United States v. Wilson ( 1997 )

REVISED
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 95-30998
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DON R WILSON, a/k/a BIG DON; ALFRED L BROWN,
a/k/a GOAT; TROY BELLAMY, a/k/a BOW LEG;
SEBASTIAN RICHARDSON, a/k/a BAM BAM; REGINALD
D WILSON; a/k/a REG; DONALD R MILLER, a/k/a
BIG DADDY; PATRICK D MILLER, a/k/a PATCHY CAT;
RODERICK ALLEN, a/k/a BABY HULK; ALONZO BATES,
a/k/a LITTLE MAN; DEXTER D CHAMBERS, a/k/a
DEXTER HOLMES,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Louisiana
June 26, 1997
Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
A federal district court in Louisiana convicted defendants,
members of a Shreveport, Louisiana street gang called the “Bottoms
Boys,” of various federal offenses related to their participation
in a drug trafficking conspiracy and a conspiracy to commit violent
crimes in aid of racketeering. Defendants appeal their convictions
and sentences, raising a blizzard of legal challenges. We affirm
in part, vacate in part, remand in part for hearings, and remand in
part for a new trial.
I
The Bottoms Boys are a street gang operating in the Ledbetter
Heights neighborhood of Shreveport, formerly known as “the
Bottoms.” Until recently, members of the gang conducted a large-
scale, open-air drug market, primarily in the 1100 block of Fannin
Street. The Bottoms Boys controlled the sale of drugs within this
area; no one could sell within Bottoms Boys territory unless they
were members of the gang or received permission from one of the
leaders of the gang, the so-called “Original Gangsters” or “O.G.s.”
The Bottoms Boys had the reputation as the toughest gang in
Shreveport; anyone who crossed or “dissed” the gang often received
a violent, sometimes deadly, response. Firearms were a fashionable
Bottoms Boys accessory.
Defendant Alfred Brown served as the gang’s principal drug
supplier. Testimony established that Brown would distribute
cocaine that he obtained in Houston to other leaders of the gang,
who would then “front”))that is, distribute without payment up
front))smaller amounts to members, until rocks of crack cocaine
tumbled down to street level. Sales were highly lucrative; one
former gang member testified that in an average week he made about
$16,000 from drug sales. In addition, the gang had various
-2-
“enforcers,” also called “reapers,” who enforced the rules of the
gang and protected its territory and drug trade through acts of
violence.
Police conducted a lengthy investigation of the gang.
Undercover law enforcement officers and government informants
purchased cocaine from gang members on several occasions, many
under the watchful eye of hidden surveillance cameras. Some of
these drug buys formed the basis for individual drug distribution
counts in the indictment; others served as trial evidence in
support of the drug conspiracy. The investigation culminated in
the arrest of fourteen gang members. A federal grand jury returned
a thirty-nine count indictment, charging thirteen members with
various federal offenses, including drug conspiracy, drug
distribution and possession with intent to distribute, conspiracy
to commit violent crimes in aid of racketeering, and firearms
charges.
In addition, the indictment charged several defendants with
engaging in or threatening particular acts of violence in violation
of 18 U.S.C. § 1959(a). Don Wilson, one of the leaders of the
gang, directly threatened Officer Robin Snyder while she was
inventorying property in a vacant house in the 1100 block of Fannin
street. Wilson told her: “Shine, I am going to fucking kill you.”
Reginald Wilson fatally shot twin brothers Michael and Mitchell
Henderson as they sat in their car in the 1100 block of Fannin
Street. Patrick Miller shot and wounded Donny Williams, a member
-3-
of a rival gang, after he and his companions “dissed” the Bottoms
Boys by “throwing” rival gang signs. The government presented
other, uncharged acts of violence as proof of participation in a
broad conspiracy to commit violent acts on behalf of the gang.
Two defendants pleaded guilty before trial, and the court
declared a mistrial as to another defendant for medical reasons.
Of the remaining eleven defendants, the jury returned guilty
verdicts against all but one.1 The district court denied
defendants’ motions for judgment of acquittal and new trial. After
sentencing, all ten defendants filed timely notices of appeal.
II
DRUG CONSPIRACY
A
Each defendant argues that the evidence was insufficient to
support his conviction for participation in the drug conspiracy
under 21 U.S.C. §§ 841(a)(1) and 846. At trial, defendants moved
for acquittal, which the district court denied. We review a denial
of a motion for judgment of acquittal de novo. United States v.
Restrepo, 994 F.2d 173, 182 (5th Cir. 1993). We must draw all
The jury convicted all defendants of drug conspiracy
under 21 U.S.C. § 846, and all defendants except Donald Miller of
at least one substantive drug offense under 21 U.S.C. § 841(a)(1).
Don Wilson, Sebastian Richardson, Alfred Brown, Reginald Wilson,
and Patrick Miller were convicted of violent crimes in aid of
racketeering under 18 U.S.C. § 1959(a). Alfred Brown, Reginald
Wilson, and Patrick Miller were convicted of use of a firearm
during a crime of violence or drug trafficking crime under 18
U.S.C. § 924(c). Don Wilson was convicted of engaging in a
continuing criminal enterprise under 21 U.S.C. § 848(a).
-4-
reasonable inferences in favor of the verdict and affirm the
convictions if a reasonable jury could find that the evidence
establishes the guilt of the defendants beyond a reasonable doubt.
Id. The jury may choose among reasonable inferences from the
evidence, and the evidence need not exclude every hypothesis of
innocence. United States v. Okoronkwo, 46 F.3d 426, 430 (5th Cir.
1995), cert. denied, ___ U.S. ___, 116 S. Ct. 107, 133 L. Ed. 2d 60
(1995).
To establish a drug conspiracy under 21 U.S.C. § 846, the
government must prove: (1) the existence of an agreement between
two or more persons to violate federal narcotics laws; (2) that the
defendant knew of the agreement; and (3) that the defendant
voluntarily participated in the agreement. United States v. Gallo,
927 F.2d 815, 820 (5th Cir. 1991). No overt acts in furtherance of
the conspiracy need be alleged or proved. United States v.
Shabani, 513 U.S. 10, ___, 115 S. Ct. 382, 385, 130 L. Ed. 2d 225
(1994). The requisite elements may be proved by circumstantial
evidence, and “[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation
. . . be sufficient to constitute conclusive proof.” United States
v. Roberts, 913 F.2d 211, 218 (5th Cir. 1990) (citation omitted),
cert. denied, 500 U.S. 955, 111 S. Ct. 2264, 114 L. Ed. 2d 716
(1991).
Most of the evidence at trial consisted of testimony of former
-5-
gang members and officers in the sting operation. Several
defendants urge that the evidence is insufficient to support their
convictions because it showed only that they were members of the
Bottoms Boys and that they had, at some point in time, sold drugs
on the 1100 block of Fannin Street. Although mere presence and
association with wrongdoers is insufficient to support a conspiracy
conviction, it is a factor that the jury may consider in
conjunction with other evidence in finding a defendant guilty of
the conspiracy. United States v. Lechuga, 888 F.2d 1472, 1476
(5th Cir. 1989). Once the government has shown the existence of an
illegal conspiracy, it need produce only “slight evidence” to
connect an individual defendant to the scheme. United States v.
Duncan, 919 F.2d 981, 991 (5th Cir. 1990), cert. denied, 500 U.S.
926, 111 S. Ct. 2036, 114 L. Ed. 2d 121 (1991).
Testimony of former gang members, government surveillance
video, and home movies made by the Bottoms Boys (later admitted
into evidence at trial) showed that all defendants were members of
the gang and that the gang was an organized, drug-dealing
enterprise. All defendants sold drugs on Bottoms Boys turf; the
evidence showed that this was impossible absent membership in the
gang or without permission from one of the original gangsters, or
“O.G.s,” such as Don Wilson. A rational jury could infer voluntary
participation in the conspiracy from these facts.
Next, the defendants argue that there is a prejudicial
-6-
variance between the indictment, which charges a single conspiracy,
and the proof at trial, which they suggest tends to show the
existence of multiple conspiracies. The principal considerations
for determining whether the evidence supports a single conspiracy
or multiple conspiracies are (1) the existence of a common goal,
(2) the nature of the scheme, and (3) the overlapping of the
participants in the various dealings. United States v. Morris, 46
F.3d 410, 415 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct.
2595, 132 L. Ed. 2d 842 (1995). In examining these factors, "[w]e
must affirm the jury's finding that the government proved a single
conspiracy unless the evidence and all reasonable inferences,
examined in the light most favorable to the government, would
preclude reasonable jurors from finding a single conspiracy beyond
a reasonable doubt." Id. (citation omitted).
The goal of selling cocaine for profit satisfies the common-
goal requirement. United States v. Maceo, 947 F.2d 1191, 1196 (5th
Cir. 1991), cert. denied, 503 U.S. 949, 112 S. Ct. 1510, 117 L. Ed.
2d 647 (1992). With respect to the nature of the scheme, we look
at the degree of interdependence of the actions of members of the
conspiracy))that is, whether the activities of one aspect of the
scheme are necessary or advantageous to the success of another
aspect of the scheme. United States v. DeVarona, 872 F.2d 114, 118
(5th Cir. 1989). With respect to the required nexus among
participants, there is no requirement that every member must
-7-
participate in every transaction to find a single conspiracy.
Parties who knowingly participate with core conspirators to achieve
a common goal may be members of a single conspiracy. United States
v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987). If the
conspiracy functions through a division of labor, each participant
need not have an awareness of the existence of the other members,
or be privy to the details of each aspect of the conspiracy. Id.
Don Wilson (whose brief was adopted by all other defendants)
argues that the evidence fails to satisfy the second and third
requirements for a single conspiracy. Wilson argues that the
evidence showed that sellers on Fannin Street sold drugs in
competition with one another, not in concert; therefore, he
asserts, there was no showing of interdependence between the
various aspects of the alleged conspiracy. Moreover, Wilson argues
that, although the evidence showed that he, Brown, and Richardson
each “employed” other gang members to sell drugs, the government
did not demonstrate any overlap among workers in these smaller
conspiracies.
