U.S. v. Russell

• Decision Date: 25 April 1983
• Docket Number: No. 82-5086,82-5086
• Citation: 703 F.2d 1243
• Parties: 13 Fed. R. Evid. Serv. 13 UNITED STATES of America, Plaintiff-Appellee, v. Frank RUSSELL, Eugene Van Aernam, John L. Dixon and Jack Murphy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1243

703 F.2d 1243

13 Fed. R. Evid. Serv. 13

UNITED STATES of America, Plaintiff-Appellee, v. Frank RUSSELL, Eugene Van Aernam, John L. Dixon and Jack Murphy, Defendants-Appellants.

No. 82-5086.

United States Court of Appeals Eleventh Circuit.

April 25, 1983.

Stephen A. Kermish, Atlanta, Ga., for Van Aernam.

Larry G. Turner, Gainesville, Fla., Robert S. Griscti, Tampa, Fla., for Dixon & Murphy.

H.S. Henderson, III, Mitchell & Henderson, Joe M. Mitchell, Jr., Melbourne, Fla., for Frank Russell.

David L. McGee, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee.

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

Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Each of the four defendants in this action was charged with two counts of criminal conduct; (1) conspiracy to possess approximately 25,000 pounds of marijuana with the intent to distribute and (2) conspiracy to import that controlled substance into the United States. The government employed Jesus Perez, an experienced drug smuggler, to pose as a smuggler seeking local officials' protection and other services for unloading marijuana in Dixie and Taylor counties in Florida. Perez first contacted George Howard. (Howard eventually entered into a plea agreement in return for his testimony.) Perez told Howard that he wanted to bring a load of marijuana into the Dixie-Taylor county area and that he wanted official protection for the scheme. Howard agreed to contact others about obtaining protection, to act as a contact man in the area, to set up off-loaders, and to arrange for off-load sites. Howard contacted John L. Dixon to obtain protection from the sheriff of Taylor county, Grady Murphy. Dixon and the sheriff's nephew, Jack Murphy, agreed to obtain this protection for $75,000. Howard arranged a meeting between Dixon, Murphy, Perez, and himself which was tape recorded by Florida agent Ronnie Cornelius. At the meeting, the parties discussed, and agreed to undertake to provide, protection, off-loading sites, and the advantages of using a particular "water" crew for the unloading. Dixon later met with Howard and showed him several off-load sites and the boats that would be used.

Subsequent to a meeting on April 29 between Dixon, Perez, Howard, and DEA agent George Villar, Howard began to doubt that Dixon and Murphy could or would produce the required protection. In view of these doubts and of a dispute between the Dixon-Murphy off-load crew and another off-load crew, Howard began to look for protection from other sources. Howard contacted Frank Russell, an official of Dixie County, who claimed that he had off-load sites, a crew, four deputy sheriffs, and a jailor who would aid the smuggling effort. Howard also met with Gene Van Aernam who offered to provide an off-load site and the services of the chief deputy of Dixie county and a jailor in protecting the enterprise. Van Aernam met with Howard and Perez on May 12, 1981. In that conversation the parties discussed, and undertook to provide, off-load sites, off-loaders, and protection. Howard also told Van Aernam about his difficulties with the Dixon-Murphy group, mentioning Jack Murphy by name. The government also recorded a meeting between Howard, Perez, Van Aernam, and Russell held on June 2, 1981 where they discussed crews, sites, boats, and the availability of protection for the 25,000 pound load Perez said was available.

The jury convicted each of the defendants on both counts after a trial involving all four defendants. Each of the defendants has filed a separate brief in this appeal. Finding no merit in any of the appellants' contentions, we affirm.

I.

All four appellants challenge the joinder of defendants for trial. They emphasize that the Dixon-Murphy group never met with the Russell-Van Aernam group and argue that the government's investigation shifted from Taylor to Dixie county after May 4. The appellants raise three basic issues: whether the joinder was permissible under Fed.R.Crim.P. 8, whether the joinder was permissible under Fed.R.Crim.P. 14, and whether an alleged evidentiary variance between the government's charge of a single conspiracy and its alleged proof of multiple conspiracies tainted the convictions.

