U.S. v. Pruitt, 84-7530

• Decision Date: 21 June 1985
• Docket Number: No. 84-7530,84-7530
• Citation: 763 F.2d 1256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Wesley PRUITT, a/k/a Buddy Pruitt, Kim Curtis Danner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1256

763 F.2d 1256

UNITED STATES of America, Plaintiff-Appellee, v. William Wesley PRUITT, a/k/a Buddy Pruitt, Kim Curtis Danner, Defendants-Appellants.

No. 84-7530.

United States Court of Appeals Eleventh Circuit.

June 21, 1985.

David Cromwell Johnson and Daniel J. Burnick, Birmingham, Ala., for pruitt.

James S. Witcher, Jr., Birmingham, Ala., for Danner.

Frank W. Donaldson, U.S. Atty., Bill L. Barnett and Robert J. McLean, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before VANCE and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

JOHNSON, Circuit Judge:

William Wesley Pruitt and Kim Curtis Danner appeal from their convictions for multiple violations of the federal drug laws. Because we find no merit in any of their claims, we affirm.

I. STATEMENT OF THE CASE

A. The Facts

In the spring of 1981, William Wesley Pruitt developed a scheme for inducing doctors to write prescriptions for Dilaudid pills, which he then sold in a number of "shot houses" he controlled in Huntsville, Alabama. According to this scheme, Pruitt sent a team of three assistants to a doctor's office: one serving as a driver, the second as "old man" and the third as "daughter." The driver would take the others to a doctor's office, often in a distant state, and would handle all money and the pills acquired during the trip. The daughter would explain to the doctor that her father (the "old man") was a terminal cancer patient who was new to town and needed a prescription for his pain. If this scheme was successful, the doctor then made out a prescription for Dilaudid, which was taken back to Pruitt and sold.

Using this plan, referred to by Pruitt and his associates as "making doctors," prescriptions were secured from physicians in Iowa, Missouri and other areas. The Dilaudid tablets were sold first from Pruitt's own house on Rison Avenue and then from two "shot houses," which were run by Randy Tims and Kim Danner. These shot houses were supplied by "distribution centers" which included Danner's apartment at Haystack Apartments. Pruitt's first "daughter," Thelma Guerin, worked from spring 1981 to fall 1982, and was accompanied on at least one trip by "driver-banker" Kim Danner. Among the others who participated in "making doctors" were Jimmy Harbin and Laura Blann (referred to as the "king and queen of Dilaudid"), Jackie Morrow, Pruitt's wife Bobbie Jean, and Patricia Yarbrough, who later cooperated with the FBI and testified at trial. Many of these assistants were addicted to Dilaudid and purchased it from Pruitt, or drove shop-lifters around in Huntsville to steal items that Pruitt would exchange for Dilaudid pills.

Both the FBI and the Madison County Sheriff's Office became involved in the investigation of Pruitt's activities. Theresa Hodges, a minor who was working for the Sheriff's investigation, purchased a Dilaudid pill from Pruitt at his apartment at Rison Avenue. She was forced to swallow it before she left the house. The next time she went to see Pruitt, she was sent to one of his "shot houses," where she bought a Dilaudid pill, which she brought to the Sheriff's Office. At least one other individual purchased Dilaudid pills from Pruitt in the course of cooperation with law enforcement officials.

The FBI investigation was coordinated by Agent Richard Sams. Sams arranged a sale of drugs to Pruitt that culminated in his arrest at the Huntsville Jetport. During the negotiations for the sale of drugs to Pruitt, which were conducted at Pruitt's house, Pruitt introduced Sams to Kim Danner. Danner also accompanied Sams and Pruitt to the airport to consummate the sale, during which time conversations among the men were taped by Sams. In response to a statement by Sams that he did not trust Danner, Pruitt replied, "That's one of my people you got here, see? He sells for me." Pruitt also remarked at one point during the trip to the airport that Danner was getting "scared," and that Danner didn't like "being behind the gate" at the airport.

