United States v. Redd ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2009
No. 06-60806 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STARSKY DARNELL REDD; CHARLES H WELLS; DELORES BROWN
REDD; SIMON L. TAYLOR
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CR-24-WS
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
I. INTRODUCTION
The indictment in this case charged nine persons with conspiracy to
launder money and various substantive counts of money laundering. Those
charged included Starsky Darnell Redd (“Starsky”), Delores Brown Redd
(“Delores”), Simon L. Taylor, and Charles H. Wells (collectively “Appellants”).
After a jury trial, each Appellant was convicted on at least one count of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-60806
indictment. Appellants now appeal their convictions on various grounds. For
the reasons that follow, we AFFIRM the district court’s judgment in all respects.
II. FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial showed that Starsky has been dealing drugs since he
was in high school. In 1994, Starsky began dealing drugs with a man named
Billy Joe Smith. They bought their drugs from three individuals in Dallas,
Texas, and used couriers to transport the drugs from Dallas to Jackson,
Mississippi via Greyhound bus.
Two years later, in 1996, the Government alleges Starsky began funneling
his drug proceeds through other people to purchase property for himself.
Delores and Hutsut Redd, Starsky’s parents, paid $10,000 down on a house
located at 711 Barwood Drive, which the Government contends was actually paid
out of Starsky’s drug proceeds. Also, on August 1, 1996, Simon Taylor, a friend
of Starsky’s, paid $21,101.87 for a blue-green 1993 Suburban, which he titled in
his own name. The Government alleges that this money likewise came from
Starsky’s drug trafficking proceeds.
In May 1997, Starsky was arrested while loading 200 pounds of marijuana
into the blue-green Suburban Taylor had purchased the previous year. Taylor
still claimed that the Suburban belonged to him and that Starsky had borrowed
it without his permission. The Mississippi Bureau of Narcotics returned the car
to Taylor, but, according to Taylor, he was so embarrassed about the Suburban
being involved in a drug bust, he parked it in a pasture for a few months and
then sold it.
That same month, $11,000 cash was deposited into Taylor’s business bank
account, and Taylor withdrew $11,000 from his business bank account to pay for
Starsky’s bail and attorney’s fees. There was also a $5,000 deposit in Taylor’s
personal bank account from Arcadian Homes, which was allegedly compensation
for construction work Taylor had performed. Then Taylor wrote a $5,000 check
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from his personal bank account to pay Starsky’s remaining attorney’s fees.
Taylor testified that all the money he used to pay for Starsky’s bond and
attorney’s fees was his own.1
On July 31, 1998, Taylor purchased a 1995 Lexus for $29,340, again
obtaining title in his own name. Evidence at trial showed that Delores drove the
Lexus most of the time and that the car was repossessed at her home in 2000.
On February 9, 1999, Starsky paid $5,000 or $6,000 cash for a 1974
Oldsmobile 88. Starsky used the car as his own, but the car’s title was in
Delores’s name and the certificate of title reflected her home address.
Starsky also purchased a 1997 Mercedes through a man named Vernon
Archer, Jr. Archer paid for the Mercedes with $20,000 cash given to him by
Starsky, and made subsequent payments on the car using Starsky’s money. In
December of 1999, Archer decided that he no longer wanted the Mercedes in his
name, so the title was transferred to Charles Wells, a used car salesman to
whom Starsky and Honer had sold a one-half kilo of cocaine for $12,000. Wells
admitted that he was asked by “a subject” to place the Mercedes in his name and
that he was paid a fee to assume the title and never take possession of the car.
On February 11, 2000, Starsky gave his friend, Billy Tucker, $14,300 cash
to purchase a 1995 Tahoe. Tucker signed Starsky’s name to the sales contract
and registered the vehicle in the name of “Lil Mann Records,” which was a
record label Starsky had started in 1996.
In mid-2000, Tucker also helped Starsky orchestrate a $100,000 drug
shipment. However, Tucker struck a deal with the Federal Bureau of
Investigation (FBI); he would receive $30,000 in exchange for his cooperation.
Based on information from Tucker, a narcotics task force intercepted a tractor-
trailer carrying ten kilos of cocaine and 775 pounds of marijuana. The drivers
1
The charges stemming from Starsky’s 1997 arrest were ultimately dismissed because
the drugs and all the evidence were lost.
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of the tractor-trailer led the task force to a parking lot adjacent to 4125 West
Northside Drive, a building where Starsky kept his office. Starsky was shot in
an altercation with the police, arrested, and taken to the hospital.
At the hospital, Delores discussed with Tucker and others how to avoid the
seizure of Starsky’s assets. Delores told Tucker that she planned to return the
1995 Lexus to Taylor because he had a business that could support the purchase.
Taylor again helped with Starsky’s attorney’s fees, signing over his interest in
a bond totaling $6,441.50 with interest to Starsky’s attorney. Delores sold
several of Starsky’s assets and signed a promissory note on her home to secure
Starsky’s remaining attorney’s fees.
Based on these facts, among others, Appellants were charged in a multi-
count indictment for conspiracy to commit money laundering and various
substantive counts of money laundering. A jury found Starsky guilty of
conspiracy to commit money laundering and four substantive counts of money
laundering; Delores was found guilty of conspiracy to commit money laundering
and two substantive counts of money laundering; Wells was found guilty of one
substantive count of money laundering; and Taylor was found guilty of
conspiracy to commit money laundering. Appellants now challenge their
convictions on various grounds.
III. DISCUSSION
Because there are multiple Appellants, each with various grounds for
appeal, we will separately address each Appellant and his or her arguments.
A. STARSKY REDD
1. Speedy Trial
a. Statutory Claims
Starsky contends that the district court violated his statutory right to a
speedy trial. “We review ‘the factual findings supporting a Speedy Trial Act
ruling for clear error and the legal conclusions de novo.’” United States v. Parker,
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505 F.3d 323, 326 (5th Cir. 2007), cert. denied, 128 S. Ct. 1323 (2008) (quoting
United States v. Narviz-Guerra, 148 F.3d 530, 538 (5th Cir. 1998)).
