United States v. Freeman ( 1999 )

Revised January 26, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 96-11519
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCUS LELAND FREEMAN, a.k.a. Big Mark; JESSE JACKSON, JR.,
a.k.a. Jesse Oliver Jackson, Jr.; GLORIA ATKINS WRIGHT; RUDY
WILLIAMS; STACEY WYNN; KEITH FRANKLIN,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
___________________________________________________
January 5, 1999
Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellants Marcus Leland Freeman, Jesse Jackson, Jr., Gloria
Atkins Wright, Rudy Williams, Stacey Wynn, and Keith Franklin were
convicted of conspiracy to distribute cocaine and cocaine base and
other related counts. They appeal their convictions and sentences
on a number of points. We affirm all counts of conviction except
for Williams’s conviction on Count 29.
I.
Appellants and others were indicted and tried for conspiracy
to distribute cocaine and cocaine base (“crack cocaine”). The
Government presented evidence that Appellants and their fellow
conspirators bought, sold, and distributed cocaine and crack
cocaine from 1989 through 1995. Appellants were all convicted for
conspiracy and were individually convicted on other substantive
counts. We review the evidence, including all reasonable
inferences drawn therefrom and all credibility determinations, in
the light most favorable to the verdict. United States v. Resio-
Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995).
A.
In May 1995, several men, including Appellants Jesse Jackson,
Jr., Stacey Wynn, Rudy Williams, and Keith Franklin, made a trip
from Fort Worth, Texas to Crosby, Texas, just outside of Houston.
In Crosby, these Appellants visited a nightclub owned by Bobby
Reed, a major Fort Worth cocaine dealer, and arranged for the
purchase of five kilograms of cocaine for $140,000. The group paid
for the drugs at the nightclub and then returned to Fort Worth,
where the drugs were delivered to them.
Also in May 1995, Ronnie Bennett, another member of the
distribution chain, was arrested after delivering a half kilogram
of crack cocaine to a confidential informant in Fort Worth. When
he was arrested, Bennett stated that he had purchased the drugs
from Jesse Jackson, Jr. and Stacey Wynn. However, later that day,
Bennett indicated that he had actually purchased the drugs from
Appellant Rudy Williams. At trial, as a cooperating coconspirator,
Bennett testified that he had purchased the half kilogram of crack
cocaine from Williams, not from Wynn and Jackson.
2
Appellant Marcus Freeman was not a participant in the Crosby
trip. Instead, he was arrested when a search executed upon his
house revealed large quantities of crack cocaine and currency.
Freeman named Glen Williams and Pooh Biggins, who both worked at
Bobby Reed’s automotive shop, as his suppliers.
In support of the drug conspiracy, Appellants Jesse Jackson,
Jr. and Stacey Wynn owned Exclusive Paging, a pager business
operated from a series of locations in the Fort Worth area.
Exclusive Paging served as a front for Jackson’s and Wynn’s drug
dealing and also provided communications equipment for the drug
conspiracy.
Appellant Gloria Atkins Wright is the mother of coconspirator
Freddie Phillips. Another coconspirator, Evangela Asberry,
testified that she went to Wright’s house looking for Phillips to
deliver a package that she believed to contain crack cocaine.
Phillips was not at Wright’s house, so Asberry left the package
with Wright. Asberry did not see Wright look inside the package;
Wright stated that she would give it to Phillips. At a later date,
when the police executed a search warrant on Wright’s house, they
found weapons, two hundred grams of crack cocaine, substantial
amounts of cash in small denominations, and scales of the kind used
by drug dealers.
B.
These events, along with numerous others, led to the
indictment of nineteen members of the drug conspiracy loosely
centered around Bobby Reed. Following the indictment, several of
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the alleged conspirators cooperated with the Government. In the
end, twelve of the indicted conspirators were brought to trial. In
order to better manage the trial, the district court divided the
case into two parts and tried six defendants in each trial. This
Court has already ruled on the appeal arising out of the first
trial, in which Frederick Asberry, Edward Gabriel McBrown, Frank
Stolden, Bobby Wayne Reed, Kevin Reed, and Roderick Gene Reed were
convicted of drug conspiracy and other counts. United States v.
