United States v. Frazier ( 1998 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________
    No. 97-40636
    _______________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    ANTONIO DEWAYNE FRAZIER,
    Defendant-Appellant.
    _________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    (G-95-CR-10-3)
    _________________________
    July 16, 1998
    Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:*
    Antonio Frazier appeals his conviction of, and sentencing for,
    one count of conspiracy to possess with intent to distribute five
    kilograms or more of cocaine and fifty grams or more of cocaine
    base, or “crack.”      Finding no reversible error, we affirm.
    I.
    While incarcerated in the Galveston County, Texas, jail for a
    violation of the terms of parole for a state drug offense, Frazier
    was visited by two Drug Enforcement Agency (“DEA”) agents who were
    *
    Pursuant to 5TH CIR. R. 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    should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
    investigating a drug ring in League City, Texas.                   Special Agents
    Michael Moser and Hugh Hawkins solicited Frazier's cooperation in
    learning about the drug operations of Michael Raven, who the DEA
    believed was a major distributor of crack in the League City area.
    Before visiting Frazier in the county jail, however, the DEA
    contacted    the    Galveston     County      District    Attorney's      office   to
    inquire whether Frazier was represented by counsel.                       The D.A.'s
    office told the DEA agents that Kevin Rekoff had represented
    Frazier in the state proceeding for which he was then incarcerated.
    The U.S. Attorney's Office thereafter contacted Rekoff to ask his
    permission for the agents to speak with Frazier about the federal
    investigation.
    Rekoff told the Assistant U.S. Attorney that he could not give
    or deny permission because he no longer represented Frazier.                       The
    Agents subsequently contacted Rekoff and scheduled a meeting later
    that   day   so    that    they   could       discuss    the   agents'     impending
    interview.        Rekoff   testified      that,    at    the   meeting,    he   again
    reiterated to the agents that he could not give them permission to
    meet with Frazier because he no longer represented him. Apparently
    knowing of no other attorney representing Frazier, Rekoff gave the
    agents his business card with his cellular phone number written on
    the back.    Rekoff told the agents to give the card to Frazier and
    tell him that Rekoff was available should Frazier wish to consult
    with him.
    When the agents arrived at the county jail, they informed
    2
    Frazier that they had spoken with Rekoff and produced his business
    card.   The agents told Frazier that Rekoff “gave them permission”
    to speak with him.        Frazier and the agents contest whether the
    agents then told Frazier that Rekoff “told him to cooperate” with
    the agents.    In any case, thereafter, Frazier agreed to give a
    written statement and did so after receiving his Miranda warnings
    both orally and in writing.        He subsequently signed a waiver of his
    rights and proceeded to disclose the extent of his drug dealing
    with Raven.     Frazier     did,    however,    requestSSand    the     officers
    agreedSSnot to include the other persons with whom he dealt in his
    confession.
    After    Frazier     was    released    from   the   county      jail,    he
    voluntarily    traveled     to    the   DEA's   Galveston      office    for    a
    debriefing.    He again was read his Miranda rights, and he again
    provided information without requesting an attorney.               Agent Moser
    prepared a summary of these oral statements.
    Frazier, Raven, and others associated with the Raven's drug
    ring were subsequently indicted.            Although Frazier had signed a
    waiver of his rights and made self-incriminatory statements, he
    recanted and pleaded not guilty.
    Frazier moved to suppress his self-incriminatory statements as
    involuntarily given.      He argued that Agents Moser and Hawkins told
    him that his former lawyer, Rekoff, encouraged him to cooperate
    with the police, when, in fact, Rekoff denied ever making such a
    3
    statement.
    A magistrate judge held a hearing and heard the testimony of
    Frazier, Rekoff, and the agents. Frazier testified that the agents
    told him that Rekoff encouraged his cooperation with the agents.
    On cross-examination, Frazier admitted that, at the time, Rekoff
    was not his attorney and he did not seek hisSSor otherSScounsel.
    Rekoff testified that when the agents arrived at his office,
    he reiterated what he had told the Assistant U.S. AttorneySSthat he
    could neither grant nor deny permission for the agents to speak
    with Frazier, as Rekoff was no longer his attorney.    Rekoff also
    denied that he had ever told the agents to tell Frazier that he
    thought Frazier should cooperate.
