United States v. Kenneth Koskela ( 1996 )

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No. 95-2829
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Kenneth Howard Koskela, *
*
Appellant. *
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Submitted: March 12, 1996
Filed: June 10, 1996
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Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Kenneth Howard Koskela appeals his conviction for conspiracy, theft
of firearms, and being a felon in possession of a firearm in violation of
18 U.S.C. §§ 371, 922, and 924. We affirm.
I.
In February 1994, Floyd Shulze, who was free on bond from previous
federal firearms violations, conceived a plan to burglarize the Dakota
Lawman Supply Company (Dakota Lawman), a federally licensed firearms dealer
in Bismarck, North Dakota. Shulze proposed this scheme to Koskela and
Susan Dokken, Shulze's girlfriend, as a means to replenish their exhausted
cocaine supply. Both Shulze and Koskela had prior burglary convictions.
At 10:24 p.m., on February 24, 1994, a 911 operator received an
emergency call from a man who would not give his name. The caller falsely
reported a car accident east of Bismarck. Shortly
after that call, Dakota Lawman, located on the west side of Bismarck, was
burglarized and sixty handguns were stolen.
Shulze and Koskela were tried together on a ten-count indictment.
Shulze was charged with all ten counts, Koskela with four -- theft of
firearms, conspiracy, being a felon in possession of a firearm, and being
a felon in possession of a semi-automatic weapon. In accordance with her
plea agreement, Dokken testified to the details of the burglary. She
stated that on the night of the burglary Shulze stole a white pickup truck
while she and Koskela waited in Shulze's van. Koskela and Shulze then
drove the pickup to Dakota Lawman while Dokken waited in the van at a
rendezvous point outside Bismarck. Approximately fifteen minutes later,
Shulze and Koskela arrived. Shulze drove the stolen pickup into a snow
bank and then loaded four to five duffle bags from the pickup into the van.
The group then returned to their hotel, where they examined the stolen
firearms.
Dokken further testified that she, Shulze, and Koskela next rented
a Pontiac Grand Am and drove to Colorado, where Shulze met with a third
party while Koskela and Dokken waited in a bar. When Dokken and Koskela
returned to their hotel room, they noticed that the duffle bags were gone.
Shulze explained that he had traded the guns for six or seven ounces of
cocaine. Shulze gave Dokken and Koskela a portion of the cocaine for their
part in the burglary. The three then returned to Fargo, North Dakota,
where Koskela split from the group. Two firearms were brought back from
Colorado; Koskela kept one and Shulze the other.
Dokken's testimony was corroborated by several witnesses, including
Koskela's uncle, who testified that the voice on the 911 call sounded like
Koskela's, and Koskela's friend, who testified that after the burglary he
saw a gun in a bag of clothes belonging to Koskela and that he and Koskela
had had a conversation in which Koskela admitted involvement in the
burglary.
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As the jurors were retiring to deliberate, Shulze picked up a water
pitcher from the defense table, yelled "you'd better [expletive] convict
us both," and threw the pitcher at the jury, striking one juror on the arm.
The prosecutor requested that the court instruct the jury to disregard the
incident; Koskela's counsel moved for a mistrial.
Immediately following this incident, and in the absence of counsel
and the defendants, the district judge entered the jury room and instructed
the jury as follows:
Please, try to put that out of your mind. I am concerned that
you might be so upset at what was done and said that you will
prejudice the other defendant in this action. And, if
possible, please keep in mind that this is a high-tension
process for a defendant who has had to sit and listen to
counsel describe and listen to me lay out rules of law, and I
am -- I'm almost begging you to put this out of your mind so
that the incident does not taint the result and cause a problem
to me in the future. So, please, understand the tension that
people are under and possibly also understand that sometimes
people do things for a purpose that we don't always appreciate.
The jury convicted Koskela on the charges of theft of firearms,
conspiracy, and being a felon in possession of a firearm. It acquitted him
on the charge of being a felon in possession of a semi-automatic weapon.
The district court denied Koskela's motion for a new trial based on
Shulze's outburst and the district court's instruction to the jury in
Koskela's absence.
II.