The Speedy Trial Act requires commencement of trial within seventy non-
excludable days of the information or indictment, or when the defendant first
appears before the court, whichever is later. 18 U.S.C. § 3161(c)(1) (1990)
(current version at 18 U.S.C. § 3161 (2008)). Certain actions toll the seventy-day
clock. Parker, 505 F.3d at 326; see § 3161(h). For example, the speedy trial clock
is tolled “during all delays between the filing of a motion [including one by a co-
defendant] and the conclusion of the hearing on that motion, regardless of
whether the delay in holding that hearing is ‘reasonably necessary.’” Parker,
505 F.3d at 327 (internal quotation marks and citations omitted). The speedy
trial clock is likewise tolled for “[a] reasonable period of delay when the
defendant is joined for trial with a codefendant as to whom the time for trial has
not run and no motion for severance has been granted.” § 3161(h)(7). Finally,
“a district court [may] grant a continuance and . . . exclude the resulting delay
if the court, after considering certain factors, makes on-the-record findings that
the ends of justice served by granting the continuance outweigh the public’s and
defendant’s interests in a speedy trial.” Zedner v. United States, 547 U.S. 489,
498-99 (2006) (citing § 3161(h)(8)).
In the present case, the last co-defendant was arraigned on March 22,
2004, which would normally prompt the speedy trial clock to commence running.
See § 3161(c)(1). The clock was tolled during the following periods of delay
occasioned by motions for continuance filed or joined in by the defendants:
March 19, 2004 through July 11, 2005; September 15, 2005 through November
28, 2005; and January 3, 2006 through February 21, 2006 (when trial began).
See §§ 3161(h)(1)(F), 3161(h)(8)(A).
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Additionally, on July 14, 2005, the Government filed a Motion for Inquiry
into Potential Conflict of Interest.2 The district court resolved and disposed of
the conflict-of-interest issue on September 14, 2005. Accordingly, the speedy
trial clock was tolled between July 14 and September 14, 2005. See
§§ 3161(h)(1)(F), 3161(h)(8)(A).
In sum, the only non-excludable periods of time were (1) three days
between July 11 and July 14, 2005; and (2) thirty-six days between November
28, 2005 and January 3, 2006. Because only thirty-nine days lapsed on the
speedy trial clock, Starsky’s rights under the Speedy Trial Act were not violated.
See § 3161(c)(1).
b. Constitutional Claims
Starsky also contends that the district court violated his constitutional
right to a speedy trial under the Sixth Amendment to the United States
Constitution. “The standard of review for Sixth Amendment claims is
bifurcated.” Parker, 505 F.3d at 328. First, we review findings of fact for clear
error. United States v. Frye, 372 F.3d 729, 735 (5th Cir. 2004). Under the clear
error standard, this court “‘defer[s] to the findings of the district court unless
[this court is] left with a definite and firm conviction that a mistake has been
committed.’” Id. (quoting Payne v. United States, 289 F.3d 377, 381 (5th Cir.
2002)). Second, we review the district court’s evaluation and balancing of the
four factors articulated in Barker v. Wingo, 407 U.S. 514 (1972). It is unsettled
in our circuit whether the district court’s balancing of the Barker factors is
reviewed de novo or for clear error. Parker, 505 F.3d at 328. We need not
resolve this issue here because the Government prevails under either standard.
2
As reflected by the docket entry dated March 29, 2005, Chokwe Lumumba, counsel
for Starsky, Delores, and Sheneatha Brown, was suspended from the practice of law by the
Mississippi Supreme Court. Lumumba’s suspension was the basis for the Government’s
motion.
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In Barker, the United States Supreme Court set forth four factors to
consider in analyzing Sixth Amendment claims: “(1) length of the delay, (2) the
reason for [the delay], (3) the defendant’s diligence in asserting his Sixth
Amendment right, and (4) prejudice to the defendant resulting from the delay.”
Parker, 505 F.3d at 328 (quoting United States v. Hernandez, 457 F.3d 416, 420
(5th Cir. 2006)). “In undertaking a ‘full Barker-analysis,’ we initially look to ‘the
first three factors . . . in order to determine whether prejudice will be presumed
or whether actual prejudice must be shown.’” Hernandez, 457 F.3d at 421
(quoting Frye, 372 F.3d at 736). “Prejudice may be presumed where the first
three factors weigh ‘heavily’ in the defendant’s favor.” Id. However, “if the first
three factors do not weigh so heavily as to justify a presumption of prejudice,
then the defendant bears the burden of both establishing actual prejudice and
demonstrating that such prejudice is sufficient to outweigh the other three
factors.” United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2007), cert. denied,
128 S. Ct. 941 (2008) (quoting United States v. Serna-Villarreal, 352 F.3d 225,
230 (5th Cir. 2003)). “It will be the unusual case . . . where the time limits under
the Speedy Trial Act have been satisfied but the right to a speedy trial under the
Sixth Amendment has been violated.” United States v. Bieganowski, 313 F.3d
264, 284 (5th Cir. 2002).
The Supreme Court has described the length-of-delay factor as “a
triggering mechanism.” Barker, 407 U.S. at 530; see also United States v.
Jackson, 549 F.3d 963, 971 (5th Cir. 2008). The accused must “allege that the
interval between accusation and trial has crossed the threshold dividing
ordinary from ‘presumptively prejudicial’ delay,” and then we must consider “the
extent to which the delay stretches beyond the bare minimum needed to trigger
judicial examination of the claim.” Doggett v. United States, 505 U.S. 647,
651–52 (1992). Generally, this Court has presumed prejudice from pretrial delay
“only in cases in which the post-indictment delay lasted at least five years.”
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Serna-Villarreal, 352 F.3d at 232. A one-year delay is generally sufficient to
warrant a full analysis of the Barker factors. Id. at 230.
Twenty-three months lapsed from the time the last co-defendant was
arraigned until jury selection initiated the trial. Because this interval is longer
than one year, we engage in a full Barker analysis; however, twenty-three
months is insufficient to prompt a presumption of prejudice, and it does not
weigh heavily in Starsky’s favor. See Serna-Villarreal, 352 F.3d at 230–32.
Reasons for the delay in the present case weigh against Starsky. This case
was complex, involving multiple defendants with varying roles and more than
9,000 pages of financial documents comprising discovery. Furthermore, much
of the delay resulted from the multiple continuances granted at Starsky’s
request. Finally, there is no support in the record for Starsky’s allegation that
the Government caused the delay in a tactical effort to secure testimony
advantageous to its case.
The third factor considers Starsky’s diligence in asserting his Sixth
Amendment right. Given Starsky’s concession that this factor does not weigh
in his favor and the fact that Starsky’s own motions resulted in multiple delays,
this factor weighs against Starsky.
