United States of America, Plaintiff-appellee, v. Domingo Antonio Lagos, A/k/a Mingo, A/k/a Tony, Defendant-appellant.united States of America, Plaintiff-appellee, v. Gregory Thomas Gamber, Defendant-appellant.united States of America, Plaintiff-appellee, v. Kevin Wesley Doggett, Defendant-appellant, 912 F.2d 464 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 912 F.2d 464 (4th Cir. 1990) Argued July 20, 1990. Decided Aug. 28, 1990. As Amended Sept. 19. 1990

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., District Judge. (CR-88-138-G, CR-88-137-G)

David James, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., Marshall Hurley, Patton, Boggs & Blow, Greensboro, N.C., Gordon Hampton Brown, Blackwell, Blackwell, Canady & Thornton, Winston-Salem, N.C., (argued), for appellants; Bryan E. Lessley, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., C. Allen Foster, Patton, Boggs & Blow, Greensboro, N.C., on brief.

David Bernard Smith, Assistant United States Attorney, Senior Litigation Counsel, Greensboro, N.C., for appellee; Robert H. Edmunds, Jr., United States Attorney, Greensboro, N.C., on brief.

M.D.N.C.

AFFIRMED.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

PER CURIAM:


Domingo Antonio Lagos, Gregory Thomas Gamber and Kevin Wesley Doggett appeal from their respective convictions on various drug charges, contending that: (1) Doggett's prosecution violated the double jeopardy and due process clauses of the Constitution; (2) the cases against Lagos, Gamber and Doggett were improperly joined prior to trial; (3) the cases against Lagos, Gamber and Doggett, if properly joined prior to trial, should have been severed thereafter; (4) the trial court improperly admitted certain telephone billing records; (5) the trial court improperly admitted certain testimony tending to show "guilt by association"; (6) there was insufficient evidence to support Doggett's conviction; and (7) the evidentiary errors and errors of joinder were not harmless. Because these arguments lack merit, we affirm the judgments below.

The co-defendants in this case conspired to funnel large quantities of cocaine from Colombia through Miami to Greensboro and beyond. While the conspiracy was somewhat less focused or directed than we normally encounter in drug cases, there is no doubt in our minds that there existed a collaborative effort on the part of the defendants and their associates to secure and distribute cocaine. The salient facts of this case will be interspersed throughout our discussion of the issues raised on appeal.

The fifth amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." As this court noted in United States v. Ragins, 840 F.2d 1184, 1187 (4th Cir. 1988), the double jeopardy clause protects defendants against cumulative punishments and successive prosecutions for the same offense. The critical question in cases raising the issue of successive prosecutions, such as this case, is whether any of the new offenses charged against the defendant are the "same" as those charged against him in a prior indictment. Id. at 1188. As a general rule, "the second prosecution is barred by double jeopardy if the evidence actually used to prosecute the first offense would suffice to convict of the second offense as charged." Id.; see also Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir. 1980). With respect to the burden of proof in double jeopardy cases, this court has stated:

[A]lthough the defendant has the initial burden of going forward with the evidence by putting his double jeopardy claim in issue, once he has made a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden of establishing that there were two separate crimes shifts to the government. Because double jeopardy is not an element of the crime but rather a personal privilege, the government need only prove that there were in fact two separate offenses by a preponderance of the evidence.

Ragins, 840 F.2d at 1192.

In 1985, Doggett was indicted on the following charges: (1) conspiracy to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a) (1) and 846 (from approximately September 1983 until October 1984); (2) possession with intent to distribute and distribution of cocaine hydrochloride in violation of 21 U.S.C. § 841(a) (1) (on or about August 20, 1984); (3) conspiracy to defraud the United States of a sum in excess of $10,000 in violation of 18 U.S.C. § 371 (from about December 1983 until October 1984); and (4) concealing and covering up a material fact within the jurisdiction of a federal department or agency in violation of 18 U.S.C. § 1001, and 31 U.S.C. §§ 5313(a) and 5322(b) (on or about August 24, 1984 and October 4, 1984).

The present indictment charged Doggett on two new counts: (1) travelling in interstate commerce from Greensboro to Miami with an intent to promote, manage, establish, carry on, or facilitate any of those endeavors with respect to an unlawful activity involving controlled substances in violation of 18 U.S.C. § 1952(a) (3) (on or about January 31, 1984); and (2) possession of cocaine hydrochloride with an intent to distribute in violation of 21 U.S.C. § 841(a) (1) (on or about February 1, 1984).

