United States v. Cressey

[NOT FOR PUBLICATION] United States Court of Appeals For the First Circuit No. 97-1624 UNITED STATES, Appellee, v. JEFFREY CRESSEY, Defendant, Appellant. No. 97-1806 UNITED STATES, Appellee, v. GREGORY A. COUTURE, Defendant, Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge. Christopher W. Dilworth, for appellant Jeffrey Cressey. Richard S. Emerson, Jr., with whom Childs, Emerson, Rundlett, Fifield & Childs, was on brief for appellant Gregory A. Couture. Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Helene Kazanjian, Assistant United States Attorney, were on brief for appellee. March 31, 1998 Per Curiam. According to the government, between 1992 and 1996, Rick Lachance regularly bought large amounts of cocaine from David Gell and Luis Peralta in New York City, and sold several ounces per week to appellants Jeffrey Cressey and Gregory Couture, as well as Albin Lavallee, Raymond Bergeron, Cory Ison, and others in Maine. Cressey, Couture, and the others resold the cocaine in gram amounts to individual users. This "spoke" conspiracy was the subject of a federal investigation. Cressey was eventually indicted, with Bergeron, Ison, and Peralta, on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. 841 (a)(1), 841 (b)(1)(B), and 846. Couture was indicted separately under the same charge. The two indictments were consolidated for trial over the objections of Cressey and Couture. Ison and Peralta pled guilty and the other three defendants proceeded to trial. The jury returned a guilty verdict, and Cressey and Couture were sentenced to 97 and 70 months imprisonment, respectively. On appeal, both Cressey and Couture raise a number of alleged errors committed by the district court. Finding none after careful review, we affirm the convictions. The first error that the district court is alleged to have made was joining the trials of Cressey, Couture and Bergeron. The joinder was ordered over objection, and Cressey's motion to sever was later denied. District court decisions to sever criminal trials under Fed. R. Crim. P. 14 or join trials under Fed. R. Crim. P. 13 are subject to review for an abuse of discretion standard. See United States v. Jones, 10 F.3d 901, 908 (1st Cir. 1993); United States v. Clayton, 450 F.2d 16, 18 (1st Cir. 1971). For an appellant to prevail, he must show that he suffered substantial prejudice from a joint trial amounting to a miscarriage of justice. See Zafiro v. United States, 506 U.S. 534, 540 (1993); Jones, 10 F.3d at 908-909 . No miscarriage of justice occurred in this case. There is a presumption that co-defendants in the same venture should be tried together, in part to promote judicial efficiency, and in part to avoid inconsistent verdicts. SeeZafiro, 506 U.S. at 537 . The cases against Cressey and Couture involved the same drug coming from the same sources within the same time period. They resold the drugs in the same mid-coast region of Maine. It is beyond dispute that most of the evidence admissible at trial was correctly determined to be admissible against both appellants. Where evidence was admitted against only one defendant, the court limited the jury's consideration of the evidence. The government's opening and closing statements segregated the evidence against each defendant, and the court charged the jury carefully, reminding them that their verdicts need not be consistent and to consider each defendant individually. We are satisfied that the district court did not abuse its discretion in joining the cases against Cressey and Couture. The district court is also alleged to have erred in denying Cressey and Couture's motions for acquittal. We disagree. The evidence against both appellants in this case was overwhelming. Lavallee and Lachance's testimony clearly establishes that, one or more times each week, Cressey and Couture each bought up to three ounces of cocaine between 1993 and 1995. The fact that they did not know each other, or that certain additional evidence was collected against one of the two appellants was simply irrelevant to their motions for acquittal. We are also persuaded that the district court properly upheld objections to questions from Cressey's counsel directed toward an unrelated marijuana conspiracy. While these questions were not grossly out of line, the district court was acting well within its discretion to limit cross-examination so as to avoid prejudice, confusion and unnecessary waste of time. See United States v. Malik, 928 F.2d 17, 22 (1st Cir. 1991) (citing Delawarev. Van Arsdall, 475 U.S 673, 679 (1986)). Furthermore, it remains a mystery how the court's ruling could have prejudiced Cressey. Evidence of further involvement with drugs would not have exculpated Cressey and Couture absent jury confusion. In the face of Lachance and Levallee's testimony, we find it utterly inconceivable that Cressey and Couture were being tried for the wrong crime. It is further alleged on appeal that Cressey's counsel was inappropriately interrupted during closing arguments from the bench. However, Cressey's counsel admits that the statements to the jury that were corrected were inaccurate recitations of facts in evidence. Under the circumstances, the district court judge was well within his discretion to stop counsel. United States v. Williams, 809 F.2d 75, 79-80 (1st Cir. 1986) (district courts have broad discretion to control closing arguments, including the authority to correct inaccurate statements). There is certainly no abuse of discretion where, as here, the district court invites counsel to a sidebar and gives counsel an opportunity to correct his misstatements before the jury, instead of having the judge do so in an apparent reprimand. We also conclude that the district court charged the jury and responded to their subsequent inquiries appropriately. The court correctly determined that a multiple conspiracy jury instruction was not warranted. There was no evidence that any of the defendants participated in any conspiracy other than the one charged. The court's instructions carefully and adequately described the crime of conspiracy. As the jurors were deliberating, they presented the district court judge with a request to re-read Cressey's crossexamination of Lavallee. Despite the fact that, at the outset of the trial, the judge had explained that there would be no transcript and that the jurors would have to rely on their recollections of testimony and any notes that they may have taken, the judge offered to have the court reporter translate aloud her shorthand notes in the jury's presence. The judge explained that such a process would be time-consuming, in part because sections of the direct and cross-examinations would have to be read. The jury ultimately rejected the judge's offer and reached its verdict. We find that the judge's response was well within his discretion and did not prejudice the defendants in this case. For the reasons stated in this opinion, the judgment of the district court is affirmed.