United States v. Polk ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-7605
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE JAMES POLK,
DERICK O. CARTER,
ROBERT WELCH and
RONALD McMILLIAN,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Mississippi
(June 16, 1995)
Before KING, EMILIO GARZA and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
The four defendant-appellants, Willie James Polk, Derrick O.
Carter, Robert Welch and Ronald McMillian, were charged in a
February 17, 1993 indictment with conspiracy and substantive
offenses relating to their involvement in a crack cocaine operation
based in Moss Point, Mississippi from 1989 to 1992. Several other
conspirators were named in the indictment but did not go to trial
with the appellants for various reasons. Dwight Earl Jackson
pleaded guilty and testified at trial against the appellants. Mark
1
A. Thomas, a/k/a "Jim" -- who the evidence shows participated
significantly in many of the drug transactions described below --
was granted a severance, and comments from the district court
indicate that Thomas was under psychiatric treatment and was being
evaluated for fitness to stand trial. Terry Anthony Austin, the
brother of defendant-appellant Carter, was also granted a separate
trial. Houston Chambers, who the evidence shows participated in the
June 1992 Eialand Plaza drug transactions, pleaded guilty to one
count and did not go to trial.
The alleged ringleader of the drug distribution enterprise,
co-defendant Eric James a/k/a "Gold Dog," went to trial with the
four appellants and was found guilty on all counts charged.
However, James waived his right to appeal in exchange for a
sentence reduction, so his convictions are not before us.
Appellants Polk, Carter, Welch and McMillian were convicted by
a jury on June 11, 1993 of the following offenses:
! Count 1: Conspiracy to possess cocaine base with the intent to
distribute from about 1989 to June 1992 in violation of 21 U.S.C.
§§ 841(a)(1), 846 (Polk, Carter, Welch and McMillian);
! Count 3: Possession of cocaine base with intent to distribute on
April 23, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian);
! Count 5: Possession of cocaine base with intent to distribute on
April 30, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian);
! Count 6: Possession of cocaine base with intent to distribute on
June 16, 1992, and aiding and abetting thereof, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2 (McMillian and Carter);
! Count 7: Possession of cocaine base with intent to distribute on
June 18, 1992 in violation of 21 U.S.C. § 841 (McMillian);
2
! Count 8: Possession of cocaine base with intent to distribute on
or about June 22, 19921, and aiding and abetting thereof, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Welch);
! Count 9: Possession of cocaine base with intent to distribute on
or about June 23, 1992, and aiding and abetting thereof, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Welch);
! Count 10: Carrying a firearm during and in relation to a drug
trafficking crime "on or about June 23, 1992, and prior thereto,"
and aiding and abetting thereof, in violation of 18 U.S.C. §§ 2 and
924(c) (Welch).
The appellants were sentenced as follows: Polk received 292
months of imprisonment on Count 1. Carter received 262 months on
Count 1 and 240 months on Count 6, to run concurrently. Welch
received 235 months for Count 1, 235 months for Count 8 and 235
months for Count 9, to run concurrently, and a consecutive 60-month
sentence on Count 10. McMillian received 262 months on Count 1 and
240 months each on Counts 3, 5, 6 and 7, to run concurrently.
1
The two cocaine possession transactions for which Welch was
convicted ("the Eialand Plaza transactions") were alleged to have
occurred in Louisville, Mississippi within hours of each other, one
before and one after midnight. The indictment shows a date of June
22, 1992 for the Count 8 transaction and a date of June 23, 1992
for the Count 9 transaction. However, the evidence showed that the
transactions actually took place on June 23 and June 24, 1992. The
firearm possession charge in Count 10 relates to one or both of
these transactions. The prosecutor argued to the jury that "if [the
dates in the indictment] are off by a day or two, that's for you to
decide. I mean, if you're satisfied that the evidence supports
those transactions that occurred according to the witnesses'
testimony, the fact that the grand jury might be off a day or two
is not something which would be dispositive unless you think that
-- that relates to your decision in some way." The district court
instructed the jury: "You will note that the indictment charges
that the offense was committed on or about a specified date. The
government does not have to prove that the crime was committed on
that exact date, so long as the government proves beyond a
reasonable doubt that the defendants committed the crime on a date
reasonably near the date stated in the indictment."
3
All four defendant-appellants have appealed their convictions,
raising various grounds for reversal. None of the appellants raises
sentencing issues in this appeal.
FACTUAL BACKGROUND2
The four defendants grew up knowing one another in the same
neighborhood in Moss Point, Mississippi, near the intersection of
Barnett and Church streets. James/"Gold Dog" owned a house on
Barnett Street nicknamed "the camp" that in the years 1989 to 1992
was a site for sales of crack cocaine. The small, run-down Barnett
Street house had beds, electricity and phone service but no water
or gas. There was a high chain-link fence within 18 inches of the
house, and pit bulls were maintained as guard dogs. One witness
testified that the camp was a crack house run in shifts and open 24
hours a day. A Volkswagen van was parked in the yard. There was
testimony that Polk, Carter, Welch, McMillian and others sold crack
from the house, from the van and elsewhere, sometimes returning the
money they received to James, and that guns were kept in the van to
protect the drugs. One witness testified that the eight or nine
people working for James at the Barnett Street house would sell
about a kilogram of cocaine every two weeks. In the spring and
early summer of 1992, government agents made several undercover
drug purchases at the Barnett Street address, using two
confidential informants. Some of the transactions were tape-
recorded, and videotape was taken on at least one occasion.
2
Because this is a sufficiency of the evidence review, the
facts are stated in the light most favorable to the government.
4
Evidence showed that James obtained large shipments of cocaine
from Houston, converted it to crack and distributed it through
street-level dealers in Moss Point, Mississippi and other
communities. An airport narcotics officer testified that in 1991
narcotics officials at the New Orleans Airport seized more than
$30,000 in cash from James and three other people who had bought
cash one-way tickets to Houston and fit the drug profile. The money
was forfeited without protest from James.
In a challenged evidentiary ruling, the court admitted
evidence about an undercover operation in Laurel, Mississippi on
July 24, 1992 in which James arranged to buy five kilograms of
cocaine for $110,000 from a "source" who was actually an undercover
officer. The court instructed the jury that the evidence of the
five-kilogram transaction related only to James and could not be
used in any way against defendant-appellants Polk, Carter, Welch or
McMillian. James and several other people, including co-
conspirator/government witness Cedric Carter, were arrested, were
charged and pleaded guilty in a separate case in relation to the
July 24, 1992 five-kilogram transaction.3
The evidence showed that James did not live in the Barnett
Street house; he lived in a larger, well-kept rented house on
Griffin Street in Moss Point. However, there was testimony that
3
The evidence of the events of July 24, 1992 was introduced in
the instant case, over James' double jeopardy objection, to prove
the government's charge in Count 12 that James had enticed a minor,
his 16-year-old nephew, to become involved in a drug transaction.
James was convicted in Count 12 and in Count 2 for maintaining a
house for the purpose of distributing cocaine. As noted above,
James did not appeal these convictions.
5
James visited the Barnett Street house every day to collect money
from the drug sales. Government surveillance established that all
drug activity ceased at the Barnett Street house after July 24,
1992, the day James was arrested and taken into custody.
DISCUSSION
Sufficiency of the Evidence Issues
All four defendant-appellants challenge the sufficiency of the
evidence to support their convictions on Count 1, conspiracy.
Carter, McMillian and Welch challenge the sufficiency of the
evidence to support their convictions on the individual substantive
cocaine possession offenses in Counts 3, 5, 6, 7, 8 and 9. Welch
challenges the sufficiency of the evidence to support his
conviction in Count 10 for using or carrying a firearm in
connection with a drug offense. All defendants preserved the
sufficiency issues at trial by moving for judgments of acquittal on
all counts, both after the government rested and after all
defendants rested.
