United States v. Wyche ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 28, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-30145
UNITED STATES OF AMERICA
Plaintiff - Appellee,
VERSUS
LARRY GLEN WYCHE,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Louisiana, Shreveport
(00-CR-50085-1)
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
BACKGROUND
Appellant Larry Glenn Wyche (“Wyche”) was indicted for
conspiracy to possess with intent to distribute more than 50 grams
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846
*
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that this opinion should not be published and is not precedent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.
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(Count One), for aiding and abetting the possession with intent to
distribute more than 50 grams of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two), and criminal
forfeiture under 21 U.S.C. § 853 (Count Three). On August 30,
2001, after a three-day jury trial, a jury found Wyche guilty of
the first count, but was undecided on the second count, and the
jury also found that the property described in Count Three was
subject to forfeiture. Wyche now appeals raising several issues.
The relevant facts, established at trial are as follows.
Wyche was in the business of putting on rodeos and bull riding
contests and raising bucking stock to lease or sell to rodeo
proprietors. The family business, called the Diamond L Ranch and
Rodeo Company, operated out of Adair County, Oklahoma, where Wyche
lived.
Ernest Mathes, a resident of Doyline, Louisiana, bought
methamphetamine from Wyche on five or six occasions beginning in
January 1995. On at least two of those occasions, Wyche met Mathes
at an Oklahoma convenience store and sold him one pound of
methamphetamine for $20,000.00. On another occasion they met at an
Arkansas convenience store and exchanged $10,000.00 for one-half
pound of methamphetamine. At trial, Mathes testified that he knew
methamphetamine was available by calling Wyche and using the code
word “bulls” for methamphetamine. Mathes is not a cattle raiser or
rodeo proprietor and has had no association with bulls.
In three phone calls, recorded by the government, in late 1996
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Mathes asked Wyche whether the bulls were in. In each call, Wyche
said they were not in yet but he expected them soon. In a fourth
and final call, Wyche gave up on the bulls coming in and said he
could not “find nothing to do nothing with.”
Sammy Slayter, who testified while awaiting sentencing for
possession with the intent to distribute more than 50 grams of
methamphetamine, was introduced to Wyche when a man named Kipper
Glazer took him and Mathes to buy drugs from Wyche in late 1995.
On several of occasions, Slayter sold methamphetamine in Louisiana
that Mathes had purchased from Wyche. Slayter received a share of
the profit in exchange for a his work selling the methamphetamine.
Starting in 1996 and continuing to 1999, Slayter began
traveling to Oklahoma alone to purchase methamphetamine directly
from Wyche. Slayter would make the trip every 2-3 weeks and would
purchase approximately 4 ounces for approximately $5,000.00. In
recorded phone conversations, Slayter and Wyche appeared to use the
code word “bulls” for methamphetamine; however, in at least one
conversation Slayter, who testified that he liked to ride bulls and
occasionally worked for the Diamond L Ranch and Rodeo Company, and
Wyche appear to be discussing actual bulls.
David McCarty, who testified while awaiting sentencing on a
drug selling conviction, met Wyche through Slayter and purchased
drugs from Wyche on three to five occasions. On one occasion
Slayter picked up the drugs from Wyche for McCarty.
DEA Agent Michael Hembry testified at Wyche’s trial. On
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cross-examination he conceded that no methamphetamine was found
when Wyche’s house was searched. On re-direct, the prosecutor
asked Agent Hembry whether any drugs were found, and Agent Hembry
answered yes. Wyche immediately moved for a mistrial. The court
denied the motion. Outside the jury’s presence, the court stated
that Wyche had opened up the subject by asking wether
methamphetamine was found, but the court also instructed the
prosecution to move on to another subject. The court declined
Wyche’s request that the jury be admonished because the court
believed such an admonishment would be counterproductive and draw
more attention to the subject. Then Wyche’s lawyer, on re-cross
examination had Agent Hembry disclose that the drug found was
marijuana and that the agent had no personal knowledge of the
finding and that there was no evidence to prove that the substance
found was marijuana. At the close of the government’s case and at
the close of all the evidence, Wyche unsuccessfully moved for
judgment of acquittal.
During deliberations, the jury sent a note to the court asking
for an explanation of the difference between Counts One and Two of
the indictment. The court responded, over Wyche’s objection, by
giving the jury copies of the relevant statutes. The jury found
Wyche guilty of Count One but was undecided on Count Two. The
court immediately moved to the forfeiture phase of the trial, and
both sides rested on the evidence they had already presented. The
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jury found that the property alleged in Count Three was subject to
forfeiture. After the jury verdict, Wyche unsuccessfully moved for
judgment of acquittal.
The pre-sentencing report determined a sentencing range to be
188-235 months, and Wyche moved for a downward departure on the
ground that his age (then 62) and poor health would mean that he
would likely die while in prison. The district court denied the
motion and sentenced Wyche to 212 months in prison and 5 years of
supervised release.
