U.S. v. Porter

Decision Date22 June 1987
Docket NumberNos. 85-5306,s. 85-5306
Citation821 F.2d 968
Parties24 Fed. R. Evid. Serv. 394 UNITED STATES of America, Appellee, v. Wayne PORTER, Appellant. UNITED STATES of America, Appellee, v. Earl Dean JOLLY, Appellant. UNITED STATES of America, Appellee, v. Thomas Lee BELL, Appellant. UNITED STATES of America, Appellee, v. Lewis Greg BARENTINE, Appellant. UNITED STATES of America, Appellee, v. James Henry HAND, Appellant. to 85-5310.
CourtU.S. Court of Appeals — Fourth Circuit

Harold J. Bender, Charlotte, N.C., Andrea C. Long, Richmond, Va., E.F. Parnell, III, Charlotte, N.C., William J. Sheppard (Boone & Warren, Richmond, Va., Keith M. Stroud, Charlotte, N.C. on brief), for appellants.

Max Cogburn, Chief Asst. U.S. Atty. (Charles R. Brewer, U.S. Atty., Asheville, N.C., on brief), for appellee.

Before WINTER, Chief Judge, HALL, Circuit Judge, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

Wayne Porter, Thomas Bell, Lewis Barrentine, Earl Jolly, and James Hand appeal judgments convicting them of violating laws pertaining to the importation and distribution of drugs. They were indicted with 34 other defendants in a 45-count indictment. We affirm on all but several counts.

Porter was charged in 28 counts, including 5 charges of conspiracy in violation of 21 U.S.C. Sec. 846 and one charge of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. The remaining charges included counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. Sec. 841, use of a communication facility in the commission of a drug felony in violation of 21 U.S.C. Sec. 843, traveling in interstate commerce to carry on illegal drug activity, 18 U.S.C. Sec. 1952, and aiding and abetting. Bell was charged in 15 counts, and Barrentine, Jolly, and Hand were charged in 7 counts. Each was charged in count 1 with conspiring with Porter and several counts of possession with intent to distribute.

Recognizing the size and difficulty of a single trial and despite its conclusion that all defendants were properly joined, the district court divided the case into three trials. The appellants were tried with two other defendants in the first trial. Testimony disclosed five separate occasions on which Porter, the ringleader, and others went to Georgia or Florida to bring marijuana imported from Colombia and sometimes other drugs to Wilkes County, North Carolina, for distribution.

After a 10-day trial, a jury convicted Porter of 16 counts, including all five conspiracies and the continuing criminal enterprise count. Bell, Barrentine, Jolly, and Hand each were convicted of four counts, including the count 1 conspiracy and three counts of possession with intent to distribute. 1 William Peterson was acquitted on the only charge against him. Terry Porter was acquitted of one of the three charges against her, and no verdict was returned on the other two.

I

Hand, Barrentine, Jolly, and Bell argue that the district court erred in denying their motions to sever their trial from that of Porter. The charges against them in counts 1-7 dealt with the occasion that Porter obtained marijuana and methaqualone in Florida using a boat called the "Frances Louise." Porter was tried on those counts and an additional 12 counts in which Hand, Barrentine, Jolly, and Bell were not named. They contend that joinder was improper under Fed.R.Crim.P. 8 because they suffered prejudice due to the admission of evidence unrelated to their charges and inadmissible against them in a separate trial.

We find no error. Rule 8(b) permits joinder of defendants if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Separate acts constituting separate offenses are sufficiently related to be within the same series if they arise out of a common plan or scheme. United States v. Guerrero, 756 F.2d 1342, 1345 (9th Cir.1984). There must be a series of acts unified by some substantial identity of facts or participants. United States v. Dennis, 645 F.2d 517, 520 (5th Cir.1981). That was clearly the case here. All those indicted were alleged to have participated in a drug importation and distribution scheme run by Porter. Because the indictment charged Porter with engaging in a continuing enterprise based on a series of crimes, including those involving the other appellants, joinder was proper under Rule 8(b).

Nor did the trial court abuse its discretion under Fed.R.Crim.P. 14 in denying a severance. A defendant must show prejudice in order for the court's ruling to constitute an abuse of discretion. United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.1981). No prejudice exists if the jury could make individual guilt determinations by following the court's cautionary instructions, appraising the independent evidence against each defendant. Convictions should be sustained if it may be inferred from the verdicts that the jury meticulously sifted the evidence. Phillips, 664 F.2d at 1017.

Hand, Barrentine, Jolly, and Bell have shown no prejudice. The judge repeatedly instructed the jury that the testimony was to be considered against a particular defendant or defendants. The verdict reflects that the jury carefully considered the evidence against each defendant. It acquitted Peterson of the only charge against him and acquitted Terry Porter of one of three charges against her.

II

The appellants argue that the district court also erred in its instruction defining reasonable doubt. They contend that the court should not have attempted any definition, that the specific definition given was confusing, and that it shifted the burden of proof, depriving them of due process of law.

This court has urged trial courts to avoid defining reasonable doubt unless requested to do so by the jury, because of the risk that the definition will create confusion and impermissibly lessen the required burden of proof. See United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985). Attempts at defining reasonable doubt in a charge do not constitute reversible error per se, however. United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985). To determine whether an instruction on reasonable doubt is sufficiently prejudicial to require reversal, we must look to the entire charge and its context. If the charge correctly conveys the concept of reasonable doubt, reversal is not required. Moss, 756 F.2d at 333-34. Even if the definition of reasonable doubt tends to lessen the government's burden of proof, the other instructions may neutralize the possible prejudicial effect of the challenged instruction. Moss, 756 F.2d at 334.

The district court charged as follows:

As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases where you were told it was only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.

If, based on your consideration of the evidence, you are firmly convinced the defendant was guilty of the crimes charged, any particular defendant, you must find that particular defendant guilty. If, on the other hand, you think there is a real possibility he's not guilty, you must give him the benefit of the doubt and find him not guilty.

The appellants object to the final sentence, arguing that it is confusing and shifts the burden of proof to them to prove that there was a real possibility that they were not guilty.

More than a century ago the Supreme Court observed: "Attempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury." Miles v. United States, 103 U.S. (13 Otto) 304, 312, 26 L.Ed. 481 (1881). Nearly 75 years later, the Court deemed it advisable to reiterate its note of caution. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954). In Moss, 756 F.2d at 333, Judge Ervin listed the many courts that have paid heed to the Supreme Court's admonition. The district court's instruction in this case illustrates the confusion that is engendered by attempting to define a reasonable doubt in terms of a "real possibility" that the accused is not guilty. The district court did not explain the difference that it perceived between a "possibility" and a "real possibility." It failed to tell the jury that the accused did not have the burden of showing a "real possibility" of innocence. Implying the evidence must show a real possibility of innocence to justify acquittal trenches on the principle that a defendant is presumed to be innocent. If the court believed that the jury could understand its concept of a "real possibility" and allocate the burden of proof on this issue, there was no reason for it to question the jury's ability to understand the prosecution's obligation to prove the charges beyond a reasonable doubt.

Nevertheless, we conclude that the district court's error does not warrant reversal. Contrary to the appellants' protests, the instruction did not shift the burden of proof on the question of a real possibility. Instead it failed to allocate the burden. Other instructions, however, compensated for this omission.

The court properly instructed the jury:

The law presumes a defendant to be innocent, and the presumption of innocence alone is sufficient to acquit a defendant, unless the jury is satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of the evidence...

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