U.S. v. Vaquero , 997 F.2d 78 ( 1993 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-3781
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIGUEL VAQUERO, a/k/a Michael or Mike Vacuero
or Vaccaro, CLARENCE TAYLOR, JR, and HERMAN J. MOUTON, JR.,
Defendants-Appellants.
_____________________________________
No. 91-3805
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLARENCE TAYLOR, JR.
Defendant-Appellant.
______________________________________________________
Appeals from the United States District Court
for the Middle District of Louisiana
______________________________________________________
(July 26, 1993)
Before CHIEF JUDGE POLITZ, KING and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge.
BACKGROUND
In 1991, Clarence Taylor, Miguel Vaquero, and Herman Mouton
were indicted and convicted for conspiring to possess cocaine
with intent to distribute and conspiring to distribute cocaine in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Herman Mouton
was also indicted and convicted for unlawfully using a
communications facility in violation of 21 U.S.C. § 843(b).
The cocaine conspiracy revolved around Linda Howard, a Baton
Rouge drug dealer who, unbeknownst to Appellants, was cooperating
with law enforcement officials. Howard bought cocaine from
Appellant Vaquero's business partner and friend, Jesus Blanco,
who resided in Florida. In turn, Appellants Mouton and Taylor
purchased cocaine from Howard, to resell it elsewhere in
Louisiana.
Much of the evidence consisted of videotapes and recorded
telephone conversations gathered by law enforcement officials
using hidden cameras and recording devices in Howard's home and
telephone. Taylor, Vaquero, and Mouton each appeal. We affirm.
DISCUSSION
I. Clarence Taylor
A. Sufficient Evidence
Taylor moved for a judgment of acquittal at the close of the
Government's case, but not at the close of his case. We
therefore restrict our review of his claim to whether his
conviction results in a manifest miscarriage of justice. United
States v. Knezek, 964 F.2d 394, 399-400 (5th Cir. 1992). A
miscarriage of justice exists if the record is devoid of evidence
pointing to guilt or if the evidence on a key element of the
offense is so tenuous that a conviction would be shocking.
United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992).
2
The indictment charged Taylor with conspiring to possess and
distribute cocaine from November 1990 until January 1991. He
argues that insufficient evidence exists of his involvement in
the conspiracy during this time frame because of Howard's
testimony that she personally did not give or sell cocaine to
Taylor in November, December, or January and Jeffrey Hale's
testimony that he did not know whether he met with Taylor to deal
cocaine during November, December, or January.
We note that Taylor need not have purchased cocaine directly
from Howard or Hale in order to be involved in the conspiracy.
Only slight evidence is needed to connect an individual to an
illegal conspiracy once the United States has produced evidence
of that conspiracy. United States v. Duncan, 919 F.2d 981, 991
(5th Cir. 1990), cert. denied, 111 S. Ct. 2036 (1991). A
defendant is presumed to continue involvement in a conspiracy
unless that defendant makes a substantial affirmative showing of
withdrawal, abandonment, or defeat of the conspiratorial purpose.
United States v. Branch, 850 F.2d 1080 (5th Cir. 1988), cert.
denied, 488 U.S. 1018 (1989). The defendant has the burden of
going forward with such evidence. United States v. MMR Corp.
(LA), 907 F.2d 489, 499-500 (5th Cir. 1990), cert. denied, 111
S. Ct. 1388 (1990). The record reveals substantial evidence that
Taylor was deeply involved in the conspiracy prior to November
1990.1
1
The following excerpts of Howard's testimony support this
finding.
Q. After you met Clarence Taylor what kind of discussions
3
To prove his withdrawal from the conspiracy, Taylor must
show "[a]ffirmative acts inconsistent with the object of the
did you have with him?
A. I told him I could obtain the cocaine that he was
looking for at a reasonable price. . . .
Q. Who was present when these kilos [of cocaine] were
tested for quality?
A. Clarence and another individual that I know as Bruce.
. . .
Q. Now, when was the last time both you and Clarence Taylor
went to Florida?
A. It was sometime around the first of February of 1990.
. . .
Q. Now, that last instance you discussed, the last time you
went with Clarence Taylor to Florida, would that have been around
February of 1990?
A. Yes, sir.
Q. And how much cocaine were both of you intending to
obtain in Florida?
A. He was buying eighteen kilos and I was buying one. So
that made it a total of nineteen kilos. . . .
Q. Following this last trip that you made to Florida did
you cut your ties with Jesus Blanco?
A. No, sir.
Q. Now, following this last trip that you made to Florida
did Jesus blanco start to make deliveries into Baton Rouge?
A. Yes, sir.
Q. How were these deliveries made into Baton Rouge by Jesus
Blanco?
A. By automobile.
Q. How would you negotiate a purchase for delivery with
Jesus Blanco prior to the actual receipt, or the actual receipt
of the cocaine?
A. I would call him and tell him that I needed something,
or he would call me and tell me that he had something and he was
bringing it in.
Q. Whenever you said you needed something did you have an
idea as to who your customers were at the time?
