United States v. Johnston

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20885
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
EDWARD JOHN JOHNSTON, III,
DARRELL WAYNE ADAMS,
ERIC DARNELL LOWERY,
LARRY J. HILL, AND
GONZALO J. ALVARADO
Defendants-Appellants
Appeals from the United States District Court
for the Southern District of Texas
October 27, 1997
Before POLITZ and KING, Circuit Judges, and DUPLANTIER*, District
Judge.
DUPLANTIER, District Judge:
In this case involving a large scale, long term narcotics
operation, defendants-appellants Edward Johnston, Darrell Adams,
Eric Lowery, Larry Hill, and Gonzalo Alvarado appeal their
convictions on a gallimaufry of grounds. In addition, Lowery,
Johnston and Hill challenge their sentences. We affirm the
* District Judge of the Eastern District of Louisiana, sitting by
designation.
convictions except as follows: we reverse and remand for further
proceedings as to Larry Hill's only conviction (count 1) and as to
Darrell Adams' conviction of count 15. We affirm the sentences
challenged by Lowery and Johnston.
PROCEDURAL HISTORY
The final superseding indictment upon which the government
proceeded to trial charged the five appellants and five other
individuals1 with conspiracy (count 1) to possess with intent to
distribute in excess of five kilograms of cocaine, fifty (50) grams
or more of a mixture containing cocaine base, and 100 kilograms or
more of marihuana, in violation of 21 U.S.C. 841(a)(1),
841(b)(1)(A)(ii) and (iii), 841(b)(1)(B)(vii), and 846.
Darrell Adams was also charged with five counts of possessing
cocaine with intent to distribute in violation of 21 U.S.C.
841(a)(1), 841(b)(1)(A)(ii) and 18 U.S.C. 2 (counts 2, 4, 6, 7, and
8), one count of possessing cocaine base with intent to distribute
in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(ii) & (iii),
and 18 U.S.C. 2 (count 3), five counts of possessing marijuana with
intent to distribute in violation of 21 U.S.C. 841(a)(1) and
841(b)(1)(D) and 18 U.S.C. 2 (counts 5, 9, 10, 11, and 12), one
count of conspiracy to commit money laundering in violation of 18
U.S.C. 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956 (g), and 18 U.S.C.
1
Mark Adams, Felicia Lowery, Angie Tubbs, Mary Veal, and A.D.
Ernest were indicted as co-conspirators. The judge granted Mary
Veal's motion for mistrial. During the trial A.D. Ernest entered
a plea of guilty. Mark Adams and Felicia Lowery were acquitted by
the jury. The jury was unable to reach a verdict as to Angie Tubbs.
2
371 (count 14), and one count of using and carrying a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C.
924(c) (count 15).
In addition to the conspiracy count Alvarado was indicted on
three counts of possessing cocaine with intent to distribute
(counts 2, 6, and 7), and two counts of possessing marihuana with
intent to distribute (counts 5 and 12).
The trial lasted approximately eight weeks. The district
judge granted Adams' motion for directed verdict on one count of
possessing marijuana with intent to distribute (count 11).
Following several days of deliberations, the jury convicted all of
the appellants on the conspiracy count. Adams was also convicted
on four counts of possessing cocaine with intent to distribute, one
count of possessing cocaine base with intent to distribute, two
counts of possessing marihuana with intent to distribute, one count
of conspiracy to commit money laundering, and one count of using
and carrying a firearm in relation to a drug trafficking crime.
The jury acquitted Adams on one count of possessing cocaine with
intent to distribute (count 4) and two counts of possessing
marihuana with intent to distribute (counts 9 and 12). Alvarado
was convicted on all counts on which he was indicted.
Appellants were sentenced as follows:
• Johnston, imprisoned for 135 months and a five year term
of supervised release.
• Adams, concurrent terms of life imprisonment
on counts 1, 3, 7 and 8; 60 months on counts 5 and
3
10, and 240 months on counts 2 and 14, each of those
sentences to run concurrently, and a 60 month consecutive
term of imprisonment on count 15 (the gun count),
concurrent terms of supervised release, and a $25,000 fine.
• Lowery, imprisonment for 360 months, a five year term of
supervised release, and a $10,000 fine.
• Hill, imprisonment for 72 months, a three year term of
supervised release, and a $6,000 fine.
• Alvarado, concurrent terms of imprisonment of 340
months, 240 months and 60 months, concurrent terms of
supervised release, and a $20,000 fine.
EVIDENCE
At the heart of this case is a widespread conspiracy to
possess with intent to distribute marijuana, cocaine base, and
cocaine, which operated from 1989 until 1994. Members of the
conspiracy obtained large amounts of marijuana and cocaine in
Houston, Texas and transported the drugs to Shreveport, Louisiana
for distribution.
The government's case relied heavily upon the testimony of
various participants in the conspiracy, including unindicted co-
conspirators and indicted co-conspirators who entered into plea
agreements with the government. Numerous law enforcement personnel
and other witnesses also testified. Because of the nature of the
errors urged by appellants, an extensive recitation of the evidence
is necessary. We first review the evidence generally, as
background for discussion of meritless claims of error by the
4
district court and of prosecutors' misconduct. Concluding that
some of the other misconduct claims are justified, we then discuss
the effect thereof upon the convictions.
On December 3, 1991, Bosia Cash was stopped by a Diboll, Texas
constable for a traffic violation. After seeing a gun in the
vehicle and hearing Cash and his passenger Diane Mitchell give
inconsistent accounts of their trip, the constable conducted a
consensual search of the car and discovered three kilograms of
cocaine. The constable arrested Cash and contacted John Marshall,
a Shreveport DEA agent. Thereafter Cash agreed to cooperate with
the DEA.2 Agent Marshall and Cash attempted to arrange a controlled
delivery of the cocaine to Roosevelt Wisener in Shreveport;
however, the attempt was unsuccessful. Cash then attempted to
telephone appellant Adams. When Adams returned Cash's call, in a
recorded conversation he told Cash that Cash was responsible for
"them people's cocaine."
Thereafter, with the cooperation of Cash, DEA agent Robert
Mansaw, acting in an undercover capacity, attempted to purchase
several kilograms of cocaine from Adams. Adams failed to appear
for a scheduled meeting with Mansaw, sending Roosevelt Gatterson,
an unindicted co-conspirator, in his place. A purchase of cocaine
was ultimately arranged, but the deal was never consummated. In
recorded telephone conversations Mansaw and Adams discussed the
2
Ultimately, Cash entered into a plea agreement with the
government; he pleaded guilty to a single count of "using and
carrying" a gun in relation to a drug trafficking crime in
violation of 18 U.S.C. §924(c).
5
price of cocaine, and Adams told Mansaw that he would make sure
Mansaw got his "package."
At trial Cash identified Adams, a resident of Houston, as his
source of the three kilograms of cocaine he was transporting at the
time he was arrested and of other cocaine he had previously
obtained. Cash described a prior transaction in which he delivered
two kilograms of cocaine received from Adams to Danzel Morris.
Morris refused to pay Cash for the cocaine, stating that Adams owed
him cocaine. Adams told Cash that he owed Adams for the lost
cocaine. Cash later gave Adams a race car and a truck as payment
for the cocaine. Adams told Cash that his source for cocaine was
an individual known as "Charlie", whom Cash and several other
witnesses identified as appellant Alvarado.
Adams introduced Cash to Stevenson McClendon and Roosevelt
Gatterson. McClendon worked with Adams at the Port of Houston. In
a separate case, McClendon entered into a plea agreement in which
he agreed, inter alia, to testify in this case. McClendon
testified that he introduced Adams and Alvarado in 1989, that in
1990 he bought kilogram quantities of cocaine for Adams from
Alvarado, and that he made two trips to Shreveport to deliver
cocaine for Adams, on each occasion delivering two to three
kilograms of cocaine to Cash. McClendon also testified that he
witnessed Adams giving Alvarado money.
