Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 77 CR 62 -- Bernard M. Decker, Judge.
Before Bauer, Circuit Judge, Fairchild, Senior Circuit Judge, and Baker, District Judge.*fn**
Garland Jeffers, Richie Dean Jeffers, Andrew West, and Vertis King were charged with conspiring to violate the Travel Act*fn1 and the Controlled Substances Act*fn2 between May 1974 and March 1975. The six-count indictment further charged all four co-defendants with causing one Ollie Mae Vinson to travel in interstate commerce to facilitate bribery in violation of the Travel Act and charged West, King, and Richie Dean Jeffers with perjury in violation of 18 U.S.C. § 1623.
The case was tried to a jury in the United States District Court for the Northern District of Illinois, the Honorable Bernard M. Decker presiding. The evidence showed that in May 1974 Garland Jeffers was incarcerated at the Cook County Jail, Chicago, Illinois, where co-defendants West and King were employed as correctional officers. While incarcerated in the jail awaiting trial on drug trafficking charges, Jeffers, head of the very lucrative "Family" drug ring located in Gary, Indiana,*fn3 continued to run Family operations. Jeffers arranged for his wife, Richie Dean Jeffers, and Ollie Mae Vinson, both Family members, to give King and West pay-offs in exchange for special privileges for Jeffers and other incarcerated Family members. The jury returned a verdict acquitting West of the perjury count and convicting all four co-defendants on all other charges.
Garland Jeffers, West, and King appeal. West and King claim that the district court erred in denying their pretrial motions for severance. Jeffers claims that the court erred in denying his motion to dismiss the indictment. Additionally, they challenge several evidentiary rulings, claiming that they were harmful error. Finally, they claim that the Government's closing argument was so prejudicial that reversal is mandated. For the reasons discussed in this opinion, we affirm.
Appellants raise several issues on appeal. We consider first their claim that the district court erred in denying West's and King's pretrial motion for severance and Jeffers' motion to dismiss the indictment.
Defendants West and King sought to be tried separately from co-defendant Jeffers. Their joint motion for severance set forth two grounds: (1) that Jeffers would offer exculpatory testimony in their behalf if they were tried separately and (2) that King and West would be prejudiced by guilt-by- association if tried with Jeffers, a convicted drug dealer.*fn4 An affidavit filed with the motion set forth the substance of Jeffers' expected testimony. Without hearing any testimony, the court denied the motion.*fn5 West and King claim that they were denied due process and the right to a fair trial by the court's failure to sever.
Motions to sever are addressed to the sound discretion of the trial court, and we will overturn the court's ruling only upon a clear showing of abuse of discretion. United States v. Papia, 560 F.2d 827, 836 (7th Cir. 1977); United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). "(T)he general rule has evolved that persons jointly indicted should be tried together, particularly so when the indictment charges a conspiracy or a crime which may be proved against all the defendants by the same evidence and which results from the same or similar series of acts." Id. (citations omitted). Appellants bear the heavy burden of demonstrating that they were denied a fair trial by joinder. United States v. Harris, 542 F.2d 1283, 1312 (7th Cir. 1976), cert. denied sub nom. Clay v. United States, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977).
Appellants claim that they were unduly prejudiced by being tried with a convicted drug dealer because the jury was likely to find them guilty by association. The jury actually acquitted West on one of the six counts of the indictment, rebutting any claim that the verdict against King and West was based on guilt-by-association. The fact that King and West were law enforcement officers, without more, did not entitle them to a separate trial merely because Jeffers is a known criminal. United States v. Harris, 542 F.2d at 1313.
Appellants' second argument is equally unavailing. Severance of a co-defendant is required only where one co-defendant's testimony would exculpate the others. United States v. Echeles, 352 F.2d 892, 898 (7th Cir. 1965). If the co-defendant's testimony merely contradicts part of the Government's proof, joinder does not deprive defendants of a fair trial. United States v. Papia, 560 F.2d 827, 837 (7th Cir. 1977); United States v. Abraham, 541 F.2d 1234, 1240 (7th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S. Ct. 1128, 51 L. Ed. 2d 553 (1977). The only testimony Jeffers could have provided in King's and West's behalf was that he never authorized or paid any bribes to them. And in fact, he did so testify. He could not, however, exculpate them because his testimony did not refute Jacki Boone's and Ollie Mae Vinson's testimony that they saw King and West accept bribes. The district court did not abuse its discretion in denying appellants' severance motion.