A. Yes, sir.
Q. And how much they were purchasing?
A. Yes, sir.
Q. And was Clarence Taylor one of your customers?
A. Yes. . . .
Q. What happened to those four kilos of cocaine?
A. I sold them eventually.
Q. How did you sell them?
A. I sold them two at a time.
Q. To whom?
A. Clarence Taylor. Well, I gave them to Van for Clarence.
4
conspiracy and communicated in a manner reasonably calculated to
reach co-conspirators." United States v. United States Gypsum
Co., 438 U.S. 422, 464-465 (1978). Howard and Hale's testimony
that they did not directly sell cocaine to Taylor from November
1990 to January 1991 does not carry this burden. Taylor did not
demonstrate his withdrawal from the conspiracy and we therefore
conclude that his conviction did not result in a manifest
miscarriage of justice.
B. Prior Acts
A detective with the Osceola County Sheriff's office in
Florida testified that in February of 1990 he stopped Taylor's
vehicle in Florida and searched it with Taylor's consent and
found over $350,000 in Taylor's car. A deputy with the Chambers
County Sheriff's office in Texas testified that in May of 1990 he
stopped Taylor and his father outside of Beaumont, Texas and
found approximately $26,000 as well as a pound and a quarter of
cocaine in the vehicle. The court admitted this evidence
pursuant to Rule 404(b) to prove motive, opportunity, intent, or
preparation. Taylor contends this was error because the evidence
was more prejudicial than probative in violation of Rule 403.
Our thorough review of the record reveals that Taylor did
not make a Rule 403 objection to the evidence. We are therefore
limited to the plain error standard of review. United States v.
Blankenship, 746 F.2d 233, 238 (5th Cir. 1984); see United States
v. Arteaga-Limones, 529 F.2d 1183, 1198-99 (5th Cir. 1976), cert.
denied, 429 U.S. 920 (1976).
5
Taylor's cocaine conspiracy transferred cocaine between
Louisiana and Florida by car and airplane, and the amounts of
money involved reached the tens if not hundreds of thousands of
dollars. The money and cocaine found during Taylor's prior stops
and searches in Florida and Texas strongly indicate motive and
intent to carry drugs and money interstate. We therefore
conclude that the court did not clearly err in admitting the
evidence. The evidence was not more prejudicial than probative.
C. Sentencing
Taylor argues that the court erred by (1) increasing his
offense level under United States Sentencing Commission,
Guidelines Manual, § 3B1.1(c) (Nov. 1990), for his role as a
"leader," (2) increasing his offense level under U.S.S.G. §
2D1.1(b)(1) for possessing a weapon during the commission of a
drug offense, and (3) increasing his offense level for
obstruction of justice based on perjury, under U.S.S.G. § 3C1.1.
1. Taylor's Role as a Leader
Section 3B1.1(c) requires a two level increase in a
defendant's offense level if the defendant was an organizer,
leader, manager, or supervisor in the criminal activity.
Taylor's level was increased because the presentence report
identified him as a leader in drug trafficking activities because
he independently determined whether to purchase cocaine from the
co-conspirators, made decisions about it's quantity, price, and
place of delivery, and directed others to transport it.
Taylor argues that this enhancement was error because this
6
information is based on unsubstantiated claims against him, and
because the conduct portraying him as a leader did not occur
during the time frame of the conspiracy.
Information with a "sufficient indicia of reliability to
support its probable accuracy," may be relied upon. See United
States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990) (quoting
U.S.S.G. § 6A1.3(a)). An addendum to the presentence report
states that the information is based on statements from
confidential informants and cooperating defendants. Having
reviewed the presentence report and the sentencing hearing, we
find that this information had a sufficient indicia of
reliability to support the district court's finding that Taylor
had a leadership role in the conspiracy. See United States v.
Ramirez, 963 F.2d 693, 708 (5th Cir. 1992), cert. denied, 113
S. Ct. 388 (1992).
Regarding Taylor's claim that the "leadership conduct"
occurred prior to November 1990, we first note that § 1B1.3
provides that offense level adjustments shall be determined on
the basis of all acts committed by the defendant "that occurred
during the commission of the offense of conviction [or] in
preparation for that offense." Additionally, the introductory
commentary to § 3B1.1 states that the determination of a
defendant's role in the offense "is to be made on the basis of
all conduct within the scope of § 1B1.3 . . . and not solely on
the basis of elements and acts cited in the count of conviction."
The court heard testimony specifically identifying Taylor's role
7
as a leader and supervisor in the overall cocaine conspiracy.
Given this evidence, we find that the court did not clearly err
in enhancing Taylor's offense level for his role as a leader.
2. Possession of a Weapon
We review a court's decision to apply U.S.S.G. § 2D1.1(b)(1)
for clear error. United States v. Paulk, 917 F.2d 879, 882 (5th
Cir. 1990). Taylor's offense level was increased by two because
(1) a .357 revolver was found under the driver's seat of his
vehicle one week after his arrest, and (2) a handgun was found in
the glove compartment of his rental car when he was stopped in
Florida in February 1990. Taylor objected to this increase,
arguing that the gun found in the truck after his arrest was not
his and had not been placed there by him, and that the gun in his
car in Florida belonged to his passenger.
After Taylor's arrest, police officers inventoried his truck
and had it towed to an impoundment lot by a wrecker service that
has a contract with the Baton Rouge Sheriff's Department. One
week later, the owner of the impoundment lot noticed that the
driver's side door of Taylor's truck was not completely closed.
