U.S. v. Rodgers
| Decision Date | 24 May 1984 |
| Docket Number | No. 83-1837,83-1837 |
| Citation | 732 F.2d 625 |
| Parties | UNITED STATES of America, Appellee, v. Steven Thomas RODGERS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Marc G. Kurzman, Scott G. Harris, Kurzman, Shapiro, Manahan & Partridge, Minneapolis, Minn., for appellant.
James M. Rosenbaum, U.S. Atty., Thomas B. Heffelfinger, Asst. U.S. Atty., D.Minn., Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, BRIGHT, Circuit Judge, and HANSON, Senior District Judge. *
Steven Thomas Rodgers was convicted after a jury trial on a two-count indictment. Count I alleged unlawful distribution on February 17, 1981, of cocaine in violation of 21 U.S.C. Sec. 841(a)(1); Count II alleged unlawful possession with intent to distribute, on October 6, 1982, of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). On appeal, Rodgers challenges this conviction on three grounds. First, Rodgers argues that he was entitled to an evidentiary hearing based upon an alleged material misrepresentation in the application supporting the search warrant. Second, Rodgers argues that Counts I and II of the indictment were improperly joined. Third, Rodgers urges that there was no cause to support a search of his residence. We affirm the judgment of conviction.
The evidence concerning Count I shows that on February 17, 1981, undercover narcotics agent Joel Kohout and an informant, Rod Lusti, went to Rodgers' residence to purchase one-half ounce of cocaine. Lusti and his car were searched prior to his entering Rodgers' residence. Kohout gave Lusti $1,400 with which to purchase the cocaine. Lusti purchased cocaine that was later determined to be approximately one-half ounce of 30% pure cocaine.
On March 5, 1981, Kohout telephoned Rodgers at his residence and arranged to meet with him on March 6 to buy cocaine. On March 6, 1981, Kohout and another undercover agent met at Rodgers' residence. Rodgers asked Kohout if she had sold all the cocaine she had previously gotten from him. Rodgers also stated that a great deal of money could be made selling cocaine and that he never kept any in the house, although he had a sample at that time. Rodgers agreed to go get the cocaine from his source and told the agents to meet him back at his house later. When the agents returned to Rodgers' home, he stated that he had not obtained the drug because he thought he had been followed.
On March 25, 1981, undercover narcotics agent Michael Campion visited Rodgers at his residence. Rodgers stated that he thought he was being watched by the police. He further stated that a couple of weeks earlier Lusti had come to his house with a girl and that he had sold the girl one-half ounce of cocaine. Rodgers added that approximately one week later the girl had returned to his house with another girl and tried to purchase more cocaine. Rodgers told Campion he was convinced one of these girls was a narcotics agent and that he was being very cautious. Rodgers further stated that he had cocaine available but that he did not keep it in the house. Campion decided to postpone his investigation of Rodgers at that time because of Rodgers' concern with police surveillance.
The evidence concerning Count II shows that on October 6, 1982, Deputy Sheriff Thomas Rainville and other narcotics agents executed a search warrant at Rodgers' residence. When the agents entered Rodgers' residence pursuant to the search warrant, they found Rodgers in the basement with several other people. On a bar in the basement agents recovered a razor blade, a straw, and a glass picture frame, all coated with white powder. Agents also recovered a paper bindle containing white powder from the area next to the bar. This powder was all subsequently identified as cocaine. After Rodgers and the others present were placed under arrest, Rodgers asked Rainville if the other people could be released because they had nothing to do with the reason the agents were there.
Rainville searched Rodgers and recovered $436 in cash and a bindle containing pills. These pills were identical to Valium tablets found in four pharmaceutical bottles of Valium in the garage of the residence. In Rodgers' bedroom, the agents recovered numerous documents in his name, a very sensitive scale, and a spoon containing traces of cocaine.
