United States v. Travell L. Wilson ( 1996 )

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No. 95-3956
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United States of America, *
*
Appellee, *
*
v. *
*
Travell L. Wilson, *
*
Appellant. * Appeals from the United States
District Court for the
Western District of Missouri.
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No. 96-1044
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United States of America, *
*
Appellee, *
*
v. *
*
Earnest Watkins, Jr., also *
known as June Bug, *
*
Appellant. *
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Submitted: May 13, 1996
Filed: December 19, 1996
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Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
WOLLMAN, Circuit Judge.
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HENLEY, Senior Circuit Judge.
Travell Wilson and Earnest Watkins, Jr. appeal from judgments
of the district court1 entered after a jury found them guilty of
conspiracy to distribute cocaine and of aiding and abetting
possession with the intent to distribute cocaine. We affirm.
As part of an ongoing investigation between the Drug
Enforcement Administration and the Kansas City, Missouri Police
Department, on June 23, 1993, in anticipation of executing a
federal search warrant, law enforcement officers were conducting
surveillance at the apartment of Kenneth Hulett. The officers saw
Wilson and Watkins go into the apartment, and a short time later
saw Wilson, who was carrying a black bag, and Watkins leave the
apartment and get in a car. Officers followed the car and a chase
ensued. Officers saw the car pull into a parking lot, and as the
car slowed down, saw Wilson, who was carrying a black bag, get out
of the car and run into a nearby wooded area. Watkins, who was the
driver, was arrested after the car came to a stop. Wilson was
arrested after officers found him lying face down in the wooded
area. At the time of the arrest, officers could not locate the
black bag they saw Wilson carry from the car into the woods.
However, the next day officers returned to the area and found the
bag, which contained 745 grams of cocaine. Both men were detained
for about twenty hours and released pending future indictments. On
March 29, 1995, a federal indictment charging Wilson and Watkins
with conspiracy and aiding and abetting possession was returned.
Wilson was arrested on April 21, 1995, and Watkins surrendered on
May 4, 1995.
Watkins filed a motion to dismiss based on pre-indictment
delay. The court denied the motion. At trial, pursuant to a plea
agreement, Hulett testified for the government. Among other
things, Hulett testified that before the June 23 sale he had
1
The Honorable Scott O. Wright, United States Senior District
Judge for the Western District of Missouri.
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distributed cocaine to Watkins and Wilson on four occasions. In
addition, the government introduced officers' testimony,
photographs, and the bag and the cocaine retrieved from the wooded
area.
The jury convicted Wilson and Watkins of the drug offenses.
The court sentenced Wilson to 87 months imprisonment and Watkins to
97 months imprisonment.
WILSON
On appeal Wilson argues that the government's alleged delayed
production, or non-production, of transcripts of Hulett's testimony
in other criminal cases violated the omnibus trial order, Brady v.
Maryland, 373 U.S. 83 (1963), the Jencks Act, 18 U.S.C. § 3500, and
the Fifth and Sixth Amendments.2 However, Wilson has not preserved
the issues for review. In May 1995 Wilson requested that the
district court order that the government disclose the identity of
the government's witness (Hulett) and impeachment material. A
magistrate judge denied the motion, noting that the case was an
"open file" case, and in the omnibus order the government had
agreed to disclose Hulett's identity and Jencks material ten days
before trial. According to Wilson, in July 1995 he requested
transcripts of testimony given by Hulett and two law enforcement
officers in three cases arising from the alleged conspiracy
involving Hulett. On August 8, 1995, the government provided
several of the requested transcripts.
Trial began on August 15, 1995. Before the jury was called
in, Wilson complained to the court that the government had violated
the omnibus order by either disclosing the requested transcripts
late or not at all. Counsel, however, informed the court that he
2
Among other trials, Hulett testified as a government witness
in United States v. Randolph, 1996 WL 688795, at *1 (8th Cir. Dec.
3, 1996).