Rule 8(b) allows joinder of two or more defendants if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Misjoinder under Rule 8(b) is prejudicial per se and would require a new trial. United States v. Kabbaby, 672 F.2d 857, 860 (11th Cir.1982). The government must show that the initial joinder is appropriate under Rule 8(b). United States v. Whitehead, 539 F.2d 1023, 1025 (4th Cir.1976).

In order to determine whether the joinder is sound under Rule 8(b) we examine the face of the indictment. If the indictment's allegations, taken as true, establish a single conspiracy, we must conclude that the initial joinder was proper. United States v. Levine, 546 F.2d 658, 663 (5th Cir.1977). We conclude that each of the defendants agreed to participate in a common enterprise--the smuggling of a load of Perez's marijuana from Colombia to the Taylor-Dixie county area. Howard, who was not employed by the government as an informer, began the search for sources to help in the smuggling attempt. The imaginary nature of the marijuana load in this case enhances an image of separateness but does not compel us to conclude that the joinder was improper. The existence of a conspiracy does not depend on each conspirator's participation in every phase of the criminal venture. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Each conspirator need not know of the identity and role of each of his co-conspirators. Id.

The unity essential to a conspiracy is derived from the assent of its members to contribute to a common enterprise. Seemingly independent transactions may be revealed as parts of a single conspiracy by their place in a pattern of regularized activity involving a significant continuity of membership.

United States v. Grassi, 616 F.2d 1295, 1303 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980). By alleging that each of the conspirators participated in a scheme to import a single 25,000 pound load of marijuana, the indictment satisfies the requirements of Rule 8(b).

The appellants also argue that the joinder violated Fed.R.Crim.P. 14. This rule proscribes prejudicial joinder but leaves the decision regarding prejudice to the discretion of the trial judge. United States v. McLaurin, 557 F.2d 1064, 1074-75 (5th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978). Appellants must show that they "received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection." United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981). Dixon argues that the compelling prejudice consisted of antagonistic and mutually exclusive defenses and of danger from evidentiary spillover from the government's repeated references to the public corruption involved with the Russell-Van Aernam segment of the conspiracy. A careful review of the record indicates that appellants have failed to show compelling prejudice, see United States v. Zicree, 605 F.2d 1381, 1388-89 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980), and that the trial judge acted within his discretion in refusing to grant a severance on the Rule 14 motions. See United States v. Grimm, 568 F.2d 1136 (5th Cir.1978).

Dixon argues that the government's evidence proved multiple conspiracies, not the single conspiracy charged in the indictment. This proof, in Dixon's view, constitutes a fatal variance from the offense charged in the indictment. The appellant must show that the variance affected his substantial rights. United States v. Sutherland, 656 F.2d 1181, 1190 n. 6 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663, cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). We conclude that the trial judge correctly allowed the jury, under proper instruction, to determine whether one or more conspiracies existed. United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979) ("Whether a scheme is one conspiracy or several is primarily a question for the jury"); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir.1975).

II.

Russell and Dixon argue that the trial court erred in permitting Cornelius to testify concerning the intentions of the various appellants and to interpret what they had said on the tapes. The appellants contend that Cornelius' testimony invaded the province of the jury by offering opinion evidence based on the tape recordings which were themselves admitted into evidence. They also argue that Cornelius' testimony that the defendants had engaged in a single conspiracy constituted an opinion of a non-expert witness. We disagree.

Cornelius described conversations he had overheard between the defendants and Perez. Cornelius testified that there was a single plan that was discussed during the course of these meetings with each one of these persons. He further stated that during the conversations, he had overheard each of the defendants agree to perform certain specific tasks. We conclude that Cornelius' testimony did not constitute opinion evidence; rather, the agent testified regarding the plan which Perez sought to implement and to authenticate the tape recordings. The district court did not err in admitting this description of facts as perceived by Cornelius.

III.

Van Aernam argues that the prosecutor made improper comments during his closing argument and rebuttal. In support of this position, Van Aernam points to comments by the prosecutor in which he states that...