Deputy Daniel Dunlevy searched the area outside Rodgers' residence and found a pickle jar containing three bags of white powder. The powder was subsequently identified as approximately 69 grams of cocaine with an average purity of 60%. Two fingerprints of Rodgers' were recovered from the pickle jar. The 69 grams of cocaine had a street value of approximately $17,500.
On January 4, 1983, Rodgers filed numerous pretrial motions, including motions to sever the two counts of the indictment and to suppress the fruits of the execution of a search warrant. On January 14, 1983, the district court 1 issued an order denying the motion for severance and referring the question of suppression of the search warrant to Magistrate Short for a hearing. After a hearing, the magistrate recommended denial of Rodgers' motion to suppress the results of the search warrant and did not conduct an evidentiary hearing. The district court affirmed the recommendations of the magistrate. The jury thereafter returned guilty verdicts as to both counts.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court set forth the rule to be followed for ordering an evidentiary hearing concerning the veracity of affidavits supporting search warrants. The Court there held that
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
Id. at 155-56, 98 S.Ct. at 2676.
In this case Rodgers did not make the requisite preliminary showing. He made no specific allegations, supported by offers of proof, that Deputy Rainville, the affiant, had deliberately or recklessly misstated the truth in the affidavit of the search warrant. Although Rodgers called one witness who Rodgers assumed was the informant, the alleged informant invoked her Fifth Amendment right to remain silent. Rodgers had hoped the alleged informant would testify that she was, in fact, the informant and that she never told Deputy Rainville she had purchased cocaine from Rodgers. However, this testimony was never elicited. Moreover, the magistrate concluded that even assuming the alleged informant did testify favorably to Rodgers, there were serious questions as to her credibility and the magistrate would give more credit to Deputy Rainville. The magistrate therefore determined that the allegations of Rodgers were not sufficient to warrant a Franks hearing, and so recommended to the district court. This recommendation was followed by the district court. We find no error.
Rodgers' second argument is that the two counts of the indictment were improperly joined, or that, assuming proper joinder, he suffered prejudice from the refusal of the district court to sever the counts. Whether two or more offenses can be joined in a single indictment is governed by Fed.R.Crim.P. 8(a). 2 Relief from proper, but nevertheless prejudicial, joinder is governed by Fed.R.Crim.P. 14. 3 Although the two rules are related, our standard of review differs for rule 8(a) misjoinder and rule 14 prejudicial joinder. The former is a question of law and if the joinder is not permitted by rule 8(a), a conviction must be reversed. United States v. Long, 674 F.2d 848, 854 (11th Cir.1982); United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980); 4 United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir.1975). Rule 14 relief, on the other hand, lies within the discretion of the trial judge and refusal to sever counts or defendants properly joined under rule 8 will be reversed only if the discretion was abused. United States v. Hastings, 577 F.2d 38, 40 (8th Cir.1978); United States v. Riley, 530 F.2d 767, 770 (8th Cir.1976).
The joinder of offenses pursuant to rule 8(a) is allowed in three situations: (1) when the offenses are of the same or similar character; (2) when the offenses are based on the same act or transaction; or (3) when the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. The offenses joined in this case were Rodgers' unlawful distribution of cocaine from his residence on February 17, 1981, and Rodgers' unlawful possession of cocaine with intent to distribute from the same residence on October 6, 1982. We find that these offenses were properly joined as being of the same or similar character.
In applying the "same or similar character" standard, this court has allowed the offenses to be joined when "the two counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps." United States v. Shearer, 606 F.2d 819, 820 (8th Cir.1979); see also United States v. McClintic, 570 F.2d 685, 689 (8th Cir.1978); United States v. Riley, 530 F.2d 767, 770 (8th Cir.1976). In applying this standard, however, rule 14 must be kept in mind. The availability of rule 14 as a remedy for prejudice that may develop during the trial permits rule 8 to be broadly construed in favor of initial joinder. United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir.1971); Haggard v. United States, 369 F.2d 968, 973 (8th Cir.1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967).
At first blush, the 20 month time period between the offenses would...
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