United States v. Newton , 44 F.3d 913 ( 1994 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 92-8228, 92-8764 and 94-8376.
UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph NEWTON, Eddie Gregory Batten, Robert Moss, Jr., John
Brown, Jr., Grady D'Vaughn Reddick, Sean Jackson, Robert Jivens,
Willie Lee Palmer, Sr., Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert MOSS, Jr., Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Grady D'Vaughn REDDICK, Defendant-Appellant.
Dec. 22, 1994.
As Corrected by Order Dated Jan. 30, 1995.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CR491-176-3), B. Avant Edenfield, Chief
Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior
Circuit Judge.
ORDER
The court, on the panel's own motion, has reconsidered the
opinion heretofore issued in these cases. Upon such
reconsideration it appears that passages in the original opinion
appear to ground the judgment of the court upon an erroneous
premise. It is therefore ORDERED that the attached opinion is
substituted as the opinion of the court.
Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior
Circuit Judge.
HILL, Senior Circuit Judge:
Appellants Joseph Newton, Grady D'Vaughn Reddick, Willie Lee
Palmer, John Brown, Jr., Robert Jivens, Sean Jackson, Eddie Batten,
and Robert Moss appeal their convictions and sentences for
conspiracy to distribute and to possess with intent to distribute
cocaine, violating 21 U.S.C. § 846 (Count One). Moss appeals his
conviction of employing persons under eighteen years of age to
distribute controlled substances, violating 21 U.S.C. § 861(a)(1)
(Count Two). Jivens, Moss, Batten, Brown, and Jackson appeal their
convictions of using a firearm during a drug trafficking offense,
violating 18 U.S.C. § 924(c) (Count Three). Reddick and Palmer,
charged as aiders and abettors under Count One, appeal their
convictions on substantive money laundering offenses, violating 18
U.S.C. § 1956(a)(1)(B)(i) (Counts Four, Five, Six, and Seven).
Newton and Moss appeal their convictions for using a communication
facility to commit a drug felony, violating 21 U.S.C. § 843(b) and
(c) (Counts Nine and Ten). For the reasons that follow, we affirm
the convictions and sentences of Brown and Moss and reverse
Reddick's convictions. The judgments of conviction and the
sentences of Newton, Palmer, Jivens, Jackson, and Batten are
affirmed without opinion. See 11th Cir.R. 36-1.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 1991, a federal grand jury indicted seventeen
individuals as members of a crack cocaine distribution conspiracy
who acted under the direction of and in concert with Ricky Maurice
Jivens.1 The conspiracy's genesis was in late 1988. The locally
notorious street-level crack gang routinely employed violence and
was responsible for many homicides and aggravated assaults in
Savannah. To insure loyalty and to prevent members from readily
turning on their former confederates, Ricky Jivens insisted on all
of the principals' "getting down," that is, killing someone before
receiving any sizeable quantity of "fronted" cocaine. The Jivens
organization was equally murderous in dealing with people who owed
them money, stole from them or sought to, in Ricky Jivens' words,
"switch out."
The rash of violence caused the assembly of a state and
federal task force in January 1991, focusing on the gang's
activities. The gang's cohesiveness began to unravel when the Drug
Enforcement Agency (DEA) task force was successful in infiltrating
the group with undercover informants and in converting gang members
to informants. 2 Following the arrest of Ricky Jivens and Sean
Jackson on September 20, 1991, the DEA agents obtained a series of
search warrants and executed a coordinated series of raids the next
1
Principal indictee Ricky Maurice Jivens entered a guilty
plea to: (1) conducting a continuing criminal enterprise (CCE)
offense, 21 U.S.C. § 848 (Count Four); (2) using a firearm
during and in relationship to a drug trafficking crime, 18 U.S.C.
§ 924(c) (Count Three); (3) a substantive money laundering
offense, 18 U.S.C. § 1956(a)(1)(B)(i) (Count Five); and (4) the
general forfeiture allegation, 21 U.S.C. § 853 (Count Seventeen).
Jivens was sentenced to life imprisonment without parole. His
sentencing appeal was affirmed by this Court. United States v.
