United States v. Parks ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 03-31098
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UNITED STATES OF AMERICA
Plaintiff-Appellee
vs.
JAMES EDWARD PARKS
Defendant-Appellant
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No. 04-30011
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UNITED STATES OF AMERICA
Plaintiff-Appellee
vs.
HOYLE WOOD
Defendant-Appellant
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No. 04-30012
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UNITED STATES OF AMERICA
Plaintiff-Appellee
vs.
ANTHONY MORRIS JOHNSON
Defendant-Appellant
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No. 04-30021
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UNITED STATES OF AMERICA
Plaintiff-Appellee
vs.
STEVEN HOYLE WOOD
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
Before REAVLEY, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
This is a drug conspiracy case involving four Defendants-
appellants: Anthony Johnson, James Parks, Steven Wood, and Hoyle
Wood (“Defendants”). All Defendants challenge the district
court’s denial of their motions to suppress a Federal Express
(“FedEx”) package containing crystal methamphetamine. Defendant
Parks additionally challenges the propriety of venue in the
Western District of Louisiana; the sufficiency of the evidence to
support his conviction; and the admission of a DEA agent’s
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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testimony, which he claims violated Brady v. Maryland. Parks
also claims that a note passed from the trial judge to the jury
improperly induced the jury to find Parks guilty. Because none
of these arguments have merit, we will affirm the convictions of
all four Defendants.
I. Background
On August 27, 2002, FedEx employee Ernest Stroud was working
as a “gatekeeper” at the Shreveport, Louisiana terminal for
FedEx. Gatekeepers deal with problem packages. Stroud came into
possession of a package sent on the Grand Cane route that had
been returned because there was no legible address or telephone
number and no tracking information. Stroud opened the package in
order to find an address, or other identifying information, which
would allow FedEx to deliver the package. The ends of the
package were open, and it contained what Stroud described as some
“crystalized, powdery, white looking stuff.” Stroud believed the
substance to be crystal methamphetamine and turned the box over
to his manager, Corey Young. Young testified that when the
address on a package cannot be read, FedEx procedure is for an
employee to open the package in the hopes of finding
correspondence with an address or phone number. Young testified
that the contents resembled little pieces of ice or crystals.
Stroud told Young that he believed the substance to be crystal or
“ice” methamphetamine.
2
That day, Young received a call from a woman who was
hysterically searching for a package. The caller was later
identified as Lauren Wommack. Wommack told Young that she would
lose her job if she did not get the package that day. Young told
Wommack to come to the facility before 8pm and FedEx would
attempt to locate the package.
Young recalled that about a month or two prior, Agent Webb
of the Drug Enforcement Agency (“DEA”) had asked him to be on the
lookout for any packages addressed to Lauren Wommack of Grand
Cane. When Young realized that the hysterical caller might be
Wommack, he called Agent Webb.
Agent Webb, the Shreveport Police, and Young then
orchestrated a controlled delivery of the package. Young
repackaged the contents for delivery. Wommack arrived at the
FedEx terminal and handed one of the workers a slip of paper
containing the tracking number of the package and the phone
number of Steven Wood. While Wommack waited for the package,
Shreveport police cars pulled into the parking lot. Because of
the police presence, Wommack refused to sign for the package.
After tests confirmed that the package contained methamphetamine,
Wommack was arrested.
Wommack cooperated with police. She told them that the
package was addressed to her but she had instructions from
Anthony Johnson to deliver the contents to Hoyle and Steven Wood
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(collectively “the Woods”). Pursuant to a police directive,
Wommack made plans to meet with Johnson at a Holiday Inn in
Minden, Louisiana. When Johnson arrived, he was arrested. The
Woods were also arrested based on information police learned from
Wommack.
Johnson also cooperated with police and agreed to make phone
calls to his buyers. Some of these conversations were taped.
One of the taped conversations with James Parks was lost before
trial and is now the subject of Parks’s Brady challenge.