The final factor we must consider is the prejudice Starsky suffered as a
result of the delay. The Sixth Amendment’s Speedy Trial Clause contemplates
three types of prejudice: (1) “‘oppressive pretrial incarceration,’” (2) “‘anxiety and
concern of the accused,’” and (3) “‘the possibility that the [accused’s] defense will
be impaired’ by dimming memories and loss of exculpatory evidence.” Doggett,
505 U.S. at 654 (quoting Barker, 407 U.S. at 532) (alteration in original).
Starsky was already in custody for a previous conviction, so he did not suffer
oppressive pretrial incarceration. See Jamerson v. Estelle, 666 F.2d 241, 244
(5th Cir. 1982); see also Kowey v. Collins, 980 F.2d 1445, 1992 WL 366435, at *2
(5th Cir. Dec. 10, 1992) (unpublished opinion). While Starsky argues that he
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No. 06-60806
suffered “anxiety and concern,” he offers no evidence indicating that his alleged
anxiety was “of such an extreme degree that it differed in any way from that
which would naturally be expected to accompany a defendant’s awareness of
pending charges.” Goodrum v. Quarterman, 547 F.3d 249, 263 (5th Cir. 2008),
petition for cert. filed (U.S. Oct. 30, 2008) (No. 08-7121). Lastly, despite his
allegations to the contrary, Starsky points to no evidence in the record
demonstrating that the delay was a product of the Government’s litigation
strategy.
In sum, Starsky was not denied his constitutional right to a speedy trial
under the Sixth Amendment.
2. Starsky’s 1997 Arrest for Possession with Intent to Distribute
Marijuana
Before opening statements, the district court heard Starsky’s motion in
limine to prevent the Government from presenting evidence of Starsky’s 1997
arrest for attempted possession of marijuana with intent to distribute. That
charge was ultimately dismissed with prejudice on the Government’s motion
because the evidence had been destroyed. The district court denied Starsky’s
motion in limine. Starsky again objected at trial when the evidence was
received, and the district court overruled his objection. On appeal, Starsky
argues that the district court erred on grounds of collateral estoppel and res
judicata by admitting into evidence Starsky’s 1997 arrest.
Neither collateral estoppel nor res judicata applies to the present case
because no issues were determined in the prior case, negating collateral
estoppel, and the causes of action are different and arise from different
transactions, negating res judicata. United States v. Yeager, 521 F.3d 367, 371
(5th Cir. 2008), cert. granted, 129 S. Ct. 593 (U.S. Nov. 4, 2008) (No. 08-67);
Stevenson v. Int’l Paper Co., 516 F.2d 103, 108-09 (5th Cir. 1975).
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3. Internal Revenue Service (IRS) Agent Jerry Porter’s
Testimony3
IRS Agent Porter testified at trial that neither Delores nor Taylor had
sufficient legitimate funds to make the purchases that were the subjects of their
indictments. Agent Porter’s testimony is now being challenged on appeal on the
grounds that he acted as an expert witness without having been tendered and
accepted by the court as an expert.
When the complaining party fails to object at trial, as is the case here, we
review a district court’s evidentiary ruling only for plain error. United States v.
Thompson, 454 F.3d 459, 464 (5th Cir. 2006).4 To demonstrate plain error, the
district court must have committed an error that was clear or obvious and that
affected the defendant’s substantial rights. Id. Even if the district court plainly
erred, we will not correct the error unless “‘the error has a serious effect on the
3
Starsky, Delores and Simon Taylor all challenge Agent Porter’s testimony as
impermissible expert testimony. This section addresses each of their challenges on this issue.
4
Taylor concedes that we should review this issue as it pertains to him only for plain
error. Starsky and Delores, however, advocate for an abuse-of-discretion standard. We
conclude that neither Starsky nor Delores properly objected so as to warrant review under the
less strict abuse-of-discretion standard. Before trial, Starsky’s attorney made a motion in
limine to the court, which Delores joined, noting that Agent Porter had not been designated
as an expert witness and objecting to any testimony by Agent Porter concerning “ultimate
conclusions of fact, whether the case amounts to money laundering or not, and whether this
would be a typical money laundering activity.” The district court declined to rule on the motion
and responded that Defendants could object to the questions as they were asked. The only
time Starsky’s counsel objected to Agent Porter’s testimony as improper expert testimony was
after the prosecutor asked Agent Porter how to determine whether drug proceeds were
involved in financial transactions. But this portion of Agent Porter’s testimony is not that
which is being challenged on appeal. When the prosecutor solicited from Agent Porter the
testimony at issue on appeal, namely whether Delores and Taylor had “sufficient legitimate
sources or a legitimate source of funds” to have made their respective purchases, Starsky’s
counsel objected but without stating the grounds for the objection, and Delores’s counsel
objected only to foundation, not that such testimony constituted impermissible expert
testimony. Accordingly, we review this issue as it pertains to Starsky, Delores, and Taylor for
plain error only.
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No. 06-60806
fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting
United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2005)).
Federal Rule of Evidence 701 governs the admissibility of opinion
testimony by lay witnesses. “[T]he distinction between lay and expert witness
testimony is that lay testimony results from a process of reasoning familiar in
everyday life, while expert testimony results from a process of reasoning which
can be mastered only by specialists in the field.” United States v. Yanez Sosa,
513 F.3d 194, 200 (5th Cir. 2008) (internal quotation marks and citations
omitted). This Court has “allowed lay witnesses to express opinions that
required specialized knowledge” where “[n]o great leap of logic or expertise was
necessary for one in [the witness’s] position to move from his observation . . . to
his opinion.” United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997) (citing
Soden v. Freightliner Corp., 714 F.2d 498, 510–12 (5th Cir. 1983)); see also
United States v. Grote, 632 F.2d 387, 390 (5th Cir. 1980) (allowing an IRS official
to compare a defendant’s tax returns by characterizing some as “acceptable”).
“‘[T]he modern trend favors the admission of opinion testimony, provided that
it is well founded on personal knowledge and susceptible to specific
cross-examination.’” Riddle, 103 F.3d at 429 (quoting Teen-Ed, Inc. v. Kimball
Int’l, Inc., 620 F.2d 399, 403 (3d Cir. 1980)).
The district court did not plainly err by admitting Agent Porter’s
testimony concerning whether Delores had sufficient legitimate funds to
purchase her home. Agent Porter personally investigated the money laundering
charges against Appellants. Agent Porter studied Delores’s “income tax
documentation, and records relating to [her and her husband’s] . . . financial
information,” including her and her husband’s multiple bankruptcies. Agent
Porter also compared Delores’s and her husband’s combined monthly income
against their combined monthly expenses as stated in one of the bankruptcy
petitions, which indicated that for one month in particular, after living expenses,
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No. 06-60806
they had $193.07 left to spend. Additionally, Agent Porter’s investigation
revealed that Delores’s husband’s loan history between 1996 and 2001 included
substantial consumer loans at high interest rates. Equipped with personal
knowledge that Delores had little, if any, disposable income, multiple
bankruptcies, a foreclosure on her prior home, no filed tax returns of her own,
and her husband’s high interest consumer loans, “no great leap of logic or
expertise was necessary” for Agent Porter to conclude that Delores did not have
sufficient legitimate funds to purchase her home. He was merely a vehicle for
publishing this evidence to the jury. Therefore, the district court did not plainly
err in admitting his testimony.
