United States v. Richard Tulk ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1858
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Richard Alan Tulk, *
*
Defendant-Appellant. *
___________
Submitted: February 9, 1999
Filed: March 19, 1999
___________
Before MCMILLIAN, LAY, and MURPHY, Circuit Judges.
___________
MURPHY, Circuit Judge.
Richard Alan Tulk was convicted after a jury trial of conspiracy to distribute
controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846, distributing
controlled substances in violation of 21 U.S.C. § 841(a)(1), and money laundering in
violation of 18 U.S.C. §§ 1956(g)-(h) and 1957. The district court1 sentenced him to
330 months. Tulk appeals from the judgment on the basis of prosecutorial
misconduct and improper jury instructions. We affirm.
1
The Honorable Charles R. Wolle, Chief Judge, United States District Court
for the District of Southern Iowa.
Evidence at trial indicated that Tulk was involved in a methamphetamine
distribution network which also dealt in marijuana and cocaine. His close friend
Douglas Jackson obtained methamphetamine from suppliers in Nevada and
California. Tulk regularly participated in distributing the drugs once they arrived in
Iowa, and he also met Jackson in California at least six times to procure supplies. In
1993 Tulk and Jackson purchased real property in Missouri with part of their drug
proceeds. Alan Cookson, another alleged member of the conspiracy, went to trial
with Tulk.
Drug Enforcement Administration agents learned about Jackson’s dealings
from confidential sources and arrested him in February 1995 and seized
approximately three pounds of methamphetamine from his vehicle. They later
learned that the drugs in his vehicle were part of a seven pound shipment from Las
Vegas. Jackson began to cooperate with law enforcement officials and identified
Tulk as one of the people he regularly supplied. He told them that two pounds of the
Las Vegas shipment were slated for delivery to Tulk at the house of his stepfather,
Burris Penney, who was also one of Tulk’s distributors. Jackson testified at trial and
provided most of the evidence about Tulk’s role in the drug conspiracy, but other
testimony also tied Tulk to some of the transactions.
After a nine day trial, the case against Tulk was submitted to the jury on four
counts: conspiracy to distribute methamphetamine, cocaine, and marijuana;
distributing marijuana; possession with intent to distribute methamphetamine, and
money laundering. A single conspiracy count was submitted for Cookson. The jury
acquitted Cookson and found Tulk not guilty of distribution of marijuana but
convicted him on the other crimes charged. A separate forfeiture hearing was held,
and the court ordered several pieces of real property forfeited as proceeds of illegal
activity pursuant to 21 U.S.C. § 853(a)(1). Tulk was sentenced to 330 months on
each of the drug convictions and 120 months for money laundering, all to run
concurrently.
2
On appeal Tulk seeks dismissal of the indictment for prosecutorial misconduct
before the grand jury or a new trial because of prosecutorial misconduct at trial and
erroneous jury instructions.
Tulk asserts that statements made by the prosecutor before the grand jury
should lead to dismissal of the indictment. He argues that the prosecutor answered
questions of grand jurors and provided information not otherwise made available to
them based on his interviews with Jackson and others. The prosecutor also stated that
there had been money laundering. To obtain dismissal of an indictment, a defendant
must generally show both flagrant misconduct and substantial prejudice. See United
States v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992). Since Tulk was later convicted
by a petit jury which knew nothing about any possible misconduct before the grand
jury, Tulk cannot show actual prejudice. Any injury sustained in the charging process
is cured by a subsequent finding of guilt beyond a reasonable doubt. See United
States v. Mechanik, 475 U.S. 66, 73 (1986); United States v. McKie, 831 F.2d 819,
821-22 (8th Cir. 1987).2
Tulk also argues that he is entitled to reversal of his conviction because of
prosecutorial misconduct during trial. He complains about both the prosecutor’s
closing argument as well as some of the things he did during the evidentiary portion
of the trial.