The government, however, cites to sufficient evidence in the
record to support a jury finding of a single, overarching
conspiracy. The fact that individual dealers sold in competition
with one another does not preclude a finding of a single
conspiracy. United States v. Ross, 58 F.3d 154, 158 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S. Ct. 404, 133 L. Ed. 2d 323
-8-
(1995). The jury could infer from the evidence that the
competition was not cutthroat rivalry, but friendly competition
among those pursuing a common goal as Bottoms Boys gang members.
Moreover, the organizational structure of the gang supports a
finding of a single conspiracy. Testimony established that the
gang’s structure included organizers, suppliers, middlemen, street
sellers, and “reapers” who protected the gang’s “turf.”
Apparently, Brown was the main drug supplier for the “O.G.s” (Don
Wilson, Reginald Wilson, Sebastian Richardson, and Donald Miller),
who then fronted drugs to other gang members, who sold directly on
the street. In fact, the government asserts that the testimony at
trial shows that every defendant received some, if not all, of his
cocaine from Brown, either directly or indirectly. A single
conspiracy may exist between two or more individuals selling in
competition with one another who share a common supplier, Ross, 58
F.3d at 158, or who knowingly participate with the same core
conspirators in pursuit of a common goal. Richerson, 833 F.2d at
1154. We have held that a “single conspiracy exists where a ‘key
man’ is involved in and directs illegal activities, while various
combinations of other participants exert individual efforts toward
a common goal.” Morris, 46 F.3d at 416.
The jury’s determination that a single drug conspiracy existed
in this case does not involve particularly complicated evidence or
facts that were likely to confuse triers of fact. Much of the
-9-
conspiracy evidence was direct testimony about drug sales and the
organization of the conspiracy. After review of the evidence in
the record, we conclude that a reasonable jury could find, beyond
a reasonable doubt, the existence of a single drug conspiracy
involving each defendant. Accordingly, we find no error in the
district court’s denial of the motion to acquit.
B
The defendants assert that the district court erred in
determining the quantity of drugs attributable to them for the
purposes of sentencing. In sentencing a defendant for
participation in a drug conspiracy, the court must make findings
with respect to (1) when the defendant joined the conspiracy, (2)
what drug quantities were within the scope of the agreement, and
(3) what quantities the defendant could reasonably foresee being
sold by the conspiracy. United States v. Carreon, 11 F.3d 1225,
1236 (5th Cir. 1994). Relevant conduct under Sentencing Guidelines
§ 1B1.3(a)(1)(B) includes all reasonably foreseeable acts of others
in furtherance of the conspiracy. United States Sentencing
Commission, Guidelines Manual, § 1B1.3(a)(1)(B), comment. (n.1)
(1995). However, the reasonable foreseeability of all drug sales
does not automatically follow from membership in the conspiracy.
United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.), cert.
denied, 513 U.S. 864, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994). We
review the district court’s determination of relevant conduct
-10-
during sentencing for clear error. United States v. Rivera, 898
F.2d 442, 445 (5th Cir. 1990).
Several defendants argue that the district court failed to
make the required specific findings with respect to time frame of
membership, overall quantity, and reasonable foreseeability of drug
sales. However, the district court determined the dates of
membership in the conspiracy for each defendant and adjusted the
quantities attributable to him accordingly. The court did not
accept speculative testimony or extrapolate to compute the quantity
of drugs sold. It used only two sources to calculate a minimum
drug quantity for relevant conduct purposes: documented evidence of
actual drug transactions totaling 25.45 grams of crack cocaine and
.78 grams of powder cocaine, and sales admitted by co-conspirator
Rashaun Kimble totaling 266 grams of crack cocaine and 112 grams of
powder cocaine. Finally, in making its reasonable foreseeability
determination, the court specifically found that each defendant was
aware of the acts of all. We find that these explicit findings
satisfy the court’s duty under Carreon.
The defendants also argue that the district court erred in
including the amounts sold by Rashaun Kimble in their quantity
determinations, because these sales had no connection to them and
were not reasonably foreseeable. However, Kimble was an admitted
member of the conspiracy. Kimble testified that he was a Bottoms
Boy, that he sold drugs in the 1100 block of Fannin, and that he
-11-
received his cocaine from Brown. The evidence at trial showed that
defendants all sold drugs in the open on the same block, and that
it was impossible to sell drugs at that location without the gang’s
permission. The nature of the open-air drug market on Fannin
Street supports the district court’s finding that the full volume
of sales, including Kimble’s, was foreseeable, if not actually
witnessed, by the defendants.
III
VIOLENT CRIMES IN AID OF RACKETEERING
Reginald Wilson, Don Wilson, and Patrick Miller challenge the
sufficiency of the evidence used to convict them of committing
certain violent crimes in aid of racketeering in violation of 18
U.S.C. § 1959(a) (“VICAR”). The three, along with Alfred Brown and
Sebastian Richardson, also challenge the sufficiency of the
evidence to support their convictions for participation in a VICAR
conspiracy. Section 1959(a) provides in pertinent part:
Whoever, . . . for the purpose of . . . maintaining or
increasing position in an enterprise engaged in
racketeering activity, murders, . . . maims, assaults
with a dangerous weapon, commits assault resulting in
serious bodily injury upon, or threatens to commit a
crime of violence in violation of the laws of any State
or the United States, or attempts or conspires so to do,
shall be punished))
(1) for murder, by death or life imprisonment,
or a fine under this title, or both; . . .
(3) for assault with a dangerous weapon or
assault resulting in serious bodily injury, by
imprisonment for not more than twenty years or
a fine under this title, or both;
(4) for threatening to commit a crime of
violence, by imprisonment for not more than
five years or a fine under this title, or
both;
-12-
(5) for attempting or conspiring to commit
murder or kidnapping, by imprisonment for not
more than ten years or a fine under this
title, or both; and
(6) for attempting or conspiring to commit a
crime involving maiming, assault with a
dangerous weapon, or assault resulting in
serious bodily injury, by imprisonment for not
more than three years or a fine under this
title, or both.
According to the definitions section of 18 U.S.C. § 1961(1), drug
trafficking constitutes “racketeering activity” for the purposes of
VICAR under 18 U.S.C. § 1959(b)(1).
A
The jury convicted Don Wilson of threatening to kill Officer
Robin Snyder (count six) and convicted Patrick Miller of shooting
Donny Williams (count fourteen). In reviewing a challenge to the
sufficiency of the evidence, the court of appeals asks “whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.
Ed. 2d 560 (1979); United States v. Krenning, 93 F.3d 1257, 1262
(5th Cir. 1996). To prove a substantive VICAR offense, the
government must show that the defendant committed the violent act
for the purpose of maintaining or increasing his position in an
association or enterprise engaged in racketeering activity. United
States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994), cert. denied,
___ U.S. ___, 115 S. Ct. 1160, 130 L. Ed. 2d 1116 (1995). Self-
-13-
promotion need not be the defendant’s sole or primary concern;
rather, Congress intended to proscribe violent acts committed “‘as
an integral aspect of membership’ in such enterprises.” United
States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992) (citation
omitted), cert. denied, 510 U.S. 856, 114 S. Ct. 163, 126 L. Ed. 2d
124 (1993).
Don Wilson and Patrick Miller do not deny that they committed
the acts alleged. However, they argue that the government
presented no evidence showing that they committed the charged
offenses in order to maintain or increase their positions within
the gang. Former gang members Howard Richardson, James Bledsoe,
and Rashaun Kimble and witness Donny Watts testified at trial that
Wilson often carried guns, and Richardson testified that Wilson
acted as an enforcer or “reaper” who “put[] in work” upholding the
Bottoms Boys’ territory and protecting the drug trade. “Reapers”
received their ominous title based on their willingness to commit
violent acts on behalf of the gang; Richardson described a “reaper”
as “the person that when your number is up is called for your soul
that comes to get you.” From this evidence, the jury could
reasonably have inferred that Wilson was acting in his capacity as
a “reaper” when he threatened Officer Snyder and that such threats
(or worse) were expected of him based on his position within the
gang.
Similarly, the government presented evidence that various
-14-
individuals, including the victim, were “throwing” rival “gang
signs” just before Patrick Miller shot Donny Williams. Gangs
generally identify themselves with hand gestures. Howard
Richardson testified that when a member of the Bottoms Boys flashed
his gang sign in an upward direction to a member of another gang,
the second individual would flash his own gang sign “up” followed
by the Bottoms Boys’ sign “down,” thus signaling that he was “down
with” the Bottoms Boys))that is, that he respected them.
Richardson testified that violation of gang sign protocol))for
example, by failing to give a “down” acknowledgment))constituted
“dissing,” or disrespect to the gang, and members were expected to
retaliate with violence in the event of such an affront. Otherwise
they were “punked out” and considered “bitched”))that is, they lost
the respect of fellow gang members.
Although the VICAR statute does not criminalize mere
retaliation for “dissing” an individual or a social organization,
the statute does criminalize violent acts committed as an integral
aspect of membership in a racketeering enterprise. Id. Drug
trafficking is a dangerous business; Howard Richardson testified
that the Bottoms Boys carried weapons for the express purpose of
protecting themselves and their drugs from other gangs. Gang
members protected the “turf” of the Bottoms Boys’ drug trafficking
operation by promoting their image as the “toughest gang in
Shreveport” and a force “not to be messed with.” Under these
-15-
facts, a reasonable jury could find that violent retaliation for
acts of disrespect promoted the goals of illegal enterprise.
