UNITED STATES of America, Appellee, v. Douglas Allen BAKER, Appellant. UNITED STATES of America, Appellee, v. Leroy Charles WHEELER, Appellant.
Nos. 95-2257, 95-2466.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 14, 1996. Decided Sept. 27, 1996.
Rehearing and Suggestion for Rehearing En Banc Denied in No. 95-2257 Dec. 17, 1996.
98 F.3d 330
McMILLIAN, Circuit Judge.
While we determine that admission of testimony surrounding the 1985 arrest was in error, we hold that it is harmless error. If a reviewing court is certain that an evidentiary error did not have “a substantial and injurious effect or influence on the jury‘s verdict,” the error is harmless and the jury verdict stands. United States v. Hanson, 994 F.2d 403, 407 (7th Cir. 1993) (internal citations omitted); see, e.g. United States v. Thomas, 86 F.3d 647, 653 (7th Cir. 1996). In the instant case the prejudicial impact of the error was minimal. The cross-examination on this prior arrest was brief. Sargent denied that the arrest ever occurred. The judge instructed the jury that the questions put to Sargent were not evidence. No further reference to the 1985 arrest was made throughout the trial. In this case where the defendant admits to the offense and raises only a defective coercion defense, this unfortunate admission cannot be fairly viewed as having any significant effect on the verdict.
IV.
Lastly, Sargent appeals the district court‘s decision to allow into evidence Sargent‘s connection to a murder investigation. Appellant argues that this evidence should have been excluded under
The district court admitted the evidence because it provided an alternate explanation to Sargent‘s reasons why he cooperated with the ATF. Sargent testified that he voluntarily came to the aid of the agency. The prosecution presented a version at variance with this altruistic vision. A murder had been committed with a gun purchased by Sargent. Only after the ATF questioned Sargent about his connection to the murder did the ATF and Sargent establish their cooperative arrangement.
We see no abuse of discretion. Sargent‘s version of his voluntary cooperation with the ATF was less than complete. The prosecution‘s evidence of the murder was necessary to an understanding of the cooperation. The prosecution contained the potential prejudicial effects of such evidence by underscoring in its examination of the two agents that Sargent was not a suspect in the actual murder, but only connected through his purchase of the gun.
In conclusion, we AFFIRM Sargent‘s conviction on all counts.
Neal J. Shapiro, argued (Scott F. Tilsen, on the brief), Minneapolis, MN, for appellant Wheeler.
Nathan P. Petterson, Assistant U.S. Attorney, Minneapolis, MN, argued, for appellee.
Before McMILLIAN, LAY and HANSEN, Circuit Judges.
McMILLIAN, Circuit Judge.
Douglas Allen Baker and Leroy Charles Wheeler appeal from final judgments entered in the District Court1 for the District of Minnesota, upon a jury verdict, finding each guilty of aiding and abetting the other in knowingly possessing a toxin for use as a weapon in violation of
BACKGROUND FACTS
On May 21, 1992, Colette Baker, the wife of defendant Baker, went to the Pope County, Minnesota, sheriff‘s office. She appeared to be very nervous. She talked to the receptionist, Joan Holtberg. Colette Baker was carrying a small red coffee can. Inside the coffee can were a baby food jar containing a white powder, a fingernail polish bottle containing a greenish gel, a pair of rubber gloves, and a handwritten note.2 Colette Baker took each of the items out of the coffee can and showed them to Holtberg. Colette Baker referred to the contents of the coffee can as “Maynard” and told Holtberg that she believed that the powder and gel were only dangerous if they were mixed together.
The sheriff‘s office turned over the coffee can and its contents to the FBI for analysis. The FBI found two of Wheeler‘s fingerprints inside one of the rubber gloves and one of his fingerprints on the bottom of the coffee can. The United States Army Medical Research Institute of Infectious Diseases identified the white powder as ricin. Ricin is a toxin derived from the castor bean plant and is extremely deadly. There is no known antidote for ricin poisoning. FBI special agent Thomas Lynch testified that the process for producing ricin from castor beans is relatively simple and is described in various publications which are commercially available. The baby food jar contained about .7 gram of 5% pure ricin, which, according to a government witness, was enough to kill 126 people. The greenish gel was a mixture of dimethyl sulfoxide (DMSO), a solvent which can penetrate the skin, and aloe vera gel, which is used in cosmetics and hair care products. According to Lynch, DMSO could be combined with ricin to carry the ricin through
Scott Loverink testified that he had known Wheeler since the late 1970s but had never met Baker. Loverink testified about conversations he had had with Richard Oelrich and Dennis Bret Henderson in the early 1990s about ordering castor beans through the mail, processing the castor beans into ricin, and using the ricin to kill people. According to Loverink, in the summer of 1991, Henderson told him that he (Henderson) had ordered some castor beans and had planted them in Wheeler‘s yard. Henderson also introduced Loverink to Oelrich. According to Loverink, Oelrich referred to “bureaucratic flu,” identified various government employees as potential targets, and described the advantages of ricin over other poisons and how ricin could be used with DMSO to carry the ricin through the skin. Henderson also discussed how ricin could be used with DMSO and left in places where people would touch it.
