OLLIE COLE v. CITY OF LITTLE ROCK, ARKANSAS; WALLACE POOLE; KEITH COCKRELL; LOUIE C. CAUDELL
United States Court of Appeals, Eighth Circuit
131 F.3d 722
Accordingly, we dismiss this appeal for lack of jurisdiction.
Anthony W. Black, Assistant City Attorney, Little Rock, AR, for Appellant.
Chris Tarver, Little Rock, AR, for Appellee.
Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
PER CURIAM.
In this interlocutory appeal, the City of Little Rock, Arkansas, and Little Rock Police Department detectives Wallace Poole, Keith Cockrell, and Louie C. Caudell (defendant officers) appeal the district court‘s1 partial denial of their motion for summary judgment in Ollie Cole‘s
Pursuant to
The single issue defendant officers raise, however, is not reviewable, as they have failed to tie it to any question of immu-
UNITED STATES of America, Plaintiff—Appellee, v. Brian DIERLING, Defendant—Appellant. UNITED STATES of America, Plaintiff—Appellee, v. Mark PERKINS, Defendant—Appellant. UNITED STATES of America, Plaintiff—Appellee, v. Louis YOUNGER, Defendant—Appellant. UNITED STATES of America, Plaintiff—Appellee, v. Arthur HOLT, also known as Artie, Defendant—Appellant.
Nos. 97-1021, 97-1023, 97-1024 and 97-1026
United States Court of Appeals, Eighth Circuit
Submitted Sept. 11, 1997. Decided Dec. 9, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied Jan. 28, 1998 in No. 97-1023. Rehearing and Suggestion for Rehearing En Banc Denied Feb. 6, 1998 in No. 97-1026.
131 F.3d 722
Before HANSEN, ROSS, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Appellants Brian Dierling, Louis Younger, Arthur Holt, and Mark Perkins appeal their convictions and sentences for conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in violation of
I.
A one count indictment charged appellants with a conspiracy to manufacture and distribute methamphetamine in Missouri and Illinois. There was evidence at trial that Dierling, Younger, and Holt were manufacturing methamphetamine in a clandestine laboratory on Dierling‘s property and that they and Perkins were distributing the drug to unindicted coconspirators for resale and also directly to users. Dierling oversaw the manufacturing operations, the procurement of materials for the laboratory, and the drug distribution. Younger was Dierling‘s partner and held recipes for manufacturing methamphetamine. The involvement of Holt and Perkins was less important, but each sold methamphetamine to dealers and users and each picked up drugs and dropped off money at Dierling‘s property. Holt also assisted in the manufacturing operations.
There were a number of sources of evidence about the conspiracy, including detailed testimony from associates. Bobby Collis testified that Dierling told him he was making methamphetamine in one pound blocks, that Arthur Holt was “moving crank for him,” and that Holt had been arrested with his drugs. Cindy Craig, who lived with Younger, testified that he told her that he and Dierling made and sold drugs together, that he showed her as many as ten recipes for making methamphetamine, and that he described to her their manufacturing operations and the quality of the drugs they were making. She once went to Dierling‘s house with Younger and saw conspirators packaging and weighing drugs in the bedroom.
Stephanie Nickell reported that she had seen Dierling, Younger, and Danny Craig cooking methamphetamine at Dierling‘s house and had observed cantaloupe-sized quantities of methamphetamine at Younger‘s residence during the period she was selling drugs for him. She helped Dierling, Holt, and Younger package methamphetamine and took some to sell herself. Craig told her that he was also selling methamphetamine for Dierling. Nickell bought items for the methamphetamine lab for Younger and Dierling. Dierling gave her a handgun for her protection because drug dealers in the area were selling poor quality methamphetamine and attributing it to him; he feared reprisals.
Candy True testified that Younger delivered drugs to an unindicted coconspirator for resale and that she went with him to Dierling‘s farm where he picked up methamphetamine. She testified that on another occasion she went to the farm with Perkins, Holt, and Holt‘s daughter; Holt went into the barn to get methamphetamine. She also saw Younger, Holt and Perkins all deliver drugs on separate occasions to a coconspirator who would resell them.
