United States v. Ben J. Wiggins ( 1997 )

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No. 95-4076
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Ben J. Wiggins, *
*
Appellant. *
*
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Submitted: October 25, 1996
Filed: January 6, 1997
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Before McMILLIAN, FAGG and BEAM, Circuit Judges.
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BEAM, Circuit Judge.
Ben Wiggins challenges his drug conviction, arguing that the district
court1 erred by: 1) failing to find that the government violated Batson v.
Kentucky; 2) refusing to give a requested jury instruction; 3) submitting
a verdict form to the jury that could permit a less than unanimous verdict;
and 4) relying on the Presentence Investigation Report in sentencing. We
affirm.
I. BACKGROUND
In August 1993, Ben J. Wiggins moved into an Omaha residence owned
by Antoinette Prince. Prince, her sons and other family and friends sold
cocaine base (“crack”) from the house. Wiggins lived
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
in the Prince home for several months. A raid by drug agents on the house
led to Wiggins’s arrest.
Wiggins was charged with conspiring to distribute cocaine or cocaine
base or by conspiring to possess cocaine or cocaine base with the intent
to distribute it in violation of federal law. At trial several residents
of the Prince house testified for the government against Wiggins who was
found guilty by a jury. He now appeals on the four grounds.
II. DISCUSSION
A. Batson Claim
Wiggins, who is African American, argues that the prosecution
violated the Equal Protection Clause when it used two of its peremptory
challenges to strike African Americans from the jury panel. See Batson v.
Kentucky, 476 U.S. 79 (1986). We review the district court’s decision on
Batson claims under the clearly erroneous standard. Lovejoy v. United
States, 92 F.3d 628, 631 (8th Cir. 1996).
The district court found that the government offered race neutral
reasons to justify the strikes. The government pointed out that the first
potential juror had admitted that drugs had been discovered in her
apartment during a police raid. The second potential juror volunteered
that her brother had been convicted of possession of crack cocaine.
We agree with the district court that there has been no showing that
the reasons offered by the prosecution for striking these individuals were
pretextual. Defense counsel even conceded the legitimacy of one strike,
saying at voir dire, “I think as to [the first juror], I certainly
understand what the government’s saying and don’t necessarily have grounds
to disagree with it.”
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Tr. at 104. Regarding the second juror, this court has held that “the
incarceration of a close family member is a legitimate race-neutral reason
justifying the use of a `peremptory strike.'” United States v. Feemster,
98 F.3d 1089, 1092 (8th Cir. 1996). The district court’s denial of
Wiggins’s Batson claim was not clearly erroneous.
B. Refusal to Give Requested Jury Instruction
Defendants are entitled to an instruction explaining their theory of
the case if the request is timely made and if the proffered instruction is
supported by the evidence and correctly states the law. United States v.
Cabbell, 35 F.3d 1255, 1259 (8th Cir. 1994). The trial court declined to
give Wiggins’s proposed instruction that a buyer-seller relationship alone
is insufficient to create a conspiracy. Wiggins argues this was reversible
error, relying on United States v. Prieskorn, 658 F.2d 631 (8th Cir. 1981).
In Prieskorn, we held that while sufficient evidence supported the
defendant’s conspiracy conviction, the district court committed reversible
error by refusing his buyer-seller instruction. Id. at 636. We stated
that a reasonable juror could have believed that Prieskorn was merely a
buyer because he made one purchase, knew only one of the alleged
conspirators, and did not order the drugs he purchased. Id.
In this case, no reasonable juror could have believed that Wiggins
was involved in a mere buyer-seller relationship. Testimony at trial
indicated that Wiggins was in possession of crack every day from mid-August
1993 until November 1994. Witnesses estimated that Wiggins sold crack
cocaine approximately twenty times a day, seven days a week. The Prieskorn
instruction is not appropriate when there is evidence of multiple drug
transactions, as opposed to a single, isolated sale. United States
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v. Figueroa, 900 F.2d 1211, 1216-17 (8th Cir. 1990). Furthermore, there
was evidence that Wiggins purchased large quantities of cocaine powder from
Los Angeles and Kansas City and had it cooked into crack cocaine. The
receipt of large quantities of drugs is evidence of an intent to distribute
rather than a single buy-sell relationship. United States v. Turner, 975
F.2d 490, 497-98 (8th Cir. 1992). The district court did not err in
declining to give Wiggins’s proposed instruction because it was not
supported by the evidence.