Jivens, 11th Cir., 1993, 996 F.2d 314.
2
One informant, Frank Brown, was utilized by the agents to
make some recorded undercover purchases of crack cocaine from
Robert Jivens, Levon Bazemore and Robert Moss. Immunized
coconspirator Jerome Richardson consented to the DEA's placing
audio and video bugging devices in a southside Savannah apartment
the task force obtained for him.
morning, bringing Appellants into their net. After indictment, a
jury trial was held in January 1992. With one exception, the jury
convicted Appellants on all counts.3 The district court denied
Moss' extraordinary motion for new trial.4 The remaining
Defendants either pled guilty or their trials were severed from the
main group.
II. ISSUES ON APPEAL
Each of the three remaining Appellants raises many separate
issues on appeal.5 Those issues with merit are: (1) Moss contends
that the district court erred in denying his motion for a new trial
based on newly discovered evidence and in considering activities
before his eighteenth birthday in applying the Sentencing
Guidelines; (2) Brown contends that during closing argument, the
prosecutor improperly vouched for the credibility of his own
witness; and (3) Reddick asserts that the evidence was
insufficient to support his convictions.
III. DISCUSSION
A. Moss' Rule 33 Motion
Moss contends that the district court erred in denying his
motion for new trial based on newly discovered evidence pursuant to
Rule 33 of the Federal Rules of Criminal Procedure. He asserts
that after trial it was ascertained that the testimony of a
3
The court directed a verdict of acquittal for Robert Jivens
on Count Two.
4
Moss' appeal of that ruling has been consolidated with the
direct appeal.
5
All issues not listed here are without merit and warrant no
discussion.
juvenile witness, identified as CJR, was in all likelihood
perjurious concerning Moss' involvement in the murder of indicted
drug dealer Antonio Anderson. CJR testified that he heard Moss'
voice inside the drive-by car from which the fatal bullets were
fired. CJR testified that Anderson was shot by two automatic
weapons, a Tech-9 and an AK 47, from a distance of ten to fifteen
6
feet. This testimony was later proved incorrect. After trial,
Savannah Police Department homicide records and Georgia Bureau of
Investigation crime lab reports were discovered in the Government's
possession by defense attorneys preparing for another case. These
documents suggested that Anderson was shot at close range, six to
eighteen inches, and died from gunshot wounds from a .38 or .357
pistol, not an automatic weapon. CJR also testified that Anderson
was shot about 11:00 p.m. when the actual time of death was shown
by the autopsy report and Savannah homicide records to be many
hours earlier.
Moss contends that the Government's failure to provide him
with copies of the reports prior to trial violates Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The
Government asserts that the reports were never in the actual
physical custody of the prosecutor. It contends that the reports
were mailed from the state crime lab to the state district
attorney's office and inadvertently placed in a generic file
cabinet. The Government also asserts that, even if Moss' defense
6
The Government contends that CJR was not lying about the
Anderson homicide but was merely mistaken, and that any
impeachment of his testimony should be strictly limited to the
murder.
attorney had been privy to this impeaching evidence prior to trial,
it would not have changed the verdict. We agree.
1. Standard of Review.
The denial by the district court of Moss' extraordinary
motion for new trial is reviewed for abuse of discretion. United
States v. Champion, 813 F.2d 1154, 1172 (11th Cir.1987).
2. Analysis.
The Supreme Court has held that "suppression by the
prosecution of evidence favorable to an accused upon request
violates due process when the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97.
Evidence favorable to the accused includes impeachment evidence.
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3384,
87 L. Ed. 2d 481 (1985). A constitutional error occurs, however,
only if the suppressed evidence is material, i.e., only if "there
is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different." Bagley, 473 U.S. at 680, 105 S.Ct. at 3383.
This court applies a four-prong test to decide whether a new
trial is required because of a Brady violation. United States v.
Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992). To obtain a new
trial, a defendant must show each of the following elements: (1)
that the Government possessed evidence favorable to the defendant
(including impeachment evidence); (2) that the defendant did not
possess the evidence nor could he have obtained it himself with any
reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been revealed to
the defense, there is a reasonable probability that the outcome of
the proceedings would have been different. Id. at 994.