Likewise, the district court did not plainly err by admitting Agent Porter’s
testimony that Taylor did not have sufficient funds to purchase the vehicles that
were the subjects of his indictment or to pay for Starsky’s attorney’s fees. Agent
Porter investigated Taylor’s finances by reviewing his tax returns, his loan
history, and his personal and business bank accounts. Based on his personal
knowledge of Taylor’s finances, it was “no great leap of logic” for Porter to
conclude that Taylor did not have sufficient legitimate funds to pay for Starsky’s
attorney’s fees and purchase a Suburban, a Lexus, and a Chevrolet Impala.
As for any argument that there were other potential sources of unreported
income that Appellants could have used to finance their respective purchases
and expenditures, Appellants could have illuminated this point on
cross-examination of Agent Porter. We do not find plain error in the district
court’s admission of Agent Porter’s testimony as to whether the Appellants had
sufficient legitimate funds to make the purchases at issue.5
5
Taylor also argued in his appellate brief that Agent Porter impermissibly testified as
to the ultimate issue of the case. “[T]estimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier
of fact.” FED. R. EVID. 704(a). Moreover, Porter did not testify to the ultimate issue of the case,
namely whether the defendant conspired to or actually entered into a financial transaction
which the defendant knew involved the proceeds of illegal activity and which the defendant
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4. Jury Instructions
a. Denial of the Specific Intent Instruction
At trial, Starsky requested an instruction that stated:
The crimes charged in this case are serious crimes which require
proof of specific intent before the defendant can be convicted.
Specific intent, as the term implies, means more than the general
intent to commit the act. To establish specific intent, the
government must prove that the defendant knowingly did an act
which the law forbids purposely intending to violate the law. Such
intent may be determined from all the facts and circumstances
surrounding the case. An act or failure to act is knowingly done if
done voluntarily and intentionally and not because of mistake or
accident or some innocent person.
The district court denied Starsky’s instruction and instructed the jury as follows:
For you to find any defendant guilty of this crime, you must be
convinced that the Government has proved each of the following
beyond a reasonable doubt. First, that the defendant knowingly
conducted a financial transaction. Secondly, that the financial
transaction involved the proceeds of a specified unlawful activity,
namely, illegal drug trafficking. Thirdly, that the defendant knew
that the property involved in the financial transaction represented
the proceeds of some form of unlawful activity. And fourthly, that
the defendant knew that the transaction was designed in whole or
in part to conceal or disguise the nature, location, source, ownership
or control of the proceeds.6
The court further instructed the jury:
The word knowingly, as that term has been used from time to time
in these instructions, means that the act was done voluntarily and
intentionally, not because of mistake or accident. So to say that
knew was designed to conceal or disguise the nature, location, source, ownership, or control of
the proceeds. Porter simply testified as to whether Taylor and Delores had sufficient
legitimate funds to support particular expenditures. Taylor’s ultimate-issue argument is
without merit.
This instruction partially mirrors Fifth Circuit Pattern Jury Instructions: Criminal
§ 2.76 (2001), which addresses the laundering of monetary instruments under 18
U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i).
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No. 06-60806
someone acts knowingly means that the person acted voluntarily
and intentionally and not because of mistake or accident.7
Starsky now challenges the district court’s denial of his proffered instruction.
This Court reviews a district court’s denial of a proffered jury instruction for
abuse of discretion. United States v. Porter, 542 F.3d 1088, 1093 (5th Cir. 2008).
A district court abuses its discretion in denying a requested instruction if
the instruction: (1) was a substantively correct statement of the law, (2) was not
substantially covered in the charge as a whole, and (3) concerned an important
point in the trial such that the failure to instruct the jury on the issue seriously
impaired the defendant’s ability to present a given defense. Id. (citing United
States v. Jobe, 101 F.3d 1046, 1059 (5th Cir. 1996)). If the instruction sought
fails to meet any one of these three conjunctive elements, the trial judge acts
within his discretion in declining to accept that jury instruction. Id.Starsky’s proposed instruction fails to satisfy the second and third prongs
of the Jobe test. The district court’s instruction substantially covered Starsky’s
requested instruction. Furthermore, Starsky never argued at trial that although
he did the acts knowing that they would conceal or disguise, he did not intend
them to have that effect. Without advancing this argument at trial, Starsky
cannot claim on appeal that his ability to present a given defense was
substantially impaired. Thus, the district court was within its discretion in
denying Starsky’s specific intent instruction.
b. Denial of the DR-10 Instruction
Starsky contends that the district court abused its discretion by denying
his proffered instruction stating, “payments for personal benefit out of previously
laundered proceeds do not themselves constitute money laundering nor do
expenditures for personal consumption unless they are designed to conceal the
nature or source of the money.” Starsky complains that no other instruction
7
See Fifth Circuit Pattern Jury Instructions: Criminal § 1.37.
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mentioned spending for personal benefit or consumption. Again, Starsky cannot
satisfy the Jobe test. The only legally relevant portion of Starsky’s requested
instruction is that the expenditures at issue cannot constitute money laundering
unless designed to conceal the nature or source of the money. The district court
instructed the jury that the transactions had to have been “designed in whole or
in part to conceal,” and therefore substantially covered the subject matter of the
requested charge. Thus, the second element of Jobe is not met.
c. The Term “Proceeds”
The district court instructed the jury members that, in order to convict,
they must find, among other things, that “the financial transaction involved the
proceeds of a specified unlawful activity, namely, illegal drug trafficking,” and
that “proceeds from an illegal activity can include any property or any interest
in property that someone acquires or retains as a result of the commission of the
underlying specified unlawful activity. . . . Proceeds can be any kind of property,
not just money.” Starsky contends on appeal that the district court should have
limited its definition of “proceeds” to include only “profits.”