He approached the truck to close the door, saw the handle of a
revolver protruding from under the front of the driver's seat,
and called the Sheriff's Department. The Sheriff's Department
searched the truck and found cocaine, in addition to the
revolver. Taylor argues that the gun and cocaine were not his,
and that he did not place them in the truck. He suggests that
both were planted in the truck sometime after the initial
8
inventory search. The record does not support Taylor's
position.2 The court reasonably adjusted his offense level based
on this evidence.
Regarding the gun found in Florida, the presentence report
states that there is no indication in the police officer's report
that the gun belonged to Taylor's passenger. The district court
considered this evidence during sentencing, and concluded that
"[t]here is no question that the earlier evidence in the court
indicated that Mr. Taylor knew there was a gun in the car [in
Florida], and in fact told the officer there was a handgun in the
glove box." Furthermore, an offense level adjustment under §
2D1.1(B)(1) is not limited to situations where the defendant
2
The owner of the wrecking service that towed Taylor's truck and
owns the impoundment lot where the truck was kept testified that
the truck was towed from the rear, for approximately eight miles,
to the impoundment lot. The only people who had access to the
truck in the lot were the lot owner and his two employees. The
employees moved the truck while it was in the lot; they
frequently shifted from forward to reverse, and drove over
gravel.
The lot is surrounded on all sides by a six-foot fence, is
lit from dusk to dawn with vapor lights, is monitored with
observation cameras at all times, is protected by a two-year old
german shepherd and a billy goat, and the owner lives in his
office, approximately 500 feet from where the truck was kept. In
twenty-five years of business, the owner has never had an
incidence of theft or vandalism at his lot.
It is quite plausible that in the course of being towed from
the rear, shifted from forward to reverse and back again, and
being driven over bumpy gravel, the revolver and cocaine could
have been shaken loose from deep beneath the front seat, where
they may have been overlooked during the initial inventory. In
the course of moving the truck, an employee could easily have
neglected to close the driver's side door completely.
Furthermore, the impoundment lot is secure and well-guarded; it
is unlikely that anyone could plant the evidence in the truck
without being detected by the employees, observation cameras,
german shepherd, or billy goat.
9
possessed a gun during the offense of conviction. U.S. v
Eastland, 989 F.2d 760, 769 (5th Cir. 1993). Taylor's offense
level may be adjusted under § 2D1.1(b)(1) if he possessed a gun
during related relevant conduct. Id. The stop in Florida was
relevant and related to the cocaine conspiracy.
3. Obstruction of Justice
Taylor's offense level was increased by two points for
obstruction of justice pursuant to U.S.S.G. §3C1.1 because,
during the motion to suppress hearing, Taylor testified falsely
by denying that he gave the police officer oral permission to
search his car. U.S.S.G. §3C1.1, comment. (n.3(f)).
Taylor objects to this adjustment, arguing that he did not
lie and that in the face of conflicting testimony regarding
whether he gave consent, the Application Notes to § 3C1.1 provide
that the balance should tip in his favor. He also argues that he
was punished for exercising his constitutional right to take the
stand and deny that he consented to the search.
We first note that the district court's imposition of a two
level enhancement for obstruction of justice was not clearly
erroneous, given the presentence report's statement that
information from the police report and officer's testimony
indicates that Taylor consented to the Florida vehicle search.
We next note that although Application Note 2 to § 3C1.1 states
that "suspect statements should be evaluated in a light most
favorable to the defendant," it does not require "the sentencing
judge to believe the defendant. . . . Instead, we believe the
10
note simply instructs the sentencing judge to resolve in favor of
the defendant those conflicts about which the judge, after
weighing the evidence, has no firm conviction." U.S. v. Franco-
Torres, 869 F.2d 797, 801 (5th Cir. 1989). The judge in this
case was clearly convinced of Taylor's perjury. Finally, we
certainly agree that Taylor has a constitutional right to testify
on his own behalf; Taylor does not, however, have a protected
right to testify falsely. United States v. Matos, 907 F.2d 274,
276 (2nd Cir. 1990); United States v. Beaulieu, 900 F.2d 1537,
1539 (10th Cir. 1990), cert. denied, 497 U.S. 1009 (1990).
Taylor's constitutional rights were not infringed when the court
increased his base offense level based on his perjury. United
States v. Dunnigan, 113 S. Ct. 1111 (1993); United States v.
Butler, 988 F.2d 537 (5th Cir. 1993).
II. Miguel Vaquero
A. Sufficient Evidence
We will affirm Vaquero's conviction for conspiring to
distribute and distributing cocaine if a rational trier of fact
could have found guilt beyond a reasonable doubt. United States
v. Leed, 981 F.2d 202, 205 (5th Cir. 1993), cert. denied, 61
U.S.L.W. 3834 (U.S. June 14, 1993) (No.92-8287). We will reverse
only if a reasonable jury would doubt whether the evidence proves
an essential element of the offense.
To establish Vaquero's guilt, the government had to prove
(1) the existence of an agreement between two or more people to
violate the narcotics laws, (2) Vaquero's knowledge and intent to
11
join the conspiracy and (3) Vaquero's voluntary participation in
the conspiracy. United States v. Devine, 934 F.2d 1325, 1346
(5th Cir. 1991), cert. denied, 112 S. Ct. 954 (1992); United
States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989).