After an evidentiary hearing on the Rule 33 motion, the
district court found that although Moss proved the first three
elements, he failed to prove the fourth because he could not show
that the undisclosed evidence would have made any difference in the
verdict. The trial judge refused to grant Moss a new trial.
Suppression of evidence results in constitutional error "only if
the evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial." Bagley, 473
U.S. at 678, 105 S.Ct. at 3381.
The Brady rule protects a defendant from erroneous conviction
and is not designed to punish the Government. See Jackson v.
Wainwright, 390 F.2d 288, 295 (5th Cir.1968). A punitive element
is, however, often enrobed in or accompanies a Brady violation, but
it implicates the Government's lawyer qua lawyer and not the
Government as a party. Should it appear that Government counsel
has intentionally—or culpably carelessly—concealed known Brady
material from a defendant, the lawyer is not absolved from that
professional misdeed merely because the concealment is found not to
have been material in the Bagley sense.
This record does not display intentional concealment; the
information in question was not in the possession of Government
counsel. It is not clear that more diligence would have discovered
the material. It would have shown CJR's testimony about the
Anderson murder to have been inaccurate in several respects. Moss
was not charged with Anderson's murder, but the inaccuracy would
have been admissible for impeachment. However, considering the
entire record, we conclude that the omission was not material in
the Bagley sense. Its suppression does not "undermine confidence
in the outcome of the trial." The record is replete with proof of
Moss' involvement on the four counts on which he was charged
without regard to CJR's testimony.7 We therefore conclude that the
district court did not abuse its discretion in denying Moss' motion
for a new trial.
B. Moss' Sentencing Appeal
Moss contends that the district court should not have
considered acts before his eighteenth birthday in determining the
quantity of drugs attributable to him under the Sentencing
Guidelines. Moss argues that "virtually all of the evidence cited
by the Probation Officer at the sentencing hearing in support of
his conclusion as to the quantity of drugs attributable to Moss
7
The jury found Moss guilty of four counts: conspiracy to
possess with intent to distribute cocaine; employment of a
minor; use of a firearm; and use of a telephone in furtherance
of a drug trafficking crime. The Government introduced
surveillance videotapes showing Moss working with members of a
Jivens organization. In the videotapes, Moss can be seen hiding
a firearm in a flowerpot in the yard on one occasion. When the
police searched the apartment where Moss conducted this activity,
the officers found guns and ammunition; in the yard, they
discovered cocaine. In another surveillance videotape, the jury
heard Ricky Jivens angrily denounce Moss for failing to pay
Jivens his entire debt and threaten to cut off Moss from future
cocaine deliveries. Next the videotape shows Jivens telephoning
someone. It is clear from the context that he is calling Moss.
Further, Jerome Richardson testified that Moss was a member of
the conspiracy and that a minor know as "Little Charlie" worked
for Moss. Therefore, based on evidence other than CJR's
testimony, the jury could have reasonably found that the
Government proved Moss guilty beyond a reasonable doubt on all
four counts.
involved sources that provided their information before Moss'
eighteenth birthday." The district court rejected this argument
and adopted the Probation Officer's finding that Moss was
responsible for at least five kilograms but less than fifteen
kilograms of cocaine base (Base Offense Level 40). We agree.
1. Standard of Review.
Sentencing issues present predominantly factual issues which
are reviewed under a clearly erroneous standard. 18 U.S.C. §
3742(e); United States v. Cain, 881 F.2d 980, 982 (11th Cir.1989).
2. Analysis.
Where there is one continuous conspiracy, and the defendant
has straddled his eighteenth birthday by membership in that
conspiracy both before and after that significant day, his prior
acts could be found to be the sole basis for guilt. United States
v. Cruz, 805 F.2d 1464 (11th Cir.1986), cert. denied, 481 U.S.
1006, 107 S. Ct. 1631, 95 L. Ed. 2d 204 (1987). Nevertheless, the
district court charged the jury that they could find Moss guilty
only for acts that he committed after his eighteenth birthday.8
Under a clearly erroneous standard, we determine that the district
court was correct in sentencing Moss merely by our looking at the
evidence against him after he turned eighteen on July 21, 1991.
