U.S. v. Stevens, 77-1937

• Decision Date: 27 February 1980
• Docket Number: No. 77-1937,77-1937
• Citation: 612 F.2d 1226
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerrold E. STEVENS, Defendant-Appellant.

Page 1226

612 F.2d 1226

UNITED STATES of America, Plaintiff-Appellee, v. Gerrold E. STEVENS, Defendant-Appellant.

No. 77-1937.

United States Court of Appeals Tenth Circuit.

Argued Jan. 25, 1979.

Decided Nov. 15, 1979.

Rehearing Denied Feb. 27, 1980.

John C. Humpage, Topeka, Kan., for defendant-appellant.

Roger M. Theis, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty. and Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan., with him on briefs), for plaintiff-appellee.

Before SETH, Chief Judge, HOLLOWAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Appellant Gerrold E. Stevens was convicted by a jury on charges of conspiracy to distribute heroin, a controlled substance, and interstate travel to promote a conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 1952.

On appeal numerous errors are asserted 1) testimony of coconspirator William Deal was tainted by an illegal wiretap and should not have been admitted; 2) the indictment should have been dismissed for failure to charge a public offense; 3) the prosecution failed to prove a travel act violation; 4) the content of the indictment varied from the proof offered at trial on the travel act count; and 5) the sentences imposed were illegal because the counts and proof showed a single conspiracy.

Evidence admitted at trial showed that Deal, a parolee, moved to Kansas City, Kansas, in May 1974 and shortly thereafter started supporting a heroin habit by shoplifting. Stevens ran a retail store in that city which also served as a front for a fencing operation. Deal disposed of his shoplifted goods through Stevens. He also aided Stevens in the pick-up and delivery of stolen property from other shoplifters.

In 1976 Deal began acquiring heroin for resale in Kansas City from George Childress, who lived in Los Angeles. Deal made numerous trips to Los Angeles to obtain heroin from Childress and later began to receive shipments from Childress through couriers whom he would meet at the Kansas City airport. About November 1976 Deal became an equal partner with Stevens in his store operation. Soon thereafter the arrangement was revised to include an equal partnership in the fencing operation and in Deal's heroin sales. Stevens then became aware of Deal's arrangement with Childress, including the price and amounts of heroin obtained from him.

In late December 1976, Stevens, Deal, and two female friends left for Las Vegas, paying for the trip with profits from their business. There were two purposes for the trip a vacation and a meeting with Childress to discuss a possible $250,000 heroin buy. Childress did not show up in Las Vegas, but was called at his home in Los Angeles by Deal while he and Stevens were in Las Vegas. A few days after Deal and Stevens returned to Kansas City, Deal was arrested at Kansas City International Airport immediately after taking possession of ten ounces of heroin from a Childress courier. Stevens and six others were subsequently arrested on related charges.

I

The events culminating in Stevens' indictment began as part of a Drug Enforcement Administration (DEA) investigation in cooperation with local law enforcement agencies in the Kansas City area. According to the record, DEA agent John Hinkle, Overland Park police, and Kansas Bureau of Investigation agents had information from several different informants and undercover agents that Deal was involved in local heroin traffic. Police agents had made heroin buys from at least one person who claimed his supplier was obtaining heroin from Deal, and an informer had claimed to be present when Deal sold heroin. But because Deal would not sell directly to persons he did not know, police authorities believed they did not have sufficient evidence to indict Deal.

Thereafter, wiretaps on three telephones, including those of Deal and the business operated by Stevens, authorized by a state district judge, resulted in information leading to Deal's arrest. These wiretaps were found to be illegal by the federal trial judge in this case. Initially Deal refused to cooperate with the prosecution. But after consultation with his attorney and a plea bargain had been agreed upon, and more than a month following his arrest, Deal made statements implicating Stevens and others. Under the plea bargain the possession of heroin charge against Deal was dropped, he pleaded guilty to the conspiracy charge and was assured of a sentence not longer than five years.