Gatterson also cooperated with the government and testified
as follows. After Adams bought ProCare Engine Exchange
(ProCare), an engine installation business in Houston, Gatterson
6
worked there for approximately a year. In 1992 he picked up
marijuana several times for Adams and delivered it to Shreveport,
in vehicles belonging to Adams. Gatterson also delivered marijuana
for Adams to Bruce Embrey and delivered kilogram quantities of
cocaine to Shreveport for Adams, some of it to Cash. "Charlie"
(Alvarado) provided Adams with the drugs. At Adams' request
Gatterson picked up a tire containing cocaine from the side of
Alvarado's house and delivered it to the barn where Adams' horses
were stabled. Gatterson counted large amounts of cash at Adams'
house on at least six occasions. At times while transporting drugs
for Adams, Gatterson carried a gun provided by Adams.
In approximately May 1992 Albert Smith, then shop foreman at
ProCare, arrived at ProCare early one morning and witnessed
Gatterson and another man identified as Frank weighing white powder
in the break room. Smith testified that he also saw the two men
putting two packages of white powder in each of three tire rims.
Several days after this incident, Adams required Smith to
relinquish his keys to the ProCare building.
Kimela Lomax was paid for information provided to Agent Mansaw
and testified for the government. She dated Adams for a number of
months during the conspiracy and worked at ProCare after it was
purchased by Adams. Lomax accompanied Adams on several trips to
Shreveport, where Adams "took care of business" (his drug
business). During these trips Adams met with appellants Lowery and
Johnston. On several of these trips to Shreveport, Adams returned
to Houston with large amounts of money. After Lomax and Adams
7
returned from one trip to Shreveport, Lomax and Gatterson helped
Adams count more than $100,000.
Johnston delivered money to Adams' house in Houston twice
while Lomax was present. Following one delivery of money by
Johnston, Lomax helped count $90,000. Adams informed Johnston that
the money was "short." Thereafter Johnston called Lowery, and Adams
advised Lowery that they would be "minus one." Lomax testified
"minus one" meant one kilo.
Adams told Lomax that "Charlie" was the source of his cocaine.
In August 1993, Lomax and Adams went into hiding because they
feared that their lives and those of Alvarado's family were in
danger due to a delay in receiving money from Shreveport.
Bruce Embrey, an indicted co-conspirator who entered into a
plea agreement with the government, worked at the Port of Houston
and met Adams between 1989-1991. He testified that he purchased
marijuana from Adams on several occasions and delivered that
marijuana to Roy Patterson and A.D. Ernest, among others. Ernest
was later employed by Adams at ProCare. After Adams purchased
ProCare he asked Embrey to obtain kilogram quantities of cocaine.
Embrey arranged for Adams to purchase two kilograms of cocaine from
Sam Nash. Adams paid Nash the $28,000 purchase price, but the
boxes delivered to Adams did not contain cocaine. Adams told
Embrey that Embrey owed Adams for the loss. Thereafter, Embrey
transported cocaine to Shreveport for Adams on two occasions, and
on two occasions Embrey secreted cocaine in tires at Adam' request.
On the second occasion Embrey put ten kilograms of cocaine into a
8
tire.
Roy Patterson, an unindicted co-conspirator, testified that he
transported cocaine and marijuana from Houston to Shreveport for
Adams. He stated that in May 1993, Lowery and Johnston appeared at
the ProCare office. After Adams met with Lowery, Adams asked
Patterson if he wanted to make a trip to Shreveport and suggested
that Patterson talk to Lowery. Lowery asked Patterson to deliver
thirty (30) pounds of marijuana to Shreveport. According to
Patterson he agreed to make the trip, and Lowery gave him the
number to call when he reached Shreveport. Johnston placed a bag
in Patterson's trunk, which Patterson said he left at Lowery's
house in Shreveport. Shortly thereafter Adams asked Patterson to
make a second trip to Shreveport. Patterson testified that he
picked up five (5) kilograms of cocaine from "Charlie" at the
stables where Adams kept his horses, delivered the cocaine to
Lowery, returned to Houston with $190,000 in cash given to him by
Lowery, and delivered the cash to Adams at his home.
Patterson also testified about a second delivery of thirty
(30) pounds of marijuana which he made shortly after that cocaine
delivery. Patterson delivered the marijuana to Lowery, who then
phoned appellant Hill. Patterson testified that within a few
minutes Hill joined him and Lowery. Patterson brought the
marijuana to the home of Jennifer Gerard, Lowery's sister and
Hill's girl friend at the time. Hill unlocked the door and
Patterson brought the marijuana into the house. Patterson
testified that he, Lowery, and Hill weighed the marijuana.
9
Patterson testified about numerous other trips to Shreveport
to deliver cocaine and marijuana, generally returning to Houston
with large amounts of cash which he delivered to Adams. It was not
uncommon for Patterson to transport six or more kilograms of
cocaine on each trip. Patterson also testified that he accompanied
Johnston on one trip to Shreveport to deliver marijuana to Lowery.
On another occasion Patterson delivered to Edward Johnston in
Houston four kilograms of cocaine ultimately destined for
Shreveport. Patterson also assisted Adams in counting large sums
of money several times.
On January 15, 1994, while transporting sixty (60) pounds of
marijuana at Adams' request to Shreveport for delivery to Lowery,
Roy Patterson was stopped and arrested. The marijuana was seized.
Derrick Patterson, Roy Patterson's son, testified that he
accompanied his father on some trips to Shreveport and corroborated
his father's testimony concerning several of the trips, including
the testimony that Hill weighed the bundles of marijuana Patterson
delivered on one trip.3 After a trip to Shreveport, at Adams'
request Derrick Patterson drove Adams' vehicle containing more than
$300,000 cash back to Houston, where he delivered the money to
Adams. He also witnessed Adams deliver cash to Alvarado; at ProCare
he answered telephone calls from Johnston and Lowery for Adams.
Officer Henry King of the Shreveport police testified that
while acting in an undercover capacity he purchased cocaine base,
3
The testimony of the two Pattersons about this one incident
is the only evidence of participation by Hill in the conspiracy for
which he was convicted.
10
sometimes referred to as "crack", from George Robinson, an indicted
co-conspirator who entered into a plea agreement with the
government. King discussed with Robinson the possibility of
purchasing large quantities of cocaine. Robinson told King that
his source for cocaine was in Houston, identified Adams as the
source, and gave King Adams' phone number. King made several
attempts to set up a deal with Adams; however, no deal was ever
consummated.
COMMENT BY THE DISTRICT JUDGE
Roy Patterson, a convicted felon on probation during the time
covered by the conspiracy, was cross-examined extensively by two
defense counsel concerning his failure to comply with some
conditions of his probation, e.g., using drugs and lying to his
probation officer. Following those cross examinations, another
defense attorney asked Patterson if he "ever [told] the probation
officers and the drug counselors how much admiration you had for
all the work they'd done for you?" The government objected to the
question on the grounds of relevance and materiality. The judge
stated:
[t]he objection has been sustained. We've had a
lot of examination about this man's probation and
his failure to adhere to what he was supposed to
do and the way he didn't disclose it to the probation
officer. That's all well before the jury. I think we
can get on to what the case is about.
(23 R. 37). Defendants moved for a mistrial; the motion was
denied.
Adams, Johnston and Lowery contend that the district judge's
statement deprived them of a fair trial because it eviscerated
11
their defense that the government's witnesses were not credible.
In determining whether a judge has exceeded the bounds of
acceptable conduct, the proceedings must be viewed as a whole.
United States v. Dobbs, 63 F.3d 391, 398 (5th Cir. 1995). The
critical inquiry is "whether the judge's behavior was so
prejudicial that it denied [the appellants] a fair, as opposed to
a perfect trial." United States v. Williams, 809 F.2d 1072, 1086
(5th Cir. 1987), cert. denied 484 U.S. 896, 108 S.Ct. 506, quoting
United States v. Pisani, 773 F.2d 397, 402 (2nd Cir. 1985).
Appellants' claim is without merit; the judge's comment did
not deny Adams, Lowery, and Johnston a fair trial. Following the
judge's statement, the cross examination of Patterson continued for
a short while. Then the trial recessed for a lunch break. When the
trial recommenced, the judge immediately instructed the jury as
follows:
Somewhere about a quarter an hour before we recessed
at one point in time when objections had been made to
examination -- cross examination being conducted by
Mr. Gerson that were sustained, I made a remark,
"Let's move along to what the case is about or something
like that.
I do not want you to take that remark as any indication
that the case is not also about the credibility of
witnesses because it always is. And, of course, as Mr.
Gerson went on to do for some time, he asked a number of
questions that bore upon the credibility of the witness
he was cross-examining.
