U.S. v. Lindell
| Decision Date | 17 August 1989 |
| Docket Number | 87-6134 and 87-6148,87-6004,Nos. 87-2930,s. 87-2930 |
| Citation | 881 F.2d 1313 |
| Parties | 28 Fed. R. Evid. Serv. 1164 UNITED STATES of America, Plaintiff-Appellee, v. Earl Keith LINDELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Roy McINTOSH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William E. KINNEAR, II, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Danny M. LOKEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard V. Dymond, Gulfport, Miss., for Earl Lindell.
Paul E. Naman, L. Stuart Platt, Asst. U.S. Attys., Bob Wortham, U.S. Atty., Beaumont, Tex., for the U.S.
Michael L. Baker, Strong, Pipkin, Nelson & Bissell, Beaumont, Tex. (court-appointed), for Charles McIntosh.
Ernest L. Sample, Beaumont, Tex., for William Kinnear, II.
Appeals from the United States District Court For the Eastern District of Texas.
Before GOLDBERG, JOHNSON and DUHE, Circuit Judges.
FACTS AND PROCEDURAL HISTORY
Appellants Earl Keith Lindell, Danny M. Loken, William E. Kinnear, and Charles Roy McIntosh were charged with others in a 35-count indictment for various crimes stemming from a marijuana importation scheme involving several loads of marijuana brought into the United States from 1982 to 1985. In July 1982, Lindell was planning a "controlled" airplane flight bringing drugs into this country in support of an ongoing drug investigation at the direction of the Drug Enforcement Administration ("DEA") and customs officer David Harrison. Prior to the flight, William Carter, an informant working for Harrison, was introduced to Lindell. The conspiracy was born when they agreed to set up a marijuana smuggling operation.
The following chronology summarizes the major events that the government alleged comprised the conspiracy:
October 1982: Lindell flies in the "control" load for the DEA. He and Carter keep eighty pounds of this marijuana for their own distribution. 1
March 1983: Lindell, Carter, and Harrison 2 team up for the importation of the second load from Mexico. Kinnear helps distribute this load. 3
June 1983: In order to plan future loads Lindell and Carter travel to Belize, Central America, and have discussions with two marijuana suppliers, Badner Hassan and Isaac Dyck. 4
June/July 1983: The third load is imported from Belize by Lindell, Carter, and Hassan. Loken, Lindell and Kinnear distribute this load. 5
November 1983: The fourth load is imported, and is distributed by Lindell, Loken, McDaniel. 6
March 1984: The fifth load is imported. Carter, Lindell, and Loken plan this load, and Kinnear helps distribute it. 7
October 1984: Carter travels to Belize to arrange another marijuana purchase from Badner Hassan and Isaac Dyck. After their meeting, Dyck called Carter to inform him that someone would be sent to collect money for next load.
December 1984: Dyck sends McIntosh to Beaumont, Texas, to collect the money owed for the impending load. While in Beaumont, he stays at the Best Western Motel. Carter spoke to McIntosh on several occasions and went to see him at the motel. The load arrived on December 3, 1984. 8 Carter was arrested leaving the airfield after marijuana was loaded onto his truck. After the arrest, McDaniel and William Paul Tinsley 9 went to the Best Western for discussions with McIntosh concerning the load and Carter's arrest.
At trial, the government's key witness was William Carter. After his arrest in December 1984 he entered into a plea agreement in exchange for his testimony against the defendants.
Appellants appeal their convictions on various grounds. Finding no error, we affirm.
Appellants contend that the indictment was faulty because it joined separate conspiracies into one. Fed.R.Crim.P. 8(b) permits joinder of defendants in the same indictment if the government alleges that they participated "in the same act or transactions constituting an offense or offenses." United States v. Acosta, 763 F.2d 671, 696 (5th Cir.) cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985).