DEA agents in Tennessee assisted in a controlled delivery
from Johnson to Parks. Agents searched Parks’s residence
pursuant to a warrant obtained before, but executed after, the
delivery. They found a piece of paper with Johnson’s phone
number and the tracking number of the FedEx package sent in the
controlled delivery. Parks was then arrested.
Wommack, Johnson, Parks, and the Woods were indicted on one
count of conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a) and 846.
Johnson was also charged with an additional count of possession
with intent to distribute. Wommack cooperated with police,
pleaded guilty, and is not a party to this appeal.
All four remaining Defendants filed motions to suppress the
drugs seized from the FedEx package addressed to Wommack. The
district court denied their motions. Johnson and the Woods all
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pleaded guilty, reserving their right to appeal the denial of
their motions to suppress. That is the only issue they have
raised on appeal.
Parks tried his case to a jury and was convicted. In
addition to challenging the denial of his motion to suppress,
Parks challenges his conviction on four additional grounds.
II. Whether the District Court Properly Denied Defendants’
Motions to Suppress
A. Standard of Review
When a district court denies a defendant’s motion to
suppress on Fourth Amendment grounds, we review the district
court’s fact findings for clear error and its conclusion as to
the constitutionality of the search de novo. United States v.
Runyan, 275 F.3d 449, 456 (5th Cir. 2001). We view the facts in
the light most favorable to the prevailing party. Id. The
defendant has the burden of proving a Fourth Amendment violation
by a preponderance of the evidence; once the defendant has met
this burden, the burden shifts to the government to prove that an
exception to the exclusionary rule applies.1 See id.B. Discussion
1. Standing of Parks, Steven Wood, and Hoyle Wood
Even if a search is unreasonable, for the exclusionary rule
to apply in favor of a particular defendant he must prove that
1
The government has not alleged that any exception applies
to the facts of this case.
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his own Fourth Amendment rights were violated. Rakas v.
Illinois, 439 U.S. 128, 133 (1978) (“Fourth Amendment rights are
personal rights which ... may not be vicariously asserted.”).
The government concedes that Johnson, as the sender of the FedEx
package, had a reasonable expectation of privacy in its contents.
Therefore, only the standing of Parks and the Woods is at issue
in this case.
The Defendants first claim that the government waived its
standing challenge because it did not raise the issue before the
district court. The seminal case on waiver of standing is
Steagald v. United States, 451 U.S. 204 (1981). In Steagald, the
Supreme Court held that “[t]he Government ... may lose its right
to raise [the standing issue on appeal] when it has made contrary
assertions in the courts below, when it has acquiesced in
contrary findings by those courts, or when it has failed to raise
such questions in a timely fashion during the litigation.” Id.
at 209. In United States v. Irizarry, however, we distinguished
the situation where the government waives its challenge to a
defendant’s standing from the situation where the defendant does
not carry its burden of proof on the standing issue in the first
place. 673 F.2d 554, 556–57 (5th Cir. 1982). In that case, we
stated:
We realize that the government did not challenge [the
defendant’s] standing, either before the trial court or
on appeal. That fact, however, does not alone bring us
within the rule of [Steagald v. United States], in
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which a defendant’s standing was held to be beyond
further challenge. In [Steagald] the government failed
to challenge facts from which the defendant’s standing
could reasonably have been inferred. In this case,
[the defendant] never carried his initial burden of
offering facts from which a court might reasonably
infer his standing.
Id. (citations omitted); United States v. Torres, 32 F.3d 225,
229 (7th Cir. 1994) (“The government does not waive its right to
challenge a defendant’s standing when no facts were adduced at
the hearing from which the government could reasonably have
inferred the existence of the defendant's standing.”).
Here, the Defendants have not alleged any Steagald-like
behavior on the part of the government. Accordingly, the
government has not waived its standing challenge, and we will
consider the issue.
Parks’s claimed connection to the FedEx package is that its
search led to the arrest of Johnson, whose cooperation led to the
arrest of Parks. The Woods are similarly situated: neither were
listed as an addressee on the package, but Wommack testified that
she had instructions from Johnson to deliver the contents of the
package to the Woods. Neither connection is sufficient.