The Government introduced into evidence a July 23, 1991, audio
tape of the first telephone call made (at its request) by
undercover informant Jerome Richardson to Ricky Jivens. On the
8
Although this instruction was proposed by the Government,
it appears that Moss received the benefit of instruction to which
he was not entitled. See United States v. Cruz, 805 F.2d 1464
(11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1631, 95
L. Ed. 2d 204 (1987).
tape, Richardson tells Jivens that the police have been questioning
him about certain of Jivens' activities. Jivens asks Richardson if
the police have inquired about certain individuals; one of the
first names Jivens mentions on the tape is "Muffie," Moss'
nickname. Richardson testified that he was at a Savannah bar in
August 1991, with Moss. Moss' pager went off and Moss dispatched
a young man named Telly to get an ounce of cocaine. Richardson
further testified that Moss delivered $20,000 on one occasion, and
$10,000 on another occasion, to Jivens. In a September 18, 1991,
videotape introduced into evidence by the Government, Ricky Jivens
states that he is tired of Moss "shorting him" on payments. The
last undercover call made from Richardson to Moss occurred after
Ricky Jivens was arrested on September 20, 1991. Agents directed
Richardson to call Moss and to pose as Ricky Jivens. Moss told
Richardson, thinking him to be Jivens, "[that] it was a slow day."
When Moss was arrested that night, he was in the company of Michael
Williams, another indicted coconspirator, and had a cellular
telephone and a pager in his possession.
Even considering only Moss' post-eighteen criminal conduct, we
find there is ample evidence against Moss to substantiate the
9
sentences for the offenses of which he was convicted. The
district court was not clearly erroneous in its finding that Moss
had a base offense level of 40 and in sentencing him accordingly.
9
Moss was convicted of: conspiracy to distribute cocaine,
in violation of 21 U.S.C. § 846 (Count One); employing a minor
to distribute controlled substances, in violation of 21 U.S.C. §
861(a)(1) (Count Two); use of a firearm during a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (Count
Three); and use of a communication facility to commit a drug
felony, in violation of 21 U.S.C. § 843(b) and (c) (Count Ten).
C. Brown—Vouching for Witness
Brown argues that the prosecutor impermissibly vouched for
the veracity of a pivotal Government witness, Jerome Richardson, in
his closing argument, citing United States v. Sims, 719 F.2d 375,
377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1304,
79 L. Ed. 2d 703 (1984). He contends that plain error was committed
when the prosecutor told the jury that, in effect, a federal judge
found Richardson credible enough to issue a search warrant.10 Brown
10
The prosecutor stated:
Moving on to John Brown, Big John. The juvenile said
John Brown used to pick Ricky up, and he knew money was
picked up from John Brown. Jerome Richardson stated
that a year and a half ago, before he was an informant,
John Brown brought Jivens, Ricky, $15,000 at Waldburg
and Lincoln. Ground zero for the Ricky Jivens' cocaine
operation.
Jerome Richardson said, and you saw evidence of this on
the videos, that John Brown was the one, John was the
one who didn't return Ricky's pages enough—promptly
enough to satisfy the boss. And Jerome Richardson
testified that he went to 40 C Lakeside Apartments to
pick up the money that Ricky had directed them to go
pick up from John Brown, a sum greater than $10,000 and
bring back to Ricky.
Now as Agent Snider testified, that information was the
sole basis the agents had to go seek the search warrant
on Mr. Brown. And a judge, state or federal, is not
going to give a Drug Enforcement Administration agent
or any law enforcement officer a search warrant to
search anybody's house for no reason. They got to have
some showing and the showing, as Mr. Snider testified
to, was largely a narrative of what Jerome Richardson
had related in other aspects of the case.
And what do the agents find when they go out there?
Drugs, cash, glassine bags, a ledger, completely
corroborating what Jerome Richardson testified to.