On appeal Wyche challenges the sufficiency of the evidence
supporting his conviction, the court’s giving the statutes to the
jury in response to the jury’s questions, the denial of his motion
for mistrial, the admission of evidence pertaining to phone calls
between Wyche and government witnesses, the sufficiency of the
evidence supporting the forfeiture, and the refusal of the district
court to grant a downward departure to his sentence.
DISCUSSION
I. Whether the evidence was sufficient to support Wyche’s
conviction for conspiracy to possess with intent to distribute
more than 50 grams of methamphetamine.
“In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational jury could have found that the
evidence established guilt beyond a reasonable doubt on each
element of the offense, drawing all reasonable inferences from the
evidence and viewing all credibility determinations in the light
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most favorable to the verdict.” United States v. Solis, 299 F.3d
420, 445 (5th Cir. 2002). “To sustain a conviction for conspiracy
under 21 U.S.C. § 841, the government must prove beyond a
reasonable doubt: (1) the existence of an agreement between two or
more persons to violate narcotics law; (2) the defendant’s
knowledge of the agreement; and (3) the defendant’s voluntary
participation in the agreement.” Id. at 445 (internal quotations
and citations omitted). The jury may infer these elements from
circumstantial evidence. Id. at 446.
Wyche argues that the evidence shows, at most, the he had a
buyer-seller relationship with the witnesses, which is insufficient
to prove a conspiracy. The government counters that the evidence
shows more than a mere buyer-seller relationship because Wyche sold
a substantial amount of drugs in standardized quantities on
repeated occasions over an extended period of time to the same
individuals who in-turn resold those drugs. According to the
government, the jury could infer from this evidence that there was
an agreement to possess with the intent to distribute. See United
States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998) (finding
“[e]vidence of a conspiracy, as opposed to a buyer-seller
relationship, may include transactions involving large quantities
of drugs, prolonged cooperation between the parties, [and]
standardized dealings . . . .”).
Although, evidence of a buyer-seller relationship does not
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establish the existence of a conspiracy, this evidence can
demonstrate the defendant’s role in a conspiracy. United States v.
McKinney, 53 F.3d 664, 672 (5th Cir. 1995); United States v.
Thomas, 12 F.3d 1350, 1365 (5th Cir. 1994); United States v.
Maseratti, 1 F.3d 330, 336 (5th Cir. 1993). For example, in Direct
Sales Co. v. United States, 319 U.S. 703 (1943), the Supreme Court
upheld the conspiracy conviction of a mail-order wholesale drug
corporation that sold morphine to a small-town physician in
unusually large quantities, frequently, and over an extended
period. Id. at 713. The court held that when the evidence shows
the defendant was “working in prolonged cooperation” with the
distributors in order to “supply [them] with [their] stock in trade
. . . [t]he step from knowledge to intent and agreement may be
taken.” Id.In the present case, the government had evidence of prolonged
cooperation by Wyche to supply the witnesses with the stock they
needed so they could carry on their drug trade. Therefore, a
rational jury could have inferred from the evidence that Wyche was
guilty beyond a reasonable doubt and the district court did not err
in refusing to grant Wyche’s motion of acquittal.
II. Whether the district court abused its discretion in giving the
jury a copy of the applicable statutes and whether this action
constructively amended the indictment.
The Court reviews a challenge to jury instructions only for
abuse of discretion. United States v. Dien Duc Huynh, 246 F.3d
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734, 738 (5th Cir. 2001). “A district court has broad discretion
in framing the instructions to the jury and this Court will not
reverse unless the instructions taken as a whole do not correctly
reflect the issues and law.” Id. (citations omitted). “When a
jury expresses confusion and difficulty over an issue the trial
court has an obligation to ‘clear them away with concrete
accuracy.’” United States v. Carter, 491 F.2d 625, 633 (5th Cir.
1974) (quoting Bollenbach v. United States, 326 U.S. 607, 613
(1946)).
Wyche contends that providing a copy of the relevant statutes
confused the jury because it: (1) duplicated what was already
instructed; (2) added the unnecessary language in § 846 regarding
attempt; and, (3) unnecessarily informed the jury that the
conspiracy count would be penalized the same as if it were a
substantive count. The government responds that the reason for
providing the statutes was to help the jury differentiate between
the two counts, conspiracy and aiding and abetting.
Assuming that simply giving a copy of the relevant statute to
the jury can be considered a supplement instruction, nothing in
those instructions misstated the law. The fact that the statutes
provided some extra information concerning attempt and the
punishment of conspiracy is irrelevant because the jury was
instructed that Wyche could only be convicted of the crimes charged
in the indictment. Therefore, the instructions as a whole did
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reflect the issues and the law in this case and the court did not
abuse its discretion.