We find that the evidence introduced at trial was sufficient
to support the convictions of Polk, Carter, Welch and McMillian in
Count 1 (conspiracy), and of McMillian in Counts 5, 6 and 7 and of
Welch in Count 8 (possession with intent to distribute), and we
therefore affirm those convictions. However, for the reasons we
discuss below, we find that the evidence was insufficient to
support the convictions of McMillian in Count 3, Carter in Count 6
and Welch in Counts 9 (possession with intent to distribute) and of
6
Welch in Count 10 (use/carrying of firearm in relation to a drug
crime), and we therefore reverse those convictions.4
The elements of a drug conspiracy are: (1) the existence of an
agreement to possess narcotics with the intent to distribute, (2)
knowledge of the agreement, and (3) voluntary participation in the
agreement. United States v. Fierro, 38 F.3d 761, 768 (5th Cir.
1994), cert. denied, 115 S. Ct. 1431 (1995); United States v.
Mergerson, 4 F.3d 337, 341 (5th Cir. 1993), cert. denied, 114 S.
Ct. 1310 (1994). The jury may infer a conspiracy from
circumstantial evidence and may rely upon presence and association,
along with other evidence. Proof of an overt act in furtherance of
the conspiracy is not required; a common purpose and plan may be
inferred from a development and collection of circumstances.
4
In some cases, a defendant who participates in a conspiracy
may be "deemed" guilty of substantive counts, such as possession,
committed by a co-conspirator in furtherance of the conspiracy.
Pinkerton v. United States, 328 U.S. 640, 645 (1946); United States
v. Crain, 33 F.3d 480, 486 n.7 (5th Cir. 1994), cert. denied sub
nom. Watkins v. United States, 115 S. Ct. 1142 (1995); United
States v. Basey, 816 F.2d 980, 997-98 (5th Cir. 1987). However, a
substantive conviction cannot be upheld solely under Pinkerton
unless the jury was given a Pinkerton instruction. Crain, 33 F.3d
at 486 n. 7; United States v. Sanchez-Sotelo, 8 F.3d 202, 208 (5th
Cir.1993) ("Since the district court did not instruct the jury
[under Pinkerton], proof of the conspiracy alone will not sustain
the possession charge against Sotelo."), cert. denied, 114 S. Ct.
1410 (1994); Basey, 816 F.2d at 998. Basey held that, at a minimum,
a proper Pinkerton instruction should state clearly that the
defendant can be convicted of a substantive crime committed by his
co-conspirator in furtherance of the conspiracy. Basey, 816 F.2d at998 & n. 35. The jury in this case was not given such an
instruction. Therefore, even though we have affirmed each
appellant's conviction on the conspiracy count, the individual
substantive convictions must stand or fall on the government's
evidence against the individually charged defendant regarding that
particular count. Crain, 33 F.3d at 486; Sanchez-Sotelo, 8 F.3d at
208.
7
Fierro, 38 F.3d at 768; United States v. Robles-Pantoja, 887 F.2d
1250, 1254 (5th Cir. 1989). On a sufficiency review, the appellate
court must consider all evidence in the light most favorable to the
guilty verdict and accept all reasonable inferences tending to
support the verdict. The ultimate inquiry is whether a rational
trier of fact could have found guilt on each count beyond a
reasonable doubt. Fierro, 38 F.3d at 768; United States v.
Huntress, 956 F.2d 1309, 1318 (5th Cir. 1992), cert. denied, 113 S.
Ct. 2330 (1993).
To sustain a conviction for possession with intent to
distribute, the government must show that the defendant (1)
knowingly (2) possessed contraband (3) with the intent to
distribute it. United States v. Garcia, 917 F.2d 1370, 1376 (5th
Cir. 1990). Even if actual possession is not shown, a conviction
may rest on proof of "constructive possession," which exists when
the defendant has ownership, dominion or control over the
contraband or over a vehicle where it was found. Id.To sustain a conviction for aiding and abetting under 18
U.S.C. § 2, the government must show that a defendant associated
with a criminal venture, purposefully participated in the criminal
activity, and sought by his or her actions to make the venture
succeed. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.
1995), cert. denied, 1995 WL 251644 (May 22, 1995); Fierro, 38 F.3d
at 768; United States v. Ledezma, 26 F.3d 636, 641 (5th Cir.),
cert. denied sub nom. Zajec v. United States, 115 S. Ct. 349(1994). To aid and abet simply means to assist the perpetrator of
8
a crime with some affirmative act designed to aid the venture,
while sharing the requisite criminal intent. Jaramillo, 42 F.3d at
923. Mere presence and association, however, are not alone enough
to sustain a conviction for aiding and abetting. Id.The bulk of the government's conspiracy evidence at trial came
from the testimony of two "cooperating witnesses" -- Dwight Earl
Jackson ("Jackson") and Cedric Darnell Carter ("Cedric").5 Both
Jackson and Cedric grew up in the same neighborhood as James and
the appellants, and both admitted to using crack cocaine and
selling crack for James at the Barnett Street house. Jackson was
initially indicted along with the appellants, but he pleaded guilty
and testified pursuant to a plea agreement. Cedric pleaded guilty
to conspiracy to possess cocaine in a separate case involving James
and the five-kilogram transaction. On cross-examination, Cedric
said he was testifying in this trial at the request of the
prosecutor and in the hope that he might get a sentence reduction.
Jackson testified that he has known James all his life and
that he spent a lot of time at the Barnett Street house from 1990
to 1992, selling crack cocaine for James. He testified that Polk,
Carter, Welch and McMillian also sold crack cocaine for James at
the Barnett Street house during that time period. Cedric said he
spent time around the Barnett Street house in June and July of
1992. After working for James at the James' nightclub, "America's
Most Wanted," Cedric started to sell crack cocaine for James.
5
We refer to co-conspirator/government witness Cedric Darnell
Carter as "Cedric" to avoid confusion with defendant-appellant
Derrick O. Carter ("Carter"). The two Carters are not related.
9
Cedric said that at this time he was smoking crack "like a broke
chimney," and that he bought crack from and sold crack to Carter
and McMillian, and to a lesser extent Polk, but not from Welch.
All four defendant-appellants argue that the testimony of
Jackson or Cedric, or both, was not credible, and indeed the two
witnesses contradicted themselves and each other at several points.
However, we note that non-credibility is generally not a sound
basis for alleging insufficiency of the evidence on appeal; it is
the jury's function to determine credibility. United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied sub nom.
Garza v. United States, 115 S. Ct. 1825 (1995). Defense counsel
cross-examined Jackson and Cedric vigorously on their inconsistent
statements, prior criminal conduct, drug use, government promises
and possible inducements for them to lie or exaggerate. To the
extent the appellants challenge sufficiency by attacking the
government witnesses' credibility, their arguments on this point
are without merit. See Bermea, 30 F.3d at 1552 (holding that "a
guilty verdict may be supported only by the uncorroborated
testimony of a coconspirator, even if the witness is interested due
to a plea bargain or promise of leniency, unless the testimony is
incredible or insubstantial on its face.").
The following evidence relating to the conspiracy and
possession counts was introduced against each of the defendant-
appellants:
10
Evidence against Willie Polk:
Jackson identified Polk in the courtroom, testified that he
knows Polk's father and has been friends with Polk all his life,
and said that Polk's nickname is "Spring." Jackson testified that
during the years 1990 to 1992, Polk stayed at the house on Barnett
Street (which was called the "camp") and sold crack for James out
of the house and out of the Volkswagen bus in the front yard of the
house, at various times during all three around-the-clock "shifts."
