U.S. v. Carr ( 1992 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-3037
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United States of America,
Plaintiff-Appellee,
VERSUS
Samantha Carr, Darlene Hunter, Joseph Robinson,
and Wardell Hunter,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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(November 30, 1992)
Before KING, JOHNSON and DUHÉ, Circuit Judges
DUHÉ, Circuit Judge:
This appeal follows the appellants' conviction for
conspiracy to possess cocaine with intent to distribute.
Samantha Carr, Darlene Hunter, and Joseph Robinson were found
guilty as charged after a jury trial. Wardell Hunter plead
guilty. Defendants Carr, D. Hunter, and Robinson appeal both
their convictions and their sentences. W. Hunter appeals his
sentence. We affirm.
Background
The convictions resulted from two shipments of cocaine from
Wardell Hunter in San Diego, California to his co-defendants and
unknown others in New Orleans, Louisiana. These packages arrived
at two different New Orleans addresses, one on July 18, 1989 and
the second on July 19, 1989. Each package contained
approximately one kilogram of cocaine. The intended recipients
of the first package were not apprehended,1 but a jury found that
Carr, D. Hunter, and Robinson did knowingly conspire to possess
with the intent to distribute the contents of the second package.
The second package was delivered on July 19th to Shonne
Pierce, a friend of Carr. Appellant, Darlene Hunter was the
intended recipient of the second package. Darlene claimed that
she believed that her brother, co-defendant Wardell Hunter, and
his wife2 were sending her clothes. Wardell's wife had
telephoned Darlene before the package was actually sent and told
her to expect a "surprise." Co-appellant, Carr agreed to accept
the package because of a conflicting appointment Darlene had on
the day the package was supposed to arrive. Because of a
scheduling conflict of her own, however, Carr then made
arrangements with another friend, Shonne Pierce, to accept the
1
The first package is important only in that it is
referred to by the co-conspirators when discussing the delivery
of the second package. The connection between the first and
second package was never affirmatively established, however, both
packages were identically packaged and contained the same
quantity of cocaine. Apparently, because of problems delivering
the first package, the parties attempted to stop the delivery of
the second package. This attempt to stop the delivery of the
second package lead to the arrest and indictment of the
defendants.
2
Wardell's wife, Pamela Singleton, also charged in the
indictment, was granted a motion for judgment of acquittal at
trial.
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package. Wardell Hunter was informed to express-mail the package
to Pierce's address.
On July 18th, prior to the delivery of the second package,
Wardell Hunter learned that the Louisiana authorities had
discovered the contents of the first package. Wardell called his
sister, Darlene, to warn her not to accept the second package
from the delivery person. Although unable to warn Darlene
directly, another Hunter sister, Mildred, warned Darlene that
something was wrong with the second package and that the police
had intercepted a prior package that was sent. That night Carr
called Pierce to convey the warning. Pierce testified that she
could hear Darlene in the background when Carr made the call.
Pierce also claimed that Carr told her during this conversation
that the package contained drugs or pills, although Carr denied
this.
Pierce served as a key witness for the Government. In
recounting the conversation between herself and Carr, Pierce
testified that Carr had cautioned Pierce not to accept the
package because a prior package mailed from California had been
intercepted by the police. During trial, Pierce claimed that
Carr stated that "[w]e had sent another package to another guy's
house . . . ." In Pierce's grand jury testimony, however, she
claimed that Carr stated that "[t]hey had sent another package to
another guy's house . . . ." This disputed testimony constitutes
the crux of this appeal. Pierce became alarmed after Carr's
3
phone call and told her mother of the incident. Her mother
called the authorities.
The next morning, DEA agents arrived at Pierce's house and
waited for the package to arrive. The package was delivered and,
as expected, contained cocaine. The DEA agents then set up
surveillance and placed a tape-recording device on Pierce's
phone. Carr called Pierce three times that day.
