to produce the material prior to the time a witness testifies. The Court declines to order the pre trial disclosure of such material. The Motion will be denied.
MOTION FOR SEVERANCE
The Defendant Charlotte Johnson has moved to sever her trial from that of the co-defendant Howard Horsley, contending that the Government will introduce post-arrest statements of the co-defendants as admissions; that she will be prejudiced by the extensive criminal record of the co-defendant; and that her involvement in the alleged criminal acts is minimal as compared to the involvement of the co-defendant Howard Horsley. The Defendant Howard Horsley also joins in the Motion for Severance.
Rule 14 of the Federal Rules of Criminal Procedure permits a severance of defendants, if joinder of the defendants is prejudicial either to a defendant or to the Government. Rule 8(b) of the Federal Rules of Criminal Procedure permits two or more defendants to be charged in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the offense.
A motion for severance is addressed to the sound discretion of the trial court, and upon appellate review, a Defendant will gain relief only if he satisfies the heavy burden of proving that the trial court's decision was an abuse of discretion which denied him the right to a fair trial. United States v. Boscia, 573 F.2d 827, 832 (3d Cir. 1978); United States v. Rosa, 560 F.2d 149 (3d Cir. 1977); United States v. Somers, 496 F.2d 723 (3d Cir. 1974); United States v. Armocida, 515 F.2d 29 (3d Cir. 1975).
Persons jointly indicted will be tried together unless there is a clear and substantial showing that a Defendant will be so severely prejudiced that the right to a fair trial would be denied. Where the Government charges multiple defendants with a single conspiracy, the interests of judicial economy usually favor a single trial. A severance is also not required where it is possible that evidence will be admissible against some but not all of the Defendants. United States v. Dickens, 695 F.2d 765 (3d Cir. 1982); United States v. Jackson, 649 F.2d 967 (3d Cir. 1981); United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176, 93 S. Ct. 234 (1972).
In the instant case, count one of the indictment charges both Defendants with conspiracy to distribute heroin, and counts five, six and seven charge both of the Defendants with distribution of heroin and the possession of it with the intent to distribute it. Proof of direct involvement in the actual transfer of heroin is not necessary for a conviction on the conspiracy count, and with reference to Counts 5, 6, and 7, where both of the Defendants are charged, it is also possible for the Defendant Johnson to be found guilty as an aider and abettor without proof that she actually did every act constituting the offense charged. Defendant Johnson's claim that a severance should be granted because her degree of participation is minimal as compared to Defendant Horsley's participation is of no merit.
The Defendant Johnson has not shown that she will be severely prejudiced by a joint trial. Under proper instructions by this Court, the jury will be able to separate the evidence and render a fair verdict as to each Defendant. The fact that evidence against one Defendant may be stronger than the evidence against another Defendant is not a sufficient reason to compel a severance, nor is the fact that a co-defendant has a criminal record a sufficient reason for a severance. United States v. Witschner, 624 F.2d 840, 845 (8th Cir. 1980); United States v. Dalzotto, 603 F.2d 642, 646 (7th Cir), cert. denied, 444 U.S. 994, 100 S. Ct. 530, 62 L. Ed. 2d 425 (1979); United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977); United States v. Bazinet, 462 F.2d 982, 992 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S. Ct. 453, 34 L. Ed. 2d 303 (1972). However, if prejudice to either of the Defendants does develop during the course of the trial, the Court may properly grant a severance at that time. The Motion for Severance will be denied.
MOTION TO SUPPRESS
The Defendant Horsley has moved to suppress evidence seized on or about December 12, 1984 upon the execution of search and arrest warrants issued by a magistrate of the City of Pittsburgh. The Defendant contends that the arrest warrants were obtained in violation of the Pennsylvania Rules of Criminal Procedure which require that an affidavit be attached; that the search warrant contains material misrepresentations of fact; that probable cause for the issuance of the search warrant was lacking, and that the probable cause section of the search warrant affidavit was impermissibly based on hearsay and on an unreliable informant.
