U.S. v. Lee
| Decision Date | 18 September 1989 |
| Docket Number | Nos. 88-2347,88-2349,s. 88-2347 |
| Citation | 886 F.2d 998 |
| Parties | UNITED STATES of America, Appellee, v. Rickey A. LEE, Appellant. UNITED STATES of America, Appellee, v. Roderick W. STEPHENSON, Appellant. UNITED STATES of America, Appellee, v. Herman PAIGE, Jr., Appellant. UNITED STATES of America, Appellee, v. W.C. CARTWRIGHT, Jr., Appellant. UNITED STATES of America, Appellee, v. Lance W. ROBINSON, Appellant. UNITED STATES of America, Appellee, v. Alinzo M. PAIGE, Appellant. UNITED STATES of America, Appellee, v. Kevin B. PAIGE, Appellant. UNITED STATES of America, Appellee, v. Alonzo D. BANKS, Jr., Appellant. to 88-2352, 88-2400, 88-2401 and 88-2592. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Christopher Abele, Kansas City, Mo., for Herman Paige.
David Hassan, Liberty, Mo., for Alinzo Paige.
Leonard Meyer, Independence, Mo., for Roderick Stephenson.
David Owen, Kansas City, Mo., for W.C. Cartwright.
F.A. White, Kansas City, Mo., for Alonzo Banks.
Roger Geary, Kansas City, Mo., for Lavester Robinson.
Dan Dykstra, Kansas City, Mo., for Rickey Lee.
Willis Toney, Kansas City, Mo., for Lance Robinson.
John Edward Cash, Kansas City, Mo., for Kevin Paige.
Peter M. Ossorio, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before MAGILL, Circuit Judge, ROSS, Senior Circuit Judge, and CAMBRIDGE, * District Judge.
Nine defendants appeal from verdicts and sentences resulting from their joint trial stemming from their indictments for conspiracy to distribute and distribution of "crack" cocaine, money laundering, and engaging in a continuing criminal enterprise. 1 We affirm their convictions and sentences.
On March 16, 1988, a federal grand jury indicted twelve individuals on twenty-three counts relating to the sale of narcotics. Kevin Paige was charged with engaging in a continuing criminal enterprise (in violation of 21 U.S.C. Sec. 848) by leading a group that operated several "crack houses" in the Kansas City area. Lance Robinson was charged with money laundering in violation of 18 U.S.C. Sec. 1956. Other defendants were charged with conspiracy to distribute, possession with intent to distribute, and distribution of crack, and use of firearms during drug trafficking offenses.
Five defendants entered into written plea agreements, and three others cooperated as government witnesses during the joint trial. After the sixteen-day jury trial, six of the seven remaining defendants were convicted.
Alinzo Paige alleges that the district court 2 erred in denying his motion to suppress evidence seized in a search of his girlfriend's residence at 4424 Troost, Kansas City, Missouri. On September 9, 1987, after police searched a first floor apartment at that address pursuant to a search warrant, they went on to search an apartment on the second floor. The police persuaded the apartment's lessee, Lisa Bland, to sign a form consenting to the search. Then officers seized a briefcase containing documents referring to Paige, Herman Paige, Jr., and W.C. Cartwright, a gun, crack, and more than $10,000 in cash. Paige contends that Bland did not consent to the search voluntarily.
"[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). We review the trial court's determination that the consent was given voluntarily under the "clearly erroneous" standard. See United States v. O'Connell, 841 F.2d 1408, 1414 (8th Cir.), cert. denied sub nom., Patterson, II v. United States, --- U.S. ----, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988).
At the pretrial suppression hearing, Lisa Bland testified that officers used threats to coerce her to sign the consent form: "I just kept saying no and they said they was going to take my kids if I didn't let them search the apartment or sign the paper."
Three police officers testified at the hearing that no such threats were made. Sargeant McEntee testified that he asked Bland to sign the consent form two or three times. He informed her that she could "save us all a great deal of time and trouble if she would consent," and that "if in fact she was allowing them to sell or there was a cocaine operation there[,] that conceivably that would constitute perhaps a charge of endangering the welfare of a child and that she could conceivably lose her children to state authorities if that were the case." The officers testified that they informed Bland that they did not have a warrant and that she had a right to refuse to consent to the search.
