U.S. v. Smith

• Decision Date: 07 June 1978
• Docket Number: Nos. 77-1510,77-1515 and 77-1524,77-1514,s. 77-1510
• Citation: 578 F.2d 1227
• Parties: UNITED STATES of America, Appellee, v. Leonard SMITH, Appellant. UNITED STATES of America, Appellee, v. Myron JACKSON, a/k/a Hamp, Appellant. UNITED STATES of America, Appellee, v. Russell SPEARMAN, Appellant. UNITED STATES of America, Appellee, v. Faustino SELVERA, a/k/a "Mexican Frank," Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1227

578 F.2d 1227

UNITED STATES of America, Appellee, v. Leonard SMITH, Appellant.

UNITED STATES of America, Appellee, v. Myron JACKSON, a/k/a Hamp, Appellant.

UNITED STATES of America, Appellee, v. Russell SPEARMAN, Appellant.

UNITED STATES of America, Appellee, v. Faustino SELVERA, a/k/a "Mexican Frank," Appellant.

Nos. 77-1510, 77-1514, 77-1515 and 77-1524.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 10, 1977.

Decided May 17, 1978.

Rehearing and Rehearing En Banc Denied June 7, 1978.

J. Joseph McQuillan, Omaha, Neb., for Leonard Smith and Faustino Selvera; Anthony S. Troia, Omaha, Neb., on brief for Leonard Smith, Russell Spearman and Myron Jackson. McQuillan on brief for Faustino Selvera.

Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee; Daniel E. Wherry (former U. S. Atty.), Omaha, Neb., on brief.

Before LAY, HEANEY and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

Leonard Smith, Myron Jackson, Russell Spearman and Faustino Selvera were convicted on one count of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Smith and Jackson were given seven-year sentences. Spearman and Selvera were given eight-year sentences. Each of the appellants was also given a special three-year parole term. The most important issue raised on appeal by each of the appellants is that the trial judge erred in overruling their motion to suppress tape recordings of statements made by and among the appellants after the arrest of Ike Conway the time when they contend the conspiracy ceased. They also contend that the trial court erred in permitting certain police officers to testify in rebuttal. All of the appellants, except Selvera, further contend that the trial court erred in denying the motion for severance after Selvera disrupted the trial in the presence of the jury. For the reasons discussed below, we affirm the convictions of Jackson, Spearman and Selvera. We reverse the conviction of Smith.

FACTUAL BACKGROUND

The trial lasted two weeks. The list of unindicted coconspirators disclosed by the government reveals that the conspiracy purportedly involved over fifty individuals. The chief government witness at trial was Conway, who had served as an informant in the investigation of the conspiracy after he was arrested in September, 1976. Conway was on the witness stand for two full days and testified extensively as to the nature of the conspiracy and his involvement in it. He testified that during the winter of 1974-1975, he was approached by Jackson and Spearman and became involved with them in buying heroin in Las Vegas, Nevada, and then bringing it to Omaha, Nebraska, for distribution. Conway further testified that while at first he did not know the nature of the "business deals," he later became increasingly involved in the heroin traffic and soon began to handle most of the transactions. According to Conway, Selvera did not become involved until March, 1975, when he approached Conway and wanted to join in the heroin deals. Jackson, Spearman and Selvera were all longtime friends of Conway.

Conway recounted a trip he and Selvera made to Mexico in an unsuccessful attempt to obtain a cheaper source of heroin. During the trip, Conway made a number of collect calls to his home, including one from Selvera's hometown in Texas. ¹ They continued on to California where Conway eventually obtained an ounce of heroin through his brother and paid for it with money supplied by Selvera. They then drove back to Omaha with the narcotics.

According to Conway, attempts continued to locate a better source of heroin. He recounted another trip to California; this time, he went with Jackson, Spearman and another friend. Spearman obtained two ounces of heroin with money provided by Jackson. Conway flew back and the others drove back with the heroin. About a month later, Conway again went to California. On this trip, he was able to locate a permanent source for heroin. From that time on, Conway testified that he, or a courier, would fly to California once or twice a month to obtain heroin. He further testified that the money to purchase heroin came from Selvera, Jackson and Spearman. Selvera expected to receive cash in return and Jackson and Spearman expected to receive uncut heroin.

