United States v. Works, 75-1539.

• Decision Date: 09 February 1976
• Docket Number: No. 75-1539.,75-1539.
• Citation: 526 F.2d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray WORKS and Gaye William Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 940

UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray WORKS and Gaye William Brown, Defendants-Appellants.

No. 75-1539.

United States Court of Appeals, Fifth Circuit.

February 9, 1976.

Joe J. Johnson, Jr., Fort Worth, Tex. (Court-appointed), for Works.

Roland H. Hill, Jr., Fort Worth, Tex., for Brown.

Frank D. McCown, U.S. Atty., Fort Worth, Tex., Judith A. Shepherd, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Before GEWIN, BELL and SIMPSON, Circuit Judges.

GEWIN, Circuit Judge:

Appellants Danny Ray Works and Gaye William Brown were convicted under Count I of an indictment charging a conspiracy,¹ from September 16 through September 21, 1975, to possess with intent to distribute and to distribute lysergic acid diethylamide (LSD).² Appellants were also convicted under Count II of the substantive offense of possession with intent to distribute LSD.³ Additionally, appellant Brown was convicted under Count III of the indictment, which charged him with assaulting federal officers.⁴ Both appellants were sentenced to two years on both Counts I and II and Brown was sentenced to six years on Count III, all sentences to be served concurrently.⁵ We affirm. Since the factual setting and sequence of events are quite important in this case, we will set out below the occurrences in rather detailed fashion under each relevant date.

A. September 4, 1974

This date is not encompassed within the indictment time span. Nevertheless, Special Agent Grafton of the Bureau of Alcohol, Tobacco and Firearms (ATF) testified without objection that on this date, in the course of a conversation, appellant Works informed him that "he sold a few pills."⁶

B. September 11, 1974

This date is not encompassed within the indictment time span. ATF Agent Grafton testified that on this date, "Danny Works advised me that he was taking 40,000 tabs of LSD hits—excuse me, Mescaline, to a friend of his named Alex in Durant, Oklahoma." There was no objection to this testimony. Grafton also testified that he saw a pistol hanging on a wall in Works' house, which is located in Fort Worth, Texas.

C. September 16, 1974

On this date Agent Grafton and Special ATF Agent Larry Arnold met Works at his residence and accompanied him to a house occupied by one Don and his family. While there, Grafton testified over objection that "two high school-looking kids" came by and asked Don if he had any marijuana. After this testimony Works' motion for a mistrial was denied, but he was granted his request that the jury be instructed to disregard this evidence.⁷

Grafton went on to testify that during the trip back to Works' residence, there was some discussion of drugs among Arnold, Works and himself. Grafton testified that Arnold told Works that he (Arnold) would like to get a load of mescaline to take to Laurel, Mississippi because "hallucinating drugs were hard to get" in that area. Grafton further testified that Works said he would be receiving a load of mescaline from Austin by means of a "runner", whom he would meet on a deserted farm south of Fort Worth. Works offered the drugs for 45 cents per "hit",⁸ and Arnold and Grafton indicated their interest in obtaining two to four thousand "hits." Works said the drugs could be expected in three or four days.

Agent Arnold confirmed Grafton's account of the conversation, but added, over objection, two crucial factors. First, Arnold testified that Works said he was going to have a friend with a high-powered rifle guarding the farm where the mescaline was to be picked up.⁹ Secondly, Arnold testified that Works said his sister in high school sold mescaline for him and that she would take at least 1000 hits of it. Works' attorney objected to this testimony as involving an extraneous offense and being highly prejudicial and irrelevant, but the objection was overruled.¹⁰

D. September 20, 1974

Agent Grafton testified that at about 12:30 p. m. he and Agent Arnold went to Works' residence where they spoke to Patricia Jean Works, Danny's wife. Grafton testified that Mrs. Works said Danny "was out doing business, that the guy from Austin came up that morning and brought him some LSD. . . ." She said Danny was out collecting money and would be back at any time. Grafton further testified¹¹ that Mrs. Works told him that the "runner" had gone back to Austin to pick up some more narcotics, from which the agents' 2000 "hits" would come. Grafton told Mrs. Works he would be back later.¹² The agents then left the Works' residence.

At 5:30 or 6:00 p. m. Agents Grafton and Arnold returned to the Works' house. Danny Works was present then and Grafton asked him "had the drugs come in," to which Works replied in the negative.¹³ Accordingly, the agents left the residence and returned in about an hour. The runner had still not arrived, however, so Grafton left his phone number and asked Works to call him when the source did arrive.

