U.S. v. Nevils
| Citation | 897 F.2d 300 |
| Decision Date | 31 January 1990 |
| Docket Number | 89-1021,88-2878,Nos. 88-2877,89-1093 and 89-1105,s. 88-2877 |
| Parties | UNITED STATES of America, Appellee, v. Kerry NEVILS, Appellant. UNITED STATES of America, Appellee, v. Terry DUMAS, Appellant. UNITED STATES of America, Appellee, v. Henry DUMAS, Appellant. UNITED STATES of America, Appellee, v. Kenneth BRADDOCK, Appellant. UNITED STATES of America, Appellee, v. William L. TANNER, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Robert J. Golterman, St. Louis, Mo., for appellant, Kerry Nevils.
Kevin Barry, St. Louis, Mo., for appellant, Terry Dumas.
Phyllis A. Radovich, St. Louis, Mo., for appellant, Henry Dumas.
William Laird Hetlage, St. Louis, Mo., for appellant, Kenneth Braddock.
Steven E. Holtshouser of St. Louis, Mo., for appellee.
Before McMILLIAN and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.
Appellants were convicted of various offenses, including conspiracy to distribute heroin and cocaine. They raise numerous issues on appeal. After reviewing the record, we find no errors which justify a reversal. We affirm.
William Tanner was a bail bondsman and drug dealer living in Los Angeles. Locha Davis moved from St. Louis to Los Angeles, where she met Tanner. According to her testimony, during a visit to St. Louis in January 1985, Terry Dumas, frequently referred to as "T," asked her if she could find him a source for heroin in Los Angeles. She contacted Tanner and served as an intermediary person for the shipping of heroin and cocaine to St. Louis. The narcotics were mailed by Davis or Tanner from Los Angeles to various homes in St. Louis, including: the home of Jackie Coleman, a friend of Davis; the home of Robert Cash, also a friend of Davis; and another residence which served as the part-time home of Kerry Nevils. Davis paid the recipients to receive the packages.
Coleman testified that at least twice packages were picked up by Terry Dumas and Alfreda Nevils Dumas, his wife. Coleman testified that on at least one other occasion, a package was picked up by Davis, accompanied by Terry Dumas, Kenneth Braddock, and Henry Dumas. On another occasion, Henry Dumas accompanied Davis to pick up a package.
Tanner was paid by Western Union wire shortly after each delivery. The named senders included Alfreda Nevils Dumas, Henry Dumas, Terry Dumas, and Kerry Nevils. The recipients were William Tanner and Locha Davis. A total of $178,000 was sent by persons in St. Louis associated with this matter to Tanner or Davis in Los Angeles, from March 2, 1985 through January 11, 1986.
The St. Louis Metropolitan police began investigating the St. Louis defendants in June 1985. A pen register was placed on Terry Dumas' phone. According to the affidavit of Detective Fredericksen, on October 17, 1985, an informant told him that Kenneth Braddock and Terry Dumas were expecting a shipment of heroin and cocaine on that very day, and indicated that the shipment would be cut at an apartment on Laclede Street and distributed to dealers at a particular hotel. On that day, Terry Dumas, Kenneth Braddock and Davis were observed entering the Laclede apartment. Terry Dumas left and proceeded to the hotel. Shortly thereafter, Detective Fredericksen composed the aforementioned affidavit and obtained search warrants for the two locations. During this time, other officers continued the surveillance. Terry Dumas left the hotel and drove in a manner that indicated to the officers that he was aware of their surveillance. The car he was driving contained a phone. While awaiting the issuance of a warrant, police officers detained him to eliminate the possibility that he would contact the individuals at the apartment.
The first search warrant was executed at the hotel. A now deceased individual was arrested in the bathroom. Two partially filled capsules of heroin were found near the toilet. The hotel room was rented to Henry Dumas. A key to the hotel room was later found in Terry Dumas' effects, seized when he was detained.
The second search warrant was executed at the Laclede apartment. Inside, the police found Kerry Nevils, Locha Davis, Henry Dumas, and Kenneth Braddock. Kerry Nevils attempted to close the door on the police. He later indicated that he often lived at that apartment. Kenneth Braddock was found kneeling in a hallway over a suitcase that contained nearly 450 capsules of heroin, 42 boxes of Dormin (a cutting agent), sifters, strainers, a scale, and a grinder. There were nearly 500 capsules of heroin in the living room. The bedroom contained a bottle of P.C.P., 100 capsules of heroin, a ball of uncut heroin, and some cocaine.