As I will instruct you at the end of the case, one of the
duties of the jurors will be to decide the credibility,
which witnesses to believe, which witnesses not to
believe, how much of each witness's testimony to believe,
how much not to believe. That will all be part of the
instructions at the end of the case.
Certainly I did not mean to indicate to you at the
12
time of that ruling by any offhand remark that
credibility of witnesses is not important. It is and
its a proper area for cross-examination.
(23 R. 3751).
This timely instruction stressed the importance of the
credibility of witnesses and informed the jury that it was their
duty to determine credibility. Additionally, at the conclusion of
the trial the judge instructed the jury that "[a]n important part
of your job will be making judgments about the testimony of
witnesses. You should decide whether you believe what each person
had to say and how important that testimony was." (40 R. 8177).
The judge also told the jury that "[e]xcept for the instructions to
you on the law and these instructions, of course, you should
disregard anything I may have said during the trial in arriving at
your own findings as to the facts." (40 R. 8176). These
instructions amply guarded the appellants against any prejudice
resulting from the district judge's statement.
LIMITATION OF CROSS EXAMINATION
Lowery, Adams and Johnston assert that the district court
committed reversible error by restricting the cross examination of
Robert Mansaw concerning inconsistencies between his testimony and
that of Roy Patterson. Appellants urge that the limitation denied
them their Sixth Amendment right to confront their accusers.
Limitations on the scope of cross-examination are reviewed for
abuse of discretion. United States v. Route, 104 F.3d 59, 64 (5th
Cir.), cert. denied, U.S. , 117 S.Ct. 2491 (1997).
Agent Mansaw was asked if when he spoke with Roy Patterson on
13
February 7, 1995, Patterson mentioned the name Larry Hill. Mansaw
replied, "[y]es, he did." Defense counsel then asked "[s]o if he
told the jury that he did not, that would have been an untruthful
bit of testimony by Roy Patterson. Is that what you want to say?"
(36 R. 7191). The government objected to the question on the basis
that it was improper impeachment in that it called for an opinion.
The objection was sustained. The following colloquy ensued:
MR. ACKERMAN: Your honor, I'm not trying
to prove what Mr. Patterson said to the jury. I am
confronting this witness with a prior statement.
THE COURT: That's going to be up to the jury to
decide whether the witness testified truthfully or
not.
MR. ACKERMAN: Your Honor, I'm not asking it in the
form of a hypothetical, "If he so testified, would
that have been true? I agree that it's up to the jury
to decide whether that's what he said.
THE COURT: I'll sustain the objection.
MR. ACKERMAN: Okay. Your Honor, the Constitution of
the United States gives me the right to confront
witnesses called by the government.
THE COURT: You're doing that.
MR. ACKERMAN: And I'm being denied that right by
limiting me in this regard and I object.
THE COURT: Sustain this objection.
(36 R. 7191-92).
Defense counsel elicited testimony from Agent Mansaw that was
inconsistent with certain testimony given by Roy Patterson. It was
the jury's obligation to determine the credibility of Roy
Patterson. Agent Mansaw's opinion as to whether Patterson was
telling the truth concerning his statement on February 7 is not
14
relevant. The district judge was correct in not permitting defense
counsel to continue to pursue that line of inquiry.
ADMISSION OF RECORDS FROM PROCARE
Appellants Lowery, Johnston and Adams contend that the
district judge erroneously admitted into evidence a large number of
what they term "` business records' of ProCare" seized from
ProCare's offices pursuant to a search warrant.4 They contend that
the proper foundation was not laid to admit the records under Rule
803(6) of the Federal Rules of Evidence, the business records
exception. We review the district court's evidentiary rulings for
abuse of discretion. United States v. Carrillo, 20 F.3d 617, 619
(5th Cir.), cert. denied, U.S. , 115 S.Ct. 261, 130
L.Ed.2d 181 (1994).
Appellants' contention lacks merit. The records at issue are
of a business (ProCare) owned and operated by appellant Adams, not
documents of a third party, and were seized on the premises of
ProCare. As such, the documents are admissible once their
authenticity is established regardless of whether they fit the
business records exception. Authenticity is established "by
evidence sufficient to support a finding that the matter in
question is what its proponent claims." Fed. R. Evid. 901(a).
These documents were properly authenticated. Agents Timothy
Binkley and Anderson Jackson participated in the search of the
4
Appellants do not specify which exhibits they contend were
admitted in error. They simply identify portions of the transcript
where various exhibits were offered into evidence by the
government, objected to by defendants, and then admitted into
evidence.
15
ProCare premises and testified concerning the circumstances under
which the documents were seized. ProCare employees Kimela Lomax
and Karen Franklin also authenticated the documents.
In any event, a proper foundation under Rule 803(6) was
established for the exhibits. Both Kimela Lomax and Karen
Franklin, who handled record keeping for Adams at ProCare,
testified that the documents at issue were kept in the regular
course of business and relied upon by Adams. This satisfied Fed.
R. Evid. 803(6). The district judge properly admitted the exhibits
into evidence.
PROSECUTORIAL MISCONDUCT
All appellants contend that various acts of misconduct by the
prosecutors, viewed either individually or cumulatively, denied
them a fair trial, requiring reversal of their convictions.
Criminal defendants bear a substantial burden when they attempt to
show that prosecutorial improprieties constitute reversible error.
United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994), cert.
denied sub. nom., 513 U.S. 1156, 115 S.Ct. 1113, 131 L.Ed.2d 746(1995). "[A] conviction should not be set aside if the
prosecutor's conduct . . . did not in fact contribute to the guilty
verdict and was, therefore legally harmless." United States v.
Cardenas, 778 F.2d 1127, 1129-30 (5th Cir. 1985) (citations
omitted).
The acts of claimed prosecutorial misconduct range from the
frivolous to the egregious and fall into several different
categories. A careful review of the briefs, oral argument, and the
16
trial transcript convinces us that the following complaints lack
merit and do not require further discussion: the prosecutors'
personal actions towards defense counsel, including approaching
counsel in a menacing way, calling irrelevant witnesses, addressing
defense counsel directly, physically "charging" a defense counsel
who stated an objection, referring to defense counsel as "criminal
defense counsel", and the government's breach of its plea agreement
with George Robinson, who is not an appellant here. However, each
of the following warrants detailed analysis: discovery violations,
open display of unadmitted exhibits, references to Adams' prior
conviction, improper questioning of law enforcement officers, and
comments on defendants' failure to testify.
A. Discovery Violations
Lowery, Adams and Johnston contend that the government
repeatedly violated the district court's discovery orders and
failed to disclose Brady5, Giglio6, and Jencks7 material in a timely
manner. Appellants do not allege any specific prejudice resulting
from the delayed productions. Rather, in general terms they
assert that they were prejudiced because the delayed disclosures
diverted defense counsels' attention "from the tasks of defending
to the task of preparing." (34 R. 6761).
The government clearly delayed in producing a number of
5
Brady v. Maryland, 373 U.S.83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963)
6
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972).
7
18 U.S.C. 3500
17
discovery materials. At the final pretrial conference the district
judge ordered the production of Jencks material on the day before
the witness would testify. Despite that order, the government
failed to produce the tape recorded statement of Kimela Lomax or
even disclose its existence until after several defense counsel had
completed their cross examinations of Lomax. The tardy production
of the tape necessitated a postponement of Lomax's cross-
examination to allow defense counsel an opportunity to review the
tape and prepare appropriate cross-examination.
Prosecutors did not reveal the existence of a plea
agreement with Bosia Cash prior to his direct testimony, and
contrary to the district judge's order, produced a transcript of
Cash's testimony before the grand jury only after Cash began
testifying. The government was also dilatory in producing its plea
agreement with Stevenson McClendon; the agreement was first
produced on the day he testified.
We disagree with appellants' complaint that a video tape of
a traffic stop involving Edward Johnston and a recorded statement
of Marilyn Timmons were produced late. The government produced the
tape of the traffic stop several days before the date that the
officer who executed the stop testified, and the tape of Timmons
several days before Timmons, who was not actually called to
testify, was scheduled to testify.
The record also does not support Lowery's contention that the
prosecutor did not timely disclose information concerning the
payments made by Agent Mansaw to Kimela Lomax. The prosecution did
18
timely inform defendants of the total amount of payments made to
Lomax, although the actual payment vouchers were not produced until
Lomax's cross-examination.
