U.S. v. Webster

• Decision Date: 11 June 1984
• Docket Number: No. 83-1191,83-1191
• Citation: 734 F.2d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Russell WEBSTER, Jr., Delbert Paul Hoskins, Robert Bode and John Jay Caperton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1048

734 F.2d 1048

UNITED STATES of America, Plaintiff-Appellee, v. John Russell WEBSTER, Jr., Delbert Paul Hoskins, Robert Bode and John Jay Caperton, Defendants-Appellants.

No. 83-1191.

United States Court of Appeals Fifth Circuit.

June 11, 1984.

Dick DeGuerin, Houston, Tex., for Webster.

Jack T. Lassiter, Little Rock, Ark., for Hoskins.

Thomas E. Hanson, Memphis, Tenn., for Bode.

Dan C. Guthrie, Jr., Dallas, Tex., Caperton.

James A. Rolfe, U.S. Atty., Dallas, Tex., Robert R. Smith, Asst. U.S. Atty., Mervyn Hamburg, Atty., Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before JOHNSON, HIGGINBOTHAM, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge.

In November 1981, a barber in Dallas, Texas named Kenneth Grindele walked into the Dallas United States Attorney's Office and identified himself as a cocaine user and "small time" dealer. Grindele advised federal authorities that he had been involved in cocaine trafficking with appellant John Russell Webster, that he was indebted to Webster and in fear of his life due to his inability to pay Webster. He explained further that he was aware of other individuals involved in the Dallas cocaine market, and was willing to exchange this information for government protection and immunity from prosecution. ¹ The ensuing investigation resulted in what was referred to as the biggest cocaine bust in Dallas history. Appellants John Russell Webster, Delbert Paul Hoskins, John Jay Caperton, and Robert Bode appeal from their convictions resulting from this investigation. Finding no reversible error, we affirm the appellants' convictions.

I. Background and Course of Proceedings

The evidence presented at trial demonstrated that appellants Webster, Caperton, Hoskins, and Bode were involved extensively in cocaine trafficking. Over the course of about two years, these individuals engaged in numerous cocaine transactions involving large amounts of high-quality cocaine, which would be cut and sold or fronted to cocaine dealers who would distribute the cocaine to individual users. While appellants distributed most of the cocaine in Dallas, Texas, the evidence established that appellants often would travel to Georgia or Florida to obtain high-quality cocaine.

One of appellant Webster's regular dealer-customers was a Dallas barber named Kenneth Grindele. At one time, Grindele purchased as much as two ounces from Webster at $1700 per ounce. Grindele consumed some of the cocaine himself and sold the remainder to individual consumers. In October 1981, Grindele's wife discovered his two ounce supply of cocaine and destroyed it. At the time, Grindele owed Webster $5000, including $3400 for the cocaine destroyed by his wife. Fearful that he would be harmed by Webster because he could not make any payment, Grindele decided to tell the government what he knew about appellants' activities. As a result of this and other information, DEA and FBI agents cooperated in a joint investigation of Webster and his associates.

In December, Grindele, equipped by law enforcement officers with a body microphone, made two purchases from Webster and four from Danny Stone, another of Webster's customers. In June 1982, a federal magistrate approved a request to conduct electronic surveillance of telephones at the residences of Webster and Stone. Wiretaps were initiated on Webster's telephone on June 4 and continued, pursuant to a court approved extension, to August 1, 1982. As a consequence, the law enforcement officers learned of Webster's plans to travel to Florida on July 2 to acquire cocaine. ²

On the date of Webster's departure from Dallas, agents observed him arrive at the airport in Gainesville, Florida at 6:45 p.m. There he was met by Martin Lewis, a friend involved in the cocaine business, who was driving appellant Hoskin's pickup truck. They drove to a hotel parking lot and remained in the car bent over out of sight for a short period of time. Then, they conversed for about ten minutes, and later Webster checked into the hotel. Meanwhile, Lewis drove to a jai alai arena where he met appellant Hoskins. Lewis and Hoskins remained together from 8:00 p.m. until 11:45 p.m., when Hoskins left the arena. A half hour later, Lewis departed and drove the pickup truck to Hoskins' ranch. On the following day, Webster checked out of the hotel and flew to Miami. He rented a car and drove it first to a store where he purchased Inositol, a substance commonly used to dilute cocaine. Webster returned to Dallas on July 8.

