U.S. v. Wint

• Decision Date: 28 August 1992
• Docket Number: 91-3832 and 91-3855,Nos. 91-3831,s. 91-3831
• Citation: 974 F.2d 961
• Parties: 36 Fed. R. Evid. Serv. 885 UNITED STATES of America, Appellee, v. Michael WINT, Appellant. UNITED STATES of America, Appellee, v. Charlie MURDOCK, Appellant. UNITED STATES of America, Appellee, v. Stanley Arthur BRYAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 961

974 F.2d 961

36 Fed. R. Evid. Serv. 885

UNITED STATES of America, Appellee, v. Michael WINT, Appellant.

UNITED STATES of America, Appellee, v. Charlie MURDOCK, Appellant.

UNITED STATES of America, Appellee, v. Stanley Arthur BRYAN, Appellant.

Nos. 91-3831, 91-3832 and 91-3855.

United States Court of Appeals Eighth Circuit.

Submitted June 8, 1992.

Decided Aug. 28, 1992.

Steven A. Pihlaja, Minneapolis, Minn., argued for appellant Michael Wint.

Linda M. Ojala, Minneapolis, Minn., argued for appellant Charlie Murdock.

Michael J. Majewski, St. Paul, Minn., for appellant Stanley Arthur Bryan.

Carol A. Needles, Minneapolis, Minn., argued (Thomas B. Heffelfinger, Carol A. Needles and Nathan Radcliff, on brief), for appellee.

Before WOLLMAN, Circuit Judge, BRIGHT and ROSS, Senior Circuit Judges.

WOLLMAN, Circuit Judge.

Charlie Murdock and Michael Wint appeal from their convictions and sentences ¹ for conspiracy to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846, aiding and abetting the distribution of cocaine, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2, and threatening a witness with the intent to influence his testimony, 18 U.S.C. §§ 2, 1512(b)(1). Stanley Bryan appeals from his convictions for conspiracy and aiding and abetting. We affirm.

I.

The convictions of Murdock, Wint and Bryan centered around a drug transaction that occurred at a Minneapolis-St. Paul area hotel. Bryan, testifying for the government without any promises or grant of immunity, described the events preceding that transaction. While in a Chicago nightclub, Bryan related to a woman how acquaintances of his in the Twin Cities had asked him where they could obtain cocaine. The woman in turn told Bryan about various "Jamaican posses," the "businesses" they were involved in, and how Bryan could "make some money" if he was interested. Bryan knew that the posses had a reputation for drug-dealing and violence, and he told the woman that he was not interested.

On four different occasions soon thereafter Bryan was approached by men, some of them armed, who tried to convince him to join one of the posses. Bryan stated that the men threatened him and his wife, told him they were watching him, and on one occasion displayed a picture of him and his wife with an "X" marked on his wife's image. Murdock and Wint were each present at one of these encounters, but Bryan did not state that either one made such threats. On the first two occasions Bryan refused to join, but on the third he told the posse representatives that he would think about it.

After this third encounter Bryan visited a local police station but was told that the police could do nothing without some corroboration of Bryan's story. Neither Bryan nor his wife suffered any repercussions after his visit to the police. Both travelled to and from work without incident; posse members did not escort them.

Upon being contacted a fourth time, Bryan agreed to work for the posse, whereupon posse members instructed him to contact one of his acquaintances in the Twin Cities. Bryan thereafter cooperated in arranging and delivering cocaine to the acquaintances, "Bill" and "Robin," on four separate occasions. On the first of these occasions Bryan was accompanied by a man, on the second by a woman, and on the third by Murdock. Bryan saw no evidence of any weapons during the four trips to sell drugs. The fourth transaction is the one for which Wint, Murdock and Bryan were arrested.

Murdock, Wint and Bryan drove from Chicago to conduct the cocaine transaction in the Twin Cities. When they arrived Bryan called "Johnnie Johnson," who directed them to the Sheraton Airport Hotel. Johnson met them in the hotel parking lot and provided them with the cocaine. Wint put the cocaine into Bryan's briefcase and retained control of it until just prior to the drug transaction.

Bryan told Johnson that he (Bryan) wanted Johnson and Bill to meet so that they could conclude their drug transaction without Bryan's having to be further involved. Johnson replied that he did not want to meet Bill and that if Bryan refused to go through with the deal "all it would take ... was a phone call to Chicago, and they could kill [Bryan's] wife." United States v. Stanley Arthur Bryan, Charlie Murdock & Michael Wint, No. 4-91-71, Trial Transcript at 367 (D.Minn. Aug. 27, 1991) ("Trans.").