Michelle Crawford testified that she sold ten “eight balls” of methamphetamine on a daily basis for Holt, whose source was Dierling. She saw Dierling deliver a six-inch wide, four-inch tall amount of methamphetamine to Holt. In October of 1994 she went to an apartment with Holt where she saw Dierling with some ten pounds of methamphetamine, money, and guns. Holt took methamphetamine from the apartment and
George Heller testified that Younger took him to Dierling‘s property to tow a car, and he saw Holt and Dierling there with guns and radios and noticed the area smelled like chemicals. He overheard Holt tell Younger that “[i]f anything goes wrong, we‘ll know who brought them here.”
Law enforcement officers also obtained evidence about the existence of the conspiracy. Missouri state troopers twice arrested Perkins and Holt, seizing over $11,000 cash, weapons and methamphetamine.2 An undercover officer purchased methamphetamine from Holt on one occasion and discussed with him the resale of the drugs and the fact that he might need more later. A search of Holt‘s home revealed digital scales, plastic baggies, and drug notes. Police also seized methamphetamine from Holt‘s car and over $2,800 cash from his person when they responded to a disturbance call at a bar. A deputy sheriff arrested Dierling and removed approximately $1,100 cash, methamphetamine, and syringes from him. Officers from the Putnam County sheriff‘s department seized syringes and methamphetamine during a search of Younger‘s home, and officers saw materials commonly used in methamphetamine laboratories in Dierling‘s barn when they went to his property to answer a domestic dispute call.
Appellants were found guilty after a two and a half week jury trial. The district court then received additional evidence at a sentencing hearing and found that the conspiracy involved 10 to 30 kilograms of methamphetamine and applied four level sentence enhancements to Dierling and Younger for their roles in the conspiracy and two separate enhancements to Dierling for obstruction of justice. Dierling and Younger were sentenced to life imprisonment, Holt to 360 months, and Perkins to 235 months.
Appellants argue on appeal that they are entitled to a new trial because the court admitted inflammatory evidence about acts that were neither foreseeable nor in furtherance of the conspiracy, refused to sever their cases despite the risk that evidence of unrelated acts by coconspirators would improperly influence the jury, and refused to provide judicial immunity for their witnesses. They also rely on the government‘s alleged failure to disclose material required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and they contend that the court improperly considered unreliable testimony in calculating the amount of drugs involved in the conspiracy. Finally, Dierling challenges the enhancements for his leadership role and for obstruction of justice.
II.
A.
All appellants claim they are entitled to a new trial because of inflammatory evidence they view as unrelated to the conspiracy. They say they were unfairly prejudiced by evidence of the killing of Danny Craig, the burning of Dierling‘s barn, the shooting of a deputy sheriff, and the discovery of a cache of weapons on Dierling‘s property.
The government contends that the evidence about the killing was directly related to the conspiracy because Dierling and Younger killed Craig, a coconspirator, over a drug debt he owed Dierling. Craig was a heavy methamphetamine user, and he participated in the conspiracy‘s manufacturing operations, packaged methamphetamine for sale, and dealt drugs for Dierling. In late May or early June of 1995, Craig took a weekend trip for the purpose of selling drugs, but used them himself instead. Craig later told government witness Candy True that Dier-
Stephanie Nickell testified that in the spring of 1995, Dierling told her he had placed a contract for $10,000 on Craig‘s life, and on June 9 he and Younger asked her to take them to Craig. She led them to a party attended by Craig where Dierling yelled that Craig had his money. Dierling ordered Craig to drive out to his house with Nickell; Dierling and Younger followed. At Dierling‘s house Nickell saw Younger and Dierling prod Craig into a utility room near the living room. She heard Craig scream and then two gunshots. Younger came out of the utility room and asked her for the keys to her vehicle. She went outside with him and saw Craig lying motionless in the back of her truck with gunshot wounds in his chest. Dierling, Younger, and Nickell then drove in the truck to Younger‘s house. On the way Dierling indicated that Craig would not be ripping off anyone any more. Once on Younger‘s property, Younger and Dierling pulled Craig from the truck and got a knife out of it. Nickell heard chopping sounds and then saw Dierling hold up Craig‘s severed head by the hair. Younger threatened that he would do the same thing to her if she crossed him. The three then drove back to Dierling‘s property after stopping to show the head to an acquaintance, Jess Mahurin. Dierling drove off in Younger‘s car, and Younger and Nickell continued on to a friend‘s house in her truck, stopping at a car wash along the way to clean the bed of the pickup.
