UNITED STATES of America, Appellee,
v.
Daniel W. O'CONNELL, a/k/a Edward Smith, Appellant.
UNITED STATES of America, Appellee,
v.
Gregory J. COOKE, Appellant.
UNITED STATES of America, Appellee,
v.
Patrick Basil COLLIER, Appellant.
UNITED STATES of America, Appellee,
v.
William R. PATTERSON, II, Appellant.
UNITED STATES of America, Appellee,
v.
Richard Allen ST. CYR, a/k/a Dexter, Appellant.
Nos. 86-5311 to 86-5315.
United States Court of Appeals,
Eighth Circuit.
Submitted June 8, 1987.
Decided March 14, 1988.
Rehearing Denied is No. 86-5315 April 8, 1988.
Rehearing and Rehearing En Banc Denied in No. 86-5312 April
25, 1988.
Rehearing and Rehearing En Banc Denied in No. 86-5311 May 3, 1988.
Rehearing and Rehearing En Banc Denied May 20, 1988.
Alan S. Ross, Miami, Fla., for O'Connell.
Andrew S. Birrell, Minneapolis, Minn., for Cooke.
Charles L. Hawkins, St. Paul, Minn., for Collier.
Mark Peterson, Minneapolis, Minn., for Patterson.
Paul Engh, Minneapolis, Minn., for St. Cyr.
Richard E. Vosepka, Asst. U.S. Atty., for appellee.
Before McMILLIAN, Circuit Judge, FAIRCHILD,* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
JOHN R. GIBSON, Circuit Judge.
These appeals arise from the conviction of Daniel W. O'Connell, Gregory Cooke, Patrick Collier, William R. Patterson, and Richard Allen St. Cyr for thirty offenses related to the operation of a large marijuana distribution scheme in the Minneapolis, Minnesota area. The appellants were charged with eleven others who pleaded guilty, nine of whom testified at trial. Appellants were convicted of conspiracy and possession with intent to distribute marijuana and numerous other charges.1 The primary issues raised on appeal involve the propriety of admitting evidence obtained from telephone wiretaps, the stop and search of an automobile, the admitting of an audiotape of telephone calls taken from a recording machine in O'Connell's warehouse, and the propriety of the district attorney's closing argument. Additional issues include the sufficiency of the evidence, the admission of evidence of other wrongful acts, and the denial of motions for severance. The judgment entered by the district court2 is affirmed.
The drug operation giving rise to this prosecution had been in existence for several years before it was terminated by arrests and seizures in February of 1985. Daniel O'Connell and Gregory Cooke leased adjoining warehouse space in Opa Locka, Florida. When a shipment of marijuana was available, drivers would pick up the marijuana from these warehouses and transport it to Minnesota. At least four different Lincoln Continentals were used for these trips. Cooke paid drivers working for him $1,000 cash for each trip from Florida to Minnesota, and $500 cash for returning an empty Lincoln from Minnesota. Patrick Collier was among the drivers working for Cooke.
Timothy Lyons, the head of the Minnesota distribution network, testified on behalf of the government. He entered a guilty plea to a continuing criminal enterprise charge as part of an agreement that other charges would not be filed against him. In Minnesota, Lyons used several "stash houses" to direct distribution of the marijuana. Cooke and Lyons rented these houses and would change the location yearly, the last one being located in Maple Grove, Minnesota. From these houses, Lyons distributed marijuana to approximately ten dealers, including William Patterson and Richard St. Cyr. Patterson handled the largest volume and was the most dependable of Lyons' dealers. Deliveries to St. Cyr were considerably smaller because St. Cyr was incarcerated during most of the indictment period. Nonetheless, St. Cyr continued to distribute marijuana through others acting on his behalf. The marijuana was consigned or "fronted" at each level of distribution. As dealers collected from their customers, they would pay Lyons, who paid Cooke, who would in turn pay O'Connell. Unsold marijuana was returned. The cycle would begin again every three to six weeks with occasional "vacations".
The federal authorities' investigation into this case began in 1982 when a Drug Enforcement Administration agent received information that Timothy Lyons and his brother Casey were involved in drug trafficking. By the end of 1984, federal agents had run pen registers on telephones of four of the defendants, conducted surveillance of the organization, and observed several controlled buys. The agents compiled the information they had gathered in a wiretap application, which was approved on February 1, 1985. Wiretaps were placed on two telephone lines, one listed to Blue Star Trucking and used primarily by Timothy Lyons, and one listed to Charles O'Brien.3
The wiretap provided the government with substantial evidence linking all of the defendants except O'Connell to the conspiracy. The government offered fifty-six intercepted conversations in evidence at trial. Many of these related to collection efforts on behalf of Timothy Lyons and plans to transport shipments of marijuana from Florida.
Through the wiretap, agents discovered that Casey Lyons and Patrick Collier would be driving a load of marijuana from Miami on February 22, 1985, and were due to arrive in the Minneapolis area on the 25th. Search warrants were obtained for the Maple Grove "stash house," the residence of Timothy Lyons, the Florida warehouses rented by Cooke and O'Connell, and seven individuals, including Timothy Lyons and Cooke. Officers saw Casey Lyons drive a Lincoln Continental with license MLU-045 away from the Florida warehouse on February 22, 1985. The same vehicle was seen driving into the garage of the house in Maple Grove, Minnesota on February 25.
