U.S. v. Perry, s. 83-1636

• Decision Date: 06 April 1984
• Docket Number: 83-1650,Nos. 83-1636,s. 83-1636
• Citation: 731 F.2d 985,235 U.S.App.D.C. 283
• Parties: , 15 Fed. R. Evid. Serv. 594 UNITED STATES of America v. Diane T. PERRY, Appellant. UNITED STATES of America v. Donald LYNCH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 985

731 F.2d 985

235 U.S.App.D.C. 283, 15 Fed. R. Evid. Serv. 594

UNITED STATES of America v. Diane T. PERRY, Appellant.

UNITED STATES of America v. Donald LYNCH, Appellant.

Nos. 83-1636, 83-1650.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 5, 1984.

Decided April 6, 1984.

Appeals from the United States District Court for the District of Columbia (Criminal No. 82-00335).

W. Gary Kohlman (appointed by this court), Washington, D.C., for appellant in No. 83-1650.

William J. Garber (appointed by this court), Washington, D.C., for appellant in No. 83-1636.

Terence Joseph Keeney, Asst. U.S. Atty., Washington, D.C., for appellee. Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Michael W. Farrell, Judith Hetherton, Douglas J. Behr and Thomas E. Zeno, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee in Nos. 83-1636 and 83-1650.

Before TAMM and WALD, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

Appellants Diane Perry and Donald Lynch were indicted and tried together, and were convicted by a jury as charged. The indictment alleged two narcotics transactions arranged and witnessed by an undercover police officer--the first on or about September 27, 1982, the second on October 12, 1982. Appellant Perry was charged on the first transaction, and both defendants were charged on the second. Appellant Lynch, however, was not indicted on the first transaction. He now complains that the joint trial of his case with that of his co-defendant was improper.

We have carefully reviewed the record in these cases, and conclude that the joint trial of the defendants was proper and not unduly prejudicial under Rules 8 and 14 of the Federal Rules of Criminal Procedure. The record reveals substantial evidence, made available by the Government to the district court before trial, that Lynch participated in the first transaction. The Court has also reviewed appellants' other claims of error, and while not finding those issues worthy of extended discussion, we address them briefly below. We affirm the convictions on all counts.

I. FACTS

For purposes of this Court's treatment of these cases, focusing on the propriety of joinder of the defendants, we succinctly state the facts. The relationship between the two transactions and the two defendants is most important. Because the propriety of initial joinder is to be determined by the representations and evidence before the district court prior to trial, see infra section III, the facts recounted below are those arising from the testimony of the Government's witnesses at the motions hearing. This same testimony was produced at trial; in addition, some further facts were brought out at trial. See infra section II. ¹

Detective Rawls, a Metropolitan Police officer with the Drug Enforcement Administration Task Force, was the leading undercover officer on this investigation. During the course of Rawls' investigations into the suspected drug-related activities of Diane Perry, the police installed a court-authorized pen register on Perry's phone (MH 5). On September 28, 1982, Rawls purchased one-half ounce of cocaine from appellant Perry in her apartment (MH 22, 29-30). During this transaction, Perry phoned someone she called "Don" or "Donnie" to find out whether the cocaine was available. The man was not available, but Perry spoke to a woman called Barbara, and then left to pick up the drugs (MH 23-24, 29-31). After Perry left, Rawls found the name "Don" or "Donnie" in Perry's personal phonebook (MH 23-24, 29-31); the phone number next to the name in the book was the same as one later recorded by the pen register, and was registered to Barbara Blakely (MH 4-5, 14-15, 30-31). A police informant subsequently confirmed that a man known as "Don" or "Donnie" was the source of the cocaine (MH 23, 31-32).

In a series of telephone calls between the first transaction and October 12, Rawls arranged with Perry to make a followup purchase of four ounces of cocaine (MH 23). At 5:30 p.m. the evening of October 12, Perry called Rawls to tell him the cocaine would be ready that night; Perry then called Barbara Blakely's number (MH 6-7). At 8:30 p.m., a red 1975 Camaro, registered to Barbara Blakely, pulled up outside Perry's apartment with four passengers inside (MH 4-5, 7-8, 24). A black man got out, went into the apartment, and returned; the car then drove off (MH at 7-8). Perry then called Rawls and told him to come over (MH 24).

