U.S. v. Klein, s. 75-2023

• Decision Date: 14 October 1977
• Docket Number: 76-3702,Nos. 75-2023,s. 75-2023
• Citation: 560 F.2d 1236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William E. KLEIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1236

560 F.2d 1236

UNITED STATES of America, Plaintiff-Appellee, v. William E. KLEIN, Jr., Defendant-Appellant.

Nos. 75-2023, 76-3702.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1977.

Robyn Greene, Miami, Fla. (Court-Appointed), Marc Cooper, Miami, Fla., for Klein.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., Mark S. Geraghty, Crim. Div., Narcotic & Drug Sec., Dept. of Justice, Washington, D. C., Jamie L. Whitten, Asst. U. S. Atty., Coral Gables, Fla., for plaintiff-appellee in No. 75-2023.

Jack V. Eskenazi, U. S. Atty., Karen L. Atkinson, Asst. U. S. Atty., Miami, Fla., Jamie L. Whitten, Asst. U. S. Atty., Coral Gables, Fla., for plaintiff-appellee in No. 76-3702.

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

Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.

SIMPSON, Circuit Judge:

William Klein was convicted on charges of conspiracy, distribution, and possession arising out of a scheme to import cocaine from Colombia to the United States. In this appeal he makes several allegations of error, all of which we find to be without merit. We thus affirm his conviction on all counts. Two points warrant discussion.

I. THE FACTS

Eli Hellman and William Klein were indicted on three counts: ¹ (1) conspiracy to import one kilogram of cocaine into the United States, in violation of Title 21, U.S.C. § 952(a); (2) distribution of 6.5 grams of cocaine, in violation of Title 21, U.S.C. § 841(a)(1); and (3) possession of 6.5 grams of cocaine with intent to distribute, in violation of Title 21, U.S.C. § 841(a)(1). The facts giving rise to these indictments as brought out at Klein's trial are as follows.

On November 3, 1974, Klein called an acquaintance, John Paul Bommarito, to discuss a plan to bring cocaine into the United States. Bommarito was an underworld figure, had been convicted of four separate narcotics offenses, and, unknown to Klein, was a government informant. At Bommarito's suggestion, the two met later that afternoon at Bommarito's hotel. Klein brought his friend Hellman to the meeting. According to Bommarito, Hellman stated that he knew how to liquify cocaine, thus allowing it to be smuggled into the country in liquor bottles. Hellman also stated that he had a good connection to obtain cocaine "down there". Klein stated that he and Hellman had contacted Bommarito because they needed financial backing to carry off their scheme. At this meeting, Bommarito asked if the two could furnish a sample of cocaine. Hellman and Klein agreed to deliver one quarter of an ounce of the substance, for which Bommarito paid $350.

On November 5, 1974, two days later, Bommarito had a dinner party in his hotel suite, attended by Klein and his date, Hellman and his wife, and two undercover agents, Gillis and Degaglia. The agents posed as large-scale narcotics operators employed by the underworld. After the men at the party discussed plans for smuggling cocaine into the country, Bommarito asked about the sample he had requested. Hellman then produced a small bag of cocaine which was "checked out" by agent Gillis.

On November 8, 1974, at Degaglia's request, Klein, Hellman, Degaglia and Gillis met to discuss further details of the plan. The agents, borrowing from the then-popular film "The Godfather", explained that they had to go up north to see their "father" and discuss the plan with him. One week later, on November 15, the agents again met with Klein and Hellman and stated that their "father" had given approval for someone to go to Colombia to purchase a kilo of cocaine for $9,000. Degaglia stated that Gillis would accompany Hellman to Colombia to acquire the drug and that travel expenses would be paid by the "father". Later that day, Gillis phoned Hellman to learn whether Hellman had been in touch with his contact in Colombia. Hellman stated that he had called "Jerry" and that "Jerry had the cocaine and all we had to do was go down there".

Gillis and Hellman traveled to Cali, Colombia, on November 18, 1974, where they contacted Jerry. After much negotiation concerning the price of the kilo and the manner of payment, the parties were unable to agree and the deal fell through. Gillis and Hellman took the next flight back to the United States.

II. PROCEDURAL HISTORY

The joint trial of Klein and Hellman has complicated the procedural history of this case. On the first day of the trial, counsel for Hellman, while in the corridor outside the courtroom, loudly berated the Assistant United States Attorney who was handling the prosecution. Because of this incident, Klein moved for a severance. The district court denied Klein's motion after holding a hearing to determine whether any juror had witnessed the incident ² and having Hellman's counsel examined by a court-appointed psychiatrist. Hellman was represented by the same lawyer throughout the trial.