On February 25, 1985, federal and state agents conducted a search of the Maple Grove stash house. There they found numerous weapons, sizeable amounts of cash, and eight bales of marijuana weighing approximately 440 pounds. The officers also found notes relating to marijuana transactions, including an itemized list of 16 bales of marijuana which was written by Cooke and found in Timothy Lyons' possession. Several suspects were arrested at the house, including William Patterson and Patrick Collier. During the search, Special Agent Richard Anderson was stationed outside the house. He observed a Lincoln Continental pass by, pull into a driveway, then back out and return. Agent Anderson knew that Lincolns were involved in the operation. He stopped the car and after Cooke was identified as the driver, he was taken inside, searched, and arrested pursuant to warrant.
On the same day, eight more bales of marijuana, packaged like those found in Minnesota, were seized at O'Connell's Florida warehouse.4 Also seized at O'Connell's warehouse was an audiotape of telephone calls from a recording machine, which contained conversations involving O'Connell and other members of the group. These conversations revealed that O'Connell had the keys for, knew the whereabouts of, and controlled the four Lincolns used in transporting marijuana to Minnesota, and included one call in which O'Connell discussed arrangements for a "round trip" in the near future. In another call, O'Connell stated that he was waiting for Cooke to arrive and "bring me my money." Notes found at Lyons' house showed drug debts of both Patterson and St. Cyr, and documents seized from various places reflected the organization's high level of profits.
On December 18, 1985, a federal grand jury in Minnesota returned a 75-count indictment charging sixteen individuals with various criminal violations. Eleven of the defendants pleaded guilty to one or more charges before trial, and nine of these testified for the government. On April 24, 1986, the remaining defendants, Gregory Cooke, William R. Patterson, Daniel W. O'Connell, Patrick Collier and Richard Allen St. Cyr, went to trial on the remaining twenty-five counts and a total of thirty-six charged offenses.
The trial was a long and heated affair. It continued for over five weeks, and closing arguments alone consumed two full days. When the dust had cleared, the jury was sent to deliberate on thirty-one charged offenses. Thirty verdicts of guilt were returned, which we have detailed above. See supra note 1. The district court sentenced O'Connell to twenty-five years imprisonment, a $250,000 fine, and a five-year special parole term. Cooke received twenty-five years imprisonment without parole pursuant to CCE provisions, a $100,000 fine, and a three-year special parole term. Patterson received ten years imprisonment, a $5,000 fine, and a three-year special parole term. St. Cyr was sentenced to eight years imprisonment, and Collier to five years imprisonment.
We affirm the judgment of the district court in all respects. Additional facts material to our determination of the issues raised on appeal are recited below.
I.
Patterson, joined by Collier and St. Cyr, argues that the district court improperly ordered wiretaps for the telephones listed to Charles O'Brien and Blue Star Trucking and erroneously admitted the evidence obtained thereby. Patterson alleges four grounds of error, which we consider in turn.
A.
First, Patterson contends that the government's application for the wiretap and the district court's order authorizing it failed to establish the ineffectiveness of normal investigative techniques. Patterson correctly argues that an application for a wiretap must contain a "full and complete statement" of the facts justifying an authorization order, including discussion of other investigative procedures. 18 U.S.C. Sec. 2518(1)(b), (c) (1982). In addition, an authorization order may only be granted "if the judge determines on the basis of the facts submitted by the applicant that * * * normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous * * *." 18 U.S.C. Sec. 2518(3)(c) (1982). Together these two sections create what the courts have called the "necessity requirement." United States v. Garcia,
In reviewing determinations made by a district court in the context of a motion to suppress, we apply the clearly erroneous standard. United States v. Ross,
At the pre-trial suppression hearing, Magistrate J. Earl Cudd determined that it was nearly impossible for the government to discover the full scope of this drug conspiracy and the identities of the participants without the use of wiretaps. The magistrate noted that at least four of the persons indicted were initially identified through the wiretaps, and that the wiretaps enabled the government to determine which of its many suspects were actually involved in the conspiracy. See United States v. Daly,
Patterson points to examples in the record to show that normal investigative techniques continued to generate useful evidence for the government and that additional methods might have provided further information. However, this court has consistently held that satisfying the provisions of section 2518(1)(c) and (3)(c) does not require the government to exhaust every available investigative technique before a wiretap may be authorized. In United States v. Losing,
Congress did not require the exhaustion of "specific" or "all possible" investigative techniques before wiretap orders could be issued. * * * Sections 2518(1)(c) and 2518(3)(c) are only designed to ensure that wiretapping is "not to be routinely employed as the initial step in criminal investigation" and "... to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime."
B.
