UNITED STATES v GERALD L. WILLIAMS
___________
No. 95-2916
___________
United States of America, *
*
Appellee, *
*
v. *
*
Gerald Lakeith Williams, *
*
Appellant. *
___________
No. 95-2917
___________
United States of America, *
*
Appellee, *
* Appeals from the United
v. * States District Court for the
* District of Minnesota.
Carlos Vignali, Jr., also *
known as C-Low, *
*
Appellant. *
___________
No. 95-2920
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United States of America, *
*
Appellee, *
*
v. *
*
Todd Louis Hopson, also known *
as Ted Shia, also known as *
Snoop, *
*
Appellant. *
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Submitted: June 12, 1996
Filed: October 1, 1996
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Before BOWMAN, HEANEY, and BEAM, Circuit Judges.
BEAM, Circuit Judge.
Appellants were charged, along with twenty-eight others, with
being part of a massive drug trafficking network that shipped
cocaine from Los Angeles, California, to Minneapolis, Minnesota.
Gerald Williams appeals the sentence imposed by the district
court.(1) Todd Hopson and Carlos Vignali challenge their convictions
and the district court's denial of their motions for new trial. We
affirm.
I. BACKGROUND
On November 9, 1993, several months of investigation of a drug
trafficking ring culminated in raids on several locations and
arrests of a number of suspected drug dealers. The arrests
continued over the next several months. In the end, thirty-one
defendants were charged with various narcotics-related offenses in
a thirty-four count indictment.
Williams reached a plea agreement with the government. The
agreement required Williams to plead guilty to conspiring to
manufacture, possess and distribute cocaine; using and carrying a
firearm in relation to a drug trafficking crime; and aiding and
abetting a financial transaction affecting interstate commerce.
Williams further agreed to cooperate with law enforcement in
investigating and prosecuting drug-related activity. The
government in turn promised to recommend a three-level credit under
the United States Sentencing Guidelines for acceptance of
responsibility and committed to move for a downward departure at
sentencing. The parties did not reach an agreement regarding any
adjustment of Williams' sentence for his role in the drug network
pursuant to Guideline section 3B1.1(a). The district court applied
a four-level leadership enhancement and sentenced Williams to a
total of 180 months in prison.(2)
Williams' agreement with the prosecution prompted a flurry of
guilty pleas, and in the end, all but four of the original thirty-
one defendants pled guilty to various drug-related offenses. The
remaining four, including Hopson and Vignali, were tried jointly in
a trial that lasted for approximately six weeks.
Hopson was convicted of conspiring to manufacture, posses and
distribute cocaine; aiding and abetting the use of a facility in
interstate commerce with the intent to distribute cocaine; aiding
and abetting the possession of cocaine with the intent to
distribute; and aiding and abetting the use of communication
facilities for the commission of felonies.
The jury found Vignali guilty on three counts: conspiring to
manufacture, possess and distribute cocaine; aiding and abetting
the use of a facility in interstate commerce with the intent to
distribute cocaine; and aiding and abetting the use of
communication facilities for the commission of felonies. Vignali
was acquitted on Count 10, a charge of aiding and abetting the use
of a facility in interstate commerce with the intent to distribute
cocaine occurring on or about October 20, 1993.
Both Hopson and Vignali assert reversible error in numerous
rulings. Additionally, both argue that the court erred in denying
their motions for a new trial.
II. DISCUSSION
A. Williams' Leadership Enhancement
Williams argues that the district court should not have
enhanced his sentence for his leadership role in the conspiracy
pursuant to Guideline section 3B1.1(a). We conclude that this
issue is not reviewable, because Williams' sentence still
represents a downward departure from the sentence that would have
resulted if he had prevailed on this point.(3) See United States v.
Baker, 64 F.3d 439, 441 (8th Cir. 1995).
In any event, Williams' argument fails on the merits.
