U.S. v. Marquardt, 81-5056

• Decision Date: 17 January 1983
• Docket Number: No. 81-5056,81-5056
• Citation: 695 F.2d 1300
• Parties: 12 Fed. R. Evid. Serv. 470 UNITED STATES of America, Plaintiff-Appellee, v. Charles MARQUARDT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

695 F.2d 1300

12 Fed. R. Evid. Serv. 470

UNITED STATES of America, Plaintiff-Appellee, v. Charles MARQUARDT, Defendant-Appellant.

No. 81-5056.

United States Court of Appeals Eleventh Circuit.

Jan. 17, 1983.

Byron B. Mathews, Jr., Miami, Fla., for defendant-appellant.

John F. Peyton, Jr., Sonia E. O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, TJOFLAT and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

Charles Marquardt was convicted in the district court of conspiring knowingly and intentionally to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1976) and of knowingly and intentionally using a communication facility, i.e., a telephone, in the commission of a drug-related felony in violation of 21 U.S.C. Sec. 843(b) (1976). Marquardt raises four points on appeal of his convictions. We find no reversible error and, therefore, affirm the convictions.

Marquardt alleges first that the district court erred in denying his motion for a continuance so that counsel who had prepared his case and who was to try it, Dennis Schaefer, could be present during the selection of the jury. Instead, one of Schaefer's partners, Steven Dell, was present during the selection proceedings. Marquardt claims that this attorney was incompetent to select the jury. He argues that the trial court's decision to deny him a continuance forced him to proceed with incompetent counsel during voir dire.

The decision whether to grant a continuance is "committed to the deliberate discretion of the trial judge." Gandy v. Alabama, 569 F.2d 1318, 1322 (5th Cir.1978). The district court clearly did not abuse its discretion in this case. It thoughtfully and carefully decided that Dell was competent to proceed. In fact, Marquardt points to no instance during voir dire in which Dell performed inadequately or in which he was prejudiced by Dell's participation in the proceeding. Moreover, the court delayed the swearing in of the jury until Schaefer made his appearance the following day. This delay allowed Schaefer the opportunity to confer with Dell about the prospective jury and to object to any juror who might be excusable for cause. Schaefer made no such objection, however, and the jury was sworn. Marquardt's first claim accordingly fails. ¹

Marquardt next claims that the district court erred in denying his motion for a new trial based on the impropriety of the government's rebuttal to his closing argument. Marquardt's closing argument consisted in part of attacks on the credibility of the testimony of a government witness, Ava Lessnee Rodriguez, who had been named in the same indictment as he and who had entered into a plea agreement with the government, that the purpose of the conspiracy was to distribute cocaine. ² His closing argument consisted also of attempts to persuade the jury to infer from the evidence that the conspirators' purpose was not to distribute cocaine, but to pose as sellers of cocaine in order to "rip-off" the prospective buyer. The defense suggested that Rodriguez' guilty plea was consistent with there being no conspiracy to distribute cocaine: she had pled guilty to the telephone charge but not to the conspiracy charge. It stated that Rodriguez' testimony to the effect that the conspirators' purpose was to distribute cocaine showed simply that the government "proved that they can buy the testimony of a girl who lived with a drug dealer ...." 2d Supp. Record at 14.

In response to this attack, the prosecutor stated to the jury in rebuttal: "I ask you to consider one simple question in analyzing the credibility of Ava Lessnee Rodriguez, if there was no agreement to deliver cocaine, why did she plead guilty to anything? She couldn't be guilty to a telephone charge in furtherance of the conspiracy if there was none--" Id. at 20-21. At this point, the defense objected and moved for a mistrial. The court denied the motion and instructed the jury as follows: "[I]f any counsel misstate evidence, it is up to you to remember what the evidence was. The arguments made by counsel ... are designed to help you understand the evidence, and reach a conclusion, but they, in and of themselves, are not evidence, and you should receive them in that light." Id. at 21. ³

Despite this cautionary instruction, Marquardt argues that the prosecutor impermissibly requested the jury to infer his guilt from the guilty plea of Rodriguez. Viewed in light of his closing argument, it is apparent that the prosecutor was attempting merely to rebut attacks on Rodriguez' testimony. Also, he was responding to the defense's suggestion that Rodriguez refused to plead guilty to the conspiracy charge because there was no conspiracy to sell cocaine. The logical point for the government to bring out was that she did plead guilty to a charge of using a telephone in the commission of a drug-related felony, and why would she even do that if there was no conspiracy to sell cocaine. The defense opened the door wide to this argument, and, indeed, compelled the prosecutor to make it. Therefore, Marquardt's second claim is without merit.

Marquardt's third contention is that the trial court erred in admitting evidence of "other crimes" he allegedly committed. Specifically, Ava Lessnee Rodriguez testified that at one time she had seen Marquardt in the possession of cocaine and that at one time he had discussed with her his purchase of over a pound of cocaine. Marquardt argues that this testimony was inadmissible because it had only slight probative value and a great prejudicial effect on his case. The government counters that the testimony was admissible to prove Marquardt's intent to distribute cocaine under Fed.R.Evid. 404(b), and that the trial court was well within its discretion in determining that the prejudicial effect of the evidence did not substantially outweigh its probative value. We agree with the government's argument and therefore reject Marquardt's claim.

The test for determining the admissibility of other-crimes evidence was set forth in the en banc decision of United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979): "First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403." Id. at 911 (footnote omitted). In this case, the other-crimes evidence was admitted to prove Marquardt's intent to distribute cocaine. The defense had put such intent in issue by suggesting during its cross-examination of the government witness who had posed as the buyer in this scheme, Special Agent Everett Elledge of the Drug Enforcement Administration, that Marquardt's intent was not to distribute cocaine, but instead to "rip-off" Elledge by taking his money without giving him any cocaine. The testimony of Rodriguez that she had seen Marquardt in possession of cocaine and that he had discussed with her his purchase of a large quantity of cocaine is relevant to his intent to distribute cocaine in this case. Such testimony "tend[s] to make the existence of [Marquardt's intent] more probable ... than it would be without the [testimony]." Fed.R.Evid. 401. Thus, the first prong of the Beechum test is satisfied.

Marquardt apparently concedes that the testimony was relevant by acknowledging its slight probative value, but argues that the prejudicial effect of such evidence substantially outweighed its probative value, and, therefore, the second part of the Beechum test was not satisfied. We note that this matter is "within the sound discretion of the trial judge." Beechum, 582 F.2d at 915. It is apparent that the trial court was well within its discretion in concluding that the probity of this testimony was not substantially outweighed by its prejudicial effect. ⁴ Thus, Marquardt's third contention fails.

The final claim Marquardt presents is that the trial court erred in refusing to hold a pretrial hearing pursuant to United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), for the purpose of determining the admissibility of out-of-court statements of coconspirators. The government presented only two witnesses who might have related such statements. Thus, the trial court was well within its discretion in refusing to hold a James hearing, which would have been duplicative of the trial itself and would have "wasted the judicial resources James was designed...