The government also presented evidence that Dierling burned his barn and house to conceal evidence of the conspiracy. A police officer testified that he went to Dierling‘s home on July 15, 1995, in response to a domestic dispute call, and saw materials commonly used to manufacture methamphetamine in the barn. A week later, a neighbor noticed Dierling drive up his driveway, remain there briefly, and then leave shortly before his house and barn were seen to be on fire. An investigator from the Missouri Division of Fire Safety concluded that the fire had been set intentionally, but could not say who started the blaze. Police arrested Dierling in connection with the arson on the following day and seized $1,100 and some methamphetamine from his person. Bobby Collis testified that while they were in jail together Dierling admitted to him that he had set the fire in order to destroy parts of a methamphetamine laboratory he could not move.
Appellants also challenge the admission of evidence of a high speed car chase involving Dierling and Adair County deputy sheriff Leonard Clark, as well as evidence that Dierling shot Clark and had a variety of weapons on his property. Dierling fled when Clark attempted to stop and arrest him for violation of a protection order. A chase ensued which ended in Dierling‘s shooting and wounding Clark (Dierling was in turn shot by Clark.).
B.
We review the trial court‘s evidentiary rulings for abuse of discretion, keeping in mind that its discretion is particularly broad in a conspiracy trial. United States v. Searing, 984 F.2d 960, 965 (8th Cir.1993). In order to establish the existence of a conspiracy the government must prove that at least two persons entered into an agreement with an objective to violate the law. United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.1997). Acts committed in furtherance of a conspiracy are admissible as circumstantial evidence that the agreement existed, Blumenthal v. United States, 88 F.2d 522, 531 (8th Cir.1937), unless the evidence causes “unfair prejudice, substantially outweighing probative value” under
The record indicates that the killing of Danny Craig was admissible evidence of an act committed in furtherance of the con-
Appellants question the sufficiency of the evidence that the killing actually occurred. Craig‘s body was never found, and the only direct evidence at trial about the killing was the eyewitness testimony of Stephanie Nickell. The evidence and the credibility of the witnesses were for the jury to weigh, however, and Nickell was thoroughly cross-examined.3 There was also corroboration of her testimony by evidence about Craig‘s disappearance and the evidence supplied by Michelle Crawford suggesting Perkins and Holt beat Craig as part of Dierling‘s retaliation against him. Although the slaying evidence was violent and grisly in nature, there was testimony to connect it directly to the drug business of which appellants were accused. Craig took Dierling‘s drugs and didn‘t pay him, and brutal consequences followed to enforce the rules of the business. The district court did not abuse its discretion in determining that the probative value of the slaying evidence outweighed any prejudicial effect.
Appellants also object to the evidence related to the burning of Dierling‘s barn and house on the grounds there was no proof Dierling was responsible or that the burnings were linked to the conspiracy. They claim that the fires were related to Dierling‘s marital problems and pending divorce from his wife who lived on the property. Younger, Perkins, and Holt argue that the evidence was especially prejudicial to them since they could not have foreseen the fire. The evidence linking the fire to Dierling and the methamphetamine operation was sufficient to find that it was an act to protect the conspiracy. The fire followed the visit of law enforcement officers who were thus able to see incriminating evidence. It was not unforeseeable to the coconspirators that Dierling would take steps to eliminate the evidence, and Collis testified that Dierling told him he had set the fire for that purpose. The district court did not abuse its discretion in admitting this evidence.