With respect to the Defendant's claim that the arrest warrant is defective since there was no affidavit of probable cause, this Court noted that Rule 119(a) of the Pennsylvania Rules of Criminal Procedure does require that an arrest warrant must be supported by one or more affidavits sworn to before the issuing authority. However, the Comment to that rule specifically states: "Where a properly sworn to complaint contains a statement of facts and circumstances sufficient to establish probable cause for the issuance of the arrest warrant, it may serve as the affidavit." Here Benny Sledge did swear to the criminal complaint, which clearly sets forth instances of deliveries by Horsley of controlled substances to the undercover officer Sledge. There were sufficient facts and circumstances to establish probable cause for the issuance of the arrest warrant
A. Probable Cause for the Issuance of the Search Warrant
The Fourth Amendment requirement of probable cause for the issuance of a warrant must be applied in the light of the totality of the circumstances made known to the magistrate. A reviewing court may not undertake a de novo determination of probable cause, and should determine only whether there is substantial evidence to support the magistrate's decision to issue the warrant. In so doing, the Court must pay great deference to the magistrate's determination of probable cause, and must interpret the supporting affidavits in a commonsense manner. Illinois v. Gates, 462 U.S. 213, 236 103 S. Ct. 2317, 76 L. Ed. 2d 527, 547 (1983). The Supreme Court reiterated in Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984) that the totality of the circumstances test is the proper standard for determining the existence of probable cause under the Fourth Amendment.
Probable cause may be founded upon hearsay and upon information received from informants, as well as information that is within the affiant's own knowledge. Franks v. Delaware, 438 U.S. 154, 165, 98 S. Ct. 2674, 57 L. Ed. 2d 667, 678 (1978). In the application for the search warrant in this case, Beverly Stewart, the affiant, based her probable cause belief on the following:
During the week of 12/10/84, this affiant received information from a confidential and reliable source who stated that Howard Horsley is the main dealer of heroin in the City of Pittsburgh.: Howard sells heroin on the streest [sic] mostly, but he keeps his stashes of heroin all over the city at different locations. At 7947 Thon Dr. this C.I. stated Howard has dope (heroin) here. On rare occassions [sic], Howard will sell the heroin from the above location. On 5/17/84-5/21/84-7/18/84-7/25/84, U.Co. B. Sledge went to the above location and did obtain heroin in exchange for items listed on this report. The C.I. has had conversation with Horsley with-in the last 48 hrs. The C.I. reported to police, now that one of his girlfriends has been arrested, he is keeping his heroin at this location. Charlotte Johnson also resides here with her daughter. Ms. Johnson aides [sic] Howard in keeping all monies from the sales of the narcotics. This C.I. was at the above location with-in the last 48 hrs. of this report. Also, Howard is into cocaine and sells it as well as the heroin. The C.I. stated that cocaine might be in the residence. All items were exchanged for heroin and given to U.Co. B. Sledge. This C.I. further stated, Horsley drives a blue Jaguar, which is parked at this location with license plate no # GHU-378; Horsley has several vehicles as reported to the police. This confidential and reliable informant is reliable because in the past this C.I. has given information which led to the arrests and convictions of approx. five persons, for VCSDD&CA Heroin. Also, in the future there will be approx. six arrests made from the information given to police by this C.I. Chuckie Dial 4/27/83-10/12/83, Darryl Ward (5/24/84-) 7/7/84 arrests VCSDD&CA heroin on both cases. Wards case is still pending. All future arrests will be for VCSDD&CA heroin, and cocaine. This C.I. reports, Horsley packages his heroin in balloons and sells them for $20.00 a bag (Balloon). The C.I. has seen how heroin and cocaine are packaged and sold in the past and in a bundle, there are 15 balloons.
Court Exhibit A.
The commonsense interpretation of the information contained in the application for search warrant and affidavit compels the conclusion that in the totality of the circumstances there was probable cause for the issuing magistrate to believe that a crime had been or was being committed by the Defendant and that controlled substances were at the place to be searched. The magistrate could properly conclude from the affidavit that Horsley had sold heroin in the past, that in proceeding months Horsley sold heroin from the premises to be searched to an undercover officer, and that within 48 hours of the application for the search warrant the confidential informant was at the premises to be searched and as a result had reason to believe that controlled substances were on the premises. There was probable cause for the issuance of the search warrant.
B. Material Misrepresentations in the Affidavit for Probable Cause.
The defendant alleges that the affidavit for probable cause contains material misrepresentations and alleges that the following statement contained in the affidavit in support of probable cause is false: "On 5/17/84-5/21/84-7/18/84-7/25/84, U.Co. B. Sledge went to the above location and did obtain heroin in exchange for items listed on this report."