Williams testified at trial that he was dissing the Bottoms
Boys that night, refusing to flash the “down” sign and calling the
gang the “Booty Boys.” A jury could reasonably infer that, because
of Miller’s membership in the gang, he was required to respond
violently to Williams’s poor signing etiquette. See United States
v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996) (finding purpose
element for VICAR offense satisfied by enterprise with policy of
treating affronts to members as affronts to all and expecting
violent retaliations by enterprise’s members), petition for cert.
filed, ___ U.S.L.W. ___ (Jan. 27, 1997) (No. 96-7692); Fiel, 35
F.3d at 1004 (finding that rational jury could conclude that
defendants believed that participation in violent war against rival
gang was expected of them by reason of their membership in gang);
United States v. Boyd, 792 F. Supp. 1083, 1102 (N.D. Ill. 1992)
(finding that purpose element is satisfied where government
presented evidence that committing violent acts was one way to move
up within the gang and that aversion to such acts would “invite
trouble” from other gang members). Therefore we hold that a
rational trier of fact could have found the essential elements of
a VICAR offense beyond a reasonable doubt, and we uphold the
convictions of Don Wilson and Patrick Miller on this count.
The jury also convicted Reginald Wilson of committing a VICAR
-16-
offense in the fatal shooting of Michael and Mitchell Henderson.
For the same reasons articulated in this section, we find that the
evidence was sufficient to convict Reginald Wilson for the VICAR
count. However, as explained in Section VII.A infra, we vacate
Wilson’s conviction on this count for an independent reason, and we
remand for a new trial.
B
We also reject all five defendants’ challenges to their VICAR
conspiracy convictions under Count One of the indictment.2 In
addition to the substantive VICAR offenses charged in the
indictment, the government presented extensive testimony concerning
violent acts committed by members of the Bottoms Boys. Howard
Richardson testified to instances where customers were shot,
stabbed, “snatched out of cars and beat,” and “throwed to the
dog”))a punishment in which gang members toss the offending
individual over a fence into a yard with guard dogs. In addition,
Richardson testified that rival gang members who came into the
Bottoms without consent were beaten or shot. If anyone attacked a
Bottoms Boy, gang members would organize a drive-by shooting in
retaliation.
The evidence demonstrates that each defendant knew that
The evidence is also sufficient to support Reginald
Wilson’s conviction for participation in the general VICAR
conspiracy under count one, even though we vacate and remand his
conviction for the substantive VICAR offense of count nine. See
Section VII.A, infra.
-17-
commission of violent acts was expected of him by virtue of his
membership in the gang and that each willingly joined the
enterprise, thereby agreeing to commit those violent acts. For
example, testimony established that Bottoms Boys were expected to
retaliate against those who “dissed” the gang; that members
regularly carried guns to protect the drug trade and that they
often used those guns when drug deals went awry; and that Reginald
Wilson and Sebastian Richardson, like Don Wilson, were “reapers”
who regularly committed violent acts on behalf of the gang. In
addition, testimony revealed that Brown, as the main supplier of
the gang, paid Don Wilson to protect his person and his drugs, thus
entering into an express agreement to commit violent crimes where
necessary. We find that the evidence is sufficient for a rational
jury to find that all the defendants conspired commit violent acts
as an integral part of membership in the gang.
IV
SUFFICIENCY OF THE INDICTMENT
Richardson argues that count one of the indictment is fatally
defective because it charges defendants with a crime that does not
exist. Don Wilson, Brown, Reginald Wilson, and Patrick Miller join
in this challenge by incorporation of Richardson’s brief. Count
one charges defendants with participation in a VICAR conspiracy
under 18 U.S.C. § 1959(a)(5) and (6) by alleging that defendants
“did knowingly combine, conspire, and confederate to commit murder,
attempted murder, and assaults with dangerous weapons . . . in
-18-
violation of the laws of the State of Louisiana.” (emphasis
added). Defendants argue that “conspiracy to commit attempted
murder” does not constitute a crime and thus the indictment is
legally insufficient to support their convictions under count one.
We agree that “conspiracy to commit attempted murder” is not
a cognizable offense under 19 U.S.C. § 1959, both as a matter of
statutory construction and common sense. United States v. Meacham,
626 F.2d 503, 507-09 & n.7 (5th Cir. 1980) (holding that
“conspiracy to attempt” is not offense under drug conspiracy
statutes and noting that “it would be the height of absurdity to
conspire to commit an attempt, an inchoate offense, and
simultaneously conspire to fail at the effort”), cert. denied, 459
U.S. 1040, 103 S. Ct. 455, 74 L. Ed. 2d 608 (1982). However, we do
not find that this drafting error warrants automatic reversal.
Unlike in Meacham, the indictment here charged defendants with
conspiracy to commit murder and assault with a deadly weapon, in
addition to attempted murder. Although one of the objects of the
conspiracy in count one fails to allege a cognizable offense, the
other two objects are clearly sufficient under section 1959(a).
Defendants do not allege that the indictment did not adequately
apprise them of the charges against them or prejudice their defense
in any way due to the inclusion of “attempted murder” as one of
three possible objects. Our only concern is whether the jury
convicted defendants of VICAR conspiracy based on a permissible
-19-
ground.
In Yates v. United States, the Supreme Court stated that, in
the criminal context, “a verdict [must be] set aside where [it] is
supportable on one ground, but not on another, and it is impossible
to tell which ground the jury selected.” 354 U.S. 298, 312, 77 S.
Ct. 1064, 1073, 1 L. Ed. 2d 1356 (1957), overruled on other
grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L.
Ed. 2d 1 (1978). The Court recently limited the Yates rule,
distinguishing between legally and factually insufficient grounds
for conviction. A general verdict may stand where one of several
objects of the conspiracy lacked adequate evidentiary support if
the evidence was sufficient to support the other objects. Griffin
v. United States, 502 U.S. 46, 60, 112 S. Ct. 466, 474, 116 L. Ed.
2d 371 (1991). However, where the verdict may have rested on a
ground that, although supported by the evidence, was legally
inadequate, the Yates rule still applies and the general verdict
must be reversed. Id. at 60, 112 S. Ct. at 474.
We find that the indictment for conspiracy to attempt in the
instant case was both legally defective and factually unsupported
by the evidence. Because the government offered no proof at trial
of a conspiracy to attempt, we find that there is no possibility
that the jury convicted the defendants on the improper charge and
that the plaintiffs were therefore not prejudiced by the legal
error. To the extent that the jury found the defendants guilty of
-20-
the conspiracy count, they must have based their conviction on the
trial evidence of conspiracy to commit murder and assault with a
deadly weapon.
We hold that Griffin, not Yates, applies where one of several
charged objects of a conspiracy is factually insufficient, even if
that object is also legally insufficient. Where, as in this case,
no evidence was ever presented to support the legally flawed
charge, there is little danger that the jury convicted on that
impermissible ground. See Griffin, 502 U.S. at 58, 112 S. Ct. at
474 (noting that jurors are well equipped to analyze evidence and
choose between factually sufficient and insufficient grounds).
Thus, we reject the defendants’ assertion that count one of the
indictment is fatally defective.
V
BRADY CHALLENGES
Next, defendants raise two challenges concerning the
government's execution of its duty to disclose exculpatory evidence
under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97,
10 L. Ed. 2d 215 (1963).
A
Reginald Wilson contends that the government’s failure to
produce handwritten notes made by investigators during witness
interviews violated his rights under the Jencks Act, 18 U.S.C. §
3500, and the Supreme Court’s holding in Brady. Wilson requested
production of the notes before trial, and all other defendants
-21-
adopt this argument by incorporation. The government affirmatively
stated that the notes existed, and the court ordered that the
government produce them for in camera review.3 Later, during
trial, defense counsel again requested that the court review the
notes in camera to determine their Brady significance, and the
court replied that it would. However, the record does not reflect
whether, or to what extent, the district court actually reviewed
the notes in question or whether they contain Brady material. The
government did not brief this issue, nor did it adequately respond
to direct questioning from this panel during oral argument.
Failure to disclose exculpatory evidence by the government is
reversible only if the evidence is material in the sense that its
suppression undermines confidence in the outcome of the trial.
United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381,
87 L. Ed. 2d 481 (1985). The Supreme court has held that favorable
evidence is material, even when not requested by the defendant, “if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682, 105 S. Ct. at 3383
(opinion of Blackmun, J.); id. at 685, 105 S. Ct. at 3385 (White,
The district court did, in fact, review one set of notes
taken during an interview with Rashaun Kimble, determined that they
contained no Brady material, and filed them in the record under
seal. However, the government admitted that additional notes taken
during other interviews existed, and the court ordered that these
additional notes be produced for in camera review.
-22-
J., concurring in part and concurring in judgment). The
suppression of such material evidence only amounts
to a Brady violation when, in the absence of such evidence, the
verdict is unworthy of the court’s confidence. Kyles v. Whitley,
514 U.S. 419, ___, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995);
Bagley, 473 U.S. at 678, 105 S. Ct. at 3381.
Because defendants do not have the notes in question, they are
unable to claim a reasonable probability that information in the
notes would undermine confidence in their verdicts, or that the
notes contain any Brady material at all. Although we will not
ordinarily remand for in camera review based on purely speculative
allegations of the existence of Brady material, see United States
v. Dinitz, 538 F.2d 1214, 1224 (5th Cir. 1976), cert. denied, 429
U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 556 (1977), the district
court actually granted Wilson’s request for in camera review and
ordered production of the notes; we simply do not know the district
court’s conclusions or whether the government even complied with
the court’s request for the notes.
We therefore remand this matter so that the district court may
supplement the record with its findings and the notes, under seal
if necessary, if it has already reviewed their contents. If the
court has not yet reviewed the notes, then it should do so within
the next thirty days, in camera, nunc pro tunc, to determine
whether the notes contain any Brady material. United States v.