Vaquero argues that although a narcotics conspiracy existed,
and he knew about it, no rational jury could have found that he
intentionally and voluntarily participated in it because, out of
numerous video tapes and over 100 recorded telephone
conversations gathered by the government, he is implicated in
only one video. In that video he is shown with his business
partner Jesus Blanco, at Linda Howard's home, and he agrees to
oversee future cocaine deliveries from Florida to Baton Rouge.
Vaquero testified that although the video portrays him as dealing
cocaine, in reality he was caught in the wrong place at the wrong
time, and nervously "played along" in order to protect himself.
Having reviewed the videotape, we find that a rational jury
could easily have concluded that Vaquero voluntarily and
intentionally participated in the conspiracy. The tape shows
Vaquero, sitting in the midst of a discussion about cocaine
dealing, relaxed and enthusiastic, to say the least. This is not
a case of being present in a "climate of activity that reeks of
something afoul," as was the case in U.S. v. Maltos, 985 F.2d 743
(5th Cir. 1992) (holding that evidence of a defendant's presence
around cocaine dealers is insufficient to sustain a conspiracy
conviction). Rather, Vaquero was photographed agreeing to
oversee cocaine transportation. The jury heard his explanation,
12
and reasonably found it incredible that he was just "playing
along."
Vaquero also argues that the most important person the
prosecutor could have offered to testify to his intent and
voluntary participation in the conspiracy was Jesus Blanco, his
friend and business partner. Blanco was also indicted for the
conspiracy, but entered into a plea agreement prior to trial.
Vaquero contends that the government's failure to call Blanco to
testify against him indicates that Blanco's testimony would be
adverse to the contention that Vaquero intended to join the
conspiracy. This argument is meritless. We refuse to speculate
as to the government's motivation in choosing witnesses, or to
speculate as to what testimony those witnesses may have provided.
B. Failure to Instruct the Jury
The government introduced evidence of Taylor's and Mouton's
prior acts under Fed.R.Evid. 404(b). Before this evidence was
introduced, Vaquero's counsel requested the court to instruct the
jury that the evidence was not attributable to Vaquero. The
district court refused, stating "[a]t the close of all evidence,
if there [are] specific instructions that need to be given
regarding the use of certain tapes or certain videos regarding
Mr. Vaquero, we can put that in the final charge." Vaquero
argues that this refusal constitutes error.
A court's refusal to deliver a requested jury instruction is
reversible error only if the instruction: "(1) was substantially
correct; (2) was not substantially covered in the charge
13
delivered to the jury; and (3) concerned an important issue so
that the failure to give it seriously impaired the defendant's
ability to present a given defense." U.S. v. Duncan, 919 F.2d
981, 990 (5th Cir. 1990); United States v. Burroughs, 876 F.2d
366, 369 (5th Cir. 1989; United States v. Mollier, 853 F.2d 1169,
1174 (5th Cir. 1989).
Vaquero has made no showing whatsoever that the refusal to
deliver his requested instruction at the time requested
constitutes reversible error. Furthermore, Vaquero failed to
provide a proposed instruction to the court regarding this issue,
and failed to object to the court's closing jury charge, thereby
waiving any objection to the closing charge.3 See United States
v. Jacob, 781 F.2d 643 647-648 (8th Cir. 1986).
C. Prior Act
The court allowed the government to introduce evidence of
3
The court charged the jury in part:
During this trial you have heard evidence of acts of the
defendants which may be similar to those charged in the
indictment but which were committed on other occasions. You
must not consider any of this evidence in deciding if the
defendants committed the acts charged in the indictment;
however, you may consider this evidence for other very
limited purposes. If you find beyond a reasonable doubt
from other evidence in this case that a defendant did commit
the acts charged in the indictment, then you may consider
evidence of the similar acts allegedly committed on other
occasions to determine, first, whether that defendant had
the state of mind or intent necessary to commit the crime
charged in the indictment, or two, whether that defendant
had a motive or the opportunity to commit the act charged in
the indictment, or three, whether that defendant acted
according to a plan or in preparation for commission of a
crime, or four, whether that defendant committed the act for
which he is on trial by accident or mistake. These are the
limited purposes for which any evidence of other similar
acts may be considered. (emphasis added)
14
Vaquero's prior possession of cocaine in Florida under Rule
404(b), in order to show his motive or intent. Vaquero argues
that the evidence is irrelevant under Rule 401, more prejudicial
than probative under Rule 403, and does not prove motive or
intent as required by Rule 404(b).4
We review the admission of evidence under the standards set
out in § I.B hereof.
Vaquero argued at trial that although the video tape portrays
him as a willing participant in the conspiracy, he never intended
to deal cocaine or aid anyone else in doing so; he thereby put his
intent at issue. See United States v. Adderly, 529 F.2d 1178, 1181
(5th Cir. 1976). The court did not abuse its discretion in
admitting evidence of Vaquero's prior possession of cocaine in
Florida because it rebuts Vaquero's contention that he lacked the
mens rea to deal drugs. Furthermore, because this evidence was
quite probative of Vaquero's intent, the district court did not
abuse its discretion in determining that the evidence was more
probative than prejudicial.