Appellants claim that Dierling‘s flight from deputy Clark when he attempted to stop him and the subsequent shooting of Clark were not in furtherance of the conspiracy because Clark intended to arrest Dierling for violating a domestic protection order. Flight from law enforcement officers can be probative of consciousness of guilt and may further a conspiracy. See United States v. Roy, 843 F.2d 305, 310 (8th Cir.1988). The intended purpose of the attempted stop need not be related to the conspiracy. Id. The real question is what is in the mind of the person who flees and whether there is sufficient evidence to allow the inference that the flight was prompted by consciousness of guilt. Id. There was evidence that Dierling was on a drug-related errand when Clark attempted to stop him and that Dierling was aware that the authorities knew about his drug activities. The jury could have determined that the high-speed flight was intended to protect and maintain the conspiracy, and this was not the only evidence it heard about flight by a conspirator. Dierling had evaded capture by the police on an earlier occasion while on his way to buy methamphetamine production materials. Younger was involved in two high-speed pursuits after he refused to pull over his motorcycle when police attempted to stop him for traffic viola-
Younger and Perkins challenge the admission of evidence of a large cache of weapons seized from Dierling‘s home and argue there was no showing that the guns and knives were related to the conspiracy. Weapons are key tools in the drug trade and can be evidence of a drug conspiracy. See United States v. Emmanuel, 112 F.3d 977, 979-80 (8th Cir.1997). Weapons played a significant role in this conspiracy. Police recovered a military-style assault rifle from Dierling‘s truck, along with cash and methamphetamine, when he was arrested for arson. Dierling shot deputy Clark with a .357 caliber handgun, and he apparently became associated with Younger after he shot him by accident when aiming at his drug associate. The weapons were relevant to the conspiracy charge and not unfairly prejudicial in light of all the evidence of the operations of the conspirators.
Finally, Dierling‘s argument that the evidence about the slaying, fire, and shooting was inadmissible other crimes evidence under
III.
A.
Younger argues that his conviction should be reversed because the trial court refused to provide immunity for his witnesses. Younger attempted to call Shawn Russell and Jess Mahurin who both refused to testify after the court appointed counsel for them and they were advised of their fifth amendment rights. Younger asked the court to grant immunity to the witnesses or require the government to offer it, but the court declined. Younger claims that since the prosecution relied on immunized witnesses to present its case and his witnesses would have offered exculpatory testimony, the court‘s refusal to offer immunity violated his rights under the compulsory process clause of the sixth amendment. Younger speculates that Russell would have testified that he had seen Danny Craig alive after the alleged killing and that Stephanie Nickell had lied. He also says that Mahurin would have denied ever seeing Craig‘s severed head or seeing Dierling, Younger, or Nickell on the night of the killing.
Younger had no right to judicially imposed immunity for his witnesses. No power or duty to grant judicial immunity has been recognized in this circuit. United States v. Robaina, 39 F.3d 858, 863 (8th Cir.1994); United States v. Hardrich, 707 F.2d 992, 994 (8th Cir.1983). Use immunity has been ordered elsewhere on occasion for a witness with “clearly exculpatory” evidence where there is no strong countervailing interest of the government. Gov‘t of the Virgin Islands v. Smith, 615 F.2d 964, 972-73 (3d Cir.1980). There is no reason in this case to examine the policy implications of judicial involvement in use immunity, see, e.g., United States v. Capozzi, 883 F.2d 608, 613-614 (8th Cir.1989); United States v. Turkish, 623 F.2d 769 (2d Cir.1980), because Younger has not shown that the proposed testimony was clearly exculpatory. There was enough evidence to convict the appellants of conspiracy without evidence of the killing, and there was no deliberate distortion of the truth-finding process by the government, and no government misconduct or threats to witnesses. The court did not err in declining to grant judicial
B.
Younger objects to exclusion of testimony by his investigator about statements made by Mahurin and Russell in interviews. The testimony was excluded by the trial court on the grounds it was hearsay and the witnesses were not unavailable within the meaning of
C.