It is well-settled that a defendant’s status as a co-
conspirator, without more, is not enough to confer standing on
him for Fourth Amendment purposes. United States v. Padilla, 508
U.S. 77, 81 (1993). No Defendant has articulated facts which
would bring his case outside the purview of this rule. Moreover,
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our decision in United States v. Pierce, 959 F.2d 1297 (5th Cir.
1992), is directly on point. There, Evans presented a package to
an American Airlines employee, McAdams, at LAX airport for
shipment to Tyler, Texas. Id. at 1299. Evans told McAdams that
the package contained an iron, but McAdams was suspicious because
the package was too light to contain an iron. Id. He opened it
after Evans left, and upon discovering cocaine, alerted
authorities who arranged for a controlled delivery to Crumpton.
Id. at 1299. Crumpton was arrested when she picked up the
package at the Tyler airport. Id. at 1300. Pierce, who had
driven Crumpton to the airport and who was waiting for her in the
car, was also arrested. Id.Addressing Pierce’s claim that the search at LAX violated
the Fourth Amendment, we stated:
It is uncontested that the package (with cocaine) was
neither sent by, nor addressed to, Pierce. Arguably, a
defendant who is neither the sender nor the addressee
of a package has no privacy interest in it, and,
accordingly, no standing to assert Fourth Amendment
objections to its search. And it may well be that even
if Pierce claimed that he was the intended recipient of
the package, this would not confer a legitimate
expectation of privacy, because it was addressed to,
and received by another——[Crumpton].
Id. at 1303 (citations omitted). Because Pierce’s “only
[admitted] interest in suppressing the package and its contents
[was] to avoid its evidentiary force against him,” we rejected
his Fourth Amendment claim. Id. Both the Fourth and Seventh
8
Circuits have also rejected the Fourth Amendment challenges of
similarly-situated defendants on standing grounds. See United
States v. Givens, 733 F.2d 339, 341–42 (4th Cir. 1984); United
States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988)(both holding
that a defendant who was neither the sender nor the addressee of
the package lacked standing to contest the legality of its
search). Here, neither Parks, Steven Wood, nor Hoyle Wood have
any interest in the FedEx package other than avoiding its
evidentiary force against them. They lack standing to challenge
the search. Accordingly, we affirm their convictions.
2. Fourth Amendment Violation
After Wommack refused to accept the FedEx package, law
enforcement opened it and conducted field tests on it, confirming
that the crystalized powder was, indeed, methamphetamine.
Johnson argues that the opening of the package and the testing of
its contents were unreasonable searches that violated the Fourth
Amendment. We disagree.
This case is controlled by the Supreme Court’s opinion in
United States v. Jacobsen, 466 U.S. 109 (1984), a case with
similar facts.2 First, “Jacobsen directs courts to inquire
whether the government learned something from the police search
that it could not have learned from the private searcher’s
2
Johnson argues that his case is distinguishable from
Jacobsen in several ways. We find those arguments unavailing.
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testimony and, if so, whether the defendant had a legitimate
expectation of privacy in that information.” United States v.
Runyan, 275 F.3d 449, 459–61 (5th Cir. 2001). Here, when law
enforcement officers initially opened the package, they did not
learn anything other than that it contained white powder. FedEx
employees Stroud and Young, who had previously viewed the
package’s contents, would have been able to testify to as much.
See Jacobsen, 466 U.S. at 119 (“Respondents do not dispute that
the Government could utilize the Federal Express employees’
testimony concerning the contents of the package.”). This
initial intrusion into Johnson’s privacy, if any, did not exceed
the scope of the private search that had already taken place.
See id. Under Jacobsen, this act was not a search within the
meaning of the Fourth Amendment. Id.Second, Jacobsen squarely held that field tests which can
only detect that a substance is a particular drug (be it cocaine
or methamphetamine), but cannot detect what that substance is if
the test results are negative, are not searches. Id. at 123.
Johnson has not asserted that the field tests conducted in this
case could determine what the powder actually was, if it was not
methamphetamine. Therefore, the tests conducted here were also
not searches within the meaning of the Fourth Amendment.
