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United States v. Peters

May 20, 1986

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTHONY J. PETERS, LAWRENCE PETERS, AND JACEK ODONER, DEFENDANTS-APPELLANTS



Appeals from the United States District Court for the Eastern District of Wisconsin. No. 83 CR 60 -- Robert W. Warren, Judge.

Author: Wood

Before WOOD, JR., FLAUM, and RIPPLE, Circuit Judges.

WOOD, JR. Circuit Judge. After a joint trial lasting approximately four weeks, defendants Anthony Peters, Lawrence Peters, and Jacek Odoner were each convicted of drug-related offenses. All three defendants appeal and assert numerous grounds of error. We affirm the convictions on all grounds and uphold all three sentences.

Anthony Peters was the "kingpin" of an extensive cocaine-dealing business in Milwaukee from 1979 until 1983. Lawrence Peters, Anthony's brother, acted as the second-in-command of the conspiracy and took care of whatever Anthony Peters did not attend to personally. Jacek Odoner travelled to Florida to buy cocaine, stored the cocaine in his father's house, and was one of Anthony Peters' numerous "delivery boys."

In April 1983, a grand jury entered a fourteen-count indictment against Anthony Peters, Lawrence Peters, Jacek Odoner, Edward Odoner, John Gingras, John Redford, Walter Daniels, Sal Dacquisto, and Thomas Pogodzinski. The Majority of the counts named Anthony Peters, with the others figuring in either one or two counts.*fn1

In May 1984, Anthony and Larry Peters, Odoner, Dacquisto and Pogodzinski went on trial. Walter Daniels, John Gingras, and John Redford negotiated separate plea agreements. Gingras and Redford testified for the government. Edward Odoner, Jacek Odoner's brother, disappeared, allegedly with money from the cocaine ring, and was never apprehended. Sal Dacquisto was convicted of conspiracy, was sentenced to eighteen months in prison, but does not appeal. The jury acquitted Thomas Pogodzinski.

I. ANTHONY PETERS

Defendant Anthony Peters was convicted of nine counts of possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of use of the telephone to distribute cocaine in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; one count of interstate travel to facilitate a business enterprise involving the distribution of cocaine in violation of 18 U.S.C. §§ 2 and 1952(a)(3); and one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Peters received a total of twenty-two years in prison and a special parole term of three years. Peters forfeited guns, automobiles, and real and personal property to the government pursuant to 21 U.S.C. § 848 after the jury found that all the items were the profits of a continuing criminal enterprise.

Peters claims eleven instances of error. Peters asserts that the search warrants for his home and for his parents' home were impermissibly broad, that the district court should have conducted a pretrial probable cause hearing for his property, that the court erred in denying Peters standing to challenge the search of a 1972 Jaguar, and that the court erred by refusing to hold hearing to enable Peters to explore the circumstances surrounding the excusal of a grand juror. Peters also challenges the court's instruction admitting coconspirator's hearsay testimony, the court's refusal to sever count fourteen from counts one through thirteen, the court's instruction about the relationship between counts one and fourteen, the sufficiency of the evidence of count fourteen, the admission of testimony of threats made by him, the admission of the business records of an interior decorator, and the admission of hotel and telephone records of David Word.

A. SEARCH WARRANTS

Anthony Peters contends that the search warrants issued for his home and for his parents' home failed to describe with particularity the items to be seized and were overly broad. On April 26, 1983, the district court issued two search warrants, one authorizing a search of 3370 North Gordon Place, Milwaukee, the other authorizing a search at 3043 North Hackett, Milwaukee. The North Gordon search warrant was accompanied by a three-page, eleven-paragraph list of property to be seized and an eighteen-page affidavit. The supporting affidavit had two exhibits, a summary of Peters' various purchases, improvements, and trips, and nine invoices of Peters' purchases. The Hackett search warrant authorized the seizure of "gems, narcotics, and currency, the profits of a Continuing Criminal Enterprise, 21 U.S.C. 848."