Jackson said Polk was "the one who made [Gold Dog] what he is
today," and that Polk "sold more dope for [Gold Dog] than anybody."
Jackson testified that Polk was trusted at the camp, knew where the
drugs were hidden, was known and trusted by the guard dogs at the
house, and sometimes borrowed cars from James. Jackson also
testified that he had seen Polk at James' nightclub "America's Most
Wanted," and at James' residence on Griffin Street, and that Polk
was trusted enough to have access to the Griffin Street house to
pick up drugs. Jackson testified that Polk at some point was also
a crack user.
Jackson identified Polk as one of the men who posed in a
photograph with James and another man. In the photo, Polk is
holding a pistol, wearing sunglasses and standing in front of a
junior high school next to James, who was holding a pile of money.
Jackson said the photo was "when Gold Dog first made $10,000. He
got together and brought all his money up ... and get a couple of
the guys that work for him, [and] they take a picture." Polk's
attorney argued to the jury that the man in the photograph next to
11
James was not Polk and in fact looked about 6 inches taller than
Polk, but the jury had a chance to look at the photograph and to
look at James and Polk standing next to each other in the
courtroom. In closing arguments, the prosecutor argued that the
photo showed the men leaning on a car, which could make a
difference in their apparent heights.
Polk was identified by ATF Agent Bobby Wright as being present
at the April 28, 1992 transaction in which the confidential
informant ("CI") bought $130 worth (1 gram) of crack cocaine from
co-indictee Mark Thomas. Wright was not the CI but was doing
surveillance that day and personally saw Polk at the transaction.
Wright, who monitored the transaction through the CI's body wire,
said it is Polk's voice on the tape of the April 28 transaction
talking about "no one bought any last night," after Thomas
threatened to kill Polk if Polk didn't give Thomas his money.6
Agent Wright testified that, while in plain clothes, he called
Polk "Spring" on the street and Polk answered him, thus verifying
that Spring was Polk's nickname. Agent Wright also verified the
alias with records from the Moss Point Police Department. On an ATF
surveillance videotape taken on April 30, 1992 at the Barnett
Street house, an unknown woman accompanied by a child calls out for
6
As we note later in this opinion, McMillian and Polk were
originally charged in Count 4 with possession of cocaine base with
the intent to distribute in connection with the April 28
transaction, but the trial court granted McMillian's and Polk's
motions for acquittal on that count. Therefore, the evidence
regarding the April 28 transaction is relevant only to the
conspiracy count.
12
either "Spring" (according to Wright) or "Frank" (according to
Polk's counsel).7
Cedric testified that he went to school with Polk, grew up
with him and calls him "Spring." During a break in Cedric's
testimony, Cedric borrowed a cigarette from Polk. Cedric, who said
he used to be a heavy crack cocaine user, testified that he had
both bought crack from and sold crack to Polk at the camp. (Later
Cedric contradicted himself and stated that he didn't sell Polk any
drugs, but that he occasionally would give Polk a few $20 rocks of
crack in exchange for Polk's protecting him, i.e., "watching
[Cedric's] back," and that Polk didn't sell drugs for James at the
camp, but that Polk would occasionally sell Cedric a $20 rock.)
Cedric also identified Polk as the man in the photo with James.
Evidence against Derrick Carter:
Jackson identified Carter in the courtroom and testified that
he has known Carter all his life and that Carter's nickname is
7
Polk and McMillian claim that the trial court erred in
allowing Agent Wright to give his own interpretation of what name
the woman spoke. During the showing of the tape, the agent stated,
"Here the young lady is hollering out for ``Spring.'" Polk and
McMillian claim that the spoken word was actually "Frank," and that
it was improper to allow such opinion testimony by a lay witness.
The evidence did not show anyone connected with the case named
Frank. When objection was made at trial, the court stated that the
defense could argue its own interpretation of the tape on cross-
examination. Polk's counsel did so, and played the tape again so
the jury could determine what name was spoken. The jurors were
instructed that their own recollection of the tapes was to control
their deliberations, and there is no indication that the jurors
failed to understand or follow that instruction. In addition, we
note that Wright was the officer operating the video camera on that
date, and he had personal knowledge of what he heard. We find no
error.
13
"Doo-Doo." Jackson testified that during the years 1990 to 1992,
Carter sold crack cocaine out of the Barnett Street house, and out
of the van in front of the house, on behalf of James. Jackson
testified that he also saw Carter selling drugs "from the camp to
the village," referring to Carver Village in Pascagoula,
Mississippi. Jackson also identified the house at 4501 Church
Street where Carter lived, within walking distance of the "camp,"
and testified that Carter also sold crack from that house, often
when the police were watching the Barnett Street house. Jackson
identified a orange/brown 1981 Honda Civic in a photograph as
Carter's car, and stated that James bought the car for Carter at an
auction. Agent Wright also identified the car in the photograph as
belonging to Carter, and the government introduced license tag
registration documents showing that the Honda was registered to
Derrick Carter at 4501 Church Street. Wright also testified that
Carter lived at the Church Street house and identified the house
from a photograph.
Cedric identified Carter in the courtroom and testified that
he knows Carter and Carter's mother, and that Carter's nickname is
"Doo-Doo." Cedric testified that in 1991 and 1992, when he was a
heavy crack cocaine user, he bought crack from Carter and others at
the Barnett Street house. In June 1992, Cedric was selling cocaine
for James at the camp, and he testified that Carter was one of his
customers who bought "cookie" amounts large enough to break up and
re-sell at a profit. Cedric also testified that Carter was among
those who came to the Barnett Street house to hang around and play
14
cards or basketball, and that he also saw Carter at James'
nightclub, "America's Most Wanted."
Wright testified that on June 16, 1992, he sent two
confidential informants to the Barnett Street house to make a
controlled purchase of crack cocaine. The two CIs found no one
present at the house, and as they turned around to leave, the Honda
Civic identified as belonging to Carter pulled up in front of the
Barnett Street house. Two men were in the Honda, an "unidentified
black male" and another man who Wright identified as McMillian.
Wright said McMillian got out of the car and recognized one of the
CIs as a person who had previously bought crack cocaine at the
Barnett Street house. Wright testified that McMillian said the
police were watching the Barnett Street house, so they had shut
down operations there, but McMillian told the CIs to get back in
their car and follow the Honda down the block to the house at 4501
Church Street (Carter's residence), where the CIs purchased $300
worth (4 grams) of crack cocaine. Wright monitored the entire
encounter and transaction via a body wire on one of the CIs. Later
on the same day, the same car, Carter's Honda Civic, was seen and
photographed parked in front of James' house on Griffin Street. The
photograph was entered into evidence.
The "unidentified black male" who was in Carter's car along
with McMillian during the June 16 drug transaction was never
positively identified as being Carter or anyone else. One of the
CIs at first incorrectly identified the man as co-indictee Terry
Anthony Austin, Carter's brother. But Agent Wright confirmed on the
15
stand that this identification had to be wrong, because Austin was
incarcerated on that date.
ATF Agent James Render was working with Wright on June 16,
1992. Render confirmed the circumstances of the drug purchase at
4501 Church Street, and testified that he took the photograph of
Carter's car in front of James' house. A Buick Regal belonging to
co-indictee Mark Thomas is also parked in front of James' house in
the same photograph.
The government introduced into evidence a service agreement
indicating that Derrick O'Neal Carter of 4501 Church Street
purchased a pager on November 1, 1991. The document lists Carter as
a student and his "type of business" as "America's Most Wanted Game
Room," the nightclub owned by James. The pager service agreement
also lists Carter's phone number as 475-9640, which a phone company
witness later confirmed was the phone number at the Barnett Street
house. Carter's attorney argued to the jury that no one testified
to seeing Carter with a pager, and that anyone could fill out such
an application with someone else's name on it.
