U.S. v. Natanel, No. 89-1953

• Decision Date: 04 April 1991
• Docket Number: No. 89-1953
• Citation: 938 F.2d 302
• Parties: UNITED STATES of America, Appellee, v. Efraim NATANEL a/k/a Efriam Natanel, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 302

938 F.2d 302

UNITED STATES of America, Appellee, v. Efraim NATANEL a/k/a Efriam Natanel, Defendant, Appellant.

No. 89-1953.

United States Court of Appeals First Circuit.

Heard April 4, 1991.

Decided July 9, 1991.

Francis K. Morris, with whom Morris & Howard, was on brief, Framingham, Mass., for defendant, appellant.

Frank J. Marine, Atty., U.S. Dept. of Justice, Washington, D.C., with whom Wayne A. Budd, U.S. Atty., and Jonathan Chiel and Stephen P. Heymann, Asst. U.S. Attys., were on brief, Boston, Mass., for the U.S.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Efraim Natanel, sometimes described in the record as Efriam Natanel, having dodged several of the government's legal bullets, was convicted on the last remaining count of a multi-count indictment. Natanel labors mightily in an effort to show that his conviction was unlawful. He does not succeed.

I. BACKGROUND

Fourteen persons, Natanel included, were indicted by a federal grand jury for a variety of drug-related offenses. In final form, the indictment contained twenty-seven counts, only four of which involved Natanel. Count 2 alleged that Natanel and eleven others (including several supposed members of an earlier conspiracy charged in count 1, see infra ), conspired to possess and distribute cocaine from March to April of 1988 in violation of 21 U.S.C. Sec. 846. Count 18 charged Natanel with distributing more than five hundred grams of cocaine to one Uri Ben'Hanan in May 1987 in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)

(ii)(II) and 18 U.S.C. Sec. 2. Counts 22 and 23 charged Natanel with unlawful use of the telephone during the life of the count 2 conspiracy in violation of 21 U.S.C. Sec. 843(b).

To put matters into perspective, we limn the other charges contained in the indictment. Count 1 alleged that six people, not including Natanel, collogued to possess and distribute cocaine. The conspiracy was said to begin on or before August 1986 and to end in or about March 1988. Counts 3 through 16 charged sundry persons, not including Natanel, with substantive counts of possession with intent to distribute cocaine on various occasions in violation of essentially the same statutes listed in count 18. Count 17 charged Shmuel David (who was also named in both conspiracy counts and in several specific-event counts) with engaging in a continuing criminal enterprise during 1986-1988 in violation of 21 U.S.C. Sec. 848. Counts 19-21 and counts 24-27 charged various persons other than Natanel with communications offenses in contravention of 21 U.S.C. Sec. 843(b).

Natanel and five other defendants were tried together. ¹ Early on, Natanel moved for a severance in respect to count 18. His motion was denied. Undaunted, he persisted in asserting his position. His perseverance finally paid a small dividend: after the evidence was in, the judge proposed that counsel separately argue, and the jury separately ponder, count 18. Natanel acquiesced, though making clear that he did not feel this modicum of relief was an adequate remedy for what he still perceived to be a prejudicial misjoinder. The government also acquiesced.

Once the several attorneys had summed up, the judge charged on all counts except count 18. Following jury deliberations, Natanel was acquitted on counts 2, 22, and 23. The trial was recessed at that juncture. The next day, the jurors resumed their deliberations and found Natanel guilty on count 18. He was subsequently sentenced to six years in prison and fined $20,000.

On appeal, Natanel raises a salmagundi of assigned errors. We reject them all, pausing to comment only upon (1) the allegations of prejudicial misjoinder, (2) two reasons of appeal stemming from the separate submission of count 18 to the jury without closing argumentation or supplemental instructions, (3) the sufficiency of the evidence concerning drug quantity, and (4) the district court's denial of a motion for new trial based on newly discovered evidence.

II. JOINDER AND SEVERANCE

Natanel argues to us, as he repeatedly argued below, that count 18 was improvidently joined and should have been severed. His thesis implicates Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. We discuss the two rules sequentially.

