United States v. Scroggins ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 11, 2004
July 26, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-30481
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD CRAIG SCROGGINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Donald Craig Scroggins appeals his conviction and sentence for
conspiracy to possess with the intent to distribute cocaine
hydrochloride and cocaine base in violation of 21 U.S.C. §§
841(a)(1) and 846. Scroggins was sentenced to life imprisonment
and five years of supervised release. We vacate Scroggins’s
sentence and remand to the district court for further proceedings
as explained below.
Facts and Proceedings Below
Earl Buchanan, a man informally adopted by defendant
Scroggins, was arrested in March 2001 for drug trafficking. A few
days after Buchanan’s arrest, Scroggins told William Green, a
Special Agent with the DEA, that he wanted know how he could help
in order to benefit Buchanan. Green testified at trial that over
the next few days, Scroggins met with Green multiple times and
discussed his previous drug trafficking experience, claiming that
he was doing this to assist Buchanan. During this time, Scroggins
was already under investigation. Scroggins offered to set up a
controlled buy with David Sosa, with whom Scroggins claimed he had
been drug dealing since late 1999 and early 2000. Green testified
that Scroggins told him that he had purchased one to two kilograms
of cocaine from Sosa every two weeks over a period of a few months.
Scroggins later told Green that he had set up a ten kilogram
cocaine and 200 pound marihuana deal with Sosa thirty days before
even speaking with Green and that this was going to be his last
deal and that it was going to “set his retirement.” Although
Scroggins offered and supposedly attempted to set up the deal with
Sosa, he was unable to do so. In April 2002, Scroggins was
arrested at his home, where officers seized drug paraphernalia.
Scroggins, along with John Calvin Bryant, was subsequently
charged in a superseding indictment. Count 1 charged Scroggins and
Bryant with conspiring, with each other and with other unnamed
2
known and unknown persons, from about October 1998 through about
March 2001, to possess with the intent to distribute five kilograms
or more of cocaine hydrochloride (cocaine powder) and fifty grams
or more of cocaine base (crack cocaine) in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Count 2 charged Scroggins (alone) with
distribution and aiding and abetting the distribution of cocaine
powder on or about November 15, 2002, in violation of 21 U.S.C. §
841(a)(1).1 At trial, one of the key witnesses against Scroggins
was Buchanan.2 Buchanan testified that he had been involved in
drug trafficking with and for Scroggins from 1998 until Buchanan
was arrested in March 2001. Buchanan testified that Scroggins
“financially supplied” the drugs, Buchanan sold the drugs for
Scroggins, and they trafficked in both powder and crack cocaine.
Buchanan’s testimony included amounts of cocaine sufficient for the
jury to find that Scroggins had been involved in a conspiracy
involving at least five kilograms of cocaine powder and at least
fifty grams of crack cocaine.
The jury found Scroggins guilty of count 1 and not guilty of
1
The remaining two counts of the superceding indicment are immaterial to this appeal.
Count 3, which was dismissed on the government’s motion prior to trial, charged Scroggins
(alone) with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count
4 charged Bryant (alone) with having been convicted of a felony drug offense in 1983 thus
rendering him subject, in respect to Count 1, to enhanced penalties under sections 841 and 851.
2
By the time of the trial, Buchanan had pleaded guilty to possession with intent to
distribute fifty grams or more of crack cocaine and been sentenced to nearly twenty-four years
imprisonment.
3
count 2 and acquitted Bryant. Scroggins then timely filed a motion
for new trial, focusing on two witnesses—Freddie Young and James
Thomas, confidential informants for the government—who, although
subpoenaed by Scroggins, did not show up at trial to testify
allegedly because of government interference. At the new trial
hearing, these witnesses gave testimony indicating that each had
received a telephone call from the government that intimidated them
from testifying at trial. They also gave substantive testimony,
which essentially would have served to impeach Buchanan and add
evidence indicating Scroggins was not a drug dealer. Following the
hearing, the district court denied the motion. Scroggins was
subsequently sentenced to life imprisonment and five years of
supervised release and was given a $100 special assessment.
Discussion
Scroggins raises several issues on appeal. We address each
issue in turn.
I. Inability to Call Two Witnesses at Trial
Scroggins first argues that the fact that two witnesses whom
he had subpoenaed, Freddie Young and James Thomas, did not appear
to testify at trial constitutes reversible error for several
reasons. Scroggins asserts that such errors include: 1) the
district court’s denial of his motion for new trial based on either
governmental interference with his witnesses or the “interest of
justice,” 2) the failure of the district court to issue bench
4
warrants compelling the two witnesses to appear, and 3) the
ineffectiveness of his trial counsel in failing to seek a
continuance following the nonappearance of the two witnesses.
A. Motion for New Trial
Following trial, Scroggins moved for a new trial pursuant to
Fed. R. Crim P. 33, asserting that the government intimidated two
material witnesses from testifying. Scroggins asserted in the
motion that the “interest of justice” required that he be granted
a new trial. The district court treated Scroggins’s motion as
being based on newly discovered evidence and governmental
interference with witnesses, even though Scroggins had not
expressly based his motion on newly discovered evidence.3 The
district court then denied the motion, finding that there was no
credible evidence that the government prevented either of
Scroggins’s witnesses from testifying at trial.
On appeal, Scroggins argues that the district court’s finding
that the government did not interfere with his witnesses is
3
In its memorandum ruling denying the motion, the district court first reviewed the
criteria for a motion for new trial based on newly discovered evidence. The district court then
declared that “Scroggins has failed to meet his burden of proof as to the first hurdle: Did the
government have anything to do with Young and/or Thomas’ failure to appear at trial?” While
this “first hurdle” is appropriate for the analysis of a governmental interference with witnesses
claim, see United States v. Thompson, 130 F.3d 676, 686 (5th Cir. 1997), it is not clear why the
district court treated Scroggins’s motion as based on newly discovered evidence or why it treated
governmental interference as the “first hurdle” for a newly discovered evidence claim, particularly
when the criteria for such a motion do not require a finding of governmental interference for the
motion to succeed. See United States v. Villareal, 324 F.3d 319, 325 (5th Cir. 2003)(listing the
criteria for new trial motion based on newly discovered evidence).
5
erroneous. Scroggins further contends that even if the district
court was correct in finding that the government did not interfere
with the witnesses, his motion still should have been granted based
on the interest of justice. Regarding the alleged government
interference with witnesses, we disagree with Scroggins and hold
that the district court’s finding of no interference is not clearly
erroneous. Nevertheless, we agree with Scroggins that the district
court should have analyzed the motion as being based on the
interest of justice and that in appropriate circumstances the
district court does not always need to find a specific legal error
in order to grant a motion for new trial made in the interest of
justice. We therefore remand the case to the district court to
analyze Scroggins’s new trial motion in the interest of justice.
1. Standard of Review
We review the denial of a motion for new trial for abuse of
discretion. United States v. Villarreal, 324 F.3d 319, 325 (5th
Cir. 2003).
2. Rule 33 Motion for New Trial
The district court “may . . . grant a new trial if the
interest of justice so requires.” Rule 33(a). A motion for new
trial “is addressed to the discretion of the court, which should be
exercised with caution, and the power to grant a new trial . . .
should be invoked only in exceptional cases . . . .” United States
6
v. Robertson, 110 F.3d 1113, 1120 n.11 (5th Cir. 1997). “Where a
court finds that a miscarriage of justice may have occurred at
trial, . . . this is classified as such an ‘exceptional case’ as to
warrant granting a new trial in the interests of justice.” Id. A
Rule 33 motion “grounded on any reason other than newly discovered
evidence must be filed within 7 days after the verdict . . . or
within such further time as the court sets during the 7-day
period.” Rule 33(b)(2).
3. Government Interference with Scroggins’s Witnesses
Scroggins asserts that the district court’s finding that he
had not established governmental interference with the appearance
of his witnesses, Young and Thomas, is clearly erroneous, and that,
since the district court found their testimony material, this court
should itself order a new trial. Having reviewed the record, we
hold that the district court’s finding is not clearly erroneous.
a. Governmental Interference
The Sixth Amendment guarantees a defendant “the right to
present witnesses to establish his defense without fear of
retaliation against the witness by the government.” United States
v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002) (internal
quotations and citations omitted). Further, “the Fifth Amendment
protects the defendant from improper governmental interference with
his defense.” Id. “To make a showing that the government has
infringed on [these] right[s], the defendant must show that the
7
government’s conduct interfered substantially with a witness’s free
and unhampered choice to testify.” United States v. Thompson, 130
F.3d 676, 686 (5th Cir. 1997) (internal quotations and citations
omitted). As the movant, Scroggins bore the burden of proving, by
a preponderance of the evidence, that the government substantially
interfered with his witnesses and, therefore, that a new trial is
justified. See Thompson, 130 F.3d at 687; cf. United States v.
Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997) (new trial on juror
disqualification).
b. Standard of Review and Credibility
Determinations
Even though we review the denial of a motion for new trial for
abuse of discretion, Villarreal, 324 F.3d at 325, “[b]ecause the
existence of substantial interference is a factual question, we may
reverse the trial court’s decision [that there was no interference]
only if it is clearly erroneous.” Thompson, 130 F.3d at 686–87
(internal quotation and citations omitted). In considering a
motion for new trial, “[t]he trial judge may weigh the evidence and
may assess the credibility of the witnesses.” Robertson, 110 F.3d
at 1117.
c. Scroggins’s Witnesses
Scroggins argues that Young and Thomas did not appear to
testify at trial because of governmental interference. Scroggins
asserts that these witnesses would have given exculpatory testimony
8
and would have impeached Buchanan, a key government witness.
Nevertheless, even though it had “already determined . . . that the
testimony Young and Thomas were to provide [was] material,” the
district court found that Scroggins failed to prove by a
preponderance of the evidence that the government had interfered
with the ability of these witnesses to testify at trial4 and,
therefore, denied the motion for new trial. We conclude that this
finding is not clearly erroneous.
(1)Freddie Young
At the hearing on the new trial motion, Young testified
concerning actions by Agent Lee J. Scott, a Shreveport police
officer working with the DEA, that could potentially be
governmental interference with a witness. Young testified that on
Tuesday, the day before he was to testify at trial, Scott called
him. Scroggins asserts that Scott made three statements that kept
Young from testifying: 1) because his subpoena was from the
defense, Young did not need to show up to testify; 2) if Young did
show up to testify, he would be arrested; and 3) if Young testified
in court, he would be prosecuted for perjury.5
4
Although there is testimony in the new trial hearing and other evidence that suggest
others reasons why Young and Thomas did not show up, the district court did not expressly refer
to any of that evidence.
5
For some reason unexplained by either party, Scott did not testify at the new trial
hearing. Scroggins appears to imply that because Scott did not testify, he could not have rebutted
Young’s testimony. However, following the new trial hearing, the government filed an affidavit
from Scott with its brief in support of its response to Scroggins’s new trial motion. In his
affidavit, Scott stated that he told Young that “if he got a Federal subpoena it would be in his best
9
Young testified twice during the new trial hearing: on
December 19, 2002, and on January 23, 2003.6 Throughout his
testimony, the content of what Young stated varied significantly.
While at times his testimony supported a finding of governmental
interference, at other times it clearly did not.
(a) Source of the Subpoena
Young’s first discussion of the Scott phone call included no
mention of the “who issued the subpoena” discussion. Further, the
first time Young was asked about Scott’s discussion of who issued
the subpoena yielded no clear evidence that Scott suggested to
interest to go to court” and that he never threatened or told Young not to go to court. The
affidavit did not make any mention of the “perjury” or the “arrest” warnings. Scroggins did not
respond to this affidavit, and the district court did not refer to it in its ruling denying the motion.
6
On the first day of the hearing, Thomas did not comply with his subpoena and, again, did
not appear. Because of Thomas’s continued unwillingness to appear, Scroggins was ready to give
up on trying to have him testify and was prepared to conclude the presentation of evidence.
As part of its evidence, the government then played a recorded phone call between
Scroggins and Bryant, Scroggins’s codefendant. The content of their conversation supposedly
dealt with Scroggins and Bryant discussing paying Young. The quality of the recording was poor
enough that the district court stopped the proceeding and asked the government to make a
transcription of the tape. The district court planned to resume the hearing on the following day.
Scroggins then decided that if the hearing was to be delayed to make a transcript, he would
request a bench warrant for Thomas, which the district court then issued.
The following day, the district court decided to postpone the remainder of the hearing
until January 23, 2003. When the hearing continued, Scroggins requested that, if the government
decided to play the taped call between Scroggins and Bryant, the district court allow Young to be
present and to respond to the tape in rebuttal. The government did play the tape, and Young was
allowed to listen to the tape and to again testify.
We note that we have listened to the tape of this telephone conversation, but we have not
read the corresponding transcript. Based on the poor quality of the recording and the unclear
speech of Scroggins and Bryant, it is very difficult to understand. Although a transcript was
prepared for the new trial hearing, and the government refers to the transcript in its supplemental
brief, the transcript was not included in the record (the exhibit list for the new trial hearing lists
the tape of the phone conversation, but not the transcript of it).
