U.S. v. Winship

Decision Date30 January 1984
Docket NumberNo. 82-4571,82-4571
Citation724 F.2d 1116
Parties14 Fed. R. Evid. Serv. 1501 UNITED STATES of America, Plaintiff-Appellee, v. Bennie Ray WINSHIP, a/k/a Nip, and Jerry Bice, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Stipe, Gossett, Stipe, Harper & Estes, Eddie Harper, Gene Stipe, McAlester, Okl., for Winship.

Jerry L. McCombs, Idabel, Okl., for Bice.

Judith A. Lombardino, D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before GOLDBERG, GEE and TATE, Circuit Judges.

GOLDBERG, Circuit Judge:

A district court jury in the Western District of Louisiana convicted appellants Bennie Ray Winship and Jerry Bice on four counts of federal controlled substances violations. Counts I and II involve conspiracy, charging respectively conspiracy to possess with intent to distribute marijuana and conspiracy to possess with intent to distribute methamphetamine. Count V charges defendants with aiding and assisting one another in possessing marijuana with intent to distribute; Count V parallels Count IV, but involves methamphetamine. 1 At trial the government sketched a network of drug distribution taking in areas of Texas, Oklahoma and Louisiana, with final "distribution to consumers" occurring in Alexandria, Louisiana. The sources of the marijuana lay in South Texas and in Oklahoma, while the methamphetamine came from Oklahoma. The government's case against the appellants emerged primarily from the testimony of six indicted co-conspirators, five of whom claimed that they had personally participated in the distribution of illegal drugs in Alexandria, Louisiana. 2 Testimony from Anthony Brown, Joseph DeSoto, Jack Godeau, and John Hodnett implicated appellants as the Oklahoma source of the marijuana and methamphetamine. According to that testimony, Winship and Bice sold substantial quantities of both drugs out of Winship's home in Eagletown, Oklahoma. Although neither appellant ever traveled to any location within the Western District of Louisiana, trial testimony reflected their awareness of their coconspirator's distribution activities in Louisiana.

Upon appellants' conviction by the jury of all four counts, the trial judge sentenced Winship to two consecutive five year terms, a five year term to run concurrently with the others, and five years probation to begin after expiration of the jail terms. Bice received three five year sentences, all to run concurrently, and five years probation.

I. ISSUES ON APPEAL

Winship and Bice raise numerous points on appeal, the majority of which clearly lack merit. As to these patently meritless claims, we find no reason to belabor the obvious and therefore deny them without discussion. Appellants raise four issues on appeal, however, that do justify a more explicative approach. First, they claim that the trial court's admission of hearsay evidence, in the absence of substantial independent evidence of a conspiracy in which appellants were members, violated the standard established in United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Second, they claim that the evidence at trial showed the existence of two marijuana conspiracies, producing a prejudicial variance from the single marijuana conspiracy charged in the indictment. Third, appellants claim the trial court committed reversible error in failing to give the venue instruction requested by their defense counsel. Finally, they contend that the two conspiracies alleged in the indictment, one involving marijuana and the other methamphetamine, constituted only a single conspiracy. And, therefore, conviction of the two separate counts subjects them to double jeopardy.

II. THE JAMES ISSUE

The record here reveals that early in the government's case the trial judge admitted substantial coconspirator testimony that would have constituted inadmissible hearsay unless it had met the requirements of Fed.R.Evid. 801(d)(2)(E). This definitional section of the Rules removes a statement from the realm of hearsay if the statement is "offered against a party ... and is a statement by a coconspirator of a party during the course of and in furtherance of the conspiracy." Id. We review the trial The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator. If it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected up.

court's admission of the "potential hearsay" under the oft-quoted standard of United States v. James, supra:

Regardless of whether the proof has been made in the preferred order, or the coconspirator's statement has been admitted subject to later connection, on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E). If the court concludes that the prosecution has not borne its burden of proof on these issues, the statement cannot remain in the evidence to be submitted to the jury.

590 F.2d at 582.

During testimony by the government's first witness, the district judge below acknowledged that the testimony raised a James issue. Although stating a "preference" that the government follow the James order of presenting evidence, the judge specifically declined to limit initial government testimony to independent evidence of the conspiracy. He stated his intention to determine whether James had been complied with after the government rested its case. Record Vol. III, p. 83. However, no specific, articulated ruling on James was even made; rather, at the close of the government's evidence the district court simply overruled appellants' motions to dismiss and strike.

Appellants advance three arguments with respect to the James issue. First, they contend that the trial court erred in not following James' preferred order of admitting evidence. Neither James nor subsequent cases interpreting it support appellants' argument. The trial court has "discretion to determine the application of the James ruling and rationale in the specifics of the trial setting encountered." United States v. Whitley, 670 F.2d 617, 620 (5th Cir.1983). In particular, the trial court can admit hearsay statements subject to later connection. See United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v. Gonzales, 700 F.2d 196, 203 (5th Cir.1983). Appellants offer no compelling argument that the trial judge abused his discretion in determining the order in which evidence would be admitted. The spirit of James can be carried out without baggaging it with rigidities and inflexibilities, so long as the judge and the participants in the trial keep in mind that there must be independent evidence of the crime aside from the hearsay testimony. We find no error in the trial judge's decision to admit testimony subject to later connection.

Appellants also argue that the district court never made the "later connection" determination. They point to the absence of articulated findings to that effect. However, the fact that the trial judge failed to specifically articulate his James findings does not necessarily mean that he never decided the "later connection" issue. On the contrary, circumstances in this case indicate that the James issue received careful consideration. The record makes it clear that the trial judge was fully aware of the James issue during the trial. Moreover, he specifically stated that he intended to rule on the matter at the close of the government's case. We find that in the circumstances here, just as in United States v. Whitley, supra, 670 F.2d at 620, the failure to articulate findings and conclusions Finally, appellants argue the merits of the "later connection" issue, asserting that the government failed to present adequate independent evidence of the conspiracy and the appellants' role in it. We review these claims under the "clearly erroneous" standard. United States v. Ackal, 706 F.2d 523, 531 (5th Cir.1983); United States v. Nichols, 695 F.2d 86, 91 (5th Cir.1982). Under this standard the record does not support appellants' argument. Substantial nonhearsay testimony exists both as to the existence of the conspiracy and as to the participation in that conspiracy of appellants and the testifying coconspirators. 3 James demands that we be ever protective that hearsay evidence, unless it has independent support, shall not become convicting words. While acknowledging that James remains an important concept in our law, we can find neither its letter nor its spirit violated in the proceedings below.

that James has been met does not constitute reversible error.

III. AN UNCHARGED SOUTH TEXAS CONSPIRACY?

Appellants contend that the trial judge admitted evidence regarding two separate and distinct marijuana conspiracies--one occurring in Louisiana and Oklahoma and one occurring in South Texas and Oklahoma. They further contend that this variance between the indictment and the proof resulted in prejudice, claiming that introduction of evidence on a geographically and conceptually distinct "South Texas conspiracy" surprised them at trial. A reversal in this case, based on variance between indictment and proof, would require two findings: (1) the evidence at the trial actually proved two separate...

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