The magistrate's finding that Bland consented to the search, reviewed de novo by the district court, rested largely on a determination of credibility. Neither the magistrate nor the district court believed Bland's claims that she had not read and understood the consent form and that she had signed it only because she feared the police would take away her children. Because Bland's inconsistent statements, her declaration that she had nothing to hide, and her personal relationship with Paige support that determination, we find no error in the district court's conclusion that Bland's consent was voluntary and not the product of psychological coercion.
During the trial, between ten and fourteen marshals were present in the courtroom. Seven unarmed marshals were seated behind the defendants, one marshal was stationed by both of the courtroom entrances, and three marshals sat in the back of the courtroom. During jury selection, the judge assigned numbers to each member of the venire, and instructed that all references to the venire be by number. During the course of trial, the jury was sequestered. On the first day of trial, counsel for Herman Paige, Jr. expressed concern about the "extraordinary" number of marshals present in the courtroom. On the second day, all defendants moved for a mistrial based on the combined prejudicial effects of these plainly visible security measures. The motion for mistrial was renewed several times during the trial. Defendants argue that these security measures, in combination, were unduly prejudicial, depriving them of the constitutionally required presumption of innocence.
The need for and extent of security measures during trial are within the discretion of the trial court. United States v. Gambina, 564 F.2d 22, 24 (8th Cir.1977). In reviewing the exercise of discretion, we look to the record to determine whether the trial court's actions were warranted. Id.
All of the marshals present in the courtroom were in plain clothes. On the first day of the trial, they wore badges or "shields" to identify themselves. After the first day, most of the marshals exchanged their badges for smaller lapel identification pins. Throughout the trial, the defendants were seated and the marshals were stationary before the jury entered the courtroom. For the record, the court explained that the number of marshals was based on the professional assessment of the Marshal's Service, which was based on a number of incidents which gave them reasons to believe there might be an escape attempt or threats to the safety of the people in the courtroom.
We believe the district court's use of security personnel was a reasonable balance of concerns for both courtroom security and minimizing undue prejudice. We are also satisfied that the court's decisions to sequester the jury and to refer to the venire by number were not an abuse of discretion. The court explained to the jury that the primary purpose of sequestration was to avoid undue influence of the jury by information from outside the courtroom. Although defendants characterized the use of numbers to identify the jury venire as an unconstitutional "anonymous" jury, we note that defendants' counsel were provided with the names of the jurors, and find no prejudice in the court's procedure.
Defendants Stephenson, Cartwright, Banks, Herman Paige, and Alinzo Paige argue that their trial should have been severed from the trial of Kevin Paige, the only defendant charged with engaging in a continuing criminal enterprise. All defendants argue that the district court erred in denying their motions for separate trials.
To establish abuse of discretion in the denial of a motion to sever, defendants must demonstrate they were prejudiced by the jury's inability to follow the trial court's instructions and to "compartmentalize the evidence" as it related to the separate defendants. United States v. Adkins, 842 F.2d 210, 212 (8th Cir.1988).
Each of the defendants was named in the conspiracy charges, and the greater part of the evidence presented demonstrated the existence of the conspiracy and various acts associated with it. Defendants made no showing that they were prevented from raising any defenses as a result of joinder. The verdict finding defendants not guilty on some counts and acquitting Bryan Cartwright altogether evinces the jury's ability to compartmentalize the evidence and follow the court's instructions. See United States v. Masters, 840 F.2d 587, 590 (8th Cir.1988). We find no error in the joint trial of the defendants.
At trial, when the prosecutor attempted to display a scale used for weighing drugs, W.C. Cartwright, Jr. objected because the proffered exhibit had been excluded as impermissibly seized. The court immediately sustained defendant's objection and instructed the jury to disregard the evidence. The inadmissible exhibit was an insubstantial part of the evidence presented, and was not a significant part of the government's case against Cartwright. Finding no prejudice, the trial court properly denied Cartwright's motion for a mistrial. United States v. Petary, 857...
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