U.S. v. Peters, Nos. 84-2108

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before WOOD, FLAUM, and RIPPLE; HARLINGTON WOOD, Jr.
• Citation: 791 F.2d 1270
• Parties: 20 Fed. R. Evid. Serv. 1112 UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. PETERS, Lawrence Peters, and Jacek Odoner, Defendants-Appellants.
• Docket Number: Nos. 84-2108,84-2146 and 84-2109
• Decision Date: 20 May 1986

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791 F.2d 1270 20 Fed. R. Evid. Serv. 1112 UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony J. PETERS, Lawrence Peters, and Jacek Odoner,
Defendants-Appellants. Nos. 84-2108, 84-2146 and 84-2109. United States Court of Appeals,
Seventh Circuit. Argued Sept. 11, 1985.
Decided May 20, 1986.

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Franklyn M. Gimbel, Gimbel, Gimbel & Reilly, William S. Mautner, Bruce C. O'Neill, Fox, Carpenter, O'Neill & Shannon, Milwaukee, Wis., for defendants-appellants.

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Lawrence O. Anderson, Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before WOOD, FLAUM, and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

After a joint trial lasting approximately four weeks, defendants Anthony Peters, Lawrence Peters, and Jacek Odoner were each convicted of drug-related offenses. All three defendants appeal and assert numerous grounds of error. We affirm the convictions on all grounds and uphold all three sentences.

Anthony Peters was the "kingpin" of an extensive cocaine-dealing business in Milwaukee from 1979 until 1983. Lawrence Peters, Anthony's brother, acted as the second-in-command of the conspiracy and took care of whatever Anthony Peters did not attend to personally. Jacek Odoner travelled to Florida to buy cocaine, stored the cocaine in his father's house, and was one of Anthony Peters' numerous "delivery boys."

In April 1983, a grand jury entered a fourteen-count indictment against Anthony Peters, Lawrence Peters, Jacek Odoner, Edward Odoner, John Gingras, John Redford, Walter Daniels, Sal Dacquisto, and Thomas Pogodzinski. The majority of the counts named Anthony Peters, with the others figuring in either one or two counts. ¹

In May 1984, Anthony and Larry Peters, Odoner, Dacquisto and Pogodzinski went on trial. Walter Daniels, John Gingras, and John Redford negotiated separate plea agreements. Gingras and Redford testified for the government. Edward Odoner, Jacek Odoner's brother, disappeared, allegedly with money from the cocaine ring, and was never apprehended. Sal Dacquisto was convicted of conspiracy, was sentenced to eighteen months in prision, but does not appeal. The jury acquitted Thomas Pogodzinski.

I. ANTHONY PETERS

Defendant Anthony Peters was convicted of nine counts of possession and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; one count of use of the telephone to distribute cocaine in violation of 21 U.S.C. Sec. 843(b) and 18 U.S.C. Sec. 2; one count of interstate travel to facilitate a business enterprise involving the distribution of cocaine in violation of 18 U.S.C. Secs. 2 and 1952(a)(3); and one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Peters received a total of twenty-two years in prison and a special parole term of three years. Peters forfeited guns, automobiles, and real and personal property to the government pursuant to 21 U.S.C. Sec. 848 after the jury found that all the items were the profits of a continuing criminal enterprise.

Peters claims eleven instances of error. Peters asserts that the search warrants for his home and for his parents' home were impermissibly broad, that the district court should have conducted a pretrial probable cause hearing for his property, that the court erred in denying Peters standing to challenge the search of a 1972 Jaguar, and that the court erred by refusing to hold a hearing to enable Peters to explore the circumstances surrounding the excusal of a grand juror. Peters also challenges the court's instruction admitting coconspirator's hearsay testimony, the court's refusal to sever count fourteen from counts one through thirteen, the court's instruction about the relationship between counts one and fourteen, the sufficiency of the evidence of count fourteen, the admission of testimony of threats made by him, the admission of the business records of an interior decorator, and the admission of hotel and telephone records of David Word.