On appeal, Doggett maintains that these two new counts charged him with the same offense as did the drug conspiracy count in the 1985 indictment. We disagree. First, this court has held that "a conspiracy to commit an offense and the substantive offense underlying the conspiracy are distinct crimes which do not merge into a single punishable act, and a defendant in a proper case can be prosecuted both for the conspiracy and the substantive offense." United States v. Walker, 796 F.2d 43, 46 (4th Cir. 1986). This is precisely what occurred in the instant case where Doggett was prosecuted for conspiracy under the 1985 indictment, and for possession with an intent to distribute cocaine on two distinct occasions under both the 1985 and the 1988 indictments.

Second, the proof required under the racketeering provision of 18 U.S.C. § 1952(a) (3) is substantially different from that required under the conspiracy provision of 21 U.S.C. § 846. Accordingly, the factual inquiries conducted in each of the two prosecutions were quite dissimilar, and do not raise double jeopardy concerns. Moreover, the racketeering violation, like the possession counts, constitutes a substantive offense which may be charged apart from and in addition to the conspiracy allegations. In short, Doggett has failed to make a non-frivolous showing of double jeopardy as required by this court's decision in Ragins.

Lagos, Gamber and Doggett also contend that the district court erred in allowing the government to prosecute them jointly. Under Federal Rule of Criminal Procedure 13, a district court "may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information." In addition, Rule 8(b) provides that " [t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."

As a general proposition, the joinder of parties under these rules contributes considerably to the efficiency of judicial administration. United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986); United States v. Shuford, 454 F.2d 772, 776 (4th Cir. 1971). Nevertheless, trial courts may not join totally unconnected defendants and offenses. Ingram v. United States, 272 F.2d 567, 569 (4th Cir. 1959), cited in United States v. Chinchic, 655 F.2d 547, 550 (4th Cir. 1981). Thus, defendants may not be indicted or tried together absent a common act or transaction. Id. It should be noted, however, that joinder is almost always appropriate in cases involving co-conspirators and aider-abettors. United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988); Spitler, 800 F.2d at 1271.

In this case, joinder was appropriate because of the existence of common actors, including unindicted co-conspirators and abettors, common methods and plans, common and shared goals, common overt acts in furtherance of the alleged conspiracy, and common witnesses. Upon our review of the record, we cannot say that the district court erred in permitting the joinder of the three defendants in this case.

Motions for a severance under Federal Rule of Criminal Procedure 14 are committed to the sound discretion of the district courts. United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986), cert. denied, 480 U.S. 938 (1987); United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986); United States v. Spoone, 741 F.2d 680, 688 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985); United States v. Truslow, 530 F.2d 257, 261 (4th Cir. 1975); United States v. Shuford, 454 F.2d 772, 776 (4th Cir. 1971). Ordinarily, severances should be granted in cases where a joint trial would cause a substantial degree of prejudice. Truslow, 530 F.2d at 261; Shuford, 454 F.2d at 776. The defendant, however, has the burden of demonstrating such strong prejudice. United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984).

In addition, it is not sufficient for the defendants merely to show that joinder rendered the defense more difficult or that separate trials offered a better chance of acquittal. Id.; Spitler, 800 F.2d at 1271. Nor are severances justified by differences in trial strategy among the co-defendants, or by conflicting and inconsistent defenses. United States v. Whitehead, 618 F.2d 523, 529 n. 11 (4th Cir. 1980); United States v. Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied, 439 U.S. 1080 (1979). To obtain a severance based on conflicting defenses, a defendant must demonstrate that the conflict is irreconcilable, and that the jury unjustifiably will infer as a result of the conflict that all of the defendants are guilty. Spitler, 800 F.2d at 1272; Becker, 585 F.2d at 707.

In this case, none of the defendants demonstrated that their joint trial resulted in a substantial degree of prejudice or otherwise interfered with their individual defense strategies. Accordingly, the district court did not abuse its discretion in denying their motions for severance.

Next, the appellants maintain that the district court improperly admitted certain telephone billing records as further evidence of the conspiracy. They claim that this evidence should have been excluded under Federal Rule of Evidence 403. Under that rule, district courts may exclude otherwise relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." However, a decision under Rule 403 is committed to the discretion of the trial court, whose judgment will not be disturbed absent an arbitrary or irrational exercise of that discretion. Garraghty v. Jordan, 830 F.2d 1295, 1298 (4th Cir. 1987); United States v. Pennello, 668 F.2d 789, 790 (4th Cir. 1982).

In this case, the district court admitted the telephone records as circumstantial evidence of the alleged conspiracy. Upon examination of the record, it does not appear that this evidentiary ruling was either arbitrary or irrational. Moreover, the district court issued a limiting instruction to the jury at the time these records were introduced into evidence,1  and the defendants raised no objections at that time. Thus, it appears that the defendants have waived their right to object to this evidence on appeal.

The defendants' next argument is that the district court improperly admitted certain evidence which they claim did nothing more than establish their "guilt by association." Accordingly, they claim that this evidence was more prejudicial and misleading than probative of a material fact, and that it also should have been excluded under Federal Rule of Evidence 403.