First, Peters argues that the North Gordon warrant authorized the seizure of items only evidencing possession of assets.*fn2 Peters asserts that the warrant's language authorized the seizure only of indicia of ownership, such as titles and bills of sale, and not the actual property. This novel argument is flawed, however, as the language at issue appears on the first page of the affidavit, not the search warrant. The warrant does not incorporate the affidavit by reference. The search warrant incorporates only a list of property to be seized, describing items such as "[a] Corfu brass/bronze/glass cocktail table" and "[a] Wild Board Farnese bed, pillow shams and fitted bed cover." Although not all eleven paragraphs are as detailed as these two items in paragraph ten, the property list for the North Gordon warrant is sufficiently specific to meet the "particularity" test of Marron v. United States, 275 U.S. 192, 196, 72 L. Ed. 231, 48 S. Ct. 74 (1927).

Peters' second argument attacks paragraph eleven of the North Gordon search warrant and also challenges the Hackett warrant's description of property to be seized as "gems, narcotics, an currency, the profits of a Continuing Criminal Enterprise, 21 U.S.C. 848." Peters argues that this language gave the agents executing the warrants too much discretion.*fn3 This argument is unpersuasive. The Supreme Court addressed a similar argument in Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). The warrants in Andresen were allegedly rendered overboard by the presence in each warrant of the phrase "together with other fruits, instrumentalities and evidence of crime at this [time] unknown" at the end of a long list of documents. The Court rejected the overbreadth argument and held that the "Clauses in the series are limited by what precedes that colon . . . . The warrants, accordingly, did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses." 427 U.S. at 481-82.

Both the Hackett warrant's language and the North Gordon warrant's paragraph eleven modify the items preceding them. The allegedly overbroad phrase in the Hackett warrant merely indicates that the specific items "gems, narcotics and currency" are to be seized as the "profits of a continuing criminal enterprise." The defendant's argument might have had more force if the Hackett warrant had authorized the seizure of "gems, narcotics, currency, and the profits of a continuing criminal enterprise." the wording and punctuation of the Hackett warrant, however, indicate that the "profits" language merely describes the statutory authority for the seizure and does not represent a separate category of property to be seized.

Paragraph eleven of the North Gordon warrant*fn4 likewise must be read in the context of the ten paragraphs preceding it. Paragraph eleven follows a very detailed list of property to be seized. Like the language of the Hackett warrant, paragraph eleven of the north Gordon warrant merely indicates the crimes of which the specific items previously listed are evidence. Paragraph eleven therefore did not expand the executing officers' authority beyond permissible limits, but rather described the source of that authority. The warrants described the items to be seized with sufficient particularity and therefore were not overly broad.

B. PRETRIAL HEARING ON SEIZURE OF PROPERTY

Anthony Peters' second claim is that the district court violated his due process rights by failing to hold a hearing on the government's seizure of his property. pursuant to two search warrants, the government seized a substantial amount of Peters' personal property*fn5 on the day Peters was arrested. After convicting Peters of operating a continuing criminal enterprise, the jury found that the seized property as well as some pieces of real property were the profits of the illegal enterprise. The district court ordered the real and personal property forfeited to the government pursuant to 21 U.S.C. § 848. At that time the government seized Peters' real property.

Peters asserts that the district court should have held an evidentiary hearing prior to trial to determine whether the government had the right to retain the property until trial. Peters urges this court to require a hearing as the Ninth Circuit did in Crozier v. United States, 674 F.2d 1293 (9th Cir. 1982), vacated and remanded, 674 F.2d 1293 (1984), vacated in part and aff'd in part on remand, 777 F.2d 1376 (9th Cir. 1985).*fn6 We need not decide whether to follow the Ninth Circuit on this issue because the seizures in this case were made pursuant to search warrants.

Peters contends that although the property was seized pursuant to a search warrant, the government still violated due process by retaining his property until trial. Peters claims that the government should have returned the property after it had been inventoried and photographed. Peters urges that due process requires an adversarial hearing whenever the government seizes property either for forfeiture or for evidentiary purposes or to prevent the use or transfer of the assets.