-23-
Thomas, 12 F.3d 1350, 1365 (5th Cir.), cert. denied, 511 U.S. 1095,
114 S. Ct. 1861, 128 L. Ed. 2d 483 (1994), and cert. denied, 511
U.S. 1114, 114 S. Ct. 2119, 128 L. Ed. 2d 676 (1994). If the
district court concludes that the notes contain no Brady material
or that their suppression does not undermine confidence in the
verdicts, it should supplement the record with the notes and make
sufficiently detailed findings to enable us to review its decision.
Id.; United States v. Welch, 810 F.2d 485, 491 (5th Cir.), cert.
denied, 484 U.S. 955, 108 S. Ct. 350, 98 L. Ed. 2d 376 (1987). If
defendants seek to challenge the district court’s determination,
they need not file a new appeal; they may instead file certified
copies of the district court’s findings and, if necessary,
supplementary briefs or other materials for review by this panel.
Thomas, 12 F.3d at 1365; Welch, 810 F.2d at 491. However, if the
court finds that the notes contain Brady material that undermines
confidence in any defendant’s verdict, the court should vacate only
the convictions that the notes call into doubt and grant a new
trial for each. Thomas, 12 F.3d at 1365; Welch, 810 F.2d at 491.
B
Sebastian Richardson argues that the government violated its
Brady duty by failing to disclose that Richardson’s brother,
prosecution witness Howard Richardson, was taking the antipsychotic
drugs Haldol, Lithium, and Elavil at the time of his testimony.
Richardson’s challenge, like Wilson’s, has been adopted by all
-24-
other defendants. Richardson asserts that failure to disclose this
evidence severely hampered the defendants’ ability to attack
Howard’s competence to testify.
Impeachment evidence, like exculpatory evidence, is subject to
disclosure under Brady. Bagley, 473 U.S. at 676, 105 S. Ct. at
3380. However, to prevail under Brady, Richardson must first show
that the prosecution violated a duty of disclosure. East v. Scott,
55 F.3d 996, 1002 (5th Cir. 1995). The government asserts that it
was unaware that Howard Richardson had been prescribed anti-
psychotic medication until after trial, and Sebastian Richardson
does not suggest otherwise. Although Richardson suggests that the
government should be deemed to have had constructive knowledge
based on a broad duty to investigate, a prosecutor has no duty
under Brady to investigate the mental state of its witnesses in
order to uncover impeachment evidence for the defense. East, 55
F.3d at 1003-04.
VI
ADMISSION OF EVIDENCE AT TRIAL
Defendants argue that the district court erred in admitting
into evidence a videotape made by gang members, as well as in
admitting statements made by Sebastian Richardson to an undercover
police officer. We review a district court’s evidentiary rulings
for abuse of discretion. United States v. Vasquez, 953 F.2d 176,
182 (5th Cir.), cert. denied, 504 U.S. 946, 112 S. Ct. 2288, 119 L.
Ed. 2d 212 (1992).
-25-
A
During the investigation, the government confiscated a
videotape made by one of the gang members showing other gang
members, including many of the defendants, drinking, smoking
marijuana, throwing gang signs, going on a “gangsta ride,” firing
weapons, threatening the police, and discussing drug transactions.
The prosecution showed the so-called “Ford Park video” to the jury
over the objections of Bellamy, Brown, and Reginald Wilson. On
appeal, the defendants argue that the district court erred in
admitting the tape under Fed. R. Evid. 403 because its extreme
prejudice outweighed its probative value. In addition, they argue
that statements made on the tape by gang members constituted
inadmissible hearsay under Fed. R. Evid. 801.
The video, made by gang members for gang members, was highly
probative of association for purposes of both the drug and VICAR
conspiracies, and it corroborated the testimony of many of the
government’s witnesses. We cannot say that the district court
abused its discretion in holding that the tape’s prejudicial effect
did not outweigh its probative value as to any defendant.
Moreover, statements in the video made by gang members concerning
drug transactions and guns were made in furtherance of the
conspiracy and thus fall under the hearsay exception in Rule
801(d)(2)(E).
B
During the federal investigation, Special Agent Calvin Shivers
-26-
went undercover, telling Sebastian Richardson that he was a movie
producer who needed ideas for a script about gangs. In response,
Richardson thoroughly described the Bottoms Boys organization,
which Shivers recorded on tape. Richardson even drew a diagram of
how the drug distribution network was organized. In the process,
Richardson named Alfred Brown as the “man with the sac [sic]” at
the top of the organizational chart. The government enlarged this
exhibit to poster size for introduction at trial and, over the
objection of defense counsel, closed its case with Agent Shivers’s
testimony detailing Richardson’s description of how the gang
operates. The court sustained defendants’ objection that
Richardson's statements did not fall within the co-conspirator
exception of Fed. R. Evid. 801(d)(2)(E) because they were not made
in furtherance of the conspiracy. The court therefore admitted the
statements for use against Richardson only as admissions of a
party-opponent under Rule 801(d)(2)(A) and gave a limiting
instruction to that effect. However, the government repeatedly
referred to the chart in closing as evidence against all defendants
and against Brown specifically, referring to him as the “man with
the sack.”
Defendants argue that the introduction of this testimony and
exhibit violated their rights under the Confrontation Clause of the
Sixth Amendment. Richardson’s statements to Agent Shivers were not
made in furtherance of the conspiracy and were therefore
inadmissible against any defendant other than Richardson. A
-27-
district court violates a defendant’s Sixth Amendment right of
confrontation when, in a joint trial, it admits a nontestifying
defendant’s extrajudicial statement implicating another defendant
in the crime. Bruton v. United States, 391 U.S. 123, 126, 88 S.
Ct. 1620, 1622, 20 L. Ed. 2d 476 (1968). However, Bruton does not
come into play “unless a co-defendant’s statement directly alludes
to the complaining defendant,” even if it is apparent that “the
defendant was implicated by some indirect reference.” United
States v. Cartwright, 6 F.3d 294, 300 (5th Cir. 1993), cert.
denied, 513 U.S. 1060, 115 S. Ct. 671, 130 L. Ed. 2d 604 (1994).
Richardson mentioned only Alfred Brown by name, and did not refer
to any other defendant specifically, thus the Bruton/Confrontation
Clause arguments of all other defendants fail.
However, as to Brown, Bruton is plainly implicated. Brown
could not cross-examine Richardson to determine the veracity of the
statements made or to reveal whether Richardson was merely
“puffing” to impress Agent Shivers. A limiting instruction by the
court in such a case is insufficient to remedy the constitutional
violation. Cruz v. New York, 481 U.S. 186, 193-94, 107 S. Ct.
1714, 1719, 95 L. Ed. 2d 162 (1987) (“[W]here a nontestifying
codefendant’s confession incriminating the defendant is not
directly admissible against the defendant, the Confrontation Clause
bars its admission at their joint trial, even if the jury is
instructed not to consider it against the defendant, and even if
-28-
the defendant’s own confession is admitted against him.”)
(citations omitted); United States v. Jobe, 101 F.3d 1046, 1067
(5th Cir. 1996) (holding that limiting instruction cannot rectify
actual Bruton error, but finding no such error).
We therefore find that admission of this uncorroborated
evidence, even with a limiting instruction, was an abuse of
discretion. Furthermore, the district court abused its discretion
in overruling defendants’ objection to the government’s misuse of
the sting evidence during its closing. The prosecutor’s arguments
at closing were patently impermissible given the limited purposes
for which the court admitted the evidence. See United States v.
Flores-Chapa, 48 F.3d 156, 159-61 (5th Cir. 1995) (overturning
conviction where prosecutor had repeated hearsay testimony at
closing argument, despite two previously sustained objections to
testimony at trial). The prosecutor’s use of such evidence against
Brown violated his constitutional rights under the Confrontation
Clause.
Upon a showing of the denial of a constitutional right, we
must reverse a conviction unless the error is harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24-25, 87 S.
Ct. 824, 827-28, 17 L. Ed. 2d 705 (1967). A Bruton error is
harmless where the weight of other evidence clearly implicates the
defendant. Jobe, 101 F.3d at 1067; United States v. Kelly, 973
F.2d 1145, 1150 (5th Cir. 1992). The record is filled with in-
-29-
court testimony of Brown’s involvement in the conspiracy as an
"O.G." and as its major supplier. Both Howard Richardson and John
Palmer testified that Brown made trips to Houston to buy cocaine
that he would then distribute among gang members. Other witnesses
link Brown as a direct or indirect supplier to all of the other
defendants. In light of the abundant independent evidence of
guilt, Richardson’s chart and description were merely cumulative.
Therefore, we find that the Bruton error was harmless beyond a
reasonable doubt.
VII
CHALLENGES BASED ON THE SHOOTINGS OF THE HENDERSON TWINS
A
Reginald Wilson contends that the district court erred in
denying his motion to sever his trial from that of his co-
conspirators, because his co-defendants were the only witnesses who
could verify his VICAR defense, that he killed the Henderson twins
in self-defense. Wilson confessed to gunning down the twins as
they sat in their car but claims that he fired only after seeing
one of the twins reach for a weapon. Police later found a
semiautomatic pistol in the twins’ car. Although counsel laid a
foundation for the self-defense theory in opening argument, Wilson
did not call any witnesses to support his theory. The jury
rejected Wilson's claim of self-defense and convicted him of
committing a violent crime in aid of racketeering under 18 U.S.C.
§ 1959 and using a firearm during a crime of violence under 18
-30-
U.S.C. § 924(c).
At the conclusion of the trial, the government stipulated that
co-defendants Sebastian Richardson, Alonzo Bates, and Alfred Brown
would have corroborated Wilson’s self-defense testimony. The
government further stipulated that, if those defendants had
actually been called to testify as witnesses at the joint trial,
they would have asserted their constitutional right against self-
incrimination under the Fifth Amendment. Wilson contends that the
court’s failure to sever his trial deprived him of the
corroborating testimony of co-defendants.
We review for abuse of discretion the district court’s
decision to try defendants jointly, United States v. Neal, 27 F.3d
1035, 1044-45 (5th Cir. 1994), cert. denied, 513 U.S. 1008, 115 S.
