United States v. Paul Douglas Hessling (87-3344), and Jackie D. Paschall (87-3407)

845 F.2d 617, 1988 U.S. App. LEXIS 5449, 1988 WL 36645
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 26, 1988
Docket87-3344, 87-3407
StatusPublished
Cited by18 cases

This text of 845 F.2d 617 (United States v. Paul Douglas Hessling (87-3344), and Jackie D. Paschall (87-3407)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Paul Douglas Hessling (87-3344), and Jackie D. Paschall (87-3407), 845 F.2d 617, 1988 U.S. App. LEXIS 5449, 1988 WL 36645 (6th Cir. 1988).

Opinions

BOYCE F. MARTIN, Jr., Circuit Judge.

Paul Douglas Hessling and Jackie D. Paschall appeal their jury convictions for federal drug offenses.

In July of 1986, Hessling, Paschall, and seventeen codefendants were indicted for numerous offenses relating to cocaine trafficking in Cincinnati. Hessling, Paschall, and three other defendants were tried jointly-

As part of the investigation leading to these indictments, law enforcement officers followed Sheila Cornelius to Miami. On March 27, 1985, Cornelius met Paschall in room 902 of the Fontainebleau Hotel. The officers checked into room 900, which adjoined room 902 by way of a common door. The officers testified at trial about conversations between Cornelius and Paschall they claim to have overheard through the common door. Prior to trial, Paschall moved to suppress this testimony. Following a hearing, the district court denied the motion.

After the jury had been impanelled, Hessling pled guilty to some of the counts and proceeded to trial on the remaining counts. Paschall moved for a severance, and the district court denied this motion.

Hessling called Dr. Milton Burglass as an expert witness. Burglass testified about the mental and behavioral characteristics of “high-dosage cocaine users.” Al[619]*619though it permitted Burglass’s testimony, the district court rejected Hessling’s proposed instruction in favor of its own instruction about the reliability of witnesses who used cocaine.

Hessling received two consecutive sentences for possession of cocaine with intent to distribute.

Paschall now argues that the district court erred in denying his motion to suppress evidence and abused its discretion in denying his motion for severance. Hess-ling argues that the district court erred in rejecting his proposed instruction and erred in imposing consecutive sentences. Hess-ling also argues that his convictions were not supported by sufficient evidence. We discuss each of these arguments in turn.

SUPPRESSION OF EVIDENCE

Paschall argues for the suppression of testimony of law enforcement officers about conversations between Paschall and Cornelius in room 902 of the Fontainebleau Hotel. The officers, who did not have a search warrant to use artificial listening devices, claim that they were able to hear some conversations in room 902 by placing an ear against the room 900 side of the common door. To refute this claim, Paschall hired an audio expert to determine whether a person could hear a conversation in room 902 through the common door. The expert placed microphones on the room 900 side of the common door and concluded that the human ear could not hear a conversation that took place in the far corner of room 902. From this conclusion, Paschall argues that the law enforcement officers must have used some type of artificial listening device to overhear the conversations. The district court, however, found the expert testimony unpersuasive because there was no evidence that the conversations between Paschall and Cornelius took place exclusively in the far corner of room 902. Consequently, the expert’s testimony does not establish that the officers could not have heard the conversations without the aid of artificial devices.

The officers testified that no artificial devices were used to enhance their ability to hear conversations through the door. As Paschall recognizes, there is no reasonable expectation of privacy in a conversation that can be heard without the assistance of an artificial device. United States v. Agapito, 620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). The district court’s finding that there was no evidence that the conversations took place exclusively in the far corner of room 902 is not clearly erroneous. Consequently, we affirm the district court’s refusal to suppress testimony about conversations overheard through the common door.

SEVERANCE

“[T]he general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts.” United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). Once defendants have been properly joined under Federal Rule of Criminal Procedure 8(b), a “strong showing of prejudice” is required to justify severance. United States v. Reed, 647 F.2d 678, 689 (6th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981). Moreover, a district court’s denial of a motion for severance is reversible only for an abuse of discretion. United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982).

Paschall claims that he was prejudiced by the district court’s refusal to try him separately. Specifically, Paschall argues that he was prejudiced by the testimony of Hessling. After the jury had been selected, Hessling pled guilty to conspiring to possess cocaine with intent to distribute, a claim to which Paschall pled not guilty. In testifying in his own defense against other charges, Hessling admitted participating in the conspiracy.

In general, the testimony of a codefendant who admits his guilt during trial does not warrant a severance. United States v. Wilson, 657 F.2d 755, 765-766 (5th Cir.1981), cert. denied, 455 U.S. 951, [620]*620102 S.Ct. 1456, 71 L.Ed.2d 667 (1982). In United States v. Bavers, 787 F.2d 1022, 1028 (6th Cir.1985), this circuit affirmed a denial of severance where a codefendant in a conspiracy case pled guilty during the trial and testified for the government. We do not believe that Bavers can be distinguished on the grounds that Hessling testified in his own defense rather than as a government witness. Furthermore, Pasc-hall has not made the strong showing of prejudice necessary to justify severance. Had Paschall been tried separately, Hess-ling would have been available as a witness for the prosecution and, therefore, still could have testified about his involvement in the crimes to which he pled guilty. Consequently, we find that the district court did not abuse its discretion in denying Paschall’s motion for severance.

JURY INSTRUCTIONS

Dr. Burglass, an expert in the field of cocaine addiction, testified about the mental and behavioral characteristics of “high-dosage cocaine users.” Burglass defined a “high-dosage cocaine user” as someone who inhales more than three grams of cocaine per week or who smokes any amount or who injects any amount intravenously.

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845 F.2d 617, 1988 U.S. App. LEXIS 5449, 1988 WL 36645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-paul-douglas-hessling-87-3344-and-jackie-d-paschall-ca6-1988.