A charge of conspiracy initially legitimizes joinder of all defendants. Schaffer v. United States, 362 U.S. 511, 514, 80 S.Ct. 945, 947, 4 L.Ed.2d 921 (1960). To determine whether an indictment charges separate conspiracies or a single conspiracy, we consider whether the alleged facts reveal a substantial identity of facts or participants. A single conspiracy can be found when the indictment adequately shows a singular conspiratorial objective, such as a large-scale narcotics transaction. United States v. Metz, 608 F.2d 147, 153 (5th Cir.1979), cert. denied, 449 U.S. 821, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980). The fact that an indictment does not charge each appellant with active participation in each phase of the conspiracy does not constitute misjoinder. "It is also not necessary that the indictment charge that an appellant 'knew all the participants or details of the conspiracy' as long as it alleges 'knowledge of the conspiracy's essential nature.' " United States v. Acosta, 763 F.2d at 696 (citing Metz, 608 F.2d at 153). "[W]here it is shown that a single 'key man' was involved in and directed illegal activities, while various combinations of other defendants exerted individual efforts toward a common goal, a finding of the existence of a single conspiracy is warranted." United States v. Elam, 678 F.2d 1234, 1246 (5th Cir.1982).
Here, count one of the indictment charged all defendants with knowingly conspiring to import marijuana, in violation of 21 U.S.C. Sec. 963, and in count two with knowingly conspiring to distribute and possess marijuana in violation of 21 U.S.C. Sec. 846. Although the overarching conspiracy involved several transactions over a 2 1/2 year period and not all the appellants were involved in all of the transactions, the overlap of the appellants' involvement in various transactions and Lindell and Carter's participation as "key men" supports the government's theory that there was a single overarching conspiracy. Joinder was appropriate.
Appellants also contend that the trial court erred by failing to grant any of their numerous severance motions pursuant to Fed.R.Crim.P. 14. Denial of a severance motion is reviewed under the abuse of discretion standard, and a party whose motion was denied can prevail on appeal only on a showing of specific and compelling prejudice, against which the district court was unable to provide protection (with, e.g None of the appellants in this case have met this heavy burden. In their briefs they fail to point to any specific instances of compelling prejudice from joinder, and a review of the record reveals that when testimony was not admissible against all defendants the trial court was careful to give a limiting instruction to minimize the possibility of "spillover effect."
limiting instructions) and then, only if the possible prejudice outweighs the public interest in the economy of judicial administration. United States v. Acosta, 763 F.2d at 697.
Additionally, acquittals on some counts as to all the defendants occurred, supporting an inference that the jury sorted the evidence and considered it separately as to the various counts and defendants. United States v. Acosta, 763 F.2d at 697.
Lindell and Loken contend that it was error to admit over objection evidence that they possessed and used cocaine during the pendency of the conspiracy. The standard of review is abuse of discretion. United States v. Vincent, 681 F.2d 462, 465 (6th Cir.1982).
Appellants' personal drug use is admissible under the two part test of United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc ), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). First, it must be determined that the evidence is relevant to an issue other than the defendant's character, and second, the evidence must possess probative value which is not substantially outweighed by its undue prejudice.
Knowledge is an essential element of each of the offenses charged. Appellants' cocaine use demonstrated their familiarity with illicit drugs and was therefore relevant on the question of knowledge, and evidence that Loken received cocaine as partial payment for his drug smuggling activities is also relevant to his intent or motive. This satisfies the first part of the Beechum test. United States v. Contreras, 602 F.2d 1237, 1240 (5th Cir.), cert. denied, 444 U.S. 971, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979).
The second part is also satisfied. Following an evidentiary hearing, the trial court found that the probative value of the cocaine use testimony was not substantially outweighed by its prejudicial effect. This ruling is not an abuse of discretion. Furthermore, danger of undue prejudice was sufficiently mitigated by the trial court's instruction to the jury to consider the evidence only to the extent that it bears on the defendants' knowledge, intent or motive to commit the acts charged in the indictment. Contreras, 602 F.2d at 1240.
Kinnear and Lindell contend that their Sixth Amendment right to confront Carter was violated because their attempts to explore the circumstances surrounding Carter's plea bargain agreement were limited by the trial court. However, a review of the record does not reveal any limitations placed on defense counsel during cross-examination of Carter about his plea bargain agreement. The argument is frivolous.
McIntosh contends that evidence of his prior conviction for importation of marijuana in February 1986 was improperly admitted, and that the trial court's findings concerning this evidence were insufficient. Since evidence of a prior conviction is extrinsic evidence, we must apply the Beechum probative...
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