U.S. v. Turner, s. 91-1490
| Decision Date | 14 October 1992 |
| Docket Number | Nos. 91-1490,91-1522 and 91-1969,s. 91-1490 |
| Parties | UNITED STATES of America, Appellee, v. Robert L. TURNER, also known as Rob, Appellant. UNITED STATES of America, Appellee, v. Gilbert L. DOWDY, Appellant. UNITED STATES of America, Appellee, v. Steven D. BAKER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gerald M. Handley, Kansas City, Mo., argued (Robert L. Turner and Molly Merrigan, on the briefs), for appellant Robert Turner.
James R. Wyrsh, Kansas City, Mo., argued (James R. Wyrsch, James R. Hobbs and Marilyn B. Keller), (on the brief), for appellant Gilbert Dowdy.
Lawrence H. Pelofsky, Overland Park, Kan., argued, for appellant Steven D. Baker.
Counsel who presented argument on behalf of the appellee was Linda L. Parker, Kansas City, Mo., argued (Jean Paul Bradshaw, II and Linda L. Parker, on the brief), for appellee.
Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.
Robert Turner, Gilbert Dowdy, and Steven Baker appeal their convictions stemming from their involvement in a drug-distribution conspiracy. We affirm.
On February 20, 1990, a grand jury returned a twenty-seven count indictment naming eleven people, including the defendants. The indictment involved charges related to a conspiracy, headed by Dowdy, to distribute cocaine and cocaine base in the Kansas City, Missouri, area, from early 1981 through January 19, 1990. Before trial, seven of the eleven charged in the indictment pleaded guilty, with some of them agreeing to cooperate with the government. Turner, Dowdy, Dowdy's brother, and Baker went to trial. After thirty-eight days of testimony and five days of deliberations, the jury acquitted Dowdy's brother, but found the other three guilty of various crimes. It found all three guilty of conspiracy. Additionally, it convicted Dowdy of two counts of money laundering and one count of structuring currency transactions; Turner of two counts of distributing cocaine base; and Baker of one count of distribution of cocaine base and one count of possession with intent to distribute cocaine base. These appeals followed.
Dowdy was sentenced to life imprisonment for conspiracy, ten years for the currency violations, and 20 years for the two money-laundering counts, all sentences to run concurrently. Turner was sentenced to ten years and one month for each offense of conviction, all sentences to run concurrently. Baker was sentenced to life imprisonment for conspiracy and distribution and 40 years for possession with intent to distribute, all sentences to run concurrently.
All of the defendants contend that the District Court abused its discretion by denying their repeated requests for a mistrial based on the confrontations between Dowdy's lawyer, Carol Coe, and the Court. They claim that the environment of hostility created by these repeated clashes--the defendants cite at least 32 such incidents--deprived them of a fair trial. In a related argument, Turner and Baker contend that the Court abused its discretion by denying their requests to have their trials severed from that of their co-defendants.
The parties agree that Coe's conduct during the course of the trial was, at times, outrageous. 1 She regularly argued with the judge and his rulings, even after he told her to be quiet and warned that he would hold her in contempt and fine her $100 each time she disobeyed his orders. Despite these warnings, the Court held Coe in contempt on four occasions. During the last incident, the Court had her taken into custody by U.S. Marshals. After she apologized, however, she was released, and this fourth contempt order was vacated. On March 27, 1992, this Court affirmed the District Court's three contempt citations in United States v. Dowdy, 960 F.2d 78 (8th Cir.1992). In addition to the incidents leading to her citations for contempt, Coe showed disrespect for and provoked the Court on several other occasions as well.
The confrontations between the District Court and Coe were unfortunate. After reviewing the incidents cited by the defendants in the context of the entire trial, see United States v. Singer, 710 F.2d 431, 437 (8th Cir.1983) (en banc), however, we do not believe the confrontations prejudiced them or deprived them of a fair trial. While the number of confrontations was certainly significant, they are relatively insignificant in view of the overall length of the trial--38 days. A fair number of the arguments occurred outside the jury's presence. Moreover, most of the arguments between Coe and the Court were limited to differences of opinion over how to examine witnesses or interpret the Federal Rules of Evidence. Thus, unlike the district court in Singer, 710 F.2d at 436, the judge here did not help the government try its case or "inject[ ] himself into the trial throughout the entire proceeding."
