United States v. Crawford , 237 F.3d 490 ( 2000 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
__________________________________________
No. 98-20294
_________________________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JOE NATHAN CRAWFORD; FRED LANDERS HERNDON, JR; MARVIN GIBBS, JR;
TERALD EUGENE THOMAS; MARCUS DEWAYNE MCGEE; ALTON JEROME LEWIS;
AND BOBBY JOE BURTON, JR.
Defendants-Appellants.
__________________________________________
Appeals from the United States District Court
for the Southern District of Texas
(H-97-CR-36-9)
__________________________________________
March 8, 2000
Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
I. PROCEDURAL AND FACTUAL BACKGROUND
Lewis, Crawford, McGee, Thomas, Gibbs, Herndon and Burton were charged, along with
24 others, by indictment in the Southern District of Texas with conspiracy to manufacture, to
possess with intent to distribute, and to distribute crack cocaine. Additionally, all but Lewis were
charged with possession with intent to distribute. Many of the possession with intent to distribute
charges were dismissed on the motion of the Government. All except Crawford were convicted
of the conspiracy count. All but Lewis were convicted of at least one count of possession with
intent to distribute. In addition to fines and terms of supervised release, each Appellant received a
sentence for the following months of confinement: Lewis (410 months), Burton (life
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
imprisonment), Herndon (240 months), McGee (121 months), Thomas (122 months), Gibbs (120
months), and Crawford (100 months). On appeal, each of the named appellants challenges his
conviction and sentence on various grounds.
In approximately September of 1995, the FBI learned about a crack cocaine trafficking
organization, the investigation of which lead to the arrest of the Appellants in March of 1997.
Several techniques were used to investigate the organization, including undercover purchases of
crack cocaine, camera surveillance, wiretapping, and a paid confidential informant named Calvin
Workman. The execution of search warrants at Burton’s and Lewis’ premises revealed large
sums of cash, digital scales and invoices. However, the critical evidence of the drug conspiracy
arose from the undercover drug transactions and the testimony of conspiracy participants who
testified against their co-conspirators. According to this evidence, the focal point of the
organization was the trio of Burton, Lewis, and Christopher Cooks.1 Cooks and Burton traveled
from Bryan, Texas to Houston to purchase crack cocaine from Lewis. Cooks made 100 such
trips and was accompanied by Burton on 10-20 of them. At times, Lewis would give them the
crack cocaine in batteries that they put in their car. Other times, the crack would be hidden inside
secret compartments in vehicles provided by Lewis. The crack cocaine was then taken back to
the Bryan area for distribution.
Further testimony by conspiracy participants revealed the involvements of the other named
Appellants. Lorenzo Shirley testified about making several trips with Cooks from Bryan to
Houston to purchase cocaine from Lewis. According to Shirley, he sold cocaine to Crawford,
who in turn sold the cocaine to others. A man named Timothy Perry testified that Burton
“fronted” him crack cocaine to sell so he could pay Burton $600. Perry’s customers included
Herndon and Gibbs. Reginald Caldwell, a crack addict employed by Burton and Lewis for
cocaine related errands, stated that he bought cocaine from Herndon and McGee on several
occasions. A man named Glover fronted Gibbs cocaine on at least one occasion. Workman, the
1
Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case.
2
confidential informant, bought cocaine from Burton, McGee, Crawford, Herndon, and Gibbs.
Finally, the testimony of co-conspirators revealed that Thomas had been involved in several crack
cocaine transactions involving members of the conspiracy.
3
II. DISCUSSION
1. LEWIS
Alton Jerome Lewis was convicted of conspiracy to manufacture, possess with intent to
distribute, and to distribute cocaine. The Government alleges that he, along with Burton and
Cooks, was one of the key figures in the conspiracy. Specifically, it is alleged that Lewis was the
Houston supplier of the crack cocaine for the distribution ring in Bryan-College Station, Texas.
Now Lewis challenges his conviction on appeal.
a. Brady violation.
First, Lewis contends that the district court abused its discretion in denying Lewis’ motion
for new trial on the ground the government allegedly withheld exculpatory evidence and presented
perjured testimony at trial. Specifically, Lewis contends that the Government’s failure to turn
over the lease agreement for a Rolls Royce constituted a Brady violation. He also contends the
government suborned perjury when it argued and presented evidence that he owned a Rolls Royce
when, in fact, the government was in possession of evidence that the vehicle was leased by his
sister.
To establish such a claim under Brady v. Maryland, 373 U.S. 83 (1963), Lewis must show
that (1) the prosecution suppressed evidence, (2) the evidence was favorable to Lewis, and (3) the
evidence was material. See Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). Suppression of
material, favorable evidence results in a Constitutional error if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have been
different. Kyles v. Whitley, 115 S. Ct. 1555, 1558 (1995); United States v. Bagley, 473 U.S. 667,
682 (1985).
Lewis argues that because he was never found to be in possession of any crack cocaine,
the notion of “unexplained wealth,” particularly his alleged ownership of a 1989 Rolls Royce, was
a crucial element of the case against him. According to Lewis, the prosecution repeatedly elicited
testimony to show that Lewis owned a 1989 Rolls Royce even though the prosecution possessed
4
undisclosed documents which showed the car was leased by Lewis’ sister and never owned by
Lewis. Lewis further contends that although such documents were requested prior to trial, they
were not turned over until the hearing on the motion for new trial. According to Lewis, the lease
documents are exculpatory, material and favorable as they would have countered the allegation of
“unexplained wealth” by showing his sister leased the car for the less-than-stunning sum of $600 a
month and would have prevented the prosecutor from impeaching another defense witness (the
alleged co-lessor of the car) with her failure to produce the lease documents. Thus, Lewis
contends the prosecutor failed to comply with his duty to disclose such exculpatory evidence and
that this non-disclosure prejudiced his defense. The district court, however, denied the motion for
a new trial, finding in relevant part that Lewis knew of the alleged documents prior to or during
trial.
