U.S. v. Ruppel

• Citation: 666 F.2d 261
• Decision Date: 25 January 1982
• Docket Number: No. 80-1962,80-1962
• Parties: 9 Fed. R. Evid. Serv. 1170 UNITED STATES of America, Plaintiff-Appellee, v. John RUPPEL, Defendant-Appellant. . Unit A *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 261

666 F.2d 261

9 Fed. R. Evid. Serv. 1170

UNITED STATES of America, Plaintiff-Appellee, v. John RUPPEL, Defendant-Appellant.

No. 80-1962.

United States Court of Appeals Fifth Circuit.

Unit A ^*

Jan. 25, 1982.

Joseph M. Tipton, Robert W. Ritchie, Knoxville, Tenn., for defendant-appellant.

David P. Baugh, Asst. U. S. Atty., Beaumont, Tex., William C. Bryson, Deborah Watson, Attys., Dept. of Justice, Washington, D. C., for the U. S.

Appeal from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, REAVLEY and POLITZ, Circuit Judges.

REAVLEY, Circuit Judge:

On May 1, 1979, the appellant, John Ruppel, was named along with twenty-three others ¹ in a multi-count indictment returned in the United States District Court for the Eastern District of Texas. The indictment outlined a scheme in which Ruppel and his coconspirators imported approximately 147,000 pounds of marijuana from Colombia into Texas and arranged for its distribution throughout the United States. The conspiracy involved the purchase of four shrimping vessels: Monkey, Jubilee, Bayou Blues, and Agnes Pauline. Using these vessels, the conspirators arranged for five different shipments of marijuana to be brought from Colombia into Texas where it was unloaded into trucks and transported to various points for distribution.

The indictment charged Ruppel with conducting the affairs of an enterprise through a pattern of racketeering activity, see 18 U.S.C. § 1962(c), conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity, see 18 U.S.C. § 1962(d), and engaging in a continuing criminal enterprise, see 21 U.S.C. § 848. His first trial ended when the jury was unable to reach a unanimous verdict on any of the three counts lodged against him. ²

Subsequently, the grand jury named the appellant in a second indictment and charged him with conspiracy to violate the drug laws, see 21 U.S.C. § 846, and with four counts of possession of marijuana with intent to distribute, see 21 U.S.C. § 841. Both indictments were consolidated for trial and the Government dismissed the count charging Ruppel with conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity. The jury in the second trial was unable to reach a verdict on the count charging the appellant with conspiracy to violate the drug laws, but found him guilty as charged in the remaining counts in the indictments. After sentencing, however, the district judge, relying on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), granted Ruppel a new trial because the Government had not disclosed at the second trial the terms of its plea agreements with several witnesses.

Ruppel was retried along with a recently surfaced coconspirator, Charles Elbert "Muscles" Foster. The jury in this, the third trial, found the appellant guilty of conspiracy to violate the drug laws and of three of the four counts of possession of marijuana with intent to distribute-all counts from the second indictment.

In his appeal to this court, Ruppel raises several issues:

1. Whether the second indictment against him should have been dismissed for prosecutorial vindictiveness?

2. Whether the Government misused the grand jury to obtain additional evidence against him after he already had been indicted?

3. Whether his trial should have been severed from the trial of codefendant Foster?

4. Whether coconspirator Hamm's testimony, relating to appellant's knowledge of the purchase of the Monkey, was admissible in evidence?

5. Whether coconspirator Butler's testimony, that codefendant Foster said that he (Foster) and Ruppel would split the profits from the next shipment of marijuana, was admissible in evidence?

6. Whether tape recordings of several telephone calls made by coconspirator Butler were admissible in evidence?

7. Whether the district judge correctly instructed the jury on character evidence?

8. Whether the district judge, already having instructed the jury on the presumption of innocence at the outset of the trial, was required to repeat this instruction in his charge to the jury?

We consider these issues seriatim and affirm.

1. Prosecutorial Vindictiveness

The appellant's claim of prosecutorial vindictiveness is predicated on two decisions of the Supreme Court, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which he claims establish that

when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive.