10
Young that he did not need to show up at court if the subpoena was
from the defense:
“[Scroggins’s Counsel]: Did Lee J. Scott ever tell you
anything about whether or not you got subpoenas from the
defense or the prosecutor and what you had to do about
them?
[Young]: He just asked me when I said I got subpoenaed by
the defense, well, he said—
[Scroggins’s Counsel]: What did he say after that?
[Young]: Well, he just told me, he say, ‘Well, you ain’t
get subpoenaed by Liddell [Smith7].’
[Scroggins’s Counsel]: By Liddell?
[Young]: They said, ‘You ain’t get subpoenaed by
Liddell.’ And I said, ‘I got subpoenaed by defense.’
That was it.
[Scroggins’s Counsel]: Did he tell you that if you got
subpoenaed by the defense, you didn’t have to come?
[Young]: No. He just told me this—he said, ‘You got
subpoenaed by the defense or Liddell?’ I said, ‘The
defense.’ He said—he just pretty much said, ‘Well, you
ain’t get subpoenaed by Liddell.’ He kept saying, ‘Well,
Liddell didn’t do it.’
THE COURT: Wait. You’re going to have to slow down, sir.
I’m having difficulty following.
[Young]: He said, ‘Liddell did not subpoena you.’ That’s
what he said.
[Scroggins’s Counsel]: So he said, ‘So, if you didn’t get
subpoenaed by Liddell . . . ,’ what?
[Young]: He just left it blank.” (emphasis added).
This exchange provides no compelling evidence that Scott led Young
to believe—intentionally or unintentionally—that he did not need to
respond to a defense subpoena.8
7
Assistant U.S. Attorney in the case.
8
At oral argument, the government suggested that the “who issued the subpoena”
discussion was centered around the issue of whether the government had reneged on its promise
to keep Young, as a confidential informant, out of court. While the new trial hearing does not
establish that that is the reason why Scott and Young discussed who issued the subpoena, just
prior to the exchange quoted in the accompanying text, Young testified that the government did
not want him to “never get on no stand” and that the reason for this was to protect him and keep
11
It was not until his January testimony that Young gave any
meaningful support to the allegation that Scott told him that he
did not have to show up if the defense had issued the subpoena.
This time, in response to an unrelated question, Young testified
that Scott had told him that because the subpoena was from the
defense, he did not have to show up at court; however, this portion
of Young’s testimony is not a model of clarity or directness and is
markedly different from Young’s first testimony about the “who
issued the subpoena” discussion. While during his second testimony
(a month after his first testimony and not contemplated at the time
Young concluded his first testimony) Young claimed that Scott told
him that “[y]ou ain’t got to come . . . because we ain’t [issuing
the subpoena],” he originally testified that Scott simply said that
the government “did not subpoena you” and said nothing more. The
differences between the two versions and the lack of a
straightforward and clear answer by Young during his second
testimony cast doubt over his second version.
(b) Arrest Warning
The essence of Scroggins’s argument concerning the “arrest
warning” is that Scott’s phone call was a “veiled threat” that if
Young showed up to testify, he would be arrested because of an
outstanding warrant with his picture on it waiting for him at the
federal courthouse door. In this case, there actually was such a
his name out of the courtroom.
12
warrant for Young at the courthouse door.9
Young’s testimony is clear that he learned about the specific
warrant on Wednesday morning, the day after Scott’s call and the
day Young was to testify, from Otis Litton, an employee of the
Caddo Parish Sheriff’s Department, someone with no apparent
connection to Scroggins’s case whatsoever,10 and not from Scott.11
Even though Young did not learn about the specific warrant
from Scott, he testified on cross examination that Scott stated
that he would be arrested if he showed up to testify.12 However,
9
This warrant for Young’s arrest was apparently recalled two days after the end of
Scroggins’s trial. The warrant was for failure to pay child support, but Young testified that he
had never been given any notice of anything about the specific child before his juvenile court date.
When he showed up at juvenile court on Friday (two days after trial) pursuant to the warrant, the
judge recalled the warrant. While this seems suspicious under these circumstances, there was no
testimony at the new trial hearing to support a claim that the warrant was fabricated to keep
Young from testifying for Scroggins.
10
Although Litton knew that Young was to go to the federal courthouse on the day in
question, there was no testimony as to how Litton knew this. Young had no idea how Litton
knew, and apparently did not ask Litton how he knew, and Litton did not tell Young how he
knew.
11
Young further testified on cross-examination that the existence of the warrant was clear
to him on Wednesday, “the day the sheriff came.”
12
Young testified as follows:
“[Gov’t]: Was that[, when Otis Litton told you about the warrant,] the first time
you learned there was an outstanding warrant for your arrest?
[Young]: That’s—the day before, I told you, Lee Scott, I talked to Agent Lee
Scott, and he was asking me questions. Then he told me, he say: ‘You got no
warrant? You sure you got no warrant for your arrest?’ I said: ‘No. For what.’ I
said, ‘It’s gonna be something like a city court or something.’ He said, ‘ You
sure?’ He said, ‘If you go on the federal property, you will be arrested at the
door.’
THE COURT: Wait. That’s slightly different than what you said last time. Here’s
what I recall you saying last time: That you talked to the agent—
13
[Young]: Yes.
THE COURT: —and he asked you whether you had a warrant outstanding for
you, and you said no. And he said, ‘Are you sure?’
[Young]: Yes.
THE COURT: And then who said what?
[Young]: He said—after then, he said, ‘are you sure,’ I said—I said, ‘Yeah, I’m
sure.’ And he said, ‘Well, if you come on—you come on that federal property,
they gonna arrest you.’
THE COURT: Well, did you ask him, ‘Arrest me for what?’
[Young]: I asked him for what and he said, ‘You sure you got no warrant?’ He
kept wanting to say that I got a warrant. He won’t come out and tell me. He
said—and I kept asking the same question. Well, you see, he started laughing. He
laughed on the phone and say, ‘Well.’ Just laughed. He just told me, ‘Well.’ He
just laughed. He started laughing about it. ‘Well, you just—you ain’t
going’—something like—then—sound like he just said—I asked him, I said, ‘I
gots to go.’ He said, ‘Just—well, you just ain’t gonna—you sure? Check and
see.’ He said, ‘Check and see,’ and he started laughing. I said, I ain’t got no
warrant.’ And he told me, he said, ‘Well, you got a warrant, you won’t make it on
the federal property; at the door you will be arrested.’
THE COURT: All right. He said, ‘If you have a warrant, you will be arrested at
the door’?
[Young]: Yes. He—
THE COURT: Is that what he said?
[Young]: More like he saying that he knowed I had a warrant and I was gonna be
arrested. Point blank, he was saying I was gonna be arrested if I come at the door.
He said I was gonna be arrested. His exact words: I’m gonna be arrested, if I
come to court, at the door. And I kept asking for what.’
[Gov’t]: You realize that’s different from what you testified to earlier?
[Young]: Yes, but it was more like he saying that I’m a be arrested, if I come to
court, at the door.
[Gov’t]: Do you remember exactly what he said?
[Young]: Yes. The day when he called, he said—he said—at first, he asked about
John Bryant. He said, ‘You have anything—do you know a John Bryant? John
Bryant paid you any money?’ I said, ‘No.’ He said, ‘You sure?’ I said, ‘No.’ I
said, ‘John ain’t—John Bryant gave me nothing.’ He said, ‘Well.’ I said, ‘You
know I got to come to court, Agent’—I told Lee Scott, ‘You know I got to come
to court.’ He said, ‘Well, you got no warrants for you?’ I said, ‘No.’ He say,
‘Well, you sure?’ I said, ‘No, I ain’t got no warrant.’ I say: ‘If I got one, it’s
probably one in the city court. That ain’t nothing.’ He say, ‘Well, I tell you, you
go on the federal prop—on that federal building, at the front door, you go on the
property, you will be arrested at the door.’ He said: ‘You will be arrested. You
gonna be arrested at the door and you ain’t gonna make it up there anyway,’ and
14
as pointed out by the government and the district court during his
testimony, Young’s testimony changed somewhat from the first time
he talked about the Scott phone call in his direct examination. On
cross examination he added: Scott’s persistent laughing about the
potential arrest, Scott’s statement that “you ain’t gonna make it
[to the courthouse] anyway [to testify],” Scott’s knowledge of a
specific warrant for Young’s arrest, and Scott’s insistence that
Young would be arrested if he showed up to testify—not just if he
had an outstanding warrant. Nonetheless, even with these changes,
Young twice confirmed during cross examination that Scott’s warning
was conditional on there being an outstanding warrant, not merely
on whether Young testified.13 Young also did not testify that Scott
told him about the specific warrant, but only that Young believed
laughed about it.
[Gov’t]: So is it your testimony now that he never said ‘if you have a warrant, you
will be arrested,’ is that correct?
[Young]: No, he was letting me know, yeah, I’m a be arrested.
[Gov’t]: My question is: Is it your testimony that he did not say to you ‘if you
have a warrant, you will be arrested’?
[Young]: He said that.
[Gov’t]: He said that?
[Young]: Yeah. ‘If you had a warrant, you will be arrested.’” (emphasis added).
13
Young confirmed again on cross-examination during his second testimony that Scott’s
arrest warnings were conditional—you’ll get arrested if you have a warrant outstanding.
Young had difficulty speaking of the warrant/arrest in conditional terms. He generally
spoke of the possibility of arrest as being conditional upon his testifying in court, but always
confirmed, when asked by the government or the court, that his arrest was conditional upon there
being an outstanding warrant for his arrest. Moreover, on at least two occasions Young directly
testified, rather than just merely confirmed, that Scott stated that the potential arrest was
conditional upon the existence of an outstanding warrant.
15
that Scott knew of the warrant.
In spite of Scroggins’s contentions, Young’s testimony
supports the following findings, none of which favor a finding of
governmental interference: 1) Scott never expressly stated that he
knew of a specific warrant for Young’s arrest; 2) Scott’s arrest
warning was conditional on the existence of an outstanding warrant
for his arrest; and 3) Young learned of the specific warrant for
his arrest after Scott’s call and from a person not shown to be
connected with the federal government or Scroggins’s case.14
(c) Perjury Warning
Young’s testimony in December made no mention at all of any
“perjury warning” from Scott. That testimony did not come up until
Young’s January testimony. Young then brought this issue up in
response to an unrelated question:
“[Scroggins’s Counsel]: So the only one that told you you
didn’t have to come if the defense subpoenaed you was Lee
J. Scott?
[Young]: Yeah, because he told me on the phone
that—started laughing, saying, ‘The DA gonna get you for
perjury.’ I said, ‘Perjury for what?’ He talk about,
‘How much money John paid you?’ I told him, ‘John ain’t
paid me nothing.’ And he said: ‘Ha. Ha. You sure?’ I
said, ‘Yeah, I’m sure.’ Exact words, he said, ‘They’ll
get you for perjury.’
[Scroggins’s Counsel]: And did he tell you about the
14
As Young testified that no other agent called and told him about the warrant until after
the trial was completed, the allegation of governmental interference hinges on the Scott phone call
alone—unless the actions of Litton can somehow be attributed to the government. The district
court flatly rejected the suggestion that Litton’s actions could be part of the alleged governmental
interference. On appeal, Scroggins does not argue that Litton’s actions should be attributed to
the government, and we see no evidence in the new trial hearing suggesting as much.
16
tape?15
[Young]: No. He told me that they were gonna get me for
perjury. He said, ‘Liddell gonna get you for perjury.’
[Scroggins’s Counsel]: Did you ask him why?
[Young]: I kept asking him why. He wouldn’t tell me.
But he told me—he said that’s what gonna happen. He kept
telling me that’s what gonna happen, you know, they gonna
get me for perjury. He wasn’t telling me about the tape,
but he said, ‘They gonna get you for perjury.’”16
Young later confirmed, however, in response to questioning by
the district court and the government, that the perjury warning was
conditional—if he lied, he would get prosecuted for perjury:
“[Gov’t]: So did Lee Scott tell you anything else other
than if you had a warrant, you’d be arrested?
[Young]: And about you, you gonna get me for perjury.
[Gov’t]: If you lied?
[Young]: Yeah. And he said—nah, he said something
like—he said, ‘How much money John [Bryant] paid you?’
I said, ‘John ain’t’—
THE COURT: What?
[Young]: He said, ‘How much money John Bryant paid you?’
I said, ‘John ain’t paid me no money.’ And I—I explained
to him and told him, and everybody know I worked on
Donnie’s company at A-1 Painting. Even Agent Will Green
know that. I worked with Donnie [Scroggins]. And I told
him Donnie owe me money right then, because I supposed
making—Donnie got put off the job at Fairgrounds Stadium.
We did Independence Stadium.
THE COURT: Wait a minute. Wait a minute. Stop. All you
15
Referring to the recorded conversation between Scroggins and Bryant in which they
discussed Bryant paying Young. Supra note 6. Young claimed that Bryant never gave him any
money and that the money referred to in the recorded conversation must have been money
Scroggins owed Young for painting work Young had done for Scroggins.
