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United States v. Dale

July 30, 2010

UNITED STATES OF AMERICA, PLAINTIFF -- APPELLEE,
v.
MICHAEL L. DALE, DEFENDANT -- APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF -- APPELLEE,
v.
DYSHAWN JOHNSON, DEFENDANT -- APPELLANT.



Appeals from the United States No. 08-3246 District Court for the Western District of Missouri.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: September 24, 2009

Before BYE, ARNOLD and SMITH, Circuit Judges.

Appellants Michael L. Dale and Dyshawn Johnson were convicted at a joint trial of two counts of first-degree murder and conspiracy to distribute cocaine. Dale and Johnson raise numerous arguments on appeal challenging their convictions. We affirm.

I.

On December 21, 2002, Anthony Rios and Olivia Raya were found murdered in their Kansas City, Missouri, home, both victims of multiple gunshot wounds. On December 21, 2002, at about 7:57 p.m., Francisco Rios, the grandfather of Anthony Rios, went to the home of Anthony Rios and Olivia Raya at 5115 Hardesty, Kansas City, Missouri, to check on them because neither he nor his wife had seen Rios or Raya all day. Francisco Rios, who lived next door, went through the back door, which was unlocked, and found both victims shot to death. Raya was sitting on a living room couch where she had been writing out thank-you cards for graduation gifts, with a pen still in her left hand. Anthony Rios, who was also known as "Snap" or "Snapper," was found on his back on the kitchen floor. Police found several bricks of marijuana and cocaine in Rios's home. Rios's phone records revealed that the last call made or received by Rios was to Dyshawn Johnson at 7:21 p.m. on December 20, 2002.

The last witness to see or speak to the victims, Paul Lupercio, visited Rios's home on Friday evening, December 20, 2002, at about 7:30 p.m. At that time, Lupercio stopped by the victims' home to arrange a drug deal with Rios. Lupercio testified that he always called before going to Rios's house to conduct a drug deal. Lupercio testified that Raya was sitting on the couch at the time, writing out graduation thank-you cards, and that she gave him a card while he was at the house. Lupercio gave Rios $20,000 cash for a kilogram of cocaine, which, Lupercio testified, he was going to stop by to pick up later that evening. However, Rios never answered his phone later that night or called him back, which Lupercio testified was unusual for Rios.

On February 12, 2003, North Kansas City police officers stopped Johnson for speeding while he was driving a Yukon Denali. He was then found to be driving with a revoked license, at which time he was arrested. Police searched Johnson and his Yukon Denali incident to arrest, and recovered: $2,355 in United States currency from Johnson's pants pocket; $3,500 in United States currency from his left shoe; a Cartier watch valued at $6,000 by Johnson; a diamond ring valued at $4,500 by Johnson; a silver cross with a chain valued at $10,000 by Johnson; a diamond earring valued at $4,000 by Johnson; a small amount of marijuana; several money order receipts totaling $14,700; and a Southwest Airlines travel receipt in Johnson's name purchased December 20, 2002, with $595.00 cash, for travel from Kansas City to Los Angeles on December 21, 2002.

On April 23, 2003, police executed a search warrant for Johnson's home. Police recovered scales, kilo wrappers and tape with cocaine residue, and ammunition. Investigators began to focus on the theory that Dale and Johnson had murdered Rios and Raya in a drug deal gone bad.

A series of witnesses called to testify by the prosecution helped to explain the government's theory of the case.

* Anthony Smith testified he had known Dale for eighteen years. Smith testified that while he and Dale were in prison together in 2003, Dale admitted to murdering "the Mexicans." Smith also testified that he had accompanied Dale to a drug deal with Johnson.

* Terry Taylor is currently serving a ten-year sentence for selling cocaine. He testified that Johnson introduced him to Dale in 2002 for the purpose of purchasing cocaine. Taylor further testified that he bought two ounces of crack cocaine twice a week from Dale for eight to nine months, and that Dale's source was Johnson. Finally, Taylor testified that Dale admitted to him that he shot the Mexican and the woman who was messing with some cards.

* Charles Levington testified that he purchased cocaine from Dale in 2002, and that the drugs were supplied by Johnson. Levington further testified that Dale admitted to shooting Rios and Raya.

* Mitchell Powell testified that he dealt drugs with Dale and purchased drugs from Johnson. Powell further testified that Dale admitted to shooting Rios and Raya.

* Bryant Burton was originally a co-defendant with Dale and Johnson, but testified pursuant to a cooperation agreement with the Government after pleading guilty to conspiracy to distribute cocaine. Burton testified that he bought drugs from Rios, dealt drugs with Johnson, and that Johnson and Dale sold drugs together.

Burton also testified that in the spring of 2004, he ran into Dale at a club and they had a conversation about "the Mexicans." Dale told Burton that "the Mexican was slippin'." Dale also told Burton that "That's how the game go. No different from me and you. Somebody catch you slippin', that's how they gonna do you." Burton also testified that he called Johnson and asked him about the Rios/Raya murders. Johnson told Burton that he took somebody over to Snapper's house to purchase some cocaine, and "about the time he looked up, the m*therf*cker went crazy and got to shootin'."