Appellants also argue that the prosecution failed to disclose
"informal immunity" agreements entered into with several witnesses,
including Derrick and Roy Patterson. In fact, there were no such
immunity agreements. Before the trial began, a prosecutor
indicated that Gatterson, Lomax, Derrick Patterson and Roy
Patterson had received "informal immunity" from agents involved in
the investigation of the case. In response to defendants' motion
to disclose the agreements, the prosecutor stated that there were
no such agreements, and that he had inferred their existence from
the fact that those witnesses had been interviewed without having
been given Miranda warnings. The agents involved were cross-
examined extensively about the existence of such agreements, and
they confirmed that there were none. The government cannot disclose
that which does not exist.
Appellants also contend that several times the government
attempted to call witnesses to testify without giving one day's
prior notice of their appearance, contrary to the judge's orders,
and that these violations resulted in trial delays. They also
complain of a delay that ensued when the prosecution failed to
timely provide defense counsel with a copy of a summary chart.
Appellants articulate no specific prejudice due to the alleged
trial delays.
The fact that the witnesses were not identified and materials
19
were not produced in accordance with the judge's prior orders does
not equate to prosecutorial misconduct. "The trial court holds
real latitude in the management of the discovery process, including
fashioning the appropriate remedy for alleged discovery errors."
United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991). We
review alleged errors in the administration of the discovery
process for abuse of discretion. Id. Delayed production is not in
and of itself a ground for reversal of a conviction. Prejudice to
the substantial rights of a defendant is required before reversal
of a conviction is warranted. United States v. Garcia, 917 F.2d
1370, 1374 (5th Cir. 1990).
The delayed identifications and productions did not prejudice
appellants' substantial rights. We do not condone the
government's less than satisfactory compliance with the district
judge's discovery orders; however, we recognize that this was a
long and difficult prosecution. The trial began with ten
defendants and a fifteen count indictment. There were a large
number of potential witnesses and exhibits. These factors imposed
an unusually heavy administrative burden on the government, and
adversely affected the prosecutors' ability to comply with the
discovery orders. Although the district judge voiced his
displeasure concerning the prosecution's repeated failure to timely
produce discovery materials, he determined that the delays were not
intentional and did not prejudice the appellants. Our review of
the record does not persuade us otherwise.
Moreover, the district judge, cognizant of the potential for
20
prejudice inherent in the late disclosures, postponed the
examination or cross-examination of every witness where there was
either a late disclosure of discovery materials or a failure to
timely reveal the identity of a witness who would be called. These
postponements gave defense counsel an adequate opportunity to
examine and analyze the material produced and adequately prepare a
cross-examination of the witness. Appellants did not experience
any prejudice to their substantial rights due to the prosecutors'
discovery violations.
B. Display of Guns and Drugs
Appellants contend that the prosecutors acted improperly at
the start of the trial by displaying on the prosecutor's table in
the plain view of the jury various drugs and weapons which had not
been admitted into evidence. Defendants timely objected to the
display. Outside the jury's presence, the judge ordered the
government not to display anything on the table that was not on the
exhibit list. The judge then instructed the jury:
Ladies and gentlemen, with respect to the exhibits
that -- or potential exhibits that are on the table,
these are not in evidence. There's a weapon of
some type lying out there on that table and other
paraphernalia. You are not to consider those for any
purpose at this time. Those are not exhibits in
evidence at this time. There are no exhibits in
evidence at this time.
Whether those will come into evidence or not I don't
know. But you're going to consider in this case
only the exhibits and you are not to be in any way
influenced by anything that you have seen in
connection with materials lying on the tables of
counsel at this time. That is not in evidence.
We have not had any testimony. We've not had
any exhibits at this time.
21
(12 R. 221, 236-37).
Because neither the government nor the appellants recall
specifically what items were displayed on the table, we are unable
to determine whether all of the items displayed on the table were
later admitted into evidence. However, the record does demonstrate
that a gun and several exhibits of cocaine were admitted.
Considering the district judge's instruction to the prosecution to
remove any items which were not listed on the witness list, the
lack of a record indicating that any displayed item was not
admitted into evidence, and the judge's thorough instruction that
the items displayed were not evidence, we conclude that appellants
suffered no prejudice from the display.
C. References To Adams' Prior Convictions
Adams contends that the prosecutors acted improperly by
intentionally eliciting testimony concerning and commenting upon
his prior criminal record, despite the fact that the judge had
granted a motion in limine prohibiting such references.8 Appellant
does not provide a record reference for either the motion or an
order granting it, and we found none in reviewing the record.
Nevertheless, assuming arguendo that such a motion was granted,
under Rule 103 of the Federal Rules of Evidence, the "plain error"
standard of review applies if at trial the defendant failed to
timely renew the objection raised by motion in limine. United
8
Johnston adopted this portion of Adams' brief. Because the
challenged testimony and comment do not pertain to Johnston, he
could not have experienced any prejudice. Accordingly, we limit
our discussion to Adams.
22
States v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993), cert. denied
sub. nom., 511 U.S. 1081, 114 S.Ct. 1829, 128 L.Ed.2d.459 (1994).
Three separate incidents form the foundation for Adams'
challenge. Kimela Lomax testified that a vehicle in which she and
Adams were riding was stopped by law enforcement officials, and
that there were guns in the vehicle. She testified, without
objection, that she and Adams were charged with the offense of
carrying a weapon. On cross-examination, Lomax testified that she
pleaded no contest to the charge and received probation.
Thereafter, on redirect examination, a prosecutor asked Lomax "[w]e
know what happened to you. What happened to Darrell?" Lomax
answered, "[h]e got probation." (27 R. 5086).
There was no objection to the question at that time, although
counsel later filed a motion for mistrial based in part on the
question concerning Adams' prior conviction. The failure of
counsel to object to the admission of the evidence at the first
available opportunity waived any ground of complaint against its
admission, absent plain error. United States v. Vesich, 724 F.2d
451, 462 (5th Cir. 1984). When a defendant has forfeited an error
by failing to object, the error is remedied only "in the most
exceptional cases." United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994)(en banc), cert. denied, U.S. , 115 S.Ct.
1266, 131 L.Ed.2d 145 (1995). Plain error is "error so obvious
and substantial that failure to notice it would affect the
fairness, integrity, or public reputation of the judicial
proceedings and would result in manifest injustice." United States
23
v. Reyes, 102 F.3d 1361, 1364 (5th Cir.), cert. denied, U.S.
, 117 S.Ct. 180, 136 L.Ed.2d 166 (1996). The prosecutor well
knew that the question would elicit evidence that the defendant had
a prior conviction; evidence that was irrelevant and prejudicial,
and in violation of Rule 404(b) of the Federal Rules of Evidence.
The prosecutor acted improperly in asking the question; however, we
conclude that the misconduct does not satisfy the high standard
required to qualify as plain error.
The second incident occurred when, after Lomax's testimony
that Adams was sentenced to probation, the prosecutor asked Lomax
"[d]id you ever have conversations with Darrell Adams about his
concern" (previous questions made it clear that the prosecutor was
referring to concern about going to the penitentiary). Defense
counsel's objection was overruled. Lomax answered, "[h]e said he
wasn't worried about going back", thus telling the jury that Adams
had once before been to the penitentiary. No objection was stated
at that time.
Because Adams did not object to the comment at the first
opportunity available, we review for plain error. Although Lomax's
response to the question of Adams' concern about going to the
penitentiary was not responsive to the question in the strictest
sense, that does not factor into our analysis because we can safely
assume that the prosecutor was indeed soliciting the answer which
the witness gave. The government's introduction of evidence that
the defendant had previously served a penitentiary term was clearly
improper, but the following court instruction alleviated the
24
resulting prejudice:
First, I want to instruct you that I am striking one
of the responses of Ms. Lomax that she gave in reply
to a question yesterday. There was a question asked
whether Ms. Lomax had conversations with Darrell
Adams about his concern. Ms. Lomax, instead of
answering "yes" or "no," which would have been all
that the answer called for, answered with a statement
that I'm going to instruct you to disregard entirely.
You are not to speculate upon it at all.
The answer was said he wasn't worried about going back.