16
Later testimony by Young concerning the perjury warning is somewhat unclear about
when Scott may have given the warning, or if Young even received the warning from Scott as
opposed to from someone else. Young testified that Scott told Mary Winchell, Bryant’s defense
counsel, that the government would prosecute Young if he testified, and that Winchell told
Bryant, who then told Young. It is not clear, however, if this exchange of information among
Scott, Winchell, Bryant, and then Young occurred before or after Young’s alleged conversation
with Scott.
17
got asked was how much money—you’d get prosecuted for
perjury if you lied?
[Young]: Yes.” (emphasis added).
That the perjury warning testimony did not come up at all
until Young’s January testimony and that Young confirmed that the
warning was “if he lied,” raises meaningful questions about the
testimony and the effect of the warning on Young’s decision not to
appear at court.
(d) Conclusion
The district court found that “there is no credible evidence
that the prosecutors had anything to do with Young’s failure to
appear to testify at trial.”17 The district court specifically
found that Young’s interpretation of the alleged conversation with
Scott about who issued the subpoena was “not credible” and most
likely came from a “misunderstanding on Young’s part.”18 It also
found that Scott did not discuss or mention the warrant with Young.
Although the district court did not make a specific finding as to
Scott’s supposed perjury warning, the finding of no credible
17
Even though the district court limited its finding to the “prosecutors,” and questioned
whether Scott’s actions could be attributed to the federal government, it did assume that Scott’s
actions could be so attributed. Further, during oral argument, the government conceded that
Scott was the government for the purposes of this case. Therefore, we treat the district court’s
finding as including Scott’s actions within the potential government interference.
18
In his affidavit, filed with the government’s brief in support of its response to
Scroggins’s new trial motion, Scott stated that he told Young that “if he got a Federal subpoena it
would be in his best interest to go to court” and that he never threatened or told Young not to go
to court. This directly supports the district court’s finding that Young’s interpretation was not
credible and was a misunderstanding on his part.
18
evidence of governmental interference sufficiently indicates that
it did not find this allegation to be credible.
The district court’s determination that it was not shown by a
preponderance of the credible evidence that the government caused
Young’s failure to appear is not clearly erroneous. The nature and
content of Young’s testimony—adding more information during his
January testimony, being somewhat inconsistent in relating the
content of the conversation, confirming the government’s version of
events, but continuing to repeat the defense’s version—support the
district court’s determination that Young’s account was not
credible and that at the least he misunderstood Scott. Further,
Young’s testimony clearly reflects that he simply did not want to
get involved in the case by testifying.19
Concerning the perjury warning, Scroggins relies on United
States v. Vavages, 151 F.3d 1185 (9th Cir. 1998). In Vavages, the
Ninth Circuit held that a statement that in effect told the witness
that if she testified, she would be prosecuted for perjury
constituted government interference with the witness:
19
Young testified as follows:
“[Scroggins’s Counsel]: Mr. Young, were you fearful about coming here today to
testify against the government?
[Young]: I don’t like it.
[Scroggins’s Counsel]: Why don’t you like it?
[Young]: Because I been with them a long time, and coming into court just ain’t
me. I just like doing my job and I don’t like being here.”
Young’s testimony also suggests that it would not be safe for him, as a confidential informant, to
testify in court, giving him a motive to avoid testifying. Young testified that the government
previously had wanted, and had tried, to protect him by keeping him and his name out of court.
19
“The prosecutor combined a standard admonition against
perjury—that Manuel could be prosecuted for perjury in
the event she lied on the stand—with an unambiguous
statement of his belief that Manuel would be lying if she
testified in support of Vavages’ alibi. . . . It does
not require much of an interpretative gloss on the
prosecutor’s warning to conclude that unless Manuel
changed her testimony or refused to testify at all, she
would be prosecuted for perjury and suffer any attendant
consequences.” Id. at 1190.
It is not the law that the “government cannot tell a witness
of the consequences of committing perjury.” Thompson, 130 F.3d at
687. So far as Scott merely informed Young of the consequences of
lying, that is not improper:
“Granted, the government told the witnesses that they had
to testify truthfully and, if not, they would go to jail.
That procedure, however, even if carried out in a caustic
manner, is no cause to dismiss the indictment against the
defendants. There is nothing wrong with the government
informing witnesses of the consequences of breaking the
law.” Id. (emphasis added) (internal quotations and
citations omitted).
Because we believe that the district court found that Young’s
perjury warning story was not credible and because this finding is
not clearly erroneous, Vavages is distinguishable.20
20
Moreover, the Ninth Circuit explained that it was not saying that “a prosecutor should
never articulate his belief that a witness is lying.” Vavages, 151 F.3d at 1190. “[U]nusually
strong admonitions against perjury are typically justified only where the prosecutor has a more
substantial basis in the record for believing the witness might lie.” Id. Because the testimony that
the witness in Vavages would have given “would have been entirely consistent with her own prior
statements and would not have conflicted with any past testimony, the prosecutor lacked this
substantial basis for believing [the witness] would perjure herself.” Id. at 1191. In contrast, Scott
likely did have a substantial basis for believing that the Young might lie. While it is not clear,
Scott’s conditional perjury warning, if it happened at all, may have occurred in the following
context: 1) the recorded conversation between Scroggins and Bryant potentially discussing Bryant
paying Young; 2) Scott may have known of the recording; 3) during the conversation with Scott,
Young denied that Bryant had paid him any money; and 4) Scott responded by saying that if he
20
In addition to the reasons given thus far for sustaining the
finding of no governmental interference, Young’s testimony also
supports a finding that Scott’s call did not intimidate Young
enough to keep him from going to court. The day after the
discussion with Scott, and the day he was to testify in court,
Young was in a discussion with Litton of the sheriff’s department
concerning his outstanding warrant. According to his discussion
with Litton, Young still planned to go to court—in spite of the
lied (about the money he received from Bryant), he would be prosecuted for perjury. Thus, it
appears that Scott’s conditional perjury warning was justified.
We note, however, that there is no direct evidence in the record that Scott had listened to
or knew of the recorded conversation. Even though Scott asked Young whether Bryant had paid
Young, and then supposedly followed up with the perjury warning, he did not tell Young that he
knew of the recording nor did he expressly explain to Young what possible perjury he was
speaking of. Agent Green testified that he had listened to the recording, but never stated that he
had passed the information or the recording on to Scott.
Scroggins also contends that the district court discounted the effect of the tape. The
government claims that the taped conversation indicates that Scroggins and Bryant may have paid
or offered to pay Young to testify, giving an explanation for Scott repeatedly asking Young if
Bryant had paid him. Scroggins responds by pointing out that the district court stated during the
new trial hearing that it “didn’t find anything in [the transcript of the tape] to hurt [Scroggins’s]
motion” and that it knew that the tape would worry Scroggins, but that it did not worry the
district court.
The district court’s comments about the tape, however, do not diminish the fact that the
tape may have given Scott a substantial basis for believing that Young would lie. The court’s
comments came before Young accused Scott of the perjury warning and before it became
apparent that the tape may have created a basis for Scott’s belief concerning the likelihood that
Young would lie. Further, even if the tape does not establish that Scroggins and Bryant
attempted to pay Young to testify, it still may have led to Scott’s substantial basis for believing
Young would lie at trial: the tape talked of Bryant paying Young, Scott asked Young if Bryant
had paid him, and Young denied that Bryant had paid him. This establishes a basis for Scott then
telling Young that he would get prosecuted for perjury if he lied—assuming Scott knew of the
tape.
21
Scott phone call that he had already received.21 Young’s testimony
clearly supports a finding that it was the discussions with the
sheriff’s department, not the discussion with Scott, that persuaded
21
The following exchange makes it apparent that Young was still willing to go to court
after talking to Scott:
“[Young]: I asked and Otis tell me there. So I said, ‘Okay, Otis, I’ll be down there
[at the sheriff’s department].’ So I ain’t—I called him back again. I said, ‘Otis,
you know I supposed to be in—in court.’ Then he says: ‘Yeah, I know that, but
you come [to the sheriff’s department] first. I’m gonna walk you through the
process of the other court system where you got to go for this warrant, then you
can take care all of that.’ And I said—
THE COURT: Take care of what?
[Young]: Take care of my other business. And I say, ‘Otis’—I asked him, I said,
‘Otis, you sure?’ He said. ‘Yes. Just come down first.’ I said, ‘No
(indiscernible).’ I said, ‘Let me go over to the courthouse first.’
[Scroggins’s Counsel]: Excuse me. When he said ‘you come down here first,’
what do you mean? First before what?
[Young]: Come to the Caddo Parish Sheriff Department building down there. He
said come downstairs, he gonna be down there waiting on me and he gonna take
me in court and walk me through the little—where the warrant was suppose to be
at. Then I told him, I said, ‘Otis, why can’t I go to the other court first?’
[Scroggins’s Counsel]: What do you mean by ‘the other court’?
[Young]: The federal court.
[Scroggins’s Counsel]: Okay. You asked—
[Young]: The federal court.
[Scroggins’s Counsel]: —him why you couldn’t go to federal court first?
[Young]: Yeah. And when—he said, ‘Okay, then.’ I said, ‘Okay.’ So I—I
waited a little while again, so I called Otis one more time. Otis said—
THE COURT: Wait. Otis said okay, you can go to the other court first?
[Young]: Yeah. He went on—he went on and said it. But when I got ready to
come and decide to call him again, Otis told me, ‘You ain’t been over there.’ I
said, ‘How you know?’ He say: ‘Because they got your picture out at the front
door. They gonna arrest you, anyway, you come in there.’ I said, ‘They gonna
arrest me for where, at the federal courthouse?’ He said: ‘Yeah. You was gonna
be arrested at the door and you never would have made it to the court.’ And then
that was left at that. That’s what was said right there out of me and Otis.”
(emphasis added).
22
him not go to federal court because of his fear of being arrested.22
In summary, we are unable to conclude that the district
court’s finding with respect to Freddie Young and governmental
interference is clearly erroneous.
(2) James Thomas
22
In spite of the testimony cited in the preceding footnote, Young then testified that
Scott’s call did have some part in his decision not to show up at court. Nevertheless, in light of
Young’s testimony up to this point, the phrasing of the question, and Young’s answer, this
testimony is less than convincing:
“[Scroggins’s Counsel]: So because of what Mr. Otis Litton and Mr. Lee J. Scott,
narcotics agent, told you, did that make you afraid to come to court?
[Young]: Yes. I wasn’t coming. I wasn’t coming after that.
[Scroggins’s Counsel]: Were you afraid to come?
[Young]: Yes, because I wasn’t gonna be—I was afraid I was gonna be arrested
on that day.”
The question and the answer do not distinguish between Scott’s and Litton’s actions and their
separate effect on Young. That Litton’s calls, not Scott’s, were primarily responsible for Young’s
nonappearance was made apparent on cross-examination of Young:
“[Gov’t]: What day was it that you decided you—did you decide you were not
coming to testify after all?
[Young]: I was coming. Only day that I wasn’t coming—after the sheriffs came
to my house, I wasn’t coming then. That day I found out that I got a warrant
down here at the door, that I was gonna be arrested, I wasn’t coming.” (emphasis
added).
The conclusion that Scott’s call did not intimidate Young from coming to trial also has
some support from the trial record. On the last day of trial, Wednesday, September 25,
Scroggins’s counsel told the district court that: three witnesses whom she had subpoenaed had
not appeared, she had spoken to two of them on Tuesday night, and the third was not responding.
The third witness, the one not responding, was Thomas. Therefore, Young must have been one
of the other two nonappearing witnesses.
Scroggins’s counsel, therefore, apparently spoke to Young after Scott’s call but before
Young was to testify. There is no indication from the record that on Tuesday night Young told
Scroggins’s counsel about Scott’s call or about the effect that the call allegedly had on him. If
Scott’s call had intimidated Young from testifying, presumably Young would have told
Scroggins’s counsel about this when she spoke to him on Tuesday night. While this is not
conclusive of what Scott may have told Young or the influence of the call on Young, it is
consistent with the conclusion that something other than Scott’s call influenced Young’s decision
not to testify.
23
Before Thomas was to testify at trial, he received an
anonymous message supposedly from law enforcement stating that if
he showed up at the courthouse to testify, he would be arrested.
Scroggins contends that this call constituted governmental
interference with a witness.
(a) Testimony
Early in the morning of Tuesday or Wednesday,23 Wednesday being
the day he was to testify, Thomas received a voice mail on his cell
phone from a number with a 676 prefix. Although the call came in
the morning, he did not check his messages until the night of the
call. The message told him of a warrant for his arrest waiting at
the federal courthouse.24 Thomas did not save the message.
Thomas also testified that the DEA agents with whom he had
worked had contacted him before on his cell phone. He had given
his number to five different agents, three of whom had called him
on his cell phone (Russell Sarpy, Green, and Scott); the agents’
23
Thomas stated at least twice that the call came either Tuesday or Wednesday morning;
however, Thomas later testified that he received the voice mail Tuesday morning, but that he did
not review his messages until Tuesday night. If the call came Wednesday morning and if he did
not check his messages until Wednesday night—after trial was already over—then the call would
be completely immaterial as to his decision to not testify. Overall, his testimony does tend to
support that the call came on Tuesday, not Wednesday.