In a evidentiary ruling challenged by Carter, the district
court allowed Moss Point Police Officer John Gaffney to testify
about a search warrant executed at 4501 Church Street on April 28,
1993 (about a year after the charged conspiracy). The evidence was
admitted under Federal Rule of Evidence 404(b), and the court
instructed the jury not to consider the evidence to prove that
Carter had a bad character and thus committed the acts charged, but
to consider it only to prove intent or lack of mistake or accident.
16
Gaffney testified that he entered the Church Street house to
execute the search warrant, he found Carter in the northeast
bedroom, standing in the center of the room and jumping toward a
bed. In that bedroom, officers found a plastic medicine bottle
containing a small rock of crack cocaine. In a hole in the floor
near where Carter had been standing, officers found two plastic
bags containing 78.9 grams of crack cocaine. Carter was not found
to be carrying any drugs, and at least one of the other two
occupants of the house had recently been in the area where the
drugs were found. Carter told the officers on that day that he no
longer lived in the house, but bills and mail addressed to him, as
well as clothing his size, were found in the northeast bedroom.
Also in that bedroom was an asthma bottle identical to one in the
possession of Carter, who has asthma.
Evidence against Robert Welch:
Jackson identified Welch in the courtroom and said he went to
school with Welch's brother. Jackson testified that during the
years 1990 to 1992, Welch sold crack cocaine out of the Barnett
Street house, and out of the Volkswagen bus in front of the house,
on behalf of James. Jackson testified that Welch at first sold
crack for co-indictee Thomas, then Welch began selling for James
instead because he could make more money that way. Jackson said he
had seen Welch at James' nightclub, "America's Most Wanted."
Jackson said he never saw Welch with a pager, but he has seen him
with a pistol at the Barnett Street house. Jackson said that in the
17
summer of 1992, he didn't see Welch around the Barnett Street house
because Welch "was in north Mississippi working."
Cedric identified Welch in the courtroom and said he calls
Welch by his nickname, "Gook," but he doesn't know Welch very well.
Cedric said he bought crack at the Barnett Street house in the
years 1990 to 1992, but not from Welch. When Cedric started selling
crack cocaine, he never sold any to Welch, either. Cedric said he
saw Welch at the Barnett Street house "every now and then," to
drink beer or shoot dice, "just kicking around." He never saw Welch
with a firearm, and he never saw Welch involved in a drug
transaction.
Agent Wright testified that none of the undercover cocaine
purchases at Barnett Street involved Welch, although Wright had
seen Welch at the Barnett Street house during the investigation.
Wright said Welch was not identified as being a part of the James
conspiracy until he was arrested in Winston County with co-
indictees Mark Thomas and Houston Chambers.
Officer Mike Perkins of the Louisville, Mississippi police
department testified that he had watched Welch get off the bus in
Louisville, Mississippi seven or eight times in the spring and
early summer of 1992. Louisville is about five hours away from Moss
Point. Welch was being watched in connection with an investigation
into narcotics dealing in the Eialand Plaza Apartments in
Louisville. Officers believed Welch was making trips from Moss
Point to Louisville to deal in crack cocaine. At least seven
18
confidential informants had described Welch to police, and Welch
had been followed from the bus stop to the apartments on several
occasions.
Officer David Porter testified that he and a CI went to the
Eialand Plaza Apartments on June 23, 1992 and attempted to make an
undercover purchase. No purchase was made, but Porter talked to
resident Annie Steele and saw Welch, Thomas and Chambers together,
talking and walking away. Later that evening, officers sent another
confidential informant, Chris White, to the apartments, and White
made two undercover purchases of crack cocaine, one late on June
23, 1992 and the other just after midnight on June 24, 1992.
White, the CI who made the two purchases, testified that
officers contacted him and asked him if he could make an undercover
purchase from Welch and Chambers. White knew that he could do so
because he was a former crack cocaine user and had bought cocaine
from Welch about four or five times before. White described the two
transactions; he said that when he approached that evening to make
the first buy, Welch was standing on the breezeway at the top of
the stairs, and Welch said, "that's Chris, he's cool," and sent
White downstairs to Annie Steele's apartment where Thomas was, and
White purchased a cocaine rock from Thomas. White said he knew
Welch, but he had seen Thomas only once, earlier that same day.
White said he couldn't tell exactly who Welch was addressing when
he said "he's cool," because "it was rather dark under the porch."
The government argues that Welch aided and abetted the drug
transaction by "vouching" for White, who Thomas did not know, so
19
that White could purchase cocaine.
White testified that when he was sent back after midnight to
make a second purchase, Chambers was standing on the stairs near
where Welch had been, and Chambers sold White the second cocaine
rock.
Officer Porter was in a van about 125 feet away monitoring the
transactions via the CI's body wire. During the first transaction,
Porter said he heard White say over the wire that he was
approaching the apartment, then he heard White going up some stairs
and asking someone if he could "get something." Porter testified
that he heard someone say, "he's cool" and instruct White to go
downstairs. White then entered an apartment to make the purchase,
and Perkins couldn't hear anything after that because of loud music
being played in the apartment. White purchased a 0.06-gram rock and
returned. After the first purchase, officers secured a search
warrant for the apartment where the cocaine had been sold. Porter
said the second purchase, of a 0.12-gram rock, was made just after
midnight on June 24. Officer Porter again listened via the body
wire, and determined that neither Welch nor Thomas was present
during the second transaction and that the purchase was made from
Chambers. Shortly after the second purchase, officers executed the
search warrant. As officers entered the apartment, Perkins
testified, Chambers ran out and tried to throw away a bag. Chambers
was arrested, and the bag was retrieved and found to contain 67
rocks (5.14 grams) of crack cocaine. Welch and Thomas were not at
the apartment when the search took place. White, the CI, provided
20
a description of Welch, Thomas and Chambers and the license plate
number of the car they had been seen in earlier in the day. On
information from another Louisville police officer, Perkins went to
Welch's uncle's house, about a mile away from the apartment, to
seek Welch and Thomas. The two were found inside asleep on the
couch. Officers obtained permission from Thomas to search his 1981
Buick Regal parked outside the house, which bore the license number
the CI had provided. The car was actually registered to Thomas'
mother, but Thomas was known to drive it regularly and had received
a traffic citation while driving it that same day. In addition, a
photograph introduced into evidence showed Thomas' Buick Regal on
another date parked under the carport at James' residence on
Griffin Street. Officers searching the car found two loaded pistols
in the glove compartment8 and three bundles of cash totaling $3,000
wrapped with rubber bands and hidden under the car stereo speaker.
The two weapons were dusted for fingerprints, but no identifiable
prints were found on either one. The $20 buy money from the second
purchase was found in Chambers' pocket, and the $20 buy money from
the first purchase was found in Thomas' pocket, along with about
$1,200 in additional cash. No drugs or buy money were found in
Welch's possession. Welch, Thomas and Chambers were all arrested on
state narcotics charges and placed in the Winston County Jail in
8
There was some indication that the glove compartment where
the guns were found was locked. On direct examination, Officer
Perkins stated only that the guns were found "in the glove box,"
but on cross examination, counsel for Welch asked Perkins if he
"found two pistols locked in the glove compartment of Mark Thomas's
vehicle," and Perkins answered, "that's correct."
21
the Louisville area. Perkins then spoke with Agent Wright of the
ATF about Wright's knowledge of Welch, Thomas and Chambers, and
Perkins testified that the Louisville police chose not to pursue
the state charges because a federal investigation was ongoing.
Annie Steele, who lived in the apartment where the two
purchases were made, testified that Welch, Thomas and Chambers were
selling drugs out of her apartment during the day before the police
executed the search warrant. Steele said she had previously been
buying crack cocaine from Welch every time Welch came to town.
