U.S. v. McGlory, Nos. 90-3604

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBECKER, HUTCHINSON and HIGGINBOTHAM; HUTCHINSON; BECKER
Parties35 Fed. R. Evid. Serv. 1124 UNITED STATES of America v. Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a Chubbs, Roland Slade, Norma Jean Pruitt, Vira Kulkivit, a/k/a Wee, Yongyos Thauthong, Willie J. Purdom and Charles Cotton. Vira Kulkovit, Appellant. UNITED STATES of America v. Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a Chubbs, Roland Slade, Norma Jean Pruitt, Vira Kulkivit, a/k/a Wee, Yongyos Thauthong, Willie J. Purdom and Charles Cotton. Melvin Hauser, Appellant. UNITED STATES of America v. Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a Chubbs, Roland Slade, Norma Jean Pruitt, Vira Kulkivit, a/k/a Wee, Yongyos Thauthong, Willie J. Purdom and Charles Cotton. Reginald D. McGlory, Appellant. UNITED STATES of America v. Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a Chubbs, Roland Slade, Norma Jean Pruitt, Vira Kulkivit, a/k/a Wee, Yongyos Thauthong, Willie J. Purdom and Charles Cotton. Charles Cotton, Appellant.
Decision Date19 June 1992
Docket NumberNos. 90-3604,90-3755,91-3088 and 91-3194

Page 309

968 F.2d 309
35 Fed. R. Evid. Serv. 1124
UNITED STATES of America
v.
Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a
Chubbs, Roland Slade, Norma Jean Pruitt, Vira
Kulkivit, a/k/a Wee, Yongyos Thauthong,
Willie J. Purdom and Charles Cotton.
Vira Kulkovit, Appellant.
UNITED STATES of America
v.
Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a
Chubbs, Roland Slade, Norma Jean Pruitt, Vira
Kulkivit, a/k/a Wee, Yongyos Thauthong,
Willie J. Purdom and Charles Cotton.
Melvin Hauser, Appellant.
UNITED STATES of America
v.
Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a
Chubbs, Roland Slade, Norma Jean Pruitt, Vira
Kulkivit, a/k/a Wee, Yongyos Thauthong,
Willie J. Purdom and Charles Cotton.
Reginald D. McGlory, Appellant.
UNITED STATES of America
v.
Reginald D. McGLORY, Melvin Hauser, Norman Gomez, a/k/a
Chubbs, Roland Slade, Norma Jean Pruitt, Vira
Kulkivit, a/k/a Wee, Yongyos Thauthong,
Willie J. Purdom and Charles Cotton.
Charles Cotton, Appellant.
Nos. 90-3604, 90-3755, 91-3088 and 91-3194.
United States Court of Appeals,
Third Circuit.
Argued Sept. 30, 1991.
Decided June 19, 1992.

Page 313

Louise Porac (Argued), Homestead, Pa., for appellant Vira Kulkovit.

Ellen M. Viakley, and John L. Doherty (Argued), Manifesto Doherty & Donahoe,

Page 314

P.C., Pittsburgh, Pa., for appellant Melvin Hauser.

Thomas R. Ceraso (Argued), Ceraso & Tarosky, Greensburg, Pa., for appellant Reginald D. McGlory.

Larry P. Gaitens (Argued), Gaitens, Tucceri & Nicholas, P.C., Pittsburgh, Pa., for appellant Charles Cotton.

Thomas W. Corbett, Jr., U.S. Atty., Constance M. Bowden (Argued), Asst. U.S. Atty., Paul J. Brysh, Office of U.S. Atty., Pittsburgh, Pa., for appellee.

BECKER, HUTCHINSON and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

TABLE OF CONTENTS

Page
                 I. THE PARTIES AND THE CHARGES .......................................... 314
                 II. THE ISSUES ON APPEAL ................................................. 315
                III. JURISDICTION ......................................................... 315
                 IV. FACTS ................................................................ 315
                 V. DISCUSSION ........................................................... 321
                 A. The Sufficiency of the Evidence ................................. 321
                 1. The Evidence Against Hauser ................................ 322
                 2. The Evidence Against Cotton ................................ 326
                 3. The Evidence Against Kulkovit .............................. 327
                 B. Challenges to the Admission of Notes Seized From McGlory's
                 Residences and his Trash ...................................... 328
                 1. Authenticity ............................................... 328
                 2. Hearsay .................................................... 331
                 3. Coconspirator Exception to the Hearsay Rule ................ 333
                 C. Cotton's Challenge to the Admission of Butler's Testimony ....... 338
                 D. Motions to Sever ................................................ 339
                 E. Cotton's Motion to Suppress the Evidence Seized From his Vehicle 341
                 F. Hauser's and Kulkovit's Motions for a Mistrial .................. 343
                 G. Kulkovit's Challenge to the Government's Affidavit in Support of
                 Orders Authorizing Electronic Surveillance .................... 345
                 H. Kulkovit's Challenge to the Admission of Expert Testimony ....... 345
                 I. Sentencing Challenges by McGlory and Kulkovit ................... 346
                 1. Challenge to the Guidelines Calculation .................... 347
                 2. McGlory's Challenge to the Status of His Two Prior Felony
                 Convictions .............................................. 348
                 VI. CONCLUSION ........................................................... 351
                ----------
                

I.

