U.S. v. Kirk

• Decision Date: 17 May 1976
• Docket Number: 75-1386,75-1365,75-1449 and 75-1542,Nos. 75-1359,75-1429,75-1364,s. 75-1359
• Parties: 2 Fed. R. Evid. Serv. 206 UNITED STATES of America, Appellee, v. Eugene C. KIRK, Sr., et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1262

534 F.2d 1262

2 Fed. R. Evid. Serv. 206

UNITED STATES of America, Appellee, v. Eugene C. KIRK, Sr., et al., Appellants.

Nos. 75-1359, 75-1364, 75-1365, 75-1386, 75-1429, 75-1449

and 75-1542.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1976.

Decided April 22, 1976.

Rehearing and Rehearing En Banc Denied May 17, 1976.

William C. Brown, T. George Gilinsky, Washington, D. C., for appellee; Donald J. Stohr, U. S. Atty., St. Louis, Mo., and Jerome M. Feit, Washington, D. C., on the briefs.

James M. Martin, Lawrence J. Fleming and Thomas Scott Richardson, St. Louis, Mo., for appellants; Mark R. Bahn, William M. Nicholls, J. William Newbold, Dennis T. Rathmann, Daniel V. O'Brien and Robert A. Hampe, St. Louis, Mo., on the briefs.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and VAN PELT, Senior District Judge. ^*

VAN PELT, Senior District Judge.

The nine appellants herein were convicted by a jury of having conspired to distribute, and to possess with intent to distribute, heroin, in violation of 21 U.S.C. § 846. Each appellant was also convicted of one or more related substantive distribution offenses. ¹ They now appeal from those convictions, contending numerous errors were made by the trial court during their joint trial. We affirm on all issues raised in this appeal.

The issues presented are many:

1. Whether the evidence presented by the government established a single conspiracy as charged in the indictment or multiple conspiracies as the appellants contend.

2. Whether the evidence was sufficient to convict Audrene Hill, Deborah Barnett Caroline Kirk, Liddell Green, Eddie Roberts and Marvin Bonds.

3. Whether the trial court erred in refusing to suppress recordings of telephone conversations between a government informant and one of the appellants where the informant did not testify at trial.

4. Whether the trial court erred in admitting recordings of telephone conversations among the appellants intercepted during a court authorized wiretap.

5. Whether the court prejudicially erred in allowing the jury to use transcripts of the recorded conversations prepared by the government as an aid in listening to the recordings played at trial, and in permitting identification testimony based on those recordings.

6. Whether 21 U.S.C. § 848 is unconstitutionally vague, and whether the evidence was sufficient to convict Eugene Kirk under that statute.

7. Whether the court erred in refusing to quash the jury panel on the grounds that it did not represent a cross section of the community.

8. Whether the court erred in instructing the jury regarding reasonable doubt, circumstantial evidence, acts and declarations of co-conspirators and membership in a conspiracy, and the failing to give offered instructions on voice identification and on the failure of the government to call a witness.

9. Whether the court erred in refusing to declare a mistrial because of prejudicial pre-trial publicity.

10. Whether the evidence seized at the two addresses involved in this case should have been suppressed because of insufficient probable cause for the search warrant.

11. Whether the appellants Kirk and Barnett were denied effective assistance of counsel and the right to be free on reasonable bail during the proceedings against them by the trial court's revocation of their bonds.

12. Whether the court erred in admitting testimony of government witnesses concerning the identification of certain substances as heroin and concerning the operation of certain tape recorders.

Between March 18, 1974, and June 18, 1974, undercover agents for the Drug Enforcement Administration (DEA) made four purchases of heroin from a James Nofles. The first of these transactions involved a black 1971 Mercury (license # S9H-758) which was followed to a residence at 6145 Lalite in St. Louis. Later investigation revealed this was the home of Eugene Kirk, Sr. The remaining three transactions occurred in and around the residence of Gwendolyn Williams at 4762 Northland.

The agents arrested Nofles on August 6, 1974. After his arrest, Nofles agreed to cooperate and assist the government investigation by arranging heroin purchases in telephone conversations to be recorded by the DEA agents.

