U.S. v. King

• Decision Date: 12 December 1977
• Docket Number: 77-1440,Nos. 77-1352,s. 77-1352
• Citation: 567 F.2d 785
• Parties: UNITED STATES of America, Appellee, v. Cleora KING, Appellant. UNITED STATES of America, Appellee, v. Milton LEWIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 785

567 F.2d 785

UNITED STATES of America, Appellee, v. Cleora KING, Appellant.

UNITED STATES of America, Appellee, v. Milton LEWIS, Appellant.

Nos. 77-1352, 77-1440.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1977.

Decided Dec. 12, 1977.

James P. Flannery, St. Paul, Minn., for Cleora King.

John R. Wylde, St. Paul, Minn., for Milton Lewis.

John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., William Zwart, Intern, on the brief.

Before STEPHENSON, Circuit Judge, MARKEY, Chief Judge, ^* and WEBSTER, Circuit Judge.

WEBSTER, Circuit Judge.

This is a consolidated appeal by Cleora Olive King and Milton Lewis, who were convicted in a joint trial with Cleora's sister, Edgrean King, on various narcotic charges contained in a single indictment. ¹

Each appellant asserts separate grounds for reversal of the respective convictions. Lewis contends that (1) Counts I and II were prejudicially misjoined and the District Court erred in not granting him severance for trial on all counts; and (2) the District Court erroneously denied his motion to suppress because the affidavit upon which the search warrant was based was insufficient to establish probable cause and contained prejudicial misstatements. Cleora King contends that (1) the government's case was tainted by the use of a paid informant who was a known narcotics user; (2) the District Court erred in refusing to give a lesser included offense instruction on the counts in which she was charged; and (3) the District Court erred in refusing to grant her motion for severance and separate trials. We reject all contentions of appellants and affirm the judgments of conviction.

The facts are largely uncontroverted. Government undercover agent Hessel, working closely with informant Red Adams, purchased heroin on four separate occasions. In each sale either Edgrean King or her sister, Cleora King, after receiving money from Hessel and Adams, entered an apartment building at 177 Milton in Saint Paul, Minnesota, in which Milton Lewis lived, and obtained heroin. ² On November 19, Agents Shanley, Long, and Bauer acting pursuant to a warrant, searched Lewis' apartment. In addition to drugs, additives, and other paraphernalia, the agents seized $580 of bills that Hessel had previously photocopied and given to Cleora King. An additional $1700 was seized. At the completion of their search, Lewis was asked if the money was his. He replied, "Yes, everything is."

We turn now to the assignments of error by each appellant.

MILTON LEWIS

Severance.

Milton Lewis alleges that the District Court's failure to sever Counts I and II of the indictment prejudiced his right to a fair trial. His pretrial motion for relief from prejudicial joinder was denied first by the United States Magistrate and then by the District Court. ³ In Count I, Edgrean King was charged alone with unlawful distribution on August 25, 1976. Milton Lewis and Edgrean King were both charged in Count II with unlawful distribution in connection with the September 20, 1976 sale. Appellant contends, in support of misjoinder, that the government's case against him in Count II was so weak that he would not have been convicted had the government not offered evidence in its prosecution of Edgrean King under Count I.

Fed.R.Crim.P. 8(a) provides:

Two or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Even if joinder is proper under Rule 8, Fed.R.Crim.P. 14 authorizes the trial court to grant relief from joinder "(i)f it appears that a defendant or the government is prejudiced by (the) joinder . . . ." The court "may order . . . separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." See United States v. Sanders, 563 F.2d 379, at 382 (8th Cir. 1977). A district court in determining whether to grant relief under Rule 14 has wide discretion and the court's ruling is rarely disturbed on review. See United States v. Jardan, 552 F.2d 216, 219 (8th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977); United States v. Kirk, 534 F.2d 1262, 1269 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977).