The decision whether to grant a mistrial is committed to the sound
discretion of the district court, and we will reverse only if we find an
abuse of discretion resulting in clear prejudice. United States v. Miller,
995 F.2d 865, 866 (8th Cir.), cert. denied, 114 S. Ct. 618 (1993).
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Koskela's claims of prejudice are two-fold. First he argues that he
was prejudiced by Shulze's statement and conduct. As a general rule, a
cautionary instruction advising the jury not to allow a disruptive co-
defendant's behavior to impact the decision regarding other defendants
affords sufficient protection against undue prejudice. See United States
v. Brown, 605 F.2d 389, 392 (8th Cir. 1979), cert. denied, 444 U.S. 972
(1979); United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978)
(cautionary instruction was sufficient to prevent any prejudice caused by
co-defendant's interjections throughout trial that testimony was "a
[expletive] lie" and that proceedings were "kangaroo court"); United States
v. Marshall, 458 F.2d 446, 448-452 (2d Cir. 1972) (cautionary instruction
sufficient to cure prejudice when defendant hurled a water pitcher at the
prosecutor, threw a chair toward the jury, cut his wrists with a razor
blade, and directed obscenities and accusations toward the court,
witnesses, and the prosecutor). We must assume that the jury followed such
an instruction. See United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.
1995) (jury is presumed to have followed judge's instructions). In this
case, the district court's instruction cautioning the jury to disregard the
incident was adequate to mitigate any potential prejudice. Moreover, the
jury's acquittal of Koskela on one count indicates that the incident was
not so overwhelming so as to render the jury incapable of properly
considering each charge against each defendant. See United States v.
Caldwell, ___ F.3d ___, ___ (8th Cir. 1996), No. 95-3155, slip op. at 4
(May 3, 1996).
Koskela's next contention concerns the method rather than the
substance of the district court's instruction. Specifically, he argues
that the district court's ex parte communication with the jury was
prejudicial error. Indeed, communications between judge and jury in the
absence of the defendant and his counsel are improper and presumptively
prejudicial. This presumption may be overcome, however, by a clear
indication of an absence of prejudice. United States v. Dockter, 58 F.3d
1284, 1287 (8th Cir.
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1995), cert. denied, 116 S. Ct. 932 (1996). Without question, the district
court's cautionary instruction in this case should have been given in the
presence of the defendants, their attorneys, and the prosecutor. We have
frequently held that it is error to instruct the jury outside the presence
of the defendant and counsel. Thus, the district court erred in so doing.
The nature of the instruction was not prejudicial, however. Indeed, the
instruction's purpose and presumed effect were to prevent any potential
prejudice. Cf. Dockter, 58 F.3d at 1288 (finding no prejudice in court's
ex parte instruction to jury concerning the meaning of "knowingly," when
instruction provided accurate description of the law). We conclude,
therefore, that the error was not prejudicial but was harmless, and that
the district court did not err in denying the motion for new trial.
III.
Koskela next claims that the district court erred in refusing to
bifurcate the felon-in-possession charge. Specifically, Koskela urged the
court to exclude evidence of his prior criminal record until the jury first
found that he had possessed a firearm. We reject this argument. See
United States v. Dean, 76 F.3d 329, 332 (10th Cir. 1996) (holding that
defendant is not entitled to bifurcation of felon-in-possession charge);
United States v. Jacobs, 44 F.3d 1219, 1222 (3d Cir.) (same), cert. denied,
115 S. Ct. 1835 (1995); United States v. Birdsong, 982 F.2d 481, 482 (11th
Cir.) (same), cert. denied, 508 U.S. 980 (1993); see also United States v.
Milton, 52 F.3d 78, 80-81 (4th Cir.) (holding that bifurcation of felon-in-
possession charge is impermissible), cert. denied, 116 S. Ct. 222 (1995);
United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993) (same); United
States v. Collamore, 868 F.2d 24, 28 (1st Cir. 1989) (same).
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IV.
