana Elliott. Agents seized, among other items, a lockbox found in Elliott's house that contained approximately one and three-quarters pounds of PCP and two smaller packages of cocaine. When agents arrested Larry Hill, they discovered that he was carrying two keys, one of which opened the lock to Elliott's house and the other of which opened the lockbox.

A few months later, on July 15, 1983, a grand jury returned a forty-three count indictment against the named defendants in this appeal and against six other defendants. Four of the latter group pled guilty to various charges and two of them were acquitted after trial.

With respect to defendants in this appeal, the indictment charged them with a variety of drug-related offenses. Specifically, the indictment charged defendants Larry and Debbie Hill, Terry Beasley, Elmer Keck, Diana Elliott, and Diane Hise with conspiracy to distribute controlled substances in violation of 21 U.S.C. Sec. 846; Larry Hill with two counts, and Beasley with one count, of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); Larry Hill with possession with intent to distribute PCP in violation of 21 U.S.C. Sec. 841(a)(1); Larry Hill, Beasley, Elliott, and Hise with aiding and abetting possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; Elliott with aiding and abetting possession with intent to distribute PCP in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; Larry Hill with sixteen counts, Beasley with nine counts, Debbie Hill with four counts, Keck and Hise with three counts, and Elliott with two counts, of using a telephone to facilitate the commission of a controlled substance felony in violation of 21 U.S.C. Sec. 843(b); Larry Hill with receipt of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(h) ¹; Larry Hill with six counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. App. Sec. 1202(a)(1) ²; and, Beasley with unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2).

The jury convicted Larry Hill on all counts against him except two of the sixteen counts of using a telephone to facilitate the commission of a felony. Similarly, the jury convicted Debbie Hill and Keck on all counts against them except one of the telephone counts. The jury convicted Beasley and Elliott on all counts and convicted Hise only on the conspiracy and aiding and abetting charges.

The judge sentenced Larry Hill to a fifteen-year term of imprisonment on the conspiracy count, a seven-year term of imprisonment and a three-year special parole term on each of the three counts concerning possession of, and aiding and abetting the possession of, cocaine. The judge ordered these seven-year terms to run concurrently with each other and consecutively to the fifteen-year term. On the remaining counts, the judge suspended sentences and imposed five-year probation terms.

Debbie Hill received a three-year term of imprisonment on each of the telephone counts on which she was convicted, each term to run concurrently with one another. On the conspiracy count, she received a five-year probation term. The judge sentenced Beasley to a ten-year term of imprisonment on each of the counts concerning the conspiracy, possession of cocaine, and aiding and abetting the possession of cocaine. These terms are to run concurrently with one another. Additionally, the judge imposed a three-year special parole term on the possession and aiding and abetting counts. Beasley received five-year probation terms on the remaining counts.

The judge sentenced Keck to a ten-year term of imprisonment on the conspiracy count. On the telephone counts, he received five-year terms of probation. Hise and Elliott both received suspended sentences and five-year probation terms on all the counts on which they were convicted.

Defendants raise numerous issues on appeal which, they contend, merit reversal of their convictions. First, all defendants contend that the counts alleging violations of 21 U.S.C. Sec. 843(b) were defective because they failed to allege the particular controlled substance involved and the manner in which defendants used the telephone to facilitate the conspiracy. Second, all defendants except Larry Hill argue that the district court abused its discretion in failing to grant a severance of their trials from Larry Hill's trial. Third, defendants challenge the court's decision to permit the Government to provide the jury with transcripts of the tape recordings that contained the identities of the speakers in the margins. Fourth, Larry and Debbie Hill contend that the court should have excluded various recordings of conversations that occurred between them as privileged communications. Fifth, Debbie Hill, Hise, and Elliott argue that the court should have excluded the conversation that occurred between Hise and Hill after Hise's arrest. Sixth, defendants claim that the court improperly instructed the jury on the law of conspiracy. Seventh, Elliott argues for reversal of her convictions for aiding and abetting possession with intent to distribute cocaine and PCP, alleging lack of sufficient evidence. Eighth, Larry Hill contends that this court must reverse his conviction under 18 U.S.C. App. Sec. 1202(a)(1) because of a variance between the allegations contained in the indictment and the Government's proof at trial. Finally, Larry Hill complains that he received ineffective assistance of counsel.

II. Sufficiency of the Indictment

Defendants' first challenge on appeal is that this court must reverse their convictions under 21 U.S.C. Sec. 843(b) because the counts in the indictment relating to these charges were deficient. Under 21 U.S.C. Sec. 843(b):

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter.

In this case, twenty-three counts of the original forty-three count indictment charged defendants with violating 21 U.S.C. Sec. 843(b), and the jury convicted defendants on seventeen of these counts.

These counts were virtually identical to one another, except for the alleged date and time of the calls and the names of the defendants involved. Count 13, for example, read as follows:

On or about January 11, 1983, at approximately 6:35 p.m., at Decatur, in the Central District of Illinois,

LARRY HILL and

ELMER KECK,

defendants herein, knowingly and intentionally used a communication facility, that is a telephone, in committing, causing, and facilitating the commission of the crime of conspiracy to possess with intent to distribute a controlled substance, as charged in Count I, a felony under the provisions of Title 21,...