In August, 1975, Conway was arrested after a high speed motorcycle chase. The arresting officer was the appellant, Smith, who had been a member of the Omaha Police Department for fourteen years. Smith was the only black officer in the Vice and Narcotics Section and he was expected by the police to have the best access to information about activities in Omaha's north side. Conway and Smith gave conflicting testimony as to the arrest. ² Smith testified that he arrested Conway pursuant to reports from informants that Conway would be carrying heroin on his motorcycle that day. He further testified that at the scene of the arrest, he found a package of pills which were later analyzed and found not to contain a controlled substance, and that the charges were then dropped.

Conway, on the other hand, testified that he was carrying heroin but he was able to "ditch" it before he was taken into custody. Conway was injured as a result of the chase and was taken to a hospital for treatment. At the hospital, he was told he was under arrest for possession of pills. Conway testified that he then called Selvera and told him that he had been arrested by Smith, and that the pills had been planted on him. He further testified that when the charges were dropped, Selvera told him that Smith wanted $2,000 for doing so. Conway gave the money to Selvera to give to Smith.

It is from the time of this incident that Smith is alleged to have given police information and protection for Conway to deal heroin in return for payments of $250 a week. Conway testified that he regularly gave the money to Selvera who he believed was delivering the money to Smith. However, Conway testified he never actually saw any money change hands between Smith and Selvera although he saw Smith and Selvera together on five or six occasions. Conway received information about police activities from Selvera. Smith denied ever receiving any payments.

In March, 1976, a joint task force of local, state and federal officers began pooling information with respect to the alleged conspiracy. One of Conway's couriers was arrested shortly after her return from California in early March. Smith participated in the arrest. Conway testified that Selvera had warned him that the police knew of the courier's plans. The courier testified that she accordingly took an alternate route back to Omaha. Later in March, Conway's daughter was arrested and subsequently began to cooperate with the investigation. She was arrested by Smith and testified that he told her not to talk and to request an attorney. Smith denied doing so.

In September, 1976, Conway was arrested again by Smith. This time, the arrest was made pursuant to an indictment for conspiracy to distribute heroin handed down by the federal Grand Jury for the District of Nebraska. Conway was unable to make bond and he testified that he contacted Selvera who refused to help. At that time, Conway owed Selvera about $4,000. Conway then began to cooperate with the investigation of the conspiracy.

Conway was equipped with a body transmitter and various conversations he had with members of the alleged conspiracy, at the instigation of the police, were taped. In early December, 1976, a wiretap was placed on Selvera's phone. Tapes obtained via the body transmitter and the wiretap were admitted into evidence at trial, ³ over defense objections on the grounds of relevancy, materiality and hearsay. The trial court gave a lengthy cautionary instruction.

One of the tapes admitted was of a conversation in late October between Conway and Jackson where reference was made to past heroin deals. It also contained a reference to the effect that both of them had been relying upon Smith for protection. Most of the conversations that were admitted were between Conway and Selvera. Some of the conversations contained references to payments to Smith and to information received from Smith. Tapes where Conway contacted Smith and attempted to set up meetings were also admitted. One tape was admitted of a conversation between Selvera and "Eddie," where references are made to Conway's activities. ⁴ Tapes were also admitted of phone conversations between Selvera and Smith. One of the conversations occurred shortly after Smith had been told by a Drug Enforcement Administration agent that Selvera was being placed under surveillance because of a possible fencing operation with a narcotics connection. The agent indicated that they were close to a search warrant. This was not true at that time, but the statement was made in an attempt to "plant a story" with Smith. In the subsequent call to Selvera, Smith told Selvera he was under surveillance and that Selvera shouldn't do any more "business" there. The conversation occurred on December 14. ⁵

On December 16, Smith, Jackson, Spearman and Selvera were indicted for conspiring to distribute heroin by the federal Grand Jury for the District of Nebraska. Selvera was arrested on the next day and his house was searched. Among the items found and accepted into evidence were a plastic spoon with a trace of heroin, a plastic bowl and about fifty small squares of aluminum foil. Conway had described using similar implements to cut and package heroin. The police also found a slip of paper in Selvera's wallet which had Smith's address written on it.

The case finally came to trial before a jury on April 12, 1977. During the opening remarks of the United States Attorney, Selvera interrupted on three or four occasions and said it was "a God-damned lie." The trial court cautioned Selvera and his counsel. The next day, Selvera interrupted the trial again when Conway began to testify. He accused Conway of...