McBrown, No. 96-11491, 149 F.3d 1176 (5th Cir. 1998) (unpublished
table opinion). The present appeal is from the second trial.
In the second trial, Defendants-Appellants Marcus Leland
Freeman, Jesse Jackson, Jr., Gloria Atkins Wright, Rudy Williams,
Stacey Wynn, and Keith Franklin were tried for conspiring to
distribute cocaine and crack cocaine. Most of the Appellants were
also tried on additional substantive counts specific to their
individual actions within the drug conspiracy. All six defendants
were found guilty of conspiring to distribute cocaine and crack
cocaine. In addition, Appellant Marcus Freeman was found guilty of
maintaining a building for the purpose of distributing crack
cocaine. Appellants Jesse Jackson, Jr., Gloria Atkins Wright, and
Stacey Wynn were found guilty of possessing crack cocaine with the
intent to distribute. Appellant Rudy Williams was found guilty of
distributing crack cocaine. All six Appellants challenge their
convictions. Appellants Freeman, Jackson, and Williams also appeal
their sentences.
II.
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A.
Appellants make a number of arguments challenging their
convictions. We address these arguments in turn.
1.
Appellants Keith Franklin, Rudy Williams, and Gloria Atkins
Wright contend that the evidence is insufficient to support their
convictions. In reviewing a sufficiency challenge, we uphold the
jury’s verdict if a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
United States v. Walters, 87 F.3d 663, 667 (5th Cir.), cert.
denied, 117 S. Ct. 498 (1996). We consider Franklin’s and Wright’s
challenge below. We consider Williams’s claim later in Section
II.A.3.
The Government presented considerable evidence that Franklin
was a participant in the Crosby trip, a centerpiece of the
Government’s conspiracy case. In addition, Raynetta Taylor
testified to three separate drug purchases from Franklin. The
Government also presented evidence that Franklin had large sums of
cash and that his name was included in Exclusive Paging’s drug
notes. The jury’s verdict is thus adequately supported by the
record.
The evidence supporting Wright’s conviction is neither as
strong nor as clear. Wright was not a participant in the Crosby
trip, nor was she directly implicated in any drug sale or purchase.
Instead, the Government’s case against Wright was based primarily
on two events.
5
First, Evangela Asberry testified that her husband, Fred
Asberry, sold drugs to Wright’s son Freddie Phillips. The Asberrys
once went to Wright’s house to deliver a package for Phillips.
Evangela Asberry went to the door and rang the doorbell. Wright
answered the door and indicated that Phillips was not there.1
Asberry then gave Wright a brown paper bag containing crack
cocaine, indicating that it was for Phillips. Wright, who had
never met Asberry, did not ask her to identify herself or the
contents of the package.
Second, in November 1994, a search warrant was executed on
Wright’s home. During this search, the police found a clear
plastic bag containing 228.95 grams of crack cocaine in the top
drawer of a hutch in the dining area. The cocaine was on top of a
dish of Halloween candy and was accompanied by over one thousand
dollars in small denominations thrown loosely in the drawer. In
addition, the police found weapons in the house and a set of scales
in the garage. At trial, Phillips, a major participant in the drug
conspiracy, testified that the cocaine, the scales, and the cash
were his and that his mother was not aware that they were in the
house.
The combination of these two events, when viewed in the light
most favorable to the verdict, is sufficient to support the jury’s
verdict. The jury was entitled to reject Phillips’s testimony and
infer that his mother was aware that he trafficked in cocaine and
1
Phillips did not live at Wright’s residence. However, he
did possess a key and visited Wright’s home with some regularity.