Webster, Caperton and Hoskins were arrested at their individual residences on August 6, 1982. At the time of arrest, agents, armed with warrants, conducted searches of the Webster and Caperton residences. Inside Webster's home the agents discovered, inter alia, cash and undeposited checks, a triple beam scale, large quantities of cocaine and cocaine paraphernalia. At Caperton's residence, the agents found weapons, packages of cocaine, drug paraphernalia and dilutents. In a garage, the agents located a floor safe, which contained $18,200 in cash, expensive jewelry, and large bags of cocaine.

The original indictment resulting from this investigation named thirty-four defendants in 88 counts. After extensive plea bargaining, the government proceeded to trial on a fifty-count indictment against the four defendant-appellants involved herein. The indictment charged these four individuals with numerous violations of federal narcotics laws. ³ Additionally, appellant Webster only was charged with one count of engaging in a continuing criminal enterprise. See, 21 U.S.C. Sec. 848. The trial of the case took over six weeks, involved 52 witnesses, and resulted in a trial transcript exceeding 5000 pages. Appellant Webster was convicted on twenty counts, sentenced to imprisonment for 60 years, fined $150,000, and subjected to a five-year special parole term. However, Webster was not convicted on the continuing criminal enterprise count. In fact, the trial judge declared a mistrial on the continuing criminal enterprise count when the jury was unable to reach a verdict. Appellant Hoskins was convicted on four counts, sentenced to imprisonment for 30 years, fined $70,000, and subjected to a five-year special parole term. Appellant Caperton was convicted on five counts, sentenced to a total of twenty-five years incarceration, fined $30,000 and subjected to a five-year special parole term. Finally, appellant Bode was convicted on three counts, sentenced to imprisonment for six months followed by probation for four and a half years and fined $80,000. All appellants filed a notice of appeal and have raised numerous issues on appeal.

II. Severance

All four appellants contend that the district court erred by refusing to grant their motions for severance. Webster, the alleged kingpin in the cocaine conspiracy and the only appellant charged with a continuing criminal enterprise violation, argues that the district court erred by refusing to sever the continuing criminal enterprise count from the remaining conspiracy and substantive counts. According to Webster, he was compelled to adopt a strategy of defense whereby he admitted having committed some of the acts charged in the conspiracy and substantive counts, in order to effectively maintain that he was not the kingpin in this alleged continuing criminal enterprise. Webster's codefendants argue that their trials should have been severed from Webster's since he admitted the factual accuracy of many of the conspiracy and substantive counts in which they were named in his attempt to refute the continuing criminal enterprise count.

This Court has consistently emphasized that "[p]ersons indicted together should ordinarily be tried together." United States v. Romanello, 726 F.2d 173 (5th Cir.1984). Indeed, rule 8 of the Federal Rules of Criminal Procedure provides for the joinder of multiple offenses and multiple defendants and we have stressed that "rule 8 is to be broadly construed in favor of initial joinder ..." United States v. Park, 531 F.2d 754, 761 (5th Cir.1976), citing, Tillman v. United States, 406 F.2d 930, 934 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). Nevertheless, rule 14 of the Federal Rules of Criminal Procedure provides an exception to the maxim favoring joinder of multiple offenses and multiple defendants. Rule 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendant which the government intends to introduce in evidence at the trial.

Fed.R.Crim.P. 14.

We have held often that the decision whether to grant a severance of defendants or offenses lies within the broad discretion of the district court and that this Court will not overturn the district court's decision absent an abuse of discretion. See, U.S. v. Sheikh, 654 F.2d 1057 (5th Cir.1981); United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B, 1981); United States v. Crawford, 581 F.2d 489 (5th Cir.1978); and United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). In order to establish an abuse of discretion, the defendant must show that he "received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection." See U.S. v. Berkowitz, 662 F.2d at 1132. With these precepts in mind, we review the appellants' contentions.

A. Webster's Motion to Sever Offenses

Webster concedes that the continuing criminal enterprise count was joined...