From August 6, 1974, to September 4, 1974, Nofles made six telephone calls that were recorded by the agents. All the calls were made to two telephones located at 6145 Lalite. In the first call he negotiated with Deborah Barnett and Eugene Kirk for the purchase of a quantity of heroin. The remaining five calls resulted in purchases of heroin on four separate occasions. After arranging the purchase, Nofles was searched by DEA agents. The agents would then take him to the transaction site, provide the necessary funds, observe the purchase and collect the heroin Nofles had received.

The heroin was delivered to Nofles at a different place for each transaction. The first time Nofles went to the residence of Audrene Hill at 5707 Mimika and returned with a package of heroin. The second time Eugene Kirk delivered the heroin to a street location in St. Louis, arriving in the same black Mercury mentioned earlier. The third transaction involved delivery by Willie West Johnson, and the last delivery was made by Gregory Kirk, a son of Eugene Kirk.

During this same period of time, Nofles asked Kirk if he could give his phone number to another buyer (DEA agent Roy Shurn). He was advised to give Shurn the telephone number of Willie West Johnson instead. Shurn had a couple of conversations involving heroin with Johnson following that time, but none was purchased.

On September 25, 1974, after receiving authorization from Attorney General William Saxbe pursuant to 18 U.S.C. § 2516, the government applied for a court order authorizing interception of wire communications on two telephones at 6145 Lalite. This order was granted and the intercept proceeded. During the twenty days the order was in effect, the agents intercepted 2918 phone conversations on the two phones, an average of 146 calls per day. The interceptions established the existence of heroin trafficking among the appellants and other individuals. The conversations disclosed numerous heroin transactions involving all appellants as well as the efforts of Eugene Kirk to make purchases of heroin in New York and California.

The wire interception terminated on October 15, 1974. However, there was one final phone call made by Nofles to Gwen Williams on October 24. This was recorded with his consent and a purchase of heroin was arranged. On October 28, 1974, search warrants were executed on the residence at 6145 Lalite and also at 5979 Summit (home of a James Nelson). A foil packet containing traces of heroin was found at the Lalite address, where Gregory Kirk and Deborah Barnett were arrested. The remaining appellants plus a number of other individuals were arrested subsequently. Further facts will be developed as the issues are discussed.

Single Conspiracy v. Multiple Conspiracy.

The appellants contend that the evidence presented in this case indicates at best a series of separate transactions involving heroin sales with Eugene Kirk as the "hub" and the other appellants merely participated in separate and isolated transactions. It is their contention that this evidence established only a series of multiple conspiracies, not the single conspiracy as the government contends.

The appellants are correct in their assessment of the problems encountered in mass conspiracy trials when a number of defendants are tried together, especially if the evidence presented does, in fact, fail to show the defendants were involved in a single conspiracy. See United States v. Kotteakos, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945); and United States v. Sperling, 506 F.2d 1323 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). However, the evidence in this case was more than sufficient for the jury to find a single conspiracy among the appellants to purchase and distribute heroin in the St. Louis area. The court quite properly denied the appellants' motions concerning severance and the multiple-conspiracy instructions. Since there was substantial evidence of a single conspiracy, there was no need to instruct the jury as to multiple conspiracies, United States v. Barrera, 486 F.2d 333 (2d Cir.), cert. denied, 416 U.S. 940, 94 S.Ct. 1944, 40 L.Ed.2d 291 (1973), nor was there an abuse of the trial court's discretion in the denial of the severance motions. United States v. Hutchinson, 488 F.2d 484 (8th Cir.), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1973).

As a normal rule, severance should be allowed upon a showing of real prejudice to an individual defendant, United States v. Hutchinson, 488 F.2d 484 (8th Cir.1973); however, "in the absence of such a showing, persons charged in a conspiracy should be tried together, especially where the proof of the charges against the defendants is based upon the same evidence and the same acts." Id. at 492. The question of whether to sever the appellants' trials was in the sound discretion of the trial judge, Fed. R. Crim. P. 14, and based on the conspiracy evidence presented by the government that discretion was not abused.

A review of the evidence presented points out the weakness in the appellants' position. In addition to the activities brought to light through the use of the informant, Nofles, the involvement of the various appellants in the conspiracy was further developed by the wire interception. Looking at the evidence developed against each appellant separately, it becomes apparent that there was sufficient evidence of a conspiracy to submit the case to a jury.

Eugene Kirk was involved in almost all of the phone calls intercepted and played to the jury. The recorded conversations had him dealing with various distributors, including appellants Hill, Caroline Kirk, Hamilton, Bonds and Roberts. He negotiated...