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kept cocaine in her home. A key fact supporting such a
determination is that the crack cocaine found in Wright’s house was
in a clear plastic bag in the top drawer of the hutch in a central
area of the house. The loose currency was also in the same drawer
in plain view. The jury was entitled to infer that when Phillips
(or his associate) placed the crack cocaine in that location in
Wright’s dining room, they were not concerned about concealing the
drugs from her. The jury could have reached the same conclusion
with respect to the delivery of crack cocaine in a plain brown
paper bag. Such openness runs counter to Phillips’s dual
assertions that the drugs and scales were his and that he kept his
involvement in the drug trade well hidden from his mother. Thus,
the jury could have inferred that Wright was aware of the presence
of the drugs.
Wright contends that the package of crack cocaine in the hutch
cannot be attributed to her under the doctrine of constructive
possession. We disagree. At the time of the search, even though
Phillips had a key and apparently visited the house with some
regularity, Wright alone lived in the house. The jury, which was
instructed on the doctrines of constructive and joint possession,
could have reasonably attributed the crack cocaine to Wright. See
United States v. Torres, 114 F.3d 520, 524 (5th Cir.), cert.
denied, 118 S. Ct. 318 (1997) (“Constructive possession is defined
as ownership, dominion, or control over illegal drugs or dominion
over the premises where drugs are found.”). Thus, because the jury
reasonably could have determined that Wright was a knowing and
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willing participant in the drug conspiracy and that the crack
cocaine in the hutch was entrusted to her, the evidence supports
her conviction.
2.
Appellants Jesse Jackson, Jr., Rudy Williams, Keith Franklin,
and Marcus Freeman contend that the Government withheld information
that it was required to disclose to the Defendants under Brady v.
Maryland, 373 U.S. 83, 86-87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d
215 (1963), and Giglio v. United States, 405 U.S. 150, 153-54, 92
S. Ct. 763, 765-66, 31 L. Ed. 2d 104 (1972). Under Brady and
Giglio, the Government must disclose to the defense any evidence
that would tend to show a prosecution witness’s bias, could be used
to impeach him, or is otherwise exculpatory of the defendant.
Brady, 373 U.S. at 86-87, 83 S. Ct. at 1196-97; Giglio, 405 U.S. at
153-54, 92 S. Ct. at 765-66.
Appellants contend that the Government wrongfully failed to
disclose that FBI Special Agent Garrett Floyd brought John Clay,
who testified for the Government in the first trial, to his
girlfriend’s house for a conjugal visit. This alleged grant of a
conjugal visit came to light between the first and the second
trials. When these events were brought to the district court’s
attention, the Government advised the court that it would not use
Clay or Special Agent Floyd as witnesses in the second trial. The
district court determined that so long as neither Clay nor Floyd
testified, the issue of their potential bias or misconduct was not
relevant. The district court therefore granted a Government motion
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in limine seeking to prohibit the defense from raising the alleged
conjugal visit during the trial. Appellants contend that the
Government used another witness, Officer K.M. Sam, to “parrot”
Clay’s testimony and thus circumvent the district court’s rulings.
Appellants further contend that Officer Sam granted
coconspirator Glen Williams conjugal visits and that, also in
violation of Brady, this information was not revealed to the
defense. Glen Williams, however, chose not to cooperate with the
Government and was never called as a Government witness.
Appellants also contend that the Government violated Brady by
failing to notify Appellants that DEA analyst Ann Castillo was
being investigated for allegedly falsifying previous narcotics
analysis reports. During discovery, the defense was given
documents showing that Castillo had tested 632 grams of crack
cocaine. The Government also notified defense counsel that DEA
analyst J.E. Koles retested the sample and that the results were
the same. The Government, however, did not mention the pending
investigation of Castillo. At trial, only Koles’s analysis was
used. The district court denied post-trial relief on Defendants’
claim that Brady mandated disclosure of the Castillo investigation.