Ruling upon a pretrial motion to exclude Deal's proposed testimony against Stevens, the court held it was admissible

on the ground that Deal's identity and his illegal narcotics dealings were known to law enforcement officers prior to the illegal wiretaps and further, and of even greater significance, Deal's statement to law enforcement officers and his decision to plead guilty and to testify against his co-defendants were wholly independent of the illegal wiretaps.

That ruling is challenged on appeal on the ground that Deal's testimony implicating Stevens was "fruit of the poisonous tree." We must therefore determine whether Deal's testimony is sufficiently attenuated from the exploitation of the illegal wiretaps to be purged of taint.

The present case is similar to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and our decision in United States v. Beasley, 485 F.2d 60 (10th Cir. 1973), Cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974). In Wong Sun the statement of a person unlawfully arrested who had been released and had returned voluntarily several days later to make the statement, was held to be admissible. "(T)he connection between the arrest and the statement had 'become so attenuated as to dissipate the taint.' " 371 U.S. at 491, 83 S.Ct. at 419. In Beasley an accessory who had been arrested illegally testified against the defendants, apparently from a desire to help herself. This Circuit held the statement could be found to be voluntary and sufficiently attenuated from her illegal arrest.

Her decision to testify came some three days after the arrest, and this time separation, together with the other circumstances, creates a high degree of probability that she exercised her own volition which leads us to conclude that there was no exploitation of the illegal arrest.

485 F.2d at 64 (footnote omitted).

The circumstances of the present case indicate sufficient voluntariness. To be sure the testimony came as part of a plea bargain, but that does not diminish the volition of coming forward. See United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967), Cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Beasley, 485 F.2d 60 (10th Cir. 1973), Cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974). Cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (threatening a defendant with greater punishment if he refuses to plead guilty to a lesser charge does not violate due process); United States v. Crouch, 528 F.2d 625 (7th Cir.), Cert. denied, 429 U.S. 900, 97 S.Ct. 266, 50 L.Ed.2d 184 (1976) (testifying under immunity). Even though the authorities believed they did not have a case sufficient for prosecution at the time of the illegal wiretaps, it is possible they could have developed a good case against Deal independent of the wiretaps, and he could have been well aware of this possibility. A government agent had made a purchase of heroin from James Etter, who testified at trial that Deal was his supply source. Also, it is significant that the witness and some of the information he provided was known through independent sources. See United States v. Crouch, 528 F.2d 625 (7th Cir.), Cert. denied, 429 U.S. 900, 97 S.Ct 266, 50 L.Ed.2d 184 (1976). Personal testimony from a witness is more likely to be free of the taint of illegality than documents or objects obtained as a result of an unlawful search or interception. See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).

The court in United States v. Scios, 191 U.S.App.D.C. 254, 258, 590 F.2d 956, 960 (D.C.Cir.1978) declared that, "for an act of free will to operate as a dissipation of taint, it must occur in circumstances devoid of coercion." See also United States v. Houltin, 566 F.2d 1027, 1034 (5th Cir.), Cert. denied, 439 U.S. 826, 99 S.Ct. 97, 58 L.Ed.2d 118 (1978) (J. Wisdom, dissenting). But Scios and Houltin involved testimony of persons who faced contempt citations if they did not testify. The instant situation is clearly distinguishable. Deal was entitled to raise the defense of the illegality of the wiretaps and the inadmissibility of evidence resulting therefrom in the case against him. But he offered to testify; his statement declared this decision was in part motivated by a desire "to change his life-style and stay out of trouble."

We hold the trial court properly admitted the testimony of William Deal.

II

We turn next to the issue whether the indictment should have been dismissed for failure to state a public offense. The crux of Stevens' argument is that the conspiracy charge failed to allege he conspired "willfully and intentionally to distribute heroin," and that the travel act charge did not allege "the purpose of the conspiracy was to knowingly and intentionally distribute heroin." We believe a normal reading of the charges involved in the instant case ¹ conveys the understanding that the distribution of heroin in each count, as well as the primary act of conspiring or traveling with intention to further an unlawful act, had...