On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Crim. No. 91-00570-06. D.C. Crim. No. 91-00570-09. D.C. Crim. No. 91-00570-13. D.C. Crim. No. 91-00570-14. D.C. Crim. No. 91-00570-16. D.C. Crim. No. 91-00570-23. D.C. Crim. No. 91-00570-17.
Before: Sloviter, Chief Judge, Greenberg and Roth, Circuit Judges.
Defendants James Price, Reginald Reaves, Joseph Cobb, Leroy Jackson, Darrell Reaves, Anthony Long and Michael Williams appeal from judgments of conviction and sentence following a jury trial on several drug-related charges. Defendants make, in combination, fifteen separate claims of error which they argue require reversal of their convictions and a new trial. All the defendants, except Reginald Reaves, also challenge the court's sentencing determinations. 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 the defendants, along with nineteen 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. Three defendants, Jackson, Reginald Reaves and Williams, were also charged on substantive offenses of distribution of cocaine or cocaine base in separate instances.
The district court ordered the trial of the three leaders, Aaron Jones, Bryan Thornton, and Bernard Fields, to be severed from the other defendants, and then ordered the remaining defendants to be tried in two separate trials. These are the direct appeals from the second trial. Nine defendants who were to be tried in a third trial all pled guilty pursuant to plea bargains, as did five others. This Court has previously affirmed the convictions of the three conspiracy leaders, see United States v. Thornton, 1 F.3d 149 (3d Cir.), cert. denied, 126 L. Ed. 2d 433, 62 U.S.L.W. 3349, 114 S. Ct. 483 (1993), and has affirmed in unreported opinions the convictions and sentences of two other conspiracy members who pled guilty. See United States v. Perdue, (3d Cir., (3d Cir. 1993).
At the sixteen-day jury trial involving these seven appellants, the government introduced a substantial amount of evidence in support of its charges against the defendants, including the testimony of eight cooperating witnesses who were members of or who had had direct dealings with the JBM, approximately fifty wiretapped or consensually recorded conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. This evidence, similar to that introduced in the earlier Thornton trial, demonstrated (1) the numerous sources from which the JBM purchased and then distributed in the Philadelphia area over 1,000 kilograms of cocaine and lesser amounts of heroin during the period of time alleged in the indictment; (2) the administration of the JBM by Aaron Jones, Bryan Thornton, and Bernard Fields; (3) the division of the organization into squads which controlled the distribution of drugs in various sections of Philadelphia; and (4) 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. More specifically, the evidence in this trial demonstrated that (1) Reginald Reaves was a squad leader, and (2) his brother Darrell Reaves was his "right-hand man"; (3) Long was a member of Mark Casey's squad; (4) Price worked as a courier and enforcer for Jones; (5) Jackson dealt in drugs, facilitated the JBM's meetings and advised the JBM in general, and Jones in particular; (6) Cobb facilitated drug purchases for the JBM, and acted as a courier and enforcer; and (7) Williams was associated with members of the JBM and sold drugs. From time to time, there was a shift in their various roles and responsibilities.
The jury found all 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). In addition, Jackson was convicted on one count of distribution of cocaine base, and Reginald Reaves was convicted on one count of distribution of cocaine, both in violation of 21 U.S.C. § 841(a)(1) (1988). Williams was acquitted on one count of distribution of cocaine.
Defendants Price, Cobb, Jackson, Darrell Reaves and Long were each sentenced under the United States Sentencing Guidelines to 360 months imprisonment plus five years supervised release. Reginald Reaves was sentenced to life imprisonment, to be followed by supervised release for life. Williams was sentenced to 292 months imprisonment to be followed by five years of supervised release.
On appeal, each defendant argues that errors during the trial require a reversal of his conviction. Additionally, all the defendants but Reginald Reaves challenge the length of their sentences. We will address the defendants' allegations of error in the order in which they were alleged to have occurred,*fn1 and then review the sentencing of each defendant separately.
