U.S. v. Walker, s. 92-3135
| Decision Date | 23 September 1993 |
| Docket Number | Nos. 92-3135,92-3136,s. 92-3135 |
| Citation | 1 F.3d 423 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robyn Jones (briefed) and Salvador A. Dominguez (argued), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.
Richard A. Cline (argued and briefed), Mitchell, Allen, Catalano & Boda, Columbus, OH, for defendant-appellant.
Before: KEITH and BATCHELDER, Circuit Judges; and CHURCHILL, Senior District Judge. *
On December 5, 1989 a grand jury in the Southern District of Ohio, Eastern Division, returned a complex 46-page indictment charging the appellants, Tanya M. Powell and Florencia Y. Walker, along with four other named defendants, with a variety of offenses.
Powell and Walker, and the other four defendants, were charged in Count 1 with conspiracy to import heroin in violation of 21 U.S.C. Sec. 963.
Count 24 charged Powell and Walker with importation of heroin in violation of 21 U.S.C. Sec. 952(a), 21 U.S.C. Secs. 960(a)(1) and (b)(1)(A) and 18 U.S.C. Sec. 2.
Counts 23 and 29 charged Walker with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. Sec. 1952 and 2.
In Count 31, Walker was charged with attempted importation of heroin, in violation of 21 U.S.C. Sec. 963.
Powell was charged in Counts 8, 20, 25, 27 and 28 with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. Secs. 1952 and 2.
Powell and one other defendant were charged in Count 9 with possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B)(ii) and 18 U.S.C. Sec. 2.
Powell and defendants other than Walker were charged in Counts 19, 21 and 30 with importation of heroin in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1) and 18 U.S.C. Sec. 2.
Count 34 charged Powell and defendants other than Walker with conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 846.
Forfeiture Count J alleged that Powell acquired a 1987 Volvo in the name of Conchita Branch and that the automobile was obtained as a result of the commission of a felony in violation of 21 U.S.C. Sec. 853(a)(1).
The Count 1 conspiracy was alleged to have occurred between October, 1984 and September, 1988. The other alleged offenses were alleged to have occurred on various dates during the period of the Count 1 conspiracy.
Walker and Powell were arrested on March 8, 1990. At the arraignment on March 27, not guilty pleas were entered and trial was scheduled to commence on May 2. On April 4 they were released on bond.
Three potential government witnesses--Brenda Givens, Joyce Crawford and Halima Isa--were named in Count 1 as unindicted co-conspirators. Givens, Crawford and Isa, prior to and during the trial, were imprisoned in Japan for violations of Japanese narcotics laws. The Japanese government refused to allow any of them to leave Japan. The government sought and obtained, over objections, leave of the court to take their depositions in Japan. Two trips to Japan were necessary to take the depositions because the witnesses refused to testify without grants of immunity. The government also sought and obtained trial continuances because of the time involved in taking depositions in Japan.
Major portions of the video tape depositions were objected to by one or more parties. Prior to the trial, the Court made rulings as to those portions of the tapes which would be inadmissible. The inadmissible portions were deleted from a copy of the tapes.
For convenience, a transcript of the video tape depositions had been prepared. Those portions of the testimony which were ruled to be inadmissible were highlighted with a yellow marker.
Before commencement of the trial, Walker moved for a separate trial because she was not charged with the offenses involving cocaine. Her motion was denied.
Jury trial of the charges against four of the defendants, Walker, Powell, Brown and Butler, commenced on April 29, 1991.
Jury selection was still in progress on May 6. Early in the day, Brown entered a guilty plea and agreed to testify for the government. The other three defendants moved to dismiss the venire. Later in the day, Butler also entered a guilty plea. The next morning the court denied the motions and instructed the jury that they should draw no inference from the fact that the trial was proceeding against only two defendants.
Because of the pleas, additional portions of the transcripts were highlighted and additional portions of the video tapes were deleted.
The government, over objection, was allowed to and did use the modified video tape copies to present the testimony of the three missing witnesses. Neither the tapes nor the tape copies were admitted as exhibits. The transcripts were not admitted into evidence.
