U.S. v. Singer
| Citation | 687 F.2d 1135 |
| Decision Date | 25 October 1982 |
| Docket Number | 81-1673,Nos. 81-1654,81-1677,s. 81-1654 |
| Parties | 11 Fed. R. Evid. Serv. 757 UNITED STATES of America, Appellee, v. Mark Lewis SINGER, Appellant. UNITED STATES of America, Appellee, v. Oakley Bechtel CLINE, III, Appellant. UNITED STATES of America, Appellee, v. Joseph Michael SAZENSKI, Appellant. UNITED STATES of America, Appellee, v. Arturo IZQUIERDO, Appellant. UNITED STATES of America, Appellee, v. John Patrick REYNOLDS, Appellant. to 81-1679. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Meshbesher, Singer & Spence, Ltd., Ronald I. Meshbesher, Carol M. Grant, Minneapolis, Minn., for Mark Lewis Singer.
Bruce Hartigan, Minneapolis, Minn., for Oakley Bechtel Cline, III.
James M. Rosenbaum, U. S. Atty., Daniel W. Schermer, Asst. U. S. Atty., D. Minnesota, Minneapolis, Minn., for appellee.
Friedberg & Peterson, Mark W. Peterson, Minneapolis, Minn., for Joseph Michael Sazenski.
Before LAY, Chief Judge, HENLEY * and ARNOLD, Circuit Judges.
Defendants Mark Lewis Singer, Oakley Bechtel Cline, III, Joseph Michael Sazenski, Arturo Izquierdo, and John Patrick Reynolds appeal from their convictions on a number of drug-related offenses. 1 The principal question presented is whether the district judge so far injected himself into the trial as to give the jury the impression that he favored the prosecution, thus depriving defendants of a fair trial. Several other grounds for reversal also are urged. 2 Specifically, defendants claim that a preindictment delay of twenty months violated the due process clause of the fifth amendment, that searches of Singer's personal effects and of houses in Florida and Minnesota violated the fourth amendment, that the trials of Reynolds and Izquierdo should have been severed, and that a letter addressed to one "Carlos Almaden" was inadmissible hearsay. We conclude that the trial of defendants was not fatally tainted by an appearance of unfairness and that the district court was correct in rejecting defendants' other contentions. Therefore, we affirm the judgments of conviction.
This case involves an alleged drug conspiracy which the government claims operated from October, 1977 to June, 1978. We summarize the facts as the jury could have found them on this record, allowing for all reasonable inferences in support of the verdict. In October, 1977 defendant Mark Lewis Singer, a lawyer, and Marshall Stoll 3 created International Commercial Consultants (I.C.C.), which ostensibly sold handcrafted goods (e.g., baskets and pottery). Defendant Oakley B. Cline traveled from Miami, Florida, to Minnesota in October and leased store space for I.C.C. at 1607 Hennepin Avenue in Minneapolis. On behalf of Midwest Distributing, Inc.-allegedly the name under which I.C.C. was to operate in Minnesota-he acquired the services of Burke Answering Service and rented storage space from Minnesota Mini-Storage in Crystal, Minnesota. He designed the store and made preparations suggesting it would be a lawful business, but there were no indications of commercial activity during the time he leased it. Contrary to Cline's assertion that while engaged in these transactions he used his real name, he in fact used the name "B. Clein."
Another corporation, Tropical Topics, Inc., then began delivering large boxes to Airborne Air Freight for shipment from Miami to Minnesota Mini-Storage. Midwest Distributing was the recipient company, and someone calling himself "Cliff Clorall" signed for the boxes. At trial, an Airborne Freight supervisor identified Cline as the person who used the name Cliff Clorall.
On April 5, 1978, Public Safety Officer Richard Carr, while on a routine patrol, investigated a possible burglary at 7730 S.W. 112th Street in Miami, Florida. He found defendant John Reynolds and Stoll weighing a bale of marijuana and defendant Arturo Izquierdo nearby. Carr arrested the three men and notified other officers, who arrived and seized from the house and nearby parked vans approximately 1,500 pounds of marijuana. They also seized "Poly-Crock" (white plastic) containers, boxes similar to those which "Cliff Clorall" was receiving via Airborne Freight, and a shipping label which identified "Cliff Clirell," 32 Tenth Avenue South, Hopkins, Minnesota, 4 as shipper, and O. B. Cline, Gainesville, Florida, as receiver. A later investigation indicated that Ashton Company of Curacao, Netherlands Antilles, owned the house.
