United States v. Parsee ( 1999 )

Revised July 8, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30678
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIERRE PARSEE; EVERETTE HARRISON,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
June 15, 1999
Before REAVLEY, POLITZ, and SMITH, Circuit Judges.
POLITZ, Circuit Judge:
Convicted by a jury of conspiracy to possess with intent to distribute cocaine,
21 U.S.C. § 846, Pierre Parsee and Everette Harrison appeal, challenging, inter alia,
certain Batson1 and evidentiary rulings of the trial court.2 For the reasons assigned,
1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
They also challenge comments by the prosecutor during closing argument and the
court’s denial of their motions for judgment of acquittals, contentions which we find without
merit and which do not warrant discussion.
we affirm.
Background
In mid-August 1996 two local Louisiana officers made a traffic stop of a
rental auto traveling east on Interstate 10 near the Texas-Louisiana line. A
consensual search of the vehicle yielded nigh three kilograms of cocaine and 15
pounds of marihuana. The driver, Nicole Harrison,3 confessed that she was
delivering the drugs to New Orleans from Houston and she agreed to make a
controlled delivery. Nicole was being followed closely by two other parties to the
charged drug conspiracy, Parsee and Alvin Harvey.
Upon seeing Nicole stopped by the authorities, Parsee and Harvey called and
advised Harrison, who had supplied the drugs. Harrison paged his cousin Nicole
who was still with the authorities. She gave him a telephone number where she
could be contacted and Harrison called her twice. The calls were recorded and
played at trial. Harvey also paged Nicole and they had several telephone
conversations which the authorities recorded. Parsee declined to speak to Nicole
by telephone after he saw her apprehended by the officers and he sought to distance
himself.
3
For facility in explication, Nicole Harrison shall be referred to by her first name;
defendant-appellant Everette Harrison shall be referred to as Harrison.
2
Nicole arranged to meet Harvey to deliver the drugs and when she did so
they were arrested.4 After their arrest they were separated and not permitted to
communicate.
The evidence reflects the following relevant scenario. In early 1996 Parsee,
who lived in New Orleans, ran into Nicole, a longtime acquaintance then living in
Houston. He mentioned that he was seeking a drug supplier for his illicit operation.
Nicole was aware of her cousin Harrison’s activities and agreed to put the two in
touch with each other. Parsee began recruiting help, bringing Harvey into the
picture.
In late May 1996 Parsee was scheduled to fly to Houston to meet Harrison
for a purchase. He was leery of flying with the large amount of cash needed for the
purchase so he arranged for Harvey to wire the money to him in Houston. In an
attempt to insulate himself he arranged for the funds to be wired to Nicole and one
of Harrison’s associates. Upon arriving in Houston, Parsee met with Nicole and
then called Harvey to make the transfer. Harvey also desired insulation and had
trouble getting someone to assist him by wiring the money. Finally he located
random individuals outside of a Western Union office who agreed to wire the funds
for a fee. The funds were finally wired and Nicole delivered same to Parsee who
4
Both pled guilty to conspiracy charges. Neither conviction has been appealed.
3
completed the drug purchase from Harrison. As leery of flying with the drugs as
he was of flying with the cash, Parsee persuaded Nicole to fly to New Orleans with
the contraband. She did so using an alias.
During June and July 1996 there were several other transactions between
Parsee and Harrison but the fund-wiring difficulties precipitated a new scheme.
Nicole would rent a vehicle in Houston; drive to New Orleans and secure the cash
for the transaction from Parsee; return to Houston, followed by Parsee and Harvey
in Parsee’s vehicle; rent a room at a hotel where Harrison, Parsee, and Harvey
would conclude the transaction; and then drive the drugs back to New Orleans,
again followed closely by Parsee and Harvey.
The evidence includes records for the autos leased by Nicole on the relevant
dates, telephone and pager records revealing calls from Nicole’s residence to
Parsee’s pager on the relevant dates, hotel records for rooms rented by Nicole in
Houston on the dates in question, hotel records reflecting telephone calls from the
rented rooms to a pager linked to Harrison, records of money transfers from
New Orleans to Houston on the dates in question, and Parsee’s employment records
showing absences without excuse on the days that the illicit transactions occurred.
The first trial resulted in a deadlocked jury. On retrial, Parsee and Harrison
were convicted of conspiracy with intent to distribute cocaine. They timely
4
appealed.
Analysis
I. Batson challenges
Parsee and Harrison first contend that the district court erred in rejecting one
of their peremptory challenges and in granting one made by the government. We
find no merit in either contention.
In Batson the Supreme Court found that the peremptory challenging of
prospective jurors solely on the basis of race violated the equal protection clause.
The government excused six prospective jurors; five were African-American.
Appellants invoked Batson and the district court rejected the government’s reasons
for excusing one of the five, reinstating that juror to the venire.