The district court ruled that any potential problems concerning
Castillo were cured by retesting the crack cocaine.
To succeed on their Brady claims, Appellants must establish
that: (1) evidence was suppressed; (2) the evidence was favorable
to the defense; and (3) the evidence was material either to guilt
or to punishment. United States v. Ellender, 947 F.2d 748, 756
9
(5th Cir. 1991). We review Brady determinations de novo. United
States v. Green, 46 F.3d 461, 464 (5th Cir. 1995). However, we
reverse for Brady violations only if there is a reasonable
probability that the outcome of the trial would have been different
if the evidence had been disclosed to the jury. United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481
(1985). When there are a number of Brady violations, the correct
determination is whether the “cumulative effect of all such
evidence suppressed by the government . . . raises a reasonable
probability that its disclosure would have produced a different
result . . . .” Kyles v. Whitley, 514 U.S. 419, 421-22, 115 S. Ct.
1555, 1560, 131 L. Ed. 2d 490 (1995).
With respect to the first two Brady claims--failure to reveal
the alleged conjugal visits--a previous panel of this Court
reviewed the first trial, in which Clay actually testified. The
panel rejected the Brady claims because there was “not a reasonable
probability that the outcome of the trial would have been different
if the evidence concerning the sexual encounters had been
disclosed.”2 McBrown, No 96-11491, at 21. In reaching this
decision, the previous panel evaluated the conjugal visits granted
to Clay and to Glen Williams. In the second trial--the one we have
under consideration--neither Clay nor Williams testified. If the
impeaching material could have been used at all, its use would not
have affected the outcome.
2
The prior panel assumed arguendo that the sexual encounters
did in fact take place as alleged. We make the same assumption.
10
With respect to the third alleged Brady violation--the failure
to disclose the investigation of Ann Castillo--we find no merit to
Appellants’ argument. We agree with the district court that by
retesting the crack cocaine and using only the retested analysis at
trial, the Government cured any concerns that might have been
raised by the Castillo investigation.
In sum, assuming without deciding that the Appellants
established three Brady violations, these violations do not
individually or cumulatively provide a reasonable probability that
the outcome of the trial would have been different had all the
suppressed evidence been admitted. See Kyles, 514 U.S. at 421-22,
115 S. Ct. at 1560. Therefore, we reject Appellants’ Brady claims.
3.
Appellant Rudy Williams contends that the district court
abused its discretion when it cut short his attorney’s cross-
examination of Ronnie Bennett. We agree.
We start from the bedrock premise that district courts retain
broad discretion in managing trials, including controlling the
length and scope of cross-examination. Thus, district court
rulings on the length and scope of cross-examination are reviewed
only for clear abuse of discretion. United States v. Martinez, 151
F.3d 384, 390 (5th Cir.), cert. denied, 119 S. Ct. 572 (1998).
Ronnie Bennett, a coconspirator who accepted a plea bargain,
testified for the Government in the second trial. Bennett had been
arrested when he attempted to sell approximately one-half kilogram
of crack cocaine to a Government informant. Upon his arrest,
11
Bennett told the police that he had purchased the crack cocaine
from Stacey Wynn and Jesse Jackson, Jr. However, later that same
day, Bennett changed his story, stating that he had actually
purchased the crack cocaine from Appellant Rudy Williams. At
trial, consistent with this second statement, Bennett testified
that he had purchased the crack cocaine from Williams. The
Government obtained an explanation of the inconsistent statements
from Bennett as part of its direct examination. When the
Government asked Bennett why he had changed his story, Bennett
testified that he originally named Wynn and Jackson because he knew
that they were already under investigation for cocaine distribution
and he did not want to cast suspicion on Williams.