Where a party fails to object on specific grounds to the district court’s jury
charge, we review only for plain error. FED. R. CRIM. P. 30, 52(b); United States
v. Redd, 355 F.3d 866, 874–75 (5th Cir. 2003). Starsky concedes that his failure
to object in the district court results in a plain error standard of review,
discussed above. “Error in a [jury] charge is plain only when, considering the
entire charge and evidence presented against the defendant, there is a likelihood
of a grave miscarriage of justice.” United States v. Sellers, 926 F.2d 410, 417
(5th Cir. 1991).
In United States v. Santos, 128 S. Ct. 2020 (2008), a four-justice plurality
concluded that the term “proceeds” in 18 U.S.C. § 1956(a)(1) (2008) means
“profits,” not “receipts.” Id. at 2025. Justice Stevens concurred in the judgment,
agreeing with the ultimate conclusion that a gambling business’s revenue used
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to pay essential operating expenses is not “proceeds” under § 1956, but
interpreting “proceeds” to mean “profits” for some predicate crimes and
“receipts” for other predicate crimes. Id. at 2033 (Stevens, J., concurring).
This Court has already had occasion to comment on Santos. In United
States v. Brown, No. 05-20997, 2008 WL 5255903 (5th Cir. Dec. 18., 2008), we
noted that “not even after Santos is the law ‘clear’ on what the prosecution
should be required to prove as ‘proceeds’ in [a case involving the illegal sale of
prescription drugs]; or, if profits must be proved, how this must be done under
these circumstances.” Id. at *10. Thus, any error by the district court was
neither clear nor obvious. Furthermore, even if the district court had limited the
term “proceeds” to “profits,” the error did not affect Starsky’s substantial rights.
See id. In discussing how profits may be proven, Justice Scalia explained in
Santos:
The “proceeds of specified unlawful activity” are the proceeds from
the conduct sufficient to prove one predicate offense. Thus, to
establish the proceeds element under the “profits” interpretation,
the prosecution needs to show only that a single instance of specified
unlawful activity was profitable and gave rise to the money involved
in a charged transaction. . . . What counts is whether the receipts
from the charged unlawful act exceeded the costs fairly attributable
to it.
Santos, 128 S. Ct. at 2029. Here, there was ample evidence that Starsky’s drug
trafficking was profitable. “Having provided evidence of this, the [G]overnment
has sufficiently supported its case.” Brown, 2008 WL 5255903 at *10.
d. Supplemental Instructions8
Approximately two and one-half hours into its deliberations, the jury
submitted the following question to the district court: “Dear Honorable Judge
8
In addition to Starsky, Delores and Taylor also challenge the district court’s
supplemental jury instructions. We address their arguments collectively in this section of the
opinion.
16
No. 06-60806
Wingate, we, the Jurors, are requesting a copy of the codes, C-O-D-E-S (U.S.),
you disclosed in the court pertaining [to] this case. Thank you.” After
summoning the jury, the district court stated:
I have here a note . . . I don’t quite understand the note. If you are
asking for Sections 1956 and also for the ones charged in the
indictment, the Court provides the elements of that charge to you.
You don’t see the code itself. Now, if you wish to have any matters
reread to you, to have 1956 reread to you or 1957, any one or all of
those, I will reread them to you and tell you what the law is
concerning those specific matters.
So 1956(h) and 1956(a)(1) and 1957 are the three codes that [are]
mentioned in the indictment. Now, if those are the ones that you
are referring to, then I will reread the elements in the entirety to
you with regard to all three of those if you wish me to do so.
The jury took a brief recess to determine exactly what it wanted the district
court to do. While the jury was out, the district court asked counsel, “is there
any objection to the procedure I’ve just explained to the jury from the
Government?” Neither the prosecution nor any of the defense counsel objected.
The jury came back from recess and asked for the information to be read in its
entirety again.
The supplemental instructions lasted approximately two and one-half
hours, during which time no defendant made an objection or sought leave to
approach the bench. After the court finished its supplemental jury instructions,
Delores’s counsel objected that the instructions advocated the Government’s
theory of the case, did not include foreseeability as an element of coconspirator
liability, and overemphasized coconspirator liability as well as the lack of
necessity for a formal agreement. No other Defendant joined Delores’s objection
until the following morning. Appellants now argue on appeal that the district
court’s supplemental instructions were unnecessarily long, repetitious, and
confusing; they overemphasized the Government’s version of the facts; they
overemphasized conspiracy; and they incorrectly instructed the jury on the
17
No. 06-60806
essential elements of Pinkerton coconspirator liability,9 aiding and abetting,10
and money laundering.11
We will only review the district court’s supplemental instructions to the
jury for plain error. Where a party fails to object on specific grounds to the
district court’s jury charge, this court reviews only for plain error. FED. R. CRIM.
P. 30, 52(b); Redd, 355 F.3d at 875. Despite Appellants’ claim that the district
judge committed obvious error by failing to read verbatim the original jury
instructions, nobody found the error so obvious at trial so as to object, ask to
9
The supplemental instruction on coconspirator liability stated:
It is a kind of partnership in crime in which each member becomes the agent of
every other member. . . . In a business partnership, then one person can go and
purchase something for the partnership, not pay for it, and both parties are
liable. Even the one who didn’t go and actually buy it, because if they are in
business as a partnership, then each one of the partners can enter into a
contract for the other. But here notice I said it is a kind of partnership in crime
in which each member becomes the agent of every member. So what one
member does as part of a conspiracy is attributable to the other member who is
part of that conspiracy. If I were to conspire with three people to violate the
law, if one of those persons in furtherance of that agreement does something,
then I am liable for what that person does if it was in furtherance of our
agreement, even though I didn’t do it.
10
The district court instructed the jury:
If I enter into an understanding with another person that we are going to
violate the law, then I don’t have to do everything to violate that law so long as
my partner does something in furtherance of our understanding that we are
going to violate the law. . . . The law recognizes that ordinarily anything a
person can do for him or herself may also be accomplished by him or her through
the direction of another person as his or her agent or by acting in concert with
or under the direction of another person or persons in a joint effort or enterprise.
11
The portion of the supplemental charge that Appellants take issue with reads as
follows:
In order for there not to have been a violation, if you were to find that drug
money was used, if you were to find that the party knew that it was drug
money, if you were to find that the individual had no intentions whatsoever of
trying to conceal the ownership, the source of the money, but even if there are
other reasons, so long as that element is shown, then a defendant would be
guilty.
18
No. 06-60806
approach the bench, request to be heard on the matter outside the presence of
the jury, or proffer curative instructions. Appellants subsequent objections
simply were not timely, and therefore result in a plain error standard of review.
“Error in a [jury] charge is plain only when, considering the entire charge and
evidence presented against the defendant, there is a likelihood of a grave
miscarriage of justice.” Sellers, 926 F.2d at 417.