According to Loverink, Oelrich and Henderson referred to ricin as “Maynard.” Loverink did not initially know why they did so. However, Loverink later received copies of a newsletter called the CBA Bulletin and noticed that the newsletter contained advertisements for castor beans and instructions for making ricin which could be purchased from Maynard Campbell in Ashland, Oregon. Henderson told Loverink that was why they called ricin “Maynard.”
Loverink testified that sometime during the summer of 1991, possibly in August, Henderson left a baby food jar containing ricin in his (Loverink‘s) workshop for about two weeks. Henderson explained to Loverink that he did not want to store it because there were small children around his house.
In July 1994 a federal grand jury charged Baker and Wheeler with one count of aiding and abetting one another in knowingly possessing a toxin, ricin, for use as a weapon, in violation of
Lund also interviewed Wheeler. The interview was reduced to writing and Wheeler signed the written statement. The written statement was introduced into evidence at the trial (as Government Exhibit 12). Wheeler said that he was aware of a toxin called “Maynard” made from castor beans and that he had heard Oelrich, Henderson and Duane Baker, defendant Baker‘s father, discuss it. Wheeler had heard Oelrich and Henderson discuss mixing “Maynard” with DMSO and aloe vera and he also knew that DMSO is quickly absorbed into the skin. Wheeler knew about the advertisements for castor beans in the CBA Bulletin and that Oelrich had received the CBA Bulletin. Wheeler also knew that in April 1991 Oelrich had ordered castor beans from Maynard Campbell and that the castor beans had been sent to his (Wheeler‘s) house. Wheeler gave the castor beans to Henderson. According to Wheeler, Henderson processed the castor beans into ricin in his (Wheeler‘s) shed. Henderson wore rubber gloves and a face mask during the process. Wheeler described the ricin as a white powdery substance. Wheeler knew that it was a deadly poison and he had heard Oelrich and Henderson discuss using “Maynard” to kill people. Wheeler said that Henderson put the powder in a baby food jar, which he (Henderson) then put inside a coffee can and stored in Wheeler‘s shed for several months.
Pre-trial motions, including motions to sever, to dismiss the indictment and for trial in, or for a jury drawn from, the division where the offense charged occurred, were denied. The offense charged occurred in Pope County, Minnesota, which is in Division 6 of the District of Minnesota. Then-Chief Judge Diana E. Murphy, in Division 4, had originally been assigned to preside over the trial. However, upon Judge Murphy‘s appointment
BAKER—SEVERANCE
Baker argues that his case should not have been joined with Wheeler‘s and that the district court abused its discretion in denying his motion for severance. He argues that he was prejudiced by the joinder because the jury heard evidence that was admissible only against Wheeler, including co-conspirator‘s statements and Wheeler‘s inculpatory statement to the FBI.
Assuming for purposes of analysis that defendants were properly joined,
For this reason, we reverse Baker‘s conviction and remand his case to the district court for further proceedings. We discuss the other issues raised by Baker and the issues raised by both defendants because they could become issues if Baker is retried.
BAKER—COLETTE BAKER‘S STATEMENTS
Baker also argues the district court abused its discretion in admitting into evidence Colette Baker‘s statements to the sheriff‘s receptionist that the coffee can con-
WHEELER—CO-CONSPIRATOR‘S STATEMENTS
Wheeler argues the district court abused its discretion in admitting into evidence co-conspirator‘s statements made by Henderson and Oelrich. The co-conspirator‘s statements were admitted against Wheeler only. Wheeler argues there was no evidence that he was involved in a conspiracy with Oelrich and Henderson and that, even if there was evidence of a conspiracy, the statements were not made in furtherance of the conspiracy. He argues the evidence showed only that he associated with Oelrich and Henderson, knew about their activities and had listened to their conversations. We disagree.