When Bennett was tendered for cross-examination, the district
court refused to permit either Williams’s attorney or any of the
other defense counsel to cross-examine Bennett on the inconsistent
statements. The district court ruled that because Bennett freely
admitted the inconsistent statements on direct examination, it
would not permit further questioning or impeachment of the witness
on that subject. When defense counsel attempted to question
Bennett about the statements, the district court stated, “I don’t
think those statements [given by Bennett on the day he was
arrested] are inconsistent with anything he’s said on the stand, so
I’m not going to permit cross-examination on the basis of the
statements.” Williams challenges this restriction on Bennett’s
cross-examination.
The practice of introducing impeaching statements on direct
12
examination in order to minimize their effect is a “time-honored
trial tactic.” United States v. Ewings, 936 F.2d 903, 909 (7th
Cir. 1991); see also United States v. Livingston, 816 F.2d 184, 191
(5th Cir. 1987) (permitting introduction of impeaching statements
in direct testimony). However, when the Government steals the
defense’s thunder by presenting a prior inconsistent statement as
part of its direct examination of a witness, this does not destroy
the defense’s right to cross-examination on those statements. The
defense must still be given the opportunity to develop testimony on
cross-examination tending to show that the prior favorable
statement is more likely true than the prior unfavorable statement.
Similarly, the defense should have the opportunity to cast doubt on
the reason given by the witness for changing his version of the
facts.
For example, counsel should be able to explore: why the
witness initially felt greater allegiance to Williams than to Wynn
and Jackson, but then changed his loyalties; whether the witness
perceived that the Government would make a more favorable plea
bargain with him if he implicated Williams; whether animosity
developed between the witness and Williams after he gave the first,
favorable statement.
In sum, the district court abused its discretion in refusing
to give counsel an adequate opportunity to cross-examine Bennett.
Because Bennett’s testimony was central to the Government’s case
against Williams on Count 29--the distribution count that is
directly related to Bennett’s drug purchase--we must vacate
13
Williams’s conviction on that count.
Williams argues next that once Count 29 is vacated, the
conspiracy count cannot stand. To resolve this issue, we consider
the record under the assumption that the jury would have
disregarded Bennett’s testimony. See Delaware v. Van Arsdall, 475
U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986) (“The
correct inquiry is whether, assuming that the damaging potential of
the cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt.”).
As indicated above, one of the centerpieces of the
Government’s evidence was the Crosby trip. The jury heard
substantial evidence, beyond anything testified to by Ronnie
Bennett, that Rudy Williams participated in this trip. Both
Sylvester Jackson and Jesse Jackson, Jr. testified that Williams
was with them on the Crosby trip. Sylvester Jackson testified that
Williams contributed funds to make up the $140,000 pot used to buy
the drugs. In addition, Keith Franklin told DEA Special Agent
Terri White that Williams was on the trip. The evidence was
overwhelming that the Crosby trip took place in the manner alleged
by the Government and that the purpose of this trip was to purchase
approximately five kilograms of cocaine. Therefore, because of the
strength of the evidence linking Williams to the Crosby trip, the
district court’s error in limiting Bennett’s cross-examination was
harmless as to Count 1--the drug conspiracy count.
B.
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Appellant Stacey Wynn argues that he received ineffective
assistance of counsel. He contends that his attorney, Kelley Pace,
was late to court on a number of occasions, including jury
selection. Indeed, because of this chronic tardiness, the district
court found Pace in contempt and required him to obtain a hotel
room close to the courthouse. In addition to Pace’s tardiness,
Wynn’s motion for a new trial was ruled invalid because Pace’s
secretary, not Pace himself, signed the motion. When new counsel
replaced Pace, the new counsel filed a letter from Dr. Tynus McNeel
with the district court. Dr. McNeel stated that Pace had been
admitted to the Talbot Center in Atlanta for extensive psychiatric
treatment. The letter implied that Pace was undergoing psychiatric
treatment during Wynn’s trial.