In reviewing supplemental jury instructions, we are “‘guided by lofty, but
very general, propositions and admonitions.’” United States v. Le, 512 F.3d 128,
132 (5th Cir. 2007), cert. denied, 129 S. Ct. 55 (2008) (quoting United States v.
Carter, 491 F.2d 625, 633 (5th Cir. 1974)). We “consider[] whether ‘the court’s
answer was reasonably responsive to the jury’s questions and whether the
original and supplemental instructions as a whole allowed the jury to
understand the issue presented to it.’” Id. (quoting United States v. Cantu, 185
F.3d 298, 306 (5th Cir. 1999)). “‘Particularly in a criminal trial, the judge’s last
word is apt to be the decisive word. If it is a specific ruling on a vital issue and
misleading, the error is not cured by a prior unexceptional and unilluminating
abstract charge.’” Id. (quoting Bollenbach v. United States, 326 U.S. 607, 612,
(1946)). “The district court must meet ‘the high standard of balance and fairness
necessary to assure [the] defendant a fair trial.’” Id. (quoting Carter, 491 F.2d
at 633). “Accordingly, the touchstone of the inquiry might be described as
whether there was prejudice to the defendant.” Id.Here, the supplemental instructions do not constitute plain error. The
district court only instructed the jury as to what the Government had alleged or
contended, and therefore did not overemphasize the Government’s theory of the
case. Nor did the district court abuse its discretion in describing money
laundering under § 1956. The supplemental instructions repeatedly made clear
that, to satisfy the intent element of money laundering, a defendant must, in
whole or in part, intend to conceal or disguise the source or ownership of the
19
No. 06-60806
money. The supplemental instruction on aiding and abetting tracked statutory
language and the language of the statute’s commentary. See 18 U.S.C. § 2(2000). Assuming arguendo that the district court’s explanation of coconspirator
liability should have included the requirement that the coconspirator’s act be
“reasonably foreseeable” to the defendant, such an omission does not constitute
plain error. Our precedent approves of, and widely accepts, jury instructions
articulating Pinkerton’s requirements for coconspirator liability in the
disjunctive. See, e.g., United States v. Thomas, 348 F.3d 78, 84–85 (5th Cir.
2003); see also Fifth Circuit Pattern Jury Instructions: Criminal § 2.22. The
original instructions in the present case articulated both requirements of
coconspirator liability, and therefore we cannot say that “there is a likelihood of
a grave miscarriage of justice.” Sellers, 926 F.2d at 417. Under a plain error
standard of review, the district court’s supplemental instructions are not
grounds for reversal.
5. Sufficiency of the Evidence
This Court’s review of the sufficiency of the evidence following a criminal
conviction is narrow and highly deferential to the verdict. Redd, 355 F.3d at
872. We will affirm the conviction if “‘a rational trier of fact could have found
that the evidence established the essential elements of the offense beyond a
reasonable doubt.’” United States v. Klein, 543 F.3d 206, 212 (5th Cir. 2008),
petition for cert. filed (U.S. Jan. 13, 2009) (No. 08-8207) (quoting United States
v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)). “‘We must consider the
evidence, all reasonable inferences drawn therefrom, and all credibility
determinations in the light most favorable to the prosecution.’” Id. (quoting
Westbrook, 119 F.3d at 1189). “If ‘the evidence viewed in the light most
favorable to the prosecution gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence,’ a defendant is entitled to a
judgment of acquittal.” United States v. Brown, 186 F.3d 661, 664 (5th Cir.
20
No. 06-60806
1999) (quoting United States v. Schuchmann, 84 F.3d 752, 754 (5th Cir. 1996)).
Given our very narrow and highly deferential standard of review, and given that
we must view the evidence in a light most favorable to the prosecution, there
was sufficient evidence to support Starsky’s convictions.
6. District Court’s Use of the 2005 Sentencing Guidelines
Starsky challenges the district court’s application of the 2005 Sentencing
Guidelines rather than the 2000 Sentencing Guidelines. He argues that the
district court (1) violated United States v. Booker, 543 U.S. 220 (2005), by using
a preponderance of the evidence standard to find the existence of a post-
November 1, 2001 conspiracy; and (2) violated the Ex Post Facto Clause of the
United States Constitution. We review the district court’s application of the
Sentencing Guidelines de novo and its fact findings for clear error. United States
v. Washington, 480 F.3d 309, 312 (5th Cir. 2007).
Here, the district judge did not violate Booker because, as our circuit
precedent expressly states, “[t]he sentencing judge is entitled to find by a
preponderance of the evidence all the facts relevant to the determination of a
Guideline sentencing range.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005). The court did not clearly err in finding that the end date of the conspiracy
was February 2002. This date is well beyond the effective date of the challenged
November 1, 2001 sentencing enhancements for money laundering.
7. Starsky’s Sentence
This Court’s review of sentencing decisions is limited to determining
whether such decisions are “reasonable.” Gall v. United States, 128 S. Ct. 586,
594 (2007). In determining whether a sentence is reasonable, we engage in a
bifurcated analysis. United States v. Armstrong, 550 F.3d 382, 404 (5th Cir.
2008). First, we examine whether the district court committed any significant
procedural error, including: “(1) failing to calculate (or improperly calculating)
the applicable Guidelines range; (2) treating the Guidelines as mandatory; (3)
21
No. 06-60806
failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining a sentence
based on clearly erroneous facts; or (5) failing to adequately explain the chosen
sentence, including an explanation for any deviation from the Guidelines range.”
Id. We review the district court’s interpretation or application of the Guidelines
de novo, and its factual findings for clear error. Id. “‘There is no clear error if
the district court’s finding is plausible in light of the record as a whole.’” Id.(quoting United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).
Starsky argues procedural error on two grounds: (1) that the district court
improperly calculated his sentence because the district court relied on facts not
found by a jury beyond a reasonable doubt, and (2) that the district court did not
openly consider the § 3553(a) factors. The first point is foreclosed by circuit
precedent. See Mares, 402 F.3d at 519. Because Starsky was sentenced post-
Booker under an advisory guidelines scheme, the judge was entitled to find
sentencing factors by a preponderance of the evidence. United States v. Stevens,
487 F.3d 232, 246 (5th Cir.), cert. denied, 128 S. Ct. 336 (2007). As for the second
point, this Court has expressed its belief that “‘Congress never intended . . . for
sentencing to become a hyper-technical exercise devoid of common sense.’”