Williams clearly "directed or procured the aid of underlings," and
was responsible for organizing others for the purposes of carrying
out crimes. United States v. Rowley, 975 F.2d 1357, 1364 n. 7 (8th
Cir. 1992). Williams himself admitted that he was one of the "big
players" in the drug conspiracy. The district court specifically
found that Williams had more than a dozen subordinates. We review
a district court's factual findings in sentencing for clear error
and give due deference to the district court's application of the
Guidelines to the facts. United States v. McKinney, 88 F.3d 551,
556 (8th Cir. 1996). Certainly, distinctions between leaders and
other coconspirators are not always clear. United States v.
Delpit, No. 95-2539, slip op. at 36 (8th Cir. Aug. 28, 1996).
However, we find enhancement entirely appropriate in Williams'
case.
B. Denial of Vignali's Severance Motion
Before trial, Vignali made a severance motion, arguing that
his role in the conspiracy did not begin until 1993, while the
others were involved as early as 1980. The district court denied
that motion.
We will affirm the denial of a severance motion absent an
abuse of discretion causing clear prejudice. United States v.
Darden, 70 F.3d 1507, 1526 (8th Cir. 1995), cert. denied, 116 S.
Ct. 1449 (1996). Indicted coconspirators should ordinarily be
tried together, especially where proof of the conspiracy overlaps.
United States v. Pou, 953 F.2d 363, 368 (8th Cir.), cert. denied,
504 U.S. 926
(1992). Not every defendant joined must have
participated in every offense charged. United States v. Jones, 880
F.2d 55, 62-63 (8th Cir. 1989).
We agree with the district court that joinder was proper in
this case. Each defendant was charged with at least one
substantive count of violating narcotics laws or related offenses,
and all were charged jointly in Count 1 with conspiracy to
distribute cocaine. Further, Vignali was charged in Counts 10 and
16 with aiding and abetting several other defendants in the
commission of substantive narcotics offenses. Vignali's case met
the requirements of Rule 8 of the Federal Rules of Criminal
Procedure.
Even when Rule 8 permits joinder, a trial court may sever
cases to protect defendants' fair trial rights. Fed. R. Crim. P.
14; Darden, 70 F.3d at 1527. However, we observe a strong
presumption against severing properly joined cases. Delpit, slip
op. at 10. The key inquiry in determining whether to try
defendants jointly is whether the jury can compartmentalize the
evidence against each defendant. United States v. Nevils, 897 F.2d
300, 305 (8th Cir.), cert. denied,
498 U.S. 844
(1990); United
States v. Willis, 940 F.2d 1136, 1138 (8th Cir. 1991), cert denied,
507 U.S. 971
(1993). The concern of Nevils and Willis is that a
jury might throw up its hands and convict everyone. This does not
describe Vignali's jury. To the contrary, it acquitted one
defendant and convicted Vignali himself of some, but not all
counts. A jury's conviction of some defendants and acquittal of
others is a strong indication that it was able to separate evidence
of different charges against different defendants. Delpit, slip
op. at 11. We thus find the district court correctly denied
Vignali's motion to sever.
C. Comments Made by Defense Counsel During Opening
Statements
Each of the defendants was represented by separate counsel at
trial. In his opening statement, Vignali's counsel repeatedly
characterized this case as one about "a black drug dealing
network." Trial Tr. vol. I at 113, 115. He then concluded, "My
client is not. . . . His father [is] from Argentina, his mother
[is] from Puerto Rico. . . . " Trial Tr. vol. I at 114.
Vignali's co-defendants were all African-American. Counsel for the
other three defendants moved for a mistrial. The trial court
denied the motions but gave the jury a cautionary statement that
the defendants' race should play no role in determination of their
guilt or innocence. Hopson now argues that the comments by
Vignali's attorney were so prejudicial that he is entitled to a new
trial.
A defendant is entitled to a new trial based on attorney
misconduct if: 1) the remarks or conduct were in fact improper;
and 2) the remarks or conduct have prejudicially affected the
defendant's substantial rights so as to deprive him or her of a
fair trial. United States v. Janis, 831 F.2d 773, 778 (8th Cir.
1987), cert. denied,
484 U.S. 1073
(1988). If either one of these
elements is not established, a defendant is not entitled to relief.
United States v. White, 969 F.2d 681, 683 (8th Cir. 1992). Since
the trial court observed the mood of the jury and the tone of the
remarks, its decisions should be accorded substantial deference.