After reviewing the parties’ briefs and the record, we find that there was no Brady
violation. As Agent Johnson explained at the hearing on the motion for new trial, it was not until
the second day of the trial, when Lewis’ counsel first requested copies of the lease documents,
that the agents learned they had been erroneous in their belief that the leasing documents had been
turned over to the defense. At that time, Johnson made sure that a copy of a “302" was shown to
Lewis’ counsel. The 302 was an FBI report indicating that the Rolls Royce had been rented by a
woman named Andrea Celestine. Apparently, Lewis’ counsel decided not to keep a copy of the
document. Johnson further testified that he told Lewis’ counsel where a copy of the lease would
be, if the Government had it, and who to call to acquire it. Based on the information known to
Lewis, he should have been aware of the lease documents and could have easily acquired them.
See, e.g., United States v. Dixon, 132 F.2d 192, 199 (5th Cir. 1997) (“Brady does not obligate
the government to produce for [a defendant] evidence or information already known to him, or
that he could have obtained from other sources by exercising diligence.”) Thus, since there is no
Brady violation, the district court did not abuse its discretion in denying a new trial.
Next, Lewis argues he was denied due process when the prosecution introduced testimony
5
to the effect that Lewis owned the Rolls Royce. Lewis argues that the prosecution knew or should
have known such testimony was perjured because the government had discovered the afore-
mentioned documents showing the car was leased in the name of someone other than Lewis.
However, Lewis fails to prove the prosecutor knew or believed that the testimony was false, thus
this claim fails. See Westley v Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (holding that appellant
must show that (1) the testimony was false, (2) the testimony was material to the verdict, and (3)
the prosecutor knew or believed the testimony to be false). The officers’ testimony that there was
a lease was equivocal, and therefore the prosecutor could not tell if such testimony was clearly
false. Moreover, the record contains significant testimony that Lewis owned the car. Cooks
testified that Lewis told him he owned the Rolls Royce. A person named Mitchell, who apparently
had a romantic relationship with Lewis, testified that Lewis told her it was his car, that he put it
under someone else’s name in order to avoid forfeiture, that if the car was taken he had an
arrangement with the car lot such that “they would give it back,” and that he paid $50,000 cash for
the car. Given this testimony, it is not clearly perjury to testify that it was Lewis’ car. The lease
documents may have been part of a ruse to ensure the car would eventually be returned to Lewis in
case of forfeiture resulting from a drug conviction. Thus, the prosecutor did not suborn perjury
and Lewis’ Due Process challenge is hereby rejected.
b. Ineffective Assistance of Counsel
Next, Lewis contends that if his counsel should have subpoenaed the lease documents for
the Rolls Royce, it was ineffective assistance of counsel for him not to do so. Lewis must
demonstrate both that his counsel’s performance was deficient and that such deficiency was so
prejudicial as to deprive him of a fair trial whose result is reliable. Strickland v. Washington, 466
U.S. 668, 687 (1984). However, judicial scrutiny of counsel’s performance must be highly
deferential. Id. at 689.
Lewis fails to demonstrate ineffective assistance of counsel. He argues that “If counsel
knew of a document which so undermined a large part of the prosecution, it would be ineffective
6
assistance of counsel not to obtain it .” However, the evidence against Lewis is so strong that
there is no reasonable probability that production of the lease would have affected the outcome of
Lewis’ trial. The evidence against Lewis included the testimony of Cooks, Shirley, Perry,
Caldwell, Glover, and Mitchell, all of which demonstrated that Lewis was responsible for
supplying crack cocaine for distribution. Moreover, Lewis’ trial counsel could have reasonably
concluded that production of the lease document would not have undermined the prosecution’s
case against Lewis. The afore-mentioned “302" and the lease documents were in part
incriminating because they demonstrated that relatives and associates of Lewis’ with modest
incomes paid $600 for another months rental of the Rolls Royce. Additionally, these documents
are incriminating under the Government’s theory that Lewis really “owned” the car but put it in
another person’s name to avoid forfeiture. It is not ineffective assistance of counsel to fail to
obtain and present information that could incriminate Lewis, especially where such information
was arguably cumulative of Ms. McCullogh’s testimony that the car was leased by her and Lewis’
sister. Thus, Lewis’ ineffective assistance of counsel claim is denied.
In conclusion, Lewis’ conviction is affirmed. Lewis did not prove ineffective assistance of
counsel and the Government did not withhold exculpatory evidence regarding the Rolls Royce.
2. Crawford
a. Denial of severance motion.
Crawford was acquitted of the conspiracy charge but convicted of a count of possession
with intent to distribute as well as counts of distribution of crack cocaine. Crawford contends that
the district court abused its discretion in denying Crawford’s severance motion. See United States
v. Posada-Rios, 158 F.3d 832, 862 (5th Cir. 1998) (stating that denial of a motion to sever is
reviewed for abuse of discretion). According to Crawford, his defense was prejudiced by joint trial
with co-defendants with a higher level of culpability. For the reasons that follow, we find that no
error or prejudice resulted from denial of severance and affirm Crawford’s conviction.
First, the initial joinder of Crawford was appropriate under Fed.R.Crim.P.8(b) because he
7
was charged with the same conspiracy. The general rule is that persons indicted together should
be tried together, especially in conspiracy cases. Posada-Rios, 158 F.3d at 863. Initial joinder is
proper if co-defendants are alleged to have participated in the same act or transactions constituting
the offense. There is evidence that Crawford participated in transactions constituting the charges
against his co-defendants. There was testimony that co-defendant Shirley sold wholesale quantities
of cocaine to Crawford about twice a week, that co-defendant Glover “fronted” rocks of cocainee
to Crawford on credit, and that the confidential informant purchased cocaine from Crawford.
During a search supported by a warrant, the police recovered 49 grams of cocaine from a bedroom
in which Crawford was sleeping. The name of a co-defendant was found on a caller ID in that
bedroom. The initial joinder of Crawford was appropriate given his involvement in drug
transactions constituting the charges against his co-defendants.
