U.S. v. Reeves
| Decision Date | 30 March 1984 |
| Docket Number | Nos. 83-1292,83-1293,s. 83-1292 |
| Citation | 730 F.2d 1189 |
| Parties | 15 Fed. R. Evid. Serv. 659 UNITED STATES of America, Appellee, v. Herbert Loren REEVES, Appellant. UNITED STATES of America, Appellee, v. Eddie Jerome BRANSCUM, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
A. Wayne Davis, Little Rock, Ark., for appellant, Eddie Jerome branscum.
W. Asa Hutchinson, U.S. Atty., Fort Smith, Ark., for appellee.
Gerald H. Goldstein, Goldstein, Goldstein & Hilley, San Antonio, Tex., R. Wayne Lee, North Little Rock, Ark., for appellant, Herbert Loren Reeves.
Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.
Herbert Loren Reeves and Eddie Jerome Branscum appeal from final judgments entered in the District Court 1 for the Western District of Arkansas upon jury verdicts finding them each guilty of conspiracy to distribute marijuana and two counts of distributing marijuana, in violation of 18 U.S.C. Sec. 371 and 21 U.S.C. Sec. 841(a), (b)(4). The district court sentenced Reeves to five years in prison, to be followed by a two-year special parole term, and Branscum to two years in prison to be followed by a two-year special parole term. For reversal appellants argue that (1) the government's failure to provide them, prior to trial, with the "rap sheet" of the government's principal witness was prejudicial; (2) the district court erred in allowing into evidence certain "statements" made by appellants while in custody; (3) the district court erred in failing to suppress the fruits of an illegal warrantless search; (4) they were improperly denied the right to conduct individual voir dire of the jurors; and (5) the evidence was insufficient to show that they had the requisite intent to violate the law. Branscum individually, raises two additional grounds for reversal: (6) the district court erred in denying him the use of an eighteen-year-old criminal conviction to impeach the government's principal witness and (7) the district court erred in denying his motion for severance. For the reasons discussed below, we affirm the judgments of the district court.
The government's principal witness was an informant, Chester Sergent, who testified that he had grown marijuana in Searcy County, Arkansas, from 1976 to 1980, and that from 1978 to 1980 he made payments totalling $2,000 to Reeves, the sheriff of Searcy County, in order to protect his (Sergent's) marijuana farm from legal interference. In 1982 Sergent was arrested for a Florida probation violation and at that time agreed to help the FBI investigate certain drug operations. Sergent then notified the FBI of his previous arrangement with Reeves and agreed to assist in an investigation of the sheriff.
Pursuant to this investigation, Sergent arranged to meet with Reeves on the evening of September 15, 1982. At this meeting Sergent gave Reeves a $200 campaign contribution and asked the sheriff if he had any marijuana for sale. Reeves testified that at that time he believed Sergent was implicitly volunteering to cooperate with him and Deputy Sheriff Branscum in a "reverse sting operation" aimed at a major drug dealer residing in the area. In any event, the two agreed that they would meet on September 17, 1982, and Sergent would, at that time, pay Reeves $2,500 for five pounds of marijuana. Sergent also testified that Reeves, during the September 15 meeting, gave him a small sample of marijuana.
On September 17, Sergent and appellants met at the sheriff's office and subsequently drove in separate vehicles to an isolated location, where the exchange took place under the watchful eyes of the FBI and the Arkansas state police. Appellants returned to the sheriff's office and were arrested a short time thereafter.
At the time of the arrest, $500 was found in Branscum's wallet and $1,000 in his left front trouser pocket. This money was part of the "buy money" which the FBI had given to Sergent and which had been dusted with fluorescent powder prior to the exchange. Appellants were asked to place their hands under an ultraviolet light to determine if they had any of the fluorescent powder on their hands. Reeves, before complying with this request, rubbed his hands down his pants legs. After their hands were found to contain traces of the powder, appellants were transported to jail. During the trip to the jail, Branscum spoke with the officers transporting him and allegedly said,
The day after the arrest, the FBI conducted a warrantless search of the sheriff's office and found the remaining $1,000 of the buy money in a box lying on the floor. The FBI had asked Deputy Sheriff Reid, the only other member of the Searcy County Sheriff's Department, for his consent to search the sheriff's office, and he stated that he would consent if Reeves' wife did not object. Reid called Reeves' wife and she stated that she had no objection to a search of the office if one of her sons could be present. Reid consented to the search, but the search began before the arrival of the younger Reeves.
