U.S. v. Powell

• Decision Date: 09 December 1992
• Docket Number: Nos. 91-5171,s. 91-5171
• Citation: 982 F.2d 1422
• Parties: 37 Fed. R. Evid. Serv. 752 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth N. POWELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Melvin L. GANN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gerry H. CALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andrew J. WHITMORE, II, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James B. BRADLEY, Defendant-Appellant. to 91-5176.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1422

982 F.2d 1422

37 Fed. R. Evid. Serv. 752

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth N. POWELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Melvin L. GANN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gerry H. CALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Andrew J. WHITMORE, II, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James B. BRADLEY, Defendant-Appellant.

Nos. 91-5171 to 91-5176.

United States Court of Appeals, Tenth Circuit.

Dec. 9, 1992.

Certiorari Denied in No. 91-5175 Feb. 22, 1993.

See 113 S.Ct. 1356.

James L. Swartz, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Curtis J. Biram, Biram & Kaiser, Tulsa, OK, for defendant-appellant Powell.

Cameron W. Martin, Martin & Ramirez, Tulsa, OK, for defendant-appellant Gann.

Stephen J. Greubel, Asst. Federal Public Defender, Tulsa, OK, for defendant-appellant Cale.

Miguel S. Ramirez, Martin & Ramirez, Tulsa, OK, for defendant-appellant Whitmore.

Charles Whitman, Tulsa, OK, for defendant-appellant Bradley.

Before McKAY, Chief Judge, GIBSON, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendants were convicted of conspiracy to distribute marijuana under 21 U.S.C. § 846. They appeal their convictions and sentences. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Background

In 1986, defendants Andrew J. ("A.J.") Whitmore and Kenneth ("Keno") Powell formed a partnership to import large quantities of marijuana from Texas to Oklahoma. The marijuana was transported by James B. ("Brent") Bradley, Rosa Benavides (married to Brent Bradley), Nora Gonzales and other individuals, including Mexican nationals, usually in shipments of 300-500 pounds. The marijuana was repackaged by Mr. Powell, Mr. Whitmore, Whitmore's companion Linda Hubanks, and occasionally Gerry Cale. The marijuana was then sold in bags of 20-50 pounds to Mr. Cale, Melvin Gann, Tony McClelland, Mark David Smith (who was acquitted of the conspiracy charge) and others, who resold it in smaller quantities.

In 1987, A.J. Whitmore and Keno Powell ended their partnership, but continued distributing marijuana individually. Mr. Powell's suppliers included Brent and Rosa Bradley, while Mr. Whitmore was supplied by Nora Gonzales and others. Mr. Powell continued to sell to Melvin Gann, Tony McClelland and Mark David Smith. Mr. Whitmore also sold to Mr. Gann, Mr. McClelland and Mr. Smith, as well as to Gerry Cale, Jim Pann and others. On two occasions, Jim Pann sold marijuana which he had received from A.J. Whitmore to Melvin Gann. Linda Hubanks assisted Mr. Whitmore in the distribution activities, such as transporting large sums of cash to Texas for marijuana purchases, through about 1990. Approximately 100 loads of marijuana were transported from Texas to Oklahoma from 1986 through 1991.

When arrested in March 1989, Keno Powell was in possession of $32,000 in cash and a list of names and phone numbers, including those of Melvin Gann and Mark David Smith. A.J. Whitmore and Tony McClelland were arrested in November 1990, and were in possession of over $60,000 in cash.

The first trial ended in a mistrial, when the primary government witness, Linda Hubanks, testified to a death threat by one of the defendants. The second trial resulted in defendants' convictions. Defendants argue that: (1) the second trial violated double jeopardy; (2) the evidence was insufficient to convict defendants of conspiracy; (3) there was a fatal variance between the indictment and the proof at trial; (4) the district court should have granted a severance; (5) the government's trial tactics denied defendants' due process; (6) the district court should have granted a motion in limine as to appellant Bradley's prior convictions; (7) the district court erred in refusing a multiple conspiracy instruction; (8) they should not have been sentenced under the United States Sentencing Guidelines; and (9) the applicable amount of marijuana was computed incorrectly.