A statement that simply informs a listener of the declarant‘s criminal activities is not made in furtherance of the conspiracy; instead, the statement must “somehow advance the objectives of the conspiracy.” United States v. Mitchell, 31 F.3d 628, 631-32 (8th Cir. 1994) (citations omitted).
The co-conspirator‘s statements and other evidence, including Wheeler‘s inculpatory statement to the FBI, established by a preponderance of the evidence that Wheeler, Henderson and Oelrich were involved in a conspiracy to manufacture and knowingly possess ricin for use as a weapon. The evidence showed that Wheeler had heard Henderson and Oelrich and others discuss mixing ricin with DMSO and aloe vera gel and using it to kill people, including unspecified government officials; Wheeler knew that ricin was poisonous and dangerous to handle; castor beans ordered by Oelrich from Maynard Campbell were delivered to Wheeler‘s house; Wheeler gave the castor beans to Henderson; Henderson “processed” the castor beans in Wheeler‘s shed; and Henderson stored the ricin in Wheeler‘s shed for several months. Henderson‘s and Oelrich‘s statements were not merely informative; they attempted to involve Loverink in their criminal activities and succeeded in persuading Loverink to store the ricin in his workshop for two weeks. The district court did not abuse its discretion in admitting into evidence against Wheeler the co-conspirator‘s statements made by Henderson and Oelrich.
DOCUMENTS
Both defendants argue the district court erred in admitting into evidence certain documents, specifically, advertisements for castor beans from the CBA Bulletin (Gov‘t Exs. 6 (Mar. 1991), 7 (Apr. 1991)) and the cover of a book titled Silent Death (Gov‘t Ex. 13). Defendants argue that there was no evidence that they had in fact ever seen the advertisements or the book cover and that the documents were inflammatory and highly prejudicial. The advertisements and the book cover include the words “silent death” in a distinctive typeface and a skull-and-crossbones illustration. FBI special agent Lynch testified that the text of the advertisements incorporate references to the title of
The district court did not abuse its discretion in admitting these documents into evidence against Wheeler. The advertisements and the book cover were relevant and probative evidence of Wheeler‘s knowledge that ricin could be used as a weapon (or at least was advertised as such). The advertisements explained why Wheeler (and others) called the ricin “Maynard,” showed how castor beans could be purchased by mail order from Maynard Campbell‘s Avenging Angel Supply, and described ricin (rather sensationally) as a “tool of justice” and as a “Silent Death for those who hate God, Freedom and this Republic!”
However, we do not think the documents should have been admitted against Baker. Unlike Wheeler, who had admitted knowing about the advertisements in the CBA Bulletin and about processing castor beans into ricin, there was no evidence that Baker had ever seen or knew about the advertisements, the CBA Bulletin, or the book, or that he was part of the conspiracy. The advertisements and the book cover, which provided a graphic nexus between castor beans, Maynard Campbell and the use of ricin as a weapon, can only have had an extremely prejudicial impact on the jury.
JURY SELECTION
Both defendants argue the district court erred in denying their motion for trial in, or for a jury drawn from, the division where the offense occurred. Defendants argue that their statutory and sixth amendment rights to a jury drawn from the community where the offense occurred were violated because the jury was not drawn from Division 6, where the offense occurred, but instead from Division 3, where the trial was held. (Jurors were also drawn from Division 1.) We disagree. There is no statutory or constitutional right to a jury drawn either from the entire judicial district or from the division in which the offense occurred. E.g., United States v. Balistrieri, 778 F.2d 1226, 1229 (7th Cir. 1985) (jury need not be selected from division in which crime committed), cert. denied, 477 U.S. 908 (1986); Zicarelli v. Dietz, 633 F.2d 312, 317-18 (3d Cir. 1980) (no constitutional right to jury chosen from division where offense was committed or from entire district which includes that division), cert. denied, 449 U.S. 1083 (1981).