Patterson's second contention is that the district attorney's application for the wiretap order was improperly authorized within the Department of Justice. Although the application identifies the Assistant Attorney General in charge of the Criminal Division as the authorizing official, the authorization itself was obtained from the Assistant Attorney General for the Antitrust Division. The relevant statutory provision allows an Assistant Attorney General to authorize an application if "specially designated by the Attorney General." 18 U.S.C. Sec. 2516(1) (Supp. III 1985). The Attorney General's designation permits the Assistant for the Antitrust Division to authorize an application only if the Assistants for the office of Legal Counsel and the Tax and Criminal Divisions are unavailable. Order No. 931-81 (1981). Patterson argues that the government has not shown that the three Assistant Attorneys General with higher priority were unavailable, and that the Assistant in charge of the Criminal Division probably was available, because his title appears on the application. Patterson argues more generally that the discrepancy between the application and the authorization raises an issue as to the propriety of the authorization, which the government has not explained.
The Second Circuit has recently stated, and we agree, that "a named designee whose high office [gives] him statutory power to authorize electronic surveillance orders * * * is presumed to have properly exercised that power and the condition[s] precedent [are] presumed to have been met unless the defendants offer evidence, apart from mere conjecture or speculation, to rebut this presumption." United States v. Terry,
Moreover, the fact that the application misidentifies the authorizing official does not render interceptions conducted under the order unlawful. The Assistant Attorney General for the Antitrust Division possessed statutory and delegated power to authorize the application, and the fact that he did so rather than the Assistant Attorney General for the Criminal Division does not establish that the communications were "unlawfully intercepted" within the meaning of section 2518(10)(a)(i) (1982). See United States v. Chavez,
C.
Patterson's third argument is that the government did not minimize its interception of irrelevant conversations as required by the district court's wiretap order, which incorporated the relevant statutory provision. 18 U.S.C. Sec. 2518(5) (1982).5 Patterson also contends that the government disregarded its pledge, contained in the wiretap application, to terminate monitoring of any conversations which were non-criminal in nature, even if suspected conspirators were involved. As we read the statute, these two allegations are the same. See 18 U.S.C. Secs. 2516(1)(a)-(l ), 2518(5). The central question is whether the government complied with its statutory mandate.
In reviewing the government's compliance with section 2518(5), we apply an objective standard which measures the reasonableness of the investigator's conduct in light of the facts and circumstances confronting him at the time. Scott v. United States,
Patterson offers two arguments to support his position. First, he contends that the government openly disregarded the minimization requirements shortly after wiretapping began. The government's first progress report to the district court stated that agents had been directed to thoroughly monitor calls, even those unrelated to criminal activity, because a high percentage of the calls initially monitored contained drug conversations at some point. Patterson claims that this report, together with other evidence, establishes a per se violation of section 2518(5). Second, Patterson claims that the monitoring agents disregarded instructions contained in the Justice Department's authorization to avoid intercepting calls involving persons under criminal charges if the conversations pertained to culpability or defense strategy. See 18 U.S.C. Sec. 2518(10)(a)(iii). Patterson contends that the government intercepted at least two such conversations.
These arguments must be rejected. In the first place, section 2518(5) does not establish a per se rule regarding minimization. Each case must be decided on its particular facts. Scott,
Along similar lines, we note that the Justice Department's authorization did not prohibit monitoring calls involving persons facing criminal charges, but only expressed a policy of reasonable avoidance. This stance was entirely in keeping with section 2518(5). Scott,
D.
Patterson's final argument is that the government improperly disclosed the contents of intercepted conversations. According to Patterson, the wiretap order required that all persons having access to the conversations be specially deputized and act under DEA direction, and record evidence demonstrates that the secretaries and intelligence analyst given access failed on one or both of these counts. Patterson further contends that the disclosure was not authorized by statute, either as a disclosure "to another investigative or law enforcement officer" or as a "use * * * appropriate to the proper performance of [the investigative officer's] official duties." 18 U.S.C. Sec. 2517(1), (2) (1982). In his view, introduction of the evidence at trial was therefore improper. See 18 U.S.C. Sec. 2515 (1982).
We reject this argument. The disclosures to the secretaries and intelligence analyst were probably valid under section 2517(2). In any event, the remedy of suppression is available for wrongful disclosure under Title III only if the conditions set forth in 18 U.S.C. Sec. 2518(10)(a) are satisfied. United States v. Donovan,
Having considered and rejected each of the defendants' arguments regarding the wiretaps placed on the O'Brien and Blue Star telephones, we conclude that the evidence obtained through the wiretaps was properly admitted into evidence.6
II.
Cooke argues that the district court erred in admitting evidence obtained by Agent Anderson's stop of the Lincoln Continental which Cooke drove past the Maple Grove house on February 25, 1985, and the subsequent search of Cooke's person. He claims that the stop was unconstitutional and that the evidence obtained should therefore have been suppressed. Wong Sun v. United States,
Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the fourth amendment. Delaware v. Prouse,
We review the district court's factual findings concerning the circumstances justifying the stop under the clearly erroneous standard. United States v. Wantland,
Cooke does not challenge the district court's factual findings. He argues that the court's decision was based on an erroneous view of the applicable law, because Anderson personally did not have sufficient knowledge to constitute probable cause. In United States v. Wright, supra, this court found probable cause for the seizure of objects not specified in a warrant although there was no evidence that the seizing officer personally had probable cause or that he acted at the order or direction of an officer with probable cause. Wright,
We recognize that the length and complexity of an investigation may preclude a detaining officer from acquiring or consistently maintaining probable cause or a reasonable suspicion of every party under investigation. See Stratton,
III.