Peters' due process rights were not violated by the government's retention of his property pending trial. Peters cites no authority to support his claim that due process requires the return of evidence once the prosecution has inventoried and photographed the property. Furthermore, Fed. R. Crim. P. 41(e)*fn7 provides an adequate procedural safeguard against illegal governmental seizure of property pursuant to a warrant. Peters availed himself of this safeguard by filing a motion to suppress challenging the search warrants.*fn8 Due process did not require a pretrial adversarial hearing in these circumstances.

C. SEARCH OF 1972 JAGUAR

Anthony Peters next challenges the district court's determination that Peters did not have standing to object to the search of a 1972 Jaguar owned by coconspirator Walter Daniels.*fn9 Peters' ability to challenge the search of the Jaguar depends upon whether he can establish a reasonable expectation of privacy in the car.*fn10 Peters asserts a reasonable expectation of privacy based on his occasional use of the car, on his possession of keys to the car, on his arranging to store the car in his parents' driveway from December 1982 until the time of its seizure in April 1983, on his paying for repairs to the car, and on his "equitable" interest in the car.*fn11

As the Supreme Court has stated, "this inquiry . . . normally embraces two discrete questions. The first is whether the individual, by his conduct, has 'exhibited an actual (subjective) expectation of privacy' -- whether . . . the individual has shown that 'he seeks to preserve [something] as private.' The second question is whether the individual's subjective expectation of privacy is 'one that society is prepared to recognize as reasonable' -- whether the individual's expectation, viewed objectively, is 'justifiable' under the circumstances." Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979) (quoting Katz v. United States, 389 U.S. 347, 353, 351, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (citations omitted)). The defendant has the burden of proving a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 101, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980).

In applying this two-prong test several factors are relevant:

[1] whether the defendant has a possessory [or ownership] interest in the thing seized or the place searched, [2] whether he has the right to exclude others from that place, [3] whether he has exhibited a subjective expectation that it would remain free from governmental invasion, [4] whether he took normal precautions to maintain his privacy and [5] whether he was legitimately on the premises.

United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981), cert. denied, 455 U.S. 1022, 72 L. Ed. 2d 140, 102 S. Ct. 1721 (1982) (citing United States v. Salvucci, 448 U.S. 83, 92, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980); Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). Applying these factors, we find that Peters has failed to meet his burden of proof and has not established that he had a reasonable expectation of privacy in the Jaguar.*fn12

Peters was not in possession of the car at the time of the search. Nor does he asserts legal ownership of the car, although he claims "an equitable ownership" interest. Peters bought the car and immediately sold it to Walter Daniels for $7,000. The title and registration were put in Daniel's name. Peters sold the car to Daniels to pay for $3,000 worth of carpentry work that Daniels was doing at Peters' home at the time. Daniels was to pay off the $4,000 difference in carpentry work for Peters, but at the time of the search Daniels had not paid the car off. Consequently Peters asserts an "equitable" interest in the car.

Peters' testimony at the suppression hearing, however, does not indicate that he had the right to control the use of or to exclude others from using the Jaguar. Peters and the owner each had a set of keys to the car, but Peters testified that he used the car only with the owner's permission. Peters does not assert that he ever drove the car on a regular basis, and the record indicates that at least two or three other people used the Jaguar.

Moreover, Peters' testimony at the suppression hearing does not indicate that he held any subjective expectation of privacy for the vehicle. None of Peters' statements suggests that he believed he could leave anything in the car and have it remain untouched. In addition, the record does not indicate that Peters took any precautions to assure privacy in the car. Finally, Peters was not in or near the car when the search occurred.

