U.S. v. Searing
| Decision Date | 29 January 1993 |
| Docket Number | Nos. 92-2288,92-2412,s. 92-2288 |
| Citation | 984 F.2d 960 |
| Parties | 37 Fed. R. Evid. Serv. 1108 UNITED STATES of America, Appellee, v. Chet SEARING, Appellant. UNITED STATES of America, Appellee, v. Jeffrey B. DURHAM, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jacqueline Cook, Kansas City, MO, for appellant Searing.
Susan Hunt, Kansas City, MO, for appellant Durham.
Peter M. Ossorio, Asst. U.S. Atty., Kansas City, MO, for appellee.
Before FAGG, BEAM, and HANSEN, Circuit Judges.
Chet Searing and Jeffrey B. Durham were convicted in district court 1 of 1) conspiracy to distribute cocaine; 2) attempted possession of cocaine with the intent to distribute; and 3) the use of a firearm during and in relation to drug trafficking. 2 Durham was also convicted of assaulting federal agents. 3 Searing and Durham appeal on various grounds. We affirm.
Searing and Durham were housemates in Kansas City, Missouri. Durham went to California, ostensibly to visit his aunt and cousins. While in California he shipped a package of cocaine to himself via the United Parcel Service (UPS). Durham shipped the package to Christopher Rahberger's address, omitting any named recipient from the shipping label. Collect calls were made from Durham's aunt's phone to Searing's phone while Durham was in California. During his return trip from California, police searched Durham for drugs. When Searing picked Durham up at the Kansas City International airport on August 1, 1991, Durham told Searing about the search. He explained that the search had not worried him because he had shipped the package to himself. Durham then called UPS to trace his package which had not yet arrived.
An UPS employee noticed Durham's improperly labeled package which was also marked fragile. To guard against suspected internal pilfering, UPS decided to open the package. Inside was a nested series of packages. After discovering that the innermost package contained a white substance, UPS contacted the Drug Enforcement Administration (DEA). Testing revealed that the substance was cocaine. The DEA removed most of the cocaine and conducted a controlled delivery to the Rahberger residence on August 2, at 12:45 p.m. Christopher Rahberger signed for the package. Searing and his girlfriend arrived at the Rahberger residence at 1:37 p.m. Within eight minutes, Searing used the bathroom, made a phone call to Durham, obtained a gun, loaded it, and exited the residence with the loaded gun and the package. He placed the loaded gun in the pickup's cab and the package in the pickup's bed. He rearranged the package's placement at his girlfriend's suggestion, putting it under the pickup bed lining. At that point, DEA agents arrested the couple.
The DEA agents then searched the Rahberger residence. They found a loaded shotgun behind the front door, a loaded revolver in the bedroom, and a triple balance scale in the kitchen. During the search, Durham phoned and asked to speak to Rahberger. The answering DEA agent refused the request and an angry exchange followed. Forty-five minutes later Durham burst into the residence brandishing a loaded gun. The agents identified themselves, and subdued, searched, and released Durham.
Durham, Searing, and Rahberger were tried together. Before trial, Durham attempted to intimidate Searing's girlfriend, a potential witness against him. A fistfight or scuffle between Searing and Durham resulted. Searing's girlfriend testified at the trial; Searing did not. The jury convicted Durham and Searing of all counts charged. It reached no verdict with respect to Rahberger.
For reversal, Searing argues: 1) that there was insufficient evidence to convict him on any of the charges; 2) that the district court's refusal to sever his trial from Durham's was an abuse of discretion that denied him due process and a fair trial; 3) that the district court denied him due process by admitting irrelevant and prejudicial evidence; and 4) that the district court's failure to order a mistrial or to give curative instructions sua sponte in response to the prosecutor's improper remarks was clear error which denied him a fair trial.
When reviewing a jury verdict for sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and accept all reasonable inferences supporting the conviction. United States v. Gaines, 969 F.2d 692, 696 (8th Cir.1992); United States v. Holt, 969 F.2d 685, 687 (8th Cir.1992). The evidence need not exclude every reasonable hypothesis other than guilt. United States v. Galvan, 961 F.2d 738, 740 (8th Cir.1992). We must affirm if, on the appropriate view of the evidence, any rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). There was ample direct and circumstantial evidence to support each of Searing's convictions.