United States v. Hernandez, 865 F.2d 925, 928 (7th Cir. 1989).
We need not consider the propriety of defense counsel's
remarks because Hopson cannot demonstrate prejudice. The jury's
verdict indicates that it rejected any implicit invitation to use
race as a proxy for guilt. Claude Phillips, an African-American,
was the only defendant acquitted on all counts. Vignali, an
Hispanic, was convicted on three of four counts. Thus, Hopson
cannot demonstrate prejudice.
D. Comments Made to the Jury by the Trial Court
Toward the end of trial, the jury was released for a long
weekend. Closing arguments were scheduled to begin the following
Monday. Before discharging the jury for the weekend, the court
advised the jury of the upcoming trial schedule. Included in those
remarks, was the following:
What I want to tell you also is this: Most of the facts
are now before you. I told you at the beginning of this
trial quite some time ago that you should keep your mind
open, make sure you listen to all the facts and try to
keep them in balance, but not to make up your mind. At
this point, even though all the facts aren't in, I am
going to tell you that you can start trying to sort
through the facts, as you think about this over the week
end, and try to get it put into your mind -- because I
don't think the testimony you are going to hear is going
to be earthshaking in the sense that it is going to turn
your decision one way or the other; it may, so keep that
thought in mind, it might have that effect -- but I think
you can start putting your thoughts together now as to
where the facts are in this case -- obviously there is
final argument yet, and there is the instruction of the
court yet, so don't make up your mind - just the facts,
is what I am talking about.
Trial Tr. vol. XIX at 138-39.
After the jury was escorted out, defense counsel objected to
the court's remarks, arguing that they implied that jurors should
make up their minds before hearing the remainder of the evidence
and argument. The court agreed to give a cautionary instruction
when the jury returned on Monday, and, contrary to defendants'
assertion on appeal, did in fact give such a warning.
Hopson and Vignali argue that the court's remarks constitute
reversible error. In support of that claim, both defendants cite
United States v. Williams, 635 F.2d 744 (8th Cir. 1980). Upon
examination, however, Williams does not support the weight
defendants place upon it. We held in Williams that it was
reversible error to allow a deadlocked jury to separate overnight
without any admonition to keep their deliberations secret and
refrain from having outside communication concerning the case. Id.
at 746. That is not what transpired in this case.
Unlike Williams, this jury was not released in the midst of
their deliberations, the time of highest risk of improper outside
influence. The cases cited by defendants all express concern about
early deliberation by jurors, because of potential juror reluctance
at changing opinions once they are expressed in front of others.
See, e.g., Winebrenner v. United States, 147 F.2d 322, 328 (8th
Cir.), cert. denied
325 U.S. 863
(1945). The jury was repeatedly
admonished to keep an open mind and to avoid any outside
influences. United States v. Weatherd, 699 F.2d 959, 962 (8th
Cir. 1983) (admonitions given to jury at other breaks during the
trial sufficient to apprise jurors not to discuss case). The
defendants' speculation about what could have happened in the jury
room is not evidence of prejudice. While we express no opinion on
the propriety of the trial court's comments, the defendants were
not prejudiced. Therefore, the defendants here are not entitled to
a new trial on this issue. Williams, 635 F.2d at 746 (failure to
caution the jury before separation may be harmless error).
E. "Vouching" by the Prosecution in Closing Arguments
Vignali next asserts that the prosecution improperly vouched
for its witnesses. In closing argument the prosecutor rebutted
defense allegations of witness perjury by noting that the witnesses
had not yet been sentenced for their roles in the conspiracy. It
is true that "[a]ttempts to bolster a witness by vouching for his
credibility are normally improper." United States v. Jackson, 915
F.2d 359, 361 (8th Cir. 1990) (quoting United States v. Ellis, 547
F.2d 863, 869 (5th Cir. 1977)). In order to prevail on this claim,
a defendant must establish that: 1) the statements were in fact
offensive; and 2) that the remarks were so offensive so as to
prevent a fair trial. United States v. Boyce, 797 F.2d 691, 694
(8th Cir. 1986).