Ct. 530, 130 L. Ed. 2d 433 (1994), and to deny a motion for new
trial. Jobe, 101 F.3d at 1057. The Supreme Court has held that “a
defendant might suffer prejudice if essential exculpatory evidence
that would be available to a defendant tried alone were unavailable
in a joint trial.” Zafiro v. United States, 506 U.S. 534, 539, 113
S. Ct. 933, 938, 122 L. Ed. 2d 317 (1993). To make such a showing,
Wilson must demonstrate a bona fide need for the co-defendants’
testimony, the substance of their testimony, the exculpatory nature
and effect of such testimony, and that the co-defendant would in
fact testify. Neal, 27 F.3d at 1047. We think that Wilson, with
the help of the government’s stipulations, has done this. The co-
-31-
defendants were all eyewitnesses to the shooting, and the
government stipulated at trial that those witnesses would verify
Wilson’s account, which would be exculpatory evidence.
The government contends that there was no bona fide need for
the testimony of co-defendants. There were six additional
eyewitnesses to the shooting who were not on trial that Wilson
could have called to testify. However, Wilson claims that only his
co-defendants were in a position to see the twins reach for a
weapon. Wilson claims that his co-defendants would testify to this
very fact; each gave a statement to the police shortly after the
shooting that corroborates Wilson’s account. The government has
stipulated that the co-defendants’ testimony would be exculpatory.
Under these circumstances, we vacate Wilson’s conviction on count
nine and remand for new trial.4
The jury also convicted Wilson under 18 U.S.C. § 924(c), for
using a firearm during and in relation to this federal VICAR
offense. However, because the firearm conviction depends on the
commission of another crime, the government cannot convict Wilson
under section 924(c) unless he has been convicted of the underlying
VICAR offense. Because we have remanded Wilson’s conviction for
Donald Miller, Dexter Chambers, and Roderick Allen also alleged that
the district court abused its discretion by failing to try them separately from
their co-conspirators. We find their claims, individually and to the extent
incorporated by other defendants, to be without merit. See United States v.
PeÁa-Rodriguez, 110 F.3d 1120, 1129 (5th Cir. 1997) (finding no abuse of
discretion in refusing to sever where culpability of each defendant was clearly
and distinctly proven and thus there was no danger that criminal acts of some
would be carried over to others).
-32-
the underlying federal crime, we vacate his derivative conviction
under section 924(c) in count ten and remand for a new trial.
B
Richardson and Brown argue that the district court erred in
calculating their base offense levels for the VICAR conspiracy
conviction using the offense level for second-degree murder under
U.S.S.G. § 2A1.2 rather than the alternative minimum base offense
level provided in section 2E1.3.5 The district court applied the
higher offense level based on statements made by Richardson and
Brown to police following the shooting of the Henderson twins by
Reginald Wilson. Specifically, Richardson and Brown told police
that one of the twins reached for what they thought was a gun
immediately before Wilson shot them. The Caddo Parish District
Attorney decided not to prosecute Wilson, partly on the basis of
Richardson’s and Brown’s statements.
Richardson’s and Brown’s presentence reports (“PSRs”), which
were adopted by the district court, found that their statements
were inconsistent with the ultimate jury verdict, which rejected
Wilson’s claim of self-defense. On this ground alone, the PSRs
concluded that Richardson and Brown had lied in furtherance of the
VICAR conspiracy and that their statements to police were relevant
conduct linking them to the murder of the Hendersons.
U.S.S.G. § 2E1.3 governing VICAR offenses instructs the court to
impose a base offense level of twelve or the base offense level applicable to the
underlying offense, whichever is greater.
-33-
Where the defendant objected to the determination of relevant
conduct at sentencing, we review the district court’s findings of
fact for clear error. United States v. Sneed, 63 F.3d 381, 389
(5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 712, 133 L.
Ed. 2d 667 (1996). Richardson objected to the PSR’s findings at
sentencing; Brown, however, did not. At sentencing, the district
court specifically ruled that, although it would consider motions
by one defendant to be adopted by all, defendants could not rely on
their co-defendants’ objections to the PSRs. Therefore, we will
review the district court’s findings of fact with respect to Brown
for plain error only. United States v. Vital, 68 F.3d 114, 118-19
(5th Cir. 1995). Under Fed. R. Crim. P. 52(b), an error is plain
only when (1) there is an error, (2) the error is clear or obvious,
and (3) the error affects the substantial rights of the defendant.
United States v. Olano, 507 U.S. 725, 731-37, 113 S. Ct. 1770,
1776-79, 123 L. Ed. 2d 508 (1993); United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir.) (en banc), cert. denied, ___ U.S. ___,
115 S. Ct. 1266, 131 L. Ed. 2d 145 (1995). If these factors are
established, we have the discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Vital, 68 F.3d at 119.
Because we vacate the jury’s verdict with respect to Wilson’s
VICAR conviction for the shootings of the Henderson twins, the sole
basis for the district court’s determination that Richardson and
-34-
Brown lied to police, evaporates. The district court plainly erred
in resting its factual findings with respect to sentencing on a
verdict that we have subsequently found to be infirm, and we find
that Richardson’s and Brown’s substantial rights were prejudiced by
this error.6 We therefore vacate both Richardson’s and Brown’s
sentences on count one and remand to the district court. The court
may either postpone sentencing subject to Reginald Wilson’s new
trial, or make additional findings of fact, unrelated to the
shooting of the twins, regarding the VICAR conspiracy conviction of
count one.
C
Reginald Wilson contends that one of the jurors was biased
against him because the juror was a friend of the Henderson twins,
who Wilson admits to having killed. After trial, counsel for
Wilson acquired affidavits from two people who claimed that juror
Ricky Lewis was a friend of Michael and Mitchell Henderson. During
voir dire, the court read the potential jurors a list of names and
asked if the names were familiar; the names of the twins were not
on the list, and Lewis truthfully replied that none of the names
was familiar to him. Wilson claims that the court would have
Although “[q]uestions of fact capable of resolution by the district
court upon proper objection at sentencing can never constitute plain error,”
United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924,
111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991), the district court’s fact
determinations depended on an erroneous legal conclusion, i.e., that the jury
verdict against Reginald Wilson was constitutionally sound. Therefore, we
decline to apply the Lopez rule in this case.
-35-
removed Lewis for cause had it learned that Lewis knew the twins,
or else Wilson would have exercised one of his peremptory strikes
against him. Wilson also claims that the court erred in failing to
order a hearing at which Wilson could have shown actual bias. See
Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945, 71 L.
Ed. 2d 78 (1982) (“This Court has long held that the remedy for
allegations of juror partiality is a hearing in which the defendant
has the opportunity to prove actual bias.”); United States v.
Scott, 854 F.2d 697, 698 (5th Cir. 1988) (same). Wilson suggests
that the district court’s refusal to conduct a hearing denied him
his constitutional right to a fair trial.
Motions for new trial and decisions regarding jury bias are
traditionally within the discretion of the trial court. McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct.
845, 850, 78 L. Ed. 2d 663 (1984) (plurality opinion). Therefore
we review the district court’s denial of the motion for new trial
for abuse of discretion. United States v. Buckhalter, 986 F.2d
875, 879 (5th Cir.), cert. denied, 510 U.S. 873, 114 S. Ct. 203,
126 L. Ed. 2d 160 (1993).
Generally, to obtain a new trial for jury bias, a party must
demonstrate (1) that a juror failed to answer honestly a material
question during voir dire, and (2) that a correct response would
have provided the basis for a successful challenge for cause.
McDonough, 464 U.S. at 556, 104 S. Ct. at 850; Scott, 854 F.2d at
-36-
698 (applying McDonough in the criminal context). We have applied
the plurality opinion in McDonough as binding precedent in juror
bias cases in this circuit. Montoya v. Scott, 65 F.3d 405, 418
n.24 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1417,
134 L. Ed. 2d 542; United States v. Ortiz, 942 F.2d 903, 909 (5th
Cir. 1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2966, 119 L. Ed.
2d 587. Unlike in McDonough, there is no evidence that Lewis lied
or actively concealed information during voir dire; Wilson simply
failed to request that the court pose the relevant questions to the
venire. Therefore the traditional McDonough framework is
inapplicable to this case. See United States v. Collins, 972 F.2d
1385, 1403 (5th Cir. 1992) (refusing to apply McDonough test where
there was no allegation that juror concealed a material fact),
cert. denied, 507 U.S. 1017, 113 S. Ct. 1812, 123 L. Ed. 2d 444
(1993); cf. McDonough, 464 U.S. at 558-59, 104 S. Ct. at 851
(Brennan, J. concurring) (noting that question of juror bias is
quite independent of determination of whether potential juror lied
during voir dire).
Wilson did not request that the district court ask whether any
of the potential jurors knew any of the victims, nor did he
otherwise object to the adequacy of voir dire. “A disqualification
which by reasonable diligence could have been discovered before
verdict, may not afterwards be made the subject of an attack upon
a verdict.” Spivey v. United States, 109 F.2d 181, 186 (5th Cir.),
-37-
cert. denied, 310 U.S. 631, 60 S. Ct. 1079, 84 L. Ed. 1401 (1940);
see also Ford v. United States, 201 F.2d 300, 301 (5th Cir. 1953)
(“It is the right and duty of a defendant to discover on voir dire
examination . . . whether a [venireperson] is subject to
disqualification for cause” and objection is “ordinarily waived by
failure to assert it until after verdict, even though the facts
which constitute the disqualification were not previously known to
the defendants”); Robinson v. Monsanto, 758 F.2d 331, 335 (8th Cir.
1985) (finding that right to challenge juror is waived if basis for
objection might have been discovered during voir dire had party
requested appropriate line of questioning). Wilson bears the
burden of proving that the belated discovery of Lewis’s friendship
with the victims was not due to lack of diligence on his part.