O'Connell argues that the district court improperly admitted into evidence an audiotape found on a recording machine during the execution of a search warrant at O'Connell's Florida warehouse. O'Connell claims that the government failed to authenticate the tape as required by Fed.R.Evid. 901(a). He relies upon United States v. McMillan,
In response to these arguments, the government contends that it did lay a "McMillan -type" foundation for the tape, from which the district court could reasonably conclude that the tape was used by O'Connell to record his conversations and those of others using his phones. The government argues that the accuracy of the conversations was corroborated by testimony and documents unrelated to the tape's seizure. As to the integrity of the tape, the government argues that the only post-seizure change was an inadvertent overrecording covering just three to five seconds on an irrelevant portion of the tape. See United States v. Risken,
Our earlier decisions dealing with admission of sound recordings have involved the use of a recording device by the government or at the government's request to record the statements of participants in criminal activity. Many of the cases involve body microphones placed on an informant or government agent, and some involve recording equipment placed on telephones. The McMillan requirements have been applied primarily to such recordings.7 We have recognized that the McMillan criteria "become meaningful only when viewed in light of the facts of a specific case," Durns,
Applying these principles, we are satisfied that the government laid a proper foundation for introduction of the O'Connell tape. First, we believe the government has offered sufficient circumstantial evidence of the authenticity and correctness of the recordings. See United States v. Hassell,
Second, the integrity of the recordings was established by the testimony of Agent Thomas Fisher, who had custody of the tape after its seizure. He stated that the only change in the tape was a very brief and inadvertant overrecording on a completely silent passage which was not even offered into evidence. This "gap" was not of sufficient import to block foundation. See Risken,
Third, the speakers were adequately identified through the testimony of Agent Fisher, Timothy Lyons, and Steven Sjolund. Together they identified the voice of at least one conspirator on every conversation, and two or more voices were identified on a majority of the conversations. O'Connell's voice was identified on thirteen of the seventeen conversations at issue, Cooke's on ten conversations, and Timothy Lyons' on one conversation. Berta Rodon, a close associate of O'Connell, was identified on two conversations. O'Connell complains that the government did not establish the identity of every speaker on every conversation, but we do not believe that under these circumstances the government can reasonably be expected to do so. We have upheld tentative, Risken,
Finally, McMillan requires a showing "[t]hat the conversation elicited was made voluntarily and in good faith, without any kind of inducement."
The decision to admit tape recordings is subject to reversal only for a clear abuse of discretion. Johnson,
IV.
Patterson and St. Cyr argue that the district court erred in admitting wrongful act evidence under Fed.R.Evid. 404(b). In this circuit, evidence of other crimes, wrongs or acts is admissible if it is relevant to a material issue; it is clear and convincing; it is more probative than prejudicial; and the other acts are similar in kind and close in time to the crime charged. United States v. Miller,
The controverted evidence consists of several intercepted telephone conversations which reflect the violent propensities of Patterson, St. Cyr, and other conspirators. In one conversation, Patterson offered to provide Timothy Lyons with a hand grenade, which Lyons said he would throw into the living room of a dealer who had not been paying his debts. In other conversations, St. Cyr said he felt like "stabbing somebody," escaping from prison, and eluding arrest. These conversations were edited, but not to the extent requested by St. Cyr. Finally, one reference to St. Cyr's conviction for attempted murder was mistakenly included in transcripts of St. Cyr's conversations.
With regard to the conversations themselves, our review of the record satisfies us that they were directly relevant to material issues involved in the offenses with which each defendant was charged. Marshall,
St. Cyr's telephone conversations also reflect his knowing participation in the drug operation and his willingness to threaten violence to ensure efficient drug distribution and payment collection. They were therefore relevant to his conspiracy and telephone convictions, as well. We recognize that the tapes contained prejudicial material and that the conversations permitted inferences regarding the defendants' character. However, balancing probative value against prejudicial impact rests primarily within the district court's discretion, Marshall,
The issue is closer with regard to the transcripts in which St. Cyr commented upon his conviction for attempted murder. The district court stated that the remark was highly prejudicial. Moreover, the reason for St. Cyr's incarceration was not relevant to any material issue in his trial. By agreement with defense counsel, the government deleted the comment from the tapes, which were admitted into evidence and played for the jury, but the government failed to edit it from at least some of the transcripts furnished to the jurors.
The parties debate whether the comment was included in all of the transcripts and whether the jury read or even had time to read it. This is a factual issue we may not resolve, but we note that the Fifth Circuit, in an identical situation, applied the harmless error rule to determine if reversal was warranted. United States v. Colacurcio,
Our review of the record satisfies us that even if the jury read the comment, the government's error was harmless. Although the reason for St. Cyr's imprisonment was otherwise kept from the jury, the fact of his incarceration was unavoidably mentioned in explaining the nature of his participation in the conspiracy and his use of prison telephones to facilitate drug distribution. See Auerbach,
V.