For the first time on appeal, appellants urge that the government
impermissibly excluded a juror on the basis of her gender. The Supreme Court has
extended the Batson rationale to prohibit exclusion of a prospective juror solely on
account of gender.5 To be timely, such a challenge must be raised before the venire
5
J.E.B. v. Alabama, 511 U.S. 127 (1994).
5
is dismissed.6 We may now reverse only if plain error was committed,7 and only
if that plain error seriously affected the fairness, integrity, or public reputation of
the judicial proceedings.8
In explaining its peremptory challenge the government referred to the
prospective juror’s position as a teacher of disabled persons, working where drug
problems were common and in an area in which one of the appellants was raised.
These explanations obviously are not related to gender and similar bases for
excusal of a member of the venire have been upheld.9 The jury selected was made
up of four males and eight females, with two alternates, one of each gender. We
perceive no error. Had there been an error we are not persuaded that it would have
seriously affected the fairness, integrity, or public reputation of the proceedings.
In their use of peremptories the defendants excused ten jurors, all of whom
were Caucasian. The government challenged these excusals and the court rejected
the explanations offered and reinstated four. After reinstating the said four
members of the venire, the court allowed the defense three more peremptory
6
United States v. Abou-Kassem, 78 F.3d 161 (5th Cir. 1996).
7
Fed.R.Crim.P. 52(b); United States v. Stafford, 136 F.3d 1109, as modified, 136 F.3d
1115 (7th Cir.), cert. denied, 119 S.Ct. 123 (1998).
8
United States v. Olano, 507 U.S. 725 (1993).
9
United States v. Collins, 972 F.2d 1385 (5th Cir. 1992).
6
challenges, all of which again were used on Caucasians.
Jury selection is largely a subjective process and the district court’s ruling on
a Batson challenge must largely turn on its credibility assessment of counsel’s
proffered reasons for the excusal.10 The determination whether counsel used
peremptory strikes in a discriminatory manner is not to be disturbed absent clear
error.11 We find no such error herein.
II. Evidentiary rulings
Appellants challenge a host of evidentiary rulings, contending that the court
improperly admitted 404(b) evidence, lay witness testimony, and business records.
We review for abuse of discretion.12
Appellants contend that the district court abused its discretion by admitting
evidence of prior convictions and bad acts. Parsee, who did not testify, asserts that
the court abused its discretion by admitting evidence of prior convictions for
conspiracy to possess and possession with the intent to distribute cocaine, despite
the government’s asserted purpose of establishing intent, because the government
10
United States v. Kelley, 140 F.3d 596 (5th Cir.), cert. denied, 119 S.Ct. 247 (1998).
11
Hernandez v. New York, 500 U.S. 352 (1991); United States v. Bentley-Smith, 2
F.3d 1368 (5th Cir. 1993).
12
United States v. Navarro, 169 F.3d 228 (5th Cir. 1999) (404(b) evidence); Doddy v.
Oxy USA, Inc., 101 F.3d 448 (5th Cir. 1996) (lay witness testimony); United States v.
Dixon, 132 F.3d 192 (5th Cir. 1997) (business records), cert. denied, 118 S.Ct. 1581 (1998).
7
did not develop anything unique about the prior bad acts demonstrative of intent.
Harrison, who did not testify, contends that the court abused its discretion by
admitting a 1997 Texas state marihuana conviction as well as evidence of his
alleged involvement in a Texas-Missouri cocaine conspiracy because the
prejudicial effects of such admissions outweighed their probative value. Harrison
advances dissimilarities between the facts surrounding his Texas conviction and the
present charge and insists that the conviction is not relevant to his membership in
the charged conspiracy.
Rule 404(b) of the Federal Rules of Evidence prohibits the admission of
evidence of other crimes or bad acts to prove the character of a person. Such
evidence may, however, be admitted to prove intent.13 Whenever the issue of intent
is material, entry of a not guilty plea raises that intent, justifying the admission of
evidence of extrinsic acts.14 Parsee and Harrison entered not guilty pleas. Further,
regarding Harrison, the court noted some of the similarities between the offered
acts and the allegations of the pending charge – trafficking offenses, marihuana,
rental cars. Finally, the court instructed the jury that it could consider the bad acts
only for the limited purpose of intent, thereby minimizing any prejudicial effect.
13
Fed.R.Evid. 404(b).
14
United States v. Prati, 861 F.2d 82 (5th Cir. 1988).
8
We perceive no abuse of discretion in admission of this evidence.