24
Thomas testified that the message told him “not to come to court because it was a
warrant down here for my arrest and I’d be arrested before I walked through the door” and that
the message said “‘don’t step foot on the federal property.’” Thomas also testified that the
message talked about “something like an assault and battery charge” and that the warrant would
be at the front door of the federal courthouse with a picture.
24
calls came from a 676 number.25 Thomas’s testimony indicates these
three agents were the only agents who had called him and that the
only calls he received from a 676 number were from narcotics
agents. Nevertheless, Thomas did not recognize the voice on the
message and could not say that it was from any of the agents to
whom he had talked. He also did not know that the call was from a
narcotics agent; he merely testified that the call “sounded like a
law enforcement” because “who else would call [him] and tell [him]
something like that?” Therefore, his belief that the call was from
“law enforcement” was based on the 676 prefix and the argument that
“who else would have done it?”
Thomas later testified that on Tuesday night, after he had
heard the message, he spoke to the secretary to Victoria Cranford,
Scroggins’s counsel, to tell Cranford about it. Cranford never
called him back; however, Thomas could not recall if he
specifically told the secretary about the mysterious message.26 On
Tuesday evening Thomas also called and left a message on the
answering machine of David Shanks, the defense team’s investigator;
however, he could not recall what, if anything, he specifically
25
Thomas testified that“[s]ometimes [the calls] used to be three different numbers, but I
just remember 676-48 I think.”
26
Elsewhere Thomas testified that he called Cranford on Wednesday and left a message
with the secretary for Cranford to call him. He did not testify as to the content of his
message—i.e., whether he told the secretary about the mysterious phone call. No one returned
his call. It is not clear whether this call (on Wednesday) is different from the call described in the
accompanying text (on Tuesday) or if Thomas was simply mixing up his days again and forgetting
when the calls occurred. Thomas did testify that he had “problems with long-term memory.”
25
told Shanks about the call. Shanks also did not call him back.
Therefore, it is unclear whether Thomas specifically told anyone of
the call before the end of trial.27
Thomas testified that after receiving the message, he decided
not to show up to testify because of his fear of being arrested and
being “messed over”—being put in a situation that he could not get
out of—by the government.
Nevertheless, in spite of Thomas’s testimony that he did not
show up at trial at least in part because of the phone call,28 it
appears that he was already very reluctant to show up. Thomas
simply did not want to get involved in the case:
“[Gov’t]: And why did it take you so long to go down and
talk to [Scroggins’s counsel before trial]?29
[Thomas]: Because I really didn’t want to get involved.
[Gov’t]: And why didn’t you want to get involved?
[Thomas]: Because I just didn’t want to—after all—after
I did that last buy [with Earl Buchanan]30, I just wanted
to put it all behind me.” (emphasis added).
Thomas eventually decided to go to the office of Scroggins’s
counsel about one week before trial. Thomas also appeared at the
27
Thomas did testify that on Thursday or Friday of the same week—after the trial was
over—he did speak with Cranford and told her about the call.
28
When asked by the government what helped him to make his decision not to show up,
Thomas replied: “Probably everything. Really, the government, that phone call, and just—two
factors, I guess you can say.”
29
Thomas testified that it had taken him a long time to go and talk to Scroggins’s counsel
after she had contacted him about testifying.
30
Thomas was the government’s confidential informant in a controlled buy with Buchanan
in November 2000.
26
office of Scroggins’s counsel on Monday, the first day of trail,
and was told to go to the courthouse on Wednesday to testify.
Even though Thomas appeared at the office of Scroggins’s
counsel on Monday, his testimony supports a finding that he did not
plan to go to court—independent of the anonymous phone call. In
his testimony, Thomas volunteered that he was not going to show up
anyway because he did not want to get involved. It was only after
persistent and lengthy questioning by the district court that
Thomas did state again that the phone call had contributed to his
decision to not appear at court:
“[Gov’t]: When did you become afraid of the police?
[Thomas]: When I started hearing [the mysterious
message], that was enough for me not to come, period.
[Gov’t]: And how long—
[Thomas]: I wasn’t—anyway, I wasn’t planning on coming
anyway, because I really didn’t want to get involved.
[Gov’t]: So—
THE COURT: Excuse me. Say that again?
[Thomas]: I was not going to come anyway, because I
really didn’t want to be involved.
[Gov’t]: Have you ever been threatened by Mr. Scroggins
or any of his family member?
[Thomas]: No, sir.
[Gov’t]: Did you ever tell agents that you had been
threatened by—
THE COURT: Okay, stop. I’m going to explore it. If
you’re not going to, I’m going to.
You said you were not going to come anyway, because
you didn’t want to be involved?
[Thomas]: Yes, sir. When I—when I made that deal—
THE COURT: What deal?
[Thomas]: With Russell Sarpy. The deal was that I
wouldn’t have to testify in court.
THE COURT: Okay. But we’re talking about coming to the
trial and testifying.
[Thomas]: Yes, sir.
THE COURT: Are you telling me that you were not going to
come to testify whether or not somebody called you and
27
told you that you were going to be arrested if you did
come? Did you follow that?
[Thomas]: Sir?
THE COURT: Did you understand the question?
[Thomas]: Say—repeat the question.
THE COURT: Okay. You just told me that you were not
going to come to testify anyway. What I’m trying to find
out is whether or not this phone call that you got from
the 676 number had anything to do with your not coming.
[Thomas]: No. That Monday I came, and she told me to
come back. She was going to call me to come back that
Wednesday. But when I got that phone call, I wasn’t
going to come, because I didn’t want to be involved.
THE COURT: Okay. What I’m trying to find out is: Had you
decided not to come before you got that phone call—
[Thomas]: No, sir.
THE COURT: —or did that phone call cause you to decide
not to come?
[Thomas]: Yes, sir. That Monday I did come to trial.
THE COURT: “Yes, sir,” what?
[Thomas]: I came to trial that Monday31 before I got the
phone call, but that phone call made me not come no more.
THE COURT: That’s what I want to know, because you just
said that you were not going to come anyway, and I want
to make sure that it was the phone call from the 676
number that caused you not to come. Is that correct?
[Thomas]: Yes, sir.
THE COURT: All right.” (emphasis added).
Even though Thomas eventually confirmed that the phone call
caused him not to come, he never disavowed his voluntary statement
that he “was not going to come anyway,” even before he received the
call. It is very questionable whether Thomas would have shown up
at court even without the mysterious message.
31
Thomas talks about coming to trial on Monday, but his previous testimony is that he
merely showed up at the office of Scroggins’s counsel. While it is not clear if Thomas was
thinking of his appearance at the attorney’s office or some separate appearance at the courtroom,
we assume that it is the former. The statements of Scroggins’s appellate counsel at oral argument
support this assumption—he admitted that the witnesses showed up at the office on Monday, but
made no mention of either of them showing up at trial.
28
Moreover, Thomas’s behavior with respect to the new trial
hearing also makes it apparent that he was very reluctant to get
involved by testifying at trial. When Thomas was subpoenaed for
the new trial hearing, again he did not show up—even though there
was no evidence of a continued risk of being arrested at the
federal courthouse because of some supposed warrant. Thomas
finally came to the new trial hearing because he was arrested for
not complying with his subpoena to appear at the hearing on the
previous occasion.32 Although he was still afraid of the
government,33 he now knew that he had to comply with the subpoena
or be arrested.34 This testimony supports the government’s
contention that Thomas had other reasons for not appearing at
32
The day Thomas did not show up at trial was September 25, 2002. The first day of the
new trial hearing was December 19, 2002. Thomas did not show up then; he finally appeared on
January 23, 2003.
33
Thomas was afraid of retaliation from the government if he showed up to testify:
“[Thomas]: I told [Cranford and Shanks] about the phone call and I told them I
was afraid because I really didn’t—I was—I was scared, scared of the government,
scared they will try to do something to me if I came and showed up here.
[Gov’t]: And what were you afraid they were going to do to you?
[Thomas]: Anything.
***
[Thomas]: A lot of stuff went through my mind.
[Gov’t]: What were you afraid that they were going to do to you?
[Thomas]: Try to set me up; anything.
[Gov’t]: They were going to set you up for coming to court?
[Thomas]: Yeah.
[Gov’t]: Did anybody from the government tell you that?
[Thomas]: No, sir.”
34
Thomas testified that he did not understand that he could get arrested for not obeying
the subpoena—until he got thrown in jail.
29
trial.35
(b) Conclusion
The district court found that there was “no credible evidence
that the Government prevented Thomas from testifying” at
Scroggins’s trial. The court observed that the “evidence
surrounding Thomas’ voice mail message is insufficient to implicate
interference by the federal government as there is no evidence that
the federal government corners the market on the ‘676’ prefix in
Shreveport, Louisiana.” The court considered that Thomas did not
recognize the voice of the caller and could not identify it as
belonging to any agent who had called him and whose voice he likely
would have recognized. Because the district court found that there
was no credible evidence of governmental interference, it
apparently did not believe Thomas’s testimony that the mysterious
call had occurred in the manner that he testified—if at all.
The district court did not clearly err in finding that Thomas
had not shown by a preponderance of the evidence that the mystery
call was from the government: Thomas did not recognize the voice as
belonging to any agent who had called him on his cell phone and
35
Thomas’s testimony of why he did not show up at the first new trial hearing showed his
“pattern” of deciding not to show up at court. When asked if he had told Scroggins’s team if he
was not coming to the first new trial hearing, Thomas stated: “I told them I was afraid. I ain’t tell
them I was coming, because I had got up to come, but I just turned around and changed my
mind.” (emphasis added).
30
with whom he had spoken and whose voice he recognized;36 there was
no evidence given during the new trial hearing or otherwise that
the government “corners the market on the ‘676’ prefix in
Shreveport;”37 and Thomas did not know if the call was from a
narcotics agent, but only assumed it was because “who else would
have done it?”
Furthermore, what is most damaging to Thomas’s allegations is
his testimony that he had already decided not to go to court
anyway—independent of the call—because he did not want to get
involved and because of his fear of the government. Thomas’s fear
of the government developed prior to and independent of the claimed
phone message. Although he did assert that the phone call did
contribute to his decision to not come, he also stated that he was
not going to come anyway. Thus, it is difficult to conclude that
but for the alleged phone call, Thomas would have appeared at
trial, particularly in light of Thomas’s failure to appear at the
new trial hearing until he was arrested—even though there was no
evidence of any threat preventing him from appearing at that time.
36
Thomas had spoken with Sarpy and Green several times, but was not asked about
Scott’s voice and how many times he had heard Scott speak.
37
Scroggins’s counsel stated during the new trial hearing that “676 is only a government
prefix number, Your Honor.” Nevertheless, the district court was correct that there was no
evidence given about the 676 prefix and the government’s share of such numbers—either during
the new trial hearing or after. Further, Scroggins did not request that the district court take
judicial notice of the 676 prefix and no motion to take judicial notice on the issue has been filed
before this court.
31
Other evidence at the new trial hearing also explains why
Thomas would have been reluctant to appear at trial—independent of
the mysterious call. Green testified that Thomas had been
threatened in the past by the Scroggins family and that he came to
the agents requesting money or protection and that they get him out
of the Shreveport area.38 In addition, along with its brief in
support of its response to the new trial motion, the government
filed an investigation report that purportedly detailed a payment
to Thomas for security purposes because of threats from the
Scroggins family. The report stated that: threats were made
against the “CS’s”39 life as a result of cooperation with the DEA
during October and November 2000; the payment was for security
purposes and was to assist the CS in leaving the area because of
the threats; and at least some of the threats were from Donald
Scroggins and were due to the CS’s involvement in the arrest of
Buchanan. Adding this evidence to Thomas’s testimony about his
reluctance to show up at trial and his not appearing at the
December new trial hearing, the district court did not clearly err
in finding that the government did not prevent Thomas from
38
Green testified that according to his recollection, the agents gave him money to leave
the Shreveport area. Thomas testified, however, that the government was “supposed to pay me
some money and got me out of Shreveport, but they never did do that.”
39
The report omits the name of the subject, who is referred to as the “CS.” Although
there is nothing in the report specifically stating that the CS is Thomas, the facts in the report are
consistent with Green’s testimony and Thomas’s involvement in the events leading to the arrest of
Buchanan.