Rawls arrived at Perry's apartment at 9:00 p.m. that night, wearing a concealed tape recorder and radio transmitter that allowed his fellow officers to monitor his conversations (MH 6, 8, 24-25). Perry immediately gave Rawls a sample of the cocaine (MH 8-9, 25). When Rawls asked whether the source was the same as for the September 28 transaction, Perry responded "Yes" (MH 36). Rawls and Perry went on to agree that the same man would bring the cocaine to the street in front of Perry's apartment, and that Perry would then go out to exchange Rawls' cash for the cocaine (MH 8-9, 26). During these conversations, Perry used a telephone paging system to get in touch with the man who was to supply the cocaine (MH 9, 26-27).

Some time later, a car horn blew outside. Perry looked out the window and said "That is him" (MH 10, 28), and immediately left her apartment. The only automobile on the block (other than police vehicles) was the same older model red car that had dropped by earlier (MH 28-29). Rawls notified his fellow policemen, and they arrested Perry as she walked toward the car (MH 11, 28-29). At the same time, the police arrested appellant Donald Lynch, the sole occupant of the car (MH 11, 28-29, 34). A search of Lynch revealed a large packet of white powder that was later determined to be cocaine (MH 11).

II. THE INDICTMENT, MOTIONS HEARING, AND TRIAL

An indictment ² filed on November 10, 1982, jointly charged Perry and Lynch with one count of unlawful distribution of cocaine, and one count of unlawful use of a communication facility. Both violations allegedly occurred on or about October 12, 1982. Lynch was also charged with possession with intent to distribute cocaine on the same date. Perry alone was charged on a count of unlawful distribution of cocaine on or about September 28, 1982.

On January 18, 1983, upon a motion to suppress the evidence taken from Lynch upon his arrest, counsel argued that the police did not have probable cause to believe that Lynch was connected to Perry. After presentation of evidence, the trial judge denied the motion, based on (1) the discussions between Rawls and Perry; (2) the identity of the car and its link to Blakely, whose number Perry had called; and (3) the fact that Perry had gone out to meet the car as soon as it had arrived (MH 38-39).

Counsel for Lynch then moved to sever the trial. Noting that Lynch had not been indicted on the September 28 transaction, counsel argued that his client should not have to contend with evidence pertaining to that incident--particularly the references to "Don" or "Donnie." The prosecutor responded that the statements of September 28 were probative of the relationship between the defendants, and would be admissible against Lynch even if his trial were severed. Furthermore, the Government noted, the evidence supported the existence of a single ongoing transaction. Evidence before the trial court tending to link Lynch to the earlier transaction, and therefore relating to the motion to sever, included the following: the September 28 references to "Don" or "Donnie" (MH 23-24, 29-31), the informant's confirmation that "Don" or "Donnie" was the source of the cocaine (MH 23, 31-32), Perry's unequivocal response to Rawls' question on October 12 that the source would be the same as for the September 28 transaction (MH 36), and Perry's statement when the car horn blew, "That is him" (MH 10, 28). Noting that the evidence indicated the existence of "one continuing transaction," the trial judge denied Lynch's motion to sever (MH 41).

Appellants were tried together beginning April 11, 1983. At trial the Government produced essentially the same evidence that had been aired at the motions hearing concerning both transactions. See supra section I. In addition, some further evidence was presented. The trial court allowed the Government to play in its entirety the taped recording of the October 12 transaction between Perry and Rawls, over the objection by defendant Perry on grounds that the tape was unduly prejudicial. ³ That tape had clearly recorded Perry's statements indicating that the source for the October 12 deal was the same as for the earlier transaction. Specifically, Rawls complained of the quality of the cocaine from the first transaction and asked whether the second supply was from the same source; Perry responded "Yes."

The tape also recorded in greater detail the arrangements for meeting made by Perry with the supplier whom she reached by calling the telephone pager's number. In addition, the Government put into evidence at trial the fact that when Lynch was arrested, he was carrying a telephone pager registered to Blakely and bearing the number that Perry had called earlier that same evening (Tr. 11-12, 336-37). During the Government's presentation of its case, just prior to the introduction of the taped conversation, appellant Lynch renewed his objection to the joint trial of the two defendants. The trial judge noted Lynch's exception to the earlier ruling denying severance, but went through with the joint trial (Tr. 186-87). On April 15, 1983, the two defendants were found guilty as charged. These appeals followed.

III. JOINDER OF THE DEFENDANTS

The propriety of the joinder of defendants at trial presents the only issue of substance in this case. Appellant Lynch argues that his joinder in the indictment...