Further, because Wyche did not allege that the indictment had
been amended when the copy of the relevant statutes was given to
the district court, we review his claim in this respect for plain
error. Again Wyche alleges that by giving the jury a copy of
§ 846, which makes unlawful conspiracy and attempt, the district
court allowed the jury to find him guilty of attempt, a crime not
charged in the indictment. The district court, however, never
instructed the jury as to attempt but rather stated that Wyche was
only on trial for crimes charged in the indictment. The statutes
were given to clarify the difference between aiding and abetting
and conspiracy, the only issues that the court instructed the jury
on. Therefore, the indictment was never amended and hence there
can be no plain error.
III. Whether the district court abused its discretion in denying
Wyche’s motion for mistrial.
We review the denial of a motion for mistrial on the basis of
prosecutorial misconduct for abuse of discretion. United States v.
Castillo, 77 F.3d 1480, 1497 n.33 (5th Cir. 1996) (citations
omitted). The Court must determine whether the prosecutor’s remark
was improper and if so whether the remark “affected the substantial
rights of the defendant.” United States v. Gallardo-Trapero, 185
F.3d 307, 320 (5th Cir. 1999).
Wyche argues that the prosecutor’s question about the finding
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of drugs was improper. The government responds that the question
was invited and even if improper there was no prejudice.
The district court found that the remark concerning the
finding of marijuana was not prejudicial and this Court defers to
the district court’s assessment of prejudice. See United States v.
Millsaps, 157 F.3d 989, 993 (5th Cir. 1998). Accordingly, even if
the remark was improper, the court found there was no prejudice and
also that a cautionary instruction was unnecessary and likely more
detrimental. Therefore, the court did not abuse its discretion in
denying Wyche’s motion for mistrial.
IV. Whether the court abused its discretion in admitting evidence
concerning recorded phone conversations between Wyche and the
government’s witnesses.
This Court reviews evidentiary rulings for abuse of
discretion, and even if this Court finds an abuse of discretion, we
review the error under the harmless error doctrine. United States
v. Sharpe, 193 F.3d 852, 867 (5th Cir. 1999).
The district court admitted into evidence audio tapes of phone
calls between Wyche and the government’s witnesses, transcripts of
those calls, and a CD-ROM that allowed the jury to read the
transcripts contemporaneously while listening to the audio tapes.
Wyche contends that admitting the three forms of evidence was
cumulative and he had not been provided a copy of the audio tapes
until the weekend before the trial and therefore there was a
discovery violation and the tapes should not have been admitted.
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The decision to admit a transcript to aid in understanding an
audio recording is within the discretion of the trial court,
subject to the issuance of a proper limiting instruction. United
States v. Larson, 722 F.2d 139, 144 (5th Cir. 1983). The district
court gave a limiting instruction that the transcript was only to
aid the jury in following the conversation and identifying the
speakers and that whether the transcript was correct or incorrect
the jury was to make its own determination after listening to the
tapes. As to the CD-ROM, the court found it to be an acceptable
rendition of the tapes and transcript and a more simplified way to
hear the conversation and read the transcript simultaneously.
Further, the district court determined that there was testimony
that Wyche’s counsel had been given the audio tapes earlier than
Wyche claimed and moreover there was no prejudice to Wyche in
admitting the tapes. Accordingly, having the tapes, transcripts,
and CD-ROM was useful and not prejudicial and there was no finding
of a discovery violation that prejudiced Wyche and, therefore, the
district court did not error in admitting the tapes into evidence.
V. Whether the evidence was sufficient to support forfeiture.
Wyche argues that, for the same reasons the evidence was
insufficient to support the conspiracy conviction, the evidence was
insufficient to support the forfeiture. Wyche fails to brief any
arguments independent from the arguments made that the evidence was
insufficient to support the conspiracy conviction. For the same
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reasons we rejected his sufficiency challenge to the conspiracy
conviction we also reject his sufficiency challenge to the finding
of forfeiture.
VI. Whether the court erred in not granting Wyche a downward
departure in his sentence.
Under 18 U.S.C. § 3742(a), this Court only has jurisdiction to
review a failure to depart downward a defendant’s sentence if the
district court mistakenly believed that it could not depart
downward. United States v. Brace, 145 F.3d 247, 263 (5th Cir.
1998). Wyche asserts that the district court failed to recognize
that age and physical infirmity are “encouraged” bases for
departure. The record does not support Wyche’s argument. Nothing
in the transcript of the sentencing hearing indicates that the
court believed it could not depart downward and likewise the
government never argued that the court lacked the authority to
depart downward. Therefore, the sentence cannot be reviewed.
CONCLUSION
Having considered the record, the parties’s briefs and oral
arguments, the jury verdict and the decisions of the district court
are affirmed. AFFIRMED
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