B. Course of Proceedings

On April 19, 1984, Pruitt, Danner and thirteen other individuals were charged in an eleven-count indictment. On May 11, 1984, counts 5, 6, and 7 were dismissed. Count 1 charged Pruitt with conducting a continuing criminal enterprise participating in the sale of controlled substances, in violation of 21 U.S.C.A. Sec. 848. Counts 2, 3, and 4 charged Pruitt and Danner with violating 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2, by possessing with the intent to distribute various controlled substances. Count 8 charged Pruitt with violating 21 U.S.C.A. Secs. 841(a)(1) and 845 and 18 U.S.C.A. Sec. 2, by knowingly and intentionally distributing a controlled substance to a person under 21 years of age. Count 9 charged Pruitt with violating 21 U.S.C.A. Sec. 841(a)(3), by knowingly and intentionally distributing and possessing with intent to distribute a controlled substance. Count 10 charged Pruitt and Danner with entering into a conspiracy with intent to distribute a controlled substance, in violation of 21 U.S.C.A. Sec. 846. Count 11 charged Pruitt with violating 18 U.S.C.A. Secs. 2 and 1952, by aiding and abetting interstate travel to promote unlawful activity.

On June 26, 1984, Pruitt, Danner and three others proceeded to trial. Danner's motion for severance, filed May 4, 1984, had been denied by the magistrate on May 16, 1984. On July 6, 1984, Powell, a co-defendant, entered a plea of guilty. On July 13, 1984, the jury found Pruitt guilty on all counts except Count 11; the jury found Danner guilty as charged. Tex Lang, one of the co-defendants, was acquitted of all charges.

On July 24, 1984, Pruitt and Danner were sentenced. Pruitt received: on count 1, life imprisonment and a fine of $100,000; on count 2, fifteen years' imprisonment and a fine of $25,000, both to run concurrent with count 1; on count 3, five years' imprisonment and a special parole term of twenty years, to run consecutive to count 2 and concurrent with count 1; count 4, three years' imprisonment and a special parole term, to run consecutive to counts 2 and 3 and concurrent with count 1; count 8, fifteen years' imprisonment and a special parole term of twenty years, to run consecutive to counts 2, 3, and 4, and concurrent with count 1, and a fine of $25,000 concurrent with count 1; count 9, fifteen years' imprisonment and a special parole term of 20 years, consecutive to counts 2, 3, 4, and 8 and concurrent with count 1, and a fine of $25,000 concurrent with count 1. Danner received: fifteen years on count 2, five years on count 3, three years on count 4, fifteen years on count 10, and a parole term of fifteen years, all sentences to run concurrently.

II. PRUITT'S CLAIMS

A. Contradictory Jury Charge

Instructing the jury concerning the counts with which Pruitt was charged, the court stated:

If you find beyond a reasonable doubt that during the time period charged in Count One, that the defendant Pruitt committed other offenses of possessing controlled substances with intent to distribute them, not specifically charged in those said counts of the indictment [2, 3, 4, 8, 9 and 10], you may consider such offenses, if any, in determining whether the violations charged in said counts two, three, four, eight, nine and ten were connected together as a series of related or ongoing activities as distinguished from isolated and disconnected acts.

Immediately following this instruction, the court stated:

Now, as I have told you several times, a separate crime or offense is charged against one or more of the defendants in each count of the indictment. Each offense and the evidence pertaining to it should be considered by you separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the offenses charged should not control your verdict as to any other offense or any other defendant.

I caution you that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in the indictment. Neither are you called upon to return a verdict as to the guilt or innocence of any person or persons not on trial as a defendant in this case.

Pruitt argues that the conflict between the instruction that non-charged acts may be considered in establishing continuity between charged acts and the instruction that defendants are not on trial for any offense not alleged in the indictment was sufficiently irreconcilable to confuse the jury and deprive him of a fair trial.

As the law of this Circuit makes clear, it is not sufficient simply to demonstrate that an instruction had the potential to confuse a jury. Appellant must raise "substantial and ineradicable doubt whether the jury has been properly guided in its deliberations," Houston v. Herring, 562 F.2d 347 (5th Cir.1977), and demonstrate that "the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process." Potts v. Zant, 734 F.2d 526 (11th Cir.1984); United States v. Russell, 717 F.2d 518 (11th Cir.1983); Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

Appellant's claim clearly falls short of the relevant standards. First, Pruitt does not persuasively demonstrate that the two portions of the instruction are contradictory. Considering uncharged offenses in order to determine whether the charged offenses were related in a continuous pattern of criminal activity is not the same as, or even similar to, placing defendants on trial for offenses not included in the indictment. The jury simply uses the uncharged acts as evidence to evaluate the relationship between the charged acts; the acts for which the defendants are "on trial," and for which they must ultimately be...