U.S. v. Penson

• Decision Date: 02 March 1990
• Docket Number: Nos. 89-1863,89-1864,s. 89-1863
• Parties: 29 Fed. R. Evid. Serv. 978 UNITED STATES of America, Plaintiff-Appellee, v. Robert PENSON and Harley G. Surratt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1087

896 F.2d 1087

29 Fed. R. Evid. Serv. 978

UNITED STATES of America, Plaintiff-Appellee, v. Robert PENSON and Harley G. Surratt, Defendants-Appellants.

Nos. 89-1863, 89-1864.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1990.

Decided March 2, 1990.

Michael C. Carr, Asst. U.S. Atty., Benton, Ill., for plaintiff-appellee.

Richard S. Emerson, Jr., Childs, Emerson, Rundlett, Fifield & Childs, Portland, Me., for defendant-appellant Robert Penson.

John R. Howes, Fort Lauderdale, Fla., for defendant-appellant Harley Surratt.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and WILL, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

On March 31, 1988, Harley Surratt and Robert Penson were indicted with five others on one count of conspiracy to distribute 1,000 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Three of the five others pleaded guilty and received prison sentences ranging from four to twelve years. The other two were still at large when Surratt and Penson were arraigned and pleaded not guilty.

Penson and Surratt were tried together and a jury found them guilty. On April 14, 1989, Penson was sentenced to eight years' imprisonment and Surratt was sentenced to twelve years' imprisonment, and both defendants were ordered to pay a special assessment of $50. Both defendants have filed timely appeals of their convictions, alleging, among other things, errors in jury instructions and admission of evidence. Their convictions are affirmed.

I. The Conspiracy

During trial government witnesses described the importation and distribution of several shipments of marijuana spanning the period from March 1980 to February 1987. A number of individuals, in addition to Penson and Surratt, were involved in these shipments. These individuals included Randy Lanier, Benjamin Kramer, Charles Podesta, Jeffrey Tuchband, and William Baldwin, who helped arrange the shipments, and George Brock and Eugene Fisher, who supplied tugboats to transport the shipments. Some of these individuals testified against Penson and Surratt at trial. Their testimony established that Penson and Baldwin had marijuana dealings together in the late 1970s and early 1980s, and that some of these transactions also involved Charles Podesta. Podesta, in turn, was involved in the early 1980s in a partnership including Lanier and Kramer to import and distribute marijuana. In 1983, Podesta arranged a meeting with Lanier and Kramer to discuss bringing a load of approximately 30,000 pounds of marijuana into Connecticut. This meeting was also attended by George Brock, who had been introduced to Podesta by Penson and Baldwin. ¹ In return for this introduction, Penson and Baldwin were to receive an allotment of approximately 500 pounds of this marijuana. This allotment was stored in a warehouse that had been rented by Penson in New York City. During the unloading of the Connecticut shipment, Penson and Baldwin were involved in an argument with other members of the conspiracy and were therefore excluded from further dealings with the group.

Beginning in 1984, the Lanier/Kramer organization began to use tractor trailer rigs to transport the marijuana they were bringing into the country. According to the testimony adduced at trial, defendant Surratt participated in this trucking operation on at least three occasions. His participation consisted of supplying lettuce that was used to cover the marijuana so that it would escape detection during shipment. On one occasion he not only supplied the lettuce, but also either assisted in covering the marijuana with the lettuce or was present while it was covered. On this same occasion the lettuce-covered marijuana was transported in a truck bearing Surratt's name on the door.

II. Defendants' Arguments

Penson advances two arguments to support his contention that the jury verdict against him should be reversed. First he argues that the trial court improperly admitted evidence against him of a cocaine transaction and marijuana dealings that were not covered by the indictment. Second he argues that he was part of a conspiracy different from and smaller than the conspiracy proven by the government. As part of this argument he contends that the trial court's failure to sever his trial from Surratt's was prejudicial, that the trial court's instructions to the jury regarding multiple conspiracy and knowledge of the conspiracy were erroneous, and that the trial court's refusal to grant his motion for acquittal was also erroneous.