D. Sentencing
1. Obstruction of Justice
Vaquero claimed, under oath, that his involvement in the
conspiracy, as depicted in the videotape, was limited to that of an
unwilling participant, and for this reason the court added two
4
Under Fed.R.Evid. 404(b), evidence of prior crimes, wrongs, or
acts may be admitted to show proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
15
points to his base offense level for obstruction of justice in the
form of perjury under United States Sentencing Commission,
Guidelines Manual, § 3C1.1. (Nov. 1990). Vaquero argues that this
adjustment (1) punished him for testifying on his own behalf, in
violation of his rights under the Fifth Amendment, (2) constitutes
double jeopardy by punishing him both for the crime itself and for
his defense to the crime, in violation of the Sixth Amendment, and
(3) constitutes cruel and unusual punishment in violation of the
Eighth Amendment.
The district court's finding of perjury, based on Vaquero's
continued assertion that he never intended to deal drugs, is fairly
supported by the record. His Fifth Amendment claim fails because
he has no constitutional right to testify falsely. United States
v. Matos, 907 F.2d 274, 276 (2nd Cir. 1990); United States v.
Beaulieu, 900 F.2d 1537, 1539 (10th Cir. 1990), cert. denied, 497
U.S. 1009 (1990). His Sixth Amendment claim "misperceives the
distinction between a sentence and a sentence enhancement." United
States v. Ainsworth, 932 F.2d 358, 363 (5th Cir. 1991), cert.
denied 112 S. Ct. 346 (1991) (quoting United States v. Mocciola, 891
F.2d 13, 17 (1st Cir. 1989) (holding that a claim for double
jeopardy does not arise in the context of a sentence enhancement
for possessing a firearm in relation to a drug offense). Finally,
his Eighth Amendment claim that his base offense level was upgraded
by two points "for simply testifying on [his own] behalf
constitutes 'cruel and unusual punishment'" must fail. His offense
level was not adjusted because he testified on his own behalf; it
16
was adjusted because he perjured himself. Vaquero's offense level
enhancement for perjury did not violate his constitutional rights.
United States v. Dunnigan, 113 S. Ct. 1111 (1993); United States v.
Butler, 988 F.2d 537 (5th Cir. 1993).
2. Minor Participant
Vaquero also argues that the court erred by refusing to adjust
his offense downward by two levels under U.S.S.G. § 3B1.2 for his
minor role in the conspiracy. He asserts, without support in the
record, that the government concedes that he played a minor role.
U.S.S.G. § 3B1.2, comment. (n.1) states that this adjustment
is intended to apply to individuals who are "less culpable than
most other participants." The district court did not clearly err
in determining that Vaquero did not play a minor role in the
conspiracy, a finding supported by Vaquero's statement on videotape
that he would oversee cocaine shipments from Florida to Baton Rouge
every two weeks.
3. Amount of Cocaine
Vaquero contends that the court erred by determining that the
total amount of cocaine involved in the conspiracy was twenty
kilograms, primarily because the jury determined that he had
possessed only five kilograms.
Application Note 1 of § 2D1.4 provides "[i]f the defendant is
convicted of an offense involving negotiation to traffic in a
controlled substance, the weight under negotiation in an
uncompleted distribution shall be used to calculate the applicable
amount." Vaquero agreed to transport between fifteen and twenty
17
kilograms of cocaine from Florida to Baton Rouge. Although he
never actually transported it, his agreement to do so provides a
sufficient basis for the court to calculate his base offense level
using the figure of twenty kilograms of cocaine.
III. Herman Mouton, Jr.
A. Insufficient Evidence
We review a claim of insufficient evidence to determine
whether a rational jury could find guilt beyond a reasonable doubt.
United States v. Anderson, 987 F.2d 251, 255 (5th Cir. 1993).
To prove a conspiracy, the government must show, inter alia,
that an agreement existed between two persons. Mouton claims that
the government failed to prove that an agreement existed, because
the only person he "agreed" with was Linda Howard, who cannot be
considered a co-conspirator because she was a government informant.
United States v. Martino, 648 F.2d 367, 405 (5th Cir. 1981), cert.
denied, 456 U.S. 943 (1982).
Having reviewed the record, we find that ample evidence exists
of Mouton's agreement with members of the conspiracy other than
Howard,5 and a rational jury could easily have determined that
5
For example, Jeffrey Hale gave the following testimony
regarding both his involvement and Joe Collier's involvement with
Mouton in the conspiracy:
Q: After you had been [driving Mr. Mouton to Alexandria] for a
couple of months, what did Mr. Mouton tell you?
A: He was telling me basically how I could make some quick
money, easy money, by just holding the drugs that he was
getting and delivering it to him when he needed it, whenever
he needed it delivered to him. . . .
Q: Did you receive money for sitting on the drugs?
A: Yes.
Q: From whom did you receive this money?
A: Mr. Mouton.
18
Mouton was a member of the conspiracy beyond a reasonable doubt.
B. Waiver of Conflict-Free Counsel
We review the district court's acceptance of Mouton's waiver
of conflict-free counsel for simple error. See United States v.