Bryan and Wint entered the hotel at about 5:00 a.m. on April 25, 1991, and requested two rooms. Bryan filled out the registration cards for both rooms, one card in his own name and the other, per Wint's instructions, in the name of "Johnnie Johnson." Bryan showed Wint the card filled out in the name of Johnson. Murdock later checked out of the two rooms, signing the name "Johnnie Johnson" to both check-out sheets.

Wint kept the cocaine with him in the room registered to Johnson, while Bryan stayed in the other room with Murdock. ² Later that morning, Bryan called Bill, who was a confidential informant, to arrange the cocaine transaction. Bill arrived and told Bryan that he would return later that morning with a friend who would participate in the deal. While waiting, Bryan went alone to a nearby Fina service station to get cigarettes.

When Bryan returned he met Murdock outside the hotel. Murdock informed Bryan that the contact person for the deal--Bill--was in the lobby. Murdock proceeded toward the van, carrying the briefcase. Still later, at about the time of the transaction, another police officer conducting surveillance observed Wint walking about the hotel parking lot in a "nondirect" or "circular" manner and "looking around quite a bit." ³

Bryan found Bill, and the pair went to meet Bill's "friend," who was in fact an undercover police officer. Per instructions from Murdock and Wint, Bryan gave the undercover officer a cocaine sample that he had received from Wint. The undercover officer approved of the sample, and Bryan told him to drive to the back of the hotel and wait while Bryan retrieved the cocaine.

Bryan and Bill returned to the van, obtained the drugs from Murdock, walked back to the undercover officer's car and sold him 718.9 grams of cocaine. Bryan was arrested shortly after the transaction.

Murdock was arrested in the van. Officers found in his possession an Illinois driver's license in the name of Charlie Murdock and a "Video City" rental card in the name of "Kadane Curtis." Wint was arrested outside the hotel. In his possession officers found receipts for the two hotel rooms.

Police officers questioned Bryan immediately after his arrest, and he confessed to them that Murdock, Wint, and he were all involved in the cocaine transaction at the Sheraton Hotel. At his first court appearance, however, Bryan testified that Murdock and Wint were not guilty. Bryan also prepared a note, addressed to his attorney, in which he stated that he wished to plead guilty to one count of the indictment and that Murdock and Wint had no idea that the purpose of the trip to the Twin Cities was to sell drugs. At trial, Bryan explained why he changed his story.

The first time after we been arrested they been pressuring me to plead[ ] guilty to accept the charge, the fall for all the charges, and pressuring me into pleading guilty. And they threatened to kill me and my family if I didn't. So they told me I should tell the judge that they didn't have nothing to do with it, and I told him, and they said I should [tell] my attorney.

. . . . .

I just did it ... because I didn't want my family to be harmed by these guys. I was scared for my wife's li[fe], because I was in custody, I wasn't there to help her in any way whatsoever.

Trans. at 189-90. Bryan also stated that both Murdock and Wint threatened to kill Bryan, his wife, his family and "all the people that [were] close to [him]." Trans. at 193. An inmate at the facility where Murdock, Wint and Bryan were held corroborated Bryan's story. He stated that he overheard Murdock and Wint threatening that Bryan's life would be in danger unless he took "the whole rap for something that they done, all three of 'em." Trans. at 256.

A superseding indictment charged Murdock and Wint on three counts and Bryan on two counts. All three were charged with conspiracy to distribute cocaine, Count I, and aiding and abetting in the distribution of cocaine, Count II. Murdock and Wint were also charged with threatening to kill Bryan, Count III.

At the trial the prosecution introduced evidence in addition to that described above. Specifically, the government introduced evidence that Wint had been arrested in New York in 1986 while in possession of fifty-four vials of crack cocaine. The officer who had apprehended Wint in New York testified that, based on his experience, fifty-four vials of crack is an amount commensurate with distribution, not personal use. Bryan also testified that, in addition to his real name, he knew Murdock by the names Kadane Curtis and Bigga. Finally, a district manager for the Social Security Administration testified that the social security number on Murdock's driver's license had been assigned to George Cole Williams, not Murdock.

The three defendants were tried together and a jury returned verdicts of guilty on all charges. The court sentenced Murdock and Wint to 144 months' imprisonment, an upward departure from the seventy-eight to ninety-seven month range called for by the guidelines. The court granted Bryan a downward departure and sentenced him to thirty months. All three defendants appeal from their convictions. In addition, Murdock and Wint appeal from their sentences.

II.

Murdock and Wint both argue that the district court erred in refusing to sever their trials from Bryan's. We have stated that "[r]arely, if ever, will it be improper for co-conspirators to be tried together." United States v. Drew, 894 F.2d 965, 968 (8th Cir.), cert. denied, 494 U.S 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). The decision whether to grant severance is committed to the discretion of the...