THE PARTIES AND THE CHARGES

In these four consolidated appeals, Reginald McGlory (McGlory), Melvin Hauser (Hauser), Charles Cotton (Cotton) and Vira Kulkovit (Kulkovit) seek to overturn their drug offense convictions on various grounds. Following a jury trial in the United States District Court for the Western District of Pennsylvania, McGlory, Hauser, Cotton and Kulkovit were convicted of conspiring to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C.A. § 846 (West Supp.1991) (Count One). McGlory, Hauser and Cotton were each convicted of possession of heroin with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1981 & Supp.1991) (Counts Three, Four, Nine and Ten). Cotton was also convicted of possessing a mixture of heroin and cocaine with intent to distribute (Count Two). McGlory was convicted of being a felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1) (West Supp.1991) (Count Thirteen) and of using a firearm during drug trafficking in violation of 18 U.S.C.A. § 924(c)(1) (West Supp.1991)

Page 315

(Count Fourteen). McGlory and Kulkovit were also each convicted of laundering drug proceeds in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp.1991) and 18 U.S.C.A. § 2 (West 1969) (Counts Fifteen through Twenty-Four).

The district court sentenced Kulkovit to a term of imprisonment of 360 months at Count One (conspiracy) and 240 months at Counts Fifteen through Twenty-Four (money laundering) to be served concurrently with each other and with the sentence imposed at Count One. Hauser received concurrent sentences of 300 months at Count One (conspiracy) and 240 months at both Counts Nine and Ten (possession). Cotton received concurrent sentences of 240 months on each count against him. McGlory was sentenced to life imprisonment at Count One (conspiracy) under 21 U.S.C.A. § 841(b)(1)(A)(i) (West Supp.1991) because he had two prior convictions for a felony drug offense. At Count Fourteen (felon in possession of firearms), he received sixty months to be served consecutively with his sentence at Count One. At Counts Four (possession of heroin), Thirteen (use of firearm during drug trafficking) and Fifteen to Twenty-Four (money laundering), he received sentences concurrent with the one at Count One. We will affirm.

II.

THE ISSUES ON APPEAL

Hauser, Cotton and Kulkovit claim that there is insufficient evidence to sustain their conspiracy convictions. All four contest the admissibility of undated notes and scraps of paper seized from McGlory's trash and his residences. McGlory, Cotton and Kulkovit argue the district court abused its discretion in denying them relief from prejudicial joinder. Hauser and Kulkovit argue the district court should have granted a mistrial when a government witness invoked the fifth amendment thereby precluding cross-examination. Kulkovit and McGlory argue the district court erred in considering statements at sentencing of the same government witness who was not subject to cross-examination at trial.

Independent of each other, Cotton, Kulkovit and McGlory make additional arguments. Cotton argues that evidence implicating him in crimes not charged should not have been admitted and that evidence improperly seized from his vehicle should have been suppressed. Kulkovit argues there was not substantial evidence sufficient to support his conviction for money laundering and that the affidavit the government filed in support of orders authorizing electronic surveillance did not sufficiently allege the need for electronic surveillance. He also says that the district court abused its discretion both in admitting the testimony of a Drug Enforcement Administration (DEA) agent concerning heroin coming from Thailand and the opinions of a handwriting expert about his signature on wire transfer forms. Finally, McGlory argues that his life sentence was not mandated because he only had one, rather than two, predicate prior felonies.

III.

JURISDICTION

The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). We have jurisdiction over the district court's final orders of conviction and sentence under 28 U.S.C.A. § 1291 (West Supp.1991). Because appellants raise a multitude of issues, we will set out the standard for review of each issue at or near the beginning of our analysis relating to each issue.

IV.

FACTS

The issues concerning sufficiency of the evidence the various appellants raise are close and difficult. Therefore, we will review the evidence in detail. After two years of investigation by agents of the DEA and the Pittsburgh Police, including personal observation in Pittsburgh, Los Angeles and Thailand, as well as electronic surveillance and searches of McGlory's garbage in Pittsburgh, the government concluded it had pieced together a major heroin

Page 316

conspiracy involving defendants McGlory, Kulkovit, Cotton, Hauser, Norman Gomez (Gomez) 1 and others.