Steele estimated that from 1989 to 1992 she bought cocaine from
Welch more than 20 times. She said Welch would come to Louisville
two or three times a month and stay "long enough to get rid of his
stash." Steele said Welch would bring the cocaine to town and sell
it from her apartment and other places in Louisville. She said
Welch would often bring other men, "his partners," with him to
Louisville. Steele said that on June 23, 1992, Welch came over to
Steele's apartment with Thomas and Chambers, who Steele didn't
think she had met before. Steele said Welch asked her if the three
could "hang out for a while, you know, and I told them sure, come
on in." In exchange, the three gave Steele some crack to smoke.
Steele said she knew White (who later became the CI) pretty well
and used to smoke crack with him. On cross-examination, Steele
admitted that when she gave a statement to the police after her
arrest on June 24, she didn't mention that she had bought cocaine
from Welch before.
Jail records show that Welch was in the Winston County Jail
22
from June 24, 1992 to August 12, 1992. Thomas paid a bond and was
released on June 26. Chambers at some point was transferred to
federal custody, but the date this occurred was not clear from the
testimony. Telephone records were introduced into evidence showing
phone calls to and from the telephone at the Barnett Street house
and the Louisville area. On June 22, 1992, an operator-assisted
phone call was made from a telephone in the Eialand Plaza
Apartments to the Barnett Street number. On June 24, 25 and 26,
1992, there were 15 operator-assisted collect phone calls from the
Winston County Jail "inmate area bullpen" to the Barnett Street
number. From July 8 to 13, 1992, five calls were made from the
Barnett Street number to the Winston County Jail. On July 8, 1992,
two additional calls were made to Louisville from the Barnett
Street number, one to the Winston County Circuit Clerk and one to
a G.J. Fulton in Louisville. Winston County records show that Welch
was released on August 12, 1992 when his state charges were
dismissed for "insufficient probable cause." Perkins testified that
he didn't present all of his evidence against Welch at the hearing
on the state charges, because he had already talked to Agent Wright
and planned to defer to the federal prosecution.
Evidence against Ronald McMillian:
Jackson identified McMillian in the courtroom and testified
that during the years 1990 to 1992 he remembers that McMillian --
who Jackson knew only by his nickname, "Bootsie" -- sold crack
cocaine out of the Barnett Street house, and out of the Volkswagen
bus in front of the house, on behalf of James. Jackson identified
23
McMillian and James in part of the ATF surveillance videotape taken
of the Barnett Street house from the woods across the street on
April 30, 1992. In the portion of the video that Jackson viewed,
McMillian is leaning on a fence about 30 feet away with his back
turned to the camera.
Cedric identified McMillian in the courtroom and testified
that he went to school with McMillian's mother and that McMillian's
nickname was "Bootsie." Cedric said that in the years 1990 to 1992
he bought cocaine from McMillian at the Barnett Street house. In
June 1992, Cedric sold cocaine at the house for James and claimed
that McMillian was one of his customers who bought "cookie" amounts
large enough to break up and re-sell at a profit.
Agent Wright testified regarding four undercover crack cocaine
purchases for which McMillian was charged and convicted. The
government did not introduce any testimony from either of the
confidential informants who made the purchases. Instead, Agent
Wright described the transactions from what the CIs told him, from
his own observations through audio and visual surveillance, and
from additional information in the investigation. Wright testified
that on April 23, 1992, the CI, Thomas Walker, bought $110 worth
(1.2 grams) of crack cocaine from Mark Thomas in the front yard of
the Barnett Street house near the Volkswagen van. Wright monitored
the transaction through the CI's body wire, and the transaction was
also tape-recorded. The cassette tape recording and a transcript of
that recording prepared by Wright were introduced into evidence.
The government claims in its brief before this Court that
24
"McMillian could be heard speaking during the sale," but the record
contains absolutely no evidentiary support for this claim. The
government introduced no evidence that might connect McMillian to
the April 23 transaction. The only voices identified on the
transcript were those of Thomas and the CI. No one testified that
McMillian participated in the April 23 transaction, aided that
transaction in any way, or was even present at the Barnett Street
house that day. However, McMillian was charged and convicted in
Count 3 of the indictment in connection with the April 23 sale.
Agent Wright testified that on April 28, 1992, two CIs, Walker
and Victor Upshaw, went to the Barnett Street house and purchased
1 gram of crack cocaine from Thomas. The transaction was monitored
by Wright via a body wire and was tape-recorded, and Wright
prepared a transcript of the tape. Wright testified that he also
watched this transaction from across the street in the woods and
that he saw McMillian at this transaction, but the only voices
identified on the transcript are those of Thomas, Polk and the two
CIs. McMillian, along with Polk, was originally charged in Count 4
in connection with the April 28 transaction, but the trial court
granted McMillian's and Polk's motions for acquittal on that count.
Wright testified that on the morning of April 30, 1992, the CI
Walker went to the Barnett Street house to make a purchase, but
found no one there. At about 5 p.m. the same day, Wright said,
Walker went back to the house to attempt a purchase while Wright
listened by wire and videotaped the transaction from across the
street. The April 30 transaction was also tape-recorded and
25
transcribed. According to the transcript and to Wright's testimony,
McMillian and a person named "Julio" or "Toot" conducted the
transaction. The three men went inside the house, and Wright
continued to listen to the transaction, although he could no longer
watch. On the tape and transcript, McMillian asks the CI, "You
ain't got no mic's or nothing, do you?" Walker answers, "Nall
brother, I'm cool," and McMillian responds, "You know I got to make
sure." Wright testified that at this point McMillian searched the
CI to look for microphones, but on cross-examination Wright
admitted that he did not witness the search because the men were
inside the house at this point. Wright also testified that the pat-
down of the CI's body could be heard over the wire. The CI did not
testify. On the tape, after Julio/Toot and Walker discuss the price
for the cocaine, the CI said, "I don't blame you. I do the same
thing, search them when they come up on me. I say, hey, let me
check you out, brother." In response, McMillian says, "Uh." Wright
testified that Walker bought $200 worth (2.4 grams) of crack
cocaine from Julio/Toot at the April 30 transaction. The
surveillance videotape taken on April 30 was also played for the
jury and introduced into evidence. The events described in Wright's
testimony are difficult to identify from viewing the video itself,
because of erratic movements of the camera, obstruction from grass
and trees and the distance from which the events were viewed. The
video generally shows people, including the CI, coming and going
from the Barnett Street house in the morning, and Wright testified
that the people would leave after finding no one there to sell
26
cocaine. On the videotape, a woman calls out for either "Spring" or
"Frank." Wright and Jackson identified McMillian and James as being
present in the video. Wright testified that the video shows the CI
returning at 5 p.m. and talking to McMillian in front of the house,
then McMillian goes into the back door of the house while the CI
waits outside. Then, Wright testified, the CI talks with Julio/Toot
and Thomas, then all three men go inside the house, where Wright
testified that McMillian performed the search. After the CI leaves
with his cocaine, Wright testified, McMillian returns to his
position in the Volkswagen van. Later, a woman who came to the
house earlier when no one was home drives up, walks over to the
van, then gets into her car and leaves. McMillian's counsel argued
that, at most, the video shows McMillian engaged in such innocent
acts as leaning on a fence, getting into the van and getting out of
the van. McMillian was charged and convicted in Count 5 in
connection with the April 30 transaction.
Wright also testified about the June 16, 1992 transaction,
described above with reference to Carter, in which McMillian and
another man in Carter's car led the confidential informants down
the block to 4501 Church Street, where the CIs purchased $300 worth
(4 grams) of crack cocaine. That transaction was monitored via body
wire, and Wright had the video camera with him that day, but no
tape recording, transcript or videotape of the June 16 transaction
was entered into evidence. Wright said McMillian explained to the
CI that the transaction was moved to the Church Street house
because the police had been watching operations at the Barnett
27
Street house. Again, the CI did not testify. McMillian, along with
Carter, was charged and convicted in Count 6 in connection with the
June 16 transaction.
