U.S. v. Marshall, 74-3038

• Decision Date: 24 March 1976
• Docket Number: No. 74-3038,74-3038
• Citation: 532 F.2d 1279
• Parties: UNITED STATES of America, Appellee, v. Odell MARSHALL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1279

532 F.2d 1279

UNITED STATES of America, Appellee, v.Odell MARSHALL, Appellant.

No. 74-3038.

United States Court of Appeals, Ninth Circuit.

March 24, 1976.

Barry Tarlow (argued), Los Angeles, Cal., for appellant.

Darrell MacIntyre, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before BARNES, ELY and WRIGHT, Circuit Judges.

BARNES, Senior Circuit Judge:

The case presently before us is comparable in several respects, to that of United States v. Marshall, No. 74-2070, 526 F.2d 1349(9th Cir.1975), amended by order (2/10/76), although in other aspects it differs.In No. 74-2070, the appellantOdell Marshall was found guilty, as his former associates and co-defendants Harris, Strickland and Macias, had previously been, of, among other offenses, conspiracy to possess and distribute heroin.Co-defendant Tuminello was previously acquitted of that charge in the District Court.

In this case, the defendantsOdell Marshall and James Arthur Maxwell were found guilty of a lesser offense (21 U.S.C. § 844(a) ) included in one count of an original five count indictment, charging simple possession of a controlled substance, to wit, cocaine, after a jury was unable to agree on the greater offense originally charged "knowingly and intentionally possess(ing) with intent to distribute approximately 1,350 grams of cocaine" in violation of 21 U.S.C. § 841(a)(1)(Count Five C.T.p. 348).

We affirmed the conviction of co-defendantMaxwell, No. 74-3321(unpublished), decided June 25, 1975.His sole ground of appeal was based on the insufficiency of the evidence against him.Appellant Marshall raises that same issue by relying on his co-defendant's brief.We find no merit in that contention here just as we found none in Maxwell's appeal.

After hearing oral argument in this case, we ordered that the original submission of the case to the panel hearing Marshall's appeal be rescinded; to be resubmitted after the first Marshall case (No. 74-2070) was decided.This procedure was employed because two important issues raised by Marshall in No. 74-2070 were likewise raised in 74-3038, i. e., (1) the tax liens and levies, and (2) the introduction of polygraph test results.

I.The Law as to Tax Liens and Levies and The Introduction of Polygraph Evidence.

We are satisfied that the law as to these two issues was established by this Court's opinion in United States v. Marshall, No. 74-2070, 526 F.2d 1349(9th Cir.1975), as amended by Order of this Court, filed February 10, 1976, with a Denial of Rehearing.We approvingly cite that case as controlling law.See alsoUnited States v. Alexander, 526 F.2d 161(8th Cir.1975).

We turn to the other issues in this case by a recital of the facts:

II.Facts.

Marshall was arrested at Maxwell's house by Los Angeles Police Department Officers in January, 1974.Police had placed the home under surveillance after two informants had stated that "James Maxwell was dealing heroin and cocaine for Odell Marshall from that location."See Suppression Hearing Transcript 32.Police followed an automobile driven from that location and stopped and searched the driver.Marijuana was found in her purse.She was arrested and police returned to the Maxwell residence with her three children.The officers knocked on the door and identified themselves.

Hearing panicked activity inside, one officer (Niles) moved to a kitchen window and purportedly observed Marshall emptying a plastic bag of white substance into the garbage disposal.He also observed Maxwell run towards a bathroom with a mirror on which there was a mound of white substance.He then heard the toilet flush four times.Another officer stationed himself at the back door, heard persons running about, but did not see Maxwell carrying the mirror.He entered the house and observed and apprehended Maxwell leaving the bathroom.Inside the bathroom, the officer observed that the toilet was overflowing and found a plastic bag, broken mirror, and strainer.

Miniscule quantities of cocaine were found in the garbage disposal and on a matchbook and measuring spoon in the kitchen.

Appellants contended that the kitchen window had been closed and covered with curtains so that Officer Niles could not have observed the activities he reported.Marshall admitted, however, that he had panicked when he heard the police knocking, had seen a bag of something on a table, and had put it in the disposal based on the fear that he would be wrongfully arrested and convicted if it were found in his vicinity or possession.III.Motion to Sever at Suppression Hearing.