Once defendants are properly joined under Rule 8(b), a district court should grant
severance only if there is a serious risk that joint trial would compromise a specific right of one of
the defendants or prevent the jury from making a reliable judgment about guilt. United States v.
Broussard, 80 F.3d 1025, 137 (5th Cir. 1996). A defendant is not entitled to severance just
because it would increase his chance of acquittal or because evidence is introduced that is
admissible against certain defendants. Zafiro v. United States, 506 U.S. 534, 540 (1993); United
States v. Moser, 123 F.3d 813, 829 (5th Cir. 1997).
Crawford argues that the court should have granted him a severance to avoid the “spillover
effect” occurring when the jury heard testimony of a major drug ring while Crawford was only
involved in relatively minor drug sales of small quantities of cocaine. In particular, Crawford
contends that while the evidence was clear that his co-defendants were major actors in a
conspiracy to manufacture, transport, and deliver large quantities of crack between Houston and
Bryan, Texas, there was no evidence that Crawford was involved with the transportation of crack
8
between the two cities or that he was involved with the two defendants.2
However, even where defendants have markedly different degrees of culpability, severance
is not always required if less drastic measures, such as limiting instructions will suffice to cure the
prejudice. Broussard, at 1037. Limiting instructions will generally suffice to cure any prejudice
caused by joint trials. See United States v. McKinney, 53 F.3d 664, 674 (5th Cir. 1995). In this
case, the district court’s instructions were sufficient to cure any prejudice. The district court
instructed the jury that each defendant had to be considered separately. Moreover, Crawford’s
acquittal on the conspiracy charge supports the conclusion that the jury was able to consider the
evidence against each defendant separately. See McKinney, 53 F.3d at 664 (“the fact that the jury
acquitted some defendants on some counts supports the conclusion that the jury sorted through the
evidence and considered each count separately.”). Thus, no abuse of discretion is demonstrated
and Crawford’s conviction is affirmed.
3. McGee
McGee was convicted of (a) conspiracy to possess with intent to distribute crack cocaine,
(b) possession with intent to distribute crack cocaine, (c) distribution of crack cocaine, and (d)
aiding and abetting in the same. McGee challenges the denial of his motion to suppress evidence,
claims to deserve a new trial based on impeachment evidence that the Government allegedly
withheld, and argues that the evidence supporting his conviction was insufficient as a matter of
law.
a. Motion to suppress.
Just as he did prior to trial, McGee seeks suppression of evidence of crack cocaine found in
his wife’s purse which was searched after his car was stropped due to an alleged traffic violation.
McGee challenges the evidence as a fruit of an illegal stop. He does not challenge the police
2
We note that the evidence suggests otherwise, as a co-conspirators’ phone number was
found on a caller ID in a bedroom in which Crawford was sleeping.
9
officers’ actions in searching the purse after the stop.3 While reviewing a denial of a motion to
suppress, this court reviews the district court’s factual findings under the clearly erroneous
standard, and its conclusions of law de novo. United States v. Blocker, 104 F.3d 720, 725 (5th
Cir. 1997). The evidence is reviewed in the light most favorable to the government as the
prevailing party. United States v. Campbell, 178 F.3d 345, 348 (5th Cir. 1999). For the reasons
which follow, we find that the stop was proper and affirm the denial of the motion to suppress.
Police may stop a vehicle where they are aware of specific articulable facts, together with
rational inferences from those facts, that support a reasonable suspicion of illegal activity. See
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing Terry v. Ohio, 392 U.S. 21, 22
(1968)). A decision to stop an automobile is reasonable where the police have probable cause to
believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996). If
there is such probable cause, the fact that the officer intended the stop as a means to investigate
other violations does not render the stop invalid. Id.
The stop in this case is clearly supported by probable cause. The officers stopped the car
because they knew McGee was driving without a valid drivers licence in an area known to be a
locus of drug transactions. The officers recognized McGee’s vehicle from past dealings with
McGee, and from past surveillance efforts in relation to crack cocaine sales. A check on the
vehicle revealed that McGee’s licence was suspended and that he had outstanding warrants. The
officers followed the car and recognized McGee when he exited the car after stopping at a
convenience store. They followed the car to an apartment complex. At that time, the officers
knew that McGee had been driving with a suspended licence and that police policy was to charge
such drivers with a class C violation until the suspended licence was confirmed. McGee and his
wife were taken into custody, at which time her purse was on the floorboard of the car. Before
giving her the purse, Sergeant Jones checked it for weapons and contraband and found two
3
Apparently, the district court determined that McGee did not have standing to challenge the
search of his wife’s purse and McGee’s brief does not challenge this ruling.
10
baggies of crack cocaine. McGee and his wife were then arrested for possession of crack cocaine.
The district court determined at the suppression hearing that the officers had accurate information
about the suspended license and that the officers reasonably believed valid arrest warrants existed.
Nothing in the record suggests that the district court’s factual findings are clearly erroneous. These
factual findings lead us to the legal conclusion that there was probable cause for both the stop and
the arrest.4 Thus, the denial of the motion to suppress is affirmed.
b. New trial
McGee contends that he is entitled to a new trial because the Government allegedly failed
to disclose a promise the Government allegedly made to his wife, Stephanie McGee, to dismiss
charges against her in return for her testimony against her husband. However, we find that McGee
failed in his burden of demonstrating the existence of any such exculpatory evidence that was
withheld by the government, and we therefore find that the district court committed no abuse of
discretion in denying McGee’s motion for a new trial.
We review the denial of a new trial for an abuse of discretion. See United States v. Dula
989 F.2d 772, 778 (5th Cir. 1993) (an appellate court may reverse only if it finds the decision not to
grant a new trial to be a clear abuse of discretion). To establish a due process violation under
Brady v. Maryland, 373 U.S. 83 (1963), the defendant must show (1) the evidence was suppressed
by the prosecution; (2) the evidence was favorable to the defense; and (3) the evidence was
material to either guilt or punishment. United States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996).
We review the Brady issue de novo. United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995).
