USA v. Stokes, 99-2790

• Decision Date: 02 May 2000
• Docket Number: No. 99-2790,99-2790
• Citation: 211 F.3d 1039
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY B. STOKES, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1039

211 F.3d 1039 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY B. STOKES, Defendant-Appellant.

No. 99-2790

In the United States Court of Appeals For the Seventh Circuit

Argued January 20, 2000

Decided May 2, 2000

Appeal from the United States District Court for the Southern District of Illinois. No. 98-CR-30175-WLB--William L. Beatty, Judge.

Before COFFEY, MANION and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

A federal grand jury returned a four-count indictment against Defendant-Appellant Timothy Stokes ("Stokes") charging him in Count one with distributing cocaine base, in Count two with possessing with intent to distribute cocaine base, in Count three with using a firearm during and in relation to a drug-trafficking offense, and in Count four with possessing a firearm as a felon. The jury returned a guilty verdict on all four counts and the court sentenced the defendant to 145 months on Counts one and two, to be served concurrently and concurrent with each other, a consecutive 60 month term on Count three and a concurrent 120 month term on Count 4, for a total of 205 months' imprisonment followed by eight years' supervised release. Stokes appealed, challenging the district court's denial of his motion to sever the felon in possession of a firearm count and the two-level upward adjustment for obstruction of justice.

We AFFIRM.

I. BACKGROUND

In October 1998, a confidential informant and an undercover agent for the Metropolitan Enforcement Group of Southwestern Illinois arranged a series of crack transactions with Stokes in East St. Louis, Illinois. On October 6, with a surveillance team nearby, the undercover agent and the confidential informant met the defendant at the East St. Louis, Illinois residence of the informant. During this meeting at the informant's residence, Stokes delivered 5.3 grams of cocaine base (also referred to as crack) in exchange for $350.¹ They met again the following day and Stokes sold the undercover agent approximately 28.2 grams of purported crack for $900.² The undercover officer was unsuccessful in arranging further meetings due to the defendant's growing suspicions that he was a law enforcement officer.

Stokes contacted the informant again and they agreed to meet at the informant's home, but not only for another drug sale; Stokes wanted to trade his .380 caliber semi-automatic weapon and a quantity of crack cocaine for a 9 millimeter pistol. Stokes was arrested on his arrival by officers from the Illinois State Police and the Bureau of Alcohol, Tobacco and Firearms. During the search incident to Stokes' arrest, a loaded .380 caliber Browning pistol was found concealed in his pants and .2 gram of crack was discovered in his pants pocket.³

Prior to trial, Stokes moved to have Count four, the felon in possession of a firearm charge, severed and tried separately from the other counts of the indictment, arguing that inclusion of the felon in possession count would allow the jury to consider otherwise inadmissible evidence regarding his criminal history. At the conclusion of a pre-trial hearing, the trial judge denied the defendant's motion to sever, ruling that joinder was appropriate and that the charges involved were routinely tried together. The judge also suggested that the defendant could stipulate, as is typically done, to the prior felony convictions and thereby preclude testimony regarding the nature of his convictions.

During the trial, the defendant moved to exclude the arresting officer's testimony recounting the statements made at the time of his arrest that were derogatory to the police,⁴ arguing that the statements would cause undue prejudice under Federal Rule of Evidence 403 and furthermore, that Miranda warnings were not given. The judge held an in camera suppression hearing to determine the probative nature of the comments and also whether a Miranda warning was in fact given. The arresting officer testified unequivocally that he had read Stokes his Miranda warnings at the time of arrest. In spite of this testimony, Stokes flatly denied under oath that he was given the warnings. At the conclusion of the hearing, the trial judge found that the arresting officer's testimony was more credible, and that Miranda warnings were in fact given, but did agree to exclude the defendant's derogatory statements on Rule 403 grounds.

The jury returned a verdict of guilty against Stokes on all four counts. At sentencing, the court found that the defendant committed perjury by testifying during the suppression hearing that he had not received his Miranda warnings and applied a two-level upward adjustment to his base offense level for obstruction of justice under U.S.S.G. sec. 3C1.1. The defendant appeals, challenging the court's denial of his motion to sever the felon in possession of a firearm count and the court's imposition of a two-level upward adjustment for obstruction of justice.