United States v. Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir. 1976) (footnote omitted). Ruppel contends that his decision to plead not guilty and stand trial on the counts contained in the initial indictment was the exercise of a procedural right-the right to a trial by jury-and that his due process rights were violated when the Government indicted him for additional crimes arising out of the same transactions upon which the first indictment was based. We disagree with the appellant's reading of Pearce and Blackledge.

The exercise of "some procedural right" by a defendant during his prosecution-such as electing to stand trial before a jury-is by itself insufficient to place on the prosecutor the burden of demonstrating the absence of vindictiveness in his subsequent acts. The due process violation in cases such as Pearce and Blackledge does not arise from the possibility that a defendant might be deterred from exercising a procedural right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Rather, it stems from the danger that the Government might retaliate "against the accused for (some action) lawfully attacking his conviction." Id. (Pearce and Blackledge do not apply when a prosecutor carries out a threat to reindict on more serious charges if the accused does not plead guilty to the offense with which he was originally charged); see, e.g., Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978) (Pearce and Blackledge apply when a defendant is successful on appeal in overturning his state criminal conviction); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977) (Pearce and Blackledge apply when a state criminal defendant succeeds in setting aside his conviction through federal habeas corpus), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Miracle v. Estelle, 592 F.2d 1269 (5th Cir. 1979) (Pearce and Blackledge apply when trial court grants a defendant's motion for a new trial subsequent to a conviction). As explained by Dean Vorenberg,

While the doctrine ... purports to prohibit retaliatory prosecution generally, it appears to be applied only where prosecutors have retaliated against specially protected actions by defendants, such as the exercise of first amendment rights or the right to appeal a conviction. Allowing the punishment of a defendant to be increased because he wishes to exercise his right to go to trial is considered to be pragmatically justified by the state's interest in efficient criminal administration, notwithstanding the burden placed on the exercise of the sixth amendment right to trial by jury.

Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv.L.Rev. 1521, 1541-42 (1981) (footnotes omitted).

We reject the appellant's claim of prosecutorial vindictiveness. Ruppel's first trial ended in a mistrial because the jury was unable to reach a verdict. Not only was there no conviction to attack, but a trial followed by a mistrial due to a hung jury presents different considerations than a conviction followed by a reversal. The mistrial follows as of course from the jury's inability to agree upon a verdict. Unlike an attack upon a conviction, a mistrial resulting from a hung jury does not result from any action taken by a defendant.

Absent evidence of actual retaliation, mere reindictment after a mistrial due to a hung jury is insufficient to demonstrate the realistic likelihood of prosecutorial vindictiveness to which Pearce and Blackledge apply. ³ As Ruppel's claim of prosecutorial vindictiveness is based solely on a reindictment following a hung jury, it is without merit.

2. Grand Jury Misuse

We likewise find no merit in the appellant's claim that the Government misused the grand jury when it called convicted coconspirator Jamie Holland before the grand jury on April 3 and 4, 1980 and questioned him about the marijuana smuggling operation.

The law is well settled in this circuit that while the Government may not use the grand jury in place of discovery for the purpose of preparing a pending indictment for trial, it may continue with an investigation. E.g., United States v. Beasley, 550 F.2d 261, 266 (5th Cir.), cert. denied, 434 U.S. 863, 938, 98 S.Ct. 195, 427, 54 L.Ed.2d 138, 297 (1977); Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972). Ruppel contends that the Government's interrogation of Holland before the grand jury was not in furtherance of the Government's ongoing investigation into marijuana smuggling, but "dealt ... with matters exclusively relating to pending charges."

We have reviewed Holland's grand jury testimony and conclude that the Government did not misuse the grand jury when it summoned Holland for questioning. Even a cursory examination of the transcript of the proceedings shows the Government was continuing with its investigation into marijuana smuggling from Colombia into the United States. Questions were asked of Holland about individuals known only by nickname and not yet named in any indictment. Cf. Beverly, 468 F.2d at 743 ("A proper purpose for subpoenaing appellants would be to inquire of them as to the surrounding circumstances with a view to discovery of the identity of the...