U.S. v. Sanders, 90-6026

• Decision Date: 19 March 1991
• Docket Number: No. 90-6026,90-6026
• Citation: 929 F.2d 1466
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Renee Armstrong SANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1466

929 F.2d 1466

59 USLW 2594

UNITED STATES of America, Plaintiff-Appellee, v. Renee Armstrong SANDERS, Defendant-Appellant.

No. 90-6026.

United States Court of Appeals, Tenth Circuit.

March 19, 1991.

Susan L. Foreman, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the brief), Denver, Colo., for defendant-appellant Johnny Lee Sanders.

Robert E. Mydans, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., and D. Blair Watson, Asst. U.S. Atty., were on the brief), Oklahoma City, Okla., for plaintiff-appellee U.S.

Before McKAY and MOORE, Circuit Judges, and SAFFELS, District Judge ^*.

SAFFELS, District Judge.

Renee Armstrong Sanders, defendant-appellant herein, was convicted in the United States District Court for the Western District of Oklahoma of violating 18 U.S.C. Secs. 1962(c), 1962(d), 1956(a)(1)(B)(i) and 21 U.S.C. Sec. 846. Defendant-appellant Sanders raises five contentions of error in this appeal. First, Sanders contends that the trial court erred in denying her motions for severance and mistrial based upon admission of evidence about items found in the residence which she shared with her husband, Johnny Lee Sanders, for purposes of impeaching his testimony in their joint trial. Second, Sanders contends that the evidence of concealment or disguise in her joint purchase, with her husband, of two cars was insufficient to support her convictions for money laundering. Third, Sanders contends that the evidence was insufficient to support her convictions on racketeering charges because it failed to establish her knowing association with an enterprise or her participation in its affairs through racketeering acts. Fourth, Sanders contends that the evidence was insufficient to support her conviction for conspiracy to distribute heroin in that it failed to establish agreement. Finally, Sanders contends that the trial court misapplied the sentencing guidelines in determining the quantity of drugs to be used in arriving at her base offense level. For the reasons stated below, we conclude that defendant's convictions under the money laundering statute should be reversed and that, accordingly, her convictions on racketeering charges must also be reversed. On all other issues, however, we affirm the district court.

I.

Renee Armstrong Sanders (hereinafter referred to as "defendant," "Sanders," "Mrs. Sanders" or "Renee Sanders") was charged along with ten other individuals in a 60-count superseding Indictment filed on June 8, 1988. Of the 60 counts, only six named Renee Sanders as a defendant. Specifically, she was charged with one count of racketeering in violation of 18 U.S.C. Sec. 1962(c) (hereinafter referred to as "RICO"), one count of conspiracy to commit RICO in violation of 18 U.S.C. Sec. 1962(d), one count of conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846, three counts of money laundering in violation of 18 U.S.C. Sec. 1956(a)(1)(B)(i) and one count of use of a telephone to facilitate the conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 843(b). On September 21, 1989, the trial court denied Renee Sanders' motion to sever her trial from that of her husband and codefendant, Johnny Lee Sanders. Trial to the jury commenced on October 18, 1989 and concluded on November 9, 1989. On November 13, 1989, a jury found Sanders guilty as charged except it acquitted her of the money laundering charge set out in Count 15 and the phone facilitation charge set forth in Count 31. Renee Sanders was sentenced to terms of 13 years imprisonment on each count, the terms to run concurrently.

II.

Defendant contends that the trial court erred in denying her motions for severance and mistrial. A decision regarding severance is within the sound discretion of the trial court and will not be disturbed on appeal unless there is an affirmative showing of abuse of discretion. United States v. Cardall, 885 F.2d 656, 667 (10th Cir.1989) (citing United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, Owens v. United States, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986)). To establish an abuse of discretion, the defendant must show that actual prejudice resulted from the denial. Hack, 782 F.2d at 870. The denial of a motion for mistrial is also reviewed under an abuse of discretion standard. United States v. Peveto, 881 F.2d 844, 859 (10th Cir.), cert. denied, Hines v. United States, --- U.S. ----, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989) (citations omitted).