Surratt advances three arguments to support his contention that the jury verdict against him should be reversed. First he argues that the government did not sufficiently identify him as a member of the conspiracy. Second he argues that the trial court did not properly instruct the jury on the distinction between willful association with admitted criminals and intent to participate in a conspiracy. Third he argues that the trial court improperly admitted evidence that he had used his truck to transport drugs for other organizations on other occasions.

A. Challenges to Jury Instructions

Penson and Surratt both argue that the trial court erred in refusing to give their proposed jury instructions. In assessing claims of error in jury instructions, substantial discretion is given to the trial court with respect to the specific wording of the instructions. United States v. Garcia, 562 F.2d 411, 416 (7th Cir.1977). In United States v. Xheka, 704 F.2d 974, 987 (1983), certiorari denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682, this Court stated that "the [trial] court need not give a proposed instruction if the essential points are covered by those that are given."

1. Defendant Surratt

Surratt proposed that the jury be instructed that, "mere association with conspirators or those involved in a criminal enterprise is insufficient to prove a defendant's participation or membership in a conspiracy." The trial court refused this instruction and instead agreed to instruct the jury as follows:

In order to establish the offense of conspiracy, the government must prove these elements beyond a reasonable doubt * * *. That the defendant knowingly and intentionally became a member of the conspiracy * * *. In determining whether the defendant became a member of the conspiracy you may consider only the acts and statements of that particular defendant * * *. The government must prove beyond a reasonable doubt from the defendant's own acts and statements, that he was aware of the common purpose and was a willing participant.

Tr. at 501-502.

Surratt argues that the last two sentences in this instruction were not given. The government contends that they were. The record includes a full transcript of the in-chambers conference regarding the proposed jury instructions. The transcript of this conference reveals that all four of the sentences quoted above were included in the government's tendered instruction number 17, which was accepted by the judge without objection from Surratt's counsel. The record also includes a copy of each proposed instruction typed on separate pages with the comments "given" or "refused" handwritten at the bottom of each page. The page on which the government's proposed instruction number 17 is written is marked "given." Since Judge Beatty's universal practice is to send the instructions to the jury, we must presume that the instructions given were the same as those agreed upon.

The contents of the government's tendered instruction number 17 satisfy Xheka's mandate that the "essential points" of the applicable law be covered. The Xheka trial judge also rejected a mere association instruction in a conspiracy case and gave the pattern instruction that was given in this case instead. On appeal this Court held that this instruction was sufficient to alert the jury that the evidence must prove that the defendant "was a participant and not just an observer." 704 F.2d at 988. This conclusion is equally valid in Surratt's case. This is particularly true given the district judge's finding, in denying Penson and Surratt's motion for release pending appeal, that the evidence adduced at trial showed more than Surratt's mere presence at the scene of the crime.

2. Defendant Penson

Penson objects to the district court's refusal to give his proposed jury instructions on multiple conspiracy and knowledge of the conspiracy. The thrust of Penson's argument is that the jury was not given the opportunity to find that he was involved in some conspiracy other than the one charged in the indictment. Here again Xheka is controlling. Although the district judge refused Penson's proposed instructions, he did agree to instruct the jury as follows:

You may judge the defendants only on charges alleged in the indictment. You may not convict them of any other alleged conspiracy in the event you should conclude that they have engaged in some other conspiracy. Therefore, if you are not convinced beyond a reasonable doubt that a particular defendant knowingly and intentionally joined the conspiracy alleged in the indictment, you must find that defendant not guilty.

Tr. at 503-504.

Penson argues that this instruction does not adequately inform the jury about the sort of factual differences that would distinguish a single conspiracy from multiple conspiracies. In order to cure this perceived inadequacy, Penson proposed an additional instruction regarding knowledge of the conspiracy. The district judge was correct in concluding that neither of Penson's proposed instructions was necessary to comply with Xheka's requirement that the instruction given cover the "essential points" of the applicable law. The instruction, as given, clearly indicated that if conspiracies other than the one in the indictment were found to have existed, they could not be the basis of a conviction.

B. Challenges to Admission of Evidence

The trial judge admitted evidence of prior criminal...