To convict Searing of conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the government needed to prove Searing entered into an agreement with another person to distribute narcotics. United States v. Gaines, 969 F.2d at 696. The government did not need to show an overt act, id., but was required to show more involvement or cooperation than Searing's mere knowledge of the conspiracy. United States v. Duckworth, 945 F.2d 1052, 1053 (8th Cir.1991). The government also did not need to show a formal agreement; showing a tacit understanding proven wholly by circumstantial evidence or by inferences from the parties' actions is sufficient. United States v. Wint, 974 F.2d 961, 968 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993).
Durham and Searing shared a house, and Searing used money from Durham's drug activities for rent and car payments. While in California procuring the cocaine, Durham frequently called Searing's home collect. Searing picked Durham up from the airport when Durham returned from California. Durham bragged to Searing that although the police searched him for contraband during his trip he had not worried because he had shipped the package to himself. Wearing Durham's pager, Searing arrived at Rahberger's residence within an hour of the delivery of the cocaine. Searing entered the residence, telephoned Durham, retrieved and loaded Durham's gun, and then exited with the loaded gun and the package. Shortly after Searing failed to deliver the package to him, Durham arrived on the scene in Searing's car and burst into the premises brandishing Searing's loaded weapon.
The direct and circumstantial evidence recited above, and the inferences reasonably drawn from it, may not exclude every hypothesis but a narcotics conspiracy between Durham and Searing. However, the evidence of conspiracy is substantial and is more than ample to support Searing's conviction. See United States v. Galvan, 961 F.2d at 740-41; United States v. Askew, 958 F.2d 806, 811 (8th Cir.1992).
To convict Searing on the attempt charge, the government needed to prove that Searing intended to possess and distribute the cocaine, and that he took a substantial step toward that goal which step strongly corroborated his criminal intent. Gaines, 969 F.2d at 698. Searing knew Durham distributed drugs, knew that Durham sent a package of drugs to himself, went to retrieve the package shortly after it arrived, and armed himself with a loaded weapon before leaving with the package to deliver it to Durham. Viewing this evidence in the light most favorable to the verdict, a reasonable jury could easily have found beyond a reasonable doubt that Searing intended to possess and distribute the cocaine and that the substantial steps he took toward attaining his goal strongly corroborated his criminal intent (exiting a house with a just delivered package of drugs and a loaded weapon is strong corroboration of criminal intent).
Finally, we find the evidence to be overwhelming that Searing used a deadly weapon during the drug trafficking crimes for which he was convicted. Accordingly we also affirm Searing's 18 U.S.C. § 924(c) firearm conviction.
Searing argues that Durham's open hostility and threats to both him and his girlfriend mandated the severance of his trial from that of Rahberger and Durham. 4 He argues that Durham's conduct coupled with the failure to grant severance chilled his Fifth Amendment right to testify on his own behalf and therefore severely prejudiced his defense. He also argues that the jury's inability to compartmentalize the evidence mandated severance.
The decision of whether to sever defendants' trials is committed to the district court's sound discretion. United States v. Wint, 974 F.2d at 966. In the context of conspiracy, severance will rarely, if ever, be required. Id. at 965. We will uphold the district court's refusal to grant severance unless there is a showing of clear prejudice which indicates an abuse of discretion. Id. at 966.
The mere fact that defendants are apparently hostile to one another is not grounds for severance. United States v. Garrett, 961 F.2d 743, 746 (8th Cir.1992). The evidence against Durham was overwhelming, regardless of any testimony by Searing. Thus, Durham had little motive to intimidate Searing. In fact, Searing's version of the events, that he was an innocent dupe picking up a package for a friend with no idea of the contents, was beneficial to Durham. If the jury believed Searing, the conspiracy charge against Durham might have failed. On the contrary, Searing's girlfriend's testimony was damaging to Durham. It was against her that Durham's threats were directed. The assertion that Durham's futile attempts to keep the girlfriend from testifying worked to keep Searing from testifying strains credulity. Further, the...
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