That answer is stricken from the record. It was an
improper response. You are instructed to disregard it
completely and to pay no attention to it or speculate
upon it at all in any of your considerations about this
case.
(28 R. 5117) The instruction was thorough, and "juries are
presumed to follow their instructions." United States v.Castillo,
77 F.3d 1480, 1491 (5th Cir.), cert. denied, U.S. , 117
S.Ct. 180 (1996). The prejudice is also mitigated by the fact that
the jury later learned from Adams himself that he had previously
been in the penitentiary. See United States v. Davis, 831 F.2d 63,
65 (5th Cir. 1987). In a taped conversation between Adams and
Robert Mansaw, Adams stated "I done been down that road . . .
penitentiary . . . and I got [sic] going back."
Finally, Adams objects to the following portion of the
government's closing argument:
[Roosevelt Gatterson's] been to prison for dope.
He kind of felt that he and Darrell had a lot in
common, that they had a lot to talk about, they
were kind of kindred spirits, had common background.
(39 R. 7805). Adams did not object to the comment. Accordingly we
review the statement for plain error. United States v. Bermea, 30
F.3d 1539 (5th Cir. 1994), cert. denied sub. nom., 513 U.S. 1156,
25
115 S.Ct. 1113, 131 L.Ed.2d 746 (1995).
We disagree with appellants' contention that the statement is
a direct comment on Adams' prior conviction; the "common
background" referred to could reasonably be construed as a
background in narcotics trafficking.
D. Improper Questioning of Law Enforcement Agents
Appellants characterize numerous questions by prosecutors to law
enforcement agents as objectionable to such an extent that,
considered together, they constitute prosecutorial misconduct. We
therefore review them as such, rather than as claimed error by the
trial court with respect to evidentiary rulings. Appellants contend
that the prosecutors intentionally and repeatedly questioned law
enforcement agents in a manner calculated to violate the
Confrontation Clause of the Sixth Amendment. By asking law
enforcement officials what steps they took during their
investigation and why they took those steps, appellants assert
that the prosecutors were able to indirectly introduce damaging
hearsay testimony of informants and law enforcement officials. They
also contend that the prosecution asked improper questions designed
to elicit irrelevant testimony which was prejudicial.
Rule 803 of the Federal Rules of Evidence defines "hearsay" as
"a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted." Out-of-court statements offered for another
purpose, e.g., providing background information to explain the
actions of investigators, are not hearsay. United States v.
26
Carrillo, 20 F.3d 617, 620 (5th Cir.), cert. denied, U.S.
, 115 S.Ct. 261. 130 L.Ed.2d 18 (1994), citing United States v.
Gonzalez, 967 F.2d 1032, 1035 (5th Cir. 1992).
"Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice
. . .." Fed. R. Evid. 403. "The more directly an out of court
declaration implicates the defendant, the greater the danger of
prejudice." United States v. Carillo, 20 F.2d at 620. If an out-
of-court statement does not directly implicate the defendant, then
the probative value outweighs the prejudice. Id. Appellants
Johnston, Lowery, Hill and Adams point to numerous instances of
alleged improper questioning9; we address only those instances
where an appellant is directly implicated.
Michael Hembree, a DEA agent, testified that he and Agent
Margaret Brice, a deputy narcotics investigator with the Caddo
Parish Sheriff's Office, interviewed Tracy Boston, who was in
custody at the Shreveport jail. The AUSA then asked Hembree:
"[c]an you tell the members of the jury what you did after you
spoke with Tracy Boston." (20 R. 2761). Defendants' objection was
overruled and Hembree answered:
We refocused [our] investigation more narrowly
to certain individuals and activities that were
being conducted specifically by certain individuals
and their part as partners in a drug organization,
other specific parts in that organization.
Id. When the prosecutor later asked "if [he] went any other place
9
Lowery alone cites more than one hundred fifty examples of
questions or portions of testimony which he contends are improper.
27
or examined any other records or did anything other thing after
that", Hembree stated that he had a conversation with Agent Brice.
Id. The prosecutor then asked Hembree the nature of the
conversation, and Hembree replied "Eric Lowery, Felicia Metcalf
Lowery, the conversation was regarding Eric Lowery, Felicia Metcalf
Lowery and a residence located at 9469 Pitch Pine Road in
Shreveport." (20 R. 2762).
The prosecutor's questions succeeded in demonstrating to the
jury that information conveyed to Hembree by Boston and Brice
incriminated Lowery; the information was probably inadmissible per
se, and the sources were not subject to cross examination. An
earlier effort by the prosecutor to reveal to the jury the topic of
Hembree's conversation with Boston had already been thwarted. When
the prosecutor asked Hembree about the topic of his conversation
with Tracy Boston defense counsel objected, and the objection was
sustained. The challenged question, i.e., the nature of the
conversation between Hembree and Brice (clearly a rehash of the
Boston interview) came almost immediately after the objection to
the prosecutor's question concerning the topic of Hembree's
discussion was sustained. The prosecutor's later question, which
was objected to by defendants, put before the jury in an indirect
manner the same irrelevant hearsay testimony which the district
court had prohibited the prosecutor from eliciting. To the
discredit of the prosecutors, this was not an isolated situation.
A similar instance involved the testimony of Deputy
Robert Davidson of the DeSoto Parish Sheriff's Office. Davidson
28
testified that he talked to Don Johnson of the Shreveport Police
Department. He was then asked "[w]hat did you do after talking to
Don Johnson with the Shreveport Police Department." (17 R. 1772).
Following defendants' objection to the question which was
overruled, Davidson answered that he "continued surveillance and
focused investigation on more than Renee Smith." Id. Davidson was
then asked "[w]ho did you focus the investigation on?" (17 R.
1772). Defendants objected to the question; however, the district
judge overruled the objection and instructed the jury that "this is
being offered not for the truth of the matter, that may have been
said to him, but rather to show simply a basis for action here at
this point." Id. There was, of course, a basis for this ruling,
just as the judge instructed the jury.
Nevertheless, Davidson's answer: "Darrell Adams and George
Robinson" demonstrated that the evidence should have been excluded.
(17 R. 1773). The identity of the "focus" of the investigation had
limited, if any, probative value. It was entirely unnecessary to
explain the basis for further activity by the witness. By any
account the probative value was insufficient to offset the
prejudice to Adams resulting from the direct implication that a
Shreveport policeman, not subject to cross-examination, had given
information, itself probably not admissible, which caused
defendants to become the "focus" of a narcotics investigation. See
United States v. Gomez, 529 F.2d 412, 416 (5th Cir. 1976).
The prejudice to Adams was compounded when Davidson was
allowed to answer the prosecutor's inquiry as to "what else did you
29
focus your investigation on?". (17 R. 1774). Davidson replied
"ProCare Engine Exchange in Houston." Id. Because the jury had
before it evidence that Adams owned ProCare at the time of
Davidson's investigation, this response (surely anticipated by the
prosecutor) further implicated Adams.
There are several additional examples which, although they do
not involve "opinion" evidence as to defendant's unlawful
activities directly, do so implicitly. In those instances, the
jury would reasonably infer that information obtained in an out of
court conversation between a testifying police officer and an
informant or other law enforcement officer implicated a defendant
in narcotics activity. For example, a prosecutor asked Mike
Kellum:
[d]uring the course of your narcotics investigation
have you become familiar with the names Eric Lowery
and Larry Hill as focuses of any narcotics investigation
in Shreveport?
(17 R. 1727). Defendants objected to the question, and the
objection was sustained. The prosecutor then explained to the
district judge that she was attempting to ask Agent Kellum if he
had personal knowledge of that information. The judge told Kellum
that he could answer if he had "personal knowledge." Kellum
replied "[y]es, I do." Id. On motion of defendants the judge
ordered the answer stricken and instructed the jury to disregard
the answer. Nevertheless, the irrelevant question was highly
prejudicial to Hill and Lowery; the "personal knowledge" of
"information" regarding a defendant's narcotics activity is never
admissible. No prosecutor should ever ask such a question. The
30
judge's instruction to the witness regarding "personal knowledge"
obviously was not meant to refer to information from others;
however, that is what the answer reflected. This was not an
isolated instance of such questioning.