Wright testified that on June 18, 1992, the CI Walker again
went to the Barnett Street house to make an undercover purchase.
Wright testified that McMillian "directed Thomas Walker to an
unidentified black male" to make the purchase, although this is not
apparent from the tape or transcript. Wright said that Walker
purchased $250 worth (2.6 grams) of crack cocaine, and the
transaction was tape-recorded and transcribed by Wright. The voices
of McMillian, Thomas and "Julio" are identified on the transcript.
In the June 18 transaction, the man identified on the transcript as
McMillian was present and talking to the CI about the June 16 sale
at the Church Street house and asking how much Walker made from
that piece of cocaine. The transcript included the following
exchange:
Walker (CI): I went around to the other place man.
McMillian: Where?
Walker: Over on, what that street down there?
McMillian: Church Street.
Walker: Yeah, where we went the last time.
McMillian: Oh, oh.
Walker: You back over here?
McMillian: Yeah man.
On the tape, the man identified on the transcript as "Julio" names
the price and appears to make the actual sale. McMillian was
charged and convicted in Count 7 in connection with the June 18
transaction.
Agent Wright explained how officers were later able to
identify McMillian as the man the CI had dealt with and the person
28
Wright had seen while performing surveillance. Around August 6,
Wright recognized McMillian in a car and asked a marked police car
to stop him and ask for identification. Wright testified that the
identification, as well as a license plate check on the car,
confirmed McMillian's identity.
Sufficiency on Conspiracy Count
We hold that the evidence was sufficient to support the jury's
conviction of Polk in Count 1 for conspiracy to possess cocaine
with the intent to distribute. Jackson testified that Polk was a
trusted seller of crack cocaine for James. Three witnesses,
Jackson, Cedric and Agent Wright, identified Polk in a photograph
holding a pistol and standing next to James while James held a pile
of money. Wright's testimony and the audiotape showed that Polk was
present at a crack cocaine transaction on April 28, 1992 and talked
about the fact that no one had bought any cocaine the night before.
We hold that the evidence was sufficient to support the jury's
conviction of Carter in Count 1 for conspiracy to possess cocaine
with the intent to distribute. Jackson and Cedric both testified
that Carter sold crack cocaine at the Barnett Street house, at the
Church Street house and elsewhere. Jackson testified that Carter
worked for James and that James bought Carter a car. Carter's
residence and his vehicle were involved in a crack cocaine
transaction on June 16, 1992. Carter's car was photographed in
front of James' residence along with Thomas' car. The jury saw a
pager service agreement bearing Carter's name and address, showing
his place of business as James' nightclub and his phone number as
29
the Barnett Street number.
We hold that the evidence was sufficient to support the jury's
conviction of Welch in Count 1 for conspiracy to possess cocaine
with the intent to distribute. Jackson testified that Welch sold
crack cocaine for Thomas, then for James. Steele testified that
Welch would travel to Louisville with his "stash" and sell crack to
her. White also testified that he bought crack from Welch in
Louisville.9 Agent Wright saw Welch at the Barnett Street house on
several occasions, and Cedric confirmed that Welch sometimes "hung
out" there. Welch clearly associated with Thomas, Chambers and the
other defendants. The jury could have reasonably inferred from the
phone records that, after his arrest in Louisville, Welch called
the Barnett Street house from jail.
We hold that the evidence was sufficient to support the jury's
conviction of McMillian in Count 1 for conspiracy to possess
cocaine with the intent to distribute. Both Jackson and Cedric
testified that McMillian sold crack at the Barnett Street house,
and Jackson testified that McMillian worked for James. Agent
Wright's testimony, the audiotapes and the videotape were evidence
that McMillian participated in at least three sales of crack at the
Barnett Street house.
9
Welch objects, for the first time on appeal, to the testimony
by Jackson, Steele and White that he had in the past sold crack
cocaine in Moss Point and Louisville and had possessed a gun at the
Barnett Street house at some unspecified date prior to June 1992.
Welch concedes that he did not object to this testimony at trial,
but argues that its admission was plain error under Rule 404(b). We
disagree. The testimony was not Rule 404(b) evidence, but was
introduced under Rule 401 as relevant evidence of Welch's
participation in the charged conspiracy. No plain error was shown.
30
Sufficiency on Substantive Possession Counts
A: Carter - Count 6
Even though we today affirm Carter's conviction for
conspiracy, we conclude that the evidence was insufficient to
support the jury's conviction of Carter for participating in or
aiding and abetting the June 16, 1992 crack cocaine transaction
charged in Count 6.
Notwithstanding the inferences we must draw in favor of a
guilty verdict, we reiterate that the burden of proof in this
criminal case was on the government. The government must prove
that the defendant was guilty beyond a reasonable doubt, not merely
that he could have been guilty. United States v. Crain, 33 F.3d
480, 486 (5th Cir. 1994), cert. denied sub nom. Watkins v. United
States, 115 S. Ct. 1142 (1995); United States v. Sacerio, 952 F.2d
860, 863 (5th Cir. 1992). The only piece of evidence that could
link Carter to the June 16 transaction is that a car registered to
Carter transported McMillian and another unidentified man to the
buy location (a house on Church Street where Carter lived along
with two other people). A reasonable jury could not infer from this
fact that Carter, on June 16, 1992, intentionally possessed cocaine
with the intent to distribute it. The government did not claim at
trial, and does not argue on appeal, that Carter was the other man
in the car or was otherwise present at the June 16 transaction. In
fact, the government admitted that the confidential informant
initially misidentified the car's other occupant as Terry Anthony
Austin, Carter's brother, who was incarcerated at the time. The
31
government thus did not try to prove or even suggest who the
"unidentified man" was.10 The confidential informant who
participated in the transaction did not testify. Further, the
government did not argue or introduce any evidence tending to prove
that Carter knew about or consented to the use of his car or
residence for a drug deal on that day. No evidence, other than the
movements of the car, was presented to show that Carter himself was
present anywhere that day, either at the Barnett Street location,
10
We note with disapproval that counsel for Derrick Carter
attempts to mislead this Court in her brief and in oral arguments
by stating that the government's evidence showed Austin to be the
driver of the car. In fact, the government's direct examination of
Wright indicated only that McMillian was in the car, and then
Wright admitted on cross-examination by McMillian's counsel that
the CI made an initial, incorrect determination that an
unidentified man in the car with McMillian was Terry Austin:
Q: And at one point in time, that unidentified black man was, in
fact, identified, wasn't he?
A: Yes, he was.
Q: And he was identified as Terry Austin -- Terry Anthony Austin;
is that correct?
A: That's correct.
Q: And he was identified by this CI, right?
A: That's correct.
Q: And what did your investigation reveal about the whereabouts
of Terry Austin at this particular time?
A: He was incarcerated at the time.
Q: Okay. So Terry Austin wasn't even there, it was impossible for
him to have been there?
A: That's correct.
Despite this testimony, which showed that it was physically
impossible for Terry Austin to have been in that car on June 16,
1992, Derrick Carter's counsel argues in her original and reply
briefs that the car was "being driven by the Defendant Terry
Anthony Austin," that "no evidence was put forth to show ... that
Appellant Carter had any guilty knowledge of the activities of
McMillian or Austin," and that "Austin is Appellant Carter's
brother; for him to have borrowed the Appellant Carter's car is
probably the rule rather than the exception."