In the first call, Pierce informed Carr that the package was
delivered and that she had accepted it. Pierce demanded that the
package be removed from her house. Carr told Pierce that Darlene
Hunter would come to retrieve the package. Ultimately, Joseph
Robinson, Carr's husband, arrived at Pierce's residence and asked
for the package. Pierce refused to give it to him and told him
to have Darlene come to get the package. Darlene never came.
The authorities, however, observed Darlene park her car at a
gas station across the street from Pierce's residence that
afternoon and make a number of phone calls. She also repeatedly
looked in the direction of Pierce's residence. After leaving the
gas station, a DEA agent followed Darlene and observed her
meeting with Joseph Robinson. Neither Carr, Darlene, or Robinson
ever took possession of the package. These three, along with
Wardell Hunter and his wife, were arrested and charged with
conspiracy to distribute cocaine.
After the jury convicted the three Louisiana defendants, the
district court sentenced each to 63 months in prison. Wardell
Hunter was sentenced to 115 months.
4
Discussion
I.
The three Louisiana defendants argue that their entire
defense was based on whether they knew that there was cocaine in
the package mailed to Shonne Pierce, and that they agreed to
acquire the package in order to distribute these drugs. They
argue that the evidence establishing their mens rea was at best
tenuous. Therefore, they contend, that because the governments
case was so weak, the district court committed reversible error
by preventing the jurors from considering -- as substantive
evidence -- Shonne Pierce's prior inconsistent grand jury
testimony.3
The appellants contend that Pierce's grand jury testimony,
claiming that Carr stated that "[t]hey sent [the first package]
to another guy's house", was pivotal to the theory of their case.
At trial, Pierce changed her story and testified that Carr had
stated that "we" sent the first package of cocaine. The district
court denied a proposed jury instruction that the prior
inconsistent grand jury testimony could be considered as
substantive evidence4 and instead, included an instruction
specifically limiting jurors to considering the testimony only
for impeachment purposes. The defendants argue that this jury
3
The defendants' argument that an evidentiary error was
committed because the judge excluded the evidence is meritless.
The judge did not exclude any evidence, nor did any party ever
request an evidentiary ruling on this point.
4
Federal Rule of Evidence 801(d)(1)(A) permits such
evidence to be introduced as substantive evidence.
5
instruction was given erroneously and constitutes reversible
error.5
In a narcotics conspiracy prosecution, the government must
prove beyond a reasonable doubt: (1) that an agreement to violate
the narcotics laws existed between two or more persons, (2) that
each alleged conspirator knew of the conspiracy and intended to
join it, and (3) that each alleged conspirator did participate in
the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th
Cir. 1989). Proof of any element may be by circumstantial
evidence, and "'[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation, .
. . be sufficient to constitute conclusive proof.'" United States
v. Roberts, 913 F.2d 211, 218 (5th Cir. 1990), cert. denied ---U.S.
---, 111 S.Ct. 2264 (1991) (quoting United States v. Lechuga, 888
F.2d 1472, 1476 (5th Cir. 1989)).
We disagree with appellants theory of what the government had
to prove in order to convict the defendants of conspiracy. The
government did not have to prove that each defendant knew that
cocaine was in the package mailed to Shonne Pierce, but only that
5
When reviewing whether the district court has committed
an error in its jury instruction, this Court has stated, "[w]e
afford the district court substantial latitude in formulating its
instructions and we review a districts court's refusal to include
a defendant's proposed jury instruction for abuse of discretion."
United States v. Chaney, 964 F.2d 437, 444 (5th Cir. 1992). In
judging whether a district court abused its discretion, the Court
should "determine whether the requested instruction: (1) is a
correct statement of the law; (2) was substantively given in the
charge as a whole; and (3) concerns an important point in the
trial the omission of which seriously impaired the defendant's
ability to present a given defense effectively." Id.6
they knowingly conspired with Wardell Hunter to distribute the
cocaine contained in the second package. Appellants seem to argue
that "they sent . . ." unequivocally translates into "we had no
involvement at all." The defendants alleged lack of knowledge of
the contents of the first package does not automatically lead to
the conclusion that they did not know what was in the second
package. Therefore, we conclude that regardless of whether the
jury instruction was given in error, the distinction between "we"
and "they" did not necessarily exculpate the defendants. As a
result, any error committed by the district court was harmless.