32
appearing at trial.40
4. Interest of Justice
We next consider whether the district court erred by not
considering the primary basis of Scroggins’s new trial motion—the
interest of justice. We hold that the district court did err in
limiting its analysis of the motion to newly discovered evidence
and that this error was not harmless to Scroggins. We also reject
the government’s argument that the district court may not grant the
new trial motion absent an identifiable legal error and hold that
the existence of a specific legal error is not always required to
grant a motion for new trial in the interest of justice.
a. Proper Standard for Analyzing New Trial Motion
40
There is also evidence that would tend to question Thomas’s credibility. It is
questionable that Scroggins’s team did not return Thomas’s calls on Tuesday, particularly when
Scroggins considered Thomas to be such an important exculpatory witness. Granted, because
Thomas could not recall if he had told the defense team about the mysterious message,
Scroggins’s team may have received his nonspecific messages and not felt a need to respond to
Thomas quickly to make sure that he would be in trial on Wednesday to testify. We also note that
Thomas’s testimony is potentially inconsistent with what occurred at trial. When Thomas did not
show up at court, Cranford, Scroggins’s counsel, said that even though she had “subpoenaed him,
paid his witness fees, done everything properly, [Thomas was] not responding” to her voice mails.
Therefore, we have testimony by Thomas that he left messages for Cranford and Shanks on
Tuesday, to which they did not respond, and a statement by Cranford that she had left at least one
message for Thomas, after he had met with her on Monday and before Wednesday morning, to
which Thomas had not responded. While it is possible that both statements are correct—i.e., that
Thomas did not receive Cranford’s message and that Cranford did not receive Thomas’s
message—it casts some doubt over whether Thomas even called Cranford and Shanks or whether
Scroggins’s team diligently tried to locate Thomas.
Thomas himself also stated that he had “problems with long-term memory,” perhaps
giving the district court another reason to question his credibility.
33
Because Scroggins filed his motion for new trial within the
time authorized by Rule 33(b)(2), his motion could have been
properly grounded on any reason for which a new trial could be
granted and was not required to be limited to newly discovered
evidence.41 Scroggins based his motion on the interest of justice
and not expressly upon newly discovered evidence.42 Therefore, the
41
The jury verdict against Scroggins was filed on Thursday, September 26, 2002. On
Friday, October 4, 2002, less than seven days after the verdict, the district court extended the
deadline for filing a motion for new trial to October 16, 2002. See FED. R. CRIM. P. 45(a)(2) (in
computing time periods, “[e]xclude intermediate Saturdays [and] Sundays . . . when the period is
less than 11 days”). Scroggins timely filed his Rule 33 motion on October 16, 2002. The
government agrees that Scroggins’s motion was in fact filed within the properly extended time.
42
Scroggins mentioned “newly discovered evidence” in two portions of his documents
supporting his motion for new trial. First, he referred to newly discovered evidence in reviewing a
case, United States v. Ouimette, 798 F.2d 47 (2d Cir. 1986), that he claimed supported his
motion. In Ouimette, a witness favorable to the defense was allegedly intimidated by the police to
recant his proposed testimony and flee from the area, making him unavailable to testify at trial.
Later, the witness returned and gave a sworn statement to the defendant reiterating his original
testimony and describing how the police had threatened and harassed him, causing him to flee.
Apparently more than seven days after the verdict, the defendant moved for a new trial based on
newly discovered evidence, using this sworn statement of the witness as the primary support. Id.
at 51. While the Second Circuit held that the witness’s testimony was not newly discovered
evidence—since the defendant had known about the supposedly exculpatory testimony prior to
trial—it did hold that the “assertion concerning the pressure put on [the witness] by the . . . police
to dissuade him from testifying for the defense is certainly new in the sense that it was discovered
after trial.” Id. The Second Circuit then remanded the case for further findings to determine if
the defendant had met the other requirements for a motion based on newly discovered evidence,
primarily whether the defendant had exercised due diligence. Id. at 52.
Scroggins’s reference to Ouimette is not enough for the district court to conclude that his
motion was based on (or only on) newly discovered evidence. In contrast to Ouimette, as
Scroggins’s motion was filed within the Rule 33(b)(2) time limit, it was not required to be limited
to newly discovered evidence. The defendant in Ouimette was limited to evidence concerning
interference with the witness since the direct exculpatory evidence was not newly discovered and
the motion for new trial had to be limited to newly discovered evidence. Further, none of the
arguments in any of Scroggins’s documents supporting the new trial motion or in the new trial
hearing suggest that Scroggins was primarily interested in the evidence of the government’s
interference with Thomas and Young as opposed to the substance of their supposedly exculpatory
34
district court erred in limiting its analysis of the motion, and
the exercise of its discretion, to newly discovered evidence while
not considering the primary basis of Scroggins’s motion—the
interest of justice.43
Further, the district court’s failure to analyze the motion
based on the interest of justice was not harmless to Scroggins.44
In contrast to motions made within the seven-day period, new trial
motions based on newly discovered evidence are subjected “to an
unusually stringent substantive test.” United States v. Ugalde,
861 F.2d 802, 808 (5th Cir. 1988). See also United States v.
testimonies.
Scroggins also stated in his brief in support of his motion for new trial, requested by the
district court at the end of the new trial hearing, that he “now requests, in the alternative, that
[he] be granted a new trial on the grounds of newly discovered evidence as well as government
misconduct.” (emphasis added). It appears that the newly discovered evidence Scroggins refers
to here is not the substance of Thomas’s and Young’s testimonies, but rather the evidence of the
alleged interference with Young. Although the substance of their testimonies would not be newly
discovered evidence since it was known to Scroggins before trial (both witnesses met with
Scroggins’s counsel before the time of their scheduled testimony, see Ouimette, 798 F.2d at 51),
again there is no indication that Scroggins was primarily concerned about the alleged government
interference evidence as opposed to the substantive evidence. Thus, the court’s treatment of the
motion as one based on (or only on) newly discovered evidence was not warranted.
43
Even if Scroggins’s motion were based only on newly discovered evidence, because it
was timely made within the Rule 33(b)(2) time limit, the district court likely still should have
considered the interest of justice in its analysis. See United States v. Ugalde, 861 F.2d 802, 808
(5th Cir. 1988) (commenting that when a motion for new trial under Rule 33 is made within seven
days of the verdict, “courts will grant the motion, even if based on newly discovered evidence,
whenever it is in the interest of justice to do so”) (internal quotations and citations omitted).
44
We do not suggest, however, that the district court would have necessarily exercised its
discretion to grant a new trial if it had considered the motion in the interest of justice, nor do we
suggest that the interest of justice required a new trial. Those are matters to be addressed in the
first instance by the district court.
35
Rachal, 473 F.2d 1338, 1343 (5th Cir. 1973) (recognizing “the
heavier burden which the movant must carry” in a new trial motion
based on newly discovered evidence in contrast to motions “based on
other grounds, which must be made within seven days after
verdict”); 3 CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 551
(3d ed. 2004) (“[M]otions for new trial on the ground of newly
discovered evidence are not favored, and are to be granted with
caution. It is a mistake to extend this proposition to motions for
a new trial because of trial errors or other grounds. Here the
motion should be neither favored nor disfavored, and the question
is only what the interest of justice requires.”) (footnote
omitted). Moreover, the standard chosen by the district court to
analyze a new trial motion will likely have an effect on the
exercise of its discretion: “Just as our standard of review shapes
our decision in this appeal, the standards that guide a trial
court’s Rule 33 analysis shape its review of the trial evidence and
the outcome of defendant’s Rule 33 motion.” United States v.
Ferguson, 246 F.3d 129, 133 (2d Cir. 2001).
b. Interest of Justice and Presence of Legal
Error
A district court may grant a new trial where it “finds that a
miscarriage of justice may have occurred at trial.” Robertson, 110
F.3d at 1120 n.11; see also Ferguson, 246 F.3d at 133 (“[Rule 33]
by its terms gives the trial court broad discretion . . . to set
aside a jury verdict and order a new trial to avert a perceived
36
miscarriage of justice.”) (internal quotation and citation
omitted). A miscarriage of justice warranting a new trial in
certain circumstances may occur even when there has been no
specific legal error. See United States v. Vicaria, 12 F.3d 195,
198–99 (11th Cir. 1994); FEDERAL PRACTICE AND PROCEDURE, supra, § 551.45
United States v. Patterson, 41 F.3d 577 (10th Cir. 1994),
presents a somewhat analogous situation. There the district court
granted a Rule 33 motion for new trial made in the interest of
justice.46 Id. at 579. The defendant’s brother was to testify for
the defendant, and during jury selection and opening statement the
jury was made aware by defense counsel that the brother was present
in the courthouse, would testify for the defense, and had first
45
On this issue, the parties dispute the applicability of United States v. Smith, 67 S. Ct.
1330 (1947). In Smith, the district court stated in granting a motion for new trial: “‘This Court . .
. reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is
our opinion upon this reconsideration that in the interest of justice a new trial should be granted
the defendant.’” Id. at 1331. The district court “assigned no more particular ground for the
order.” Id. When the government filed a petition with the court of appeals for writs directing
that the order be vacated, the district judge responded by referring to the memorandum in which it
granted the motion “but did not further elucidate his reasons for granting a new trial.” Id. The
court of appeals denied the writs. The Supreme Court noted that “[t]he generality of the reasons
assigned by [the district court] for the order in question is all that is required.” Id. at 1332.
However, the Court reversed the court of appeals and issued writs vacating the order for new
trial, holding that a district court could not grant a motion for new trial after its initial denial of the
motion had been affirmed on appeal. Id. at 1333–34. The Supreme Court in Smith also stated
that “[n]ew trials . . . may be granted for error occurring at the trial or for reasons which were
not part of the court’s knowledge at the time of judgment.” Smith, 67 S. Ct. at 1333 (emphasis
added). We conclude that Smith provides no clear guidance on the present issue.
46
The Tenth Circuit’s opinion does not specify when the motion for new trial was filed;
however, the court specifically found “‘that in the interest of justice the defendant should be
granted a new trial.’” Patterson, 41 F.3d at 579. Thus, presumably the motion was filed within
seven days of the verdict.
37
hand knowledge of important facts. However, when it came time for
the brother to testify, he could not be found, even though he had
been present at court earlier that morning. The district court
allowed a short recess to locate the witness, but he still could
not be found. The defendant requested a continuance, which the
district court denied. Id. at 578. Following the jury’s guilty
verdict, the defendant moved for a new trial, submitting an
affidavit from his brother, the missing witness, stating that he
had left the courthouse at lunchtime to run a personal errand, and
that while away, his truck broke down, and he was unable to contact
anyone until later that afternoon, after the verdict. Id.
In granting a new trial, the district court found that “the
absence of [the witness] could have been prejudicial to defendant
because the jury had been told, and was anticipating the testimony
of [the witness], and the fact that he did not testify could have
created an inference that his testimony would not have been
favorable to the defense.” Id. at 579. The district court
“accepted [the witness’s] excuse, giving him the benefit of the
doubt, with a finding that [the witness] may not have been able to
find a telephone to call in the news of his breakdown until it was
too late.” Id.
The Tenth Circuit affirmed the district court, rejecting the
government’s argument that “the trial court could not sustain the
motion for new trial since the court did not make any finding that
38
the initial denial of a continuance was an ‘abuse of discretion.’”
Id. The Tenth Circuit stated that “a trial judge is not obliged to
review his past trial rulings and make an independent judgment that
he himself has ‘abused his discretion’ before granting a new
trial.” Id. The Tenth Circuit concluded that the district court
had not abused its discretion in granting the new trial, id., even
though neither the district court nor the Tenth Circuit pointed to
any specific legal error.
We therefore remand this case to the district court to
consider Scroggins’s motion for new trial in the interest of
justice and conclude that the district court may grant a new trial
in the interest of justice even if it does not find that a specific
legal error occurred at trial. Nevertheless, the district court’s
discretion to grant a new trial, although broad, is not without
bounds. Robertson, 110 F.3d at 1118. See FEDERAL PRACTICE AND
PROCEDURE, supra, § 551 (“The court has discretion in passing on the
[new trial] motion, but it should hold in mind the harmless and
plain error provisions of Rule 52, and refuse to grant a new trial
if the substantial rights of the defendant were not affected.”)
(emphasis added) (footnotes omitted). In appropriate instances, we
have not hesitated to set aside a trial court’s grant of a new
trial in criminal cases. See, e.g., United States v. Logan, 861
F.2d 859 (5th Cir. 1988); United States v. Leal, 781 F.2d 1108,
1111 (5th Cir. 1986). Absent legal error, for the district court
39
to grant a new trial, it must, in the exercise of its discretion,
find either that the absence of Young or Thomas (or both together)
resulted in a manifest injustice and that Scroggins would have
probably been acquitted if the jury had heard their testimonies,
United States v. Sanchez, 969 F.2d 1409, 1414-16 (2d Cir. 1992), or
that, with the additional testimony, the evidence would
“preponderate heavily against the verdict, such that it would be a
miscarriage of justice to let the verdict stand.” Robertson, 110
F.3d at 1118 (emphasis added) (internal citations omitted). In its
analysis, however, the district court “may not reweigh the evidence
and set aside the verdict simply because it feels some other result
would be more reasonable.” Id.