    The agents testified that Rekoff did give them permission to
    meet with Frazier.    They also stated under oath that they had
    showed Frazier Rekoff's business card and told him that Rekoff had
    given them permission to speak with him.    They denied, however,
    that they ever told the defendant that Rekoff encouraged him to
    cooperate.    On the stand, they stated that they had informed
    Frazier that he was likely to be indicted; that they had talked to
    Rekoff, and Rekoff offered to speak with Frazier if Frazier wished;
    and that Frazier thereafter had decided to waive his rights and
    tell the agents some, but not all, of what he knew of Raven's
    operations.
    The magistrate judge was troubled by the agents' display of
    4
    Rekoff's business card, noting that the agents were using the
    business card for the “psychological advantage” of putting Frazier
    at ease.   Ultimately, however, the magistrate judge found that the
    agents never explicitly told Frazier that Rekoff wanted him to
    cooperate with them. Given this fact-finding, the magistrate judge
    concluded that the use of the business card did not amount to the
    “official overreaching” necessary to suppress the confession as
    involuntarily made.     The district court, after a de novo review of
    the transcript of the hearing before the magistrate judge, adopted
    the report and recommendation over Frazier's objections.
    Frazier was tried before a jury.        The confession and Moser's
    summary of Frazier's oral statements were read to the jury, but all
    references   to   the   other   defendants    were   redacted.     Several
    witnesses also testified that they had seen Frazier dealing cocaine
    and crack with Raven and Raven's associates.
    When the government rested, the defense moved for judgment of
    acquittal, which the court denied.           The defense rested without
    introducing testimony.     The jury returned a verdict of guilty, and
    the judge sentenced Frazier to 402 months' imprisonment.
    II.
    Frazier contends that the court erred by failing to suppress
    his written and oral self-incriminatory statements, which he claims
    were involuntarily made. We review factual determinations made in
    the course of a suppression hearing      for clear error.        See, e.g.,
    5
    United States v. Rojas-Martinez, 
    968 F.2d 415
    , 418 (5th Cir. 1992)
    (citation omitted).       Yet, we make “an independent review of the
    legal conclusion of voluntariness.”             
    Id.
    “Voluntariness [of a confession] depends upon the totality of
    the circumstances and must be evaluated on a case-by-case basis.”
    
    Id.
     (citing Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 226 (1973)).
    “[A]    confession   is    voluntary       in    the   absence   of   official
    overreaching, in the form either of direct coercion or subtle forms
    of psychological persuasion.”              
    Id.
     (citations omitted).        The
    government bears the burden of proving by a preponderance of the
    evidence that a defendant has waived his rights voluntarily.               See
    id. at 417.
    At the hearing on the motion to suppress, the main factual
    dispute concerned whether the agents affirmatively told Frazier
    that Rekoff, his former attorney, said that he should talk to the
    agents, or whether, instead, the agents merely related that Rekoff
    said that the agents could talk with Frazier if Frazier so wished.
    Predictably, Frazier testified that the former representation was
    made, and the officers denied it. The court credited the officers'
    testimony over Frazier's.
    Frazier bases his challenge to the factual finding on the
    cross-examination testimony of Agent Moser, which contains what
    Frazier characterizes as an admission that Moser told Frazier that
    the agents had contacted Rekoff and that Rekoff had told them to
    6
    tell Frazier that it was “O.K.” for Frazier to talk to them.                The
    record, however,     belies    Frazier's      characterization   of   Moser's
    cross-examination testimony.          Although Frazier attempted to get
    Moser to make such an admission on cross-examination, Moser stated
    that Frazier's version of the events was “not even close to a fair
    interpretation” of the conversation that the agents had with
    Frazier. Moser testified that Rekoff “gave [the agents] permission
    to talk to” the defendant and that they gave Frazier Rekoff's
    business card and told him to feel free to contact Rekoff.                  The
    factual finding on this issue was not clearly erroneous.
    Accordingly,    we      must     decide      whether     the    agents'
    representations to Frazier that the defendant's former attorney
    “gave the agents permission to speak with the defendant,” and the
    agents' showing Frazier Rekoff's business card and telling him that
    his former attorney had stated that he should “feel free” to
    contact   him,   constitutes    the    coercion    necessary   to    make   his
    subsequent confession involuntary.         We conclude that these actions
    do not constitute “official overreaching” and thus did not give
    rise to an involuntary confession.