Perkins argues that the court abused its discretion by refusing to allow him to impeach government witness Michelle Crawford by introducing an interview report of a DEA agent. According to this report Crawford told the agent that she saw Perkins beat Danny Craig, cut him with a large knife, and throw him into a ditch. She also said that Perkins had intimated to her that he had fed Craig‘s body to some hogs. Counsel for Perkins questioned Crawford at trial about her interview but did not ask her about the hog statement or attempt to introduce the contents of the report against her. Instead, Perkins offered the report during the testimony of the DEA agent in order to impeach Crawford‘s testimony. The court did not err in refusing to admit the report. Rule
IV.
Holt challenges the failure of the trial court to give a special instruction to the jury on how the government witnesses interpreted their immunity agreements. He argues that the witnesses’ testimony about immunity differed from the wording of their agreements and that an instruction was therefore necessary. Appellants questioned the witnesses about their agreements at trial, and they were free to argue to the jury about the agreements, how the witnesses interpreted them, and credibility. Instructions 5 through 17 explained to the jury the factors it should consider in evaluating credibility. The immunity agreements, prior convictions, and government payments for assistance were included in the explanation. There was no need to give an additional instruction in these circumstances. See United States v. Ridinger, 805 F.2d 818, 821 (8th Cir.1986); United States v. Bowman, 798 F.2d 333, 336 (8th Cir.1986).
V.
Younger, Holt, and Perkins contend it was reversible error not to sever their cases from that of Dierling because there was evidence admitted at their joint trial concerning his independent criminal activity, causing the jury to find them guilty because
Only an abuse of discretion resulting in definite prejudice requires reversal of a conviction based on denial of a motion to sever. United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir.1996). A joint trial is appropriate for those charged with conspiracy where proof of the charges is based on common evidence and acts. United States v. Stephenson, 924 F.2d 753, 761 (8th Cir.1991) (quoting United States v. Jackson, 549 F.2d 517, 523 (8th Cir.1977)); see also United States v. Kindle, 925 F.2d 272, 277 (8th Cir.1991). Where there are multiple criminal acts in furtherance of a conspiracy, each defendant need not have participated in every act for a joint trial to be appropriate. Delpit, 94 F.3d at 1143; United States v. Jones, 880 F.2d 55, 62-63 (8th Cir.1989). It does not matter that there may be varying strength in the evidence against each defendant. Stephenson, 924 F.2d at 761 (quoting Jackson, 549 F.2d at 525). In order to prevail appellants must establish either that a specific trial right was prejudiced or that a joint trial prevented the jury from making “a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993).
It was appropriate to try appellants together. There was evidence that the challenged acts were committed in furtherance of the conspiracy so they would have been admissible in individual trials. See United States v. Darden, 70 F.3d 1507, 1527 (8th Cir.1995), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996). The other conspirators were also closely involved in events described in the challenged evidence. All of them committed some act of violence against Craig related to the drug debt he owed Dierling, and a joint trial is permissible even if all conspirators did not participate in a killing where violence is a modus operandi of a conspiracy and the action was committed in furtherance of the conspiracy. See Delpit, 94 F.3d at 1143. All conspirators were involved in flights from law enforcement except Perkins,6 and it cannot be said that the chase evidence prevented the jury from making an individual determination of whether a particular defendant participated in the conspiracy. All took part in drug-related activities on Dierling‘s property, and it would have been foreseeable that Dierling might attempt to prevent detection of evidence there. All carried firearms during the conspiracy, and the court instructed the jury to consider the shooting of deputy Clark only against Dierling and to make individual determinations of guilt or innocence as to each defendant. The evidence was not so complicated that the jury would have been unable to make individual determinations about the guilt or innocence of each defendant. United States v. Willis, 940 F.2d 1136, 1138 (8th Cir.1991). A joint trial was necessary to give the jurors a perspective on all the evidence. Delpit, 94 F.3d at 1143 (quoting Darden, 70 F.3d at 1528). The court did not err in denying the motions to sever.
VI.
Younger and Perkins argue they are entitled to a new trial because of the government‘s failure to turn over Brady material. After his conviction Younger moved for a new trial based on newly discovered evidence. He claimed the government should have given him information it had about Judy Dierling, Brian‘s wife at the time of the conspiracy, and about a DEA interview with Danny Collis, the nephew of Bobby Collis.7 The district court denied the motion after a hearing.