United States Court of Appeals,
Eleventh Circuit.
No. 95-6325.
UNITED STATES of America, Plaintiff-Appellee,
v.
Adrian TALLEY, Jimmy L. Pickett, Defendants-Appellants.
March 21, 1997.
Appeals from the United States District Court for the Middle
District of Alabama. (Nos. CR-94-121-N-2, CR-94-121-N-1), Harold
Albritton, III, District Judge.
Before BIRCH and DUBINA, Circuit Judges, and RAFEEDIE*, Senior
District Judge.
PER CURIAM:
Adrian Talley and Jimmy L. Pickett appeal their convictions
for aiding and abetting one another in possession with intent to
distribute cocaine base in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a)(1). They argue that the district court erred in (1)
denying their motions to sever because their defenses were mutually
antagonistic and (2) denying their motions to suppress evidence.
We affirm.
I. BACKGROUND
On April 7, 1994, Officer Neil McMahon received several
telephone calls regarding suspicious conduct by Talley and Pickett
from a confidential informant, Kenneth Smith, who had provided
reliable information in the past. Smith described the vehicle that
Talley and Pickett had parked outside a residence located at 2025-D
Terminal Road in Montgomery, Alabama. He reported that he saw
*
Honorable Edward Rafeedie, Senior U.S. District Judge for
the Central District of California, sitting by designation.
Talley and Pickett enter the residence and that he had seen Talley
remove approximately two ounces of cocaine from his pants. Smith
presumed that Talley and Pickett wanted Josephus Steel, a sometime
resident of the house, to "cook" the powder cocaine into cocaine
base or "crack" cocaine.
McMahon recruited other officers to assist him in surveillance
and verified that the vehicle identified by Smith as the one used
by Talley and Pickett was parked near the Terminal Road address.
Smith also reported that, when Talley and Pickett left the
residence, Talley had a bulge in his pants pocket. With this
information, the police officers followed the car used by Talley
and Pickett when they drove away and eventually stopped it. The
pat-down search of Talley revealed that he had 24.7 grams of
cocaine hydrochloride in his pants pocket. After the cocaine
hydrochloride was found on Talley, the officers searched the
vehicle. This search resulted in the recovery of 105.4 grams of
cocaine base on the passenger-side floorboard of the vehicle.
Both appellants testified at trial. Pickett stated that he
knew nothing about the drugs found in his car. He claimed that
Talley had accosted him and that, upon Talley's request, Pickett
had driven Talley to a house. Talley testified that he and Pickett
had planned to purchase powder cocaine; that they did buy some
powder cocaine shortly after which they were arrested; and that he
knew nothing about crack cocaine found in the car and had never
seen it before.
The jury found both Talley and Pickett guilty, and they were
sentenced accordingly.1 This appeal ensued.
II. DISCUSSION
A. Denial of Motions to Sever
Talley and Pickett argue that the district court erred in
denying their motions for severance. We review a district court's
decision to grant or to deny a motion for severance for abuse of
discretion. United States v. Strollar, 10 F.3d 1574, 1578 (11th
Cir.), cert. denied, 512 U.S. 1211, 114 S.Ct. 2688, 129 L.Ed.2d 820
(1994). Under Rule 8(b) of the Federal Rules of Criminal
Procedure, "[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." Fed.R.Crim.P.
8(b). "There is a preference in the federal system for joint
trials of defendants who are indicted together." Zafiro v. United
States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317
(1993). Although joinder is proper under Rule 8(b), the district
court may order severance when either the defendant or the
government will be prejudiced. See Fed.R.Crim.P. 14 ("If it
appears that a defendant or the government is prejudiced by a
joinder of ... defendants ... for trial together, the court may
order an election or separate trials of counts, grant a severance
of defendants or provide whatever other relief justice requires.").
1
Talley and Pickett requested that they be allowed to
supplement their briefs on appeal if this court in a pending case
held that the disparate sentencing of offenses involving crack
cocaine and powder cocaine violated the Due Process Clause. We
have rejected that constitutional challenge. See United States
v. Sloan, 97 F.3d 1378 (11th Cir.1996).