Detective Benny Sledge testified at the July 3, 1985 pre trial hearing that on May 17, 1984, he drove Mr. Horsley to Horsley's residence at 7947 Thon Drive in Penn Hills, and while enroute to the residence Defendant Horsley gave him seven balloons of heroin in exchange for a VHS recorder which Horsley removed from the car and took into his residence on Thon Drive. (Tr. 68-69). Sledge also testified that on May 21, 1984, Sledge went to Horsley's residence at 7947 Thon Drive with a television set, and while Sledge was in Horsley's dining room, Horsley gave him five balloons of heroin in exchange for the television set. (Tr. 69). Sledge further testified that on July 18, 1984, Sledge exchanged clothing for heroin at the Thon Drive residence, and finally, that on July 25, 1984, Sledge went to Horsley's house and Horsley took Sledge to the residence of Gloria Ritley in East Hills, where Horsley went in, brought heroin out, and gave it to Sledge, after which Sledge drove Horsley back to the residence on Thon Drive. (Tr. 70-71).
The Defendant argues that the affidavit contained material misrepresentations of fact since not all of the transactions took place in the Thon Drive, Penn Hills residence.
Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 57 L. Ed. 2d 667, 682 (1978), holds that a Defendant must establish that an affiant knowingly and intentionally or with reckless disregard for the truth, made a false statement. The search would then be voided only if the affidavit, without the false material, is insufficient to establish probable cause. Here, on all of the dates specified, Sledge did go to Horsley's residence on Thon Drive in Penn Hills, and on two of these occasions Sledge did obtain heroin which actually was at and inside the Thon Drive, Penn Hills residence. There was no material misrepresentations of facts stated in the affidavit which would void the search warrant under the principles enunciated by the Supreme Court in Franks v. Delaware, supra.
C. Credibility of the Informant
The Defendant claims that the affidavit is insufficient to establish the reliability of the confidential informant because the affidavit does not set forth the names and dates of the persons arrested and/or convicted as a result of information given by the confidential informant. Defendant contends that arrests which had not occurred as of the date of the issuance of the warrant are insufficient to establish the reliability of the informant. The Defendant also takes issue with statements in the warrant which the Defendant claims are conclusory, unreliable, unsubstantiated and insufficient.
The Supreme Court in Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 543 (1983), pointed out that an informant's "veracity", "reliability", and "basis of knowledge" are highly relevant in assessing an informant's reliability, but stated that these elements should not be understood to be entirely separate and independent requirements which must be rigidly exacted in each case. The Supreme Court noted that probable cause is a fluid concept, not readily reducible to a set of legal rules, and it therefore adopted the totality of the circumstances approach as the standard for assessing the reliability of the informant, and clearly rejected the application of the two-pronged test that had been derived from Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). With respect to the reliability of an informant, the Supreme Court stated in Illinois v. Gates, supra:
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. [Citation omitted]. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity -- which if fabricated would subject him to criminal liability -- we have found rigorous scrutiny of the basis of his knowledge unnecessary. [Citation omitted]. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weight of all of the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.
462 U.S. at 233-34, 76 L. Ed. 2d at 545 (Footnote omitted).
Here the affidavit of probable cause states that in the past the confidential informer gave information leading to the arrest and convictions of five persons for heroin trafficking, and specifically names two person involved in heroin trafficking. The affidavit also establishes that the informant had conversations with Horsley in the last 48 hours, the informant was in the residence to be searched within that time period, and the informant believed that heroin and cocaine might be in the residence. The affidavit contains more than a conclusory statement that the information was received from a reliable informant, and in addition to the information received from the informant (who had previously given information leading to arrest and conviction of heroin traffickers), the undercover officer B. Sledge on at least two occasions had obtained heroin from Horsley at the Thon Drive residence. From all of the circumstances set forth in the affidavit, including the past reliability of the informant and the fact that the informant had recently been in contact with Horsley at the Thon Drive residence, there was a substantial basis for the magistrate to conclude that there was probable cause to believe that controlled substances would be found at the Thon Drive residence. The Motion to Suppress will be denied.
The Motions filed by the Defendants will all be denied, and an appropriate Order will be entered.
AND NOW, this 12th day of November, 1985, after hearing and argument on the pretrial motions filed on behalf of the Defendants in the above-captioned case; and after due consideration of the record, briefs, issues and contentions of the parties; and for the reasons previously set forth in the accompanying Opinion;
IT IS ORDERED that the pretrial motions filed on behalf of the Defendants Howard Emmett Horsley and Charlotte D. Johnson be and the same are hereby DENIED.
PAUL A. SIMMONS
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