The defendants were sentenced as follows: Powell was sentenced to 292 months imprisonment to be followed by a five year term of supervised release; Gann was sentenced to 188 months imprisonment, a five year term of supervised release, and fined $15,000; Cale was sentenced to 188 months imprisonment to be followed by a five year term of supervised release; Whitmore was sentenced to 360 months imprisonment to be followed by a five year term of supervised release; and Bradley was sentenced to 235 months imprisonment to be followed by a five year term of supervised release.

Discussion

I. Double Jeopardy.

The first trial of this case ended in a mistrial. Defendants contend that the government intentionally elicited inadmissible testimony from a government witness, forcing defendants to request a mistrial, thereby precluding retrial of the case under the Double Jeopardy Clause of the Fifth Amendment. We disagree.

The government called Linda Hubanks as its first witness. On direct examination she testified to observing A.J. Whitmore pay for large amounts of marijuana, repackage it, and resell it. She was then asked about her reaction upon learning of the transactions:

Ms. Hubanks: I said, "This is what you do?"

Prosecutor: And did Mr. Whitmore respond to that by saying anything?

Ms. Hubanks: He goes, "This is what I do."

Prosecutor: And did he say anything else to you at that point?

Ms. Hubanks: He goes--he goes, "now you know what I do, I can't let you leave."

Prosecutor: Is that all he said, I just can't let you leave?

Ms. Hubanks: "I can't let you leave here alive."

VII R. 41. Defendants moved for a mistrial based on the prejudicial nature of a murder threat. The district court denied the motion but admonished the jury to disregard the testimony regarding the threat. During cross examination, Ms. Hubanks stated that A.J. Whitmore "had a contract out" on her. VII R. 167. Defendants were then granted a mistrial, and moved to dismiss, arguing that the prosecutor intentionally elicited evidence of the threat. The government argues that evidence of the threat was relevant to show Mr. Whitmore's state of mind, and that it was unaware of evidence of any "contract."

The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The Double Jeopardy Clause, however, does not guarantee the defendant that the state will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (1971). Ordinarily, if the defendant requests a mistrial, double jeopardy is not a bar to retrial. United States v. Tateo, 377 U.S. 463, 467-68, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448 (1964). A narrow exception to this rule lies where the prosecutor acts in bad faith to "goad the [defendant] into requesting a mistrial" in order to "afford the prosecution a more favorable opportunity to convict." Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081. The prosecutor must actually intend to force the defendant to elect a mistrial. Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).

We review the trial court's denial of a motion to dismiss on double jeopardy grounds under an abuse of discretion standard. United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989). The district court did not find the initial testimony elicited by the prosecution sufficiently prejudicial to warrant a mistrial, and the second evidence of the threat was elicited on cross examination. Although the court ruled that the first threat-testimony was inadmissible, the government had a legitimate reason for the inquiry. Carelessness or mistake on the part of the prosecution, as opposed to a calculated move aimed at forcing the defendant to request a mistrial, is not sufficient to bar retrial under the Double Jeopardy Clause. See United States v. Dennison, 891 F.2d 255, 258 (10th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3215, 110 L.Ed.2d 663 (1990); United States v. McMurry, 818 F.2d 24, 25-26 (10th Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 78 (1987); United States v. Poe, 713 F.2d 579, 583 (10th Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456 (1984). The district court's denial of appellants' motion to dismiss was not an abuse of discretion.

II. Sufficiency of the Evidence and Variance.

Defendants Gann and Whitmore contend that the district court erred in denying their motions for judgment of acquittal, arguing that the evidence was insufficient to support their convictions. Alternatively, Mr. Gann and Mr. Whitmore join the other appellants in arguing for acquittal based on a variance between the single conspiracy charged in the indictment and the multiple conspiracies purportedly established at trial. Both questions require us to review the elements of a conspiracy.

A. Sufficiency of the Evidence.

A conspiracy conviction requires the government to prove " '(1) that two or more persons agreed to violate the law, (2) that the defendant knew at least the essential objectives of the conspiracy, ... (3) that the defendant knowingly and voluntarily became a part of it,' and (4) that the alleged coconspirators were interdependent." United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992) (quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)), cert. denied, --- U.S. ----, 113 S.Ct. 1288, --- L.Ed.2d ---- (1993).

A defendant's participation in a conspiracy is proven by evidence tending to show that the defendant shared a common purpose or design with his alleged coconspirators. Fox, 902 F.2d at 1514. The...