Defendants O'Connell, Cooke, St. Cyr and Collier challenge the sufficiency of the evidence supporting several of their convictions. In considering the sufficiency of the evidence, we must view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences which may logically be drawn therefrom. Glasser v. United States,
O'Connell challenges the sufficiency of the evidence supporting his convictions for conspiracy and possession. As to the conspiracy count, we have held that "[o]nce the existence of a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient proof of his involvement in the scheme." United States v. Schmaltz,
We also believe the evidence is sufficient to sustain O'Connell's conviction for possession of the marijuana seized at the Maple Grove stash house on February 25, 1985. We have outlined above the evidence concerning the bales of marijuana seized from the stash house in Minnesota and O'Connell's warehouse in the Miami area. From this evidence the jury could find that O'Connell was the source of the seized drugs, and this supports a finding of constructive possession. See United States v. Wajda,
Cooke argues that the evidence was insufficient to prove that he was engaged in a continuing criminal enterprise (CCE) or that he had willfully filed a false income tax return for 1983. As to the CCE charge, the government offered evidence that Cooke directly managed at least five people, including distributor Timothy Lyons; drivers Sjoland, Collier, and Casey Lyons; and Cheryl Cooke, who passed messages and received payments for her husband. This was sufficient to establish his supervisory role in the organization, as required by 21 U.S.C. Sec. 848(d)(2)(A). See Jones,
As to the tax count, the government offered testimony and financial analysis to show that Cooke's expenditures during the years in question exceeded his reported income, and that he voluntarily and intentionally failed to disclose the earnings used to meet those expenses. This method of proof was entirely proper, Clinkscales v. United States,
St. Cyr argues that the evidence was insufficient to establish his participation in the conspiracy, 21 U.S.C. Secs. 841(a)(1), 846, or his use of a telephone to facilitate distribution of marijuana, 21 U.S.C. Sec. 843(b). However, the government offered testimony, intercepted wire communications, drug notes and other evidence which indicated that St. Cyr used the telephone and other means to arrange and direct drug transactions with alleged co-conspirators while he was incarcerated. This evidence was sufficient to support his conspiracy conviction, because it provided a basis for concluding that St. Cyr "knowingly contributed" to the conspiracy's furtherance, Garcia,
Finally, Collier argues that the evidence was insufficient to support his conviction for possession of marijuana with intent to distribute, 21 U.S.C. Sec. 841(a)(1). The government offered evidence that on or about February 22, 1985, Collier and Casey Lyons knowingly drove a load of eight bales of marijuana, weighing approximately 440 pounds, from Florida to Minnesota, with the intent to deliver it to Cooke and other alleged conspirators. When officers searched the Maple Grove stash house on February 25, they found Collier, the marijuana, and the Lincoln used to transport it. A search of Collier's person revealed $1,000 which Cooke had paid him earlier that day for driving the marijuana from Florida. From this evidence the jury was entitled to infer that Collier was aware of the presence of contraband in the Lincoln and in the Maple Grove house, and that he exercised control over it, justifying a finding of constructive possession. Caspers,
VI.
All of the appellants challenge the propriety of Assistant U.S. Attorney Richard E. Vosepka's closing argument, and contend that the district court erred in denying their motions for mistrial. In this circuit, the grant or denial of a motion for mistrial lies within the discretion of the district court and may only be reversed on a showing of abuse of discretion. United States v. Andrade,
The appellants argue that the district attorney made an inflammatory attack on the integrity of counsel for O'Connell, Cooke and Collier, branding them as unethical. Collier, joined in part by Patterson and St. Cyr, argues that the district attorney labeled the appellants as dangerous people, referred to matters outside the record, expressed a personal opinion of guilt, and argued that he had told government witnesses "we wanted the truth." O'Connell contends with some force that the greater portion of the district attorney's argument dealt with such subjects. We are deeply troubled by the argument in this case. It involves a situation quite similar to that in United States v. Young,
Two areas of argument may be dealt with quickly. While Collier argues that the prosecutor expressed his personal view that the defendants were guilty, the statement is at best ambiguous.11 The district court was in a superior position to determine whether the statement expressed a personal view of guilt, but no objection was made by any of the defendants. The statement does not rise to the level of plain error, and we decline to consider it further. See Young,
Several of the district attorney's remarks, however, were clearly improper. Mr. Vosepka made personal attacks on defense counsel, charging them with improper motives and unethical conduct.14 Young,
When prosecutorial misconduct occurs, several factors aid us in assessing its prejudicial impact, including the cumulative effect of the misconduct, the curative actions taken by the trial court, and the strength of the properly admitted evidence. Boyce,
Having carefully reviewed the record, we cannot say that the district attorney's remarks were so prejudicial as to deprive Patterson and St. Cyr of a fair trial. The prosecutor's improper comments and criticisms were directed solely to the closing arguments of counsel for O'Connell, Cooke and Collier;17 indeed, he complimented Mr. Peterson, Patterson's attorney, on his closing argument.18 Insofar as the prosecutor's improper comments may have had some indirect or "spillover" effect on St. Cyr and Patterson, any harm done was fully outweighed by the properly admitted evidence, which provided ample and convincing proof of their guilt. See supra Part V. The district court therefore did not abuse its discretion in denying Patterson and St. Cyr's motions for mistrial.