A. Joinder.

In a case involving multiple defendants, Rule 8(b) governs joinder of defendants and offenses. ² Under the rule, the government may charge serial transactions, and indict persons jointly, on the basis of what it reasonably anticipates being able to prove against the defendants, collectively, measured as of the time the indictment is handed up. See United States v. Boylan, 898 F.2d 230, 245 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. Martinez, 479 F.2d 824, 828 (1st Cir.1973). In the ordinary case, a rational basis for joinder of multiple counts should be discernible from the face of the indictment. See Boylan, 898 F.2d at 245; United States v. Arruda, 715 F.2d 671, 678 (1st Cir.1983). A defendant challenging such joinder must carry the devoir of persuading the trial court that a misjoinder has taken place. See United States v. Luna, 585 F.2d 1, 4 (1st Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978). The remedy for misjoinder is severance. See United States v. Williams, 711 F.2d 748, 750 (6th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983).

Here, the government's theory was that the entire indictment, including count 18, constituted a single "series of acts or transactions" within the ambit of Rule 8(b). More specifically, the prosecution contended that codefendant David's continuing criminal enterprise (CCE), charged in count 17, adequately linked all the other counts together. The defense, relying heavily on the fact that the incident undergirding count 18 took place almost a year before the count 2 conspiracy allegedly began, thought differently: in its view, count 18 charged Natanel with an isolated sale of cocaine, unrelated to the other activities set out in the indictment, and thus, not reasonably classifiable as part of a series. We afford the trial court's resolution of this issue plenary review see, e.g., United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 58-59 (1st Cir.1991), mindful that mere similarity of acts, without more, cannot justify joinder. See Boylan, 898 F.2d at 245; King v. United States, 355 F.2d 700, 703 (1st Cir.1966). Should we find both misjoinder and actual prejudice, we must vacate the conviction. See United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986).

In this instance, joinder was proper. We think that a CCE count can be a sufficient link between multiple codefendants and multiple offenses to warrant joinder when the CCE ties in the remaining counts in the indictment. Accord United States v. Porter, 821 F.2d 968, 971-72 (4th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988). A CCE count is, after all, strikingly similar to a conspiracy count, cf. United States v. Rivera-Martinez, 931 F.2d 148, 152 (1st Cir.1991) (where 21 U.S.C. Sec. 846 conspiracy is used to show a CCE, cumulative punishment for both conspiracy and CCE charges constitutes double jeopardy), and it is settled that a conspiracy count can forge the needed linkage. See Arruda, 715 F.2d at 678; cf. Boylan, 898 F.2d at 245 (joinder deemed appropriate where RICO count "embrace[s] all of the acts or transactions upon which the other ... counts [are] based"). While the tie would perhaps be more easily visualized in this case if the substantive act charged in count 18 had been listed in the indictment as a predicate for the CCE count, we do not believe such an explicit cross-reference is required. Cf., e.g., MacDonald & Watson, 933 F.2d at 60 (joinder appropriate, even absent allegation of a conspiracy, "where a corporation and its employees are alleged to have committed the same illegal acts involving the same corporate site on several occasions"); Pacelli v. United States, 588 F.2d 360, 367 (2d Cir.1978) (joinder can be supported by conspiratorial activity even if the conspiracy is not charged in the indictment), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); United States v. Scott, 413 F.2d 932, 934 (7th Cir.1969) (similar), cert. denied, 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970).

Porter is our touchstone. There, the Fourth Circuit held that separate acts constituting separate offenses could be joined in a single indictment where "[a]ll those indicted were alleged to have participated in a drug importation and distribution scheme run by [one of the codefendants, charged with running a CCE]." Porter, 821 F.2d at 971. This is precisely the situation at hand. The indictment, through the count 2 conspiracy and the telephone counts, tied Natanel sufficiently to David's drug operation to allow joinder. Contrary to the thrust of appellant's asseveration, it is not a necessary precondition to joinder that a defendant be involved in each offense charged in an indictment; joinder is proper as long as there is some common activity binding the objecting defendant with all the other indictees and that common activity encompasses all the charged offenses. Accord United States v. Kragness, 830 F.2d 842, 861 (8th Cir.1987). In the matter at bar, David's CCE, described in the indictment as operative from at least August 1986 to April 1988, provided the mucilage which glued the indictment together.

We know that, at times, the evidence adduced at trial can validate a conclusion of relatedness, serving as an ex post assurance that joinder was a step founded on a reasonable, good faith basis in fact and not the result of prosecutorial bad faith. See Boylan, 898 F.2d at 245. So here, concerning the joinder of count 18 with the other charges. From early 1986 to the middle of 1987, one Jackie Amouyal...