U.S. v. Williams

• Decision Date: 05 March 1990
• Docket Number: No. 88-2907,88-2907
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patricia WILLIAMS a/k/a Candy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1034

897 F.2d 1034

UNITED STATES of America, Plaintiff-Appellee, v. Patricia WILLIAMS a/k/a Candy, Defendant-Appellant.

No. 88-2907.

United States Court of Appeals, Tenth Circuit.

March 5, 1990.

Tyrone D. Reed, Cleveland, Ohio, for defendant-appellant.

D. Blair Watson, Asst. U.S. Atty. (Robert E. Mydans, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before SEYMOUR, ANDERSON, Circuit Judges, and KANE, District Judge. ^*

STEPHEN H. ANDERSON, Circuit Judge.

Appellant, Patricia Williams, was convicted after a jury trial of one count each of engaging in racketeering activities and conspiracy to participate in such activities in violation of 18 U.S.C. Secs. 1961, 1962(c) and (d); one count of conspiracy to distribute heroin; two counts of interstate travel to facilitate the conspiracy; and three counts of possession of heroin with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846, 18 U.S.C. Sec. 1952(a)(3), and 18 U.S.C. Sec. 2. Williams was tried together with Donald Rogers, a coconspirator named in the indictment with Williams and other conspirators. The district court sentenced Williams to concurrent prison terms of 360 months for the four most serious counts, the minimum term according to the appropriate range for those offenses under the sentencing guidelines. ¹ These terms were to be served concurrently with terms of 240 months each on two lesser counts and 60 months each on the remaining two counts. Following the prison terms, the court sentenced Williams to concurrent terms of supervised release of five years each for six counts, three years each for the remaining two.

On appeal, Williams contends that the trial court committed several errors which warrant reversal of the guilty verdict or vacation of the sentence imposed. She contends that the trial court erred by (1) denying her motion to transfer venue, (2) denying her motion for severance, (3) refusing to suppress evidence gathered during a search based on an allegedly invalid search warrant, (4) determining her sentence by application of the sentencing guidelines, (5) increasing her sentence under the guidelines for her role as a "leader or organizer" of the conspiracy and for obstructing justice, and (6) calculating the base offense level under the guidelines based on the total quantity of drugs known to Williams to be involved in the conspiracy. We conclude that each of these arguments is meritless as detailed below.

I. VENUE

Williams first contends that the district court should have granted her motion to transfer venue from Oklahoma, where the trial was held, to California, where she resided. This court has stated that "[C]hange of venue in a criminal case is discretionary, and a trial judge's decision on the matter is entitled to deference." United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982) (citing United States v. Jobe, 487 F.2d 268, 269-70 (10th Cir.1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974)); see United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981) and 454 U.S. 831, 102 S.Ct. 127, 70 L.Ed.2d 108 (1981). Even if sufficient reasons exist so that the trial court would have been justified in granting a motion to change venue, we will not reverse the lower court's decision unless the circumstances surrounding the trial compel it. See United States v. Calabrese, 645 F.2d at 1384.

The proper venue for criminal actions is normally "in [the] district in which the offense was committed." Fed.R.Crim.P. 18. A court may transfer a proceeding to another district, upon motion, "[f]or the convenience of parties and witnesses, and in the interest of justice." Fed.R.Crim.P. 21(b). In this case, the district court was justified in keeping the trial in Oklahoma. Most of the principal witnesses who appeared against Williams resided in or were located in Oklahoma. Williams supplied drugs to individuals located in Oklahoma and she participated in an ongoing conspiracy to distribute those drugs in Oklahoma. The conspiracy in which she was involved included a large heroin distribution organization employing a number of people operating out of Oklahoma City, Oklahoma. See United States v. Ware, 897 F.2d 1538 (10th Cir.1990). Oklahoma was therefore the "location of events likely to be in issue," as well as "the location of documents and records likely to be involved." Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964).