Our review also convinces us that the district attorney's remarks about counsel for O'Connell, Cooke and Collier were provoked by, and responsive to, their closing arguments. Young,
We have studied these arguments in light of the entire record. Weighed against the strength of the properly admitted evidence, the final factor we must consider, e.g., Boyce,
O'Connell's defense was aimed primarily at the credibility of Timothy and Casey Lyons and Steve Sjolund. Their history of drug use was examined, particularly that of Casey Lyons. The fact that all had agreed with the government to give truthful testimony was an issue of examination, as was the fact that the district attorney, Mr. Vosepka, would make the final decision as to whether they had given truthful testimony. It was developed that the witnesses owned houses they hoped the government would allow them to retain, which O'Connell's counsel suggested were purchased with drug profits. The cross-examination of these witnesses was vigorous. Mr. Ross's argument with respect to their truthfulness, and the motivation and integrity of the district attorney, was based on this evidence and provoked Mr. Vosepka's response.
The evidence against O'Connell was less extensive than that against the other parties, but it was strong and convincing. We have discussed above the evidence of the telephone calls between Cooke in the Minneapolis area and O'Connell in Florida, and the increased volume of the calls before and after trips between the two areas. See supra Part V. Telephone company records show a continued volume of calls to O'Connell's warehouse, whether it was leased in his name, that of his predecessor, Ed Smith (there was vigorously contested testimony that Smith's signature on the lease was that of O'Connell), or one of O'Connell's related companies. The role of Berta Rodon as a contact between Florida and Minneapolis was particularly incriminating. In one of the calls found on the recorder in O'Connell's office, O'Connell discussed the four Lincoln Continentals with Rodon. She told him that she had left Miami with the keys for one of them, and O'Connell related that he had sent someone to the airport with a key that did not match either of the beige ones or the blue one, and he was hoping it would fit the gold one. Rodon's presence in Minneapolis was established by independent testimony. She was involved in a collision while riding in a Lincoln driven by Greg Cooke and gave a false name to the investigating police officer. There was testimony of an exchange of briefcases between Rodon and another person and Greg Cooke and Timothy Lyons at a Howard Johnson's Restaurant in St. Paul, and telephone records established a telephone call shortly afterwards between Rodon and O'Connell before Rodon caught a plane to Miami. There was testimony that Rodon would not go to the stash house herself, but would leave her car at the motel and someone else would take it to the house. The last trip of the Lincoln from Florida to Minnesota, and the result of the searches in both locations, was particularly telling.
In light of the entire record, considered under the principles which focus our review, we cannot conclude that the prosecutor's argument could reasonably have affected the jury's verdict, Lee,
"[R]eviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser." Young,
VII.
Defendants Collier, Patterson and St. Cyr contend that they were entitled to individual trials, separate from all of their co-defendants. They argue that the district court erred in joining their trials to the others and in denying their motions for severance.
Joinder of two or more defendants is proper "if they are alleged to have participated * * * in the same series of acts or transactions constituting an offense or offenses." Fed.R.Crim.P. 8(b). Rule 8(b) has been interpreted to require some common activity involving all the defendants which embraces all the charged offenses, but it is not necessary that every defendant have participated in or be charged with each offense. United States v. Bledsoe,
Each of the defendants was named in a single marijuana conspiracy count, and all of the other charges against Collier, Patterson and St. Cyr were closely related to the operation of the conspiracy. These were sufficient allegations that the defendants participated "in the same series of acts or transactions constituting an offense or offenses" to render the joinder proper. Fed.R.Crim.P. 8(b). See United States v. Jackson,
The three defendants argue, however, that inclusion of the CCE charges against Cooke and O'Connell and of the tax count against Cooke renders the joinder improper. Proof of the CCE charges required evidence that Cooke and O'Connell had conspired with others to distribute marijuana and that they obtained substantial income from their drug activity. 21 U.S.C. Sec. 848(d)(2). Proof of the tax count, as charged in the indictment, also required evidence of income from the sale of illegal drugs. If the indictment invites joint proof, as here, the prima facie validity of joinder is shown. Haggard v. United States,
Collier, Patterson and St. Cyr argue in the alternative that they were entitled to severance under Fed.R.Crim.P. 14, even if their joinder were technically proper. A motion to sever rests within the district court's discretion, and we will not reverse its decision absent a showing of clear prejudice which indicates an abuse of discretion. Garcia,
Collier, Patterson and St. Cyr claim that the joint trial was prejudical because the bulk of the evidence was relevant only to the charges against Cooke and O'Connell, the parties offered inconsistent defenses, and the trial was so complex that the jury could not compartmentalize the evidence, creating a danger of conviction by spillover effect. However, the preference for joint trials of defendants jointly indicted, particularly where conspiracy is charged, is not limited by any requirement that the evidence of each defendant's culpability be quantitatively or qualitatively equivalent. Jackson,
VIII.
Having considered all of the issues raised by the defendants on this appeal, we affirm the judgments of conviction entered by the district court.