Price argues that he should never have been tried for conspiracy because he had previously pled guilty and been punished for one of the overt acts on which his participation in the conspiracy was based. He claims his conviction for conspiracy to distribute cocaine is a violation of the Double Jeopardy Clause. We review this "legal issue of constitutional dimensions" de novo. United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir. 1988). We rejected an argument similar to Price's in United States v. Esposito, 912 F.2d 60, 65 (3d Cir. 1990), cert. denied, 498 U.S. 1075, 112 L. Ed. 2d 1032, 111 S. Ct. 806 (1991), where we referred to the "well-established principle that collective criminal agreement is a separate criminal offense from individual delicts." The Supreme Court has recently reiterated the principle that the "prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause." United States v. Felix, 118 L. Ed. 2d 25, 112 S. Ct. 1377, 1380 (1992). We therefore reject this claim.
Cobb argues that it was error for the district court to divide into three trials the 26 members of the conspiracy who had been jointly indicted, and that when that was done he was improperly joined with his six co-defendants. We review the joinder of two or more defendants under Fed. R. Crim. P. 8(b) de novo whereas rulings on a motion for severance under Fed. R. Crim. P. 14 are reviewed for abuse of discretion. See United States v. Eufrasio, 935 F.2d 553, 567-68 (3d Cir.), cert. denied 112 S. Ct. 340 (1991).
Cobb's claim that all 26 indicted co-conspirators should have been tried together is unusual. Frequently, a defendant contends that trial with all his other alleged co-conspirators would be prejudicial. Indeed, that was Cobb's position in the district court. When the government indicts a large number of defendants on massive conspiracy allegations, it is the responsibility of the district court to consider various measures, including possible severance, that will make the trial manageable and protect the rights of the defendants to individualized consideration. We have stated that a trial court should "balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants." Eufrasio, 935 F.2d at 568. Ordinarily, judicial and prosecutorial resources will be conserved by a joint trial. However, in this case the district court determined that a joint trial of all defendants would be "potentially unwieldy, unmanageable, and confusing." S.App. at 12. The court found that there would be a "significant danger of 'spillover' of evidence from the government's case against the major participants in the conspiracy to the minor ones," and that there would be no conservation of judicial or prosecutorial resources. S.App. at 12-13. In view of these findings, we conclude that the court's decision to sever the co-defendants was not an abuse of discretion.
Cobb next argues that if the defendants were not to be tried en masse, his motion for a separate trial should have been granted. Inasmuch as this is a discretionary decision, a defendant has the heavy burden to "demonstrate clear and substantial prejudice resulting in a manifestly unfair trial." Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted). The Supreme Court has recently held that "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), see also United States v. Console, 13 F.3d 641,, Nos. 92-5507 et al. (3d Cir. Dec. 22, 1993).
The district court in this case concluded before trial that severance of Cobb from the six co-defendants was not required because Cobb had failed to show specifically how joinder would be prejudicial.*fn2 The record in this case demonstrates that he suffered no such prejudice. Most of the evidence presented at the trial concerned drug transactions that occurred while Cobb was an active participant in the JBM. Although Cobb argues that because he was denominated an "enforcer" much of the testimony at trial relating to drug sales and distribution prejudiced him, we note that evidence at trial indicated that Cobb was a courier and a supplier as well. Even if the evidence had shown that he was solely an agent of violence, we stated in Eufrasio that "[p]rejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant." 935 F.2d at 968. We find no abuse of discretion in the court's denying Cobb's motion for a separate trial.
Cobb's final argument in this vein is that, in any event, the court erred in joining him with these six specific co-defendants. However, 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 the defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. That is sufficient basis for joining these defendants in a single trial. See Thornton, 1 F.3d at 153 ("Joinder would not be improper merely because a defendant did not participate in every act alleged in furtherance of the overarching conspiracy.").
Admission of Evidence at Trial
Admission of Prior Arrest
Price contends that the district court erred in admitting evidence that he was previously arrested for possessing a gun. A district court's decision to admit or exclude evidence under the Federal Rules of Evidence is reviewed for abuse of discretion. See In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990).
Rule 404(b) "protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character." Huddleston v. United States, 485 U.S. 681, 687, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). The testimony of the arresting officer at trial revealed that on October 26, 1988, Price was seen engaging in what the officer thought was a narcotics transaction and that when the plain-clothed officer approached, Price pulled a gun. When the officer identified himself, Price dropped the gun and was arrested. The gun found on Price was then introduced into evidence. On cross-examination by Price's attorney, the officer conceded that the weapons charges were later dropped.
