United States of America, Appellee, v. Steven Thomas Rodgers, Appellant, 732 F.2d 625 (8th Cir. 1984)

Steven Thomas Rodgers was convicted after a jury trial on a two-count indictment. Count I alleged unlawful distribution on February 17, 1981, of cocaine in violation of 21 U.S.C. § 841(a) (1); Count II alleged unlawful possession with intent to distribute, on October 6, 1982, of cocaine in violation of 21 U.S.C. § 841(a) (1). On appeal, Rodgers challenges this conviction on three grounds. First, Rodgers argues that he was entitled to an evidentiary hearing based upon an alleged material misrepresentation in the application supporting the search warrant. Second, Rodgers argues that Counts I and II of the indictment were improperly joined. Third, Rodgers urges that there was no cause to support a search of his residence. We affirm the judgment of conviction.

Facts

The evidence concerning Count I shows that on February 17, 1981, undercover narcotics agent Joel Kohout and an informant, Rod Lusti, went to Rodgers' residence to purchase one-half ounce of cocaine. Lusti and his car were searched prior to his entering Rodgers' residence. Kohout gave Lusti $1,400 with which to purchase the cocaine. Lusti purchased cocaine that was later determined to be approximately one-half ounce of 30% pure cocaine.

On March 5, 1981, Kohout telephoned Rodgers at his residence and arranged to meet with him on March 6 to buy cocaine. On March 6, 1981, Kohout and another undercover agent met at Rodgers' residence. Rodgers asked Kohout if she had sold all the cocaine she had previously gotten from him. Rodgers also stated that a great deal of money could be made selling cocaine and that he never kept any in the house, although he had a sample at that time. Rodgers agreed to go get the cocaine from his source and told the agents to meet him back at his house later. When the agents returned to Rodgers' home, he stated that he had not obtained the drug because he thought he had been followed.

On March 25, 1981, undercover narcotics agent Michael Campion visited Rodgers at his residence. Rodgers stated that he thought he was being watched by the police. He further stated that a couple of weeks earlier Lusti had come to his house with a girl and that he had sold the girl one-half ounce of cocaine. Rodgers added that approximately one week later the girl had returned to his house with another girl and tried to purchase more cocaine. Rodgers told Campion he was convinced one of these girls was a narcotics agent and that he was being very cautious. Rodgers further stated that he had cocaine available but that he did not keep it in the house. Campion decided to postpone his investigation of Rodgers at that time because of Rodgers' concern with police surveillance.

The evidence concerning Count II shows that on October 6, 1982, Deputy Sheriff Thomas Rainville and other narcotics agents executed a search warrant at Rodgers' residence. When the agents entered Rodgers' residence pursuant to the search warrant, they found Rodgers in the basement with several other people. On a bar in the basement agents recovered a razor blade, a straw, and a glass picture frame, all coated with white powder. Agents also recovered a paper bindle containing white powder from the area next to the bar. This powder was all subsequently identified as cocaine. After Rodgers and the others present were placed under arrest, Rodgers asked Rainville if the other people could be released because they had nothing to do with the reason the agents were there.

Rainville searched Rodgers and recovered $436 in cash and a bindle containing pills. These pills were identical to Valium tablets found in four pharmaceutical bottles of Valium in the garage of the residence. In Rodgers' bedroom, the agents recovered numerous documents in his name, a very sensitive scale, and a spoon containing traces of cocaine.

Deputy Daniel Dunlevy searched the area outside Rodgers' residence and found a pickle jar containing three bags of white powder. The powder was subsequently identified as approximately 69 grams of cocaine with an average purity of 60%. Two fingerprints of Rodgers' were recovered from the pickle jar. The 69 grams of cocaine had a street value of approximately $17,500.

On January 4, 1983, Rodgers filed numerous pretrial motions, including motions to sever the two counts of the indictment and to suppress the fruits of the execution of a search warrant. On January 14, 1983, the district court¹  issued an order denying the motion for severance and referring the question of suppression of the search warrant to Magistrate Short for a hearing. After a hearing, the magistrate recommended denial of Rodgers' motion to suppress the results of the search warrant and did not conduct an evidentiary hearing. The district court affirmed the recommendations of the magistrate. The jury thereafter returned guilty verdicts as to both counts.

Discussion

In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the Supreme Court set forth the rule to be followed for ordering an evidentiary hearing concerning the veracity of affidavits supporting search warrants. The Court there held that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-56, 98 S. Ct. at 2676.

