U.S. v. Wilson
| Decision Date | 09 January 1984 |
| Docket Number | Nos. 81-1870,s. 81-1870 |
| Citation | 715 F.2d 1164 |
| Parties | 13 Fed. R. Evid. Serv. 1649 UNITED STATES of America, Plaintiff-Appellee, v. Charles W. WILSON, Ronald Williams, Gerald Winfield, William Barnett, John Mosby, Louis Winfield, Charles R. Wilson, Levell Wilson, and Katherine Martin Rhone, Defendants-Appellants. to 81-1877 and 81-2054. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen M. Komie, Marc R. Kadish, Donald T. Bertucci, Robert Edwards, Richard Walsh, Gerald Collins, Carl P. Clavelli, Stephen J. Broussard, Martha A. Mills, Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., Patrick Neher, Third Year Law Student, for defendants-appellants.
Susan Bogart, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before BAUER and POSNER, Circuit Judges, and JAMESON, Senior District Judge. *
Defendants-appellants bring this appeal to challenge their convictions for various drug-related offenses, and, in the case of Defendant Charles W. Wilson, willful violation of the federal income tax laws. Defendants allege numerous errors on the part of the district court. We find that none of these allegations has merit. Accordingly, the judgments of conviction are affirmed as to all defendants.
The criminal enterprise involved in this case was an ongoing narcotics business which involved the possession and distribution of heroin and cocaine. A federal grand jury, on October 21, 1980, returned a seven count indictment charging eleven defendants with violations of 21 U.S.C. §§ 841(a)(1), 846, and 848; the indictment also charged a single defendant with violation of 26 U.S.C. § 7203.
Count One of the indictment charged Defendant Charles W. Wilson (C.W.) and Harry Cannon with conducting a continuing criminal enterprise from July 1976 through the date of indictment. The continuing enterprise charged consisted of the operation, in concert with others, of a major narcotics ring. Count One further sought the forfeiture of certain property belonging to C.W. and Cannon; the property was alleged to have been obtained with profits from the narcotics business.
Count Two charged defendants with a conspiracy to possess and distribute heroin and cocaine. Cannon and C.W. were charged with controlling the narcotics enterprise, and with procuring heroin and cocaine for distribution. Five persons, C.W., Ronald Williams (Williams), Gerald Winfield (Gerald), Charles R. Wilson (C.R.), and Howard Love (Love), were charged with the dilution, mixing, and packaging of the narcotics at various locations, including a building owned by C.W. and Katherine Martin Rhone (Rhone) at 1618 South Christiana in Chicago. Williams, Gerald, Love, and Levell Wilson (Levell) were charged as the distributors of narcotics packages to street sellers; the indictment further alleged that these four kept records of, and collected a percentage of the proceeds from, street sales of the narcotics. C.W., Love, Williams, Gerald, Rhone, Louis Winfield (Louis), C.R., and Levell were charged in Count Two as street sellers of heroin; C.R. and Levell also were charged with cocaine street sales. William Barnett and John Mosby were charged for their role as lookouts for the street sellers. Finally, Count Two charged C.W. and Cannon with collecting the proceeds from the narcotics business and with paying salaries to Williams, Gerald, Love, Barnett, and Mosby for their participation in the enterprise.
Counts Three and Four of the indictment charged Levell with the distribution of specified quantities of cocaine and heroin.
Finally, Counts Five, Six, and Seven charged C.W. with federal income tax law violations for the years 1974, 1975, and 1976.
Howard Love pled guilty to Count Two of the indictment on January 30, 1981. Under the plea agreement, Love agreed to testify on behalf of the government; the government agreed to recommend no specific sentence and to make the extent of Love's cooperation known to the sentencing judge.
A jury trial against the remaining ten defendants began on February 9, 1981. On March 31, 1981, the jury returned a verdict finding nine of the remaining defendants guilty of the offenses charged in the indictment. A mistrial was declared as to Cannon; at a later trial Cannon was also convicted.
In addition to the guilty verdict, the jury ordered the forfeiture of C.W.'s assets as listed in Count One of the indictment.