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was able to obtain four of the requested transcripts from the
clerk's office. In response to the court's inquiry regarding
requested relief for the alleged violations, counsel "ask[ed] for
a delay so we may go over these four additional transcripts . . .
in order to obtain proper impeachment material of witnesses at this
trial." The court told counsel he would be provided with "an
opportunity to complete whatever it is you may not have completed"
and an opportunity to make a record of his objections. After
Hulett's direct examination on August 16, the district court told
counsel it would take a long recess to allow him to make a record
regarding his discovery complaints. Counsel indicated an extended
recess was agreeable. After the recess, without the presence of
the jury, the court announced: "[D]efendants' counsel in this case
have agreed they have been given all the material that they asked
for and they have no further requests as of noon today." The court
then stated: "So all these prior matters on this subject are mooted
by this statement." Counsel did not object and cross-examined
Hulett. In this circumstance, it is clear that Wilson has failed
to preserve the discovery issues for review. See United States v.
Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996). Indeed, counsel
expressly waived review of the issues.
Even if Wilson had preserved the issues for review, his
arguments are without merit.3 As a general rule, we review
discovery matters for an abuse of discretion. United States v.
Byrne, 83 F.3d 984, 990 (8th Cir. 1996). Assuming, without
deciding, that the government failed to comply with the discovery
order, the district court cannot be faulted for granting Wilson's
3
Wilson has filed a motion to supplement the record on appeal.
To the extent Wilson seeks to supplement it with material filed in
the district court, we grant the motion. We remind Wilson that
"[m]ere speculation that a government file may contain Brady
material is not sufficient to require a remand . . ., much less
reversal for a new trial." United States v. Pou, 953 F.2d 363,
366-67 (8th Cir.) (internal quotation omitted), cert. denied, 504
U.S. 926 (1992).
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request for time to review the materials and for providing him the
opportunity to make a record of his complaint. See Fed. R. Crim.
P. 16(d)(2) (if party fails to comply with discovery order, court
may grant such relief "it deems just under the circumstances").
Wilson's Brady claim must also fail. "Where the prosecution
delays disclosure of evidence, but the evidence is nonetheless
disclosed during the trial, Brady is not violated." United States
v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). In addition, "the
government need not disclose evidence available to the defense from
other sources or evidence already possessed by the defendant[]."
Id. As to the Jencks Act claim, "[a]lthough in many cases the
government freely discloses Jencks Act material to the defense in
advance of trial," contrary to Wilson's suggestion on appeal, "the
government may not be required to do so." United States v. White,
750 F.2d 726, 729 (8th Cir. 1984). Also, without merit are
Wilson's constitutional claims. See, e.g., United States v.
Rabins, 63 F.3d 721, 725-26 (8th Cir. 1995) (though government
failed to disclose positive drug test of cooperating witness, no
Sixth Amendment violation where jury was informed of witness' plea
agreement, previous drug use, and possible bias), cert. denied, 116
S. Ct. 1031 (1996). In this case, both Wilson and Watkins
vigorously cross-examined Hulett regarding, among other things, his
plea agreement and role in other drug offenses.
Wilson next argues that the district court erred in admitting
a coconspirator's statement under Fed. R. Evid. 801(d)(2). The
district court did not err. Indeed, the court followed United
States v. Bell, 573 F.2d 1040 (8th Cir. 1978), which sets forth
procedures regarding admissibility of statements under Rule
801(d)(2). The district court "conditionally admitt[ed] the
statement" subject to objection, and "at the conclusion of all the
evidence made an explicit determination for the record" that the
government had proved by a preponderance of the evidence that "the
statement was made by a coconspirator during the course and in
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furtherance of the conspiracy." Id. at 1044. The record amply
supports the district court's Bell ruling.
Last, Wilson challenges the sufficiency of the evidence,
asserting that Hulett's testimony was incredible. However, it was
the jury's function to assess Hulett's credibility. United States
v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996). Although "we
decline to invade the province of the jury as [Wilson] would have
us do[,]" id. (internal quotation omitted), we note that Hulett's
testimony concerning the events of June 23 was corroborated by the
officers' testimony, surveillance photographs, and physical
evidence. In addition, Wilson's flight was evidence of
"consciousness of guilt, and thus guilt itself." United States v.
Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) (internal quotation
omitted).
Watkins
Watkins argues that the district court erred in denying his
motion to dismiss. Watkins alleges that the delay between his June
1993 arrest and March 1995 indictment violated the Speedy Trial
Act, 18 U.S.C. § 3161(b), which provides that "[a]ny . . .
indictment charging an individual with the commission of an offense
shall be filed within thirty days from the date on which such
individual was arrested or served with a summons in connection with
such charges." He also claims the delay violated the Sixth
Amendment speedy trial guarantee. His statutory and constitutional
claims are without merit. As to his statutory claim, his June 1993
arrest did not trigger the Speedy Trial Act clock. Under section
3161(b) "[t]he right to a speedy trial on a charge is triggered by
arrest only where the arrest is the beginning of continuing
restraints on defendant's liberty imposed in connection with the
formal charge on which the defendant is eventually tried." United
States v. Stead, 745 F.2d 1170, 1172 (8th Cir. 1984). In other
words, as in the instant case, "the protections of the Speedy Trial
Act are not triggered by an arrest when the arrested person is
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immediately released without formal charge." Id. See also United
States v. Miller, 23 F.3d 194, 199 (8th Cir.) ("The Speedy Trial
Act requires dismissal as a sanction for excessive pre-indictment
delay when the arrest is based on a charge that is contained in a
complaint filed against the defendant."), cert. denied, 115 S. Ct.
207 (1994). In addition, because Watkins was released pending
indictment and without "other substantial restrictions on [his]
liberty," the delay did not violate his Sixth Amendment rights.
See United States v. Loud Hawk, 474 U.S. 302, 312 (1986).4
Watkins also argues that the district court erred in refusing
to grant his request for a two-level minor participant reduction
under U.S.S.G § 3B1.2(b).5 On appeal, we review the district
court's denial for clear error, United States v. Thompson, 60 F.3d
514, 517 (8th Cir. 1995), keeping in mind that Watkins had "the
burden of proving his eligibility for a decrease in the base
offense level." United States v. Carrazco, 91 F.3d 65, 67 (8th
Cir. 1996). Watkins argues that he was entitled to the reduction
because he was less culpable than Wilson. He is incorrect. "A
defendant who is concededly less culpable than his codefendants is
not entitled to the minor participant reduction if that defendant
was 'deeply involved' in the criminal acts." Thompson, 60 F.3d at
518 (quoting United States v. West, 942 F.2d 528, 531 (8th Cir.
1991)). In this case, there was evidence that Watkins was "deeply
4
The district court also rejected Watkins' claim that the
delay violated his Fifth Amendment due process rights. On appeal,
he does not appear to raise a Fifth Amendment issue. In any event,
the district court correctly rejected the claim. As the court
held, Watkins had not proved that the delay had "actually and
substantially prejudiced the presentation of [his] defense."
United States v. Miller, 20 F.3d 926, 931 (8th Cir.), cert. denied,
115 S. Ct. 226 (8th Cir. 1994).
5
At sentencing, Watkins only requested a two-level reduction
for being a minor participant. We therefore need not address his
arguments on appeal that he was entitled to a four- or three-level
reduction under section 3B1.2. However, Watkins' arguments are
without merit.
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involved." As the government notes, Hulett testified that Watkins
was at Wilson's side during each of the transactions, that "they
were in it together," and that Watkins was either Wilson's right-
hand man or bodyguard. We have observed that "[p]articipants in a
conspiracy to distribute drugs often have distinct roles. Those
differences are not always relevant in determining sentences."
United States v. Logan, 49 F.3d 352, 360 (8th Cir. 1995). In
addition, Watkins drove Wilson to at least three of the drug
transactions and the importance of his role as a driver was
demonstrated during the June 23 chase. See United States v.
Rodamaker, 56 F.3d 898, 904 (8th Cir. 1995) (although wife may have
been less culpable than husband, no minor participant reduction
because she had "important role" in scheme).
Accordingly, the judgments of the district court are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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