We also emphasize that because we have upheld the district
court’s finding that the government did not interfere with Young
and Thomas, the case for a new trial must be stronger than if the
district court had found governmental interference. The absence of
governmental misconduct means that the district court should grant
the new trial only if it concludes, in the exercise of its
discretion, see United States v. Arroyo, 805 F.2d 589, 599 (5th
Cir. 1986), either that the jury probably would have acquitted
Scroggins with the testimonies of Young or Thomas, rather than
simply that the jury might have acquitted, cf. Sanchez, 969 F.2d at
40
1414-16,47 or that had Young and Thomas testified the evidence would
so heavily preponderate against the verdict that it would be a
miscarriage of justice to let it stand.
c. District Court’s Materiality Determination
Because the district court should consider Scroggins’s motion
for new trial in the interest of justice in the first instance, at
this stage it is not appropriate for us to review the district
court’s finding that Young and Thomas would have given material
testimony if they had testified at trial.48 However, we note that
in any event the record before is not sufficiently developed to
rule on the district court’s materiality determination. The
district court declared in its ruling on the new trial motion that
it had “already determined in open court that the testimony Young
and Thomas were to provide is material”; however, it did not make
any other reference to its materiality determination or to findings
upon which it based its conclusion that their testimony was
material. In the new trial hearing the district court did state
47
In the context of false testimony, the Second Circuit explained in Sanchez that
“[e]ven in a case where perjury clearly has been identified, however, we have
indicated our reluctance to approve the granting of a new trial unless we can say
that the jury probably would have acquitted in the absence of the false testimony.
It is only in the rare instance where it can be shown that the prosecution knowingly
used false testimony that we would apply a less stringent test and permit the
granting of new trial where the jury ‘might' have acquitted absent the perjury.”
Sanchez, 969 F.2d at 1413-14 (emphasis added) (internal citations omitted).
48
The government has argued that the district court was incorrect in concluding that
Young and Thomas were material witnesses.
41
that the witnesses were very important and could have made a
difference; however, the court never did make any specific findings
upon which it based its materiality determination. Furthermore,
during Thomas’s testimony the district court clearly and repeatedly
prevented Scroggins’s counsel from going further into the substance
of what Thomas would have testified to at trial.49 In addition, at
the conclusion of the new trial hearing, the district court again
expressed its view that Young and Thomas were important witnesses,
but expressly instructed the parties to limit their arguments in
their post-hearing briefs to the governmental interference issue,
clearly implying that they were not to address the materiality
issue.
Because the issue of materiality is a mixed question of law
49
Thomas testified at the new trial hearing that: 1) he told the agents that Scroggins did
not sell drugs, but that the agents wanted him to attempt to purchase drugs from Scroggins
anyway; and 2) when he asked Scroggins for drugs, Scroggins said, “You know I don’t do that.”
After hearing this much of Thomas’s substantive testimony, the district court indicated
that Thomas “could have been a very important witness” and repeatedly directed Scroggins’s
counsel to limit the questioning to the issue of governmental interference:
“THE COURT: Let me see if I can be absolutely clear to you. I am satisfied that
[Thomas], testifying as he has testified today, could have made a difference. You
need not go any further into that. The question for you is: Did the government
have something, do something wrong to prevent his testifying? That is all I am
any longer interested in. Proceed.” (emphasis added).
Scroggins’s counsel had more questions to ask concerning Thomas’s substantive testimony, but
finally conceded, after the district court had repeatedly rejected her several attempts to further
pursue what testimony Thomas would have given at trial, that the district court would not let her
go any further on that issue:
“ [Scroggins’s Counsel]: Your Honor, I have no further questions with [Thomas].
I had a lot of other questions regarding the testimony he would have given at trial,
but I can see that Your Honor is not letting me go into that field.
THE COURT: I’m not going any further into that field.”
42
and fact, our review is generally de novo, meaning “we undertake an
independent appellate analysis to determine whether the facts found
by the trial court rise to the level of the applicable legal
standard.” United States v. O’Keefe, 128 F.3d 885, 893–94 (5th
Cir. 1997). In this case the district court did not make any
specific factual findings regarding the testimonies of Young and
Thomas. Its only determinations were that the testimonies were
important and could have made a difference and that it was
interested in them. In any event, with respect to Thomas, the
district court did not allow Scroggins to fully develop the record
concerning the substance of his testimony. Therefore, even if it
were appropriate for us to rule on the district court’s materiality
determination, we could not do so on the record before us.
With the foregoing in mind, in considering Scroggins’s new
trial motion in the interest of justice on remand, the district
court may need to hold a further hearing (if timely and properly
requested to do so by either party).
B. Failure to Issue Bench Warrant and Right to Compulsory
Process
Scroggins argues that he is entitled to a new trial because he
was denied compulsory process when the district court did not issue
bench warrants compelling Young and Thomas to appear. We disagree.
1. Standard of Review
Scroggins did not raise the issue of the district court’s
failure to issue a bench warrant before the district court, either
43
at trial or in his motion for new trial. Therefore, as he is
raising this argument for the first time on appeal, we review it
for plain error. United States v. Serna-Villarreal, 352 F.3d 225,
231 (5th Cir. 2003).
2. Sixth Amendment Right to Compulsory Process
Under the Sixth Amendment, “‘criminal defendants have the
right to the government’s assistance in compelling the attendance
of favorable witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt.’” United
States v. Soape, 169 F.3d 257, 268 (5th Cir. 1999) (quoting
Pennsylvania v. Ritchie, 107 S. Ct. 989, 1000 (1987)). “The
compulsory process right is not absolute, however; when requesting
a court to subpoena a witness, a defendant has the duty to
demonstrate the necessity of the witness’s testimony.” Soape, 169
F.3d at 268 (emphasis added). To show a violation of the
constitutional right, the defendant must show more than that he was
deprived of certain testimony; he must instead “make some plausible
showing of how [that] testimony would have been both material and
favorable to his defense.” United States v. Valenzuela-Bernal, 102
S. Ct. 3440, 3446 (1982).
Therefore, to show a violation of his right to compulsory
process regarding Young or Thomas, Scroggins must have 1) requested
the court to issue a bench warrant compelling the witnesses to
appear and 2) demonstrated the necessity of the witnesses’
44
testimony by making a plausible showing of how their testimony
would have been both material and favorable to his defense. Soape,
169 F.3d at 268.
3. District Court’s “Refusal” to Issue Bench Warrants
a. Freddie Young
Scroggins did not meet his duty of demonstrating the necessity
of Young’s testimony. When Young did not appear in court,
Scroggins’s counsel did not even mention Young by name and did not
say anything about him to show how his testimony would have been
material and favorable.
b. James Thomas
When Thomas did not appear, Scroggins’s counsel briefly
explained the importance of his testimony:
“[Thomas] was referred to in the testimony of Special
Agent Clifton (sic) Simmons, the undercover agent who
conducted the buy [with Earl Buchanan] on November 15,
2000. James Thomas was the confidential informant of the
government who was the go-between between Earl Buchanan,
and his testimony is completely and totally exculpatory
as to what Agent Simmons testified to, and I think he is
crucial to my case.” (emphasis added).
That Thomas’s testimony would be “completely and totally
exculpatory as to what Agent Simmons testified to” is, however,
simply conclusory and does not allege any specific facts that would
lead the trial court to conclude that Thomas’s testimony was both
material and favorable to Scroggins’s defense. See Janecka v.
Cockrell, 301 F.3d 316, 326–27 (5th Cir. 2002) (“Janecka’s
explanation of how Duff-Smith’s testimony might have been material
45
and favorable to his defense is vague at best. He fails to offer
any details regarding what specific information Duff-Smith could
have provided or why Duff-Smith’s testimony would not have been
merely cumulative of other evidence presented at trial.”)50
(emphasis added); United States v. Gonzales, 79 F.3d 413, 424 (5th
Cir. 1996) (“The government may respond [to a defendant’s request
to subpoena a witness] by demonstrating that the facts upon which
the defense relies are inaccurate . . . .”) (emphasis added).
Further, the statement that Thomas’s testimony is “exculpatory as
to what Agent Simmons testified to” did not help Scroggins at
50
In Janecka, the potential witness, Duff-Smith, submitted a signed affidavit stating that
“if given the opportunity [to testify], [he] could provide information and testimonial evidence
relating to defensive strategies for Mr. Janecka’s trial, including but not limited to, exculpatory
evidence, impeachment evidence of State witnesses, rebuttal evidence, as well as mitigation
evidence, if applicable.” Janecka, 301 F.3d at 325–26 n.14. Janecka also submitted that:
“1. Duff-Smith’s testimony would dispute that Janecka was in the chain of
remuneration for this crime;
2. Duff-Smith’s testimony would establish that he did not pay Walt Waldhauser to
pay Janecka to murder;
3. Duff-Smith would testify that various state witnesses were lying;
4. Duff-Smith would testify that if Janecka did murder for hire, he did it out of
duress from the mafia; and
5. Duff-Smith would testify in mitigation of sentence.” Id. at 326.
In spite of these descriptions of Duff-Smith’s potential testimony, the court held that
Janecka had failed to show how the offer of proof could have helped his defense:
“The only specific point Janecka suggests Duff-Smith would have made had he
been able to testify at trial was that he did not pay Waldhauser to hire Janecka to
murder the Wanstraths. . . . Because the State’s theory was that Waldhauser,
rather than Duff-Smith, paid Janecka to kill the Wanstraths, any evidence that
Duff-Smith did not intend for Waldhauser to hire Janecka would have been of little
value.” Id. at 327.
Scroggins’s description of Thomas’s potential testimony is less helpful than Janecka’s in
making a plausible showing of how Thomas’s testimony would have been material and favorable
to his defense.
46
all—even if specific facts had been given. Simmons testified merely
to identify the cocaine purchased by the government in the
controlled buy with Buchanan on November 15, 2000. None of his
testimony implicated Scroggins and it is not clear how Thomas’s
testimony would have been “exculpatory as to what Agent Simmons
testified to.” It was Buchanan that later testified that the drugs
that he sold that day were supplied by Scroggins. Because Scroggins
failed to make the required plausible showing of the need for
Thomas’s testimony, Scroggins’s right to compulsory process was not
violated by a failure to issue the bench warrant.51
Moreover, Scroggins did not explicitly request that the
district court issue bench warrants to compel the presence of the
witnesses. When Thomas did not appear at trial on Wednesday
morning, the following exchange took place between the district
court and Scroggins’s counsel:
“[Scroggins’s Counsel]: I have three [witnesses] that are
not here and I—I have subpoenaed. I may want writs
issued and—
THE COURT: Have you talked to them?
[Scroggins’s Counsel]: I talked to two of them last
night, and the other one, even though I’ve subpoenaed
him, paid his witness fees, done everything properly, he
51
Scroggins relies on United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993). In
Simpson the defendant specifically asserted facts that directly contradicted testimony of a police
officer. The defendant asserted that the witness “was allegedly standing about twenty-five feet
from [the police officer] and Simpson during the encounter, witnessed the frisk and did not see a
bag, or any other object, fall out of Simpson’s pocket.” Id. at 1230. “This testimony, if believed
by the jury, could have substantially undercut the Government’s case.” Id. In contrast, the
description of Thomas’s testimony by Scroggins’s counsel was merely conclusory and did not
present specific facts to undercut the government’s case.
47
is not responding and I have a feeling that—
* * *
THE COURT: When did the subpoena say he should appear?
[Scroggins’s Counsel]: The subpoena had told him to
appear on Monday, and we called all of our witnesses and
left messages to come Wednesday.
THE COURT: Then I hope he is here. These last-minute
actions on your—just if he’s not here, we’re going on.
[Scroggins’s Counsel]: Then I’ll—
THE COURT: A bench warrant will take anywhere from a day
to a week to execute.
[Scroggins’s Counsel]: Then I’d like to make a comment on
the record as of what I think happened.
* * *
THE COURT: I suggest you send [the defense investigator]
out to find him, because you’re going to need him and I’m
not going to delay this trial any further.” (emphasis
added).
Scroggins contends that his trial counsel was about to request a
bench warrant and did not only because of the district court’s
implicit rejection of the anticipated request and that he was not
required to “continue fighting” with the district court once it had
indicated that it would not issue a bench warrant.
We recognize that at times a party in Scroggins’s position may
be excused from explicitly making a request for a bench warrant for
a material witness. An arguably analogous situation is when a party
is excused from raising objections to proposed jury instructions:
“A party may be excused from the requirement of making a
specific objection only where the party’s position
previously has been made clear to the trial judge and it
is plain that a further objection would be unavailing.
Only when the appellate court is sure that the trial
court was adequately informed as to a litigant’s
contentions may the appellate court reverse on the basis
of jury instructions to which there was no formal
objection.” Russell v. Plano Bank & Trust, 130 F.3d 715,
48
720 (5th Cir. 1997) (internal quotations and citations
omitted).52
Projecting this excuse for failure to object to jury instructions
to the present situation, in order for Scroggins to be excused for
not requesting a bench warrant, Scroggins would have to show that
1) he previously made clear to the district court his position that
Thomas was a materially favorable witness and that he needed a bench
warrant to compel Thomas’s attendance and 2) it is plain that a
further request for a bench warrant would be unavailing.