II. ISSUES

On appeal, we consider: (1) whether the district abused its discretion when it refused to sever the felon in possession of a firearm count; and (2) whether the court clearly erred by assessing an obstruction of justice adjustment.

III. DISCUSSION

A. Defendant's Motion to Sever

The defendant essentially argues that the court's denial of his motion to sever the felon in possession of a firearm count was prejudicial because the jury became aware of his prior felony record.⁵ The decision to grant or deny a motion for severance is "left to the sound discretion of the trial court; we review only for abuse of discretion." United States v. Dixon, 184 F.3d 643, 645 (7th Cir. 1999). Rule 14 of the Federal Rules of Criminal Procedure provides: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed. R. Crim. Proc. 14.

At the outset, we note that drug trafficking and firearm counts are presumptively properly joined because "[p]ossession of firearms and drug trafficking are closely related." United States v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999). This Court has noted that "where firearms have been discovered along with evidence of a defendant's drug trafficking, joinder of firearms and weapons charges has been approved due to the natural inferences that may be drawn from the contemporaneous possession of guns and drugs or drug paraphernalia: the firearm is an indication of drug activity, and participation in drug trafficking supplies a motive for having the gun." United States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir. 1995). Because "weapons are 'tools of the trade' of drug dealers," United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir. 1994), and "all of the violations charged in the indictment occurred at the same . . . place, and clearly constituted 'a series of acts,'" Pigee, 197 F.3d at 891, we agree that Stokes' counts were properly joined under Fed. R. Crim. P. 8(a).

Moreover, courts also have a strong interest in favor of joinder of offenses; in particular, joinder of offenses reduces the waste of precious judicial and prosecutorial time in the already overburdened federal judicial system and reduces the burdens on witnesses from testifying at multiple trials. See United States v. Blassingame, 197 F.3d 271, 286 (7th Cir. 1999); United States v. Briscoe, 896 F.2d 1476, 1516-17 (7th Cir. 1990). See generally United States v. Lane, 474 U.S. 438, 449 (1986) (citing the prudent use of prosecutorial and judicial resources as among the reasons supporting joinder).

Returning to Stokes' specific challenge of the court's denial of his motion to sever the felon in possession of a firearm count, to succeed on appeal, Stokes bears the heavy burden of demonstrating that he was prejudiced by the denial of severance. See Blassingame, 197 F.3d at 286. In challenging the court's denial, it is not enough that Stokes establishes that "a separate trial would offer him a better chance of acquittal." United States v. Cyprian, 23 F.3d 1189, 1194 (7th Cir. 1994). Rather, he "must establish that he suffered actual prejudice" from the denial of the motion, see United States v. Marshall, 75 F.3d 1097, 1105 (7th Cir. 1996), by establishing that absent the granting of the severance motion, he was unable to obtain a fair trial. See United States v. Magana, 118 F.3d 1173, 1186 (7th Cir. 1997).

We are not convinced that Stokes suffered any prejudice from the admission of his prior felony record in relation to the felon in possession count because the trial judge allowed the defendant to stipulate to his prior felony convictions in language that was sanitized of the words "felon" or "felony," as well as the details of his crimes. Indeed, the stipulation that the defendant and the government agreed upon stated that "prior to November 10, 1998, the defendant had been convicted of a crime punishable by a term of imprisonment of more than one year."

Moreover, the judge further attempted to insulate the defendant from any prejudice arising from his prior felony convictions by properly instructing the jury at the close of trial that:

During the defendant's testimony you heard evidence that the defendant has been convicted of crimes. You may consider this evidence in deciding whether the defendant's testimony is truthful in whole, part or not at all. You may also consider this evidence on the question of whether the defendant has committed the offense of unlawful possession of a firearm as charged in Count 4. You may not consider evidence of the defendant's prior conviction for any other purposes. With the sole exception of Count 4, a conviction of another crime is not evidence of the defendant's guilt of any other crime for which the defendant is now charged. . . .

The defendant has stipulated...