The issue here is whether McGee met his burden of demonstrating the existence of
exculpatory evidence that was allegedly withheld by the government. In this case, McGee must
4
Despite McGee’s suggestions to the contrary, the issue under Whren is whether there was an
objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a
traffic stop in the hope of finding drugs. Whren, 517 U.S. at 813 (foreclosing any argument that
the Constitutional reasonableness of traffic stops depends on the actual motivations of the
individual officers involved.) As long as the traffic stop is proper, it is irrelevant whether the
officers actually issued a citation for driving with a suspended licence
11
demonstrate that there was a deal between Mrs. McGee and the Government granting her leniency
in exchange for her testimony, or threatening her with punishment for her failure to testify. At the
hearing on the motion for a new trial, McGee tried to prove the existence of such a deal through an
out-of-court affidavit by Stephanie McGee, dated six months after the conviction of her husband,
in which she stated that she was told that “if she did not testify she could be reindicted and that she
or her husband would get into more trouble.” Additionally, McGee’s mother testified to the out-
of-court statements made by Stephanie McGee. We note that at trial, Stephanie McGee and the
prosecutor testified that she was never offered leniency, or threatened with additional punishment
in return for her testimony or failure to testify. During the new trial hearing, the district court
refused to admit both the testimony and the declaration on the grounds that they were inadmissible
hearsay, i.e they were out-of-court statements inadmissible to show the truth of the matter
asserted. Notably, McGee does not challenge these evidentiary rulings on appeal. Regardless, we
find no abuse of discretion in these evidentiary rulings. See United States v. Ismoila, 100 F.3d
380, 391 (5th Cir. 1996) (holding that evidentiary rulings are reviewed for abuse of discretion).
Without this inadmissible hearsay, there remains no evidence of any exculpatory evidence which
the Government failed to disclose. Thus, the district court correctly concluded there was no
evidence of a Brady violation. Accordingly, we affirm the denial of a new trial for McGee.
b. The sufficiency of the evidence
The next issue is whether the evidence is sufficient to support the conviction of McGee on
the conspiracy, possession with intent to distribute, distribution, and aiding and abetting charges.
This court views “the evidence and all inferences drawn from it in the light most favorable to the
verdict to determine if a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Burton, 126 F.3d 666, 669 (5th Cir. 1997). The
focus is not on “whether the trier of fact made the correct guilt or innocence determination, but
rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390
(1993).
12
To establish a drug conspiracy in violation of 21 U.S.C. § 846, the government must
establish beyond a reasonable doubt that (1) an agreement existed to violate the narcotics laws, (2)
the defendant knew of the agreement, and (3) the defendant voluntarily participated in it. United
States v. Morgan, 117 F.3d 849, 853 (5th Cir.. 1997). The jury may infer any element of the
conspiracy from circumstantial evidence. Id. “To prove possession of a controlled substance with
intent to distribute, the government must prove beyond a reasonable doubt the defendant’s
possession of the illegal substance, knowledge, and intent to distribute.” United States v. Payne,
99 F.3d 1273, 1279 (5th Cir. 1996). To establish distribution of crack cocaine, the Government
must prove beyond a reasonable doubt that 1) the defendant knowingly distributed a controlled
substance, 2) the substance was in fact crack cocaine, and 3) at the time of distribution, the
defendant knew the substance was crack cocaine. To prove aiding and abetting, the government
must prove: 1) the association with a criminal venture, 2) the defendant’s participation therein, and
3) that he actively sought its successful conclusion. United States v. Casilla, 20 F.3d 600 (5th Cir.
1994).
The evidence against McGee is sufficient to sustain all of his convictions. First, there is
considerable evidence in the form of testimony by his coconspirators linking McGee to the
conspiracy. Cooks testified that he sold crack cocaine to McGee on four or five occasions.
Glover testified that he saw Cooks hand McGee an ounce of cocaine. Caldwell, another
coconspirator, testified that he bought cocaine from McGee between 10 and 20 times. Workman,
the confidential informant, testified that he bought cocaine from McGee on several occasions. As
noted, McGee’s wife testified that the 141 grams of crack cocaine found in her purse belonged to
McGee. Thus, substantial evidence shows that McGee participated in several of the drug
transactions underlying the conspiracy. Compare United States v. Robertson, 110 F.3d 1113 (5th
Cir. 1997) (reversing conspiracy conviction and holding that defendant may not be convicted by
evidence that merely places him at the scene of another person’s criminal act.) From the totality of
the evidence, a jury could reasonably conclude that McGee possessed cocaine, that he was a
13
cocaine distributor in Bryan, that he was supplied cocaine for resale by other members of the
conspiracy, that he possessed cocaine which he intended to distribute, and that he aided and
abetting others in these illegal activities.
Given the magnitude of this web of testimony implicating McGee, we reject his argument
that Workman’s testimony was not sufficiently corroborated. McGee also argues that the audio
surveillance tapes on which McGee is allegedly heard selling crack cocaine to confidential
informant Workman are basically inaudible. However, the remaining evidence would be sufficient
to convict McGee on all counts. Thus, when viewed in the light most favorable to the verdict, the
evidence supports a finding that McGee knowingly participated in a conspiracy to distribute crack
cocaine, that he possessed crack cocaine with intent to distribute, that he distributed crack cocaine,
and that he aided and abetted in the same.
Additionally, we reject McGee’s argument that the testimony of the indicted co-defendants
was not sufficiently credible and established no more than his personal use of cocaine base and
association with drug traffickers. A guilty verdict may be sustained even if supported only by the
uncorroborated testimony of a co-conspirator, and even if the witness is interested due to a plea
bargain, unless the testimony is incredible on its face. As long as procedural safeguards are
observed, including disclosure of the fee arrangement, an opportunity for cross-examination, and
cautionary jury instructions, a conviction may be sustained based on the testimony of a paid
government informant. United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). The jury
was well aware of Workman’s fee arrangement with the Government in this case. Moreover, the
district court cautioned the jury that one who testifies against a defendant for pay or for lessor
punishment must be examined with greater care than the testimony of an ordinary witness.