At trial appellants' theory of defense was that they were conducting a reverse sting operation and therefore lacked the requisite intent for the commission of a crime. The jury, however, rejected this theory of defense and found appellants guilty.
Appellants' first argument is that they were prejudiced by the government's failure to disclose Sergent's "rap sheet" before trial. They argue that this document should have been disclosed pursuant to their request for documents under Rule 16(a) of the Federal Rules of Criminal Procedure. The government gave appellants a copy of Sergent's rap sheet on the first day of trial; however, the copy was illegible. A legible copy was subsequently provided during Sergent's cross-examination.
To remedy the prejudice allegedly caused by this late disclosure, appellants moved for a continuance. This motion was denied by the district court, with the proviso that appellants could recall Sergent if necessary. Thus, appellants had the use of the rap sheet while cross-examining Sergent and the option of recalling him for further questioning about his criminal convictions.
A trial court's denial of a continuance motion will not be reversed unless there is a " 'showing of a clear abuse of discretion.' " United States v. Cohen, 583 F.2d 1030, 1045 (8th Cir.1978) (quoting United States v. Pelton, 578 F.2d 701, 706 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978)). The Federal Rules of Criminal Procedure do not "require the pretrial disclosure of material evidence as long as the ultimate disclosure is made before it is too late for the defendant to make use of the evidence." United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983). Appellants in the instant case were provided with a legible copy of the rap sheet during the cross-examination of Sergent and were advised by the district court that they would have an opportunity to recall him after more closely scrutinizing the rap sheet. Appellants did not recall Sergent. Therefore, the district court was acting within its discretion in denying the motion for continuance.
Appellants' second argument is that the district court erred in allowing the government to introduce evidence about Reeves' hand movement and Branscum's "I know I am in trouble" statement. Appellants argue that the government's intent to use these actions as evidence should have been disclosed before trial pursuant to their request under Fed.R.Crim.P. 16(a) for disclosure of all written or recorded statements and all oral responses made by appellants to interrogation.
Reeves' hand movement was not a written statement and, assuming for purposes of argument that it was an oral statement, 2 it was neither a response to interrogation nor was it recorded. Therefore, the government had no duty to disclose the statement in advance of trial. United States v. Green, 548 F.2d 1261, 1267 (6th Cir.1977). Branscum's "I know I am in trouble" statement was an oral statement but was not made in response to interrogation. Therefore, Branscum's statement was not discoverable under Fed.R.Crim.P. 16(a). See United States v. Johnson, 562 F.2d 515, 518 (8th Cir.1977) (per curiam). Consequently, the district court did not err in admitting these "statements."
Appellants' third argument is that the district court erred in denying their motion to suppress the fruits of the illegal warrantless search of the sheriff's office. No emergency or exigent circumstances existed at the time of the search; the only justification for proceeding without a warrant was consent. The parties agree that the purported "consent" given by the sheriff's wife was ineffective because she did not have a sufficient relationship to the sheriff's office, the premises sought to be searched. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Thus, the validity of the search depends upon the consent given by Deputy Reid. For Reid to have consented to the search, he must have possessed common authority over the property being searched. Id.; cf. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir.1983) (); United States v. Buettner-Janusch, 646 F.2d 759, 764-66 (2d Cir.) (research assistant had sufficient authority to consent to search of professor's research laboratory), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981).
The district court found that Deputy Reid had common authority over the sheriff's office. The Supreme Court defined "common authority" in United States v. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, as:
mutual use of the property by persons generally...
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