* Eric Noel testified that he bought ten kilograms of cocaine a month from Johnson.

* Henry Abrought testified that he bought cocaine from Johnson weekly.

* Jonni Curry testified that Johnson stored drugs, weapons, cash, and other equipment at her house. She further testified that Johnson would weigh cocaine at her house and package it into bags, and that she would buy supplies on behalf of Johnson.

In 2005--before an indictment was handed down in the present case--Dale was in jail awaiting trial on unrelated criminal charges of conspiracy, distribution of cocaine, and unlawful possession of a firearm. Law enforcement officials persuaded Anthony Smith, who was incarcerated in the same facility as Dale, to wear a wire and probe Dale for information relating to the Rios/Raya murders. Investigators arranged for Dale and Smith to be placed in a prison vehicle together while Smith wore a wire. While in the vehicle with Smith, Dale incriminated himself and Johnson, admitting involvement in the murders.

On February 28, 2006, a federal grand jury in the Western District of Missouri returned a four-count indictment charging Dale and Johnson in three counts: conspiracy to distributefive kilograms of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and two counts each of use of a firearm in furtherance of drug trafficking and in so doing, committing first-degree murder, in violation of 18 U.S.C. §§ 2, 924(c)(1), (j)(1), and (2).*fn1

At a pretrial hearing, Dale moved to suppress the recorded statement obtained through Smith's cooperation, arguing that the statement was acquired in violation of his Fifth Amendment right to due process and his Sixth Amendment right to counsel.

In a report and recommendation, a magistrate judge*fn2 found that Dale's statement to Smith had been voluntary, and that there was no violation of Dale's Sixth Amendment rights, because he was represented on a separate case. Although the magistrate judge found there was a violation of the detention order that prisoners awaiting trial be kept separate, to the extent practicable, from sentenced prisoners, she recommended the denial of Dale's motion to suppress. The district court*fn3 adopted her report and recommendation.

Dale and Johnson asked the court to sever the proceedings, allowing each defendant to proceed to a separate trial. The district court denied the motion.

During the trial, the district court, over Johnson's objection, placed a limitation on Johnson's cross-examination of witnesses Terry Taylor and Mitchell Powell. The district court prohibited Johnson from questioning Taylor and Powell about Dale's involvement in an unrelated murder charge in state court, the Torrez Rodriguez murder case, reasoning that such testimony would be unduly prejudicial to Dale.

At the time of trial in the present case, Powell was a co-defendant with Dale in the Torrez Rodriguez murder case. Although Johnson was not able to elicit testimony from Powell that Powell hoped testifying would result in leniency in the state murder proceedings, Powell did state during cross-examination that he did hope to receive leniency on yet another unrelated charge. Specifically, Powell testified three times during cross-examination that he had pleaded guilty in a federal drug conspiracy case, in which he faced a minimum twenty-year sentence, and that he was hoping for a downward departure on that case.

Taylor was not a defendant in the ongoing Torrez Rodriguez murder case, but he was a potential witness. At trial, Johnson was prohibited from eliciting testimony from Taylor showing Taylor gave inconsistent statements to police when Taylor was questioned about the Torrez Rodriguez murder. However, the district court required the prosecution to make the detective to whom Taylor allegedly lied available as a defense witness for Johnson. Johnson called this witness, Detective Babcock. Babcock testified that when he interviewed Taylor, Taylor gave inconsistent answers and changed his story several times.

On the morning of the second day of trial, a juror asked to speak with the district court judge:

THE COURT: What's your concern, Mr. [JUROR]?

JUROR: I feel I can't be impartial.

THE COURT: Why would you say that?

JUROR: I--I just went home and thought about this for a long time, and I don't think I can be an impartial juror.

THE COURT: Well, that's not a good enough answer. You're going to have to stay and sit and hear the evidence. I'll ask you again at the end of the trial.

JUROR: Okay.

THE COURT: But I would ask you, again, to keep an open mind and listen to the evidence, and then we'll discuss this later, but I don't want to excuse you at this point. Now, because the evidence may be hard and it may be disturbing to you, it shouldn't necessarily take away your impartiality, but I am not going to lecture any further, I'm going to ask you to stay, please.

JUROR: Okay.

The defense requested the juror be dismissed from the jury panel based on his comments. The court denied the request and the juror remained on the jury. After the voir dire examination, the court indicated that it did not believe the juror was being sincere with the court, implying the juror was actually motivated by a desire to avoid his duty to serve. After closing arguments, before deliberation, the district court called the same juror back and questioned him. The following exchange took place in the courtroom, in the presence of the single juror being questioned, the judge, counsel, and defendants:

THE COURT: You had stated that you didn't feel you could be fair. What's your feeling now?

JUROR: I'm very impartial.

THE COURT: Very impartial?

JUROR: I can be fair to both sides.

THE COURT: You think you can be fair?

JUROR: Absolutely.

THE COURT: So you have no concern about retiring and deliberating? JUROR: No.

THE COURT: Does either side have any concern about that?

PROSECUTOR: Nothing from the government, ...


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