Tulk raises many points now in objecting to the prosecutor’s closing. Among
his complaints are references the prosecutor made to the “drug problem” and related
violence. The prosecutor argued that Tulk was responsible for sending “large
quantities of methamphetamine down the chain into our community” and that Tulk
2
For similar reasons, Tulk is not entitled to dismissal because the prosecutor
defended himself against the claim that he behaved improperly before the grand
jury. Moreover, Tulk did not preserve this point in the district court by moving to
strike the prosecutor’s Resistance to Motion to Dismiss or requesting that the
prosecutor be disqualified.
3
had not “realized the wrong, grievous wrong that these drugs are doing to our
community.” He suggested that the jurors were called on “to look at the facts and
arrive at the conclusion that there was no reasonable doubt that Mr. Tulk is guilty.”
Tulk argues that such comments were calculated to inflame passion and generalize
the issues before the jury.3
A major problem with Tulk’s argument about the prosecutor’s closing
argument and rebuttal is that he did not at the time raise any objection at all. Neither
did he request any intervention by the district court or any limiting or curative
instructions. Rather, he sat back and allowed the prosecutor to continue without
interruption. If Tulk had objected, the district court could have exercised its
discretion to limit the remarks or to tell the jury to disregard them. “A party may not
stand idly by, watching the proceedings and allowing the Court to commit error of
which he subsequently complains.” United States v. Hoelscher, 914 F.2d 1527, 1543
(8th Cir. 1990) (quoting United States v. Nance, 502 F.2d 615, 621 (8th Cir. 1974)
(citation omitted)).
Because of the failure to object, we review only for plain error. See Fed. R.
Crim. P. 52(b); Johnson v. United States, 117 S. Ct. 1544, 1549 (1997); United States
v. Olano, 507 U.S. 725, 733-34 (1993); United States v. Gibson, 123 F.3d 1121, 1123
(8th Cir. 1997). Tulk must therefore show that the “error was plain, meaning clear
or obvious; and [that] the error affected [his] substantial rights, which requires a
showing that the error was prejudicial and affected the trial’s outcome.” United
States v. Johnson, 12 F.3d 827, 835 (8th Cir. 1994). Even clear errors will only
matter if a miscarriage of justice would otherwise result that might seriously affect
the fairness, integrity or public reputation of the judicial proceedings. See Olano, 507
3
Appellant argues this situation is similar to that leading to reversal of one
defendant’s conviction in United States v. Millard, 139 F.3d 1200 (8th Cir. 1998),
involving the same prosecutor. The reversal there was because there was
insufficient evidence of Mrs. Millard’s involvement. Id. at 1208. The situation
here is distinguishable.
4
U.S. at 735 (noting discretionary language of plain error rule); United States v.
Millard, 139 F.3d 1200, 1208 (8th Cir. 1998).
A prosecutor should not urge a jury to convict for reasons other than the
evidence; arguments intended to inflame juror emotions or implying that the jury’s
decision could help solve a social problem are inappropriate. See United States v.
Johnson, 968 F.2d 768, 770-71 (8th Cir. 1992). See also United States v. Solivan,
937 F.2d 1146, 1154-55 (6th Cir. 1991); United States v. Monaghan, 741 F.2d 1434,
1441 (D.C. Cir. 1984). Reversal for prosecutorial misconduct is not required unless
it prejudicially affected an individual’s substantial rights and deprived him of a fair
trial. See United States v. Benitez-Meraz, 161 F.3d 1163, 1166 (8th Cir. 1998);
United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985). Factors to consider
in assessing prejudice include the cumulative effect of any misconduct, the strength
of the properly admitted evidence, and any curative actions taken by the trial court.
See Benitez-Meraz, 161 F.3d at 1166.
The prosecutor’s argument in this case included appropriate references to the
jury to “look at the facts” and apply the reasonable doubt standard in making its
decisions, but to the extent it suggested the jury react to factors outside of the
evidence it was inappropriate. Here, though, Tulk has not shown he was prejudiced.
Much incriminating evidence was admitted against Tulk over the course of the nine
day trial. The fact that the jury acquitted co-defendant Cookson and Tulk on one of
the drug counts shows that it was not swayed by passion and was able to analyze the
evidence presented against each defendant on each count.