INTERSTATE OR FOREIGN COMMERCE NEXUS—LOPEZ DEFENSE
Next, both defendants argue
Defendants did not raise this issue in the district court and raise this issue for the first time on appeal. (Wheeler amended his brief on appeal to join Baker in raising this issue.) In pre-trial motions defendants argued the statute was unconstitutional because it was vague and overbroad. At sentencing Baker argued the statute was unconstitutional on several grounds but did not raise the commerce clause issue. The failure to raise the issue in the district court constitutes a waiver of the issue. E.g., United States v. Flaherty, 76 F.3d at 973 (failure to raise Lopez issue in district court resulted in waiver); see also
SUFFICIENCY OF THE EVIDENCE
Both defendants argue the evidence was insufficient to support the jury verdict. Baker does not dispute that he possessed the ricin; he argues there was insufficient evidence that he possessed the ricin for use as a weapon or aided and abetted another in possessing the ricin for use as a weapon. Wheeler does dispute the sufficiency of the evidence of possession. Wheeler argues there was insufficient evidence that he exercised any dominion or control over the ricin, possessed it for use as a weapon or aided and abetted another in possessing the ricin for use as a weapon and that he was merely an innocent bystander. We disagree.
“The standard of review of an appeal concerning the sufficiency of the evidence is very strict, and the verdict of the jury should not be overturned lightly.” United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991). “The jury‘s verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992), cert. denied, 505 U.S. 1211 (1992). “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury‘s verdict.” Id. “A conviction may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt.” Id. “If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” United States v. Burks, 934 F.2d at 151.
[W]e must determine whether the facts so viewed sufficiently proved the elements of aiding and abetting, which are: (1) that the defendant associated with the illegal activity; (2) that the defendant participated in it as something he or she wished to bring about; and (3) that the defendant sought by his or her actions to make the activity succeed.
United States v. Robinson, 782 F.2d 128, 130 (8th Cir. 1986).
On the one hand, “[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.” On the other hand, “there are circumstances where presence itself implies participation—as where a 250-pound bruiser stands silently by during an extortion attempt, or a companion stands by during a robbery, ready to sound a warning or give other aid if required.” In sum, the line that separates mere presence from culpable presence is a thin one, often difficult to plot.
United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (citations omitted), cert. denied, 506 U.S. 1063 (1993).
We have reviewed the evidence and hold there was sufficient evidence to support the jury verdict that Baker knowingly possessed ricin for use as a weapon. The government showed that ricin is extremely toxic, deadly in extremely small quantities, and very difficult to detect, there is no known antidote, and has been popularized in various publications as a method to kill people. The
We also hold the evidence was sufficient to support the jury verdict that Wheeler possessed ricin for use as a weapon or that he aided and abetted another in possessing ricin for use as a weapon. The evidence showed that Wheeler‘s fingerprints were found on the outside of the coffee can and in one of the rubber gloves found inside the coffee can. As noted above, the ricin, the handwritten note and the rubber gloves were found inside the coffee can. Wheeler admitted in his statement to the FBI that he knew that ricin was a deadly poison and had to be handled extremely carefully, that Oelrich had ordered the castor beans from Maynard Campbell, and that Henderson had processed the castor beans and stored them in his (Wheeler‘s) shed. In addition to the government‘s evidence about ricin‘s toxicity, there was also evidence that Wheeler had heard Henderson and Oelrich discuss using ricin to kill people. The jury could have reasonably inferred from the evidence that, had Wheeler been merely an innocent bystander, he would not have assisted Oelrich and Henderson or listened to their discussions about using ricin to kill people. “Jurors can be assumed to know that criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences.” Id. (discussing mere presence/ innocent bystander defense).
Accordingly, we affirm Wheeler‘s conviction and sentence, but we reverse Baker‘s conviction and remand his case to the district court for further proceedings. Wheeler‘s motion to amend his brief on appeal is granted.
HANSEN, Circuit Judge, dissenting in part.
I respectfully dissent from that part of the court‘s opinion which reverses Douglas Allen Baker‘s conviction for the singular reason that the district court did not sever his trial from that of his co-defendant, Leroy Charles Wheeler.4 I concur in that part of the opinion which affirms Wheeler‘s conviction and sentence.
In my view, there is little reason to find this to be the rare case in which severance should have been granted. This was a single count indictment naming Wheeler and Baker as the only defendants; each was charged with aiding and abetting the other in knowingly possessing ricin for use as a weapon. The trial court went to some length to instruct the jury with respect to what evidence was admissible against which defendant, and to inform the jury that each defendant was to be judged only on that evidence which was admitted against that defendant.
I start with a proposition not mentioned in our court‘s opinion—that severance is a matter committed to the sound discretion of the district court, and it is only when the district court abuses that discretion and a defendant can clearly demonstrate “severe or compelling prejudice” resulting therefrom that the nonsevered defendant is entitled to a new trial. United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (internal quotations omitted).
