U.S. v. Macker, 78-5316

• Citation: 608 F.2d 223
• Decision Date: 14 December 1979
• Docket Number: No. 78-5316,78-5316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe MACKER and Walter Flansburg, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 223

608 F.2d 223

UNITED STATES of America, Plaintiff-Appellee, v. Joe MACKER and Walter Flansburg, Defendants-Appellants.

No. 78-5316.

United States Court of Appeals, Fifth Circuit.

Dec. 14, 1979.

Rehearing Denied Jan. 14, 1980.

Donald L. Ferguson, Miami, Fla., for Macker.

Thomas F. Almon, Miami, Fla., for Flansburg.

Michael P. Sullivan, Stephen B. Gillman, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GEWIN, AINSWORTH and REAVLEY, Circuit Judges.

AINSWORTH, Circuit Judge:

In this narcotics prosecution defendants-appellants Joe Macker and Walter Flansburg, along with codefendants Howard White and Robert Anthony Mineo, were charged in a six-count indictment filed in the United States District Court for the Southern District of Florida as follows: Count I charged all four defendants with conspiracy to distribute and possess cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; Counts II and III charged Macker and White with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count IV charged Macker, Flansburg and Mineo with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count V charged Macker and Flansburg with distribution of cocaine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2; Count VI charged Macker with unlawful possession and carriage of a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c). During trial appellant Macker moved to dismiss Count VI. The motion was unopposed and granted, and the .38 caliber revolver found on Macker's person at the time of his arrest was not admitted into evidence.

Appellants Macker and Flansburg were tried jointly before a jury. During the course of the proceedings both defendants moved for a mistrial based on the Government's references to the gun during its case in chief. These motions were denied as were the defendants' motions for judgments of acquittal at the close of the Government's case and at the close of all of the evidence. Macker again moved for a mistrial following Flansburg's closing argument asserting prejudice as a result of alleged indirect references by Flansburg's counsel of Macker's failure to testify. The motion was denied. Macker was convicted on all five counts. Flansburg was found guilty of conspiracy to distribute and possess cocaine as charged in Count I and was acquitted of distribution of cocaine as charged in Counts IV and V. Both defendants have appealed.

Both appellants contend on appeal that the trial court committed reversible error in denying their motions for a mistrial based on the Government's references to the weapon during trial. Appellant Macker also argues that his motion for a mistrial should have been granted because of alleged prejudicial statements of Flansburg's counsel during closing argument, which, he contends, indirectly referred to Macker's failure to testify. Appellant Flansburg additionally contends that the Government produced insufficient evidence to support his conviction of conspiracy to possess with intent to distribute cocaine; also that the evidence showed the existence of multiple conspiracies, rather than a single conspiracy as charged in the indictment. For reasons below, we reject appellants' contentions and affirm their convictions.

Viewing the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the facts indicate that appellant Macker conspired with appellant Flansburg and others to sell various quantities of cocaine to Drug Enforcement Administration (DEA) Agent Richard A. Fiano. These sales took place after DEA confidential informant Marjorie Grinstead arranged telephone conversations and an eventual meeting between Agent Fiano and Macker. According to the testimony of Agent Fiano, on June 14, 1977, Fiano spoke to Macker on the telephone and negotiated the purchase of three ounces of cocaine. The following day Fiano and Grinstead went to Macker's residence to complete the first purchase. Arriving at approximately 1:40 p. m., they were admitted into the house by Robert McCall and eventually escorted into a room where they were introduced to Macker and codefendant Howard White. Laying on a desk in the room near Macker was a clear plastic bag containing white powder, which was later tested positively for cocaine, and next to it was a .38 caliber blue-steel revolver. Fiano and White weighed the bag on the desk for approximately 37 grams for which Fiano paid Macker $1,875. At this time Fiano and Macker discussed the purchase of two and one-half additional ounces of cocaine at a price of $1,450 an ounce.

Later that day Fiano had a telephone conversation with Macker and returned to the latter's house. As he was waiting inside, White arrived carrying a brown paper bag containing another clear plastic bag of white powder, which also tested positively for cocaine. Macker showed them into another room where Fiano paid him $2,900 for the bag of cocaine. They then discussed a third purchase of one pound of cocaine.