To the extent that the judge's comments were sarcastic or disparaging, they were directed towards Coe, not the defendants. Despite this, however, Coe remained a zealous, if not overzealous, advocate for her client. The judge showed no bias against any of the defendants or belief in their guilt. In fact, the jury acquitted Coe's client, Gilbert Dowdy, of nine of the fourteen counts submitted to it and acquitted Sam Dowdy completely. And finally, the Court issued three curative instructions to the jury concerning the arguments--two during trial, Trial Transcript Vol. XV at 62-64 and XIX at 58-60, and one in the final jury instructions. Government Addendum at 1-3. All three of the instructions reminded the jurors that confrontations between lawyers and the court should not have any effect on their determination of the defendants' guilt or innocence. Under all the circumstances, we reject the defendants' claim that the confrontations between Coe and the District Court deprived them of a fair trial.
Our conclusion that the defendants were not denied a fair trial by the confrontations between Coe and the Court leads us also to reject their claim that they were prejudiced by the Court's failure to grant their motions for severance on the same ground. If anything, the bickering between Coe and the Court served to accentuate the differences between the defendants and actually may have helped Baker and Turner. The defendants sat at separate tables, so it is unlikely that the jurors viewed the defendants and their lawyers as a unified team. Moreover, given Dowdy's acquittal on nine charges, it is difficult to see how the Court's and Coe's confrontations prejudiced anyone, much less Dowdy's co-defendants.
All of the defendants also argue that their conspiracy convictions must be reversed because the jury returned inconsistent verdicts concerning the object of the conspiracy. The indictment alleged a single conspiracy to distribute cocaine and cocaine base. On special verdict forms, the jury found Dowdy guilty of conspiring to distribute cocaine, Turner guilty of conspiring to distribute cocaine base, and Baker guilty of conspiring to distribute both. The defendants claim that these verdicts indicate that the jury found three conspiracies, each with different objects, instead of the single conspiracy alleged in the indictment and upon which it was instructed. For this reason, they claim that the verdicts improperly varied from, or constructively amended, the indictment.
The verdicts did not amend or vary from the indictment. The indictment charged the defendants with conspiring to distribute cocaine or cocaine base. Each of the defendants was found guilty of conspiring to distribute at least one of these substances. This Court has consistently held that where an indictment charges defendants with conspiring to distribute one or more drugs, only one of the drugs needs to be proved. See, e.g., United States v. Klein, 850 F.2d 404, 406 (8th Cir.), cert. denied, 488 U.S. 867, 109 S.Ct. 173, 102 L.Ed.2d 143 (1988). Moreover, the fact that the jury concluded that each defendant handled different combinations of drugs does not mean that there was not one overall conspiracy to distribute cocaine-related products. As we stated in United States v. Regan, 940 F.2d 1134, 1135 (8th Cir.1991) (citation omitted), "[t]he existence of a single agreement can be inferred when the evidence reveals the participants shared a common aim or purpose and mutual dependence and assistance existed." See also United States v. Roark, 924 F.2d 1426, 1429-30 (8th Cir.1991). The jury's guilty verdicts reflect its conclusion that the defendants participated in different ways in one overall conspiracy. We will not disturb that conclusion.
As a second ground for reversing their conspiracy convictions, Dowdy and Turner claim that the District Court erred in answering a jury question. During its deliberations, the jury asked the Court whether one of the defendants had to be linked to a conspiracy proved to exist in early 1981. The Court responded:
The answer to your ... question is a qualified "yes." In other words, you must be satisfied that the conspiracy alleged was in existence or came into existence in or about early 1981. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case established beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.
The defendants claim the Court's response misstated the law and impermissibly amended, or varied from, the indictment.
The government did present evidence, via Jay Flott's and Carolyn Tanner's testimony, that a conspiracy involving Dowdy came into existence in early 1981. Even without this evidence, however, the Court's response would still not be erroneous. It has long been the law of this Circuit that "a...
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