U.S. v. Neal

• Decision Date: 05 November 1982
• Docket Number: No. 80-2041,80-2041
• Citation: 692 F.2d 1296
• Parties: 11 Fed. R. Evid. Serv. 1603 UNITED STATES of America, Plaintiff-Appellee, v. Joy Jimmy NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1296

692 F.2d 1296

11 Fed. R. Evid. Serv. 1603

UNITED STATES of America, Plaintiff-Appellee, v. Joy Jimmy NEAL, Defendant-Appellant.

No. 80-2041.

United States Court of Appeals Tenth Circuit.

Nov. 5, 1982.

Danny K. Shadid, Oklahoma City, Okl. (Paul Ferguson, Inc., Edmond, Okl., was also on the brief), for defendant-appellant.

John R. Osgood, Asst. U.S. Atty., Oklahoma City, Okl. (Larry D. Patton, U.S. Atty., Oklahoma City, Okl., was also on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a direct appeal by defendant-appellant Joy Jimmy Neal from his conviction on each count of a three-count indictment charging him with using extortionate means to collect an extension of credit to one Joe Curtis Baker in violation of 18 U.S.C. Sec. 894 (Count I); possessing an unregistered firearm defined as a destructive device, namely a one-gallon plastic jug, flammable liquid and rag wick, in violation of 26 U.S.C. Sec. 5861(d) (Count II); and with the distribution of approximately eight ounces of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (Count III). Neal was sentenced to concurrent terms of ten years' imprisonment on each count.

For reversal, defendant Neal asserts claims that (1) Count I of the indictment was fatally defective for its lack of specificity; (2) Count II was defective in that it failed to charge that the destructive device was designed for use as a weapon; (3) the trial court erred by refusing to sever the various counts and by refusing to order the Government to elect the counts on which it intended to proceed; (4) the offense alleged in Count II is a lesser included offense of that alleged in Count I, resulting in multiple punishments for the same offense in violation of the Double Jeopardy Clause; (5) defendant was denied his right to a fair trial due to the tainting of the jury by one juror's misconduct; and (6) such errors, combined with the insufficiency of the evidence as to all counts, improper admission of physical evidence, improper admission of testimony of other crimes, and the allowance of an in-court identification which was tainted by an impermissibly suggestive pretrial identification, when cumulated, deprived defendant of a fair trial.

I

Viewing all the evidence, direct and circumstantial, together with all reasonable inferences therefrom, in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts.

Government witness Joe Curtis Baker testified that he met Neal in October of 1978 while Neal was involved in the cattle business in Belize. Baker was also involved in the cattle business and in late October or early November he flew with Neal to Belize where Baker met Robert Boles, Neal's business partner. Subsequent to this trip Neal and Baker on numerous occasions discussed the possibility of selling cocaine. (IV R. 101).

Baker testified that Neal told him that Boles was a source of supply for cocaine and that Neal wanted to know if Baker could distribute cocaine once purchased. (IV R. 103). Baker told Neal that he did have a source of distribution and the two entered into an agreement to purchase and distribute cocaine whereby Baker was to transport, distribute, and partially finance the purchase while Neal was to provide money and receive a percentage of the profits for his investment and for introducing Baker to Boles. (IV R. 105).

The money was secured and Baker arranged for a private plane to fly to Belize to pick up two to four kilos of cocaine. Subsequently, Baker and a pilot flew the plane from Abilene, Texas, to Belize where it was loaded with 600 pounds of marijuana rather than the expected two to four kilos of cocaine. (IV R. 108, 198). Neal was not at the Belize airport when the pickup occurred. Baker and the pilot then returned to Abilene where the plane was unloaded and one half of the load was stored near the home of one Joe Connell. (IV R. 198). An employee of Neal's, known by Baker only as Gerald, was also present when the plane arrived. Baker then brought the remaining half of the load with him to Oklahoma City, Oklahoma. Upon Baker's arrival in Oklahoma City he telephoned Neal and informed him that the contraband was marijuana instead of cocaine. (IV R. 110).