Relying on United States v. Rucker, 915 F.2d 1511 (11th
Cir.1990) (per curiam), Talley and Pickett argue that the district
court abused its discretion in refusing to sever their trials
2
because they interposed mutually antagonistic defenses. Our
reasoning in Rucker, however, has been undercut severely by the
Supreme Court in Zafiro, where four defendants were convicted for
possession with intent to distribute illegal drugs. The government
agents in Zafiro observed defendants Garcia and Soto place a large
box in Soto's car and drive from Soto's bungalow to defendant
Zafiro's apartment. The agents followed Garcia and Soto as they
carried the box upstairs. When the agents identified themselves,
Garcia and Soto dropped the box, which contained fifty-five pounds
of cocaine, and ran into the apartment. The agents entered the
apartment and found the four defendants inside. The defendants
moved for severance because their defenses were mutually
antagonistic; each claimed that they did not know that the box
contained cocaine.
In Zafiro, the Court held that mutually antagonistic defenses
are not prejudicial per se. "Rule 14 does not require severance
even if prejudice is shown; rather, it leaves the tailoring of the
2
In Rucker, this court held that
A defendant may prove compelling prejudice by
showing that he and his co-defendants advanced defenses
so antagonistic as to be "irreconcilable or mutually
exclusive." Severance is compelled "if the jury, in
order to believe the core of testimony offered on
behalf of [one] defendant, must necessarily disbelieve
the testimony offered on behalf of his co-defendant."
Rucker, 915 F.2d at 1513 (alteration in original) (citations
omitted).
relief to be granted, if any, to the district court's sound
discretion." Zafiro, 506 U.S. at 538-39, 113 S.Ct. at 938. The
Court held that, when defendants have been joined properly under
Rule 8(b), the district court should grant Rule 14 severance only
if (1) there exists "a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or" (2)
a joint trial would "prevent the jury from making a reliable
judgment about guilt or innocence." Id. at 539, 113 S.Ct. at 938.
The Court specifically noted that limiting instructions "often will
suffice to cure any risk of prejudice." Id.
In Zafiro, the Court noted that the defendants, like Talley
and Pickett, did not articulate any specific instances of
prejudice. Instead, the defendants argued that their defenses,
consisting of claiming to be innocent and accusing the other of the
crime, prejudiced them because the jury would conclude either "(1)
that both defendants [were] lying and convict them both on that
basis, or (2) that at least one of the two must be guilty without
regard to whether the Government had proved its case beyond a
reasonable doubt." Id. at 540, 113 S.Ct. at 938. The Supreme
Court summarily rejected the alleged prejudice arising from
mutually antagonistic defenses that we recognized in Rucker by
clarifying that "it is well settled that defendants are not
entitled to severance merely because they may have a better chance
of acquittal in separate trials." Id. Thus, Zafiro undermined
Rucker insofar as Rucker held that mutually antagonistic defenses
compel severance.
The Court also held that any prejudice resulting from mutually
antagonistic defenses could be alleviated by proper limiting
instructions. Id. at 540-41, 113 S.Ct. at 939. The Court
additionally noted that prejudice from mutually antagonistic
defenses had not been suffered by the defendants because the
government had offered sufficient evidence as to each defendant.
Id. at 540, 113 S.Ct. at 939. In this case, the district court
gave appropriate limiting instructions which cured any prejudice
that may have resulted from failure to sever.3 Furthermore, as in
3
The district court gave the following limiting instructions
regarding the jury's consideration of the evidence with respect
to Talley and Pickett:
As I told you previously, you must consider the
evidence in this case separately as to each defendant.
It is as though there were two separate trials that you
are here considering. So, when I refer to the
defendant in these instructions I will be referring to
each defendant separately unless I indicate otherwise.
And when you consider this case, you must consider the
evidence separately as to each defendant.
It will be your duty to decide whether the
government has proved beyond a reasonable doubt the
specific facts necessary to find the defendant guilty
of the crime or crimes charged in the indictment. You
must make your decision only on the basis of the
testimony and the other evidence presented here at
trial.
....