United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979), cert.
denied, 444 U.S. 1043, 100 S. Ct. 729, 62 L. Ed. 2d 728 (1980).
Wilson has not satisfied his burden. He simply asserts that Lewis
failed to honestly respond to questioning at voir dire without
specifying which question or questions he failed to properly
answer. Wilson does not address his own failure to request that
the court include Michael and Mitchell Henderson on the list of
names read to the jury.
Since Wilson’s failure to uncover the new evidence of
potential bias stems from his own neglect, we will reverse the
district court’s denial of new trial only if Wilson can show that
-38-
Lewis was actually biased against him. Ford, 201 U.S. at 301
(stating that failure to challenge juror until after verdict waives
the objection unless defendant shows actual prejudice or
fundamental incompetence); cf. United States v. Gray, 105 F.3d 956,
962 (5th Cir. 1997), cert. denied, ___ U.S. ___, 117 S. Ct. 1326,
___ L. Ed. 2d ___ (1997) (applying plain error analysis where
defendants failed to object to manner in which court conducted voir
dire); United States v. Brown, 26 F.3d 1124, 1126-27 (D.C. Cir.
1994) (applying plain error analysis to claim of juror bias not
raised at trial); United States v. Uribe, 890 F.2d 554, 560 n.4
(1st Cir. 1989) (same). We presume that the jury was impartial,
and Wilson has the burden of proving otherwise by a preponderance
of the evidence. Collins, 972 F.2d at 1403; McDonough, 464 U.S. at
558-59, 104 S. Ct. at 851 (Brennan, J. concurring).
Wilson seems to argue that we may imply bias as a matter of
law from Lewis’s relationship with the victims. See Phillips, 455
U.S. at 221-24, 102 S. Ct. at 948-49 (O’Connor, J. concurring)
(offering examples of situations where bias might be implied);
United States v. Wood, 299 U.S. 123, 133, 57 S. Ct. 177, 179, 81 L.
Ed. 78 (1936) (noting that bias may be either actual or implied).
However, friendship with the victim of a defendant’s alleged crime
does not, standing alone, justify a finding of bias. Cf. Montoya,
65 F.3d at 420 (“Although such knowledge [of the victim] may be the
source of an existing bias, ‘the mere fact that a juror knows, or
-39-
is a neighbor, or an intimate acquaintance of, and on friendly
relations with, one of the parties to a suit, is not sufficient
basis for disqualification.’”) (citations omitted); Howard v.
Davis, 815 F.2d 1429, 1431 (11th Cir.) (holding that district court
did not abuse its discretion by refusing to excuse juror who had
been “close friend” of victim), cert. denied, 484 U.S. 864, 108 S.
Ct. 184, 98 L. Ed. 2d 136 (1987); United States v. Freeman, 514
F.2d 171, 173-74 (8th Cir. 1975) (finding no abuse of discretion in
failing to excuse juror who knew victim’s family). Wilson has not
demonstrated, on the basis of the affidavits alone, that Lewis was
actually biased against Wilson.
We furthermore reject Wilson’s contention that the district
court erred in denying his motion for new trial without conducting
an evidentiary hearing at which he could prove such bias. In his
motion for new trial, Wilson specifically advised the district
court that an evidentiary hearing was unnecessary. Wilson may not
claim error in the denial of a remedy that he explicitly
disclaimed. On the unusual facts of this case, we find no abuse of
discretion in the district court’s denial of Wilson’s motion for
new trial or for an evidentiary hearing.
VIII
DON WILSON
A
Don Wilson contends that counts two and three of the
indictment charged him twice for the same offense under the Double
-40-
Jeopardy Clause of the Fifth Amendment. Count two of the
indictment charged him with participation in a drug conspiracy
under 21 U.S.C. § 846, and count three charged him with engaging in
a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848.
The jury convicted Wilson on both counts. The Supreme Court
recently ruled that conspiracy under section 846 is a lesser
included offense of CCE under section 848, and that conviction
under both statutes constitutes unconstitutional double jeopardy.
Rutledge v. United States, ___ U.S. ___, 116 S. Ct. 1241, 1247, 134
L. Ed. 2d 419 (1996). The government concedes that Wilson’s
section 846 conviction should be vacated on double jeopardy
grounds. We therefore vacate Wilson’s conviction for drug
conspiracy in count two of the indictment.
B
Next, Don Wilson challenges his CCE conviction under 21 U.S.C.
§ 848. To show a CCE violation, the government must prove that
Wilson organized, supervised or managed five or more persons in a
continuing series of drug violations (at least three) from which he
obtained substantial income. Garrett v. United States, 471 U.S.
773, 786, 105 S. Ct. 2407, 2415, 85 L. Ed. 2d 764 (1985).7 The
five people involved in the CCE need not have acted in concert or
Wilson argues that the jury must unanimously agree on which three
substantive offenses constitute the continuing series of drug violations and the
failure to so instruct the jury constitutes reversible error. We have never held
that such an instruction is required and do not address the question here since
Wilson failed to request a specific instruction or object to the charge given.
-41-
at the same time. United States v. Phillips, 664 F.2d 971, 1034
(5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S. Ct.
2965, 73 L. Ed. 2d 1354 (1982). The defendant need not have been
the sole or dominant organizer or manager of the enterprise.
United States v. Tolliver, 61 F.3d 1189, 1215-16 (5th Cir, 1995),
vacated on other grounds, Sterling v. U.S., ___ U.S. ___, 116 S.
Ct. 900, 133 L. Ed. 2d 834 (1996). Nor need he have directly or
personally organized, supervised, or managed five people, United
States v. Hinojosa, 958 F.2d 624, 630 (5th Cir. 1992), or even have
had personal contact which each underling. Tolliver, 61 F.3d at
1216. “Thus, the requisite associations and relationships may be
found even in loosely structured enterprises.” Id.
1
Wilson argues that the evidence was insufficient to prove that
he had a managerial or supervisory role in the drug trafficking
organization. In particular, he argues that although the evidence
establishes that he was a leader in the gang, it does not establish
that he directed the drug dealing activities of at least five
different people or that he did anything other than front drugs to
gang members. Wilson cites United States v. Witek, 61 F.3d 819,
822, 824 (11th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct.
738, 133 L. Ed. 2d 688 (1996), for the proposition that a mere
buyer-seller relationship is insufficient to support a CCE
conviction.
-42-
The government, however, cites to evidence in the record that
shows that Wilson occupied more than a mere buyer-seller
relationship with other members of the Bottoms Boys. Testimony at
trial indicates that Wilson was one of six “O.G.s,” and that, as a
leader of the gang, he controlled both the membership of the
organization and the identities of the sellers on the gang’s “turf”
who numbered far more than five. We agree that from this evidence,
a rational jury could reasonably infer that Wilson was an organizer
and manager of the drug-selling operation and all of its members.
2
Second, Wilson argues that the government failed to show that
he derived substantial income from the enterprise. In particular,
he argues that the government must present evidence of specific
amounts earned from the conspiracy; it is not enough for the
government to offer generalized testimony that Wilson had “a lot”
of cars and that he was seen with “a lot” of money. We disagree.
The government need not specifically trace the source of income to
the drug trade or show specific amounts. In fact, the jury may
infer substantial income from outward evidence of wealth in the
absence of other, legitimate sources of income. United States v.
Chagra, 669 F.2d 241, 257 (5th Cir.), cert. denied, 459 U.S. 846,
103 S. Ct. 102, 74 L. Ed. 2d 92 (1982), overruled on other grounds,
Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed.
2d 764 (1985).
-43-
The government presented evidence that Wilson owned
approximately eleven cars, including three or four Cadillacs, and
had a ready supply of drugs. However, Wilson had no legitimate
employment or other source of income. Furthermore, there was
testimony that Wilson earned thousands of dollars selling drugs
that he stashed in vacant houses. Therefore, viewing the evidence
in the light most favorable to the verdict, we find that the
evidence was sufficient to support a CCE conviction.
IX
ALFRED BROWN
A
Count twenty-three of the indictment charged Alfred Brown with
possessing cocaine base with intent to distribute, in violation of
21 U.S.C. § 841(a)(1), “[o]n or about February 9, 1992.” Count
twenty-four charged him with using and carrying a firearm during
and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1), also “[o]n or about February 9, 1992.” The
proof at trial, however, demonstrated that the events supporting
the indictment occurred on July 9, 1992, the date on which Brown
was arrested for the substantive offense of possession of cocaine
with intent to distribute. Moreover, the evidence demonstrated
that the substance in Brown’s possession on that date was cocaine
hydrochloride, or powder cocaine, not cocaine base as alleged in
the indictment. Brown asserts that these variances are fatal to
his convictions on these counts.
-44-
The district court correctly instructed the jury that, by
alleging that the offense occurred “on or about” February 9, 1992,
the government need only show that the crime was committed
reasonably near that date. Phillips, 664 F.2d at 1036; United
States v. Grapp, 653 F.2d 189, 195 (5th Cir. Unit A 1981). A five-
month variance between the date alleged and the date proved is not
unreasonable as a matter of law as long as the date proven falls
within the statute of limitations and before the return of the
indictment. Phillips, 664 F.2d at 1036. See also United States v.
Harrell, 737 F.2d 971, 981 (11th Cir. 1984) (upholding conviction
where indictment alleged that offense occurred in February 1980 but
proof showed that offense occurred during the summer of 1980),
cert. denied, 469 U.S. 1164, 105 S. Ct. 923, 83 L. Ed. 2d 935
(1985).