Michael Hembree testified that he checked certain records
relating to Lowery, Hill and other individuals. Despite the ruling
just described, Hembree was asked "[w]ere any of these names
already familiar to you as a result of your personal
investigation?" (20 R. 2690). Once again defendants' objection was
sustained, but the question carried its own damaging garbage.
Based upon the large number of instances of similar improper
questioning we conclude that the prosecutors intentionally used
such questioning as part of their trial strategy. Our conclusion is
strengthened by the fact that both prosecutors used the same
improper method of questioning. The questions were clearly
improper and highly prejudicial to the defendants. Prosecutors have
an obligation "to refrain from improper methods calculated to
produce a wrongful conviction. . .." United States v. Murrah, 888
F.2d 24, 28 (5th Cir. 1989). A breach of that obligation
constitutes serious prosecutorial misconduct, the effect of which
we discuss later.
E. Comments on Defendants' Failure to Testify
Various appellants challenge five statements by prosecutors,10
contending that the statements were improper comments upon
10
The challenged comments were made by two different assistant
United States Attorneys.
31
defendants' failure to testify. We conclude that in two instances
prosecutors did violate appellants' Fifth Amendment rights.
Prosecutors are prohibited from commenting directly or
indirectly on a defendant's failure to testify in a criminal case.
United States v. Montoya-Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993).
A prosecutor's remarks constitute impermissible comment on a
defendant's right not to testify, if the prosecutor's manifest
intent was to comment on the defendant's silence or if the
character of the remark was such that the jury would naturally and
necessarily construe it as a comment on the defendant's silence.
United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992),
cert. denied, 507 U.S. 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444(1993). A prosecutor's intent is not "manifest" if there is an
equally plausible explanation of the prosecutor's remark. United
States v. Collins, 972 F.2d at 1406. The challenged remarks must
be considered in the context of the case in which they are made.
United States v. Montoya-Ortiz, 7 F.3d at 1179. Some factual
background is necessary in order to consider the prosecutors'
comments in context.
During closing argument, a defense counsel placed a photograph
of a witness for the prosecution in the witness stand and discussed
the witness's testimony. During the rebuttal argument the
prosecutor removed the photograph from the witness stand, placed it
on an easel at the end of the jury box, and surrounded the
photograph with pictures of Alvarado, Adams, Felicia Lowery, and
Angela Tubbs. Thereafter he stated:
32
But I submit from the testimony you've heard that was,
that was, a man chosen by Darrell Adams, mind you, the
first relationship. That was a man chosen by Darrell Adams
to take care of and take charge of the most precious things
in Darrell Adam's everyday life, drugs and money. That
was the first choice made. That was the first relationship
made.
And to take this Houston Police Department glamour shot
of fat addict Roy. Come on. Is that not to some extent
misleading? Judging by his appearance. But to set that
photograph in that stand without including the other
players--
(40 R. 8074). Defendants' objected, and the jury was excused. The
district judge ruled that the statement was not a comment on the
defendant's failure to testify, but he offered to instruct the jury
to disregard the remark. Defendants declined the offer. The
prosecutor then continued his rebuttal argument stating:
You cannot be permitted to conclude from this Houston
Police Department glamour shot of Roy Patterson --
You cannot, you cannot, be permitted to conclude that
he acted alone, that he was not involved in some
combination, some confederation, some conspiracy,
to possess with intent to distribute cocaine and the
reasonably foreseeable consequence of cocaine, crack
cocaine, and marijuana. You cannot.
(40 R. 8082-83).
The prosecutor was attempting to persuade the jury that the
witness was not acting alone, that he was acting as part of a
conspiracy. The prosecutor's argument, although unartful, does not
demonstrate manifest intent to comment on the defendants' silence,
nor would a jury necessarily construe it as a comment on their
failure to testify. The statement was not an improper comment on
defendants' failure to testify.
The second comment made during the rebuttal argument is the
following:
33
[Counsel for Lowery] also submitted to you that his
client has led an open life. If it's so open, why don't
you put your automobiles in your name? If it is so open,
why don't you tell us what you do to make in this cash
business that you moved to after you've worked at
Cantonese Grocery. . ..
(40 R. 8099). Lowery moved for a mistrial. The motion was denied
based on the prosecutor's explanation, outside the presence of the
jury, that his comment was directed to Lowery's failure to file
income tax returns. The judge then instructed the jury to disregard
the statement.
No manifest intent to comment on the defendant's failure to
testify is demonstrated in the cited statement. The prosecutor's
explanation, i.e., that he was commenting on the lack of income tax
returns, is a plausible explanation for the statement. Moreover,
the jury would not necessarily and naturally view the statement as
a comment on Lowery's failure to testify. The statement did not
violate appellants' Fifth Amendment rights.
Appellants also attack a question posed by the prosecutor to
IRS Special Agent Jackson. Agent Jackson was asked: "[a]t any time
did A.D. Ernest invoke his right to remain silent?" The agent
stated "[h]e did later." (31 R. 6044). At this point in the trial
Ernest was a defendant; later he entered a guilty plea.
The inquiry was restricted to Ernest and did not implicate any
appellant. The jury would not necessarily construe a statement
that one defendant invoked his right to remain silent as a comment
on the remaining defendants' failure to testify. Moreover,
defendants' failure to contemporaneously object to the question
deprived the court of the opportunity to give a curative
34
instruction to eliminate or lessen any prejudice to appellants.
The question does not constitute error as to any appellant.
One troublesome comment occurred during the redirect
examination of Roosevelt Gatterson. Again, background is essential
to place the comment in the proper context. During direct
examination Gatterson testified about a number of activities in
which he engaged in furtherance of the conspiracy. During cross-
examination he was asked three times if anyone could corroborate
his testimony concerning three such activities, e.g., cocaine
deliveries. Gatterson responded "no" to each of the three
questions. On redirect the prosecutor inquired "[a]ren't there
some people in this courtroom that can back up what you say?" (15
R. 1165). Simultaneously the prosecutor made a sweeping arm
gesture indicating the individuals seated at counsel tables. The
judge immediately told the jurors to disregard the impermissible
question and instructed them as follows:
no defendant is required to present any evidence
in this case nor to testify in this case. You may
not, if any one of them choose not to do so, consider
that against them or in your consideration of the
evidence at all or in any respect whatsoever.
You've been instructed on that before. You're
instructed again. Mr. Dies has asked an improper
question in turning as he did toward the defendants
in this respect. They are under no burden to make
a response on any of that. Therefore, you're
instructed to disregard entirely that question.
(15 R. 1166).
The prosecutor demonstrated manifest intent to comment on the
defendants' failure to testify. In responding to the cross-
examination to the effect that there were no witnesses who could
35
corroborate Gatterson's testimony, the prosecutor implied that
there were such people in the courtroom, obviously referring to the
defendants. No one else in the court room could have witnessed the
events; only the defendants could reasonably be thought to be
capable of providing corroboration. The question was bad enough,
but the prosecutor made it worse by use of the arm gesture
emphasizing that he was referring to the defendants' failure to
testify. The prosecutor's question and gesture clearly constituted
an impermissible comment on the defendants' silence, serious
prosecutorial misconduct.
There is more: during the first portion of the government's
closing argument, in highlighting some of the court's instructions
on the law that the jury was likely to hear following closing
arguments, a prosecutor stated:
This also says that in an impeachment of prior
inconsistencies instruction something that I want to
remind you of and the instruction actually reminds
you of. It reminds you that a defendant has the
right not to testify. That is constitutional right.
It is yours. It is mine. It is theirs. Please
value it. I do. Don't take into consideration the
fact that whether or not anyone testified in this case
is inappropriate.
But what you also can't do in a situation like this is
go back into that jury room and make up a story for them.
That is impermissible by law. You can't play "what if."
You can't say, "Well, if they testified, well, maybe they
would have explained this. Maybe they would have said
that." That's not allowed and that's fair.