As Wynn concedes, direct appeal is not the preferred vehicle
for raising an ineffective assistance of counsel claim. United
States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (“[A] claim of
ineffective assistance of counsel generally cannot be addressed on
direct appeal unless the claim has been presented to the district
court; otherwise there is no opportunity for the development of an
adequate record on the merits of that serious allegation.”).
Instead, ineffective assistance claims are generally raised in a
habeas petition. We follow this path in order to allow for the
development of a factual record regarding counsel’s alleged
ineffectiveness. See, e.g., United States v. Medina, 118 F.3d 371,
373 (5th Cir. 1997).
We agree with the Government that we should not stray from our
15
usual practice. Because this issue was not raised before the
district court, it is properly raised by Wynn in a habeas petition,
not on direct appeal. On habeas, the district court will be able
to develop an adequate record to evaluate the merits of Wynn’s
claim.
C.
Appellants make a number of additional arguments. Appellants
Marcus Freeman and Keith Franklin argue that the district court
abused its discretion by improperly restricting the cross-
examination and impeachment of Government witnesses. Freeman and
Jesse Jackson, Jr. contend that the Government improperly commented
on the burden of proof and on Appellants’ decision to remain
silent. Appellant Rudy Williams contends that the district court
abused its discretion in denying his motion to sever. Williams
also contends that there was a fatal variance between the
conspiracy alleged in the indictment and the evidence of conspiracy
presented at trial. We have reviewed these contentions and have
determined them to be without merit.
D.
Appellants Marcus Freeman, Jesse Jackson, Jr., and Rudy
Williams also challenge their sentences. Freeman argues that the
district court erred in sentencing him to life in prison because
the two prior felony convictions the district court relied on under
21 U.S.C. § 841(b)(1)(A) to enhance his sentence were not final
before he committed the instant offense. Freeman pled guilty to
the two prior felony drug counts in 1990, after the beginning of
16
the drug conspiracy alleged in Count 1 in this case. However, at
sentencing, the district court found that Freeman did not join the
conspiracy until 1992 and thus the 1990 convictions were properly
viewed as prior convictions. The district court did not err in
finding that Freeman entered the instant conspiracy in 1992 and
that the 1990 convictions were therefore “prior” convictions. See
United States v. De Veal, 959 F.2d 536, 538-39 (5th Cir. 1992).
Appellant Jesse Jackson, Jr. argues that the district court
committed clear error in enhancing his sentence for obstruction of
justice. The district court enhanced Jackson’s sentence after
finding that he had testified falsely. The jury obviously viewed
Jackson’s testimony to be false and we therefore decline to find
that the district court clearly erred in making this determination.
Appellant Rudy Williams contends that his sentencing was
unconstitutional because the district court used unreliable
evidence contained in his Presentence Investigation report (“PSI”)
in determining the quantity of drugs that should be attributed to
him. At sentencing, however, Williams offered no evidence
supporting his allegation that the evidence relating to drug
quantity contained in the PSI was unreliable. Therefore, the
district court, after hearing the evidence at trial, reviewing the
PSI, and providing Williams with a chance to present rebuttal
evidence, did not err in adopting the drug quantities presented in
the PSI. See, e.g., United States v. Valencia, 44 F.3d 269, 274
(5th Cir. 1995) (“A district court may adopt facts contained in the
[PSI] without further inquiry if the facts have an adequate
17
evidentiary basis and the defendant does not present rebuttal
evidence.”).
Conclusion
For reasons stated above, we affirm all of Appellants’
convictions except for Rudy Williams’s conviction on Count 29. We
vacate Rudy Williams’s conviction and sentence on Count 29. Except
for Rudy Williams, we also affirm all of Appellants’ sentences.
With respect to Rudy Williams, the Government is granted a
reasonable time to retry Williams on Count 29 if it elects to do
so. Whether or not Williams is retried, we remand his case to the
district court for resentencing.
AFFIRMED in part, VACATED in part, and REMANDED.
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