Appellants next contend that the court erred in admitting the testimony of
Nicole regarding telephone conversations wherein a reference to “pants” was a
coded reference to the drugs. Appellants maintain that the recorded conversations
do not need this interpretive aid by the witness and is thus inadmissible under the
prevailing rule.15
Rule 701 provides that if a witness is not testifying as an expert, testimony
in the form of opinions or inferences is limited to opinions and inferences which
are rationally based on the perceptions of the witness, and which are helpful to a
clear understanding of that testimony, or the determination of a fact in issue. We
conclude that both criteria were met here; the district court did not abuse its
discretion in admitting Nicole’s testimony about the coded telephone
conversations.
First, Nicole was a participant in the conversations and she testified to her
understanding of the communications; her testimony is rationally based on her
perceptions.16 Further, a portion of her testimony concerned a coded conversation
15
Fed.R.Evid. 701.
16
United States v. Flores, 63 F.3d 1342 (5th Cir. 1995) (determining that a rational basis
exists when a conspiracy member discusses the content of a conversation about events with
which he obviously is familiar).
9
and her explanation aided the jury’s understanding.17 Finally, appellants had ample
opportunity to cross-examine Nicole; the jury responsibly could assign the proper
weight to her testimony. We discern no abuse of discretion in the admission of this
testimony.
Appellants next contend that the trial court erred by admitting various
business records18 because the company gathering the records was not the company
offering same at trial. We are not persuaded.
As we noted in Dixon, “any person in a position to attest to the authenticity
of certain records is competent to lay the foundation for the admissibility of the
records; he need not have been the preparer of the record, nor must he personally
attest to the accuracy of the information contained in the records.”19 The primary
emphasis of Rule 803(6) relates to the trustworthiness of the records at issue and
17
Id. at 1359 (determining that testimony is helpful when “tapes did not always speak for
themselves [because conspirators] disguise[d] the topic of discussion [by] pepper[ing] their
discourse with code phrases and oblique references”); United States v. Griffith, 118 F.3d
318, 321 (5th Cir. 1997) (There is a “specialized jargon endemic to the illegal drug
distribution industry. A primary purpose of this jargon is to conceal from outsiders, through
deliberate obscurity, the illegal nature of the activities being discussed. Drug traffickers will
often refer to ordinary items of commerce in lieu of illegal narcotics.”).
18
Fed.R.Evid. 803(6).
19
Dixon, 132 F.3d at 197.
10
the trial court has great latitude in resolving this issue of trustworthiness. 20
Appellants made no attack on the information contained in the records and offered
no credible reason to doubt their trustworthiness. The challenged records were duly
authenticated and kept in the regular course of business. This general challenge to
all of the records is therefore rejected.
Appellants specifically challenge the vehicle rental records because they
were created by one subsidiary of Enterprise but were offered by a different
subsidiary. They rely on United States v. Blake21 for the proposition that a co-
subsidiary relationship is insufficient to allow the custodian of one subsidiary to
offer the records of a different subsidiary. In Blake the records at issue were
created by Chesapeake & Potomac Telephone Company and were offered by a
manager of South Central Bell.22 We found that the admission of the records was
an abuse of discretion because the manager could not explain the system by which
the data were generated, point out possible errors, or respond meaningfully to
questions posed on cross-examination.23 That is not the situation in the case at bar.
20
United States v. Duncan, 919 F.2d 981 (5th Cir. 1990).
21
488 F.2d 101 (5th Cir. 1973).
22
Id. at 104.
23
Id. at 105.
11
The questioned records herein were generated by Enterprise Leasing
Company of Houston and offered by Enterprise Leasing Company of New Orleans
where the trial was conducted. Both are subsidiaries of Enterprise Rent-A-Car in
St. Louis. Unlike in Blake, the witness herein testified that the records in all
Enterprise offices nationwide are generated and maintained in the same manner.
The witness understood and could explain the system, point out any errors, and
meaningfully respond to questions on cross-examination. The court did not abuse
its discretion in admitting the vehicle rental records.
Appellants further contend that the telephone records should not have been
admitted because representatives of regional Bell operating companies offered the
records but the information contained therein was collected and generated by long
distance carriers. This assignment of error is without merit. The evidence reflects
that the regional companies bill customers for services provided by the long
distance carriers. The evidence also established, however, that the long distance
carriers collect and generate data concerning long distance calls and the regional
carriers do likewise. Admission of these records was not an abuse of discretion.
Nor do we find any error in the admission of the records tying a material
beeper to Parsee or in the admission of the records reflecting beeper information
on Harvey who testified for the prosecution and identified his pager and the
12
pertinent information.
Finally, appellants challenge the Western Union records relating to money
wired from New Orleans to Houston. The records were not offered to prove the
identities of the senders, but to confirm that in excess of $16,000 was transferred
from New Orleans, as attested to by Harvey, to Houston, as claimed by Nicole.
The identities of the senders were not at issue, only that Harvey directed individuals
to wire the money to Houston. Allowance of the introduction of these records was
not an abuse of discretion.
For these reasons, the convictions and sentences are AFFIRMED.
13