(39 R. 7779-80). Defendants objected to the argument as an
impermissible comment on their failure to testify and requested a
mistrial. The judge overruled the objection stating "[t]he jury is
going to follow the instructions of the court on that." Id.36
The government urges that there was no manifest intent to
comment on the failure to testify, because it is equally plausible
that the comment was a plea for the jury to base its verdict solely
on the evidence and not on speculation and conjecture, and that the
jury would not necessarily have considered the remark as a comment
on the defendants' failure to testify. Mindful that wide latitude
is accorded counsel during closing argument, we nevertheless deem
the prosecutor's statement to be error. The fact that the
prosecutor was not attempting to have the jury infer guilt due to
the defendant's failure to testify does not render the statement
permissible. The statement was a direct comment on the failure to
testify. Even though the prosecutor cautioned the jury not to
consider whether the defendants testified at trial, his comment
focused the jury's attention on the fact that the defendants did
not testify. It matters not that the prosecutor was paraphrasing
the court's instruction. A statement by the court referring to the
defendant's right not to testify is far different from a similar
reference by the prosecutor in closing argument; indeed, a
defendant who has chosen not to testify probably has the right to
request the court to delete such a reference from the court's
charge. In any event, the last portion of the prosecutor's
statement had no basis in the court's charge and was arguably an
incorrect statement of the law. Nothing precludes jurors from
theorizing in their own minds as to a defendant's version of the
facts in the absence of testimony from the defendant. Our system
of justice rigorously guards the right of an accused to remain
37
silent and not to testify. Prosecutors are obligated never to
attempt to sway a jury in any way because of the exercise of an
accused of that right. To suggest that a defendant's decision not
to testify somehow limits jurors' mental processes, e.g., with
respect to inferences to be drawn from direct evidence, violates
that obligation. The prosecutor's statement constitutes error.
EFFECT OF PROSECUTORIAL MISCONDUCT
Having concluded that the prosecutor's references to the
defendants' failure to testify and their improper questioning of
various law enforcement officials constitute serious misconduct, we
must now determine whether those tactics cast serious doubt upon
the correctness of the jury's verdict. Otherwise, the errors are
harmless and do not justify reversal. United States v. Palmer, 37
F.3d 1080, 1085 (5th Cir. 1994), cert. denied, U.S. , 115
S.Ct. 1804, 132 L.Ed.2d 265 (1995).
In examining the effect of the prosecutors' impermissible
comments, we consider three factors: "the magnitude of the
prejudicial effect of the remark, the efficacy of any cautionary
instruction, and the strength of the evidence of the defendant's
guilt." United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir.
1994), cert. denied sub. nom., 513 U.S. 1156, 115 S.Ct. 1113(1995).
The prejudicial effect of the comment and gesture during
Gatterson's testimony was slight. The question was asked during
the second week of a trial that lasted twenty-nine (29) days
extending over a period of approximately eight weeks. The prejudice
38
was also lessened because the question was asked during the
government's case-in-chief. At that time the jury did not know
that the defendants would not testify and would therefore be less
inclined to construe the question as a comment on the defendants'
silence. The judge's timely and thorough jury instruction further
mitigated the effect of that improper comment.
The prosecutor's comment during closing argument was more
prejudicial. It was a direct comment on defendants' failure to
testify, and it occurred only one day before the jury began
deliberations.
The prejudice was mitigated somewhat by the trial judge's
instruction prior to the commencement of jury deliberations that:
The law does not require a defendant to prove
his innocence or to produce any evidence at
all and no inference whatever may be drawn
from the election of a defendant not to testify.
Yesterday morning when [the prosecutor] was
giving -- going over some of the instructions,
she expected that I would give and remarked on
one of these passages and [defense counsel]
moved for a mistrial and I denied that and
said the jury would follow my instructions.
My instructions are these.
Again, no inference whatever may be drawn from
the election of a defendant not to testify.
(40 R. 8174). While the harm was mitigated by this jury
instruction, the prejudice remained. The constitutional right of a
defendant to choose not to testify is a fundamental tenet of our
system of justice. The prejudice resulting from a direct reference
by a prosecutor to the exercise of that right, coupled with an
attempt to use the failure to testify to limit the jurors personal
39
deliberative process cannot be completely cured by a court
instruction. The remaining prejudice, especially if cumulated with
prejudice resulting from other misconduct, may be sufficient,
absent substantial evidence of a defendant's guilt, to cast doubt
upon the correctness of the jury's verdict.
As previously stated, the prosecutors' improper questioning of
law enforcement officials was highly prejudicial to those
appellants directly implicated. There are no factors mitigating
that prejudice.
To complete the analysis as to whether the prosecutors' errors
justify reversal of convictions, we must measure the prejudice
resulting from the misconduct against the strength of the evidence
as to each appellant's guilt.
A. Darrell Adams
There is no need to repeat the extensive evidence already
recounted in detail. Suffice it to say that the evidence against
Adams is overwhelming. Bosia Cash, Roosevelt Gatterson, Officer
Henry King, Kimela Lomax, Stevenson McClendon, Bruce Embrey, and
Roy Patterson all identified Adams as the supplier of narcotics
being transported to Shreveport for distribution over a lengthy
period. There was a great deal of evidence that Adams directed the
activities of his co-conspirators in Houston, arranged for the
narcotics to be transported to Shreveport, identified the person to
whom the drugs were to be delivered, and collected and counted the
vast profits derived from these illegal activities.
There is also considerable circumstantial evidence against
40
Adams. Documents seized from Adams' office at ProCare were
identified by FBI Agent Harold Clouse as drug ledgers.
Additionally, Adams engaged in various practices common among those
involved in narcotics trafficking, including listing pager and
telephone service in the name of another. Over a two year period,
thirty three (33) different pagers were billed to ProCare.
There is also strong financial evidence of Adams' guilt.
Receipts for wire transfers of money were retrieved from his
garbage, two for transfers of $4,000 and one for $3,000. Adams
frequently had large amounts of cash in his possession; he made
cash payments of $5,000 and $5,341.82 on a Lexus automobile and
kept $10,000 in cash in a shoe box in his closet. The search of
Adams' house at the time of his arrest yielded $32,000: $3,000 in
a bag in a closet in the master bedroom, $13,000 in a shed, and
$19,000 in a bag behind the washing machine.
The financial condition of ProCare also provides evidence of
Adams' guilt. Based on records from the State Comptroller's
Office, in 1993 ProCare's reported sales were approximately the
same as those established by the records of sales seized at
ProCare. However, bank deposits for the business in 1993 were
significantly higher. That surplus is not accounted for by
transfers of money from Adams' personal back account to the
corporation's account. After deducting Adams' expenditures from
his personal bank account, insufficient funds remained to account
for the funds deposited into ProCare's account. Although Adams
purchased Procare in 1991, his income tax return for that year does
41
not record any income from ProCare. Adams did not file income tax
returns in 1992 and 1993. On a credit application for the purchase
of a car executed in October 1993, Adams stated that his yearly
salary from ProCare was $75,000.
Considering the overwhelming evidence against him, the
prosecutorial misconduct does not rise to the level of reversible
error as to Adams.
B. Gonzalo Alvarado
As with Adams, the evidence against Alvarado is overwhelming.
Several witnesses named Alvarado as Adams' source of drugs.
Stevenson McClendon testified that he purchased cocaine from
Alvarado on behalf of Adams. Gatterson testified that he picked up
cocaine destined for Shreveport from Alvarado. Roy Patterson
testified that Alvarado personally delivered five kilograms of
cocaine to him at the stable used by Adams.
Witnesses saw Adams deliver money to Alvarado, and there was
evidence of frequent communication between Adams and Alvarado,
including testimony that Alvarado called ProCare daily. When Bosia
Cash was arrested and the cocaine he was transporting was seized,
Adams sent Gatterson to inform Alvarado of the loss.
During the search of Alvarado's house twelve (12) pounds of
marijuana and a five pound scale were seized. A document seized
from Adams' office at ProCare, identified as a drug ledger,
indicated a payment to Alvarado for cocaine.
Alvarado challenges his convictions based solely on the two
comments by prosecutors on the defendants' failure to testify.
42
Considering the overwhelming evidence of Alvarado's guilt we find
that the prosecutors' improper comments do not constitute
reversible error, and we affirm his convictions.
C. Eric Lowery
Considering the strength of the evidence against Lowery we
conclude that the prosecutors' misconduct did not have an effect on
the outcome of his trial. Thus, the misconduct was harmless error
as to Lowery.
Roy Patterson testified that in approximately May 1993,
Lowery and Johnston came to ProCare and Lowery arranged with
Patterson to deliver a shipment of marijuana to Shreveport.