Price argues that neither the testimony nor the gun should have been admitted under Rule 404(b) because it was not probative of his involvement in the conspiracy and was introduced merely to demonstrate his propensity to do bad acts. While we do not suggest that every previous weapons charge is probative in every drug conspiracy case, cf. United States v. Zarintash, 736 F.2d 66, 71-72 (3d Cir. 1984) (where defendants were alleged to be drug buyers, large amount of cash seized a year after end of alleged conspiracy not probative of activities during conspiracy), we have previously noted that possession of weapons is "highly probative of the large scale of a narcotics distribution conspiracy and the type of protection the conspirators felt they needed to protect their operation." United States v. Pungitore, 910 F.2d 1084, 1152 (3d Cir. 1990), cert. denied 111 S. Ct. 2009 (1991) (citing United States v. Adams, 759 F.2d 1099, 1108-09 (3d Cir.), cert. denied 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985)) (quotations omitted); see also United States v. Martinez, 938 F.2d 1078, 1083-84 (10th Cir. 1991) (surveying cases admitting weapons as "tools of the trade"). The Price gun incident took place during the duration of the conspiracy, and the indictment alleged that "members of the JBM would and did carry semi-automatic handguns and other firearms in order to protect themselves and their drug business and to threaten and inflict violence upon rival drug dealers." C.App. at 95. This provided a sufficient reason, independent of character, for the admission of the evidence and therefore the court did not abuse its discretion.
Price also argues that even if probative, the admission of the evidence of gun possession should have been barred under Rule 403 because its prejudicial impact outweighed its probative value. The district court rejected this claim, noting, inter alia, that Price had adequate notice that the prior arrest might be used. C.App. at 704 ("I can't conscientiously say [that the probative value is] outweighed by the risk of unfair prejudice when you've had the information for that long"). Although unfair surprise is a factor to be considered under Rule 403, absence of surprise is not sufficient to offset unfair prejudice. However, Price has been unable to articulate any prejudice stemming from the evidence and claims merely that evidence of the gun might have encouraged the jury to decide against him on the basis of the emotional impact of the prior arrest on weapons charges. After reviewing the testimony, we are not persuaded that the evidence would have had that effect and we therefore conclude that the district court did not abuse its discretion.
Admission of Physical Evidence
Price also contends that the district court erred in denying his motion to suppress fourteen kilograms of cocaine that were seized from him on December 12, 1988. On that day, Price was arrested when Philadelphia police officers found the cocaine in a duffel bag he was carrying. As a result, he was indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). After Price's motion to suppress the cocaine on the ground that it was seized in violation of the Fourth Amendment was denied, he entered a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a)(2) and was sentenced to ten years imprisonment. On appeal, we affirmed the district court's denial of Price's motion to suppress. See United States v. Price, 888 F.2d 1383 (3d Cir. 1989) (unreported judgment order).
In the present case, the prosecution sought to introduce as evidence the same fourteen kilograms of cocaine. Price filed a motion in limine to suppress the cocaine, renewing his contention that it was seized in violation of the Fourth Amendment. After the district court learned that a district Judge in the same court had denied the motion to suppress in the earlier case, the court ruled, "All right. Well, for the same reasons then, the motion to suppress is denied again." C.App. at 706.
The government argues that the district court correctly ruled that Price was precluded from relitigating the merits of his motion to suppress.*fn3 We note that this court has never held that collateral estoppel can be invoked by the government against a defendant in a criminal trial, and that other Courts of Appeals are divided on this issue. Compare United States v. Harnage, 976 F.2d 633, 635 (11th Cir. 1992) ("We are not convinced that allowing the government to bar a defendant from relitigating an unfavorable determination of facts in a prior proceeding would serve the original goal of collateral estoppel--judicial economy.") with United States v. Rosenberger, 872 F.2d 240, 241-42 (8th Cir. 1989) (defendant collaterally estopped from moving to suppress evidence previously found to be legally obtained) and United States v. Thoresen, 428 F.2d 654, 666-67 (9th Cir. 1970) (same). The application of collateral estoppel to criminal defendants raises difficult due process questions. See United States v. Hamilton, 931 F.2d 1046, 1053 n.1 (5th Cir. 1991); Allan D. Vestal, Issue Preclusion and Criminal Prosecution, 65 Iowa L. Rev. 281, 312-21 (1980). We need not decide that issue in this case because, even assuming arguendo that collateral estoppel did not apply and that the district court would have suppressed the evidence, the introduction of the cocaine would not be a basis to overturn the conviction.
