U.S. v. Roenigk
| Citation | 810 F.2d 809 |
| Decision Date | 04 February 1987 |
| Docket Number | No. 86-1682,86-1682 |
| Parties | 22 Fed. R. Evid. Serv. 673 UNITED STATES of America, Appellee, v. Wayne ROENIGK, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Marshall Dale Evans, Fayetteville, Ark., for appellant.
Larry McCord, Asst. U.S. Atty., Fort Smith, Ark., for appellee.
Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
Wayne Roenigk appeals a jury verdict and district court order sentencing him to three years' imprisonment for committing perjury under 18 U.S.C. Sec. 1623 in his alibi witness testimony during a prior cocaine conspiracy trial. We hold that the district court committed reversible error in Roenigk's perjury trial, in admitting prejudicial evidence and argument of the prior cocaine transactions, and remand the case for a new trial.
On February 25, 1985, Roenigk testified as a witness for the defense in the drug conspiracy trial of Edward E. Garrett. The alleged conspiracy was to distribute cocaine "on or about April 1983," in Bella Vista, Arkansas. The charges against Garrett were based on a meeting with co-conspirators Don Church and Wes Cooper, which allegedly took place on April 21 or 22, 1983, in Bella Vista. Roenigk testified on direct examination that he was with Garrett and they were not in Arkansas during the last three weeks of April 1983, and the first few days of May 1983. Garrett was convicted on February 26, 1985.
Thereafter, on September 26, 1985, Roenigk was indicted for committing perjury in the Garrett trial. The indictment charged that Roenigk had perjured himself by testifying he and Garrett were not in Arkansas during the critical dates of the Bella Vista meeting:
On the 25th day of February, 1985, * * * WAYNE ROENIGK, while under oath as a witness in a criminal case then being tried before the United States District Court * * * entitled, United States v. Edward E. Garrett, * * * did make a false material declaration that is to say:
1. At the time and place aforesaid, the court and jury were engaged in the trial of the aforementioned case wherein Edward E. Garrett * * * was charged with conspiracy to distribute cocaine * * * on or about April of 1983.
2. It was a matter material to said trial to determine whether or not Edward E. Garrett met with Don Louis Church and John Wesley Cooper, Jr. in Bella Vista, Arkansas during the last two weeks of April, 1983 to discuss the distribution of cocaine.
3. At the time and place aforesaid WAYNE ROENIGK, while under oath did knowingly declare [on direct examination] before said court and jury with respect to the aforesaid material matter, as follows:
Q. Now Wayne [Roenigk], I believe I asked you if you had an occasion to be with Ed [Garrett] back in April of 1983.
A. April or May?
Q. April of 1983.
A. Yes I did.
Q. Okay. Now in April of '83, will you tell the court exactly what it is that you and Ed did and, if you can, give us an idea of the dates that you were together.
A. ... Well, first we went down into Texas, to Vernon Texas to look at a machine and then a couple of other places ... and we were gone--I can't say exactly but at least three weeks or more.
Q. And this was in the month of April?
A. Right.
Q. Okay. And Ed was with you?
A. Yeah, he was with me the whole time. I was with him, I guess. Anyway it was my vehicle we had.
Q. So would you say that you were out of the State of Arkansas around the 10th or 12th of April?
A. Yeah, definitely, I would say.
Q. Would you say that you were out of the State of Arkansas with Ed throughout that--the rest of the period of April?
A. The biggest part of the month, I would say.
Q. So even going into May, then?
A. It could have been a few days into May.
* * *
* * *
The above mentioned testimony of WAYNE ROENIGK, as he then and there well knew and believed was not true in that WAYNE ROENIGK was not outside the State of Arkansas with Eddie Garrett the last three weeks of April and the first part of May, 1983, as he so testified on February 26, 1985, all in violation of 18 U.S.C. Sec. 1623.
On the morning of the first day of the perjury trial, February 27, 1986, Roenigk's attorney filed an oral pretrial motion in limine to prevent the government from introducing evidence relating to the merits of the Garrett cocaine trial which might unduly prejudice the jury. The district court ruled that it was not retrying the cocaine case, and instructed the government to limit the testimony to the allegations of the perjury indictment. The court, referring to paragraph 2 of the indictment, stated "that the matter material to the trial is whether Edward E. Garrett met with Don Lewis [sic] Church during the last two weeks of April, 1983 * * *." (Tr. 3.) The court recognized that the government would need to introduce the events at the time of the April 1983 meeting, but ruled that "repeated evidence of how much of the drugs and all that kind of stuff has nothing to do with whether [Roenigk] told the truth." (Tr. 3.) The court also ruled that testimony by Don Church regarding his conviction in the cocaine conspiracy would be relevant only for purposes of attacking his credibility. (Tr. 4.)