We agree with the government that, although evidence of an association among co-conspirators is alone insufficient to establish the existence of a criminal conspiracy, it is a relevant factor which may be considered by the jury. See United States v. Williford, 764 F.2d 1493, 1500 (11th Cir. 1985); United States v. Harrell, 737 F.2d 971, 978 (11th Cir. 1984), cert. denied, 470 U.S. 1027 (1985); United States v. Cannington, 729 F.2d 702 (11th Cir. 1984). Furthermore, the district court in this case did provide a limiting instruction on the use of the challenged testimony.2 

Next, Doggett contends that the evidence adduced at trial was insufficient to support his convictions. As this court noted in United States v. Tresvant:

The guidelines for reviewing the sufficiency of evidence to support a conviction are quite familiar. The relevant question is not whether the appellate court is convinced of guilt beyond a reasonable doubt, but rather whether, viewing the evidence in the light most favorable to the government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt. We must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established.

677 F.2d 1018, 1021 (4th Cir. 1982) (emphasis in the original) (citations omitted), cited in United States v. MacDougall, 790 F.2d 1135, 1151 (4th Cir. 1986), and United States v. Jones, 735 F.2d 785, 791 (4th Cir.), cert. denied, 469 U.S. 918 (1984).

To obtain a conviction under 18 U.S.C. § 1952(a) (3), the government must establish that the defendant (1) travelled in interstate commerce or used facilities in interstate commerce (2) with the specific intent to further an unlawful activity (3) after which the defendant performed or attempted to perform acts in furtherance of the unlawful activity. United States v. Schocket, 753 F.2d 336, 340-41 (4th Cir. 1985). To obtain a conviction under 21 U.S.C. § 841(a) (1), the government must show that the defendant knowingly possessed a controlled substance with the intent to distribute it. United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir.), cert. denied, 484 U.S. 834 (1987).

Viewing the direct and circumstantial evidence in the light most favorable to the government, and allowing the government to draw all reasonable inferences therefrom, it is conceivable that a rational trier of fact could have found Doggett guilty of these two offenses beyond a reasonable doubt. The following evidence was presented at trial: the testimony of Giovanni Contrereas, who stated that he and Doggett had travelled from Greensboro to Miami and back again, Contrereas by car and Doggett by plane, in order to obtain cocaine from a third party in Miami and transport it to Greensboro for distribution; and an Eastern Airlines customer flight coupon in Doggett's name for a January 30, 1984, flight from Greensboro to Miami via Atlanta. While this may not constitute overwhelming evidence of guilt, it is adequate to sustain Doggett's convictions.

It is axiomatic that the duty of a reviewing court is to consider the trial record as a whole and to ignore errors which are harmless because there can be no such thing as a perfect, error-free trial, and the Constitution does not guarantee such a trial. United States v. Hasting, 461 U.S. 499 (1983). This responsibility is propounded in our governing laws and rules. See 28 U.S.C. § 2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."); Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."). In Hasting, the Supreme Court indicated that an appellate court should apply the harmless error rule in all cases where the error is deemed harmless beyond a reasonable doubt. 461 U.S. at 508-10. Thus, the essence of the harmless error rule is that a judgment may stand only when there is no reasonable possibility that the practice complained of might have contributed to the conviction. 461 U.S. at 506. In Alston v. Garrison, 720 F.2d 812, 817 (4th Cir. 1983), cert. denied, 468 U.S. 1219 (1984), this court, citing Hasting, stated that the proper inquiry was whether, viewing the entire record, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty absent the allegedly harmless error.

Applying the foregoing standard of review to the facts of the present case, we believe that all of the errors alleged by the defendants are harmless.

For the reasons articulated above, we hereby affirm the convictions of Lagos, Gamber and Doggett.

AFFIRMED.

 1

The court advised the jury as follows:

Ladies and gentlemen, we are about to hear evidence of telephone toll records. Now telephone toll records are records that you may see on a monthly basis when you get your bill each month that details the numbers that have been called from your phone or numbers that have been received at your phone. The evidence adduced by telephone toll records is something that you should look at with some care and circumspection; because, as you know, telephone toll records do not identify who placed the call. They merely identify numbers to which a call may have been made or attempted. Neither do they identify who received the call on the other end of the line. Nor do the telephone toll records identify the substance of any conversation that took place during that call. There has been testimony in this case that at the residence where some of these numbers were located or subscribed to that several people lived. Whatever use you make of these records will be up to you and your understanding of the evidence in the case. You may consider these records for whatever weight you determine to give them.

Joint Appendix at 1278-79.

 2

The court informed the jury that themere presence at the scene of a transaction or event and the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests does not establish proof of a conspiracy. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one does not thereby become a conspirator

Joint Appendix at 864-65.

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