Specifically, defendant challenges as erroneous the trial court's denial of her renewed motion for severance and mistrial. (R. Vol. XIX, 2296). Defendant's renewed motion was prompted by the admission, during the government's rebuttal case, of testimony from a police detective, William T. Terhune. Detective Terhune's testimony was allowed into evidence to impeach Mr. Sanders' testimony in his own defense that after January 1983 he was no longer involved with drugs. (R. Vol. XIX, 2258, 2298). Detective Terhune testified that he had participated in a search of the Sanderses' Kansas City residence on June 27, 1989, 18 months after the offenses for which the Sanderses were indicted. Detective Terhune testified that the search disclosed lactose, a kitchen scale, some unidentified white powder, a quarter teaspoon measuring spoon, Ziploc-type bags, 18 packages of water balloons, and a 10-channel scanner, all of which he described as drug paraphernalia. These items were admitted into evidence over defense counsel's objections. (R. Vol. XIX, 2300-12). The trial court instructed the jury to consider the evidence in assessing Mr. Sanders' credibility but not in its determination of the case against Mrs. Sanders. (R. Vol. XIX, 2312-14).

Besides her objection to the admission of evidence regarding the search of the Sanderses' Kansas City residence, Renee Sanders argues that the trial court erred in denying severance for two additional reasons. First, she contends that the fact that she was married to her codefendant, Johnny Lee Sanders, resulted in guilt by association. Second, she contends that the "great disparity in the quantity of evidence presented against the two Sanderses resulted in unfair 'spillover' to Mrs. Sanders." Defendant-Appellant's Brief, at 12.

As an initial matter, the court concludes that defendant Renee Sanders was properly joined for trial with her husband, defendant Johnny Lee Sanders. Fed.R.Crim.P. 8(b); see United States v. McLain, 823 F.2d 1457, 1467 (11th Cir.1987) (test for proper joinder is a common thread between defendants); United States v. Pack, 773 F.2d 261, 266 (10th Cir.1985) (as a general rule in conspiracy cases, "persons indicted together on conspiracy charges should be tried together") (citations omitted). In determining whether to sever trials of properly joined defendants, "the trial court must balance two competing interests by weighing the prejudice to a particular defendant caused by the joinder against considerations of economy and expedition in judicial administration." Pack, 773 F.2d at 267 (citing United States v. Walton, 552 F.2d 1354 (10th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977)). A defendant wishing to obtain severance must show actual prejudice at trial will result from failure to sever the trials. Hack, 782 F.2d at 870.

Having examined defendant's arguments, we do not find that defendant has demonstrated that the trial court abused its discretion in denying her motions for severance and mistrial. First, the trial judge gave the jury a lengthy limiting instruction following the admission of the rebuttal evidence regarding the search of the Sanderses' Kansas City residence. ¹ Second, with regard to defendant's argument that the jury improperly inferred her guilt by association because she was married to Johnny Lee Sanders, the trial court gave approximately 20 other requested limiting instructions concerning the jury's use of evidence as to either defendant or Mr. Sanders. As this court has stated previously, a cautionary instruction ordinarily is sufficient to cure alleged prejudice to the defendant. Peveto, 881 F.2d at 859. It should be noted that defendant did not request any special instruction relating to her marital status with her codefendant. Finally, with regard to defendant's argument that evidence as to her husband's activities unfairly spilled over into the jury's consideration of her case, the court concludes that defendant has not shown actual prejudice or that the trial court abused its discretion in denying severance. See Hack, 782 F.2d at 871 (a mere disparity in quantities of evidence against defendants in a conspiracy case, without more, does not justify severance). Thus, defendant's request for a new trial will be denied.

III.

In her second issue on appeal, defendant Sanders argues that her money laundering convictions based upon two car purchases should be overturned because the evidence was insufficient to establish that these purchases were designed to conceal or disguise drug proceeds. As stated in United States v. Hooks, a single test applies in reviewing the sufficiency of the evidence in criminal cases: "[t]he evidence--both direct and circumstantial, together with reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Further, the evidence presented to support the conviction "must be 'substantial; that is, it must do more than raise a mere suspicion of guilt.' " United States v. Brandon, 847 F.2d 625, 630 (10th Cir.), cert. denied, 488 U.S. 973, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988) (quoting United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987) (further citations omitted).

Defendant and her husband were convicted of two counts of money...