5
Tulk also asserts that the prosecutor improperly bolstered the credibility of
government witnesses by evidence about plea agreements.4 Evidence showing the
existence of a plea agreement, its terms, and a witness’ understanding of the
agreement is not improper, see Benitez-Meraz, 161 F.3d at 1167-68; United States v.
Santana, 150 F.3d 860, 863 (8th Cir. 1998), and the prosecutor’s questioning did not
suggest that the government had independently verified the testimony or that
acceptance of the agreement implied that the proposed testimony was accurate. See
United States v. Magee, 19 F.3d 417, 421 (8th Cir. 1994). Tulk’s argument that the
government violated 18 U.S.C. § 201(c)(2) by its agreements is also without merit.
See United States v. Johnson, 1999 WL 55234, at *5 (8th Cir. Feb. 8, 1999).
Tulk also complains that the prosecutor introduced a prior misdemeanor
conviction for marijuana possession in support of the marijuana distribution and
money laundering counts without giving proper notice under Fed. R. Evid. 404(b).
Not only did defense counsel fail to object to the admission of this evidence, but he
in fact helped prepare the exhibit supporting it and stipulated to its admission. He
also used the prior conviction in his opening statement. We need not conduct plain
error review here because Tulk deliberately waived his right to object. See Olano,
507 U.S. at 733 (waiver extinguishes error under 52(b)); United States v. Gutierrez,
130 F.3d 330, 332 (8th Cir. 1997).5
4
Tulk argues that the district court erred by admitting an unredacted plea
agreement in which a witness had stipulated to involvement with Jackson and
Tulk in possessing and distributing methamphetamine. The court instructed the
jury, however, that it could only consider the evidence of the plea for the purpose
of judging that witness’ credibility, not as evidence of a defendant’s guilt.
5
We have also reviewed other evidentiary complaints raised by Tulk and
find they do not merit relief, either singly or in combination.
6
Tulk also claims that the district court committed reversible error in its
instructions to the jury, but after reviewing the record we conclude that he has not
shown that the court erred or abused its discretion in instructing the jury.
Tulk complains the court failed to instruct the jury that the testimony of
witnesses testifying pursuant to plea bargains should be given “greater care and
special caution.” The court instead told the jury that the testimony of such witnesses
“should be weighed with care,” and that “[w]hether or not such a witness’s testimony
may have been influenced by the individual’s desire to please the government or to
strike a good bargain with the government about the witness’s own situation is for
you to determine.” Tulk did not timely object but now argues that the district court
should have issued a “greater care and special caution” instruction sua sponte. A
defendant “is not entitled to a particularly worded instruction where the instructions
given . . . correctly state the applicable law and adequately and fairly cover the
substance of the requested instruction.” United States v. Parker, 32 F.3d 395, 400
(8th Cir. 1994). Accord United States v. Reda, 765 F.2d 715, 719 (8th Cir. 1985).
Furthermore, a defendant is not entitled to an instruction explicitly saying that the
testimony of immunized witnesses should be considered with “greater care and
special caution” when there has been corroboration of witness testimony. See United
States v. Gibson, 105 F.3d 1229, 1233 (8th Cir. 1997). Such corroborating evidence
may be circumstantial and need not be of great weight, taken alone. See United
States v. Drews, 877 F.2d 10, 13 (8th Cir. 1989).
Tulk also asserts that the district court abused its discretion and violated his
right to present a theory of defense by refusing to give an instruction concerning a
witness who had admitted giving false testimony in his own trial. The record does not
indicate that Tulk presented this request to the trial court as his theory of defense, and
a specific instruction on testimony by a perjurer is not required where there are
general instructions on witness credibility and impeachment and the defense had the
opportunity to point out and argue the witness’ prior false testimony. See United
7
States v. Wong, 886 F.2d 252, 257 (9th Cir. 1989); United States v. Burke, 495 F.2d
1226, 1235 (5th Cir. 1974).
The evidence at trial showed that Tulk was involved in a sophisticated drug
distribution conspiracy, and he has not shown that he is entitled to dismissal of his
indictment or reversible error in his trial. We therefore affirm the judgment of the
district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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