Jacobsen requires us to reject Johnson’s Fourth Amendment
argument. We therefore affirm his conviction.
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III. Parks’s Additional Arguments
Parks asks us to reverse his conviction on four additional
grounds.
A. Venue
Parks first argues that venue was improper in the Western
District of Louisiana. We generally review venue questions for
abuse of discretion, but since “[a] district court by definition
abuses its discretion when it makes an error of law,” the
standard of review is effectively de novo. United States v.
Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002) (quoting Koon v.
United States, 518 U.S. 81, 100 (1996)).
Parks was charged with conspiracy to possess with intent to
distribute a certain amount of methamphetamine. Therefore, venue
is determined under 18 U.S.C. § 3237(a), which provides:
(a) Except as otherwise expressly provided by enactment
of Congress, any offense against the United States
begun in one district and completed in another, or
committed in more than one district, may be inquired of
and prosecuted in any district in which such offense
was begun, continued, or completed.
Any offense involving the use of the mails,
transportation in interstate or foreign commerce, or
the importation of an object or person into the United
States is a continuing offense and, except as otherwise
expressly provided by enactment of Congress, may be
inquired of and prosecuted in any district from,
through, or into which such commerce, mail matter, or
imported object or person moves.
18 U.S.C. § 3237(a) (2000). Under § 3237(a), then, Parks can be
prosecuted in any district in which the conspiracy began,
continued, or was completed, even if he has never set foot in
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that district. United States v. Caldwell, 16 F.3d 623, 624 (5th
Cir. 1994); Hyde v. United States, 225 U.S. 347, 362 (1912).
Parks argues that because the jury found him guilty of
conspiracy to possess/distribute more than 5 grams of
methamphetamine, instead of the 50 grams for which he was
indicted, the jury must have based its decision solely on the
controlled delivery transaction from Johnson in Mississippi to
Parks in Tennessee. According to Parks, since none of the acts
relating to the controlled delivery took place in the Western
District of Louisiana, he could not be tried there.
Yet Parks was convicted of being part of the overall
conspiracy; the jury just limited his liability to a lesser
amount of methamphetamine than that charged. Moreover, multiple
overt acts took place in the Shreveport area: methamphetamine was
sent to Shreveport where Wommack attempted to pick it up; Wommack
told police that during the summer of 2002, Johnson had sent
approximately eight shipments of methamphetamine to her in
Shreveport; Johnson met with Wommack in Minden, Louisiana, where
he was arrested; and while cooperating with police, Johnson made
several phone calls to Parks from the Shreveport area. See
United States v. Caldwell, 16 F.3d 623, 625 (5th Cir.
1994)(holding that venue was proper in the district where calls
were received); United States v. Strickland, 493 F.2d 182, 187
(5th Cir. 1974) (upholding venue in the Northern District of
12
Georgia on account of telephone calls made to and from Atlanta).
Accordingly, we reject Parks’s venue challenge.
B. The Sufficiency of the Evidence
Parks claims that there was insufficient evidence that he
intended to distribute the drugs. The standard of review for a
sufficiency challenge is whether “a rational trier of fact could
have found that the evidence establishes the essential elements
of the offense beyond a reasonable doubt.” United States v.
Brugman, 364 F.3d 613, 615 (5th Cir. 2004) (quoting United States
v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003)). We review the
evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices to be made in
support of the jury's verdict. Id. (citing United States v.
Bass, 310 F.3d 321, 325 (5th Cir. 2002)). The evidence need not
exclude every reasonable hypothesis of innocence, and the jury is
free to choose among reasonable interpretations of the evidence.
Id. (citing United States v. Perrien, 274 F.3d 939–40 (5th Cir.
2001)).
Johnson testified at trial that he had sent methamphetamine
to Parks on two or three different occasions, and that Parks was
getting the drugs for another individual named Andy. When
Johnson was arrested, officers found an airbill showing that a
“Randy Johnson” had sent a FedEx package to “J. Parks.” Johnson
also testified that during one telephone conversation, he told
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Parks that “glass” (crystal methamphetamine) was on its way and
Parks responded, “I thought you sent the regular” (powder
methamphetamine). According to Johnson’s testimony, Parks then
stated, “But there isn’t that much of that [“glass”] up here so
that’s okay.”