E. September 21, 1974

Before Agents Grafton and Arnold returned to the Works' residence after midnight, other ATF agents and Houston policemen placed the location under surveillance. In the early morning hours of September 21, Grafton and Arnold arrived at the residence. Several persons, including the appellants, were at Works' house at that time.

Danny Works and Agent Grafton stepped onto the porch to discuss their narcotics deal. Grafton "asked him Works had he received the drugs¹⁴ and he stated that all he had was four or five hundred tabs of LSD left," and, "told him we would take that and he advised us it was going to be 65 cents a tab rather than 45 cents and I told him we would pay the price for it." Grafton also saw the revolver that he had seen earlier that evening on the Works' couch.

The actors then began negotiating the mechanics of the transaction: Works expressed the desire that one agent go with him and another with Brown, but the two agents insisted on staying together. Meanwhile, appellant Brown began walking across Works' front yard.¹⁵ Brown then called to Works, telling him to "`come here,'" but Grafton objected to Works' going to Brown. Brown then walked to the house, simultaneously telling Works to come to him. When Brown reached the house he obtained the pistol from inside the front door and pointed it at the two agents. The agents were told by Brown to put their hands up. After various maneuverings a gun battle ensued, leaving Brown and several of the other civilians injured.¹⁶

Arnold testified that after investigating and securing the house, he returned to where Brown lay wounded on the ground and "asked him how he was and he said he was hit but he thought he was okay. And he said, `Did you get the stuff yet?' and I said, `No, not yet.' And he said, `It is by the bush.' And I walked over to the bush."¹⁷ The agents then recovered the LSD under that bush, which was located on the lot adjacent to Works'.¹⁸ Both appellants objected to the introduction of the narcotics evidence on the grounds of no proper predicate and failure to show a custodial or possessory nexus with the appellants. These objections were overruled, just as defendants' earlier motion to suppress had been denied. We turn now to consideration of the appellants' arguments that their convictions should be reversed.

Appellants' major point of contention is that the trial court committed reversible error by allowing into evidence the testimony of Agents Grafton and Arnold about narcotics other than LSD (mescaline and marijuana). We have concluded that, although the admission of some or possibly all of this evidence was indeed error, under the facts and in the circumstances revealed by the record in this case that error was harmless beyond a reasonable doubt and the convictions are affirmed pursuant to the concurrent sentence doctrine.¹⁹

Appellants first argue that the trial court erred in not granting a mistrial after Grafton's testimony about the conversation between Don and the two boys concerning a marijuana deal.²⁰ Works was present at this conversation, but was not a participant therein and apparently had nothing to do with the transaction. This evidence was conceded by the government to be inadmissible and it should not have come in. However, the trial judge did immediately and lucidly instruct the jury that this evidence should not be considered by them for any purpose. In these circumstances, the failure to declare a mistrial is not reversible error. Although this testimony was not admissible, the government proved its case solidly with admissible evidence,²¹ rendering the error harmless beyond a reasonable doubt, see United States v. Bowdach, 501 F.2d 220, 227-28 (5th Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 426 (1975). Disposition of a motion for mistrial is a matter resting within the sound discretion of the trial court, and the district court did not abuse that discretion here in concluding that any prejudicial effects of this testimony could be cured by its immediate instruction, see, e. g., United States v. Cox, 487 F.2d 634, 636-37 and n.2 (5th Cir. 1973). The questioned testimony fits snugly under the aegis of the general rule that an error in admitting evidence can, in many circumstances, be cured by withdrawing it from the jury and giving curative instructions, e. g., United States v. Smith, 517 F.2d 710, 711 (5th Cir. 1975); United States v. Troise, 483 F.2d 615, 618 (5th Cir.), cert. denied, 414 U.S. 1066, 94 S.Ct. 574, 38 L.Ed.2d 471 (1973).

Secondly, appellants contend that the admission of the testimony about dealings in mescaline, especially that pertaining to Works' high school sister, was immaterial and highly prejudicial,²² because, appellants assert, they were indicted for illicit LSD activities, not for illegal dealings in mescaline.²³ The government responds by contending that the evidence establishes that the transactions between the agents and Works establish a mutual intent to deal in any kind of hallucinogenic drugs; that Works'...