United States v. Myron R. Tallman, United States of America v. Cynthia K. Green

952 F.2d 164
Court of Appeals for the Eighth Circuit·Decided January 28, 1992·No. 90-2131, 90-2132·Published·Cited by 20 cases

Opinions

WOLLMAN, Circuit Judge.

Myron R. Tallman and Cynthia K. Green appeal from their convictions on several drug-related counts.

I.

Tallman and Green, his girlfriend, suspected of dealing in cocaine, became the targets of a police investigation that began in 1987 in Lincoln, Nebraska. By March of 1989, investigators had compiled enough information to support a court order authorizing a wire tap of telephone calls to and from Tallman and Green’s apartment. On July 15,1989, Tallman and Ronald Bergant-zel, one of his associates, were arrested. Ultimately, Green, Merle Vermuele (her brother), Vincent Handy, and Terry Taylor Wentworth were also arrested. Bergant-zel, Vermuele, Handy, and Wentworth entered into plea agreements and agreed to cooperate with the government. Tallman and Green were convicted of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and four counts of delivery of, or possession with intent to deliver cocaine in violation of 21 U.S.C. § 841(a)(1).

II.

When this case was argued before us on January 10, 1991, we considered Tallman and Green’s contention that the late-discovered existence of pretrial statements of certain witnesses against them entitled them to a new trial. During argument the government acknowledged that the three police reports in question should have been turned over to Tallman and Green at trial, but maintained that the nondisclosure of the reports did not mandate a reversal of the convictions. In light of the government’s concession, we remanded the case to the district court1 to review the pretrial statements of Bergantzel and Vermuele and to determine whether the result of the proceeding would have been different had the evidence been disclosed to the defense. After a thorough, comprehensive review of [166] the evidence, the district court concluded that the result of the trial would not have been different had the police reports been disclosed to Tallman and Green. Having carefully reviewed the record, we find no error in the district court’s findings on this issue.

III.

Appellants contend that the wire tap was authorized without probable cause and thus was in violation of the wiretap statute, 18 U.S.C. § 2510 et seq. We disagree. The affidavit submitted in support of the application for the wire tap order was some sixty pages in length, detailing already-completed drug deals between Tail-man and his associates that were observed or conducted by police. Appellants argue that the information set forth in the affidavit was stale. The investigation of this drug conspiracy began on April 1, 1987. The last drug transaction that was observed occurred on November 1,1988. The application for the wiretap authorization was presented to the Lancaster County District Court on March 17, 1989. Notwithstanding this delay, however, we conclude that the on-going nature of the conspiracy was sufficiently established by the affidavit to support the finding that probable cause existed for the issuance of the wiretap authorization. See United States v. Jones, 801 F.2d 304 (8th Cir.1986).

Likewise, we conclude that when read in a practical and common sense fashion, United States v. Garcia, 785 F.2d 214, 221 (8th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986), the affidavit satisfied the requirement of 18 U.S.C. § 2518(3)(c) that the issuing judicial officer be able to determine from the application that normal investigative procedures had been tried and had failed and that it reasonably appeared that such procedures would be unlikely to succeed if tried.

IV.

The jury retired to begin its deliberations at 3:50 p.m., February 27, 1990. On the morning of March 1, 1990, the district court was given a note from one of the jurors stating that the juror believed that the court’s instructions regarding jury deliberations were not being followed. Specifically, the note complained that as each of the counts of the indictment was being voted on, the juror in the minority was being questioned and forced to defend his position on that vote. The note characterized the majority’s actions as constituting harassment and insults.

After discussing the note with counsel, the district court instructed the jury to reread the earlier-given instruction regarding the jury’s duty to deliberate. The court then gave a supplemental instruction regarding the jury’s right to agree upon a verdict as to one defendant but not as to the other.

In denying Tallman’s motion for new trial based upon the assertions contained in the above-described note, the district court observed:

I am not persuaded that the jury’s verdict should be overturned because of the assertions in the note handed me and revealed to counsel during deliberations. There may well have been disagreements in the jury room about the correctness of the procedure being followed and there may have been unkind words said by one or more jurors to one or more others. That, rather than total placidity, is more nearly the nature of jury deliberation. At the announcement of the verdict the jurors were polled and each separately declared that the verdict as rendered was in agreement with that juror’s decision. I am satisfied that the ultimate test is and must be the unanimity of the jurors’ views. That was registered in the final verdict and there is no cause for overturning it.

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United States v. Myron R. Tallman, United States of America v. Cynthia K. Green, 952 F.2d 164 (8th Cir. 1992).

952 F.2d 164 (United States v. Myron R. Tallman, United States of America v. Cynthia K. Green) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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