As support for his argument, Peters cites three cases, Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960); United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980), cert. denied, 450 U.S. 1043, 101 S. Ct. 1763, 68 L. Ed. 2d 241 (1981); United States v. Burke, 506 F.2d 1165 (9th Cir. 1974), cert. denied, 421 U.S. 915, 95 S. Ct. 1576, 43 L. Ed. 2d 781 (1975), in which the defendants were found to have a reasonable expectation of privacy in cars over which, he asserts, the defendants exercised "less possession and control" than he did over the Jaguar. These cases, however, differ substantially from the case before us. In both Jones and Portillo, the defendants were present when the searches occurred and both defendants had exclusive possession and control except with respect to the owner. Jones, 362 U.S. at 258-59, 265; Portillo, 633 F.2d at 1317. In contrast, Peters was not in possession of the car at the time of the search and could not exclude all others save the owner. Furthermore, Jones dealt with the search of an apartment, and "cars are not to be treated identically with houses or apartments for Fourth Amendment purposes." Rakas v. Illinois, 439 U.S. 128, 148, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects." Cardwell v. Lewis, 417 U.S. 583, 590, 41 L. Ed. 2d 325, 94 S. Ct. 2464 (1974). Accord United States v. Martinez-Fuerte, 428 U.S. 543, 561, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976). In the third case, Burke, the determining factor was the defendant's repeated use of the van which was searched. 506 F.2d at 1171. Peters' testimony at the suppression hearing, however, indicates that he at most used the car occasionally.

In this case, the defendant did not won the car that was searched and did not control who drove the car. He was unsure how many people had access to the car. Peters did not sue the car on a daily or even a regular basis and did not testify that he had a subjective expectation of privacy. In these circumstances we hold that Peters did not exercise sufficient dominion and control over the car to give him a reasonable expectation of privacy in the Jaguar.*fn13

D. GRAND JURY

Anthony Peters next challenges the district court's refusal to allow him to inquire into the circumstances surrounding the excusal of a grand juror. The defendant argues that he was entitled to an adversary hearing to review the grand jury proceeding and to ensure that proper procedures were used to protect the grand jury's integrity.

Before trial Peters filed an in camera motion requesting either disclosure of the grand jury minutes or an evidentiary hearing into the administration of the grand jury. Peters' counsel submitted an affidavit stating that as part of discovery he had received a portion of a government surveillance report on a person living approximately two blocks away from Peters' parents' home. Peters' counsel phoned the subject of the surveillance and learned that he was a grand juror sitting on the Peters investigation. peters' counsel then approached an Assistant United States Attorney who refused to comment upon the surveillance or upon the procedure for excusing a grand juror. The affidavit also states that an unnamed source informed Peters' counsel that the grand juror's house was "raided" by the government, and that he later learned that the grand juror was excused while the grand jury was still investigating Peters.

After reviewing Peters' motion, his attorney's affidavit, and the government's sealed response, the magistrate declined to hold an evidentiary hearing. The magistrate concluded that "the government's attorneys proceeded cautiously and properly in order to protect the integrity of the members of the grand jury and their proceedings." The trial court affirmed the magistrate's ruling. The judge indicated that the defendant's concerns had been addressed and the administration of the grand jury had been proper as the magistrate has authorized the grand juror's discharge at the juror's request and without objection from the U.S. Attorney. Peters asserts that an adversarial hearing was necessary to determine whether the grand juror's excusal of arbitrary prosecutorial discretion.

"We begin our analysis by noting that the grand jury remains a creature of statute, at least in the provisions for its governance. . . . In the present case, Rule 6 provides the applicable statutory standard." United States v. Lang, 644 F.2d 1232, 1235 (7th Cir.), cert. denied, 454 U.S. 870, 70 L. Ed. 2d 174, 102 S. Ct. 338 (1981). Fed. R. Crim. P. 6(g) provides: "At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter even the court may impanel another person in place of the juror excused." Rule 6(g) does not require an adversarial hearing before the court may dismiss a grand juror. Nor does Rule 6(g) require a court to notify the subject of the investigation that a grand juror has been dismissed or to explain the reason for the dismissal.

An adversarial hearing would disrupt and delay grand jury proceedings, and therefore a petitioner requesting such a hearing bears a heavy burden. "Persons charging irregularities in the course of grand jury proceedings must present 'a concrete basis' supporting the inference of misconduct." In re the Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir. 1978). The defendant has failed to carry this heavy burden. Peters' affidavit suggests that, as the district court found, the government excused the grand juror to protect the grand jury's integrity.