Based on the trial judge’s statements that “[a] bench warrant
will take anywhere from a day to a week to execute,” “if he’s not
here, we’re going on,” and “I’m not going to delay this trial any
further,” particularly in light of Scroggins’s counsel’s statement
that “I may want writs issued” for the missing witnesses, it is
plain that it would have been unavailing for Scroggins to request
a bench warrant for Thomas. Nevertheless, as discussed above,
Scroggins did not successfully make clear his position, other than
in mere conclusory terms, that Thomas was a materially favorable
witness. Therefore, Scroggins’s failure to explicitly request a
bench warrant is not excused, further supporting the conclusion that
the failure to issue a bench warrant for Thomas was not plain error.
C. Ineffective Assistance of Counsel
52
Although Russell involves a rule of civil procedure, FED. R. CIV. P. 51, the parallel rule
under the rules of criminal procedure, FED. R. CRIM. P. 30, has the same objection, and excuse for
failure to object, requirements. United States v. Redd, 355 F.3d 866, 874 (5th Cir. 2003).
49
On the final issue concerning Scroggins’s missing witnesses,
Scroggins contends that he should be granted a new trial because his
trial counsel’s failure to request a continuance upon the
nonappearance of Young and Thomas was ineffective assistance of
counsel. Because Scroggins did not properly raise it before the
district court, we decline to address the merits of Scroggins’s
ineffective assistance of counsel claim.
During the new trial hearing, Scroggins’s counsel asserted that
she had requested a continuance when Young and Thomas did not appear
at trial; however, the district court could not recall the request
or find it in the trial transcript. In the brief in support of the
motion for new trial, requested by the district court at the end of
the January 2003 hearing, Scroggins’s counsel continued to assert
that she had made such a request,53 even though no evidence of the
request for a continuance could be found in the record.54
Scroggins’s counsel then argued in the brief that if the district
court believed that she did not request a continuance, the failure
53
With his brief in support of his motion, Scroggins filed an unsworn statement from
Bryant’s counsel stating that she remembered that Scroggins’s counsel had requested a
continuance. Scroggins also pointed to the government’s memorandum in support of its response
to Scroggins’s motion—filed before Scroggins raised the ineffective assistance of counsel claim in
his brief and before preparation of the trial transcript—where the government states that
Scroggins had requested a continuance when Scroggins’s witnesses did not show up and that the
district court had denied the request.
54
We have found no indication of a request for a continuance made by Scroggins at trial;
on appeal, Scroggins has conceded that no such request is found in the record or on the backup
tapes of the trial. Scroggins has not sought to correct or supplement the record under FED. R.
APP. P. 10(e) or otherwise.
50
to do so was ineffective assistance of counsel—because Young and
Thomas were the “most crucial part” of the defense trial strategy.
In denying Scroggins’s motion for new trial, the district court did
not mention the ineffective assistance issue.
In general, we do not resolve claims of ineffective assistance
of counsel on direct appeal when the claim has not been raised
before the district court since there was no opportunity to develop
the record on the merits of the claim. United States v. Higdon, 832
F.2d 312, 313–14 (5th Cir. 1987).
Scroggins did not properly raise the ineffective assistance of
counsel issue before the district court. Even though “issues raised
for the first time in post judgment motions are preserved for
appeal,” Instone Travel Tech Marine & Offshore v. Int’l Shipping,
334 F.3d 423, 431 n.7 (5th Cir. 2003), Scroggins’s attempt to raise
the claim did not properly bring it before the district court.
Scroggins did not raise the claim in his new trial motion or in the
hearing on the motion, but only after the hearing and without
amending his previously filed motion. Further, because the claim
was raised in conjunction with a request for a new trial made more
than seven days after the verdict, Scroggins was at that time
limited to moving for a new trial only on the basis of newly
discovered evidence, Rule 33(b)(2), and we have held that “a Rule
33 motion, filed more than seven days after the verdict and premised
on ‘newly discovered evidence,’ is an improper vehicle for raising
51
a claim of ineffective assistance of counsel.” United States v.
Medina, 118 F.3d 371, 372 (5th Cir. 1997) (citing Ugalde, 861 F.2d
at 807–09). Therefore, we decline to address the merits of
Scroggins’s ineffective assistance of counsel claim; however, we do
so without prejudice to Scroggins’s right to raise the issue
pursuant to 28 U.S.C. § 2255. See Higdon, 832 F.2d at 314.
II. Prosecution’s Misstatement of the Law in Closing Arguments
Scroggins contends that a new trial is justified because the
government misrepresented an element of the conspiracy charge during
its closing arguments. During trial there was evidence that
Scroggins was a drug addict. During its rebuttal at closing
argument, the government referred to this:
“And if Mr. Donald Scroggins is a drug addict, where,
ladies and gentlemen, where was he getting the drugs?
For him to get cocaine necessarily means that he’s
involved in cocaine trafficking. There’s two people in
that conspiracy right there: the person he got the drugs
from and himself.”
Scroggins, however, did not object to the government’s argument.
Scroggins argues that this comment misstates the elements of
a conspiracy by implying that a mere buyer-seller relationship was
sufficient to establish a conspiracy. As Scroggins has not shown
that he was prejudiced by this comment, we decline to reverse his
conviction on this basis.
Objections to comments made during closing arguments that are
raised for the first time on appeal are reviewed for plain error.
United States v. Flores-Chapa, 48 F.3d 156, 159 (5th Cir. 1995).
52
Plain error is reviewed using a three-part test: “First, there must
be error, next, that error must be plain, and finally, the error
must affect substantial rights.” Id. If we find such plain error,
we have the discretion to correct the error, but are not required
to do so. United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
“Plain errors affecting substantial rights should be corrected on
appeal only if they seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal
quotations and citations omitted).
“Proof of a buyer-seller agreement, without more, is not
sufficient to tie a buyer to a conspiracy.” United States v.
McKinney, 53 F.3d 664, 672 (5th Cir. 1995). For the government to
argue that because Scroggins uses drugs, for “him to get cocaine
necessarily means that he’s involved in cocaine trafficking” implies
that merely because Scroggins buys drugs from a seller, he is
involved in a conspiracy. Such an implication is legally erroneous.
This error, however, did not affect Scroggins’s substantial
rights and did not “seriously affect the fairness, integrity, or
public reputation” of the proceeding. Vital, 68 F.3d at 119. We
therefore decline to reverse on this basis.
There is a significant amount of testimony, besides Scroggins’s
characteristic as a drug addict-buyer, to support a jury finding
that Scroggins was involved in a conspiracy. Further, the district
court properly instructed the jury on the elements of a drug
53
conspiracy and told the jury to base their verdict on the evidence
presented through witness testimony and not on the argument of
counsel. See United States v. Ellender, 947 F.2d 748, 758 (5th Cir.
1991). Finally, the complained of statement was but a very small
portion of the prosecutor’s arguments and there was no other like
statement or implied assertion that the mere buyer-seller
relationship equated to a conspiracy. Scroggins has not
demonstrated prejudice because of the prosecutor’s statement.
III. District Court’s Refusal to Grant Access to the Presentence
Reports for Key Witnesses
Scroggins claims that the district court erred when it denied
his pretrial request that the government produce the presentence
reports (PSRs) for two key government witnesses, Earl Buchanan and
Gregory Byrd, that had been produced in connection with their drug
prosecutions. The district court denied the motion without giving
any reasons and without any indication that it had reviewed the
reports in camera.
United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994),
presents a similar situation and describes the proper result. In
Carreon, the defendant had “requested access to the PSRs of [the
coconspirator] witnesses in order to acquire any exculpatory or
impeachment information under Brady and Giglio.” Id. at 1238. We
held that the district court erred in denying the request and
remanded the case so that the district court could inspect the PSRs
and “determine whether [the defendant] was in fact denied access to
54
material Brady or Giglio information and, if so, whether he suffered
prejudice as a result of this denial.” Id.
Similar to Carreon, Scroggins requested access to the PSRs of
key government witnesses. The district court denied the request,
without indicating whether it had conducted an in camera review of
the PSRs and without making the PSRs part of the record. We
therefore remand the case in order for the district court to
“1) conduct an in camera inspection and make appropriate
findings as to whether the PSRs of the government
witnesses contained any material Brady or Giglio
information, and 2) compare those findings against the
evidence [Scroggins] had at trial to determine whether
the failure to provide this information was harmless
error. So that these findings and conclusions are
reviewable on appeal, we require that the district court
ensure that these PSRs are made a part of the record,
albeit under seal if need be.” Id.
IV. Information Relied on by the District Court at Sentencing
Scroggins argues that information upon which the district court
relied in setting his sentence did not bear a sufficient indicia of
reliability. Scroggins specifically objects to information and
testimony provided by Buchanan concerning the amount of crack
cocaine involved in the conspiracy of which Scroggins was convicted
and Scroggins’s alleged obstruction of justice. In both instances,
Buchanan was the only source upon which the guideline calculation
was based. Scroggins claims that because the information relied
upon by the district court at sentencing is inconsistent with
Buchanan’s testimony at trial, and is also hearsay, the information
55
could not properly be used to set Scroggins’s sentence.55
A. Standard of Review
Factual findings under the Sentencing Guidelines are reviewed
for clear error. United States v. Reinhart, 357 F.3d 521, 525 (5th
Cir. 2004). Findings as to the amount of drugs attributable to a
defendant and that a defendant has obstructed justice are both
factual findings reviewed for clear error. United States v.
Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998) (quantity of drugs);
United States v. Rickett, 89 F.3d 224, 226 (5th Cir. 1996)
(obstruction of justice). “The district court’s findings are not
clearly erroneous if they are plausible in light of the record
reviewed in its entirety.” United States v. Solis, 299 F.3d 420,
455 (5th Cir. 2002) (internal quotation and citation omitted).
B. District Court’s Findings
The district court found that “there’s no doubt in [its] mind
from the testimony at trial and the testimony hear today that Mr.
Scroggins was involved in a conspiracy that dealt in more than 1.5
kilograms of crack cocaine.”56 The district court also found that
55
Scroggins asserts that much, if not all, of Buchanan’s testimony was rejected by the jury
by its acquittal of Scroggins on count 2 and Bryant on count 1, and therefore, that Buchanan’s
testimony cannot be relied upon at sentencing. As “the jury cannot be said to have necessarily
rejected any facts when it returns a general verdict of not guilty,” United States v. Watts, 117
S. Ct. 633, 637 (1997), the acquittals are essentially immaterial as to whether Buchanan’s
testimony could have been relied on for sentencing purposes.
56
Even though the PSR indicated that Scroggins had trafficked in more than 1.5 kilograms
of crack cocaine, because the Sentencing Guidelines mandate the statutory-maximum life sentence
56
Buchanan had testified that “Mr. Scroggins tried to get him to take
the charges” and applied the obstruction of justice enhancement.
We review whether these findings are plausible in light of the
record in its entirety.
C. Obstruction of Justice
Buchanan was the only source indicating that Scroggins merited
the obstruction of justice enhancement under U.S.S.G. § 3C1.1. At
trial on redirect examination, Buchanan testified that Scroggins and
Bryant had asked him not to testify at their trial and promised him
financial support for not testifying.
Scroggins raises this issue because the district court’s
finding, and the PSR upon which the district court presumably based
its finding, differed from Buchanan’s actual testimony. The PSR
stated that Buchanan “testified in court [that Scroggins] tried to
get him to ‘take the charges’ so [Scroggins] could get away with
being prosecuted for any criminal behavior and [Scroggins] would
take care of [Buchanan] if he were to do this for him.” In making
its finding, the district court repeated the substance of the PSR:
“Buchanan has testified that Mr. Scroggins tried to get him to take
for 1.5 kilograms or more of crack cocaine, U.S.S.G. § 2D1.1(c)(1), any amount of crack over
1.5 kilograms is irrelevant. The district court pointed this out at the beginning of the sentencing
hearing. Because the amount of cocaine powder involved in the conspiracy is not close to the
amount needed to uphold Scroggins’s life sentence—150 kilograms or more, id.—the amount of
powder cocaine is also irrelevant for purposes of analyzing the validity of Scroggins’s life
sentence.
57
the charges.” Our review of Buchanan’s testimony at trial—upon
which the PSR and the district court supposedly relied—does not
disclose any specific “take the charges” testimony.
Nevertheless, the district court’s ultimate finding that
Scroggins merited the obstruction of justice enhancement, in respect
to his efforts to use Buchanan to obstruct justice with reference
to his trial, is sufficiently supported by the record. Buchanan
testified that Scroggins: asked him not to testify in Scroggins’s
trial, promised him financial support if he did not testify, and
asked him not to say anything about Scroggins at the trial. As the
district court’s finding of obstruction of justice is plausible in
light of the record reviewed in its entirety, the finding is not
clearly erroneous. Solis, 299 F.3d at 455.
D. Amount of Crack Cocaine
1. Buchanan’s Information
Buchanan was the only source—either at trial or at
sentencing—for the amount of crack cocaine involved in the
conspiracy. At sentencing, Agent Green testified that Buchanan had
told him in an interview that Scroggins had trafficked in at least
ten kilograms of cocaine, seven of which were cocaine powder and
three of which were crack cocaine.57
At trial, however, Buchanan did not testify to the amounts he
57
Although Green's testimony at sentencing did not give the time frame of Buchanan's
estimate, Scroggins's PSR did limit Buchanan’s information to the period of the conspiracy.