On June 20, 1977, Fiano once again spoke to Macker on the telephone concerning their third cocaine deal. It was not until July 12, however, that the sale actually took place. That evening at approximately 9 p. m. Fiano arrived at Macker's house. A few minutes later appellant Walter Flansburg arrived. Fiano then followed Flansburg to Macker's office. Macker met them at the door and escorted them inside where Fiano was introduced to codefendant Robert Mineo. On the desk top was a clear plastic bag containing a white substance. Fiano stated he had to go to his car to get his field test kit in order to test the cocaine, so he and Macker walked to the car to retrieve the kit. After returning Fiano began to test the white substance. Throughout this process Flansburg questioned Fiano concerning the testing procedure until instructed by Macker to leave Fiano alone. Flansburg then left the room, but was told by Macker to return so as not to attract attention if a police "radio car" passed. Flansburg reentered the room, but was promptly sent by Macker to purchase some Clorox which Fiano had requested to complete his testing. Flansburg returned with the Clorox and Fiano performed a test on the white powder which was positive for cocaine. Fiano then purchased the cocaine for $7,000. Prior to departing, Fiano discussed with Macker the possibility of buying pound quantities of cocaine. Mineo informed him that the price would be.$19,000-$20,000. As Fiano was leaving, he observed Flansburg wipe up some cocaine residue from the table with his finger and place it to his nose and snort it.

Between July 28 and August 4, Agent Fiano had several telephone conversations with Macker, many of which were tape recorded and played to the jury. On August 4, Fiano met Macker at his residence. Flansburg was present when he arrived. Macker and Fiano went outside to discuss the purchase of 10-11 pounds of cocaine. Fiano left after agreeing to be in touch with Macker later. Several telephone calls were placed by Fiano to Macker between August 5 and August 11 concerning the deal.

On August 11, 1977, Fiano went to Macker's residence but was told to leave and call later since Macker's "people" had not arrived. After speaking to Macker on the telephone, Fiano returned to Macker's house and was escorted by Macker into the room where the earlier transactions had taken place. Flansburg was present at this time. Macker produced a white box with the name "Jordan Marsh" printed on it, containing 11 plastic bags, each filled with a white powder. Fiano stated he wanted more than 11 bags, so after Macker placed a telephone call, plans were made for Fiano to return the next day to make the purchase.

Fiano returned to Macker's residence on August 12. Again Flansburg was present. Macker told Flansburg to go into the drawer and get the "Jordan Marsh" box. Flansburg did so and handed it to Macker, who placed it on the desk and opened it. It contained 11 clear plastic bags of a white substance. Fiano then told Macker he had to go to his car to get the money and his test kit. Fiano walked outside and alerted other DEA surveillance agents who returned with Fiano and placed Macker under arrest. At this time Fiano took a .38 caliber Colt revolver from inside Macker's waistband. Flansburg was also arrested outside of the house on the sidewalk.

As noted earlier, at the close of the Government's case, Count VI of the indictment charging Macker with unlawful possession of a firearm was dismissed and the gun was held inadmissible. Following dismissal of the charge, the court instructed the jury to disregard any references to the weapon and advised them that the Government had dismissed the count. Earlier in the trial appellant Macker had objected to the Government's first reference to the gun and the objection was sustained. The court at that time instructed the jury to disregard any references made to the weapon. Neither defendant objected to any other testimony regarding the gun.

Macker now contends that the trial court erred in denying his motion for a mistrial based on references to the gun. In response to this argument we note that the fact that the charge was later dismissed does not in itself make the Government's earlier references to the gun improper. Although Florida law does not require a permit to carry a firearm in one's own home, Fla.Stat.Ann. § 790.25(3)(n), it is clearly illegal in that state as well as under federal law to carry a concealed firearm during an unlawful narcotics sale. United States v. Bower, 5 Cir., 575 F.2d 499, 502, Cert. denied, 439 U.S. 983, 99 S.Ct. 572, 58 L.Ed.2d 654 (1978); See Fla.Stat.Ann. § 790.07(2); 18 U.S.C. § 924(c)(2). Therefore, there was no error committed in the court's denial of Macker's motions for a mistrial,...