Moreover, a variance between allegations and proof is fatal
“only when it affects the substantial rights of the defendant by
failing to sufficiently notify him so that he can prepare his
defense and will not be surprised at trial.” Phillips, 664 F.2d
at 1036. Brown cannot demonstrate that he was surprised or
prejudiced in any way by the February 9, 1992, date in the
indictment. Brown knew that he was arrested on July 9 for
possession of cocaine with intent to distribute. In fact, it was
Brown’s attorney who brought the error in the indictment to the
attention of the prosecutor shortly after Brown’s arrest in
-45-
September of 1994, several months before trial. Moreover, Brown
filed a motion to suppress evidence gathered on July 9, 1992, thus
demonstrating that he was aware of and was fully prepared to defend
against the government’s allegations with respect to Brown’s arrest
on July 9.
Furthermore, although the indictment incorrectly alleged that
the substance seized from Brown was cocaine base (crack) rather
than cocaine hydrochloride, the particular form of the cocaine is
not an element of the offense under section 841(a)(1) and is thus
immaterial to a conviction. The jury need only have found that the
substance was some form of cocaine and thus a controlled substance.
United States v. Deisch, 20 F.3d 139, 151 (5th Cir. 1994).
Moreover, for the same reasons stated above, Brown cannot
demonstrate that he was prejudiced in any way by the error in the
indictment.
B
Brown next argues that the jury could not have concluded from
the small amount of cocaine seized that Brown possessed the drugs
with intent to distribute. However, we agree with the government
that the evidence is sufficient to support the conviction.
Witnesses testified that Brown purchased large amounts of cocaine
in Houston for distribution in the Bottoms, and investigators
observed numerous drug transactions involving Brown’s Cadillac
throughout the day on July 9, 1992. The fact that police seized
-46-
only .1 grams of cocaine at the end of the day is not inconsistent
with possession with intent to distribute.
C
Next, Brown argues that the evidence is insufficient to
support the allegation in count twenty-four that he used a firearm
during and in relation to a drug trafficking crime. In Bailey v.
United States, ___ U.S.___,___, 116 S. Ct. 501, 133 L. Ed. 2d 472
(1995), decided after Brown’s conviction, the Supreme Court held
that section 924(c)(1) requires evidence sufficient to show active
employment of a firearm by the defendant, not mere possession or
intended use. Id. at 505-09. Bailey applies retroactively to this
appeal. United States v. Rivas, 85 F.3d 193, 195 n.1 (5th Cir.),
cert. denied, ___ U.S. ___, 117 S. Ct. 593, 136 L. Ed. 2d 521
(1996).
While we agree that the evidence is insufficient to prove that
Brown “used” a firearm, the indictment charged him with both using
and carrying firearms under section 924(c). The government need
not prove that Brown both used and carried the firearms seized; a
showing that he carried a firearm during and in relation to his
drug trafficking crime would suffice. A “disjunctive statute may
be pleaded conjunctively and proved disjunctively.” United States
v. Dickey, 102 F.3d 157, 164 n.8 (5th Cir. 1996) (citation
omitted). Bailey did not address the “carrying” requirement of the
statute; thus previous precedent with respect to that prong remains
-47-
unaffected. Rivas, 85 F.3d at 195.
We have held that “the ‘carrying’ requirement of § 924(c) is
met ‘if the operator of the vehicle knowingly possesses the firearm
in the vehicle during and in relation to a drug trafficking
crime.’” Id. (quoting United States v. Pineda-Ortuno, 952 F.2d 98,
104 (5th Cir.), cert. denied, 504 U.S. 928, 112 S. Ct. 1990, 118 L.
Ed. 2d 587 (1992)). At the time of Brown’s arrest for drug
possession, police found a firearm next to the driver’s seat of
Brown’s car and another in the trunk. The evidence was sufficient
for the jury to find that Brown “carried” a firearm for the
purposes of section 924(c). See United States v. Brown, 102 F.3d
1390, 1401 (5th Cir. 1996) (finding evidence sufficient for
“carrying” prong where defendants had gun in van while transporting
drugs), cert. denied, ___ U.S. ___, 117 S. Ct. 1455, ___ L. Ed. 2d
___ (1997); United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.)
(finding evidence supported “carrying” where defendant had gun in
car within reach during drug transaction), cert. denied, ___ U.S.
___, 117 S. Ct. 241, 136 L. Ed. 2d 170 (1996).
The district court instructed the jury that it must find that
Brown “knowingly used or carried a firearm” and that the firearm
“was an integral part of the drug offense charged.” The court did
not otherwise define “use” or “carry” except to instruct that the
government need not prove that a defendant “actually fired the
weapon or brandished it at someone in order to prove use . . . .”
-48-
We recognize that, after Bailey, this is no longer a correct
statement of the law. Bailey, ___ U.S. at ___, 116 S. Ct. at 507.
However, we note that this erroneous instruction is not
harmful per se. The jury did not specify whether it found Brown
guilty of use or carrying of the weapon in this case; however, we
have established that there is sufficient evidence to show that he
carried the weapon in his car.8 Based on these facts, we infer
that the jury could not have improperly convicted Brown for a “use”
that would not also support a proper conviction for carrying a
weapon. We find that the erroneous instruction was harmless;
therefore automatic reversal in this case makes little sense.
We are nevertheless constrained by our own precedent to vacate
Brown’s conviction. In both Brown and Fike, we held that a
defendant’s conviction must be vacated and remanded for a new trial
on the “carrying” prong alone where the district court instructed
the jury under the liberal, pre-Bailey definition of “use.” Brown,
102 F.3d at 1401; Fike, 82 F.3d at 1328. Brown and Fike are
factually indistinguishable from this case in all relevant respects
and are therefore binding; we have long insisted that one panel of
the court may not overrule another panel because it disagrees with
its holding. Montesano v. Seafirst Commercial Corporation, 818
It is possible, of course, under a different set of facts, to
conceive of a theory of passive “use” under the erroneous instruction that would
not support a conviction under the “carry” prong))for example, where police find
a gun in close proximity to drugs in a bedroom closet, as they did in Bailey.
However, there was no evidence introduced against Brown in this case to support
such an improper conviction for “use.”
-49-
F.2d 423, 425-26 (5th Cir. 1987). Therefore, barring en banc
reconsideration of the issue or an intervening Supreme Court
decision, we must vacate Brown’s section 924(c) conviction and
remand the count for retrial on the carry prong alone.
D
At trial, the government called Jacqueline English, Brown’s
longtime companion, as a witness. English denied having any
knowledge of Brown’s alleged drug sales or his purchasing trips to
Houston and denied that she had ever discussed such matters during
an interview with FBI agent Dan McMullen in September 1994. After
English stepped down, the government called Agent McMullen to the
stand but promptly released him without questioning.
In his closing, Brown’s attorney argued that the only logical
conclusion that the jury could draw from Agent McMullen’s failure
to testify was that McMullen’s testimony would not have helped the
government’s case. During rebuttal, the government responded to
these allegations by stating, over counsel’s objection:
The rules of evidence do not allow the Government to call
the agent to impeach her. I called him and then I
realized I could not by the rules of evidence. I am
prohibited by the rules of evidence from doing that. So
that’s why we call [sic] him back. It’s a rule of
evidence, it’s a legal rule of evidence that kept Agent
McMullen off the stand.
Brown argues that the prosecutor’s statements impermissibly
suggested to the jury that otherwise inadmissible evidence existed
that would rebut English’s testimony.
-50-
We have previously held that the government may not seek to
impeach a witness with evidence not in the record by suggesting
that, but for the rules of evidence, such proof would have been
presented at trial. United States v. Vaglica, 720 F.2d 388, 394-95
(5th Cir. 1983) (finding error in permitting prosecutor to argue
that, but for rules of evidence, government would have been able to
rebut defendant’s testimony); United States v. Morris, 568 F.2d
396, 401 (5th Cir. 1978) (“This Court has repeatedly held . . .
that an attorney may not say anything to the jury implying that
evidence supporting the attorney's position exists but has not been
introduced in the trial.”). Such comments may constitute error
even if merely responsive to comments by defense counsel. United
States v. Diaz, 662 F.2d 713, 717 (11th Cir. 1981).
However, even assuming arguendo that the prosecutor’s
statements were improper, the error was harmless. See Morris, 568
F.2d at 402 (holding that prosecutor’s statements “must be regarded
as harmless if, upon examination of the entire record, substantial
prejudice to the defendant does not appear”); United States v.
Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990) (“Improper
prosecutorial comments require reversal only if the comments
substantially affected the defendant's right to a fair trial.”).
The record is replete with evidence of Brown’s involvement in the
conspiracy as its major drug supplier. English did not testify
that any of the evidence against Brown was false or that Brown was
-51-
actually innocent; she simply denied having any knowledge of his
drug trafficking activity. Her impeachment, even by impermissible
means, was immaterial to Brown’s conviction. We therefore find
that the prosecutor’s comments at closing were harmless. See
United States v. Lester, 749 F.2d 1288, 1302 (9th Cir. 1984)
(finding similar error harmless in light of overwhelming evidence
of guilt); cf. Vaglica, 720 F.2d at 395 (finding reversible error
where prosecutor implied that, but for rules of evidence, it could
rebut primary evidence supporting defense).
X
SEBASTIAN RICHARDSON
A
Sebastian Richardson argues that the district court erred in
denying his motion for new trial on the drug distribution charge in
count twenty-two. The decision to grant or deny a motion for new
trial based on the weight of the evidence is within the sound
discretion of the trial court. An appellate court may reverse only
if it finds the decision to be a “clear abuse of discretion.”
United States v. Dula, 989 F.2d 772, 778 (5th Cir.), cert. denied,
510 U.S. 859, 114 S. Ct. 172, 126 L. Ed. 2d 131 (1993). The court
may not reweigh the evidence and set aside the verdict simply
because it feels some other result would be more reasonable.
United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997).
Rather, the evidence must weigh heavily against the verdict, such
that it would be a miscarriage of justice to let the verdict stand.
-52-
Id.
Richardson argues that the weight of the evidence shows that
the government informant, Mary Gladney, mistook Roderick Allen for
Richardson during a drug purchase and that Deputy Carl Townley
misidentified Richardson’s voice on the tape of that transaction.