At the close of proofs, Count 19 was dismissed.
In the late afternoon of May 28, the jury retired for the sole purpose of selecting a foreperson. Trial was recessed until 9:15 a.m. on May 29 at which time the trial exhibits were given to the jury. At approximately 2:00 p.m., the jury sent out written questions which included the following question:
ARE THE WRITTEN TRANSCRIPTS EXACTLY THE SAME AS WHAT WE HEARD FROM THE VIDEO TAPES OR HAVE PARTS BEEN EDITED OUT? SPECIFICALLY, BRENDA GIVENS' DEPOSITION RE: THE COCAINE TRANSACTION THAT ALLEGEDLY TOOK PLACE IN TANYA'S HOUSE (PAGES I-114 THRU I-116).
An on-the-record inquiry of the foreperson of the jury established that the book of transcripts of the depositions, highlights and all, had been inadvertently sent into the jury room along with the admitted exhibits. Defendants then moved for a mistrial.
Following the questioning of jurors individually, the defendants' motions for mistrials were denied.
On May 30 the jury returned verdicts of guilty as to each defendant on all remaining counts. The defendants' bonds were revoked.
On January 29, 1992, Powell was sentenced to 264 months in prison with five years' supervised release. On the same day, Walker was sentenced to 169 months in prison with five years' supervised release. Timely notices of appeal were filed.
Both of the appellants raise as issues on appeal (1) denial of their Sixth Amendment rights of confrontation of the deposed witnesses, (2) error in denial of their motions for mistrial because the jury had access to and actually read substantial portions of the transcripts, and (3) error because the appellants were not present during the questioning of the individual jurors.
Additionally, appellant Walker raises the following issues:
(1) Denial of statutory right to a speedy trial in violation of 18 U.S.C. Sec. 3161.
(2) Error in denial of her motion for a separate trial.
(3) Error in failure to discharge the venire when Brown and Butler pled guilty.
(4) Error in denying a two-level reduction in her base offense level pursuant to U.S.S.G. Sec. 3B1.2 because she played a minor role in the offense.
Appellant Walker claims that the Court erred in denial of her motion to dismiss for failure to commence her trial within the statutory 70-day period, citing only 18 U.S.C. Sec. 3161. The record reveals that the government overcame a series of logistical and legal problems, not of its own making, in taking depositions of important witnesses in Japan. The court found that continuing the trial from May 2, 1990 to October 22, 1990, and from October 22, 1990 to February 4, 1991, and finally from February 4, 1991 to April 29, 1991 was necessary because witnesses were absent or unavailable for trial and that the periods of delay were excludable in computing the time within which trial must be commenced pursuant to 18 U.S.C. Sec. 3161(h)(3)(A). The court specifically found that the ends of justice served by such continuances outweighed the interests of the public and the defendants in a speedy trial, 18 U.S.C. Sec. 3161(h)(8)(A). We find no error in these determinations.
Appellant Walker's argument assumes the facts alleged by the government. She argues that she was less culpable than other defendants and that she was entitled to a two-level reduction of her base offense level for minor role pursuant to U.S.S.G. Sec. 3B1.2(b).
The government's version of her role was that she readily agreed to be a courier for the purpose of making money. She made two trips from the United States to Japan for the purpose of bringing back large quantities of heroin. For the first trip she received approximately $14,000. On the second trip she was promised to be paid at least $15,000 for her services as a courier.
In a purely domestic distribution operation couriers, even of large quantities of a controlled substances, may frequently be minor participants. When the crime is importation, however, couriers play a role that is central to the offense. United States v Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).
Her role was not significantly less culpable than that of other couriers. The fact that she was less culpable than "organizers, leaders, managers or supervisors" does not establish that the defendant was a minor participant.
The Court did not err in refusing to reduce her offense level by two points.
Citing no authority, Appellant Walker argues that the Court erred when it denied her motion to sever her trial from that of her sister, codefendant Powell. Walker also argues that the error was compounded when the Court denied the motion to dismiss the jury venire after codefendants Brown and Butler pled guilty during the jury selection process.
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