The drug ring continued to operate after these arrests. A man calling himself "Carlos" rented a new storage locker at Minnesota Mini-Storage in Eden Prairie, Minnesota, on April 20, 1978, on behalf of "Venture Design." The rental manager identified Izquierdo as the person who leased the storage unit. An unidentified person rented an answering service on behalf of "Venture Design" on April 26, 1978.
Defendant Mark Singer began delivering suspiciously overpacked cartons to Profit-By-Air, an air-freight shipping concern in Miami, at about this time. On June 7, 1978 "Venture Design" shipped four cartons of "display materials" to "LDT, Inc.," 101 Westwood Drive, Miami Springs, Florida. Singer delivered ten boxes to Profit-By-Air for shipment on June 8, 1978. The shipper was "LDT." Five boxes, weighing 232 pounds, were to be shipped to "Venture Designs" in Minnesota and were to be received by "Carlos Almaden." The other five boxes, weighing 254 pounds, were to be shipped to "S&D Designs" of San Francisco. The shipping manager suspected that the cartons contained contraband and called the police. The police opened the boxes pursuant to a search warrant and found Poly-Crock containers filled with marijuana.
The next day, when Singer arrived to deliver more cartons and pick up the June 7 shipment from "Venture Design", he was arrested. The boxes he brought with him were searched and found to contain marijuana. The boxes which Singer was receiving from Minnesota were also searched, and found to contain empty Poly-Crocks. He was carrying a folder which had on its outside the address of a warehouse. The police obtained a search warrant for the warehouse. Inside they found packing material similar to that which they had seized from Singer and several bales of marijuana. Singer's folder contained numerous documents relating to the marijuana shipments and to the evidence found in the warehouse. In his wallet the police found documents which linked him to Cline, ICC, Inc., at 1607 Hennepin in Minneapolis, and the Ashton Company. The officers searched Singer's briefcase and found other documents which linked him to the Ashton Company, defendant Joseph Sazenski, and Izquierdo, as well as a list of business expenses which related to the conspiracy.
The Miami police notified Sergeant Ronald Johnson of the Minneapolis Police Department of these events. He set up surveillance at the Minneapolis office of Profit-By-Air and arrested Patrick Sazenski, 5 who arrived to pick up the shipment to "Venture Design."
Sergeant Michael Strauss of the Minneapolis Police Department then obtained a search warrant for Joseph Sazenski's home at 600 Wilshire, Minnetonka, Minnesota. The police found a gram scale; marijuana an eviction notice addressed to "Carlos Almaden and Joseph Sazenski, 600 Wilshire Drive, Minnetonka, Minnesota"; a letter addressed to "Arthur Izquierdo, 600 Wilshire"; a statement for Venture Design's storage locker at the Minnesota Mini-Storage; and evidence that Joseph Sazenski had substantial amounts of cash. They also found documents which contained drug notations and a reference to "ICC." The police obtained a warrant to search Venture Design's storage locker at Eden Prairie and found six Poly-Crock containers containing about 300 pounds of marijuana.
On June 22, 1978 Sergeant Johnson executed a search warrant at 4620 Highland, Minnetonka, Minnesota; Izquierdo was identified as the "Paul Darien" who had rented the residence in February, 1978. Johnson found a notebook containing an Airborne Air Freight shipment number which corresponded to a shipment from Tropical Topics to Midwest Distributing, a notebook bearing Izquierdo's fingerprints and drug notations, and other evidence linking Izquierdo to the conspiracy.
This complex, multidefendant case was tried before a jury from December 8 to December 18, 1980. Each of the six defendants 6 tried retained individual counsel. One Assistant United States Attorney tried the case for the government.
The district judge actively intervened in the trial. He suggested to government counsel grounds for objection to prolonged, repetitious cross-examination and questioned a number of prosecution witnesses himself when the Assistant United States Attorney failed to elicit proper foundation testimony. The trial judge also made comments which conceivably could have caused jurors to have sympathy for government counsel. 7 On the sixth day of trial, for instance, the court, interrupting one of the defense attorneys, made the following remarks about the prosecutor in the presence of the jury:
THE COURT: Hey, there's one lawyer up here who I wanted them to get some help for, and they won't send him any. 8
And he's just about overwhelmed.
Later that day, counsel for one of the defendants moved for a mistrial on the ground that the judge's remarks would evoke the jury's sympathy for the prosecution and result in prejudice to the defense. The court denied the motion, but promptly and adequately admonished the jury not to feel sorry for the Assistant United States Attorney. 9
However, the trial judge's comments were not all directed to counsel for the government, and the breaks of the trial did not all fall the same way. For example, on two occasions the court interrupted questioning by the prosecutor and sent the jury out in anticipation of a defense objection concerning evidence that the defense wished to suppress. The trial...
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