Snyder, 707 F.2d 139, 144 (5th Cir. 1983) (holding that the
standard of review for challenged attorney disqualification orders
in criminal cases is simple error).
Under the Sixth Amendment, if a defendant has a constitutional
right to counsel, he also has a corresponding right to
representation that is free from any conflict of interest. Wood v.
Georgia, 450 U.S. 261, 271 (1981). "A conflict exists when defense
counsel places himself in a position conducive to divided
loyalties." United States v. Carpenter, 769 F.2d 258, 263 (5th
Cir. 1985) (citing Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.
1982), cert. denied, 459 U.S. 912 (1982)).
Mouton's attorney, Edward Stephens, jointly represented Mouton
and Stewart, an alleged co-conspirator not party to this appeal.
Furthermore, Stephens may have been identified in one of the tape-
Q: Did you receive that money directly from Mr. Mouton or from
some other individual?
A: Just from Mr. Mouton. . . .
Q: Now, you mentioned, I believe, that Joe Collier was a
customer of Mr. Mouton?
A: Yes.
Q: New, was Mr. Mouton selling to Joe Collier or buying from
him or both?
A: I would deliver it to him, to Joe Collier. I would give it
to him, and him and Mr. Mouton did business after that. I
would just drop it off to him.
Q: Just so we are clear, what were you delivering to Mr.
Collier?
A: Cocaine.
19
recorded conversations as also being involved in the conspiracy.6
Assuming that the taped reference to "Eddie" is Stephens, Stephens
may have been reluctant at trial to ask questions of witnesses that
could implicate either his client Stewart or himself, a valid
conflict of interest existed. The finding of an actual conflict of
interest triggers the need for a hearing pursuant to United States
v. Garcia, 517 F.2d 272 (5th Cir. 1975). Garcia directs the
district court, when a conflict of interest exists between the
defendant and his attorney, to:
Address each defendant personally and
forthrightly advise him of the potential
dangers of representation by counsel with a
conflict of interest. The defendant must be
at liberty to question the district court as
to the nature and consequences of his legal
representation. Most significantly, the court
should seek to elicit a narrative response
from each defendant that he has been advised
of his right to effective representation, that
he understands the details of his attorney's
possible conflict of interest and the
potential perils of such a conflict, that he
has discussed the matter with his attorney or
if he wishes with outside counsel, and that he
voluntarily waives his Sixth Amendment
protections. Cf. United States v. Foster, 469
F.2d 1 (1st Cir. 1972). It is, of course,
vital that the waiver be established by
"clear, unequivocal, and unambiguous
language." National Equipment Rental v.
Szukhert, [sic] 375 U.S. 311, 84 S. Ct. 411, 11
L. Ed. 2d 354, 367-8 (1964). Mere assent in
response to a series of questions from the
bench may in some circumstances constitute an
adequate waiver, but the court should
nonetheless endeavor to have each defendant
personally articulate in detail his intent to
6
In that tape-recorded conversation between Howard and a
witness, in response to Howard's question "[i]s he the only one
that does for you?," the witness replies "[n]o, if I can find my
law partner, you know him, Eddie. . . ."
20
forego this significant constitutional
protection. . . . We hold only that if, as a
matter of fact, a defendant after thorough
consultation with the trial judge knowingly,
intelligently and voluntarily wishes to waive
this protection, the Constitution does not
prevent him from so doing.
Garcia, 517 F.2d at 278.
The court fully complied with Garcia and held a thorough
hearing advising Mouton, himself an attorney, of his right to waive
the conflict, and of the dangers involved in making such a waiver.7
7
The court explained to Mouton:
The United States Constitution gives every defendant the
right to effective assistance of counsel. When one lawyer
represents two or more defendants in a case, or when we have the
conflict as has been stated here between you and Mr. Stephens
because of evidence that might affect the lawyer, the lawyer may
have trouble representing all of the defendants with the same
fairness.
This is a conflict of interest that denies the defendant the
right to effective assistance of counsel. Such conflicts are
always a potential problem because different defendants may have
different degrees of involvement.
Each defendant has a right to a lawyer who represents him
and only him. This kind of conflict of interest can be dangerous
to a defendant in a number of ways. A few examples are: the
Government may offer to recommend a lesser sentence to one
defendant if he cooperates with the Government. His lawyer ought
to advise him on whether or not to accept this offer, but if the
lawyer advises him to accept the offer, it may harm the cases of
the other defendants or of the lawyer himself, in this case who
are also his clients.
The Government may let a defendant who is not as involved as
other defendants plead guilty to lesser charges than the other
defendants. After the guilty plea, however, the Government may
require the defendant to testify. The lawyer who represents more
than one defendant or who may be concerned about representing
himself might recommend that either the first defendant not plead
guilty to protect the other defendants that he represents or that
the only defendant he is representing not plead guilty in order
to protect the lawyer.
The lawyer might also recommend that the first defendant
plead guilty which might harm the cases of the other defendants.
Sometimes one of the defendants represented by a lawyer will take
the stand to testify in his own behalf. In order to represent
the other defendants fairly, the lawyer should question the
21
Mouton, as an attorney with twenty years experience, fully
understood the district court's concerns over his attorney's
conflicts, and indicated more than once that he desired to waive
his right to conflict free counsel.
defendant on the stand as completely as possible. However, he
may not do so because he cannot ask the defendant as a witness
about anything that the defendant has told him in confidence.