Peters also contends that the subsequent ex parte judicial review was inadequate to determine the appropriateness of the procedure for the grand juror's removal. Peters complains of "the denial of defendant's right . . . to even challenge the government's conduct in administering a grand jury which returned an indictment of him." This amounts to a "general broadside attack against grand jury secrecy and the indictment system," United States v. Frumento, 405 F. Supp. 23, 33 (E.D. Pa. 1975), and not a "concrete bases" which would support disclosure of grand jury minutes or an adversarial hearing. Moreover, the defendant challenged the excusal of the grand juror by filing a pretrial motion for disclosure of the grand jury minutes.

Fed. R. Crim. P. 6(e) controls the disclosure of grand jury matters. Rule 6(e) provides that "disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made . . . upon a showing that grounds may exist for a motion to dismiss an indictment because of matters occurring before the grand jury." Dismissal of an indictment is warranted if the defendant shows an abuse of the grand jury process which affects a substantial right of the defendant or impugns the grand jury's integrity. United States v. Phillips, 664 F.2d 971, 1044 (5th Cir. 1981), cert. denied sub nom. Myers v. United States, 457 U.S. 1136, 73 L. Ed. 2d 1354, 102 S. Ct. 2965 (1982). The Supreme Court has interpreted Rule 6(e) to require the party requesting disclosure to show a "particularized need" for the grand jury materials. United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 77 L. Ed. 2d 743, 103 S. Ct. 3133 (1983). The Supreme Court has enunciated a balancing test for trial courts enforcing Rule 6(e):

"Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. . . .

Disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. . . . In sum, . . . the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material. . . ."

Id. (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-23, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979)).

The disposition of a motion to inquire into the grand jury proceedings falls within the district court's discretion, and we will not disturb the court's ruling absent an abuse of that discretion. In re the Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir. 1978). The district court balanced the competing interests referred to in Sells and found that Peters' need for the government's documents did not outweigh the need to maintain the secrecy of the grand jury proceedings. The district judge in denying Peters' pretrial and post-trial motions, having twice reviewed the government's response, determined that Peters had failed to show a particularized need for the information in the government's ex parte response or for the disclosure of the grand jury proceedings. Furthermore, the court found that such disclosure might disrupt an on-going government investigation of matters revealed in the government's response. The information in Peters' supporting affidavit does not suggest that disclosure of some unspecified matters would uncover grounds for dismissing the grand jury's indictment. There is nothing in the record to link the grand juror's dismissal to the grand jury's decision to indict Peters. Peters does not assert that the grand jury would not have indicted him had the grand juror not been excused.

Due process did not require the district court to hold an adversarial hearing either before or after the grand juror's removal. The district court's subsequent review of the government's sealed response to Peters' motion for a hearing was sufficient to ensure that the government had not violated the integrity of the grand jury. Moreover, excusal of a grand juror who was the subject of government surveillance does not establish that any impropriety occurred before the grand jury itself.

E. INSTRUCTION UPON THE ADMISSION OF COCONSPIRATOR HEARSAY TESTIMONY

Anthony Peters argues that the trial judge's instruction on the second day of trial in admitting hearsay referring to codefendant Thomas Pogodzinski under Fed. R. Evid. 801(d)(2)*fn14 invaded the province of the jury. Peters interprets the court's instruction as altering jurors that if the court allowed them to consider the hearsay evidence, then the court had found that a conspiracy had been established by independent evidence. Peters does not challenge the trial court's Santiago determination. Rather, the issue here is whether the trial judge erred in his comments to the jury regarding the admission of this testimony.