Despite the district court's ruling, the government argued in its opening statement at trial that:
[T]he facts in this case will show that in April, more particularly April 13, 1983, three years ago, Don Church entered the United States and proceeded up to Bella Vista, Arkansas, where he met Wes Cooper. West [sic] Cooper and Don Church had gotten together in Bella Vista for the purpose of selling approximately forty-four pounds of cocaine that they had acquired from a source in Tampa, Florida. On April 21, 1983, which was eight days after Don Church entered the United States Don Church and Wes Cooper met with Eddie Garrett at Wes Cooper's townhouse at 8 Briton Circle in Bella Vista, Arkansas, and during this meeting, which occurred on the 21st of April, Eddie Garrett agreed to buy 4.4 pounds of cocaine at a price of $100,000.00. Don Church will tell you that the 4.4 pounds of cocaine was delivered to Eddie Garrett in Bella Vista, Arkansas, the same day the sale was made, which I stated was around the 21st of April, 1983.
(Tr. 48.) (Emphasis supplied.)
The government's first witness in the perjury trial was Don Church. Church testified that he had pled guilty to charges of possession of cocaine with intent to distribute in connection with Garrett's conviction and to other unrelated felonies, and was currently serving a sentence in federal prison. (Tr. 72-73). Church also testified that he had picked up cocaine in Tampa, Florida on April 16, 1983, and driven to Bella Vista, where he met with Garrett and Cooper on April 21 or 22, 1983. (Tr. 77-80.) Roenigk's objection was overruled, and Church testified that at the meeting, he, Cooper and Garrett arranged for the sale and distribution of 4.4 pounds of cocaine, which he later delivered to Garrett. (Tr. 80.) In addition, the government introduced into evidence, over Roenigk's objection, Church's address book with Garrett's name in it. (Tr. 80-81).
The government's second witness was FBI agent Bill Hardin. Hardin testified on direct that Garrett had been arrested for conspiracy to distribute cocaine and perjury on November 15, 1984. Roenigk's objection on relevancy was overruled. (Tr. 126.) Hardin then identified an address book found in Garrett's possession at the time of his arrest, and testified that ten of the telephone numbers in the address book matched telephone numbers called from Garrett's home telephone in Arkansas during April and May 1983, based on a copy of Garrett's telephone bill. (Tr. 128-34.)
The government then called Allen Hale, a friend and business associate of Garrett. Hale testified on direct that he had engaged in drug dealings with Garrett, and that Garrett had telephoned him two or three times each month during the period 1978 to 1984. After examining Garrett's telephone bill for April and May 1983, Hale testified that Garrett had called him from Arkansas on April 14, 16, 21 and 27, 1983. (Tr. 148-49.)
During closing argument, the government argued to the jury that the key issue in the case was whether Roenigk had lied in his testimony in the Garrett trial, concerning Garrett's whereabouts in April 1983. The government went on, however, to narrate as follows:
Ladies and gentlemen, the facts in this case have shown that on April 8th, 1983, Don Church was in Amsterdam, Holland, where he obtained a Mexican Travel Visa. Five days later on April 13th, 1983, Don Church flew to Mexico where he entered the United States. After entering the United States Don Church travelled to Bella Vista, Arkansas, where he met with Wes Cooper the next day, April 14th, 1983. The purpose of that meeting between Don Church and Wes Cooper was to arrange for the distribution of forty-four pounds of cocaine. Don Church spent the night at Wes Cooper's house and flew to Tampa, Florida, around the 16th of April to pick that forty-four pounds of cocaine up. Don Church told you he spent one day in Tampa, Florida, and he returned to Bella Vista with the cocaine on the 19th of April, 1983. Two days later, which would have been the 21st of April, 1983, Eddie Garrett was contacted and a meeting was set up at Wes Cooper's townhouse in Bella Vista, Arkansas.
During the meeting between Wes Cooper, Don Church and Eddie Garrett there was an agreement reached and that agreement was that Eddie Garrett agreed to purchase 4.4 pounds of the cocaine that Don Church had brought up from Tampa, Florida, and that was on April 21st, 1983.
(Tr. 319-20.) (Emphasis supplied.)
The government then emphasized to the jury, "we are not just talking about a small quantity [of cocaine], we are talking about pounds." (Tr. 320.) (Emphasis supplied.)
The jury returned a verdict of guilty. Thereafter, the district court denied...
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