Soon thereafter, in late January or early February of 1979, Baker and Neal again attempted to arrange a cocaine purchase. (IV R. 114). This time, Neal represented that he could purchase cocaine from contacts in California. (IV R. 115). Neal purchased commercial airline tickets for Baker and one Monty Hudson to fly to Los Angeles so that they could inspect the product and deal with the source. (IV R. 115-16, 266-68, Pl. Exh. 17). Upon arrival in Los Angeles, Baker and Hudson were picked up by Neal's wife, Jeri, a nephew, and a niece and were taken to the nephew's apartment where a sample of the cocaine was tested by Baker. (IV R. 117, 121-22). Though the cocaine could not be delivered that night, Baker left $9,000 with Hudson and Jeri Neal, flew back to Oklahoma City, and contacted defendant Neal about the aborted connection. (IV R. 123). Neal assured Baker that he would contact his wife and Hudson and go to California himself to obtain the cocaine. (IV R. 124). A few days later Neal called Baker, told him he had returned from California, and set up a rendezvous at an Oklahoma City bar. (IV R. 125-26). At the rendezvous, Neal and one Alan McElhaney delivered eight ounces of cocaine to Baker. (IV R. 127).

Profits from the sale of the cocaine were to be divided between Neal and Baker. (IV R. 134). In fact, however, nothing had been done with the marijuana obtained in the Belize transaction and, in the interest of getting back his initial investments in that affair, Baker withheld the majority of the profits from the cocaine sales. (IV R. 136-37). In that regard Baker testified that he did not give Neal his full share "[b]ecause he didn't deserve it" and that he "gave [Neal] some of the money; not very much, though." (IV R. 136, 235).

Baker further testified that by mid-February Neal began trying to collect money from him. According to Baker, Neal made numerous phone calls from motels in the Oklahoma City area demanding money and threatening Baker with physical harm to him or his family. (IV R. 142-45, 251). During this same period Neal met with Baker and his ex-wife, Reba Mae Baker, at a MacDonald's restaurant in the Oklahoma City area and told Baker that "things would happen to [him]" if he did not pay. (IV R. 139, 142). Similarly, Reba Mae Baker testified that Neal said that her husband "better come up with the money if he cared anything about his family." (IV R. 370, 388-89). Both Joe Curtis Baker and Reba Mae Baker testified that these threats frightened them to some extent. (IV R. 143, 374).

In late February of 1979, Neal contacted numerous others in an attempt to collect the money. Joe Elliott Baker, Baker's father, testified that Neal twice called him in search of his son and that on another occasion Neal came to his house and told him that "it would be very embarrassing for the family and could be an international incident ... [i]f [Neal] didn't get the money by the next morning." (IV R. 330). Lucien Kempf, a friend of Baker's, had three separate encounters with Neal, during the last of which Neal told Kempf to set up a meeting with Baker and that Kempf's failure to do so "might mean some bad publicity for [Kempf]." (IV R. 354).

On the night of March 1, 1979, Baker returned to his home in Pink in Pottawatomie County, Oklahoma, and found the front of the house on fire, the front window broken out, and a jug containing gasoline on the living room floor. (IV R. 152; Pl. Exhs. 2, 3, and 4). Ted Maxfield, an employee of Baker's, was with Baker at the time and corroborated his story at trial. V R. 627-30).

An expert in the field of forensic chemistry testified that the liquid in the jug was a flammable hydrocarbon. (V R. 697). Deputy Sheriff Kayle Parker found a cigarette lighter approximately five to six inches from an area of burned grass outside the house (V R. 613), and a gasoline drenched rag was found beneath the broken window, also outside the house. An enforcement officer with the Bureau of Alcohol, Tobacco, and Firearms (ATF) testified that it was his expert opinion that if these materials had been assembled, it "would indeed be an incendiary bomb." (V R. 756, 758). The Government also introduced in evidence a document from the ATF certifying that there was no record that Neal had registered an incendiary device (molotov cocktail) as required by law. (Pl. Exh. 16).

Earlier in the day of the fire-bombing incident, Shelia Rider, a neighbor of Baker's, returned home from work at around 4:00 p.m. and observed a pink Cadillac with a Texas license plate parked in front of her house and defendant Neal at her front door. ¹ Neal asked Rider where Baker lived, she told him, and he left in the Cadillac. (V R. 488, 539).

Government witness Donald Webster, a prisoner in the Major County jail, testified that after the fire-bombing incident Neal admitted to him that he had burned Baker's home. Webster also testified that Neal told him that he planned to kill Baker if Baker did not pay him $147,000.

Neal testified in his own behalf and denied ever having any involvement with cocaine, marijuana, or any other drugs. (V R. 831-32). Neal also denied threatening Baker, Baker's family, or Baker's friends. (V R. 825, 849-50). Further, Neal claimed that his trip to California was for the purpose of talking with the British Consulate in Los Angeles about establishing permanent residence in Belize. Neal also denied possessing any incendiary device. (V R. 875-76).

Further evidence will be detailed as necessary in discussing Neal's appellate contentions.

II

Neal argues...