Initially, we are not convinced that the complained-of remarks
constituted vouching. An argument will be deemed improper vouching
when it "puts the prosecutor's own credibility before the jury [or]
carr[ies an] inference of outside knowledge." United States v.
Dawkins, 562 F.2d 567, 569 (8th Cir. 1977). A careful review of
the record convinces us that the comments here did neither. The
prosecutor in this case did not personally vouch for the
truthfulness of the witnesses' testimony, nor is there any
intimation of information outside the scope of the trial. See
United States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993).
Furthermore, in order to prevail on this issue, a defendant
"must demonstrate . . . that the improper remarks prejudicially
affected his substantive rights." United States v. Skarda, 845
F.2d 1508, 1511 (8th Cir. 1988). We conclude that the prosecutor's
remarks, if improper, did not render Vignali's trial fundamentally
unfair. As the district court noted, there was considerable
evidence of Vignali's guilt. Moreover, after the disputed remarks,
the trial court gave the jury a cautionary instruction. See
Eldridge, 984 F.2d at 947. (cautionary instruction mitigated any
prejudice suffered as a result of prosecutorial vouching.)
In any event, these comments were justified by the repeated
allegation by the defense that the government knowingly introduced
false testimony. "Where the prosecutor, his witnesses, or the work
of the government agents is attacked [by defense counsel], the
District Attorney is entitled to make a fair response and
rebuttal." United States v. Lee, 743 F.2d 1240, 1253 (8th Cir.
1984). Vignali is not entitled to relief based on this claim.
F. Alleged Juror Misconduct
Finally, Vignali complains that the district court's handling
of his allegations of juror misconduct was inappropriate. During
trial, Vignali testified about his association with a rap album
entitled "Gang Related." Based on post-trial juror interviews,
Vignali claimed that some jurors had asked their children about the
content and character of this music. The district court held a
limited evidentiary hearing to determine whether any extraneous
information was improperly brought to the jury's attention. Every
juror examined denied that any extraneous information about rap
music was discussed or influenced deliberations in any way.
Vignali now argues that the investigation was inadequate in that
the jurors were neither sworn nor cross-examined.
"The district court has broad discretion in handling
allegations of juror misconduct and its decision will be affirmed
absent an abuse of discretion." United States v. Williams, 77 F.3d
1098, 1100 (8th Cir. 1996). Allegations of juror exposure to
extraneous information may require an investigation by the trial
court. United States v. Swinton, 75 F.3d 374, 381-82 (8th Cir.
1996). However, Vignali's assertion that such an investigation
must allow him the opportunity to confront jurors is not supported
by our case law. In fact, we have previously found unsworn juror
interviews like those conducted here to be an adequate inquiry into
allegations of juror misconduct. United States v. Blumeyer, 62
F.3d 1013, 1015 (8th Cir. 1995), cert. denied, 116 S. Ct. 1263
(1996). The district court did not abuse its discretion in
handling the allegations of juror misconduct.
G. Other Claimed Errors
Finally, we turn to other issues raised by Hopson and Vignali
in this appeal: the trial court's exclusion of certain evidence;
the district court's failure to conduct an evidentiary hearing
regarding evidence which defendants characterize as newly
discovered and its denial of defendants' new trial motions based on
a witness' inconsistent post-trial statements. We have carefully
reviewed the district court's decisions on these matters and we
conclude that it ruled correctly in each instance. With respect to
these issues, we agree with the well-reasoned opinions of the
district court.
III. CONCLUSION
For the reasons discussed above, we affirm the district
court's judgments on the defendants' appeals. We likewise affirm
the sentence imposed on Williams by the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
(2)
Williams was sentenced to two concurrent 120 month terms for
Counts 1 (the conspiracy count) and 9 (the money laundering count)
of the superseding indictment and a consecutive sentence of 60
months under Count 5 (the section 924(c) count).
(3)
The trial court calculated a total offense level of 39 and a
criminal history of category IV, which leads to a sentence of 360
months to life. A four-level reduction in Williams' total offense
level would produce a sentencing range of 235 to 293 months.