Under United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the trial judge must make "an express finding, preliminary to admitting coconspirator hearsay, that the conspiracy and the defendant's membership in the conspiracy was proved by a preponderance of the evidence." United States v. Medina-Herrera, 606 F.2d 770, 773 (7th Cir. 1979), cert. denied, 446 U.S. 964, 100 S. Ct. 2939, 64 L. Ed. 2d 822 (1980). This preliminary determination is made under Fed. R. Evid. 104(a)*fn15 outside the hearing of the jury. United States v. Allen, 596 F.2d 227, 230 (7th Cir.), cert. denied, 444 U.S. 871, 100 S. Ct. 149, 62 L. ed. 2d 97 (1979). Under Santiago, the judge decides the admissibility of the coconspirator hearsay, and the jury then determines the weight and credibility of this evidence "as it considers all the evidence in determining whether guilt has been established beyond a reasonable doubt." Santiago, 582 F.2d at 1133. The judge may admit the coconspirator hearsay conditioned upon the prosecution subsequently establishing by independent evidence the existence of a conspiracy. United States v. Andrus, 775 F.2d 825, 837 (7th Cir. 1985). If the condition is never satisfied, a mistrial or at least an instruction for the jury to disregard the hearsay statements would be necessary. Id. At the close of all the evidence, if the court rules that the coconspirator hearsay is admissible, this evidence goes to the jury with all the other evidence.

In ruling upon the admissibility of coconspirator hearsay, the judge should not explain to the jury his ruling on this issue. Allen, 596 F.2d at 230; Santiago, 582 F.2d at 1136. As the Sixth Circuit has advised, the trial judge

should refrain from advising the jury of his findings that the government has satisfactorily proved the conspiracy. The judge should not describe to the jury the government's burden of proof on the preliminary question. Such an instruction can serve only to alert the jury that the judge has determined that a conspiracy involving the defendant has been proven by a preponderance of the evidence. This may adversely affect the defendant's right to trial by jury. The judge's opinion is likely to influence strongly the opinion of individual jurors when they come to consider their verdict and judge the credibility of witnesses.

United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979), cert. denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. ed. 2d 756 (1980) (footnote omitted).

More appropriately, the judge should at most merely caution the jurors at the time the coconspirator hearsay is admitted that the evidence was not subject to cross-examination. See 1 J. Weinstein & M. Berger, Weinstein's Evidence P104[5], at 104-57 (1985).

The court should not charge the jury on the admissibility of the coconspirator's statement, but should, of course, instruct that the government is required to prove the ultimate guilt of the defendant beyond a reasonable doubt. An appropriate instruction on credibility should be given, and the jury should be cautioned with regard to the weight and credibility to be accorded a coconspirator's statement.

United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). Accord Vinson, 606 F.2d at 153.

In this case, on the second day of trial, the judge was asked to rule on the relevance of the witness' belief about the contents of a bag that codefendant Thomas Pogodzinski had been holding at the time in question. An off-the-record sidebar conference was held, and then the judge gave the instruction at issue.*fn16 The judge allowed the testimony to continue; and a little further on, after another sidebar conference, the judge gave a "curative" instruction telling the jury to disregard his previous comments.

These instructions amounted to an explanation of the judge's admissibility ruling on the coconspirator hearsay. The defendant does not cite, however, nor has this court's research uncovered, any case holding that an instruction of this type is reversible error. Although the better practice is to refrain from instructing the jury on the reason the coconspirator hearsay is admissible, or to caution the jury on the credibility of such hearsay, the trial judge here in any event later withdrew his comments. See United States v. Allen, 596 F.2d 227, 230 (7th Cir. 1979). The judge's comments about the admissibility of the hearsay testimony did not deprive Peters or his codefendants of a fair trial.

Although the trial judge's comments to the jury were ill-advised, we do not find that his remarks actually prejudiced Peters or his codefendants. The court's comments were at best vague, unclear, and possibly confusing for the jury. These comments were not, as Peters would have us believe, a forceful de facto pronouncement to the jury that the government had convinced the judge that a conspiracy existed. Moreover, "the jury had abundant, non-hearsay evidence on which to base its verdict." Vinson, 606 F.2d at 152. As discussed in detail in sections I(H), II(E) and III(H) infra, the government's proof of the conspiracy rested upon substantial non-hearsay testimony from several witnesses.