    “[T]here is nothing inherently wrong with efforts to create a
    climate for confession. Neither 'mere emotionalism and confusion,'
    nor   mere   'trickery'    will       alone    necessarily     invalidate    a
    confession.”     Hawkins v. Lynaugh, 
    844 F.2d 1132
    , 1140 (5th Cir.
    1988) (citations omitted).      When a self-incriminatory statement is
    7
    given in the absence of an attorney, however, the government bears
    a “heavy burden” of showing a knowing and intelligent waiver.    Self
    v. Collins, 
    973 F.2d 1198
    , 1206 (5th Cir. 1992) (quoting Miranda v.
    Arizona, 
    384 U.S. 436
    , 475 (1966)).
    It follows that “[t]he waiver inquiry has 'two distinct
    dimensions': First, the relinquishment of the right must have been
    voluntary, in the sense that it was the product of a free and
    deliberate choice rather than intimidation, coercion, or deception.
    Second, the waiver must have been made with a full awareness of
    both the nature of the right being abandoned and the consequences
    of the decision to abandon it.”       Moran v. Burbine, 
    475 U.S. 412
    ,
    421 (1986).   Both parts of this test are met in this case.
    Frazier made a free and deliberate choice to relinquish his
    rights.   Although, as the magistrate judge found, the agents may
    have been using the business card for “psychological advantage,”
    Frazier, by his own account, knew that Rekoff, at that point, no
    longer represented him.   Frazier also chose not to exercise his
    rights to call Rekoff, or another attorney, to ask his advice.
    Most importantly, Frazier chose to exercise his rights partially,
    even in the absence of an attorney, while at the same time
    partially relinquishing themSSthat is, he refused to name anyone
    other than Raven in the confession that he gave.      Because Frazier
    does not claim that the agents related a qualified directive from
    Rekoff (such as “tell only part of the story”), it is not apparent
    8
    why their use of the business card was able to overcome only part
    of Frazier's will.
    Frazier also knew the consequences of waiving his rights.     He
    received the Miranda warnings both orally and in written form
    before deciding to speak while in jail; he also received the
    Miranda warnings again at the DEA office before he offered more
    self-incriminatory statements.     He was an adult with at least a
    high-school education.   And perhaps most of all, he was no tyro in
    the criminal justice system.
    III.
    Frazier next challenges the sufficiency of the evidence to
    support his conspiracy conviction.      The district court denied his
    motion for judgment of acquittal on this ground, and we review that
    decision de novo.    See United States v. Sanchez, 
    961 F.2d 1169
    ,
    1179 (5th Cir. 1992).    We affirm if a reasonable trier of fact
    could conclude from the evidence that the elements of the offense
    were established beyond a reasonable doubt, viewing the evidence in
    the light most favorable to the verdict and drawing all reasonable
    inferences from the evidence to support the verdict.     The evidence
    presented at trial need not exclude every reasonable possibility of
    innocence.    See United States v. Faulkner, 
    17 F.3d 745
    , 768 (5th
    Cir. 1994).
    In a prosecution for a drug conspiracy, the government must
    prove (1) the existence of an agreement between two or more persons
    9
    to violate the narcotics laws; (2) that the defendant knew of the
    agreement;     and    (3)   that   he     voluntarily    participated    in     the
    agreement.     See United States v. Gonzalez, 
    76 F.3d 1339
    , 1346 (5th
    Cir. 1996).       “Proof of any element may be by circumstantial
    evidence, and circumstances altogether inconclusive, if separately
    considered, may, by their number and joint operation, . . . be
    sufficient to constitute conclusive proof.”                  United States v.
    Flores-Chapa, 
    48 F.3d 156
    , 161 (5th Cir. 1995) (internal quotations
    and citations omitted).       “[A]ssent to a conspiracy may be inferred
    from acts which furthered the purpose of the conspiracy.”                 
    Id. at 162
     (internal quotations and citations omitted).
    Frazier was identified by several witnesses who testified that
    he had sold crack to them.                 Two of these witnesses further
    testified that Frazier had obtained his crack from Raven.                         A
    government agent stated on the stand that Frazier and a co-
    defendant had met with a confidential informant in a motel room to
    discuss a crack deal on Raven's behalf.               The meeting was taped by
    authorities, and the tape and transcript were introduced at trial.