In conclusion, McGee’s conviction is supported by sufficient evidence and the district court
did not err in refusing to suppress evidence garnered during the stop of McGee’s car. Nor did the
the Government suppress exculpatory evidence regarding his wife. Accordingly, McGee’s
convictions are affirmed.
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3. Burton
a. The sufficiency of the evidence.
Burton was convicted of: (a) conspiracy to manufacture, possess with intent to distribute
crack cocaine, and to distribute crack cocaine, and (b) distribution of crack cocaine. Burton
challenges his conviction for distribution for cocaine base on the ground that the only evidence to
support it was the testimony of Melvin Workman, a paid government informant who received
$14,000 in exchange for his services. He argues that the testimony of the agent who arranged for
the undercover purchases of crack cocaine and the tape recordings that were made were
insufficient to corroborate Workman’s testimony because the agent did not witness the
transactions and the tapes were inaudible. He contends that a search of his house revealed no
evidence of drug trafficking. Burton concludes that “given the background of Workman, and the
financial incentives given to him by the Government, no rational trier of fact could have . . .
[convicted].” Regarding his conspiracy conviction, Burton concedes that co-defendants Perry,
Shirley, Glover, Caldwell, and Cooks testified that he was involved in the drug conspiracy.
However, he challenges their credibility on the ground that they testified in the hope of obtaining a
sentence reduction and that they did not provide the information incriminating Burton until after
they entered plea agreements with the government. Finally, Burton contends he brought evidence
that he was involved in a legitimate business repairing cars in the garage behind his house and in a
“furniture” business.
However, the evidence is clearly sufficient to affirm both convictions. Cooks testified in
detail describing trips to Houston to purchase cocaine from Lewis and countered the suggestion
that Burton was involved in lawful business enterprises. Shirley and Perry described buying ounces
of cocaine from Burton. Perry described Burton receiving cocaine from Lewis concealed inside a
car battery and delivering money to Lewis from Burton in $100 stacks. Glover testified that
Burton fronted him cocaine for resale. Workman described four purchases of crack cocaine from
Burton. In conclusion, it is clear that the evidence is sufficient for a rational juror to convict
15
Burton on all counts. As to the credibility of these witnesses who testified in the hope of obtaining
a sentence reduction, it is up to the jury to determine their credibility. See Bermea, 30 F.3d at
1552. Burton had the opportunity to impeach these witnesses at trial, and the jury nonetheless
convicted Burton. Nor is there anything remarkable about indicted individuals providing testimony
only after receiving a plea argument. Accordingly, the jury could have reasonably believed these
witnesses, while disbelieving testimony that Burton was a legitimate businessman. Thus, Burton’s
conviction is affirmed.
b. The Admission of Expert Testimony Regarding Slang Words
Burton contends that the district court abused its discretion in allowing an expert in
narcotics investigations to testify as to the meaning of code or slang words in recorded
conversations. See United States v. Griffith, 118 F.3d 318 (5th Cir. 1997) (review of allegedly
improper expert witness testimony is accomplished under an abuse of discretion standard).
In fact, the district court did not abuse its discretion. In this case, Agent Ibison, an
experienced narcotics agent, testified that terms such as “13-5," which were uttered on police tapes
of wiretapped conversations in this case, are terms used by drug dealers to connate the amount
owed (e.g. $13,500) in a drug transaction. Experienced narcotics agents may testify as to the
meaning of drug trafficking related slang and jargon. See Griffith, 118 F.3d at 321-23 (approving
of such testimony). Burton claims that the agent only testified to the meaning of ordinary language
which the jury could understand without assistance. Burton points out that terms such as “13-5"
are not as exotic as “pianos” or “three pairs of boots” sold by the kilogram by drug dealers. See
United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995). This argument is not persuasive. The
district court reasonably concluded that an ordinary jury would not know what “13-5" meant. See
Griffith, 118 F.3d at 321-323 (approving of expert testimony to explain that “30" meant a
“$30,000 shipment of marijuana” and that a “5 price” meant “$500 a pound.”) Thus, there is no
abuse of discretion in admitting expert testimony regarding slang that is made up of terms, such as
“13-5," which the jury would not easily understand without assistance. This is especially so where
16
the district court cautioned the jury to come to its own conclusion. Thus, the admission of expert
testimony clarifying the meaning of such terms is affirmed.
c. Amount of cocaine
Next, Burton contends that the district court erred in calculating that 99.21 grams was the
amount of cocaine base to be included in his “relevant conduct”at sentencing. Challenges to such
findings are reviewed for clear error. United States v. Manges, 110 F.3d 1162, 1178 (5th Cir.
1997). A district court has wide discretion in determining which evidence to consider and to credit
for sentencing purposes, United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996), and the defendant
bears the burden of demonstrating that the information the district court relied on in sentencing is
materially untrue, id. Under the clearly erroneous standard, if the district court's account of
evidence is plausible in light of record viewed in its entirety, a Court of Appeals may not reverse it
even though convinced that had it been sitting as trier of fact, it would have weighed evidence
differently. Id.
After reviewing the record, we find that the district court committed no clear error and
therefore affirm Burton’s sentence. The district court based its determination of the relevant
amount of cocaine on 10 transactions involving undercover purchases of cocaine by Workman
from Caldwell, Burton, Darren Dove, and Gaines as described in the Presentence Report. That
amount was also based on a United States Probation Officer report listing the drug transactions
which were linked to Burton. Based on the conduct laid out in these documents, the district court
could have reasonably concluded that Burton was responsible for 99.21 grams of crack cocaine.
First, Burton argues that this finding is clearly in error since it is based on “the testimony
and statements of co-defendants with an incentive to assist the Government for cash [i.e.
Workman] or for a sentence reduction. Second, Burton points out that the witnesses to the
transactions were convicted felons, and crack addicts [i.e. Caldwell]. Third, Burton argues that
the facts of some of the alleged transactions do not include Burton or are beyond belief. As to the
first two arguments, the individuals who testified were subject to cross-examination at trial and the
17
district court was in the best position to determine the weight that should be given their statements.