The counts contained in the indictment show no facial misjoinder. The transactions and events occurred over a short period of time, were similarly carried out, and the evidence necessarily overlapped. See Johnson v. United States, 356 F.2d 680, 682 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966). See also United States v. Leach, 429 F.2d 956, 960 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971) (when conduct supporting various counts is factually related, charges may be joined even though defendants are not charged on each count or are guilty of the same offenses.) ⁴

Likewise, we find little basis for Lewis' contention that the District Court should have granted severance under Fed.R.Crim.P. 14. Lewis contends that the government's evidence was so weak on Count II that he would not have been convicted had he been tried separately. Appellant must carry the heavy burden of demonstrating that he was prejudiced by the District Court's failure to grant relief. See United States v. Jardan, supra, 552 F.2d at 219. The government's evidence on Count II was sufficient to support a conviction. ⁵ We decline to speculate on what impact the evidence on Count I had on Lewis' conviction. There was abundant evidence of other similar criminal activity derived from Counts III, IV, V, and VI in which Edgrean King was not charged, which could fairly be considered by the jury as proof of plan, knowledge, and identity. See Fed.R.Evid. 404(b).

The Search Warrant.

Lewis also contends that the affidavit upon which the November 19 search of his apartment was based did not contain sufficient allegations to establish probable cause, and contained misstatements, thus rendering the warrant invalid and the search improper. Basically, Lewis argues that: (1) the failure of the affidavit to disclose that another narcotics user, one Wofford, resided at 177 Milton was a material omission; (2) the affidavit contained inaccuracies and was inconsistent with evidence later introduced at trial; and (3) it impermissibly relied on informant Adams. The government, in support of the affidavit, relies on Cleora King's statements to Hessel, the affiant, on November 17 that she had gotten the heroin from "Cut" and that she would be able to obtain more from him the next day. The evidence is clear that Lewis was commonly known as "Cut". It was not necessary that the affidavit exclude every possible alternative source of the heroin. The test is whether the affidavit was sufficient to support a finding of probable cause to believe that narcotics were located in Lewis' residence. We think that it was. Evidence of Wofford was irrelevant to a finding of probable cause in connection with the distributions made on November 17 and 19.

Appellant also claims that Agent Boulger's testimony was inconsistent with statements made by affiant Hessel in the affidavit describing Adams' account of his telephone conversation with Cleora King. Appellant concedes that mere discrepancies between information contained in an affidavit and evidence introduced at trial will not invalidate a search warrant issued pursuant to the affidavit. See United States v. Marihart, 492 F.2d 897, 901 (8th Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974). Even when a government agent's statements are untruthful, "(e)vidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful." Id. at 899, citing United States v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973). See also United States v. Luciow, 518 F.2d 298, 301 (8th Cir. 1975). There is no basis for such a finding.

Finally, we find no impermissible reliance on Adams. Although affiant Hessel relied to some extent on Adams, an unidentified informant, Hessel was an active participant in all of the transactions upon which the affidavit was based and had "personal knowledge of the matters contained therein." See Aguilar v. Texas, 378 U.S. 108, 113, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1963).

CLEORA KING

Use of the Informant.

Cleora King argues that the District Court should have exercised its supervisory power to exclude evidence obtained from the participation of informant "Red" Adams. She claims that Adams, a well-known narcotics user was inherently unreliable because he was paid on a contingent fee basis.

Despite Adams' status as a narcotics user, he had been reliable in the past and on many occasions had introduced government agents to narcotics distributors and assisted in their arrest. In this case, Adams successfully introduced agent Hessel to the King sisters and played a vital role in the narcotics sales that lead to the eventual search of Lewis' apartment and appellants' arrest.

In Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965), relied upon by appellant King, the Fifth Circuit, exercising its supervisory power, overturned a contingent fee arrangement in which an informer was paid to produce evidence against named individuals for crimes that had not yet been committed. The Court reasoned:

Such an arrangement might tend to a "frame up," or to cause an informer to induce or persuade innocent persons to commit crimes they had no previous intent or purpose to commit.

Id. at 444. Adams was not approached and financially induced to "uncover evidence" against appellants, see United...