    Frazier also admitted to being a crack cocaine dealer.                        This
    evidence is more than sufficient to allow a jury to conclude beyond
    a reasonable doubt that Frazier and Raven agreed to violate the
    drug   laws;   that    Frazier     knew    of   the   agreement;   and   that    he
    participated in the agreement voluntarily.
    IV.
    10
    Frazier argues that the district court erred in failing to
    grant   him     a   reduction       in      sentence          for   “acceptance     of
    responsibility.”         His    argument        is    based    on   his   apology   at
    sentencing that he had “no one to blame except [him]self.”
    Because Frazier did not object at sentencing, we review for
    plain error. “Plain errors or defects affecting substantial rights
    may be noticed although they were not brought to the attention of
    the court.”     FED. R. CRIM. P. 52(b).              This requires (1) that there
    be   error; (2) that the error be plain; and (3) that the error must
    affect substantial rights. See United States v. Calverley, 
    37 F.3d 160
    , 162 (5th Cir. 1994) (en banc).                       The burden of showing
    prejudice lies with the defendant.                   See 
    id. at 164
    .      Even if an
    error meets this criteria, we have the discretion not to reverse if
    the error does not “seriously affect the fairness, integrity, or
    public reputation of judicial proceedings.”                     
    Id.
     (quoting United
    States v. Atkinson, 
    297 U.S. 157
    , 160 (1936)).
    Section 3E1.1(a) of the Sentencing Guidelines permits a two-
    level   reduction       for    acceptance       of     responsibility     “[i]f     the
    defendant     clearly    demonstrates       a    recognition        and   affirmative
    acceptance of personal responsibility for his criminal conduct.”
    United States v. Allibhai, 
    939 F.2d 244
    , 253 (5th Cir. 1991)
    (quoting U.S.S.G. § 3E1.1).           “The defendant bears the burden of
    demonstrating to the sentencing court that he is entitled to a
    downward adjustment for acceptance of responsibility, and we review
    11
    the sentencing court's acceptance of responsibility determination
    with even more deference than under the pure clearly erroneous
    standard.”     United States v. Bermea, 
    30 F.3d 1539
    , 1577 (5th Cir.
    1994) (citations omitted).
    Frazier    has    not   met   his    burden      on   this     prong:      “This
    adjustment is not intended to apply to a defendant who puts the
    government to its burden of proof at trial by denying the essential
    factual elements of guilt, is convicted, and only then admits guilt
    and expresses remorse.”          U.S.S.G. § 3E1.1 cmt. 2.             The district
    court therefore was well within its discretion.
    V.
    Frazier contests his base offense level.                    He argues that the
    district court erred in the amount of drugs it attributed to him
    and in determining that the cocaine at issue was “crack.”
    Frazier failed to object to the finding in the presentence
    report that the drug involved was crack cocaine.                    We thus review
    for plain error and find none.                In addition to other evidence
    introduced at trial, the record reflects that Frazier admitted in
    his confession that the drug involved was crack.
    Frazier also challenges the drug amount used in calculating
    his base     offense   level.2      The       PSR   used   the    figure   of   8.883
    2
    Because of the sketchy record on this point, we assume arguendo that
    Frazier properly raised this argument in the district court. This assumption
    does not affect the outcome of our analysis.
    12
    kilograms.3
    Unless    a   defendant   submits    relevant     affidavits    or    other
    evidence to rebut the information in the presentence report, the
    district court is free to adopt the report's findings without
    further inquiry or explanation. See United States v. Mir, 
    919 F.2d 940
    , 943 (5th Cir. 1990).        Here, the probation office calculated
    the figure primarily from Frazier's own statements admitting that
    he distributed as much as nine ounces of crack every three weeks.
    In   addition,     the   probation   office    found     that    Frazier    had
    participated in two transactions in July and August 1995 in which
    approximately 283 grams of cocaine were involved.               Frazier put on
    no evidence to challenge these findings, which were included in the
    presentence report.      We therefore find that the court's use of the
    8.883 kilogram number in the calculation of the base offense level
    was not error.
    AFFIRMED.
    3
    Frazier also contends that the PSR improperly attributed Raven's crack
    to him, and that such amounts were not foreseeable.     It appears that these
    contentions were not made in the district court, and we find no plain error in
    this regard.
    13