In this case Rodgers did not make the requisite preliminary showing. He made no specific allegations, supported by offers of proof, that Deputy Rainville, the affiant, had deliberately or recklessly misstated the truth in the affidavit of the search warrant. Although Rodgers called one witness who Rodgers assumed was the informant, the alleged informant invoked her Fifth Amendment right to remain silent. Rodgers had hoped the alleged informant would testify that she was, in fact, the informant and that she never told Deputy Rainville she had purchased cocaine from Rodgers. However, this testimony was never elicited. Moreover, the magistrate concluded that even assuming the alleged informant did testify favorably to Rodgers, there were serious questions as to her credibility and the magistrate would give more credit to Deputy Rainville. The magistrate therefore determined that the allegations of Rodgers were not sufficient to warrant a Franks hearing, and so recommended to the district court. This recommendation was followed by the district court. We find no error.

Rodgers' second argument is that the two counts of the indictment were improperly joined, or that, assuming proper joinder, he suffered prejudice from the refusal of the district court to sever the counts. Whether two or more offenses can be joined in a single indictment is governed by Fed. R. Crim. P. 8(a).²  Relief from proper, but nevertheless prejudicial, joinder is governed by Fed. R. Crim. P. 14.³  Although the two rules are related, our standard of review differs for rule 8(a) misjoinder and rule 14 prejudicial joinder. The former is a question of law and if the joinder is not permitted by rule 8(a), a conviction must be reversed. United States v. Long, 674 F.2d 848, 854 (11th Cir. 1982); United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980);⁴  United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975). Rule 14 relief, on the other hand, lies within the discretion of the trial judge and refusal to sever counts or defendants properly joined under rule 8 will be reversed only if the discretion was abused. United States v. Hastings, 577 F.2d 38, 40 (8th Cir. 1978); United States v. Riley, 530 F.2d 767, 770 (8th Cir. 1976).

The joinder of offenses pursuant to rule 8(a) is allowed in three situations: (1) when the offenses are of the same or similar character; (2) when the offenses are based on the same act or transaction; or (3) when the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. The offenses joined in this case were Rodgers' unlawful distribution of cocaine from his residence on February 17, 1981, and Rodgers' unlawful possession of cocaine with intent to distribute from the same residence on October 6, 1982. We find that these offenses were properly joined as being of the same or similar character.

In applying the "same or similar character" standard, this court has allowed the offenses to be joined when "the two counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps." United States v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979); see also United States v. McClintic, 570 F.2d 685, 689 (8th Cir. 1978); United States v. Riley, 530 F.2d 767, 770 (8th Cir. 1976). In applying this standard, however, rule 14 must be kept in mind. The availability of rule 14 as a remedy for prejudice that may develop during the trial permits rule 8 to be broadly construed in favor of initial joinder. United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971); Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S. Ct. 1379, 18 L. Ed. 2d 461 (1967).

At first blush, the 20 month time period between the offenses would seem to violate the "relatively short period of time" factor that we have previously espoused. However, in a similar case involving narcotics violations, we affirmed the joinder of offenses when they were eight months apart. United States v. Sanders, 463 F.2d 1086 (8th Cir. 1972). Other cases with significant time periods between offenses but that nevertheless affirmed joinder include United States v. Hastings, 577 F.2d 38 (8th Cir. 1978) (counterfeiting offenses covering a two-year period properly joined); Johnson v. United States, 356 F.2d 680 (8th Cir.) (Mann Act offenses covering a five-month period properly joined), cert. denied, 385 U.S. 857, 87 S. Ct. 105, 17 L. Ed. 2d 84 (1966). These cases do not mean that the time-period factor is for naught. Rather, the time-period factor is to be determined on a case-by-case approach; there is no per se rule on when the time period between similar offenses is so great that they may not be joined. Indeed, that is why we have referred to a "relatively short period of time" between the two offenses. The time period is relative to the similarity of the offenses, and the possible overlapping of evidence.

In this case, then, we find that the offenses are of the same type, that the evidence as to each count will overlap somewhat, and that, relative to these factors, the time period between the offenses was sufficiently short. We find that the evidence will--or, more appropriately, did--overlap because evidence surrounding the first offense could have been introduced in a trial for the second offense to show intent and identity. The charge in Count II of possession with intent to distribute cocaine was based on the recovery of approximately 69 grams of cocaine on Rodgers' property on October 6, 1982. The cocaine was found inside a bottle that was hidden in a woodpile behind Rodgers' home. The bottle had Rodgers' fingerprints on it. The government was required to prove identity--that Rodgers possessed the drugs--and intent to distribute.