United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir. 2001) (quoting United
States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000)). “‘Implicit
consideration of the § 3553[(a)] factors is sufficient.’” Id. (quoting United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996)). The district court expressly stated
at Starsky’s sentencing, “I have considered the advisory guidelines computation
and the sentencing factors under 18 U.S.C. § 3553(a) one through seven.” The
district court sufficiently considered the § 3553(a) factors.
Because the district court’s sentencing decision was procedurally sound,
we move to the second step of the analysis, namely whether the sentence was
substantively reasonable. Armstrong, 550 F.3d at 404. A sentence within a
properly-calculated Guidelines range is presumed reasonable. United States v.
22
No. 06-60806
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). A defendant’s dissatisfaction with the
result of the district court’s reasoned analysis of the § 3553(a) factors is
insufficient to overcome the presumption of reasonableness. See Gall, 128 S. Ct.
at 597. Starsky has only advanced arguments pertaining to procedural error,
and as such has failed to rebut the presumption of reasonableness that
accompanies a within-Guidelines sentence.
B. DELORES REDD
1. Admissibility of Clarence Honer’s Testimony
At trial, Delores’s counsel objected to the following testimony by Clarence
Honer: “Q. And did [Starsky] tell you anything about 711 Barwood? A. Yes. He
told me he had put $10,000 down on that house when he purchased it.” Delores
argues that to be admissible, Starsky’s statement had to be the statement of a
coconspirator during the course and in furtherance of the conspiracy under
Federal Rule of Evidence 801(d)(2)(E); the statement could not be admitted as
an admission by a party opponent under Federal Rule of Evidence 801(d)(2)(A).
Delores further argues that the admission of such testimony violated Bruton v.
United States, 391 U.S. 123 (1968),12 and deprived her of the Sixth Amendment
right to confrontation.
Because Delores’s counsel properly objected at trial, we review the district
court’s admission of Honer’s testimony under the deferential abuse-of-discretion
standard. United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008). “‘A trial
court abuses its discretion when its ruling is based on an erroneous view of the
law or a clearly erroneous assessment of the evidence.’” Id. (quoting Yanez Sosa,
513 F.3d at 200). We heighten our review of evidentiary rulings in criminal
12
This case provides that in the specific context of a joint trial, “[a] defendant’s Sixth
Amendment right to confrontation is violated when (1) several co-defendants are tried jointly,
(2) one defendant’s extrajudicial statement is used to implicate another defendant in the crime,
and (3) the confessor does not take the stand and is thus not subject to cross-examination.”
United States v. Restrepo, 994 F.2d 173, 186 (5th Cir. 1993) (citing Bruton, 391 U.S. at 127).
23
No. 06-60806
trials. Id. An abuse of discretion in admitting or excluding evidence is subject
to harmless error review. Yanez Sosa, 513 F.3d at 201. Likewise, we review
Bruton issues for abuse of discretion. United States v. Walker, 148 F.3d 518, 522
(5th Cir. 1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162(2001).
Federal Rule of Evidence 801 states in relevant part that a statement is
not hearsay and is thus admissible if “[t]he statement is offered against a party
and is . . . the party’s own statement, in either an individual or a representative
capacity.” FED. R. EVID. 801(d)(2)(A). In the present case, Honer’s testimony
was only admissible against Starsky under Federal Rule of Evidence
801(d)(2)(A), since an admission, by definition, is a statement offered against a
party that is “the party’s own statement.” See United States v. Mann, 161 F.3d
840, 861 n.55 (5th Cir. 1998); see also United States v. Simmons, 374 F.3d 313,
321 (5th Cir. 2004) (noting that in the context of a joint trial for conspiracy, a
defendant’s admissions were admissible against him under Federal Rule of
Evidence 801(d)(2)(A)).
Notwithstanding the testimony’s admissibility as an admission, the
testimony still must pass muster under Bruton, if it applies. See Walker, 148
F.3d at 522. Bruton does not apply unless a defendant’s statement directly
incriminates his or her codefendants without reference to other, admissible
evidence. Id. at 523 n.4 (quoting United States v. Beaumont, 972 F.2d 91, 95
(5th Cir. 1992), abrogated on other grounds by Ratzlaf v. United States, 510 U.S.
135 (1994)). Honer’s testimony concerning Starsky’s statement does not directly
incriminate, identify, or implicate Delores. Accordingly, Bruton does not apply
and the district court did not abuse its discretion by admitting Honer’s
testimony.
2. Admissibility of “Business Documents” Seized at 711 Barwood
24
No. 06-60806
Delores challenges the admissibility of “business documents” seized from
711 Barwood, including various invoices, receipts, and bills. As each document
was offered at trial, Delores objected to hearsay and relevance. She contends on
appeal that such documents were not business records and therefore not within
the business records hearsay exception under Federal Rule of Evidence 803(6).
We review the district court’s ruling under the same heightened abuse of
discretion standard discussed in section III.B.1 of this opinion.
Statements not offered for the truth of the matter asserted are not hearsay
and may be properly admitted into evidence. United States v. Gonzales, 606 F.2d
70, 77 (5th Cir. 1979). None of the receipts, statements, or bills were offered into
evidence in an effort to demonstrate that their content was truthful. Rather,
these documents were offered into evidence to show where they were found and
that Delores was aware of the conspiracy to launder money. Because these
documents are not hearsay, the district court did not abuse its discretion in
overruling Delores’s hearsay objection.
3. Admissibility of Handwritten Documents Seized at 711
Barwood
The district court admitted into evidence two telephone/address books with
handwritten entries, and sheets of paper with handwritten names and phone
numbers of alleged drug dealers working for Starsky, all of which were seized by
the FBI during a search of 711 Barwood. Delores argues that these documents
did not satisfy Federal Rule of Evidence 803(6), the business records exception
to the hearsay rule, and that they were not properly authenticated under
Federal Rule of Evidence 901(a). We apply the same heightened abuse of
discretion standard of review described in Section III.B.1 of this opinion.
For the same reasons stated in the preceding section, the handwritten
documents were likewise not offered for the truth of the matter asserted, and
therefore did not constitute hearsay.
25
No. 06-60806
With respect to authentication, the Government did not contend that this
book was Delores’s book, rather a Government witness testified that it was found
at her house. FBI Agent Beverly Williams testified that the address book
contained the names and phone numbers of individuals from Texas and
Mississippi who were purported to be Starsky’s drug associates. Honer had
testified earlier in the trial that these same individuals were indeed Starsky’s
drug associates. Agent Porter’s testimony linked the telephone number for
Roderick Lavallies13 in the address book to calls made from Delores’s home.