Look at the Government's "28" series exhibits. They
show beyond a shadow of a doubt John Brown to be
dealing cocaine and the other evidence in the case
shows John Brown to have been dealing cocaine for and
asserts that the effect of these remarks was to place the prestige
and office of the judiciary behind Richardson and turn the judge
into a witness for the prosecution. The Government argues that it
was merely suggesting to the jurors that DEA agents were successful
in obtaining a search warrant based on Jerome Richardson's
information and the resulting search confirmed that information.
We agree.
1. Standard of Review.
Absent a contemporaneous objection, the propriety of the
Government's closing argument and alleged prosecutorial misconduct
in improperly vouching for a witness' credibility are reviewed
under a plain error standard. Fed.R.Crim.P. 52(b); United States
v. Lacayo, 758 F.2d 1559, 1564 (11th Cir.), cert. denied, 474 U.S.
1019, 106 S. Ct. 568, 88 L. Ed. 2d 553 (1985).
2. Analysis.
Attempts to bolster a witness by vouching for his credibility
are normally improper and constitute error. United States v.
Ellis, 547 F.2d 863, 869 (5th Cir.1977). It is improper for the
prosecution to place the prestige of the Government behind a
witness by making explicit personal assurances of the witness'
veracity. United States v. Eley, 723 F.2d 1522, 1526 (11th
Cir.1984). We denounce lawyers who give their personal opinion
that "I believe the witness is telling the truth." United States
v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
Here we have undertaken to weigh the prosecutor's comments in
the context of the entire trial. We are persuaded that the
with Ricky Jivens. (Emphasis added.)
incident was neither vouching nor an attempt to invoke the court as
a guarantor of truthfulness. When the prosecutor stated "[a]nd a
judge, state or federal, is not going to give a ... law enforcement
officer a search warrant to search anybody's house for no reason
...," this was a suggestion to the jury that the information
Richardson gave to the court to support the warrant was confirmed
by the search, and, lo and behold, these very articles were found.
"The prohibition against vouching does not forbid prosecutors from
arguing credibility ... it forbids arguing credibility based on the
reputation of the government office or on evidence not before the
jury." United States v. Hernandez, 921 F.2d 1569, 1573 (11th
Cir.1991). The remarks were designed to refer the jury to evidence
in the case that was favorable to the Government. Id.
To the extent that the prosecutor might have been interpreted
as saying, "The judge who issued the search warrant must have
believed that Richardson was a credible person or he would not have
issued a search warrant on the basis of his statement," this would
have been offensive vouching. Brown strains to reach this
interpretation however. The question is: what did the agents find
when they got there? The same things Richardson said they would
find. While the prosecutor teetered on the line dividing a proper
from an improper closing argument, his comments were not an
explicit personal or judicial endorsement of credibility and, in
the absence of objection, do not constitute plain error.
D. Reddick—Sufficiency of the Evidence
The indictment named Reddick as an aider and abettor who
willfully assisted Ricky Jivens in the conspiracy by serving as his
nominee. He was also charged with a single substantive money
laundering violation by knowingly becoming the lessee of record on
property located at 102 Chowning Drive in Savannah to conceal
Jivens' interest. Reddick contends that the Government's evidence
at trial was insufficient to support his convictions on both
counts. We agree.
1. Standard of Review.
In reviewing the sufficiency of the evidence, this Court is
limited to inquiring whether, construing the evidence and drawing
all inferences and credibility choices in the Government's favor,
any reasonable jury could have found the defendants guilty beyond
a reasonable doubt. Glasser v. United States, 315 U.S. 60, 62
S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Van Hemelryck,
945 F.2d 1493, 1499 (11th Cir.1991).
2. Analysis.
To support a conviction for conspiracy, the Government must
prove that a conspiracy existed, that the defendant had knowledge
of the essential aims of the conspiracy, and that with such
knowledge, the defendant joined the conspiracy. United States v.