The jury returned a verdict of guilty on all counts against both Klein and Hellman. Klein was sentenced to five years confinement on the conspiracy count and five years confinement on each of the substantive counts, all sentences to run concurrently and to be followed by concurrent three year special parole terms. He filed a timely notice of appeal from the judgment and sentence of the district court.

Hellman filed a motion for a new trial, alleging primarily that he did not receive effective assistance of counsel at trial. After an evidentiary hearing, the district court granted Hellman's motion on the basis of a record which graphically detailed the irrational and unprofessional conduct of Hellman's counsel.

On the basis of Hellman's successful motion, Klein asked this Court to remand his case to the district court for consideration of his motion for a new trial. In an unpublished order, we granted the motion to remand. After a hearing, the district court denied Klein's motion for a new trial, and Klein once again appealed to this Court. His two appeals have been consolidated and we consider them as one.

In the meantime, Hellman was convicted on all three counts by the jury at his second trial. He appealed and we have recently reversed his conviction following a government confession of error because of an erroneous instruction given by the district court. United States v. Hellman, 560 F.2d 1235 (5th Cir. 1977). As of this date, Hellman has not been retried for a third time.

Klein raises several points on appeal. We have considered each allegation of error and find none to be meritorious. ³ Two points require discussion: (1) whether the district court erred in ruling that if Klein took the stand he could be impeached with evidence of a prior jury verdict of guilty where no judgment or sentence had been entered on that verdict, and (2) whether the district court erred in denying Klein's motion for a new trial after it had granted a new trial to Hellman, an alleged co-conspirator.

III. IMPEACHMENT BY A PRIOR JURY VERDICT

The trial in the instant case began on March 4, 1975. Earlier the same day the jury in another case before a different judge returned a verdict of guilty against Klein on a separate indictment charging him with conspiracy to import cocaine and marijuana. ⁴ No judgment or sentence was entered on that jury verdict during the pendency of the instant trial. When Klein indicated, against the advice of counsel, that he wished to testify in his own defense, his counsel asked the district court to rule on whether Klein could be impeached with evidence of this jury verdict if he took the stand. The court, citing United States v. Franicevich, 471 F.2d 427 (5th Cir. 1973), noted that a witness can be impeached with evidence of a prior conviction even when an appeal of that conviction is pending. By analogy, the court reasoned, a witness could be impeached with evidence of a guilty verdict where no judgment had been entered, as long as he has the opportunity to "show the status of the matter" in mitigation. (T.R. 414) As a result of this ruling, Klein did not take the stand. He now argues that the court's ruling constitutes reversible error. We are not persuaded by his argument.

"It is a well settled rule of law that only previous convictions, and not previous acts of misconduct not resulting in conviction, can be used for impeachment purposes". United States v. Turner, 497 F.2d 406, 407 (10th Cir. 1974), cert. denied 423 U.S. 848, 96 S.Ct. 90, 46, L.Ed.2d 71 (1975). Accord: Brown v. Coating Specialists, Inc., 465 F.2d 340 (5th Cir. 1972); United States v. Davenport, 449 F.2d 696 (5th Cir. 1971). This rule has spawned controversy where the "conviction" sought to be used for impeachment purposes lacks finality, either because judgment and sentence have not yet been entered on a jury verdict or guilty plea, or because an appeal is pending. Until the Federal Rules of Evidence were promulgated, the Circuits were split on the issue of the admissibility of convictions on appeal at the time of the subsequent trial. Courts holding against admission reasoned that "(i)f the judgment of conviction is later reversed, the defendant has suffered, unjustly and irreparably, the prejudice, if any, caused by disclosure of the former conviction". Campbell v. United States, 85 U.S.App.D.C. 133, 135, 176 F.2d 45, 47 (1949). On the other hand, as we explained in United States v. Franicevich, supra, at 429:

We apprehend the better rule in such a situation to be that the prior conviction, yet unreversed, may be shown by way of impeachment. The witness may, of course, explain to the extent of showing that the conviction is pending on appeal, and the jury may then give it such weight as it wishes, its prerogative in any case.

Our position has since been adopted by the Federal Rules of Evidence, which provide as follows:

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Fed.R.Evid. 609(e).

It follows that if a jury can comprehend that...