Burton’s conclusionary allegations that felons, crack addicts, and paid informants are incredible are
insufficient to justify overruling the district court.
As to the third argument, Burton specifically attacks the district court’s decision to include
the amount of cocaine from transactions involving Darren Dove and co-conspirator Thomas.
Burton denies that he was directly involved in these transactions. The Presentence Report states
that Dove routinely purchased cocaine from Burton. Moreover, Dove was seen heading in the
direction of Burton’s house shortly before he sold the cocaine to the confidential informant. We
cannot say that it is clear error to conclude that Dove obtained the cocaine from Burton.
Alternatively, the district court, when sentencing in a drug conspiracy case, can include as
“relevant conduct” the “conduct of others in furtherance of the execution of the jointly-undertaken
criminal activity that was reasonably foreseeable by the defendant [i.e., Burton]. ” See USSG §
1B1.3; United States v. Morris, 46 F.3d 410, 422 (5th Cir. 1995). The district court could
reasonably conclude from Burton’s relationship to Dove that Dove’s transactions, which involved
going either to Burton’s home or to the vicinity of Burton’s house prior to delivery, were
reasonably foreseeable acts in furtherance of the drug conspiracy and were thus includable as part
of Burton’s “relevant conduct.”
Regarding the Thomas transaction, there was evidence that Thomas was acting as Burton’s
agent when he sold the crack cocaine. The record shows that Thomas and Burton were routinely
involved together in drug transactions. As to the transaction at issue in sentencing Burton,
Thomas arrived with the crack cocaine shortly after a phone call was placed to Burton’s residence
for the purpose of acquiring crack cocaine. It would not be clear error to conclude that Burton
was directly involved in this transaction. Alternatively, the district court could reasonably
conclude from Burton’s relationship with Thomas that Thomas’ transactions were reasonably
foreseeable to Burton. In conclusion, the district court did not commit clear error in calculating
the amount of drugs to use in sentencing Burton. Burton’s sentence is therefore affirmed.
18
In conclusion, Burton’s sentence and conviction are affirmed. Burton’s convictions are
supported by sufficient evidence, the district court did not err in admitting expert testimony
regarding the meaning of slang words, and the district court did not commit clear error in
determining the amount of cocaine to be used in sentencing Burton.
5. Herndon
a. Attorney’s absence from one half an hour of a voir dire conference
Herndon was convicted of conspiracy to possess with the intent to deliver crack cocaine; of
possession with intent to deliver crack cocaine; and with knowingly distributing crack cocaine.
Herndon contends he was denied his Sixth Amendment right to counsel due to his attorney’s
absence during a portion of the voir dire examination of jurors. Neither Herndon, nor his counsel
upon her return objected in the district court to the conduct that occurred in his attorney’s
absence, therefore his claim is reviewed only for plain error. United States v. Maldonado, 42 F.3d
906, 912-13 (5th Cir. 1995). A plain error is one which substantially effects the fairness of the
judicial process and which is so prejudicial as to significantly effect the substantial rights of the
accused. See, e.g. United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990). Finding no
plain error, we affirm.
The record shows that 30 represented defendants, including Herndon, were present at a
pretrial hearing on May 16, 1997, when the district court announced it was going to use a jury
questionnaire created from submissions of the parties to aid in the jury selection process. Without
objection from Herndon’s counsel, the court designated Attorney Goldsmith as the point of
contact for all defense counsel for comment on the proposed questionnaire. On September 19,
1997, the court announced in open court that September 24 would be the deadline for proposed
questions and that the jury would respond to the questionnaire on the Friday before the trial date
on the 29th. The court informed counsel that the jurors’ responses to the questionnaires would be
distributed to counsel at 8:30 a.m. on September 29, that counsel would be able to use the
courtroom all morning to review the responses, and that at 1:00 p.m. the jury panel would be
19
brought to the courtroom for questioning.
On September 29, the court took roll and discovered that Herndon’s counsel had been
present but had left to find different clothing for her client. Since so many defense counsel were
present, the court proceeded and invited counsel to comment on any concerns raised by the
potential jurors responses to the questionnaires. The record shows that Herndon’s attorney missed
one half hour of the discussion regarding the venire panel. Attorney Flood announced that he was
“speaking on behalf of all counsel for defense” when he identified numerous jurors whose
responses required further inquiry. Flood informed the court of a concern expressed by Herndon’s
attorney that one of the potential jurors had recently been sued by Herndon’s attorney. Herndon’s
attorney then arrived while the prosecutor was raising his concerns about the potential jurors’
responses. The conference continued and the potential jurors were brought into the courtroom
and jury selection took place. Neither defense counsel nor the defendant ever objected to the
conference or defense counsel’s absence from part of that conference.
As interpreted, the Sixth Amendment provides that a defendant is entitled to be represented
by counsel at all critical stages of a criminal proceedings which are those stages at which a
substantial right of a defendant may be affected. United States v. Taylor, 933 F.2d 307, 313 (5th
Cir. 1991). See also Gomez v. United States, 490 U.S. 858, 873 (1989) (reaffirming that voir dire
is a critical stage of a criminal proceeding and stating that where the indictment is for a felony, the
trial commences at least from the time when the work of empaneling the jury begins.)
However, the district court did not make plain error in proceeding despite Herndon’s
counsel’s absence. McGee’s interests at that conference were represented by counsel for a co-
defendant who jointly represented all defendants and who raised McGee’s counsel’s questions
regarding certain jurors. Cf. United States v. Phillips, 664 F.2d 971, 1040-41 (1981) (finding no
violation of right to counsel where defense counsel was temporarily absent from the trial,
defendant was represented by other counsel, and where defendant, on two of three occasions,
expressly consented to the temporary representation by other counsel).