In arguing that the District Court erred in not granting a severance, Marshall largely relies on the ground that he was denied the use of exculpatory testimony from his co-defendants which allegedly would have been available to him were the co-defendants not tried with him.In examining Marshall's contention, we note that the controlling authority in this Circuit is the recently decided case of United States v. Campanale, 518 F.2d 352(9th Cir.1975), where we stated:

"The granting or denial of a severance under Rule 14, Fed.R.Crim.P., is a matter within the trial court's discretion and reversal is appropriate only if abuse of that discretion has been shown.(cases cited).

"The test is whether a joint trial was so prejudicial to a defendant as to require the exercise of the trial judge's discretion in only one way, that is, by ordering a separate trial.(cases cited).

"The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review.(authorities cited).The defendant must show more than the fact that a separate trial might offer him a better chance of acquittal.(case cited).

"The ultimate question is whether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct.(cases cited)."

Id. at 359.SeeUnited States v. Thomas, 453 F.2d 141, 144(9th Cir.1971), cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801(1972);United States v. Sherman, 430 F.2d 1402, 1407(9th Cir.1970), cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805(1971).

Applying the above principles to the facts before us, we hold that the district judge did not abuse his discretion in refusing to grant a severance.Here, despite Marshall's representations, his co-defendants did testify at trial.Hence, Marshall suffered no prejudice, and his argument is wholly without merit.

IV.Identity of Informants.

Marshall contends that his conviction must be reversed because the District Court refused to reveal the identities of informers who had information helpful to the defense, and denied his motions for discovery and an in camera hearing on the issue of informant percipiency.In determining whether the District Court ruled properly, we recognize that "the government's privilege to withhold an informer's identity must give way where his identity is 'relevant and helpful to the defense of the accused, or is essential to a fair determination' of his case."United States v. Kelly, 449 F.2d 329, 330(9th Cir.1971), quoting, Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639, 644-45(1957).However, "(m)ere speculation that the informer might possibly be of some assistance is not sufficient to overcome the public interest in the protection of the informer."Lannom v. United States, 381 F.2d 858, 861(9th Cir.1967).Our decisions have placed the burden of proof upon the defendant to show the need for disclosure.See, e. g., United States v. Marshall, No. 74-2070, 526 F.2d 1349, 1359(9th Cir.1975);United States v. Alvarez, 472 F.2d 111, 113(9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148(1973);United States v. Estrada, 441 F.2d 873, 879(9th Cir.1971);Gaylor v. United States, 426 F.2d 233, 234-35(9th Cir.1970).

Here, Marshall made no such showing for disclosure of the informers which would outweigh the government's interest in protecting them as sources of information.Marshall merely speculated that disclosure would be beneficial to his defense.Such speculation was not sufficient to require disclosure.Nor did the District Court abuse its discretion in denying Marshall's motions for discovery and an in camera hearing on the issue of informant percipiency.Accord, United States v. MarshallNo. 74-2070, 526 F.2d 1349, 1359(9th Cir.1975).Cf.United States v. Anderson, 509 F.2d 724, 729-30(9th Cir.), cert. denied, 420 U.S. 910, 95 S.Ct. 831, 42 L.Ed.2d 840(1975).

V.Use of Prior Felony Convictions for Impeachment Purposes.

Prior to testifying in his defense, Marshall requested the District Court to preclude the government from impeaching him by his prior felony convictions.The court denied his motion.On appeal, Marshall contends that the court's ruling was an abuse of discretion and prejudicial error.

The law of this Circuit, at the time of Marshall's trial, was well summarized in our decision in United States v. Villegas, 487 F.2d 882, 883(9th Cir.1973), where we stated: "(T)his court has shown no disposition to abandon its long-standing rule that proof of any prior felony conviction may be given by the adversary to impeach any witness, including a defendant who elects to testify in a criminal trial."¹SeeMcGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 147128 L.Ed.2d 711, 730-31(1971);Burg v. United States, 406 F.2d 235, 236-37(9th Cir.1969).

Hence, under the law of this Circuit at the time of Marshall's trial, the admission of his prior felony convictions for impeachment purposes was not error.

VI.Use of Prior Heroin Conviction to Prove Knowledge, Intent, and Motive in a Cocaine Case.

At trial, Marshall's...