Williams contends that several "character witnesses" were unable to testify on her behalf because of the trial location, and that the location was far from her residence and place of business. These facts alone do not compel a change in venue; the countervailing considerations listed above outweigh Williams' claim that some minor witnesses may have been inhibited from appearing solely by virtue of the trial location. The trial court did not abuse its discretion in denying the motion for change of venue.

II. SEVERANCE

Williams was tried with a coconspirator, Rogers, with whom she had been charged jointly under Fed.R.Crim.P. 8. "[D]efendants charged jointly under [that rule] 'are not entitled to separate trials as a matter of right.' " United States v. Cardall, 885 F.2d 656, 667 (10th Cir.1989) (quoting Bailey v. United States, 410 F.2d 1209, 1213 (10th Cir.), cert. denied, 369 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232 (1969)). Where joinder is otherwise proper, a trial court may grant severance if it appears that the defendants will be prejudiced by a joint trial. Fed.R.Crim.P. 14; see United States v. Calabrese, 645 F.2d at 1384-85. The trial court's decision to deny a motion for severance will not be disturbed on appeal absent an affirmative showing of an abuse of discretion. United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). "To establish abuse of discretion more is required than that separate trials might have offered a better chance for acquittal of one or more of the accused." United States v. Knowles, 572 F.2d 267, 270 (10th Cir.1978).

Applying these standards, Williams has failed to show any specific prejudice to warrant reversal of the trial court's decision. Williams' only claim of prejudice resulting from the joint trial is that evidence adduced at trial against her codefendant did not relate to her involvement in the conspiracy and that such evidence of the codefendant's involvement prejudiced her own case. Specifically, she contends that she was prejudiced by the admission of the following evidence against Rogers, her codefendant: $5,000 taken from beneath the seat of Rogers' car; the apparent smell of drugs under that same automobile seat to which police dogs alerted at the time of Rogers' arrest; and wire tap evidence strongly implicating Rogers in the conspiracy. At most, Williams' claim amounts to an allegation that this evidence " 'spilled over,' impairing [her own] chances for acquittal. Under our precedent, severance is clearly not warranted on this basis." United States v. Cardall, 885 F.2d at 668.

The district court instructed the jury during the course of the trial that evidence admitted against one defendant was only relevant to that defendant. The court's final jury instruction stated:

"Throughout the trial, I have instructed you that certain evidence may be considered by you only with regard to a particular defendant or a particular issue in the case. I advise you that these instructions have been given to you in order to inform you of the legal limitations placed on the use of the evidence."

R.Supp. Vol. II, Tab 520, Instruction 15. We conclude that the court properly instructed the jury and that the jury considered only that evidence which it properly could in reaching its verdict against Williams. See United States v. Cardall, 885 F.2d at 668 ("The assumption that juries can and will follow the instructions they are given is fundamental to our system of justice.") (citing Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (plurality opinion)). Williams was not prejudiced by the joint trial; there was no error in the district court's denial of her motion for severance.

III. ADMISSIBILITY OF SEIZED EVIDENCE

At trial, Williams sought to suppress evidence which was gathered during a search of her home, including a telephone book containing the names and telephone numbers of various participants in the conspiracy. Although the search was conducted pursuant to a search warrant, Williams claims that the district court erred in admitting the evidence over her objection because the information in the affidavit supporting the warrant was insufficient to constitute probable cause for the search and was impermissibly stale. Also, Williams claims that the warrant was overly broad and failed adequately to limit the items which it authorized to be seized.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court recognized an exception to the exclusionary rule in cases where a peace officer conducts a search "in objectively reasonable reliance on a subsequently invalidated search warrant...." Id. at 922, 104 S.Ct. at 3420. Because the admissibility of the seized evidence ultimately depends on the application of the principles developed in the Leon decision, we need not decide whether the magistrate should have issued the warrant. See United States v. Medlin, 798 F.2d 407, 409 (10th Cir.1986) (Where "an appellate court, after careful reflection, would be hard pressed to determine whether probable cause existed ... the good-faith principles established in Leon come into play directly.") (citation omitted). Williams does not claim that the affidavit supporting the warrant was in any way false or fraudulent, nor does she assert that the magistrate failed to act...