Specifically, Richardson points to testimony by Gladney that the
person from whom she purchased the drugs was bald, although
Richardson was not bald on the day in question, and testimony that
Allen, who was bald, sometimes answered to Richardson’s nickname
“Bam Bam.”
We find that this is an isolated inconsistency in testimony
that the jury could reasonably find did not call into question
other inculpatory evidence. Both witnesses were subjected to
extensive cross-examination concerning the identification of
Richardson. Townley testified that he had known Richardson for
years and could recognize his voice. Although Gladney testified
that the seller was bald, her testimony indicated that she had not
been concentrating on his appearance at the time. The jury could
easily have concluded beyond a reasonable doubt that the seller
responding to the name “Bam Bam” was Richardson. Where the defense
had ample opportunity to attack the reliability of a witness at
trial, but the jury chose to credit that testimony anyway, the
district court did not abuse its discretion in denying the motion
for new trial. Dula, 989 F.2d at 778.
-53-
B
At trial, former gang member Rashaun Kimble testified that he,
Richardson, and Richard Pea (a.k.a. “Posse”) participated in a
“walk-by” shooting. The government cited the testimony as evidence
of Richardson’s involvement in the VICAR conspiracy. During trial,
a defense investigator interviewed Pea, who stated that he had
never been involved in such a shooting with Kimble and Richardson.
After trial, Pea signed an affidavit swearing that Kimble had tried
to persuade Pea to lie about his involvement because Kimble “was
pressed to come up with the name of a third party to make the story
believable.” Richardson contends that the district court should
have granted his motion for a new trial based on this newly
discovered evidence.
To receive a new trial under Fed. R. Crim. P. 33 Richardson
must prove that: “(1) the evidence is newly discovered and was
unknown to the defendant at the time of trial; (2) failure to
detect the evidence was not due to a lack of diligence by the
defendant; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence introduced at a
new trial would probably produce an acquittal.” United States v.
Jaramillo, 42 F.3d 920, 924 (5th Cir. 1995), cert. denied, ___ U.S.
___, 115 S. Ct. 2014, 131 L. Ed. 2d 1013 (1995). The motion must
be denied if all elements of the test are not satisfied. Id. at
924-25. The evidence at issue here is not “newly discovered” since
-54-
Pea stated in the affidavit that he offered this information to the
defense investigator at the time of the initial interview during
the trial. The fact that defense counsel did not adequately
communicate with persons investigating on its behalf does not mean
the information could not have been detected through reasonable
diligence. Even if Pea did not give this specific information to
the investigator, counsel was aware of inconsistencies between
Pea’s and Kimble’s accounts but chose not to call Pea to testify.
See United States v. Time, 21 F.3d 635, 642 (5th Cir. 1994)
(finding that no new trial was warranted when defendant had reason
to believe that witness possessed information but failed to cross-
examine him at trial).
At any rate, it is highly unlikely that a new trial would
produce an acquittal given the wealth of evidence of Richardson’s
violent acts and his status as a “reaper” and “enforcer” in the
gang. The district court did not abuse its discretion in denying
Richardson’s motion for new trial.
XI
ALONZO BATES
Alonzo Bates argues that the government failed to show
conspiracy-related activity after Bates reached the age of majority
on May 6, 1994. Bates apparently challenges this court’s
jurisdiction under the Juvenile Delinquency Act (“JDA”), 18 U.S.C.
§ 5031 et seq. Interpretation of the JDA is a question of law,
which we review de novo. Under the JDA, the Attorney General must
-55-
certify that “there is a substantial Federal interest in the case
or the offense to warrant the exercise of Federal jurisdiction,”
and that one of three factors is satisfied before proceeding
against any juvenile in federal court. 18 U.S.C. § 5032; Tolliver,
61 F.3d 1189, 1199. The JDA requirement is jurisdictional;
therefore federal courts may not prosecute juveniles without
certification. Tolliver, 61 F.3d at 1199.
Bates, however, is not a juvenile, and he is not being tried
for acts completed before he turned eighteen. Although the crime
of conspiracy is “complete” at the moment the deal is struck, it is
a continuing crime that may extend from before a defendant’s
eighteenth birthday into his adult life. Id. at 1200. A federal
court may try a defendant who has turned eighteen for a conspiracy
that began before his eighteenth birthday if the government can
show that the defendant ratified his involvement in the conspiracy
after reaching majority. Id.
The jury convicted Bates of selling drugs to an undercover
police officer August 26, 1994, several months after Bates’s
eighteenth birthday. The jury therefore could properly consider
evidence of conspiracy activity before Bates reached the age of
majority and convict him under count two of the drug conspiracy.
Tolliver, 61 F.3d at 1200. To the extent Bates challenges the
sufficiency of the evidence to support the August 26 drug charge,
we find that a rational jury could have found him guilty on the
-56-
evidence presented at trial.
XII
SENTENCING CHALLENGES
Defendants raise various challenges to the application of the
sentencing guidelines. We review the district court’s application
of the Sentencing Guidelines de novo, and review the district
court’s factual findings for clear error, giving deference to the
district court’s application of the guidelines to the facts.
United States v. West, 58 F.3d 133, 137 (5th Cir. 1995).
A
Richardson argues that the district court misapplied U.S.S.G.
§ § 3B1.1(a) by applying a four-level increase to the offense
levels of both the VICAR group of offenses and the drug group of
offenses.9 Richardson cites United States v. Kleinebreil for the
proposition that this increase constitutes impermissible “double
counting.” 966 F.2d 945, 955 (5th Cir. 1992).
Kleinebreil is inapposite. In that case, the defendant
received a three-level increase to the offense level of his drug
convictions based on his supervisory role in the drug conspiracy.
Kleinebreil, however, also received a three-level increase to the
offense level of his assault group of convictions, even though he
was the only participant in the assault. The court held that
U.S.S.G. § 3B1.1(a) states: “If the defendant was an organizer or
leader of a criminal activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.”
-57-
because the section 3B1.1 enhancement must be anchored in the
transaction leading to the conviction, the characteristics of one
group of offenses could not be used to enhance the offense level of
an unrelated group of offenses. Id. at 955.
Here, however, the government presented evidence that
Richardson, along with Don Wilson and Alfred Brown, were leaders in
both the VICAR conspiracy and the drug conspiracy, two distinct
conspiracies to violate distinct criminal laws. The district
court’s fact findings were not clearly erroneous; the court
properly applied the enhancement provision to both groups of
offenses.
B
Alonzo Bates, Donald Miller, and Roderick Allen challenge the
court’s two-level enhancement for use of a firearm during drug
trafficking activities under U.S.S.G. § § 2D1.1(b)(1) on the ground
that the government did not adequately demonstrate that their
possession of firearms was related to their sale of drugs. In
addition, Bates asserts that application of the enhancement to him
was unwarranted since the government did not seek this enhancement
against all the other defendants. These arguments are completely
without merit. Although a conviction on a substantive count
requires proof beyond a reasonable doubt, the district court may
sentence a defendant within the Sentencing Guidelines on any
relevant evidence that “has sufficient indicia of reliability to
-58-
support its probable accuracy.” U.S.S.G. § 1B1.3; United States v.
Buchanan, 70 F.3d 818, 828 (5th Cir. 1995), cert. denied, ___ U.S.
___, 116 S. Ct. 1340, 134 L. Ed. 2d 490 (1996); United States v.
Edwards, 65 F.3d 430, 432 (5th Cir. 1995). Cf. United States v.
Watts, ___ U.S. ___, ___, 117 S. Ct. 633, 635, 136 L. Ed. 2d 554
(1997) (noting that Guidelines Manual section 1B1.3 charges
sentencing court to consider “entire range of conduct” in
sentencing defendant). The district court heard testimony during
the sentencing hearing that Bates, Miller, and Allen carried guns
and that guns were used by Bottoms Boys in relation to the drug
trade. We find that this evidence has sufficient reliability for
use by the district court in enhancing the sentences of the gang
members.
Furthermore, even assuming that Bates’s propensity to tote
guns placed him on a par with other defendants, there is no
requirement of parity in the sentencing enhancements of similarly
situated defendants. The decision of whether to enhance a sentence
is properly within the discretion of the district court judge.
Koon v. United States, ___ U.S. ___, ___, 116 S. Ct. 2035, 135 L.
Ed. 2d 392 (1996) (citing 18 U.S.C. § 3742). Finding no abuse of
that discretion, we will not disturb the enhancement.
XIII
Appellants raise numerous other issues that do not merit
discussion in this opinion. Specifically, Alonzo Bates challenges
-59-
the trial court’s finding that the government articulated race-
neutral explanations for its peremptory strikes of certain African-
American veniremen; Patrick Miller challenges the court’s decision
to allow the government to reopen its case before the close of
trial to correct an evidentiary error; Reginald Wilson charges
prosecutorial misconduct due to puffing in the government’s opening
statement; Roderick Allen challenges the specificity of the dates
in the indictment and the court’s refusal to decrease his offense
level as a minor or minimal participant; Troy Bellamy challenges
the constitutionality of the disparate penalty provisions for
cocaine base (crack) versus cocaine powder; and Sebastian
Richardson argues that ambiguity in the scope of the VICAR
conspiracy alleged in the indictment prejudiced his ability to
prepare a defense. After a careful review of the briefs and the
evidence in the record, we find that these arguments are without
merit under the established law of this circuit and affirm the
district court without further discussion.
XIV
Therefore we VACATE Donald Wilson’s conviction on count two;
VACATE Reginald Wilson’s convictions on counts nine and ten and
Alfred Brown’s conviction on count twenty-four and REMAND for new
trial; VACATE Sebastian Richardson’s and Alfred Brown’s sentences
on count one and REMAND for resentencing; REMAND the Brady
challenge regarding the interview notes for further proceedings in
-60-
accordance with this opinion; and AFFIRM all other convictions in
all respects.
-61-