This would arise, for example, if Mr. Stewart took the stand here
or maybe even if you took the stand and you wanted to say
something about -- it wasn't you, it was Mr. Stephens, for
example. And that is what that conversation was all about.
The best defense for a single defendant often is the
argument that while the other defendants may be guilty, he is
not. A lawyer representing two or more defendants cannot
effectively make such an argument. Evidence that helped one
defendant might harm another defendant's case. When one lawyer
represents two or more defendants, he might offer or object to
evidence that could help one defendant if it harms the other
defendant's case.
The court advises defendants against representation by a
lawyer who also represents other defendants in the same case or
who might have to represent himself. The court urges each
defendant to obtain a lawyer who will represent him and only him.
Each defendant has the right to a lawyer of his own. Each
defendant can also give up that right if he chooses.
The Court: I have read the above statement to you. Now, do
you understand that?
Mouton: I do, your Honor.
The Court: Okay. Do you understand that you have a right
to an attorney of your own?
Mouton: Yes, I do.
The Court: You understand that you have a right to a
conflict free attorney?
Mouton: Yes, I do, your Honor.
The Court: You understand you have a right to a competent
attorney?
The Witness: Yes, I do, your Honor.
The Court: And you understand, as I understand it, you want
Mr. Stephens to represent you as your lawyer even though he
previously represented another defendant Mr. Stewart and you
heard the evidence regarding the allegations against Mr.
Stephens? Knowing all this, you want him to represent you even
though he might have a conflict which might not be in your best
interest?
Mouton: Yes, I do, your Honor.
22
Mouton now argues that his waiver was not made "knowingly"
because the district court would not guarantee him that if he chose
new counsel, that counsel would be given adequate time to prepare
for the trial which was scheduled in two weeks. We are not
persuaded. The court clearly stated to Mouton that his concern
over whether a new attorney would have adequate time to prepare for
trial should not factor into his waiver decision at all, and that
if he decided to retain a new attorney, then the district court
would determine whether his new attorney required additional time
to prepare for trial. Furthermore, the court noted that Mouton had
been aware for sixty days of the potential conflict of interest
with his attorney. The court explicitly told Mouton more than once
that if he desired a new attorney the court would question that
attorney to determine whether he could prepare for trial in two
weeks. Mouton had no right to a guaranteed continuance of his
trial before deciding whether to retain new counsel.
Our determination that Mouton knowingly, voluntarily, and
intentionally waived his right to conflict free counsel does not,
however, end our inquiry. An accused's right to waive conflict-
free representation is not absolute. If the conflict is so severe
as to render a trial inherently unfair, then the integrity of the
judicial system has been undermined, and the accused has been
deprived of his right to effective assistance of counsel. United
States v. Snyder, 707 F.2d 139, 145 (5th Cir. 1983) (citing Uptain
v. United States, 692 F.2d 810 (5th Cir. 1982)). We determine
whether the integrity of the judicial system has been undermined by
23
reference to the current national standards of legal ethics. See
In Re Dresser Industries, Inc., 972 F.2d 540, 544 (5th Cir. 1992).
The ABA Model Rules of Professional Conduct provide that an
attorney may not represent a client whose interests are adverse to
those of another client or the attorney himself unless the attorney
reasonably believes that the new client's representation will not
be affected, and the client consents after having the conflicts
explained to him.8 The Disciplinary Rules of the ABA Model Code of
Professional Responsibility set forth similar standards.9
8
Rule 1.7 provides:
(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse to another
client, unless:
(1) the lawyer reasonably believes the representation
will not adversely affect the relationship with the other
client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the
representation of that client may be materially limited by
the lawyer's responsibilities to another client . . .
unless:
(1) the lawyer reasonably believes the representation
will not be adversely affected; and
(2) the client consents after consultation. . . .
ABA/BNA Lawyer's Manual of Professional Conduct 51:401-402 (1990
update).
9
DR 5-101(A) provides:
(A) Except with the consent of his client after full
disclosure, a lawyer shall not accept employment if the
exercise of his professional judgment on behalf of his
client will be or reasonably may be affected by his own
financial business, property, or personal interests.
DR 5-105(B) and (C) provide:
(B) A lawyer shall not continue multiple employment if the
exercise of his independent professional judgment in
behalf of a client will be or is likely to be adversely
affected by his representation of another client, or if
it would be likely to involve him in representing
differing interests, except to the extent permitted
24
The conflicts between Mouton and his attorney Stephens were
based on Stephens's representation of a co-conspirator not party to
this appeal, and on one witness's reference to a law partner named
Eddie, purportedly Stephens. In light of current standards of
legal ethics, these conflicts do not undermine the integrity of the
judicial process in this case. Stephens demonstrated during the
Garcia hearing that he believed his representation of Mouton would
not be affected by the cited conflicts.10 He unequivocally
under DR 5-105 (C).
(C) In the situations covered by DR 5-105(A) and (B), a
lawyer may represent multiple clients if it is obvious
that he can adequately represent the interest of each
and if each consents to the representation after full
disclosure of the possible effect of such
representation on the exercise of his independent
professional judgment of behalf of each.