Jeffers claims that the district court erred in denying his motion to dismiss the indictment because prosecution of this case placed him twice in jeopardy for the same offense. The indictment in this case charging Jeffers with conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1) was returned in the Northern District of Illinois in January 1977. Prior to that, in March 1974, Jeffers was indicted in two separate indictments returned in the Northern District of Indiana charging him with conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and with conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848.*fn6 Jeffers claims that the Government has taken one continuing conspiracy to distribute heroin and divided it into two smaller conspiracies in violation of the fifth amendment guarantee against double jeopardy.
The double jeopardy clause prohibits prosecution of a single conspiracy as two separate conspiracies. Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 101, 87 L. Ed. 23 (1942); United States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980). A defendant claiming that he has been subjected to double jeopardy bears the burden of establishing that both prosecutions are for the same offense. United States v. Castro, 629 F.2d at 461. The defendant must show that "the evidence required to support a conviction on one indictment would have been sufficient to warrant a conviction on the other" indictment. United States v. Buonomo, 441 F.2d 922, 925 (7th Cir.), cert. denied, 404 U.S. 845, 92 S. Ct. 146, 30 L. Ed. 2d 81 (1971) (citations omitted). In determining whether a defendant has satisfied the "same evidence test," a reviewing court must
look to both the indictments and the evidence and consider such factors as whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the two conspiracies depend on each other for success. Where several of these factors are present, the conclusion follows that the alleged illegal combinations are not separate and distinct offenses.
United States v. Castro, 629 F.2d at 461 (citations omitted).
Having reviewed these factors, we conclude that the conspiracy charged in the indictment giving rise to this case is not the same offense in law and in fact as was charged in the first conspiracy indictment or in the continuing criminal enterprise indictment. Although all three indictments charged Jeffers with distributing heroin, the time period, the alleged co-conspirators and places, and the overt acts are different. Moreover, it is clear that the two conspiracies did not depend on each other for success.
Both the continuing criminal enterprise and the first conspiracy were alleged to have begun about November 1971 and continued to March 1974, whereas this conspiracy was alleged to have begun in May 1974 and continued to March 1975. In fact, the second conspiracy could not have been formed until May 1974 when the first Family member was incarcerated at Cook County Jail. The ultimate objective of the first conspiracy and continuing criminal enterprise, as set forth in the indictments, was to control distribution of heroin and cocaine in Gary, Indiana, whereas the ultimate objective of this conspiracy was to influence Cook County Jail officers to provide favors, privileges, and heroin to incarcerated Family members. Although there is some overlap among the named co-conspirators in the two conspiracies, the central figures in the second conspiracy, King and West, without whom this conspiracy would have failed, were not involved in the first conspiracy at all. The overt acts and places charged in the two conspiracies are also different. The indictment in the first conspiracy charges only acts involving drug supply and distribution occurring in Gary, Indiana. This conspiracy, on the other hand, charged acts of bribery and heroin distribution in the jail, all of which occurred in Cook County, Illinois. Finally, the two conspiracies did not depend on each other for success. By the time the second conspiracy could have started, the conspiracy to distribute narcotics in Gary, Indiana was completed because the principals were in jail.
We are convinced that both conspiracies are in fact quite separate. In essence, Jeffers is asking us to hold that whenever a defendant is convicted of one conspiracy to distribute narcotics he can never be convicted of another conspiracy to distribute narcotics. Of course, the guarantee against double jeopardy does not insulate a criminal from punishment for subsequent offenses merely because he chooses to continue committing the same type of crime. The district court did not err in denying Jeffers' motion to dismiss the indictment.
Appellants claim that several of the district court's evidentiary rulings deprived them of a fair trial. It is well established that the district court has broad discretion to assess the relevancy of proffered evidence. We will reverse a district court ruling on the admissibility of evidence only upon a clear showing that the court abused its wide discretion. United States v. Lampson, 627 F.2d 62, 66 (7th Cir. 1980); United States v. Micklus, 581 F.2d 612, 617 (7th Cir. 1978); United States v. Bolin, 514 F.2d 554, 558-59 (7th Cir. 1975).
West claims that the district court committed reversible error when it refused to permit Dr. Miller, a psychiatrist who had examined West, to testify concerning West's limited intelligence. The evidence presented during the Government's case-in-chief showed that Jeffers had arranged for other Family members to give West a car. Dr. Miller would have testified that it is unlikely that West realized when he accepted the car that it was a bribe or that he would be expected to provide some benefit to Jeffers in return. West claims that Dr. Miller's testimony was evidence of a relevant character trait offered to rebut the Government's proof that West harbored specific intent to accept a bribe when he accepted the car.
Rule 404(a)(1), Fed.R.Evid., provides that a defendant may introduce evidence of a relevant character trait to show that he acted in conformity with that trait. Failure to permit a defendant charged with a specific intent crime to introduce evidence of a character trait that makes it unlikely that he harbored the requisite criminal ...