20
Herndon characterizes the Government’s argument as saying that stand-by counsel is
sufficient and responds that this court has found a Sixth Amendment violation despite the presence
of “stand-by” counsel. See United States v. Taylor, 933 F.3d 307 (5th Cir. 1991). However,
Taylor found a Sixth Amendment violation where defendant was totally deprived of anything but
standby counsel at sentencing. In this case, defendant had counsel for all but thirty minutes of the
voir dire meeting, the thirty minute absence was caused by counsel’s decision to leave the meeting,
the defendant had numerous standby counsel during that thirty minutes, and had counsel who
chose not to object to the meeting after returning from her absence. Under these circumstances,
we cannot say that Herndon’s Sixth Amendment rights were plainly violated. Thus, the district
court did not commit plain error and Herndon’s right-to-counsel claim is rejected.
b. Admission of the drug ledger.
Next, Herndon contends that the district court abused its discretion in allowing the
government to introduce an alleged drug ledger reflecting Herndon’s first name beside a dollar
amount. The name “Fred” was on the ledger followed by a notation for $1400. The ledger was
recovered during the execution of a search warrant at Burton’s residence in Bryan, Texas.
Herndon argues that the exhibit is inadmissible because (a) it was hearsay and (b) did not meet the
coconspirator exception in Fed.R.Evid.801(d)(2)(E) because the government did not prove the
ledger involved a conspiracy between himself and the author of the ledger. Evidentiary rulings are
reviewed for abuse of discretion. United States v. Ismoila, 100 F.3d 380, 391 (5th Cir. 1996).
Such errors are harmless unless a substantial right of a party is affected. Id.
A statement is admissible under the coconspirator exception to the hearsay doctrine where
the proponent establishes by a preponderance of the evidence that (1) a conspiracy existed, (2) the
statement was made in the course of or furtherance of that conspiracy, and (3), the co-conspirator
and defendant are members of the conspiracy. United States v. Narviz-Guerra, 148 F.3d 530, 536
(5th Cir. 1998).
The testimony of co-defendants Cooks’ and Perry in conjunction with the fact that the
21
ledger was found at Burton’s residence is sufficient to support a finding that the ledger was
prepared by co-conspirator Burton 5 in furtherance of a drug trafficking conspiracy between himself
and the persons named on the ledger. Cooks, a co-conspirator, identified the ledger as a list of
people who owed money from the drug sales. Cooks testified that he knew Herndon was a crack
dealer in Bryan because he sold him cocaine and that he knew that Burton sold ounces of crack to
Herndon on credit for $700. This testimony is consistent with the $1400 notation on the ledger for
sale of two ounces. This supports the conclusion that the ledger (the coconspirator’s statement)
was made in furtherance of the conspiracy, that Herndon and Burton are members of the
conspiracy, and that Fred Herndon was the “Fred” identified on the list. Thus, the district court
did not abuse its discretion by admitted the drug ledger into evidence.
In conclusion, Herndon’s right to counsel was not violated, on review for plain error, by his
attorney’s brief absence from the voir dire conference and the district court did not err in admitting
the drug ledger. Thus, Herndon’s conviction is affirmed.
6. Thomas
a. Sentence reduction.
Thomas was convicted of conspiracy to possess with intent to distribute crack cocaine and
with aiding and abetting others to possess with intent to distribute crack cocaine. Thomas was
sentenced to 122 months confinement for each count, to run concurrently, followed by a four year
period of supervised release. Thomas contends that the district court erred in not granting him a
two level sentence reduction, under United States Sentencing Guidelines § 3B1.2, for being a
“minor participant” in the offenses for which he was convicted. The issue raised is whether the
district court’s finding that Thomas was not entitled to a sentence reduction due to his role in the
offense is sufficiently supported by the evidence. The question of participation status is a factual
question reviewable under the clearly erroneous standard. See United States v. Valencia, 44 F.3d
5
We also note that the identification of the author/declarant is not always necessary for
admission of a drug ledger as a co-conspirator’s statement. United States v. Fierro, 38 F.3d 761,
773 (5th Cir. 1994).
22
269, 272 (5th Cir. 1995); United States v. Brown, 29 F.3d 953, 960 (5th Cir. 1994).
Section 3B1.2(b) states that “If the defendant was a minor participant in any criminal
activity, decrease by two levels.” Thomas bears the burden of showing, by a preponderance of the
evidence, that his role in the offenses was minor. United States v. Brown, 54 F.3d 234, 241 (5th
Cir. 1995). The Guidelines define a minor participant as “any participant who is less culpable than
most other participants, but whose role could not be described as minimal.” USSG § 3B1.2,
Application Note 3. “A downward adjustment under 3B1.2 is generally appropriate only where a
defendant was substantially less culpable than the average participant.” Brown, 54 F.3d at 241.
Additionally, “The defendant’s participation must be enough less so that he at best was peripheral
to the advancement of the illicit activity.” United States v. Tremelling, 43 F.3d 148, 153 (5th Cir.
1995).
In this case, Thomas, who lived at co-defendant Burton’s house and was his cousin, carried
drugs for Burton on several occasions. Based on these facts showing more than peripheral
involvement in criminal activity, the district court could reasonably conclude that Thomas was not
a minor participant. Additionally, co-defendant Cooks testified at trial that Thomas participated in
his purchase of more than an ounce of crack cocaine from Burton and a police tape recording had
Thomas referring to someone as being “two ounces short.” Thomas admits that “there were
arguably four incidents where Thomas was alleged to have been involved with crack cocaine.”
Thus, there is sufficient evidence from which the district court could conclude that Thomas did not
qualify for a “minor role” sentence reduction6.
6
Alternatively, we note that minor participant status need not be granted to Thomas since his
sentence was only based on drug activity in which he was actually involved. See United States v.
Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (holding that when sentence is based on activity in
which defendant was actually involved, Sentencing Guidelines do not require reduction in base
offense level even though defendant's activity in larger conspiracy may have been minor or
minimal); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997)(holding that because
only the drugs defendant actually participated in transporting were attributed to him in calculating
his sentence, he cannot now claim to be a minor participant in relation to his offense.)