Blasco, 702 F.2d 1315, 1330 (11th Cir.1983). To be guilty of
aiding and abetting a conspiracy, a defendant need only "associate
himself with the crime, participate in it as something he wishes to
bring about, and seek by his actions to make it succeed." United
States v. Pepe, 747 F.2d 632, 665 (11th Cir.1984). An aiding and
abetting offense occurs when a defendant assists the perpetrator of
the crime while sharing in the requisite criminal intent. United
States v. Martinez, 555 F.2d 1269, 1271 (5th Cir.1977). On the
money laundering count, the Government must show that the willful
aiding and abetting are acts that are integral and important to the
successful operation of a drug conspiracy. United States v. Perez,
922 F.2d 782, 786 (11th Cir.), cert. denied, 501 U.S. 1223, 111
S. Ct. 2840, 115 L. Ed. 2d 1009 (1991).
Government evidence consisted chiefly of the testimony of two
witnesses, David Smith, the leasing agent, and Chris Cochran, a
mutual acquaintance of both Jivens and Reddick. Smith testified
that Reddick leased the Chowning Drive house from him in November
1990 for twelve months at $675.00 per month. The Government
presented evidence showing that Reddick provided false written
statements to the leasing agent, indicating that he intended to
live there with his wife and two children. On the lease, Reddick
listed his current address as 3211 Martha Street. Smith, the
agent, testified that he made one visit to the Chowning Drive house
during the lease period. At that time he was met at the door by a
young lady with a baby. The Government contends that the jury
inferred this was Danielle Jones and her child by Ricky Jivens.
Cochran testified that Jivens first asked him to rent the
house and he agreed. When Cochran couldn't pass the requisite
credit check, Cochran testified that Jivens, in Cochran's presence,
then asked Reddick to rent the house for him and Reddick agreed.
Reddick contends, and the Government does not dispute, that Jivens
needed to rent a house in which his girlfriend could live so that
his "wife," Renee, would not find out. Reddick claims that the
evidence did not show a criminal intent, but merely an intent to do
a favor for a friend.
The Government introduced physical evidence that within the
lease period Reddick also rented a boat slip and listed Martha
Street as his residence address. A warranty deed indicated that
Reddick owned the home at Martha Street. Government exhibit 29a
was a $3,000 money order from John Brown to Levon Bazemore, found
in a car that also contained an automobile service bill in the name
of Grady Reddick.
The Government argues that the same evidence establishes
Reddick's guilt on both counts. We disagree.
As to the money laundering count, the record shows that
Reddick executed the lease to conceal the identity of the lessee.
However, there is no evidence that indicates Reddick concealed or
disguised the source of the rental payments. The record fails to
show that Reddick knew that Jivens' money was obtained through
illegal means or that Reddick profited from the transaction in any
way. The lease of the house as a place of abode for Jivens'
girlfriend was not connected by any evidence to drug violations.
Similarly there was insufficient evidence on the conspiracy
count to prove that Reddick participated in any of the acts of
murder, narcotics trafficking or turf warfare. No evidence showed
that he associated with any gang member other than Ricky Jivens
himself. No evidence showed that he "got down," took drugs, bought
drugs, or sold drugs. No evidence showed that Reddick knew of the
drug conspiracy or agreed through any act to become a member or to
aid and abet a member. The Government argues that it was "readily
inferable" that Reddick was an aider and abettor to the conspiracy
because "he was in close association" with Ricky Jivens. It is not
enough that Reddick knew Jivens. It is not enough that Reddick
leased a house for Jivens. Association with a coconspirator is
insufficient to prove participation in a conspiracy. United States
v. Kelly, 749 F.2d 1541 (11th Cir.), cert. denied, 472 U.S. 1029,
105 S. Ct. 3506, 87 L. Ed. 2d 636 (1985). At a minimum, the defendant
must willfully associate himself in some way with the criminal
venture and willfully participate in it as he would in something he
wished to bring about. United States v. Hernandez, 896 F.2d 513
(11th Cir.), cert. denied, 498 U.S. 858, 111 S. Ct. 159, 112 L. Ed. 2d
125 (1990). We conclude that the Government's evidence was
insufficient to convict Reddick under either count and we reverse
his convictions.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the convictions and
sentences of Moss and Brown, but we REVERSE Reddick's convictions.
AFFIRMED in part and REVERSED in part.