Furthermore, any confusion caused by the comments was cured by the court's customary and complete final instructions to the jury about its role and about the law of conspiracy. In these final instructions the judge also told the jurors that they were "at total liberty to disregard all comments of the court in arriving at . . . findings as to the facts."

The jury's acquittal of codefendant Pogodzinski attests to the jury's understanding of the judge's instructions and the jury's lack of confusion or prejudice from the trial judge's earlier unfortunate remarks. Therefore reversal of these convictions is not required on these facts.

F. SEVERANCE OF COUNT FOURTEEN

Anthony Peters next contends that the trial judge erred in refusing to sever count fourteen from counts one through thirteen. Peters asserts that the district court's ruling prevented him from testifying and that his testimony would have provided exculpatory evidence on court fourteen. Peters concedes that joinder of the counts was proper under Fed. R. Crim. P. 8, but argues that severance was mandated under Fed. R. Crim. P. 14.*fn17

Peters, in a sealed affidavit to the district court, stated that in a separate trial on count fourteen he would have admitted the substance of counts one through thirteen in order to present his defense to count fourteen. Apparently Peters sold gems with inflated appraised values. Peters would have testified that he amassed a substantial amount of money from his gem business. Peters would have testified that he "passed himself off as a cocaine dealer" in order to giant he confidence of drug dealers whom he assumed would have large sums of money to spend on his gems and would be unlikely to check the gem values. This testimony, Peters felt, would explain his massive amount of wealth and would discredit the government's theory that Peters accumulated his wealth by operating a criminal enterprise.

The trial court denied him due process, Peters asserts, by presenting him with a "Hobson's Choice" of testifying and admitting guilt on counts one through thirteen, or not testifying and avoiding self-incrimination but also foregoing the opportunity to present exculpatory evidence on count fourteen.*fn18 Peters cites Baker v. United States, 131 U.S. App. D.C. 7, 401 F.2d 958 (D.C. Cir.), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970), to support this argument.*fn19

The issue here is whether Anthony Peters has established that the district court's refusal to try count fourteen separately caused him to suffer substantial actual prejudice and to receive an unfair trial. See United States v. Percival, 756 F.2d 600, 610 (7th Cir. 1985); United States v. Harris, 761 F.2d 394, 401 (7th Cir. 1985). "Severance is not mandatory every time a defendant wishes to testify to one charge but to remain silent on another. If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant." Holmes v. Gray, 526 F.2d 622, 626 (7th Cir. 1975), cert. denied sub nom. Holmes v. Israel, 434 U.S. 907, 54 L. Ed. 2d 194, 98 S. Ct. 308 (1977). The defendant's showing of actual prejudice must be balanced against he policy encouraging joint trials -- especially when a conspiracy is charged -- for judicial economy and to avoid lengthy and repetitious trials involving the same evidence and the same witnesses. United States v. Papia, 560 F.2d 827, 836-37 (7th Cir. 1977). Because the trial court is in the best position to balance these concerns, a court's decision on a severance motion will be reversed on appeal only upon a clear abuse of discretion. United States v. Gironda, 758 F.2d 1201, 1220 (7th Cir. 1985).

Peters' contention mirrors the allegations made by one of the defendants in United States v. Webster, 734 F.2d 1048, 1052-53 (5th Cir. 1984). Like Peters, Webster was charged with conspiracy, several substantive counts, and a continuing criminal enterprise count. Webster's trial strategy was to admit his involvement in numerous cocaine transactions while maintaining his innocence on the continuing criminal enterprise charge. Not surprisingly, the jury convicted Webster of the conspiracy and substantive charges, but nevertheless acquitted him of the continuing criminal enterprise count. On appeal, Webster argued that the court's refusal to sever forced him to admit guilt on the substantive counts in order to defend against the continuing criminal enterprise charge. The Fifth Circuit did not find this argument compelling, noting that "Webster ...


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