The police discovered the use of the postal service and Western Union for delivery and payment. 1 Toll records showed repeated calls to Tanner's residences in Los Angeles. The St. Louis police learned that Tanner was the subject of a Drug Enforcement Agency (D.E.A.) investigation in Los Angeles.
After the searches and arrests, the St. Louis investigation continued. A heroin package was seized en route to Coleman's house. The return address was a fictitious location in Los Angeles. A search warrant was obtained and the majority of the heroin was removed from the package. A tracking device was inserted. On January 29, 1986, in conjunction with the postal service, the police executed a controlled delivery of the package. Robert Cash and another person picked up the package from Coleman's house and tripped the alarm on the package. They were arrested.
At trial, the prosecution introduced evidence regarding Tanner's activities in California and other evidence regarding the St. Louis conspirators. Brenda LaMotte, a D.E.A. agent from Los Angeles, testified that she was introduced to Tanner by a paid informant and had seven contacts with him from June 5, 1985 through February 11, 1986. During this time, she received heroin and cocaine from Tanner. On two of the seven occasions, he made reference to activities in St. Louis. During the second meeting, Tanner referred to his shipments of narcotics to St. Louis to explain why he was short of drugs. According to LaMotte, this statement was made on June 14, 1985, approximately the same time as the St. Louis investigation began. During the fifth meeting, on January 22, 1986, Tanner indicated that his distribution network ran to St. Louis.
Joanne Freeman was the informant who introduced LaMotte and Tanner. Freeman testified that while in Tanner's apartment, she observed Tanner preparing a package of heroin and cocaine. The delivery address was Jackie Coleman's residence. On another occasion, at Tanner's request, Freeman drove Tanner to the Western Union office to pick up money. Freeman also lent Tanner money. She testified that Tanner once told her he could not repay her because "T" had been busted in St. Louis. In a separate legal proceeding resulting from the D.E.A. investigation, Tanner pled guilty to conspiracy to distribute heroin in California.
In addition, the prosecution introduced evidence that Henry Dumas had rented 12 beepers from December 1984 through 1985, despite his resignation in December 1984 from his past work at Honeywell Corporation. Henry Dumas told the beeper representative that he was starting a company. He told his Honeywell supervisor that he was returning to college. Other witnesses testified regarding the extent and timing of calls between the beepers, two cellular phones and various household phones belonging to the defendants. The prosecution urged that the beepers were used in furtherance of the conspiracy. When the search warrant was executed at the Laclede apartment, Henry Dumas, Kenneth Braddock, and Kerry Nevils were all wearing beepers rented by Henry Dumas.
William Tanner, Locha Davis, Henry Dumas, Terry Dumas, Kenneth Braddock, Alfreda Nevils Dumas, Robert Cash, Clinton Nevils, and Kerry Nevils were charged in Count I of the indictment with conspiracy to distribute heroin and cocaine. Jackie Coleman and Joanne Freeman were listed as unindicted co-conspirators. Counts II through VIII were directed at William Tanner and concerned his use of interstate facilities. Count IX charged that Locha Davis, Henry Dumas, Kenneth Braddock, and Kerry Nevils possessed heroin and P.C.P. with intent to distribute. Count X charged Robert Cash with possession of heroin with intent to distribute.
Locha Davis, Clinton Nevils, Alfreda Nevils, and Robert Cash pled guilty to Count I, conspiracy to distribute cocaine and heroin. Locha Davis was dismissed from Count IX, and Count X against Cash was dismissed. The remaining defendants went to trial. They called no witnesses. In general, counsel for each argued that the evidence was insufficient and that Locha Davis and Jackie Coleman were lying. All were convicted of Count I. Terry Dumas received a sentence of fourteen years. William Tanner was also convicted of Counts II, IV, V, VI, VII and VIII. He was sentenced to twenty-five years in jail. Henry Dumas was acquitted on Count IX. He received a sentence of five years on Count I. Kenneth Braddock and Kerry Nevils were convicted on Count IX. They received sentences of twelve and seven years, respectively.
On appeal, the defendants collectively raise fourteen issues. Four issues present substantial questions of law: whether the defendants were entitled to severance; whether the defendants were entitled to a jury instruction regarding multiple conspiracies; whether the statements of co-conspirators were erroneously admitted; and whether Terry Dumas was unlawfully detained. In addition, we consider whether this prosecution violated Tanner's plea agreement in California. The remaining issues are without merit. 2
Kerry Nevils, William Tanner, Kenneth Braddock, and Terry Dumas appeal the district court's denial of their motions to sever. They argue that joinder of their cases affected...
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