58
had communicated to Green. Buchanan first testified that Scroggins
was purchasing cocaine from Shirley Preston from the end of 1998 to
the end of 1999 or the first part of 2000. These purchases
consisted of one or two kilograms of cocaine at a time, occurred
approximately once a month, but sometimes less frequently, and
consisted of powder cocaine only. When Buchanan sold this cocaine
for Scroggins, some of it was in the crack form. Regarding the
cocaine purchased from Preston, Buchanan’s testimony of the amount
of crack cocaine was as follows:
“[Gov’t]: Do you know approximately how much crack you
sold?
[Buchanan]: No, sir. More powder than crack.
[Gov’t]: Was it more than 50 grams of crack?
[Buchanan]: Yes, sir.”
Buchanan then testified that Scroggins purchased cocaine from David
Sosa starting in the first part of 2000. These purchases consisted
of one to two kilograms at a time and occurred approximately once
a month. Buchanan testified that this cocaine consisted in all of
about five kilograms—one kilogram of crack and four of powder.
2. Amount of Drugs and Inconsistent Information
In making factual findings under the Sentencing Guidelines,
“the district court may consider any information which bears
sufficient indicia of reliability to support its probable accuracy,
including hearsay evidence, without regard to admissibility under
the Federal Rules of Evidence which govern at trial.” Solis, 299
F.3d at 455 (emphasis added) (internal quotation and citation
59
omitted). Even when a witness has “told lies and contradicted
himself,” although it “creates a credibility question for the
district court to resolve,” the testimony may still bear a
sufficient indicia of reliability. United States v. Ramirez, 963
F.2d 693, 708 (5th Cir. 1992).
Specifically with respect to calculating the amount of drugs,
the Seventh and Third Circuits have addressed the question of how
a district court should deal with inconsistencies and contradictions
among the different testimonies of the same witness or between a
sworn testimony of a witness and a hearsay statement of that
witness. In United States v. Beler, 20 F.3d 1428 (7th Cir. 1994),
the district court relied on two affidavits from a government
witness and the trial testimony of a second witness in calculating
the drug amount. Id. at 1430. The information and testimony from
the witness who supplied the affidavits was: 1) at trial, the
witness was unable to estimate the quantity of cocaine he had
purchased from the defendant; 2) the first affidavit, signed prior
to the defendant’s sentencing, stated that the witness had purchased
150 to 200 ounces of cocaine from the defendant; and 3) the second
affidavit stated that the amount in the first affidavit was
incorrect because of a typographical error and that the correct
amount should have been 15 to 20 ounces of cocaine. Id. The
Seventh Circuit found that the district judge’s conclusory finding
as to the reliability of the second affidavit was not acceptable and
60
held that the district court should have further explored the
factual basis for the estimate before accepting the amount as
uncontroverted. Id. at 1433–34. The Seventh Circuit also
recognized that “the district court should have subjected any
information provided by [this witness] to special scrutiny in light
of his dual status as a cocaine addict and government informant.”
Id. at 1435. The district court in Beler, because of these
inconsistencies among the witness’s affidavits and his trial
testimony, clearly erred when it did not subject the affidavits to
“searching scrutiny.” Id. at 1435. Nevertheless, the Seventh
Circuit noted that on remand, this witness was not barred from
providing drug quantity information, provided that “the district
court scrutinize that information to ensure that it possesses
sufficient indicia of reliability to support its probable accuracy.”
Id. (internal quotation and citation omitted). In United States v.
McEntire, 153 F.3d 424, 437 (7th Cir. 1998), the court was faced
with a situation analogous to that in Beler and reached the same
result, remanding for the district court to directly address the
contradiction and explain why it credited one statement rather than
the other.
In United States v. Brothers, 75 F.3d 845 (3d Cir. 1996), a
coconspirator testified at the sentencing hearing that the defendant
“never knew the amount of cocaine involved”; however, the FBI agent
who had initially interviewed the coconspirator gave hearsay
61
testimony at sentencing that the coconspirator had stated earlier
that the defendant did know of the amount of drugs involved in the
transaction. Id. at 847. The Third Circuit went on to emphasize
that, in general, hearsay evidence can be proper sentencing
evidence—and it may even be credited “over sworn testimony,
especially where there is other evidence to corroborate the
inconsistent hearsay statement.” Id. at 848 (internal quotation and
citation omitted). Although the district court gave reasons why it
believed that the hearsay evidence from the FBI agent was more
credible than the testimony of the coconspirator, id. at 850, the
Third Circuit concluded that the reasons could not support the
district court’s conclusion. Id. at 853.
These cases illustrate the following principles in the context
of calculating the amount of drugs for sentencing purposes: 1) a
witness’s inconsistent and contradictory testimonies, be they from
sworn testimony or hearsay, may properly form the basis for
calculating the amount of drugs; 2) however, in cases of
inconsistent or contradictory statements from the same witness, the
district court must sufficiently scrutinize the evidence, and 3)
provide a rationale in the record for why it chose to believe one
inconsistent statement over another.
3. District Court’s Reliance on Buchanan’s Information
a. Hearsay Evidence
We reject Scroggins’s contention that the district court could
62
not have relied on Green’s testimony of what Buchanan told him
because it was hearsay. As a district court may properly rely on
hearsay evidence at sentencing, Solis, 299 F.3d at 455, the hearsay
nature of Green’s testimony, by itself, does not create any error.
b. Amount of Drugs
In sum, Buchanan’s versions of the amount of crack cocaine for
which Scroggins was responsible included: 1) trial testimony of at
least 1.05 kilograms, but with Buchanan unable to know the
approximate total amount (more than fifty grams from Preston, and
one kilogram from Sosa); and 2) information given to Green of about
three kilograms. While the amounts differ, the two accounts would
not necessarily be inconsistent but for Buchanan’s testimony that
he did not know approximately how much of the Preston-cocaine was
crack cocaine.
We conclude that the district court did not sufficiently
scrutinize Buchanan’s inconsistent statements and did not provide
a rationale in the record for believing one version over another.
In detailing its findings, the district court stated that it had
relied on the testimony at trial and at sentencing, but it did not
say anything about the differences between Buchanan’s trial
testimony and the information Buchanan gave Green and of which Green
testified at sentencing.
It also appears that in arriving at its finding, the district
court was confused, and likely influenced, by other evidence given
63
at the sentencing hearing and in the PSR concerning the amount of
cocaine. Green also testified at sentencing that Scroggins had told
Green that he had received one to two kilograms of cocaine
approximately every two weeks for about a three- to four-month
period.58 On cross-examination, Green added that this purchase-
pattern could have resulted in at least 6 kilograms of cocaine, but
that it could have been more. Green, however, did not distinguish
at all between powder or crack cocaine. Nevertheless, as
Scroggins’s counsel was giving her closing statements at sentencing,
it was apparent that there was confusion about whether Green had
testified about powder or crack cocaine:
“[Scroggins’s Counsel]: . . . And unless the Court is
believing solely and only the testimony of Earl Buchanan,
. . . then the Court could find reason for giving Mr.
Scroggins less than life based upon the testimony of
Agent Green in that he used the statements that Mr.
Scroggins gave to him as being between 6 and 8 kilograms
of powder cocaine.
THE COURT: Crack cocaine.
[Scroggins’s Counsel]: No, I believe that he said powder
cocaine. Now, Mr.—
THE COURT: I think he said both. I think he said 3
kilograms of crack. Was that—
[Scroggins’s Counsel]: Mr. Buchanan testified to crack.
THE COURT: Yes.
[Scroggins’s Counsel]: But not Mr. Scroggins—
THE COURT: Well, I understand.
[Scroggins’s Counsel]: —in his reports to Agent Green,
and I’m asking you to use that as your basis for lowering
him below the life sentence range.” (emphasis added).
The district court then overruled Scroggins’s objection to the
amount of crack cocaine and reiterated its finding that Scroggins
58
Green gave essentially the same testimony at trial.
64
was responsible for at least 1.5 kilograms of crack cocaine.59
Our review of the record indicates that Green did not testify
specifically about crack or powder cocaine; Buchanan was the only
source at trial or at the sentencing hearing that gave information
about the amount of crack cocaine. We believe that the district
court’s confusion as to the content of Green’s testimony, which was
most likely due to a misrepresentation in the addendum to the PSR,60
likely influenced the district court’s conclusion regarding the
amount of crack cocaine involved in the conspiracy. If the district
court thought that Green’s testimony of what Scroggins told him
included amounts of crack cocaine over 1.5 kilograms, it would not
have been particularly concerned about the differences in Buchanan’s
information, perhaps explaining why the district court did not
attempt to address the differences.
59
1.5 kilograms of crack cocaine resulted in a minimum (and maximum) guideline
sentence of life imprisonment. The next lowest category of crack cocaine volume is .5 to 1
kilogram, under which the guidelines sentencing range would have been 360 months to life.
60
The PSR concluded that a “conservative best estimate” of the amount of crack cocaine
involved was at least three kilograms. Scroggins objected by arguing that that amount of crack
cocaine was based entirely on Buchanan’s information. The government responded by arguing
that Scroggins’s own statements to Green that Scroggins had purchased approximately one to
two kilograms of cocaine approximately every two weeks for a three- to four-month period
corroborated Buchanan’s information given to Green. The second time the government referred
to Scroggins’s statements to Green, it stated that the Scroggins’s statement was “just one instance
in which [Scroggins] admitted to drug trafficking activities in excess of 1.5 kilograms of crack
cocaine.” (emphasis added). The addendum to the PSR agreed with the government’s position.
In spite of the government’s claim that Scroggins referred to crack cocaine in his
statements to Green, we have not found any such reference in the record. Both at trial and at
sentencing when Green testified about his conversations with Scroggins, he did not distinguish at
all between powder and crack cocaine.
65
Therefore, we remand the case for resentencing with respect to
the quantity of crack cocaine (and, should it become relevant, the
quantity of powder cocaine).
Conclusion
Based on the foregoing, we REMAND the case to the district
court to consider Scroggins’s motion for new trial in the interest
of justice (Part I.A.4 hereof above). We also REMAND in order for
the district court to review the PSRs of Earl Buchanan and Gregory
Byrd to determine whether these PSRs include any material Brady or
Giglio information to which Scroggins was denied access (Part III
hereof above). Finally, we VACATE Scroggins’s sentence as to the
quantity of crack cocaine and REMAND for resentencing not
inconsistent with this opinion (Part IV.D hereof above).61 We
reject all other points of error raised by Scroggins and affirm the
district court’s rulings in the respects challenged.62
61
Of course, resentencing would not be appropriate if the district court, pursuant to our
remand, first sets aside the conviction.
62
Scroggins has raised three other issues that we decline to review. Scroggins first raises
two arguments that he concedes are foreclosed in this circuit. Scroggins argues that 21 U.S.C. §
841(b)(1)(A) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
therefore, that he should have been sentenced in accordance to § 841(b)(1)(C). Scroggins
concedes that this argument is foreclosed in this circuit. See United States v. Slaughter, 238 F.3d
580 (5th Cir. 2000), cert. denied, 121 S. Ct. 2015 (2001); United States v. Fort, 248 F.3d 475,
483 (5th Cir.), cert. denied, 122 S. Ct. 405 (2001). Scroggins also argues that because he has
been sentenced on the basis of thirty times more cocaine base than he was charged with without
being afforded a jury finding regarding the amount determined at sentencing, his resulting
sentence violates due process. Nevertheless, Scroggins concedes that this argument has been
foreclosed in this circuit. See, e.g., United States v. Keith, 230 F.3d 784, 786–87 (5th Cir. 2000),
cert. denied, 121 S. Ct. 1163 (2001); United States v. Salazar-Flores, 238 F.3d 672, 673–74 (5th
Cir. 2001). As Scroggins raises these arguments merely to preserve Supreme Court review,
66
SENTENCE VACATED
CAUSE REMANDED
concedes that they are foreclosed, and does not develop the arguments whatsoever, we do not
review these claims.
Scroggins has also filed a supplemental brief in which he claims that under the recent
Supreme Court case of Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (U.S. June 24,
2004), his sentence is unconstitutional. Although we granted Scroggins’s June 29, 2004 motion
to file a supplemental brief on the issue, our order doing so states that the order granting the
motion does not constitute a determination that any issue raised pursuant to the motion was
properly or timely before us. As Scroggins did not raise the issue in his initial brief, reply brief,
oral argument, or earlier supplement briefs, but nearly two months after oral arguments, we
decline to address this issue now, particularly as Scroggins’s argument is foreclosed in this circuit
by United States v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004), in which we held that Blakely
does not invalidate the Federal Sentencing Guidelines. Even if we were to review the issue,
Scroggins concedes that we would do so under the plain error standard. In light of Pineiro, there
cannot have been plain error.
67