Thus, assuming, without deciding, that the book was not authenticated as
Starsky’s book, any error in introducing it against Delores was harmless. See
United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995).
4. Sufficiency of the Evidence
Delores contends that there was no proof (1) that the transaction involving
the 1974 Oldsmobile affected interstate commerce, or (2) that Delores
participated in, much less knew about, the purchase of the vehicle. Delores
emphasizes that no witness testified as to whether the signature on the
Oldsmobile’s title was in fact her signature, and she argues that because the
bankruptcy petitions in evidence containing her signature were not
authenticated, they could not serve as a basis for comparison.
As stated in section III.A.5 of this opinion, our review is highly deferential
to the verdict and we must view the evidence in the light most favorable to the
prosecution. Given these constraints, there was sufficient evidence to support
Delores’s conviction. The Government merely had to provide proof of a slight
link to interstate commerce. 18 U.S.C. § 1956; Westbrook, 119 F.3d at 1191. The
evidence indicates that Starsky used the Oldsmobile to continue his drug
trafficking activities, and “narcotics trafficking, as a class of activities, affects
13
Starsky’s Houston home was titled in Lavallies’s name.
26
No. 06-60806
interstate commerce.” Westbrook, 119 F.3d at 1192. Although Starsky used the
car as his own, the car’s title was in Delores’s name and both Delores’s name and
address were on the certificate of title. Delores’s challenge to the sufficiency of
the evidence fails.
C. CHARLES WELLS
1. Billy Joe Smith’s Testimony
Wells argues that the district court violated Federal Rule of Evidence
404(b) by admitting Smith’s testimony that he sold cocaine to Wells in 2002 or
2003. Wells contends that this evidence was both highly prejudicial and
irrelevant, and therefore its admission violated his Sixth Amendment right to
a fair trial.
A district court’s decision to admit evidence of an extrinsic offense under
Federal Rule of Evidence 404(b) will not be disturbed on appeal absent a clear
showing of an abuse of discretion. United States v. Bruno, 809 F.2d 1097, 1106
(5th Cir. 1987). An abuse of discretion in admitting or excluding evidence is
subject to harmless error review. Yanez Sosa, 513 F.3d at 201.
Even assuming then that the district court erred in admitting this
testimony, we may not disturb the district court’s ruling where it would not have
influenced the jury’s verdict in such a way as to affect the outcome of the case.
See Rodriguez, 43 F.3d at 123. Other evidence adduced at trial – such as Honer’s
testimony that he and Starsky sold Wells a one-half kilo of cocaine, and Wells’s
admission that he received a fee to assume the title of (but never possess)
Starsky’s 1997 Mercedes – was sufficient to support Wells’s conviction. Thus,
Wells’s challenge to the admission of Smith’s testimony is unavailing.
2. Sufficiency of the Evidence
Wells challenges the sufficiency of the evidence supporting his money
laundering conviction in connection with the 1997 Mercedes. Again, as
discussed in Section III.A.5 of this opinion, we apply a very narrow and highly
27
No. 06-60806
deferential standard of review, viewing the evidence in the light most favorable
to the prosecution. Here, there was sufficient evidence to support Wells’s
conviction. A reasonable jury could infer that Wells knew the money came from
unlawful drug proceeds and that the transaction was designed to conceal the
source, the ownership, or the control of the money used to buy the Mercedes.
D. SIMON TAYLOR
1. Bruton Issue
Taylor argues that the district court violated his Sixth Amendment right
to confrontation by admitting hearsay testimony solicited by the Government
from Clarence Honer and Agent Williams over timely objections. Honer testified
to extrajudicial statements made by Starsky labeling Taylor as “the Bank,” and
Agent Williams testified that Starsky’s address book containing names of his
drug associates also included Taylor’s name. Taylor contends that by failing to
sever his trial from those of his codefendants, the district court admitted
evidence that was highly prejudicial to Taylor and unrelated to the charges
against him.
As noted previously, we review Bruton issues under an abuse of discretion
standard. Restrepo, 994 F.2d at 186. Likewise, this court reviews a district
court’s denial of a motion to sever for abuse of discretion. United States v.
Nguyen, 493 F.3d 613, 625 (5th Cir. 2007). Generally, Federal Rule of Criminal
Procedure 12(b)(3)(D) requires that a Rule 14 motion to sever defendants be
made before trial. Taylor did not move for severance before the trial began.
However, at trial, Taylor moved for severance on the basis of Bruton. Where
there is a Bruton violation and a party moves for severance during trial,
severance of the trials is proper. See Restrepo, 994 F.2d at 186. Bruton does not
apply to (1) statements that do not directly incriminate other coconspirators; or
(2) statements falling within certain hearsay exceptions, including coconspirator
28
No. 06-60806
statements made during and in furtherance of the conspiracy. Walker, 148 F.3d
at 522.
Honer testified to Starsky’s extrajudicial statements referring to Taylor
as “the Bank.” This Court has held that statements made by one conspirator to
a fellow conspirator identifying yet another conspirator as the ultimate
purchaser are statements intended to further a conspiracy. See United States
v. Patton, 594 F.2d 444, 447 (5th Cir. 1979). This is the exact situation
presented here. Thus, Honer’s testimony falls within the first exception to
Bruton and the district court did not abuse its discretion.
Agent Williams testified that Starsky’s address book contained Taylor’s
name, names of Starsky’s drug associates, and names of people who were not
drug dealers. Agent Williams’s testimony did not directly incriminate Taylor
and therefore falls within the first exception to Bruton. See Walker, 148 F.3d at
522. The district court did not abuse its discretion.
2. Admissibility of Address Book
In a related point, Taylor argues under Federal Rule of Evidence 403 that
the district court improperly admitted Starsky’s address book into evidence
against Taylor. Taylor contends that while the address book was “arguably
relevant” to the other Defendants’ charges, the jury was unable to
compartmentalize the evidence of direct drug activity as applicable to his
codefendants but not to him. Taylor concludes that the admission of the address
book led to a guilty verdict against him based solely on guilt by association.
The district court concluded that the danger of unfair prejudice did not
substantially outweigh the probative value of the address book, and we find that
this conclusion was not an abuse of discretion, particularly in light of the fact
that the Government neither implied nor explicitly stated that the presence of
Taylor’s name meant he was involved in Starsky’s drug trafficking. Accordingly,
the district court did not err by admitting into evidence Starsky’s address book.
29
No. 06-60806
IV. CONCLUSION
For the aforementioned reasons, we AFFIRM.
30