C. Wording of Verdict Form
The verdict form ultimately used by the jury gave them two
2
alternatives. The jury could find the defendant:
[G]uilty of violating 21 U.S.C. § 846 by conspiring to
distribute a mixture or substance which contained cocaine or a
mixture or substance which contained cocaine base, namely,
“crack cocaine,” or by conspiring to possess with intent to
distribute a mixture or substance which contained cocaine or a
mixture or substance which contained cocaine base, namely,
“crack cocaine.”
[or]
[N]ot guilty of violating 21 U.S.C. § 846.
Wiggins argues that he is entitled to a new trial because ambiguity
in this wording could have allowed a guilty verdict that
2
The trial court became dissatisfied with the verdict form
originally submitted to the jury and substituted a modified form
twenty minutes after the jury had commenced deliberations.
Although Wiggins made passing reference to this procedure as
erroneous, he failed to argue this point or cite any law in support
of that contention. Failure to specify error or provide citations
in support of an argument constitutes waiver, see Primary Care
Investors, Seven v. PHP Healthcare Corp., 986 F.2d 1208, 1212 (8th
Cir. 1993), so we decline to reach the propriety of the district
court’s actions in this regard.
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was not unanimous. There are two possible sources of ambiguity in this
form, neither of which requires reversal.
First, Wiggins argues that the verdict form could have allowed the
jury to find him guilty, yet not be unanimous on which of the two charges
he had actually committed. Under the Sixth Amendment, a criminal defendant
in federal court has a right to a unanimous jury verdict. See United
States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987). The mere fact,
however, that an instruction could conceivably permit a jury to reach a
non-unanimous verdict is not sufficient to require reversal when the jury
has been instructed elsewhere that it must reach a unanimous verdict.
Fryer v. Nix, 775 F.2d 979, 992 (8th Cir. 1985).
In this case, Instruction #10 informed the jury that “if you find the
defendant, Ben J. Wiggins, guilty, you must unanimously agree upon which
of the two offenses was the subject of the charged conspiracy.” Any
possible confusion about the unanimity requirement was cured by this
instruction. Wiggins was thus not deprived of a unanimous verdict
regarding the offense charged.
Second, Wiggins asserts that the verdict form did not explain whether
the jury found Wiggins guilty of distributing cocaine or crack. Contrary
to Wiggins’s claim on appeal, a guilty verdict does not require jury
unanimity regarding the type of drugs involved. See United States v.
Owens, 904 F.2d 411, 415 (8th Cir. 1990). However, when defendants are
convicted by a verdict that is ambiguous as to what type of drug they
possessed or distributed, they may not be sentenced based upon the
alternative producing the higher sentencing range. United States v. Baker,
16 F.3d 854, 857-58 (8th Cir. 1994). However, when trial evidence leaves
no doubt as to the substance involved, it is not error to sentence a
defendant consistent with that evidence. United States v. Watts, 950 F.2d
508, 514 (8th Cir. 1991).
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Here, six witnesses testified about Wiggins’s drug dealing, and each
of them specified “crack” as the substance Wiggins marketed. Under these
facts the jury could not have been divided as to what drug was involved.
We find that sentencing Wiggins under the guidelines applicable to crack
was appropriate.
D. Objection to the Presentence Investigation Report
Finally, Wiggins complains that the district court incorrectly
adopted the findings of the presentence investigation report (PSR) without
receiving additional evidence. Rule 32(c)(1) of the Federal Rules of
Criminal Procedure requires a sentencing court to rule on any unresolved
objections to the PSR, but the court in this case was not required to hold
an evidentiary hearing.
First, Wiggins’s counsel lodged only a “general objection” to the
report and then concluded, “[h]aving said that, [y]our Honor, I recognize
that we’re not formally raising anything which would require -- or where
we would ask you to require an evidentiary hearing. The evidence all came
in at the trial; you heard it.” Tr. at 911. A sentencing court does not
have to hold an evidentiary hearing if the defendant fails to pursue
objections to the PSR. United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.
1995).
Furthermore, the sentencing judge here also presided over Wiggins’s
trial. In such a case, the court is not required to hold an evidentiary
hearing to resolve factual objections, and may instead base its findings
of fact on the trial record. United States v. Marshall, 92 F.3d 758, 760-
61 (8th Cir. 1996). The district court did exactly that. Factual
determinations made by the trial court will only be reversed if they are
clearly erroneous. See, e.g., United States v. Darden, 70 F.3d 1507, 1544
(8th Cir.), cert. denied, 116 S. Ct. 1449 (1996). Here, the trial record
amply supports the sentence imposed on Wiggins.
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III. CONCLUSION
We have considered the remainder of Wiggins’s arguments and find them
to be without merit. The trial court’s denial of Wiggins’s motion for a
new trial and Wiggins’s conviction are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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