United States v. Peter Blake, AKA David Clark and Winston Wilson

941 F.2d 334
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 10, 1991
Docket90-1829
StatusPublished
Cited by42 cases

This text of 941 F.2d 334 (United States v. Peter Blake, AKA David Clark and Winston Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Peter Blake, AKA David Clark and Winston Wilson, 941 F.2d 334 (5th Cir. 1991).

Opinions

CLARK, Chief Judge:

Peter Blake was convicted and sentenced under a seven-count indictment charging various weapons and narcotics offenses. He raises challenges to the indictment, to portions of the evidence admitted against him at trial, and to the sufficiency of the evidence on several counts. We affirm.

I

In March 1989, Blake purchased two semiautomatic pistols from a dealer at a trade show in Dallas. He completed the transaction forms using the alias of Winston Wilson.

[337]*337In early April 1990, Dallas police officers observed Blake during a “reverse” drug transaction. An officer conducting undercover negotiations offered to sell two kilos of cocaine to Blake and another individual. Blake stood close by and observed the officer exchange the cocaine for $52,000. An arrest signal was given, and Blake’s companion was apprehended. Blake escaped in a Nissan 300ZX. While not charged in the indictment, this drug sale was described to the jury in the government’s rebuttal case.

Blake was arrested on April 12, 1990, after coming under police surveillance based on a warrant for his arrest regarding the firearms purchase under the alias of Winston Wilson. This surveillance culminated in a car chase, which ended in a wreck of the Nissan 300ZX in which Blake was a passenger.

At trial the government elicited testimony that, after his arrest, Blake spoke freely while in custody to law enforcement officers, confessing to a variety of criminal activities which included the conduct subsequently charged in the indictment. Blake denied these statements at trial, along with any other knowledge of criminal trafficking in narcotics. Blake did sign consents to search the wrecked car and two apartments. Officers testified that he told them where the key to one of the apartments could be found. They also testified that he described a hiding place under a kitchen baseboard where he had stashed crack cocaine, a gun, and money, and informed them of a cache of weapons and ammunition in a pillowcase in the bedroom.

The officers found an automatic subma-chine gun, 161 grams of crack cocaine, and $6,000 in cash hidden behind the baseboard. A pillowcase in the bedroom contained four 9mm pistols and ammunition. They also discovered razors, plastic baggies, and a set of scales. In the car, the officers found two loaded guns, one in a bag under the passenger floorboard and the other in the driver’s purse.

Blake was indicted on seven counts. Count 1 charged use of false identification in the acquisition of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(1). Counts 2 and 7 charged possession of firearms by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Count 2 concerned Blake’s purchase in March 1989 of the two semiautomatic pistols. Count 7 concerned the submachine gun and four 9mm pistols seized in the apartment after his arrest. Count 3 charged possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count 4 charged unlawfully receiving and possessing an unregistered firearm — the subma-chine gun hidden under the baseboard — in violation of 26 U.S.C. §§ 5861(d) and 5871. Counts 5 and 6 charged use of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Count 5 concerned the submachine gun found with the cocaine hidden under the baseboard. Count 6 concerned the four 9mm pistols found in the pillowcase in the bedroom.

A jury convicted him on all counts. The trial court imposed a total term of imprisonment of 50 years and 8 months. The district court also imposed a supervised release term of five years and made a special assessment of $350. Blake filed this timely appeal.

II

Blake argues that the indictment improperly joined two groups of offenses. He also raises several evidentiary issues from the district court’s conduct of his trial. Finally, he challenges the sufficiency of the evidence against him on several of the counts.

A. Joinder of Offenses

Blake argues that the indictment charged two groups of offenses. Counts 1 and 2 concern his unlawful possession and acquisition of firearms in March 1989. The remaining counts all concern the events surrounding his arrest on April 12, 1990. The district court denied Blake’s motion for severance of these two groups of offenses. Misjoinder is a question of law we review de novo. United States v. Park, 531 F.2d 754, 760 (5th Cir.1976).

[338]*338The district court did not err. Rule 8 of the Federal Rules of Criminal Procedure is broadly construed in favor of initial joinder. United States v. Scott, 659 F.2d 585, 589 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 105 (1982). Rule 8(a) allows joinder of offenses if the offenses charged “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). Both groupings of offenses contain the identical charge of unlawful possession of firearms by an illegal alien. Joinder was permissible under Rule 8(a). Blake does not allege any prejudice— much less substantial prejudice—flowing from the district court’s discretionary decision denying severance of these counts. See Scott, 659 F.2d at 589. Accordingly, the district court’s ruling allowing these counts to proceed to trial under a single indictment was not error.

B. Evidentiary Issues

1. Extrinsic evidence of a prior act of misconduct

In its case-in-chief the government elicited testimony from three Dallas police officers that Blake had admitted involvement in the crimes charged and in other criminal activity. On direct and cross-examination, Blake denied making any incriminating statements to the police officers. On rebuttal, the government called a detective of the Dallas Police Department to testify, over Blake’s objection, about Blake’s presence at the “reverse” purchase operation detailed in the facts above.

Blake contends this was improper impeachment, citing Rule 608(b) of the

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