Notes
The HONORABLE THOMAS E. FAIRCHILD, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation
Each of the defendants was convicted of conspiracy to distribute marijuana. 21 U.S.C. Secs. 841(a)(1), 846 (1982). In addition, Cooke was convicted of engaging in a continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848 (1982), of filing a false income tax return, 26 U.S.C. Sec. 7206(1) (1982), and of using interstate travel to aid racketeering, 18 U.S.C. Sec. 1952(a)(2), (3) (1982). Cooke, O'Connell, Patterson and Collier were convicted of possession with intent to distribute marijuana, 18 U.S.C. Sec. 2 (1982); 21 U.S.C. Sec. 841(a)(1), and Cooke, Patterson, Collier and St. Cyr were convicted of using telephones to facilitate drug distribution, 21 U.S.C. Sec. 843(b) (1982)
The Honorable Robert G. Renner, United States District Judge for the District of Minnesota
Charles O'Brien distributed marijuana for Timothy Lyons in Minnesota. He pled guilty to one count of conspiracy to distribute marijuana and testified on behalf of the government at trial
O'Connell was not charged with possession of the marijuana seized in Florida
Section 2518(5) provides in relevant part: "Every order * * * shall contain a provision that the authorization to intercept * * * shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter."
We also reject Patterson's related argument that the district court erred in denying the defendants' joint motion for disclosure and production of government informants. Patterson has failed to demonstrate that any evidence the informants may have provided would have been material to his defense or that of the other defendants, United States v. Grisham,
See, e.g., Johnson,
We also reject O'Connell's claim that the government "intercepted" the tape in violation of 18 U.S.C. Sec. 2511(1). Even if we assume, arguendo, that Sec. 2511(1) does apply to the government's seizure of a privately-recorded tape, see United States v. Vest,
We reject Cooke's related arguments that he was entitled to an instruction that he could be convicted on the CCE count as an aider and abettor only, and that the district court abused its discretion in sentencing him, a first-time marijuana offender, to twenty five years of imprisonment without parole
We have no difficulty concluding that the record contained sufficient evidence to support an aiding and abetting instruction, cf. United States v. Hudson,
The imposition of a sentence is a matter within the district court's wide discretion; generally we will not overturn or review a sentence which falls within statutory limits. Resnick,
We also reject Cooke's argument that the government's summary of its financial analysis, entitled "Unexplained Sources of Funds," was improperly admitted into evidence. Cooke claims that use of the word "unexplained" in the title shifted the burden of proof to him and was an improper comment on his failure to testify. However, the trial court carefully described the expenditure method of proof to the jury and informed them in both introductory and final instructions that the burden of proof rested solely on the government. We do not believe that use of the word "unexplained", viewed in context, shifted the burden of proof to Cooke. Cf. United States v. Schultz,
For similar reasons, we do not believe the title of the summary either manifested the prosecutor's intent to call attention to Cooke's failure to testify, or was such that the jury would naturally take it as such a comment. United States v. Durant,
"I know how much proof it would take for me as a juror in this case or any other case to think I have reached the level of reasonable doubt. So if I over prove something * * * could it be because I don't know what it will take to reach the level of convincing the particular twelve of you in this particular case?" Tr. 2692-93
Mr. Vosepka stated: "We have shown you a significant number of weapons in this case. * * * Why do we put those weapons in? It relates to something that's involved in drug trafficking. Drug traffickers do that to protect themselves. * * * The defense in their cross-examination * * * took pains to point out that these were dangerous people. In fact, I think I recall Mr. Hawkins saying in opening statement in talking about the anticipated testimony of the testifying co-defendants, these aren't rascals. These are dangerous people. Well, ladies and gentlemen, these five defendants here aren't rascals. They're dangerous people. They're dangerous people engaged in drug trafficking." Tr. 2464-66 (objection sustained)
Tr. 93
"During this case, from the opening statement through the cross-examinations, through the closing argument, the lawyers for three of the defendants have attempted to prejudice you, not against the facts of the government's case, but against the government attorney personally and against the investigators
"Now, with regard to the investigators, that's fair game * * *. But when it's done not regarding testimony but to suggest evil motives or dishonesty by government attorney or the agents in presenting the case, it is improper. Why is it improper? Because it is not considered fair or ethical to try to discredit an opposing party's case by trying to discredit their representative to the finder of fact, in this case the jury." Tr. 2657 (objection sustained, Tr. 2658).
"What did you see about the way the government handled witnesses? * * * How many times did I tell those co-defendant witnesses we wanted the truth? How many times did that come out in direct and cross-examination?
"One of the defense counsel brought up that there was even a provision in the plea agreements about the defendant witnesses being subject to a lie detector test at the government's option. Now, you probably all know lie detector tests aren't admissible * * *. So why would I put that in there? It's one way, it's one tool, it's one mechanism to convince those people I really do want the truth." Tr. 2661 (objection sustained).
"Cooke didn't pay him that. Why? Because that didn't have a rubber band on it. There was another thousand dollars somewhere that wasn't put into evidence that did have a rubber band on it. So somehow that's supposed to prove to you--" Tr. 2691 (objection overruled)
"Whatever happened to Mr. Raben's opening statement about how Mr. Pat O'Connell got lucky at the race track? I was waiting to see the evidence on that." Tr. 2670 (objection overruled).
"I was waiting for that, because I was going to get up here and say at the end, well, maybe Dan O'Connell's dad goes to the same track that Pat Collier does and the same track that Greg Cooke does, when all these guys earned this money. I didn't get to do that." Tr. 2670.