If unconstitutionally obtained evidence is erroneously admitted at trial, a conviction based on that evidence will not be vacated if the prosecution can show that "the evidence is so overwhelming that it is beyond a reasonable doubt that the verdict would have been the same without the improper evidence." United States v. Pavelko, 992 F.2d 32, 35 (3d Cir.), cert. denied 114 S. Ct. 272 (1993). The prosecution would clearly meet its burden in this case. There is substantial evidence, in both quality and quantity, which linked Price to the JBM conspiracy. Several witnesses testified that Price delivered cocaine to them for distribution, that he wore a JBM ring, and that he worked with other members of the JBM. Therefore, we conclude that the outcome of this case would not have been different had the district court rejected the evidence.
Admission of Taped Conversations
Cobb argues that the tape recordings of conversations between Cobb and other JBM members should have been inadmissible because they were hearsay. Patently, Cobb's own statements during those conversations were not hearsay. See Fed R. Evid. 801(d)(2)(A). The statements of other JBM members were admissible because they were statements of Cobb's co-conspirators made to Cobb during the course and in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).
Cobb also argues that the court erred in allowing unredacted tape recordings of Cobb's conversations that contained many racial epithets which were "extremely insulting and inflammatory" to members of the jury. Brief of Appellant Cobb at 28. On the tape specifically objected to, Cobb refers to members of a rival gang as "niggers." The court noted the existence of the racial epithet but overruled the objection. Cobb argues that the prejudicial effect of this evidence outweighed its probative value because it did not prove the existence of the conspiracy.
After reviewing the transcript, and noting that this particular conversation demonstrated Cobb's knowledge of the JBM, we agree with the government that it would have been virtually impossible to redact this or the other conversations without altering their substance. Additionally, although the term was used a number of times by the other conversation participants, Cobb himself only used it once. Inasmuch as defendant Williams was acquitted of one charge despite being heard on three recordings with such language, it appears that the jury was not overly concerned about the language to which Cobb alludes. Thus, we hold that the district court did not abuse its discretion in overruling Cobb's objections.
Witnesses' Trial Testimony
Cobb argues that a statement by a witness constituted impermissible comment on Cobb's failure to testify and that a statement by another witness was an impermissible reference to other crimes Cobb committed. Neither comment was objected to contemporaneously, and we therefore review these claims for plain error. See United States v. Shirk, 981 F.2d 1382, 1392 (3d Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3805 (U.S. May 17, 1993) (No. 92-1841).
The first alleged error occurred after Rodney Carson testified that he had given Cobb two ounces of cocaine. On cross-examination, Cobb's attorney commented that the only people who could seem to corroborate Carson's testimony "are dead people." Tr. Trans. 6/22/92 at 105. He then asked Carson who could corroborate his testimony, and Carson replied "Your client, sir." C.App. at 189. Carson later identified two other JBM members who could. Cobb argues that the court should have declared a mistrial sua sponte after that answer. We believe it is unlikely that Carson's response can be viewed as a comment on Cobb's failure to testify. In any event, it was elicited by the defendant's own questions, and thus falls outside of the principle established in Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965), that precludes a court or prosecutor from commenting (and presumably also eliciting a witness comment) on the defendant's failure to testify. Cobb cites no case extending the Griffin prohibition to this situation, and it follows that this does not rise to the level of plain error.
The second error alleged occurred at the beginning of Cobb's cross-examination of Christopher Anderson when, in response to the question whether he was "well rested," Anderson responded "well, you can say - I mean ever since the scene in New York - I would recommend to your client not to go there." C.App. at 352.*fn4 Whatever prompted the witness to make this statement, we agree with the government that this unintelligible answer was unlikely to have suggested to the jury that ...