32
the Church Street location, or at James' residence, where Carter's
car was seen and photographed later on the evening of June 16. As
we stated in United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th
Cir. 1993), cert. denied sub nom. Rivas-Cordova v. United States,
114 S. Ct. 1865 (1994), "the jury's conclusion that the government
proved [Carter]'s guilt beyond a reasonable doubt was unreasonable
as a matter of law." As in United States v. Onick, 889 F.2d 1425,
1429 (5th Cir. 1989), we suspect that the jury "must have
speculated [Carter] into a conviction," piling "inference upon
inference," which it cannot do. For these reasons, we must reverse
Carter's conviction in Count 6 for possession with the intent to
distribute.11
B: Welch - Counts 8 & 9
We hold that the evidence was sufficient to convict Welch of
possession with intent to distribute in Count 8, which involved the
11
Because it was unreasonable for the jury to have inferred
Carter's guilt in Count 6 from the evidence presented regarding the
events of June 16, 1992, it appears likely that the jury instead
improperly considered the evidence introduced under Rule 404(b).
The jury appears to have considered the evidence of Carter's "other
crime, wrong or act," at the time the Church Street house was
searched in July 1993 "in order to show conformity therewith,"
i.e., to infer that Carter had possessed crack cocaine a year
earlier on June 16, 1992. Such an inference is expressly prohibited
under the language of Rule 404(b) and the district court's
instruction to the jury. See, e.g., United States v. Willis, 6 F.3d
257, 261 (5th Cir. 1993).
Because we reverse Carter's substantive possession conviction
in Count 6 for insufficient evidence, we need not decide whether
the district court abused its discretion by admitting evidence of
the 1993 search of the Church Street house. With regard to Carter's
conspiracy conviction in Count 1, we hold that the evidence was
sufficient to prove conspiracy without regard to the Rule 404(b)
evidence, so any error in admitting that evidence would be harmless
with regard to that count.
33
first of the two June 1992 cocaine sales in Louisville, Mississippi
at the Eialand Plaza Apartments. In that first, pre-midnight sale,
charged in Count 8, the jury could have inferred that Welch aided
and abetted the transaction by "vouching" for Chris White and
telling Thomas "he's cool," allowing White to purchase the cocaine
from Thomas. However, the second, post-midnight sale, charged in
Count 9, was made to White by Chambers, and the uncontradicted
evidence showed that Welch was not present at the transaction, or
even at the apartment, and no evidence showed that Welch assisted
the Count 9 transaction in any way. Therefore, we find the evidence
insufficient to support the jury's conviction of Welch in Count 9,
and that count is therefore reversed.
C: McMillian - Counts 3, 5, 6 & 7
We also find that the evidence was insufficient to support the
jury's conviction of McMillian in Count 3 for the April 23, 1992
transaction. On that day, as shown by the tape recording, the
government-prepared transcript and Agent Wright's testimony, an
undercover officer purchased 1.2 grams of crack cocaine from Mark
Thomas. The government did not present any evidence that McMillian
participated in or was present at the camp during that particular
purchase, nor did the government even attempt to argue that
McMillian aided or abetted the April 23 transaction in any way. As
with Carter's conviction in Count 6 and Welch's conviction in Count
9, "the jury's conclusion that the government proved [McMillian]'s
guilt beyond a reasonable doubt was unreasonable as a matter of
law." Velgar-Vivero, 8 F.3d at 241. As we stated in a recent case,
34
"[a]lthough the strict nature of this [sufficiency of the
evidence] standard demonstrates our reluctance to
interfere with jury verdicts, this case is an example of
why courts of appeal must not completely abdicate
responsibility for reviewing jury verdicts."
Crain, 33 F.3d at 487 (quoting United States v. Ragan, 24 F.3d 657,
659 (5th Cir. 1994)). For these reasons, we reverse McMillian's
conviction in Count 3 for possession with the intent to distribute.
However, we find that the evidence, including Agent Wright's
testimony, the audiotapes and the videotape, was sufficient to
convict McMillian in connection with the transactions in Counts 5,
6 and 7. With regard to the April 30, 1992 transaction, McMillian
was seen and videotaped at the Barnett Street house that day, and
his statements on the audiotape indicate that he searched the CI
for microphones in connection with the drug purchase. On June 16,
1992, Agent Wright, listening on the body wire, heard McMillian
tell the undercover purchaser to follow him to the Church Street
house, where the sale was completed. On June 18, 1992, McMillian's
voice can be heard on the audiotape during the transaction,
discussing the other sale "last time" at the Church Street house
and asking how much profit the buyer had made on that purchase. We
find the evidence sufficient to support McMillian's convictions on
these counts.
Sufficiency on Welch's Firearm Count
Finally, we find that the evidence was insufficient to support
Welch's conviction in Count 10 for using or carrying a firearm
during and in relation to a drug trafficking crime (the June 1992
Eialand Plaza transactions), in violation of 18 U.S.C. § 924(c),
35
and/or aiding and abetting Chambers and Thomas in doing so. The gun
in question, a .38-caliber semi-automatic pistol, was found along
with another gun in the glove compartment of Thomas' car, which
police found parked outside Welch's uncle's house while Welch and
Thomas were inside the house sleeping. The government made no
attempt to prove that Welch was ever in actual possession of the
gun or used it. No fingerprints were found on the gun. Proof of
actual use is not necessary under Section 924(c), but if such use
is not shown, the government must prove that Welch knew about the
firearm and that Welch had access to the firearm for protection in
connection with his drug trafficking offense. United States v.
Willis, 6 F.3d 257, 264 (5th Cir. 1993). The government has not met
its burden of proof on this count. There was no evidence suggesting
that Welch had any control over the car where the gun was found. No
one testified that Welch had ever been inside Thomas' car, although
the jury could have inferred that Welch rode in the car from the
Eialand Plaza Apartments to the house where they both later were
found asleep. Even if the jury could have inferred that Welch had
any control over Thomas' car, this control alone would not have
automatically connected him with the gun in the glove compartment.
See United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993),
cert. denied, 114 S. Ct. (1994); United States v. Ford, 993 F.2d
249, 252 (D.C.Cir. 1993) ("[I]n cases in which contraband or
firearms are discovered in a place occupied by more than one
person, the Government must establish 'the likelihood that in some
discernible fashion the accused had a voice vis-a-vis' the items in
36
question."). We have found constructive possession in "joint
occupancy" cases only when there was some evidence supporting at
least a plausible inference that the defendant had knowledge of and
access to the weapon or contraband. See, e.g., United States v.
McKnight, 953 F.2d 898, 902 (5th Cir.)(weapon was found in plain
view), cert. denied, 504 U.S. 989 (1992). In the instant case, the
weapon was not in plain view and there were no other circumstantial
indicia that established that Welch even knew about the weapon.
Nor was there any testimony or evidence that the pistol was
connected in any way to the Eialand Plaza drug transactions. See
United States v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989)(noting
that under § 924, "the government is shouldered with the burden of
establishing some relationship between the firearm [] possessed and
the predicate drug trafficking offense. ... [S]omething more than
strategic proximity of drugs and firearms is necessary to honor
Congress' concerns."). The government in this case did not even
prove "strategic proximity." The Count 8 sale took place in an
apartment, and the government did not introduce any testimony
tending to show whether Thomas' car was even parked at the
apartment complex during the drug transaction, or if it was, how
far away it was parked from the apartment where the transactions
took place, or whether the pistol was even in the car at that
point. We have reversed Welch's cocaine possession conviction for
the Count 9 transaction, but we note that there is even less
evidence to connect the firearm with that sale; at that time the
car was already across town parked outside Welch's uncle's house,
37
with its owner, Thomas, asleep inside. For these reasons, we find
the evidence insufficient to support the jury's conviction of Welch
for the firearms offense in Count 10, and that count is therefore
reversed.