23
Thomas’ other arguments are without merit. First, he argues that his participation must be
“minor” since he was nothing more than a person who “did the favor of picking up or delivering
crack for his cousin, Burton.” However, Thomas cites no case law for the proposition that
criminal participation must be minor where the wrongdoer does not profit monetarily. Second,
Thomas argues that he deserves a sentence reduction because he was less culpable that his co-
defendants. However, nothing in our case law compels this conclusion. Thomas admits that Fifth
Circuit case law defines “minor role” in comparison to an “average participant,” not in comparison
to co-defendants, but notes that the Ninth Circuit requires a comparison to the conduct of the co-
participants at hand. Third, Thomas notes that this Circuit has affirmed minor role reductions in
cases where the defendant’s conduct was more culpable than Thomas’. See, e.g., U.S. v. Sotelo,
97 F.3d 782 (5th Cir. 1996) (affirming minor role reduction for defendant who participated in more
than 20 drug deliveries). However, the district court’s discretion in this area is not channeled by
some strict quantitative analysis, rather it is exercised in light of the totality of the evidence
presented to the trial court. Under the facts as a whole in this case, the district court could
reasonably conclude that a defendant involved in three or four drug deliveries was not merely
peripheral to the advancement of illegal activity. Therefore, Thomas’ sentence and conviction are
affirmed.
7. Gibbs
Gibbs was convicted of conspiracy to possess with intent to distribute crack cocaine,
distribution of crack cocaine, and aiding and abetting in the distribution of crack cocaine. Gibbs
now challenges both his sentence and conviction.
a. Impeachment of witness by prior arrests and misdemeanor convictions
During cross-examination by defense counsel, co-defendant Shirley testified that he had
been convicted of delivery of crack cocaine, assault of a police officer, and burglary of a motor
vehicle. He further testified that he had violated probation, that he had plead guilty to conspiracy
and delivery of cocaine in this case, and that he hoped to received leniency in exchange for his
24
testimony. Defense counsel was not allowed to introduce Shirley’s arrest for resisting arrest,
disorderly conduct, and criminal trespass. The district court determined that the probative value of
this evidence was substantially outweighed by unfair prejudice. During one attempt by defense
counsel to introduce his misdemeanors, Shirley testified that he had stayed out of trouble after his
release from incarceration.
Gibbs concedes that impeachment through Rule 609 is limited to felonious convictions or
other convictions involving dishonesty or false statement, and that the convictions he sought to
impeach Shirley with do not qualify. He argues this case requires an exception so he can correct
the false impression Shirley gave of leading a law abiding lifestyle since his release from prison in
1993. Gibbs argues that he was denied his right of confrontation as guaranteed by the Sixth
Amendment to the United States Constitution, because he was not able to show that Shirley had
misled the jury about having stayed out of trouble since his release.
However, the district court did not abuse its discretion. Trial judges retain wide discretion
to impose reasonable limits on cross-examination, particularly to prevent the introduction of the
kind of cumulative and marginally relevant evidence Gibbs seeks to introduce. United States v.
Tansley, 986 F.2d 880, 886 (5th Cir. 1993). The issue is whether the jury had sufficient
information on which to appraise the credibility of the witness. Id. In this case, the excluded
cross-examination regarding misdemeanors was only marginally relevant and it is clear that the jury
was left with sufficient information on which to evaluate Shirley’s credibility. Shirley had already
been impeached regarding his felonious convictions and regarding how his testimony was, at least
in part, motivated by a potential sentence reduction. Indeed, given this testimony it is highly
unlikely the jury labored under the delusion that Shirley was a law abiding citizen. Given the low
probative value of this cross-examination, its exclusion was reasonable under Rule 403.
Alternatively, given the negligible probative value of the excluded cross-examination in light of the
evidence the jury had already heard about Shirley’s criminal activity, it is clear that Gibbs’
substantial rights were not affected. See United States v. Hamilton, 48 F.3d 149, 154 (5th Cir.
25
1995) (holding that evidentiary rulings comprise reversible error only when they affect the
substantial rights of a party).
b. Amount of cocaine
The issue is whether the record supports the district court’s sentencing finding that Gibbs
was accountable for 6.1 grams of cocaine under the sentencing guidelines, U.S.S.G. 2D1.1 (c)(8),
which imposes a higher sentence where defendant is responsible for more than 5 grams. While the
district court’s interpretation of the Guidelines are reviewed de novo, the amount of cocaine is a
factual finding reviewed for clear error. United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.
1994); United States v. Lara-Velasquez, 919 F.2d 946, 953 (5th Cir. 1990).
6.1 grams of cocaine is the purported weight, as determined by a crime lab and as
presented in the Presentence Report, of the materials delivered by Gibbs to Calvin Workman, the
confidential informant. According to Gibbs, this finding is clearly erroneous since the chemist
conceded that due to the absence of a purity determination, he did not know whether the actual
amount of the cocaine in the material delivered to Workman was more than five grams. The
chemist merely confirmed the presence of crack cocaine in the substance submitted. Additionally,
Gibb’s alleges that some of the 6.1 gram figure may be attributable to the weight of the packaging.
At sentencing, the district court adopted the amount found in the lab reports, despite
acknowledging the chemist’s testimony, because “he didn’t have the lab reports in front of him,
and I did”and because “the net weight [of the drug quantity] was noted in those lab reports.” We
find nothing in the record which shows clear error7. We therefore affirm Gibb’s sentence.
In conclusion, Gibb’s conviction and sentence are affirmed. The district court did not
abuse its discretion in refusing to allow Gibb’s counsel to cross-examine a witness regarding his
prior misdemeanors. Nor did the district court commit clear error in determining the amount of
7
Alternatively, we note that a purity analyses of drugs transacted is not always necessary
before sentencing a defendant based on the amount of those drugs. See Chapman v. United
States, 500 U.S. 453, 461 (1991); United States v. Polacios-Molina, 7 F.3d 49, 54 (5th Cir.
1993) (noting that sentencing should be based in the amount of the marketable drug transacted,
regardless of purity).
26
cocaine to be used in sentencing Gibbs.
CONCLUSION
The convictions and sentences of all seven Appellants are hereby AFFIRMED.
27