ABA/BNA Lawyer's Manual on Professional Conduct 01:328-329 (1991
update).
10
Mouton's attorney stated:
[Mouton and his family] feel comfortable with my office and
I feel that we do well for them.
And just if I could be heard, your honor, as to the
potential conflict. . . . In the case at bar the co-defendant,
if any could be suggested, there is no conflict. I don't
represent Mr. Collier or Jesus or those other persons, only Mr.
Mouton.
The discussion as to Leonard Stewart we take the position
that it is simply a distraction, your honor, intended to be a
distraction, a smoke screen rather and not intended to establish
any true conflict. There is none that exists to my knowledge.
. . . .
And, your honor, we can't divorce ourselves from Mr. Mouton
being a lawyer also. It is not just a run-of-the-mill or lay
defendant. He is a lawyer who knows exactly what he is faced
with much more than a lay person. And I think that warrants some
concern.
. . . .
At this point, your honor, I have not gathered any
information from my prior representation of Mr. Stewart that I --
first of all I have not revealed any and I have not obtained any
25
advocated that he be allowed to continue representation of Mr.
Mouton.
Regarding Mouton's consent, Mouton is an attorney who
practiced law for twenty years, and even assisted Stephens in the
preparation of this case. As such, he fully understood, more than
a lay person could, the potential harm that could arise from
representation by an attorney with a conflict of interest.
Furthermore, the district court went to great lengths during the
Garcia hearing to explain how the conflicts may arise, how they may
affect Stephens's performance as an advocate for Mouton at trial,
and how Mouton could be adversely affected. It is beyond debate
that Mouton understood the problem and knowingly took his chances
with Stephens. We limit our holding to the facts of this case;
when a defendant who is an attorney with twenty years of experience
unequivocally waives his right to conflict free counsel, following
a full Garcia hearing, and when the potential conflict arises from
counsel's dual representation of co-conspirators and counsel's
tangential link to the conspiracy himself, the integrity of the
judicial system is not undermined and the accused has not been
deprived of his right to effective assistance of counsel. Compare
United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) (holding that
when the court failed to hold a Garcia hearing, an attorney who
twice initiated ex parte communications with a defendant other than
the defendant that he was representing, and thereby was open to an
indictment for obstruction of justice as well as severe
that could be a conflict to Mr. Mouton.
26
disciplinary measures and monetary sanctions, could not continue to
represent the defendant); United States v. Snyder, 707 F.2d 139
(5th Cir. 1983) (holding that the likelihood of public suspicion
outweighs the social interest served by an attorney's
representation of the defendant when the attorney himself had
already been indicted for his participation in the defendant's
crime). The district court did not err in accepting Mouton's
waiver of conflict-free counsel.
C. Ineffective Assistance of Counsel
To prevail on his claim of ineffective assistance of counsel,
Mouton must meet the well known criteria of Strickland v.
Washington, 466 U.S. 668, 690, 696 (1984).
Mouton has identified various acts and omissions by his
attorney that he argues fell outside the range of professional
judgment.11 We need not determine whether these acts fell outside
the range of competent assistance before determining whether Mouton
was prejudiced by the conduct.12 Mouton has made no showing that
the outcome of his trial would have been different but for his
11
Specifically, he cites his attorney's failed promise to
develop a "drug addiction" defense, virtual silence during voir
dire, inadequate cross-examination of Jeffrey Hale, and inability
to support an entrapment defense.
12
In particular, a court need not determine whether
counsel's performance was deficient before examining
the prejudice suffered by the defendant as a result of
the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel's
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so,
that course should be followed.
Strickland v. Washington, 466 U.S. 668, 697 (1984).
27
attorney's alleged errors. Furthermore, our review of the record
indicates that the evidence presented against Mouton was
overwhelming, and it is highly unlikely that, if his attorney had
acted differently, the jury would have reached any decision other
than finding Mouton guilty. He has failed to prove that he was
denied his right to effective assistance of counsel.
D. Sentencing Error
Mouton argues that the court erred in increasing his offense
level by two under United States Sentencing Commission, Guidelines
Manual, §1B1.3 (Nov. 1990), which provides that adjustments to
offense levels shall be made on the basis of all acts caused by the
defendant "that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense."
The probation officer adjusted Mouton's base offense level upward
based on the government's assertion that 116.5 kilograms should be
included within relevant conduct. Mouton claims that the district
court's finding that his conduct involved 116.5 kilograms of
cocaine is based on hearsay, thereby violating his rights under the
Fifth and Sixth Amendments.
Having reviewed Mouton's sentencing hearing, we find that the
court's conclusion that Mouton's conduct involved 116.5 kilograms
of cocaine was not based solely on hearsay.13 The court did not err
13
In making this determination, the court "relie[d] not only on
the evidence presented today by Mr. Connors [a member of the
Sheriff's Department in Baton Rouge], but also relie[d] on the
testimony presented at the trial from Mr. Hale and Ms. Howard, as
well as the tapes, both audio and video tapes, and other evidence
28
in increasing Mouton's sentence under § 1B1.3.
CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and
sentences of Clarence Taylor, Miguel Vaquero, and Herman Mouton,
Jr.
presented at the trial of this case."
29