"Why would Dan O'Connell have to mess around with marijuana when he has got this gold mine? * * * Maybe you would want to buy a gold mine if you had 200,000 laying around. Where did he get that 200,000, the cash in the wall? Did that lady ever photograph any cash? Did he have one single eyewitness ever come on, either through stipulated testimony or in person, to tell you that they saw that cash?" Tr. 2674 (objection overruled).
"Mr. Raben in his opening statement alluded to money found in the wall, money that people would later recall as having smelled musty, musty money, the old cash hoard in the wall. Was there one single bit of evidence--" Tr. 2677-78 (objection overruled).
"Was there one single bit of evidence in this case from any witness, bank tellers, bank employees, anybody, that they remember some musty money?" Tr. 2678.
Tr. 2657-59
Tr. 2656
Mr. Ross, O'Connell's attorney, stated: "Well, Mr. Vosepka, in an effort to fairly present the evidence in this case, came into court and now asks you to believe what he said on the tape is true, notwithstanding the fact that his witness said it's a lie." Tr. 2484
"[I]f I sound critical of the government and claim that they haven't fairly presented the evidence in this case, it's because they haven't." Tr. 2485.
"You should know from having sat through almost five weeks of a trial that you can't put people on the witness stand and ask them their opinion of things, except experts * * *. Mr. Vosepka says 12 years he's been at his job. You'd think in 12 years perhaps that might have dawned on him. Perhaps not * * *." Tr. 2485-86.
"They can't prove it. They knew they couldn't prove it. Tim Lyons said I can't help you prove it. But notwithstanding that, this is the type of question that the government put before you. It's unfair. It's unfair, because it painted a picture to you as if to say that this man had an opinion that O'Connell was the source. And that's not evidence. But that's what it was put there for. Now, I suggest that that's not a fair representation of the evidence in this case. And that wasn't the only occasion that that occurred." Tr. 2486-87 (objection overruled).
"The government, when they had Tim Lyons on the witness stand, an interesting thing happened. Mr. Hawkins asked on cross-examination of Tim Lyons whether or not his plea agreement * * * required him to submit to a polygraph examination if the government asked for it. He said yes. Did the government ask? No. The government wasn't even concerned. The government didn't care." Tr. 2487 (objection sustained).
Mr. Birrell, Cooke's attorney, stated: "I think that the government itself recognizes that its case is weak because they have done a lot of subtle and mischievous, and I say, wicked things--." Tr. 2589 (objection sustained). "To influence you." Id. (objection sustained). "I want you to understand that I'm not trying to improperly argue the case. But I do want to talk to you about some of the things that have been done by the government." Id. (objection sustained). "The reason the guns were brought in was to poison your mind." Tr. 2590 (objection sustained).
"Why does the government produce the testimony of these people, these nine paragons of virtue, who are supposed to come in and tell you what is supposed to be the truth, when the agent who debriefed them, Fisher, tells you some of them are truthful and some of them are not? Is the government willingly and knowingly putting false testimony in front of you? Is that fair?" Tr. 2591.
For Mr. Hawkins' statements, see Tr. 2544-45, 2561, 2565-66.
Mr. Birrell said: "What's the next built-in bias? They're all making a deal for money. Now, if I told you that somebody paid a witness a hundred bucks to testify, you wouldn't believe a word they said. * * * They're * * * paying them with money. Here's how. Sjolund has got a house that he bought, they're going to let him keep. Timothy Lyons--" Tr. 2595 (objection sustained)
"[T]his case is a story about evil. * * * And the reason that you must understand evil is that you must understand that in this case, the government, your government, is asking you to shake hands with the devil." Tr. 2586.
"And incidentally, all these people have a built-in motive to want to get Mr. Cooke. These are the fellows that said, 'I am going to take Cooke's kids and kill them. That will ruin him.' Or, 'If Cooke comes over to your door, just shoot him. Kill him.' These are the kind of guys they made the deal with. These are the devils that you are supposed to shake hands with and indeed embrace and believe." Tr. 2596.
"The government's theory is based on a couple things: The snitches, suspicion, innuendo, association. I'm telling you folks that these people, Lyonses and Sjolund, are just plain evil. And if you want to embrace them, if you want to say beyond a reasonable doubt I would not hesitate to act on what they've got to say, then go ahead. But if you do, I fear for the rule of law in this country." Tr. 2603.
In addition, Mr. Hawkins said: "Now, ladies and gentlemen, anybody who would render a verdict in the supposed accord with the United States government violates their oath." Tr. 2546 (objection sustained).
Many of the court's rulings have been set out in the margin. See supra notes 12, 14-17. The court told the jury: "Members of the jury, you have heard certain objections being made. You've heard the Court sustain some and reject some. * * * [C]losing arguments * * * [are] not evidence. They are the parties' interpretation of the evidence in the best light of their client. That's their job. Argument is supposed to be hard hitting, and it's supposed to be fair
"And from time to time, attorneys might stray a little, but I can tell you that these attorneys, and all of them, are honorable people." Tr. 2664-65.
What we have said about the arguments makes abundantly clear that if there was any error it was harmless beyond a reasonable doubt. See Hasting,