“There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Joint trials promote
The court finds prejudice because evidence was presented to the jury against Wheeler which would not have been admissible if Baker were tried separately. But that happens in most every trial where there is more than one defendant, and limiting instructions are usually deemed sufficient to cure any risk of prejudice. See Richardson, 481 U.S. at 206-08. When Loverink testified for the government about the conspiracy, the court was very careful to tell the jury not once, but twice, that it could not use Loverink‘s testimony against Baker. (Tr. at 246-47 (before Loverink‘s testimony); Tr. at 313-14 (after Loverink had testified).) The court relies on Zafiro, but Zafiro only says that a risk of prejudice “might” occur when such evidence is admitted. Our court‘s opinion grants relief without showing how the facts of this case turn “might occur” into “did occur.” The court also finds prejudice because Wheeler‘s inculpatory statement (which the court agrees did not implicate Baker on its face but arguably does so when linked to other evidence) was admitted against Wheeler at the joint trial. The district court gave the jury the following instruction at the time the evidence about Wheeler‘s statement was offered:
THE COURT: Now, members of the Jury, I‘m going to give you another instruction at this time concerning this witness’ testimony relating to the certain statements alleged to have been made by the Defendants.
You‘re about to hear testimony concerning statements made by the Defendants, as I said. You may consider the statement of defendant Wheeler only in the case against him and not in the case against defendant Baker. What that means is that you may consider defendant Wheeler‘s statement in the case against him, and for that purpose rely on it as much or as little as you think proper. But you may not consider or discuss that statement in any way when you are deciding if the Government has proved beyond a reasonable doubt its case against defendant Baker.
(Tr. at 372-73.)
Such a procedure was expressly approved by the Supreme Court in Richardson v. Marsh, 481 U.S. at 211 (no Confrontation Claim violation when nontestifying codefendant‘s statement which has been redacted to eliminate the codefendant‘s name and any reference to the codefendant‘s existence is admitted at joint trial). In its final instructions the jury was told that it must give separate consideration to the evidence about each individual defendant and that each defendant was entitled to be treated separately. (Tr. at 558.) There is nothing in this record to indicate the jury failed to follow its instructions.
This was a simple, straightforward trial raising basic, noncomplex issues of possession and intent. The jury was only dealing with one count and two defendants. Only five witnesses were called by the government. The court‘s limiting instructions were clear, correct, and appropriately given. Our court reasons that relief should be granted in part because “this is not the kind of case in which we can say, in light of the jury‘s verdict that the jury was able to compartmentalize the evidence as it related to each defendant.” The court‘s statement is true, but it is true in every case where there is but a single count and two defendants. Absent a finding of not guilty as to one of the two defendants, there is no way the jury‘s verdict proves or disproves its ability to compartmentalize the evidence. Because that is so, no inference either way can be drawn from this jury‘s verdict. The burden remains on the defendant to show “real prejudice.” Adkins, 842 F.2d at 212.
In Davis, we held that a case involving two defendants, no complex issues, three days of trial, and eight counts was “a case [where] a jury undoubtedly is capable of properly compartmentalizing the evidence.” 882 F.2d at 1340 (citations omitted) (emphasis added). The case at bar is also one where the jury undoubtedly was capable of compartmentalizing the evidence pursuant to the experienced district court‘s clear instructions. There is nothing in this record to indicate to the contrary.
To the extent that our court relies on the district court‘s evidentiary error in admitting against Baker the advertisement for the castor beans from the CBA Bulletin and the book cover from Silent Death as proof that Baker suffered severe prejudice from the district court‘s denial of his severance motion, ante at 335, 337, I believe the court‘s reliance to be misplaced. Granting Baker a separate trial would not have prevented the same error from occurring because there is no reason to believe that at a separate trial for Baker, the government would not have offered the documents against him or that the district court would not have let them in. The two issues of evidentiary error by the district court and a jury‘s ability or inability to compartmentalize the admitted evidence appear to me to be separate and independent, with neither impacting the other.
Because the defendant Baker has failed to carry his burden of demonstrating “real prejudice” caused by the joint trial (as opposed to evidentiary error), he has also failed to show that the district court abused its broad discretion in denying his Rule 14 severance motion. Consequently, I would affirm Baker‘s conviction and sentence.
Accordingly, I respectfully dissent.