In United States v. Medina, we upheld a conspiracy
conviction on the sole testimony of a co-conspirator, stating
that “[a]s long as it is not factually insubstantial or
incredible, the uncorroborated testimony of a co-conspirator,
even one who has chosen to cooperate with the government in
exchange for non-prosecution or leniency, may be constitutionally
sufficient evidence to convict.” 161 F.3d 867, 872–73 (5th Cir.
1998) (quoting United States v. Westbrook, 119 F.3d 1176, 1189
(5th Cir. 1997)). Where the co-conspirator’s testimony is not
factually impossible or incredible, the jury’s decision to
believe the testimony must be respected. Id. at 873; United
States v. Landerman, 109 F.3d 1053, 1067–68 (5th Cir. 1997);
United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992).
Here, Johnson’s testimony was sufficient to support the jury’s
finding that Parks intended to distribute the drugs.
C. Brady Challenge
After Johnson was arrested, he made several phone calls to
his buyers, including Parks, that were taped by police. One phone
call to Parks was inexplicably lost by the government before
14
trial. A DEA agent who heard the taped conversation testified to
its contents at Parks’s trial. Parks claims that the agent’s
testimony violated Brady v. Maryland, 373 U.S. 83 (1963), because
he did not discuss a drug transaction on the missing tape,
contrary to the agent’s testimony.
Prosecutorial suppression of material evidence favorable to
an accused violates due process. Brady, 373 U.S. at 87 (1963).
To succeed on a Brady challenge, a defendant must prove three
things: (1) that the evidence was favorable, (2) that the state
suppressed the evidence, and (3)that the evidence was material.
United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000). Parks
cannot meet this test.
Specifically, Parks has not alleged any misconduct on the
part of the government, i.e., that the government suppressed the
tape. In United States v. Lassiter, we rejected a defendant’s
Brady challenge because “[the defendant] ha[d] not claimed that
the prosecution suppressed evidence, only that the prosecution
lost evidence.” 819 F.2d 84, 86 (5th Cir. 1987). That is all
Parks alleges here. We therefore reject his Brady challenge.
D. Note from Trial Judge to Jurors
During jury deliberations, the jury sent a note to the judge
stating, “We need some direction. Please come to the jury room.”
In response, the judge sent a handwritten note to the jury, which
stated:
15
I am sorry I can’t do as you ask. If you write your
questions I will first consult with the lawyers before I
answer. Then I will answer in writing——so if I do it
wrong it will be in the record for the appeals court. Or
we can bring you back into the court room.
(Emphasis added). Parks claims that the portion of the note
referring to the appellate court improperly induced the jury to
find Parks guilty.
The four cases cited by Parks are not on point. Those cases
concern a trial judge’s ex parte communication with a juror; as
Parks concedes, however, that was not the case here. See United
States v. Gypsum, 438 U.S. 422, 460 (1978) (warning of the dangers
inherent in a judge’s ex parte communication with jurors); United
States v. Peters, 349 F.3d 842, 846–47 (5th Cir. 2003) (reversing
the defendants’ convictions where trial judge met ex parte with a
juror because of the risk that the judge insisted on a verdict);
United States v. Cowan, 819 F.2d 89, 91 (5th Cir. 1987) (reversing
the defendant’s conviction after the judge met ex parte with each
juror about the jury’s obligation to reach a verdict); Demetree v.
United States, 207 F.2d 892, 896 (5th Cir. 1953) (reversing a
defendant’s conviction after the judge bargained with jury
foreperson ex parte that if the jury returned guilty verdict the
defendant would only get probation or a fine). The government
responds that the judge’s note was merely an explanation to the
jury that all correspondence must be in writing. The government
has the better argument. Accordingly, we affirm Parks’s
16
conviction.
IV. Conclusion
For the foregoing reasons, we AFFIRM the convictions of all
Defendants.
AFFIRMED.
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