II.
Darlene Hunter appeals her sentence. She argues that the
district court erred in denying her request for a downward
departure for unusual family hardship. She contends that the court
not only erred by failing to find that her case was "extraordinary"
under the Guidelines, meriting an exception from the general rule,
but also in stating that to depart downward in view of Hunter's
status as a single parent violated U.S.S.G. § 5H1.10, p.s. The
"general rule" under U.S.S.G. § 5H1.6, p.s. provides that "[f]amily
ties and responsibilities . . . are not ordinarily relevant in
determining whether a sentence should be outside the guideline
range" (emphasis added). U.S.S.G. § 5H1.10, p.s. provides that
race, sex, and socio-economic status are "not relevant in the
determination of a sentence." Hunter asserts that the court relied
on the latter provision in denying the downward departure. She
contends that this constituted an error of law, since consideration
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of a single mother's status was certainly not within the
contemplation of the statute.
This Court "will not review a district court's refusal to
depart from the Guidelines unless the refusal was in violation of
the law." United States v. Mitchell, 964 F.2d 454, 462 (5th Cir.
1992) (quoting United States v. Hatchett, 923 F.2d 369, 373 (5th
Cir. 1991)). Even if the district court erroneously relied on §
5H1.10, the court also made an independent finding that Darlene's
family situation was not so extraordinary to require a departure
downward under the general rule. Because the district court's
refusal to make an exception from Guidelines' policy and depart
downward was not a violation of the law, the sentence will not be
disturbed.
III.
Appellants Carr and Robinson argue that the district court
erred by failing to adjust their sentences in view of their "minor"
or "minimal" role in the offense. See U.S.S.G. § 3B1.2. They
claim that the district court based its denial of their requested
adjustments for their allegedly minor role in the offense, solely
on the jury's guilty verdict. They contend that by deferring to
the jury's verdict, the court failed to make the required factual
finding as to minimal participant status. See United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
This Court will affirm the district court's sentence "so long
as it results from a correct application of the guidelines to
factual findings which are not clearly erroneous." United States
8
v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). "A factual finding
is not clearly erroneous as long as it is plausible in light of the
record as a whole." United States v. Sanders, 942 F.2d 894, 897
(5th Cir. 1991). A defendant's status as a "minimal participant"
or "minor participant" is one of several sophisticated factual
determinations which "enjoy the protection of the clearly erroneous
standard." United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th
Cir.) cert. denied, 492 U.S. 924 (1989).
The district court made an express finding that all the
Louisiana appellants "were equally culpable." The record reflects
that the district court carefully considered the law in this
circuit in making its factual determination as to minimal
participant status. This fact finding is entitled to deference and
will not be disturbed.
IV.
Wardell Hunter appeals the district court's refusal to reduce
his offense level by two points under U.S.S.G. § 3E1.1 for
accepting responsibility for his criminal activity. Wardell's
appeal was filed in excess of ten days after the district court's
sentence was formally entered, therefore it is untimely under
Federal Rule of Appellate Procedure 4(b).6 "A timely notice of
appeal is not jurisdictional; however, in this circuit it is a
prerequisite to our exercise of jurisdiction." United States v.
Winn, 948 F.2d 145, 153 (5th Cir. 1991). Hunter has offered no
6
The sentence was formally entered on January 13, 1992.
Hunter's notice of appeal was filed on February 11, 1992.
9
reason for his failure to file within the requisite period. As a
result, this Court declines to consider his appeal. See United
States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1982); United
States v. Ugalde, 861 F.2d 802, 805 (5th Cir. 1988). Even were we
to consider it we find it without merit.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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