On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 91-00570-03). (D.C. Criminal No. 91-00570-01). (D.C. Criminal No. 91-00570-05).
Before: Sloviter, Chief Judge, Nygaard and Weis, Circuit Judges.
Defendants Bryan Thornton, Aaron Jones, and Bernard Fields appeal from judgments of conviction and sentence following a jury trial on several drug-related charges. Defendants make, in combination, six claims of error which they argue require a reversal of their convictions and a new trial. We review the evidence in the light most favorable to the verdict winner, in this case the government. See United States v. Ofchinick, 883 F.2d 1172, 1177 (3d Cir. 1989), cert. denied, 493 U.S. 1034 (1990).
On October 2, 1991 a grand jury in the United States District Court for the Eastern District of Pennsylvania returned a thirty-two count indictment charging Thornton, Jones, Fields, and twenty-three others with conspiracy to distribute cocaine, crack cocaine, and heroin between late 1985 and September 1991. The indictment alleged that all defendants were members of a criminal organization known as the Junior Black Mafia ("the JBM"), which sold and distributed for resale large amounts of cocaine and heroin in the Philadelphia area. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. The district court ordered the trial of these three defendants to be severed from the remaining defendants, and then denied motions by Thornton and Jones for separate trials.
At the fifteen-day jury trial that followed, the government introduced a substantial amount of evidence in support of its charges against the three defendants, including the testimony of ten cooperating witnesses who were members of or who had had direct dealings with the JBM, more than sixty wiretapped or consensually recorded conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. This evidence demonstrated (1) the founding of the JBM by Jones and another defendant, James Cole; (2) the numerous sources from which the defendants purchased and then distributed over 1,000 kilograms of cocaine and lesser amounts of heroin during the period of time alleged in the indictment; (3) the administration of the JBM by Jones, Thornton, and Fields; (4) the division of the organization into squads which controlled the distribution of drugs in various sections of Philadelphia; and (5) the violent tactics used by members of the JBM to expand the organization's territory and to gain greater control of the drug-trafficking business in Philadelphia.
The jury found the defendants guilty of conspiracy to distribute and to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) (1988). In addition, Thornton and Jones were convicted of participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1988 & Supp. III 1991), and Fields was convicted of using a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1988 & Supp. III 1991),*fn1 and possession of a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (1988). All three defendants were sentenced under the United States Sentencing Guidelines to life imprisonment, and Thornton and Jones were each ordered to forfeit $6,230,000 to the government pursuant to 21 U.S.C. § 853 (1988). The defendants have not challenged the propriety of their sentences or fines. Nor, significantly, have they alleged that the evidence was insufficient to support the verdicts.
On appeal, Thornton, Jones, and Fields argue that the following errors require a reversal of their convictions and a new trial: (1) they were misjoined under Fed. R. Crim. P. 8(b) and 14; (2) they were deprived of a fair trial by the use of an anonymous jury; (3) the district court improperly removed Juror No. 3 and declined to remove Juror No. 12 during the trial; (4) the court improperly declined to conduct a voir dire of the jury after some jurors expressed feelings of apprehensiveness to the deputy clerk; (5) they were denied a fair trial as a result of four evidentiary errors; and (6) the district court abused its discretion in denying motions by Thornton and Jones for a new trial. We will address each of these allegations seriatim.
We review the joinder of two or more defendants under Fed. R. Crim. P. 8(b)*fn2 de novo and the denial of a motion for severance under Fed. R. Crim. P. 14*fn3 for abuse of discretion. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied, 112 S. Ct. 340 (1991).
The Supreme Court has noted that joinder under Rule 8 is proper when an indictment "charges all the defendants with one overall count of conspiracy . . . ." United States v. Lane, 474 U.S. 438, 447, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986); see also Eufrasio, 935 F.2d at 567 ("As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required."). In this case, all three defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. That is sufficient for joining these defendants in a single trial. See Eufrasio, 935 F.2d at 567. Moreover, the indictment alleged as overt acts in furtherance of the conspiracy the substantive acts with which these defendants were charged, further demonstrating the efficiency of a joint trial.
Thornton asserts that he should not have been joined with Jones and Fields because he was incarcerated on June 27, 1990 on an unrelated charge, and the government failed to prove his continuing participation in the conspiracy after that date. Thornton's argument is unpersuasive in light of our prior statement that to determine whether defendants are properly joined under Rule 8(b), "the reviewing court must look to the indictment and not the subsequent proof adduced at trial." United States v. McGill, 964 F.2d 222, 241 (3d Cir.), cert. denied, 121 L. Ed. 2d 588, 113 S. Ct. 664 (1992). The indictment in this case alleged that Thornton participated in the conspiracy through its Conclusion in September 1991.
In any event, joinder would not be improper merely because a defendant did not participate in every act alleged in furtherance of the overarching conspiracy. See, e.g., United States v. DeVarona, 872 F.2d 114, 120 (5th Cir. 1989) (joinder proper where "indictment alleged a single overarching conspiracy" even though defendant was "absent from a particular episode in the conspiracy"); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988) (joinder proper even though defendants' "respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods").*fn4
Defendants' argument that they were misjoined under Rule 14 is similarly unpersuasive. As the Supreme Court recently explained, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 122 L. Ed. 2d 317, 113 S. Ct. 933, 938 (1993). The district court in this case concluded that Thornton and Jones were both leaders of the JBM and that severance was inappropriate because the defendants had failed to demonstrate that joinder would be prejudicial.*fn5
In Eufrasio, we stated that "the public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy." 935 F.2d at 568. See also Zafiro, 113 S. Ct. at 937 ("There is a preference in the federal system for joint trials of defendants who are indicted together."). In order to warrant a reversal of the district court's discretionary decision to deny a motion for severance, a defendant has a heavy burden: "he must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial." Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted).
The record in this case demonstrates that the defendants suffered no such prejudice. Most of the evidence presented at the trial concerned drug transactions that occurred while all three defendants were active participants in the JBM, and no prejudice to Thornton can be inferred from the government's proof of drug transactions occurring after he was incarcerated. As we stated in Eufrasio, "[p]rejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against ...