The fact of Rodgers' involvement in an alleged prior drug sale, and his earlier statements regarding the manner of his operation, were probative of his intent and possession on October 6, 1982. During the course of the undercover investigation in the weeks surrounding the February 17, 1981, sale, Rodgers made numerous comments to several undercover agents concerning the manner in which he operated his drug business. Specifically, Rodgers stated that he never kept his drugs in the house. The prior sale is also relevant to rebut Rodgers' contention, made in hearings before Magistrate Short, that he did not know what cocaine was, and to show that he intended to distribute the cocaine found on October 6. We have previously recognized that in a prosecution for a violation of narcotics laws, the defendant's complicity in other similar narcotics transactions may serve to establish intent or motive to commit the crime charged. United States v. Lewis, 423 F.2d 457, 459 (8th Cir. 1970). To be sure, evidence of the alleged prior sale cannot be used to prove that Rodgers is a bad person, or that he acted in conformity with alleged prior bad acts. However, Federal Rule of Evidence 404(b) clearly states that prior crimes, wrongs, or acts may be admissible to prove intent and identity, as well as motive, opportunity, preparation, plan, knowledge, or absence of mistake or accident.

We therefore find that the two counts were properly joined pursuant to Fed. R. Crim. P. 8(a).

Because we have concluded that the offenses were properly joined, we must next determine whether the offenses nevertheless should have been severed pursuant to rule 14. The case law is clear that, absent prejudice establishing an abuse of discretion by the trial court, denial of a defendant's motion for severance will not warrant reversal. United States v. Schearer, 606 F.2d 819, 820 (8th Cir. 1979); United States v. Riley, 530 F.2d 767, 770 (8th Cir. 1976). We have further stated: "Where evidence that a defendant had committed one crime would be probative and thus admissible at the defendant's separate trial for another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." United States v. Dennis, 625 F.2d 782, 802 (8th Cir. 1980).

We concluded above that the government would be allowed to admit evidence concerning the first offense in a trial for the second offense. Therefore, Rodgers was not prejudiced and the district court did not abuse its discretion in refusing to sever the two offenses.

Rodgers' final challenge on appeal is that the affidavit in support of the search warrant was insufficient on its face to establish probable cause to believe there would be controlled substances found at Rodgers' residence. The affidavit, prepared by Deputy Sheriff Rainville, provided Chief Judge Kalina, Hennepin County District Court, with the following information: During the previous 72 hours an informant had given the affiant information on at least two known drug dealers, including Rodgers; during the previous 72 hours the informant had been inside Rodgers' residence and had observed a large quantity of cocaine under Rodgers' control; informant thereafter made a controlled buy from Rodgers at his residence that was indirectly observed by affiant and other officers who searched the informant before the buy, escorted the informant to Rodgers' residence, and received what was determined to be cocaine directly from the informant immediately after leaving Rodgers' residence; informant told the affiant that the cocaine had been obtained directly from Rodgers in his bedroom; during the previous year and a half the narcotics unit of the Hennepin County Sheriff's Office and other narcotics agencies had received information that Rodgers was selling large quantities of cocaine; during the previous year and a half a narcotics agent with the Minnesota Bureau of Criminal Apprehension had purchased cocaine from Rodgers.

Rodgers relies on United States v. Schmidt, 662 F.2d 498 (8th Cir. 1981), to attack this affidavit. Schmidt involved a similar search warrant application that was determined to be insufficient to establish probable cause. We there concluded: "Considering the negligible 'track record' of the informant in tandem with the pausity of 'detail corroboration' here, we find that the ... warrant falls short of what is required by Spinelli and Aguilar." Id. at 503. Rodgers' reliance on Schmidt fails for two reasons. First, the Schmidt affidavit noted that the informant made a controlled buy, but it did not state what type of control was used. In this case, on the other hand, the circumstances surrounding the controlled buy were given, and these tended to substantiate the fact that Rodgers was selling cocaine from his residence. The informant was searched immediately before entering and after leaving Rodgers' residence, and the informant stated that the cocaine had been purchased from Rodgers.

The second reason that Rodgers' reliance on Schmidt fails is that this case is now governed by Illinois v. Gates, --- U.S. ----, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In Gates, the Supreme Court abandoned the rigid two-pronged test under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), for determining whether an informant's tip established probable cause for issuance of a search warrant. The Court adopted a totality of the circumstances approach in which

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud [ing]" that probable cause existed.

Gates, 103 S. Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960). Using this approach, we find that the information set forth in the affidavit was sufficient to support a finding of probable cause.

For the foregoing reasons, the judgment of the district court is affirmed.