Use of Audiotapes and Transcripts
Four audio recordings of the undercover cocaine purchases were
played for the jury at trial, and the jury was given government-
prepared transcripts of the taped conversations during the playing
of the tapes. The jury was allowed to have the tapes, but not the
transcripts, during deliberations. The court instructed the jury:
"I'm going to allow you to use the transcript when you
listen to the tapes, solely as an aid or an assistance to
assist you in following what's on the tapes. However, the
evidence is on the tape. You understand? If what's on the
transcript is at variance from what you hear on that
tape, then it is what you hear on the tape that
controls."
Polk, Carter and McMillian claim on appeal that the recordings were
of such poor quality that the jury could not possibly understand
them, and they argue therefore that the government-prepared
transcripts took on an improper evidentiary role. The appellants
also claim that the tapes were not properly authenticated pursuant
to Federal Rule of Evidence 901(b)(1) and (b)(5), because the CIs
who were present at the transactions did not testify to identify
the appellants' voices on the recordings.
When seeking to introduce a sound recording in a criminal
prosecution, the government bears the burden of going forward with
foundation evidence demonstrating that the recording as played is
an accurate representation of the conversation or other sounds at
38
issue. United States v. Stone, 960 F.2d 426, 436 (5th Cir. 1992).
This Circuit has given the district court broad discretion to
determine whether this foundation has been met. Stone, 960 F.2d at
436; United States v. Wilson, 578 F.2d 67, 69 (5th Cir. 1978);
United States v. Mendoza, 574 F.2d 1373, 1378 (5th Cir.), cert.
denied, 439 U.S. 988 (1978). The Federal Rules of Evidence provide
that the requirement of authentification "is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims." FED. R. EVID. 901(a); United States v. Lance,
853 F.2d 1177, 1181 (5th Cir. 1988). To illustrate acceptable means
of authenticating evidence, Rule 901(b) lists testimony of a
witness with knowledge and, for identifying a voice, an "opinion
based on hearing the voice at any time under circumstances
connecting it with the alleged speaker." FED. R. EVID. 901(b)(1),
(5); Lance, 853 F.2d at 1181. In the trial below, ATF Agent Wright
testified that for each recorded transaction he equipped the
confidential informant with the electronic monitoring equipment and
that he monitored each transaction over the CI's body wire as it
was occurring. During the April 28 transaction, for example, Wright
testified that he was performing surveillance from the woods across
the street and that he personally viewed McMillian and Polk at the
recorded transaction and watched them as he simultaneously listened
to their voices over the wire. During the April 30 and June 16
transactions, Wright testified that he was again stationed in the
woods across the street and watched McMillian participate in at
least part of each drug transaction while simultaneously listening
39
to the voices over the wire. Wright testified that he prepared the
government transcripts after listening to each tape recording
numerous times. He testified that each transcript was an accurate
representation of the conversation he had heard over the wire. In
light of this testimony, we hold that the tape recordings were
sufficiently authenticated.
The appellants also claim that the taped conversations were so
unintelligible that they could not prepare their own transcripts or
even effectively challenge the accuracy of the government's
transcripts. However, after carefully listening to the four tape
recordings at issue in this case, we find no abuse of discretion in
the district court's decision to admit them into evidence. While
some portions of the recordings are inaudible or unintelligible as
the appellants claim, much of the conversations can be heard
clearly and may be followed on the government's transcripts. Cf.
Wilson, 578 F.2d at 69. We therefore conclude that the quality of
the recordings was not so poor that the appellants were precluded
from making an effective challenge to the government transcripts,
and we find no abuse of discretion in the court's use of the
transcripts. The court correctly instructed the jurors that if they
perceived any difference between the tapes and the transcripts,
what they heard on the tapes should control. The actual content of
the taped conversations was therefore a matter for the jury to
determine. Wilson, 578 F.2d at 70 (citing United States v. Onori,
535 F.2d 938, 948-49 (5th Cir. 1976)).
40
Evidence of Separate "Laurel Conspiracy"
The trial court allowed, over objection, evidence of an
attempted five-kilogram cocaine transaction by James on July 24,
1992. The jury was instructed both before and after the testimony
that the evidence related only to James and could not be used
against the other defendants. Polk and McMillian claim on appeal
that this evidence was so overwhelming that such instructions did
not cure the "spillover" prejudice to them, and that they should
have been granted a new trial. Such evidentiary rulings are
reviewed for abuse of discretion. United States v. Stouffer, 986
F.2d 916, 924 (5th Cir.), cert. denied, 114 S. Ct. 115 (1993). The
jury was properly instructed to use the evidence only against
James, and juries are presumed to follow their instructions. United
States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied sub
nom. Nunn v. United States, 114 S. Ct. 266 (1993). We find no abuse
of discretion.
Requests for Severance
Carter and Welch claim on appeal that the district court erred
in denying their motions to sever their trials from that of the
other defendants, especially James. They claim that joinder was
improper because of the prejudicial "five-kilogram" evidence
admitted against co-defendant James, and that therefore the joint
trial with James caused them great prejudice.
The initial joinder of Polk, Carter, Welch and McMillian with
James for trial was legitimate because they were charged with
having conspired with each other. United States v. Thomas, 12 F.3d
411350, 1363 (5th Cir.), cert. denied sub nom. Sanchez v. United
States, 114 S. Ct. 1861 (1994); United States v. Elam, 678 F.2d
1234, 1250 (5th Cir. 1982). The district court's decision of
whether to grant a severance is reviewable only for an abuse of
discretion. United States v. Stotts, 792 F.2d 1318, 1321 (5th Cir.
1986), cert. denied, 493 U.S. 861 (1989); see also United States v.
Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980) ("To establish an
abuse of discretion of the district court, a defendant must show
that he received an unfair trial and suffered compelling prejudice
against which the trial court was unable to afford protection.").
An appellant must show something more than the fact that a separate
trial might offer him a better chance of acquittal. United States
v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. 1981). In this case,
the government introduced sufficient evidence to demonstrate that
Carter, Welch and the other appellants were guilty of conspiracy.
Moreover, even if some risk of prejudice existed, the district
court properly instructed the jury to limit evidence to the
appropriate defendant. We find no abuse of discretion in the
district court's refusal to grant severance.
CONCLUSION
For the reasons stated above, we AFFIRM the convictions of
appellants Polk, Carter, Welch and McMillian in Count 1, of
appellant McMillian in Counts 5, 6 and 7, and of appellant Welch in
Count 8. We find that the evidence was insufficient to support the
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convictions of appellant McMillian in Count 3, of appellant Carter
in Count 6 and of appellant Welch in Counts 9 and 10, and we
therefore REVERSE those convictions.
We see no need to remand the cases of appellants McMillian and
Carter for resentencing because their counts of conviction were
grouped under the Sentencing Guidelines and their sentences were
set to run concurrently.12 However, because the firearms offense we
reverse in Count 10 was set to run consecutively, Welch's case must
be remanded to the district court for resentencing in accordance
with this opinion.
12
The reversal of the substantive cocaine possession
convictions does not affect the district court's computation of the
quantity of cocaine attributable to each defendant, because the
court determined quantity from the evidence on the conspiracy
count, which we affirm in this opinion. Noting that Jackson had
testified that James' workers at the Barnett Street house sold a
kilogram every two weeks and that the conspiracy was alleged to
have lasted about two years, the court found that each conspirator
could be held responsible for 48 kilograms of cocaine. However,
"out of a sense of justice" and "to be fair under the
circumstances," the court halved that amount and held each
appellant responsible for 24 kilograms of cocaine at sentencing.
The correctness of this calculation under the Sentencing Guidelines
was not appealed and is thus not before us.
wjl\opin\93-7605.opn
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