The indictment, or formal charge against the
defendant, is not evidence of guilt. Indeed, the
defendant is presumed by the law to be innocent. The
law does not require a defendant to prove his innocence
or to produce any evidence at all.... The government
has the burden of proving a defendant guilty beyond a
reasonable doubt and if it fails to do so you must find
the defendant not guilty.
....
Now, I have told you a separate crime or offense
is charged against one or more of the defendants in
each count of the indictment. Each offense and the
Zafiro, it is unlikely that the joinder of both defendants caused
the jury to convict them without regard to whether the government
had proved its case. We have reviewed the record and conclude that
the government offered more than sufficient evidence as to each
defendant. Specifically, the government presented evidence that
Talley and Pickett were seen going into a house known to be a site
where cocaine powder was transformed into cocaine base or crack
cocaine, that Talley was in possession of cocaine upon entering the
house, and that Talley and Pickett were arrested in possession of
crack cocaine. Accordingly, we conclude that the district court
did not abuse its discretion in denying Talley and Pickett's
motions to sever.
B. Suppression of Evidence
Talley and Pickett argue that the cocaine base seized from
the automobile was inadmissible at trial because it was seized in
violation of the Fourth Amendment. They contend that the
confidential informant was so unreliable that Officer McMahon
reasonably could not rely on information received from him to form
probable cause to initiate the challenged search. In reviewing the
district court's disposition of a motion to suppress, we review its
findings of fact for clear error and its application of law to
those facts de novo. United States v. Diaz-Lizaraza, 981 F.2d
evidence pertaining to it should be considered
separately. Also, the case of each defendant should be
considered separately and individually. The fact that
you may find one of the defendants guilty or not guilty
of the offense charged should not affect your verdict
as to any other offense or as to the other defendant.
R7-146, 147, 156.
1216, 1220 (11th Cir.1993).
The government argues that the initial stop was an appropriate
investigative Terry4 stop, which became an arrest based on probable
cause. The arrest permitted a valid search incident to arrest. We
reject this rationale and, instead, agree with the district court's
reasoned approach.
A police officer may conduct a warrantless search of an
automobile if " "(1) there is probable cause to believe the vehicle
contains contraband or other evidence which is subject to seizure
under the law, and (2) exigent circumstances necessitate a search
or seizure.' " United States v. Campbell, 920 F.2d 793, 795 (11th
Cir.1991) (citation omitted); United States v. Banshee, 91 F.3d
99, 102 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
752, 136 L.Ed.2d 689 (1997). Talley and Pickett do not contest the
exigent circumstances requirement; they argue that probable cause
was lacking.
Probable cause exists " "when the facts and circumstances
would lead a reasonably prudent [person] to believe that the
vehicle contains contraband.' " The Supreme Court echoed this
analysis when it adopted the totality of the circumstances
test for determining when information provided by an informant
rises to the level of probable cause. Illinois v. Gates, 462
U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543
(1983).
Campbell, 920 F.2d at 796 (alteration in original) (citations
omitted); see Ornelas v. United States, --- U.S. ----, ----, 116
S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996). We review determinations
of probable cause de novo, but we "review findings of historical
fact only for clear error and ... give due weight to inferences
4
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968).
drawn from those facts by resident judges and local law enforcement
officers." Ornelas, --- U.S. at ----, 116 S.Ct. at 1663.
The district court in this case properly focused on whether
the information provided by the confidential informant, Smith, when
combined with independent corroboration by the police, rose to the
level of probable cause. Smith described the vehicle used by
Talley and Pickett and its location to Officer McMahon. He also
informed that Talley possessed cocaine when he entered the
residence on Terminal Road, known to him to be a location for
making cocaine base or crack cocaine, and that Talley exited the
house with a bulge in his pants. Because the facts supplied by the
confidential informant were independently corroborated by the
police, we cannot determine that they are clearly erroneous. We
conclude that the information provided by the confidential
informant, when combined with the government's independent
corroboration, gave rise to probable cause to believe that the
vehicle driven by Pickett contained contraband and validated the
search of that vehicle and the consequent recovery of the cocaine
base located therein.
III. CONCLUSION
Because the district court correctly denied Talley and
Pickett's motions for severance as well as their suppression
motions, the convictions of Talley and Pickett are AFFIRMED.