The government's evidence showed the following chronology of events. On July 14, 1986 and August 28, 1986, McGlory, using the name Timothy Reed, sent $2,000.00 via Western Union from the CheckMart in Pittsburgh to Vira Kulkovit in Los Angeles. On June 16, 1987, McGlory again purchased a money order for $2,000.00 in the name of Timothy Reed and sent it to Kulkovit. Upon his arrest, McGlory acknowledged that he had been using Timothy Reed as an alias. A driver's license with the alias Timothy Reed had McGlory's picture on it. A copy of a birth certificate for Timothy Reed and a letter setting out a social security number in the name of Timothy Reed were recovered from McGlory's trash in May 1989.

McGlory, again using the name Reed, made frequent trips to Los Angeles in 1987. 2 Hotel telephone records reveal that while there he made calls to numbers listed in his personal phone book for Kulkovit.

During the summer of 1987, Rolland Slade (Slade) began purchasing heroin from McGlory for redistribution. Slade testified concerning several purchases from McGlory. Also in the summer of 1987, Charles Butler (Butler) sold a kilogram of cocaine to Cotton. In succeeding months until Butler's arrest in September 1988, Cotton bought approximately five to ten ounces of cocaine...

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322 practice notes
  • United States v. Baley, CRIMINAL NO. 20-0124
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 2020
    ...believe that person has committed a felony." United States v. Burton , 288 F.3d 91, 98 (3d Cir. 2002) (quoting United States v. McGlory , 968 F.2d 309, 342 (3d Cir. 1992) ); see also United States v. Franklin , 728 F.2d 994, 999 (8th Cir. 1984) ("Intent to distribute a controlled substance ......
  • United States v. Bailey, No. 15-2128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 18, 2016
    ...other grounds by United States v. Price , 13 F.3d 711, 727 (3d Cir. 1994) ).9 Gibbs , 190 F.3d at 197 (citing United States v. McGlory , 968 F.2d 309, 321 (3d Cir. 1992) ).10 United States v. Caraballo–Rodriguez , 726 F.3d 418, 431 (3d Cir. 2013) (en banc) (alteration in original) (quoting ......
  • Kirk v. Raymark Industries, Inc., Nos. 94-1745
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 27, 1995
    ...of hearsay evidence implicates the application of a legally set standard, our review is plenary. Id.; see also United States v. McGlory, 968 F.2d 309, 332 (3d Owens-Corning argues that the district court erred in allowing the jury to hear this evidence in light of the fact that it was hears......
  • U.S. v. Amirnazmi, No. 10–1198.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 13, 2011
    ...the parties that Amirnazmi would be willing to provide goods and services in violation of the embargo. See United States v. McGlory, 968 F.2d 309, 326 (3d Cir.1992) (concluding that a reasonable jury could infer from the [645 F.3d 594] totality of the evidence “that the activities of the pa......
  • Request a trial to view additional results
322 cases
  • United States v. Baley, CRIMINAL NO. 20-0124
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 2020
    ...believe that person has committed a felony." United States v. Burton , 288 F.3d 91, 98 (3d Cir. 2002) (quoting United States v. McGlory , 968 F.2d 309, 342 (3d Cir. 1992) ); see also United States v. Franklin , 728 F.2d 994, 999 (8th Cir. 1984) ("Intent to distribute a controlled substance ......
  • United States v. Bailey, No. 15-2128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 18, 2016
    ...other grounds by United States v. Price , 13 F.3d 711, 727 (3d Cir. 1994) ).9 Gibbs , 190 F.3d at 197 (citing United States v. McGlory , 968 F.2d 309, 321 (3d Cir. 1992) ).10 United States v. Caraballo–Rodriguez , 726 F.3d 418, 431 (3d Cir. 2013) (en banc) (alteration in original) (quoting ......
  • Kirk v. Raymark Industries, Inc., Nos. 94-1745
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 27, 1995
    ...of hearsay evidence implicates the application of a legally set standard, our review is plenary. Id.; see also United States v. McGlory, 968 F.2d 309, 332 (3d Owens-Corning argues that the district court erred in allowing the jury to hear this evidence in light of the fact that it was hears......
  • U.S. v. Amirnazmi, No. 10–1198.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 13, 2011
    ...the parties that Amirnazmi would be willing to provide goods and services in violation of the embargo. See United States v. McGlory, 968 F.2d 309, 326 (3d Cir.1992) (concluding that a reasonable jury could infer from the [645 F.3d 594] totality of the evidence “that the activities of the pa......
  • Request a trial to view additional results

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