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A. SEARCH WARRANTS

Anthony Peters contends that the search warrants issued for his home and for his parents' home failed to describe with particularity the items to be seized and were overly broad. On April 26, 1983, the district court issued two search warrants, one authorizing a search of 3370 North Gordon Place, Milwaukee, the other authorizing a search at 3043 North Hackett, Milwaukee. The North Gordon search warrant was accompanied by a three-page, eleven-paragraph list of property to be seized and an eighteen-page affidavit. The supporting affidavit had two exhibits, a summary of Peters' various purchases, improvements, and trips, and nine invoices of Peters' purchases. The Hackett search warrant authorized the seizure of "[g]ems, narcotics, and currency, the profits of a Continuing Criminal Enterprise, 21 U.S.C. 848."

First, Peters argues that the North Gordon warrant authorized the seizure of items only evidencing possession of assets. ² Peters asserts that the warrant's language authorized the seizure only of indicia of ownership, such as titles and bills of sale, and not the actual property. This novel argument is flawed, however, as the language at issue appears on the first page of the affidavit, not the search warrant. The warrant does not incorporate the affidavit by reference. The search warrant incorporates only a list of property to be seized, describing items such as "[a] Corfu brass/bronze/glass cocktail table" and "[a] Wild Boar Farnese bed, pillow shams and fitted bed cover." Although not all eleven paragraphs are as detailed as these two items in paragraph ten, the property list for the North Gordon warrant is sufficiently specific to meet the "particularity" test of Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

Peters' second argument attacks paragraph eleven of the North Gordon search warrant and also challenges the Hackett warrant's description of property to be seized as "[g]ems, narcotics, and currency, the profits of a Continuing Criminal Enterprise, 21 U.S.C. 848." Peters argues that this language gave the agents executing the warrants too much discretion. ³ This argument is unpersuasive. The Supreme Court addressed a similar argument in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). The warrants in Andresen were allegedly rendered overbroad by the presence in each warrant of the phrase "together with other fruits, instrumentalities and evidence of crime at this [time] unknown" at the end of a long list of documents. The Court rejected the overbreadth argument and held that the "clauses in the series are limited by what precedes that colon.... The warrants, accordingly, did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses." 427 U.S. at 481-82, 96 S.Ct. at 2749.

Both the Hackett warrant's language and the North Gordon warrant's paragraph eleven modify the items preceding them. The allegedly overbroad phrase in the

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Hackett warrant merely indicates that the specific items "gems, narcotics and currency" are to be seized as the "profits of a continuing criminal enterprise." The defendant's argument might have had more force if the Hackett warrant had authorized the seizure of "gems, narcotics, currency, and the profits of a continuing criminal enterprise." The wording and punctuation of the Hackett warrant, however, indicate that the "profits" language merely describes the statutory authority for the seizure and does not represent a separate category of property to be seized.

Paragraph eleven of the North Gordon warrant ⁴ likewise must be read in the context of the ten paragraphs preceding it. Paragraph eleven follows a very detailed list of property to be seized. Like the language of the Hackett warrant, paragraph eleven of the North Gordon warrant merely indicates the crimes of which the specific items previously listed are evidence. Paragraph eleven therefore did not expand the executing officers' authority beyond permissible limits, but rather described the source of that authority. The warrants described the items to be seized with sufficient particularity and therefore were not overly broad.

B. PRETRIAL HEARING ON SEIZURE OF PROPERTY

Anthony Peters' second claim is that the district court violated his due process rights by failing to hold a hearing on the government's seizure of his property. Pursuant to two search warrants, the government seized a substantial amount of Peters' personal property ⁵ on the day Peters was arrested. After convicting Peters of operating a continuing criminal enterprise, the jury found that the seized property as well as some pieces of real property were the profits of the illegal enterprise. The district court ordered the real and personal property forfeited to the government pursuant to 21 U.S.C. Sec. 848. At that time the government seized Peters' real property.

Peters asserts that the district court should have held an evidentiary hearing prior to trial to determine whether the government had the right to retain the property until trial. Peters urges this court to require a hearing as the Ninth Circuit did in United States v. Crozier, 674 F.2d 1293 (9th Cir.1982), vacated and remanded, --- U.S. ----, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984), vacated in part and aff'd in part on remand, 777 F.2d 1376 (9th Cir.1985). ⁶ We need not decide whether to follow the Ninth Circuit on this issue because the seizures in this case were made pursuant to search warrants.

Peters contends that although the property was seized pursuant to a search warrant, the government still violated due process by retaining his property until trial. Peters claims that the government should have returned the property after it had been inventoried and photographed. Peters urges that due process requires an adversarial...