The district court sentenced the defendants in May of 1981. C.W. was sentenced to thirty years in the custody of the Attorney General on Count One; as to that Count the court also imposed a $100,000.00 fine and ordered forfeiture of C.W.'s assets. On Count Two, C.W. received a concurrent sentence of fifteen years incarceration; an additional fine of $25,000.00 also was imposed. Finally, C.W. was sentenced to a one-year concurrent sentence on each of Counts Five, Six, and Seven; an additional $10,000.00 fine was imposed for each of these counts as well. The sentences of incarceration for Counts Five through Seven were suspended, and a five-year probation period was imposed to run consecutively to the thirty-year incarceration.
Williams was sentenced to fifteen years incarceration on Count Two. Gerald received a twelve-year sentence on Count Two. Mosby's sentence on Count Two was five years incarceration; Barnett received an eight-year sentence. Louis was sentenced to six years incarceration and a $5,000.00 fine was imposed. C.R. was sentenced to six years incarceration; this sentence was consecutive to a state sentence C.R. was serving. Rhone was sentenced to a three-year period of incarceration on Count Two; additionally, the court imposed a $25,000.00 fine on Rhone.
Levell was sentenced to an eight-year period of incarceration and a $10,000.00 fine on Count Two. As to Counts Three and Four, Levell received a concurrent sentence of eight years on each as well as a $10,000.00 fine. The court also imposed a twenty-year special parole period on Levell with respect to Counts Three and Four.
With the exception of C.W., all defendants were released on bond pending appeal; all filed timely Notices of Appeal. We have jurisdiction of these direct criminal appeals pursuant to 28 U.S.C. § 1291.
Defendants have filed a joint brief on this appeal in which they urge several grounds for reversal of their convictions. First, defendants contend the district court's voir dire of the jury was inadequate in light of extensive, prejudicial pretrial publicity. Second, defendants urge that the trial judge abused his discretion by failing to hold an evidentiary hearing on certain allegations of prosecutorial misconduct. Third, defendants contend that their motions for severance were denied improperly. Fourth, defendants argue that the trial court erred by failing to hold an evidentiary hearing on an allegation of juror misconduct. Fifth, defendants claim they should have been allowed to use all of Love's prior convictions, dating back more than thirty years, for impeachment. Defendants' final joint claim on appeal is that the district court erred by not ordering grants of immunity to certain defense witnesses who refused to testify.
In addition to their joint appeal, individual briefs were filed by Defendants Mosby, Barnett, and Rhone. Barnett and Rhone argue that the evidence presented at trial was insufficient to support the jury verdicts with respect to them. Mosby also challenges the sufficiency of the evidence to support his conviction. Additionally, Mosby contends that the district court erred in denying his motion for a severance and that the district court erred by excluding certain evidence Mosby sought to introduce.
For reasons set forth below, we find that none of the arguments advanced by the defendants has merit. Accordingly, we affirm their convictions.
At the time the indictment was returned in this case, the narcotics ring operated by the defendants was a major source of street sale drugs in Chicago; on a typical day the organization sold over $10,000.00 worth of heroin and cocaine. Thus, the case attracted extensive pretrial media coverage. Defendants now contend that by its failure to question each juror individually about his or her exposure to that publicity, the district court failed to adequately protect defendants' right to an impartial jury.
Where, as here, a jury's impartiality is challenged on the basis of pretrial publicity, the defendants must show that exposure to the publicity caused the actual existence of an opinion in a jury's mind at the time of trial. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1960). A mere showing that the jurors were familiar with news articles concerning the narcotics ring cannot establish prejudice because " '[i]t is not required ... that jurors be totally ignorant of the facts and issues involved,' especially given the presumption of juror impartiality that applies in all cases." United States v. Kampiles, 609 F.2d 1233 (7th Cir.1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980) (quoting Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1960)).
This circuit has addressed repeatedly the procedures to be used to insure juror impartiality where prejudicial pretrial publicity is brought to the trial court's attention. And, we have consistently rejected the rule proposed by the defendants here that an individual examination of the jurors be conducted in all cases where pretrial publicity is at issue. United States v. Kampiles, 609 F.2d 1233 (7th Cir.1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); United States v. Carter, 602 F.2d 799 (7th Cir.), cert. denied, 444 U.S. 967, 100 S.Ct. 457, 62 L.Ed.2d 380 (1979); Margoles v. United States, 407 F.2d 727 (7th Cir.), ...
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