We next address Koskela's claim that the district court erred in
denying his motion for severance of his trial from Shulze's. To obtain a
reversal, Koskela must show that the district court abused its discretion
in denying the severance motion and that the refusal resulted in severe or
compelling prejudice. United States v. Rimell, 21 F.3d 281, 289 (8th
Cir.), cert. denied, 115 S. Ct. 453 (1994). Severe prejudice occurs when
a defendant is deprived of an appreciable chance for an acquittal, a chance
that he would have had in a severed trial. United States v. Blum, 65 F.3d
1436, 1443 (8th Cir. 1995), cert. denied, 116 S. Ct. 824 (1996).
Koskela points to the disparity in the evidence, arguing that the far
more damaging evidence against Shulze spilled over to taint the jury's
consideration of Koskela's guilt. We have held that conspiracy defendants
generally should be tried together; a simple disparity in the weight of the
evidence against two defendants does not entitle one to severance. United
States v. Pecina, 956 F.2d 186, 188 (8th Cir. 1992). Rather, to establish
prejudice Koskela must prove either that his defense was irreconcilable
with Shulze's or that the jury was incapable of compartmentalizing the
evidence as it related to the two defendants. United States v. Gutberlet,
939 F.2d 643, 645 (8th Cir. 1991).
We find no prejudice in this case. Koskela's defense that if he
participated at all it was as a drug-addicted pawn, blindly following
Shulze's directions in order to obtain more drugs, is not irreconcilable
with Shulze's apparent defense of actual innocence. In fact, Shulze's
attorney attempted to cast doubt on the defendants' guilt by offering a
theory that Dakota Lawman employees were responsible for the firearms
theft. If anything, Shulze's defense bolstered Koskela's claim of
innocence. Koskela has also failed to convince us that the jury was
incapable of compartmentalizing the evidence. As we have stated
previously,
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Koskela's acquittal on one count demonstrates that the overwhelming
evidence against Shulze did not prevent the jury from carefully considering
each claim against each defendant. See United States v. Long, 977 F.2d
1264, 1274 (8th Cir. 1992) (acquittal on one count demonstrates jury's
ability to compartmentalize evidence). Moreover, as we discuss below, the
record reveals ample evidence supporting Koskela's conviction on each
count. Thus, the district court did not abuse its discretion in refusing
to grant Koskela's severance motion.
V.
Koskela argues that the evidence is insufficient to sustain his
conviction. On appeal, we review the evidence in the light most favorable
to the government, giving it the benefit of all reasonable inferences that
may be drawn from the evidence. See United States v. Quintanilla, 25 F.3d
694, 699 (8th Cir.), cert. denied, 115 S. Ct. 457 (1994).
After reviewing the record in light of this standard, we find more
than sufficient evidence to support Koskela's conviction on each count.
Dokken's testimony tied Koskela to each step of the conspiracy. Although
she did not see Koskela break into Dakota Lawman, her testimony that
Koskela was present when the plan was discussed, that he accompanied Shulze
to Dakota Lawman on the night of the burglary, that he arrived shortly
thereafter with a truck full of stolen firearms, and that he was
compensated with cocaine for his role in the burglary was sufficient to
allow the jury to infer that Koskela conspired to break into Dakota Lawman
and steal firearms, and that, at the very least, he aided and abetted the
theft. See 18 U.S.C. §§ 2 (aider and abettor punishable as principal).
Moreover, this is not a case of uncorroborated co-defendant testimony. In
addition to the testimony of Koskela's friend and Koskela's uncle, the
details of Dokken's testimony were supported by abundant evidence. For
example, a motel employee
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testified that Koskela registered at the motel identified by Dokken; a
friend of Shulze's testified to having rented a Grand Am for Shulze; and
a stolen white pickup truck was discovered as Dokken had described.
Finally, although no direct evidence was offered that Koskela possessed any
of the sixty stolen firearms, sufficient circumstantial evidence supported
a finding of constructive or joint possession, if not actual possession.
See United States v. Boykin, 986 F.2d 270, 274 (8th Cir.) (conviction under
§ 922(g) can be based on constructive or joint possession), cert. denied,
114 S. Ct. 241 (1993).
VI.
Koskela's final argument that his sentence was improperly enhanced
as an armed career offender pursuant to 18 U.S.C. § 924(e) is foreclosed
by Dockter, 58 F.3d at 1289.
Koskela's conviction and sentence are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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