Roosevelt Gatterson testified that he saw Lowery at ProCare on two
occasions; both times Lowery met with Adams. On the second occasion
Lowery was accompanied by Johnston. Gatterson testified that he
was told that Lowery and Johnston were at Procare for some type of
narcotics deal.
Roy Patterson also testified that large amounts of cocaine and
marijuana were delivered directly to Lowery. Patterson testified
that Lowery participated in the weighing of one marijuana delivery
to Shreveport, and Derrick Patterson corroborated Lowery's
involvement in that delivery of marijuana.
Roy Patterson testified that he received large amounts of cash
from Lowery and delivered that money to Adams. Kimela Lomax
testified that Johnston delivered a large amount of cash to Adams'
house. Lomax further testified that when Adams confronted Johnston
with an accusation that the money Johnston delivered was "short,"
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Johnston called Lowery, who discussed the situation with Adams.
There is also strong circumstantial evidence of Lowery's
guilt. Lowery phoned and visited Adams at ProCare, and Lowery and
Adams met in Shreveport a number of times so that Adams could "take
care of business." Murray Franks, a salesman with EconoPage,
testified that he sold several pagers to Lowery during the period
covered by the conspiracy.
During the period covered by the conspiracy Lowery purchased
a Grand Prix automobile; he told the car salesman that he did not
want to pay more than $10,000 cash for the car. Lowery paid for
the Grand Prix in cash, primarily in denominations of $50 or less.
He registered the vehicle in Jennifer Gerard's name. The vehicle
Lowery traded in at the time he purchased the Grand Prix was also
registered in Jennifer Gerard's name.
In December 1993, Lowery's brother Walter Gerard used $5,000
cash received from Lowery to pay part of the purchase price of an
automobile. Although the vehicle was registered in Walter Gerard's
name and Gerard had a set of keys, it was clear that the car was
Lowery's. Lowery failed to file income tax returns for the years
1991-1993.
D. EDWARD JOHNSTON
There is abundant evidence of Johnston's guilt. Kimela Lomax
testified that she witnessed an exchange of drugs and money between
Johnston and Adams. Gatterson testified that Johnston accompanied
Lowery to ProCare. Roy Patterson testified that Johnston appeared
at ProCare with Lowery on one occasion and that after Lowery made
44
arrangements for Roy Patterson to transport thirty (30) pounds of
marijuana to Shreveport, Johnston transferred a bag into
Patterson's truck. Roy Patterson also testified that Johnston
transported marijuana and cocaine for Adams. Johnston accepted
delivery of four kilograms of cocaine from Roy Patterson for
delivery to Shreveport.
Kimela Lomax testified that Johnston delivered large amounts
of cash to Adams on more than one occasion. On one of the
occasions Adams informed Johnston that the money was "short;" in
response Johnston telephoned Lowery.
Johnston was employed at the City Lights Club owned by Hill.
On one occasion Johnston was stopped for a traffic offense shortly
after leaving City Lights. He identified the vehicle as belonging
to Hill, even though it was registered to Marilyn Timmons. A
search of the vehicle revealed $1,802 and two guns which Johnston
said belonged to Hill.
Because Johnston was not directly implicated by any of the
prosecutor's improper questioning of law enforcement officials,
that misconduct was not damaging to him. The prosecutors' comments
on the defendants' failure to testify are the sole errors affecting
Johnston. Because the evidence of Johnston's guilt is strong, the
improper comments are not reversible error.
HILL
Hill joins in the complaints about prosecutorial misconduct;
alone among the defendants he claims that in any event the evidence
is insufficient to support his conviction. We conclude that had
45
prosecutorial misconduct not occurred, we would affirm Hill's
conviction. But the evidence against Hill is not strong enough to
support a conclusion that the prejudice resulting from the
prosecutors' misconduct did not substantially affect his right to
a fair trial.
The essential elements of a conspiracy under 21 U.S.C. §846are: (1) an agreement between two or more persons to violate the
narcotics laws; (2) a defendant's knowledge of the agreement; and
(3) his voluntary participation in that agreement. United States
v. Morris, 46 F.3d 410 (5th Cir. 1995). Hill concedes that the
government established an agreement to violate the drug laws, but
contends that the government failed to prove that he was part of
the agreement.
In reviewing a claim that there is insufficient evidence to
support a conviction, we must determine whether "viewing the
evidence and the inferences that may be drawn from it in the light
most favorable to the verdict, a rational jury could have found the
essential elements of the offense beyond a doubt." United States
v. Morgan, 117 F.3d 849, 853 (5th Cir. 1997). We are required to
"accept all credibility choices that tend to support the jury's
verdict." Id., quoting United States v. Anderson, 933 F.2d 1261(5th Cir. 1991).
Applying these tests, we conclude that there is sufficient
evidence against Hill to sustain his conviction had serious
prosecutorial misconduct not occurred. There is direct evidence of
Hill's participation in the conspiracy. Roy Patterson and Derrick
46
Patterson testified that Hill participated in one delivery of
thirty (30) pounds of marijuana. The Pattersons testified that
Hill led the Pattersons and Lowery to Jennifer Gerard's house,
unlocked the door to the house and helped weigh the marijuana.
There is also circumstantial evidence of Hill's guilt. Hill
owned the City Lights Club which Lowery managed. Hill referred to
Lowery as his partner. As already discussed, the evidence as to
Lowery's participation in the conspiracy is overwhelming.
Appellant Johnston, Jennifer Gerard, and Walter Gerard all worked
at City Lights at times during the period of the conspiracy.
Jennifer and Walter Gerard were paid in cash.
On December 10, 1993, Johnston was stopped a short distance
from the City Lights Club driving a truck registered to Marilyn
Timmons but identified by Johnston as belonging to Hill. A large
sum of cash ($1,802) was found in the truck; Johnston stated that
the money belonged to Hill. The search of the vehicle uncovered a
picture of Hill, Lowery, Adams, Derrick Patterson, and two other
men, taken at City Lights. On the same night that the photograph
was taken, Derrick Patterson rode with Lowery and Adams to the City
Lights Club. Patterson heard Adams ask Lowery about the quality of
the marijuana. Lowery told Adams that he would have to ask Hill
because Lowery "didn't mess with it." (27 R. 4753).
Ronnie Holden, a friend of Hill, acquired a pager for
Hill, and submitted the bills for the pager to him for payment.
Dexter Edwards, an account executive for Cellular One testified
that Hill purchased a cellular telephone from Cellular One and that
47
cellular phone service established in the names of Marilyn Timmons
and Debra Hall was used by Hill. Records of that cellular service
indicate that calls were made to ProCare in June and September of
1993.
When Hill was arrested, he asked an unidentified individual to
contact "Eric" and "[g]et me some lawyers." (20 r. 2776-78). Two
voided ProCare checks named "Larry Hill" as the payee. Hill did
not file an income tax return for 1992 or 1993. Although Hill
owned City Lights for a portion of 1991, his income tax return for
that year does not indicate any income from the club.
Although the evidence of Hill's participation in the
conspiracy is limited, "a rational jury could have found that the
evidence establishes guilt beyond a reasonable doubt." United
States v. Salazar, 958 F.2d 1285, 1290-1291 (5th Cir.), cert.
denied, 506 U.S. 863, 113 S.Ct. 185, 121 L.Ed.2d 129 (1992).
The evidence against Hill is far less compelling than that
against the other defendants, in part because it is largely
circumstantial. The testimony of the Pattersons is the only
evidence that directly links Hill to illegal narcotics trafficking,
and that testimony involved only one instance out of many months of
narcotics activity by other defendants. The only other evidence
against Hill is weak circumstantial evidence. Thus, the prejudice
resulting from the prosecutors' improper questioning and the
improper comments is more likely to have denied him his right to a
fair trial.
The jury heard a law enforcement officer testify that as a
48
result of information supplied by others he identified Hill as the
focus of the investigation. Such testimony coming from a source
generally viewed as highly credible is extremely prejudicial. The
jury also heard two improper references to the fact that Hill did
not testify at his trial. Weighing the evidence of Hill's guilt
against the extreme prejudice he suffered due to the prosecutors'
misconduct, we conclude that the cumulative effect of the errors
substantially affected Hill's right to a fair trial. Accordingly,
we reverse his conviction and remand for a new trial.11 We are very
reluctant to set aside a jury verdict rendered after a long,
expensive, contentious trial, at which the district judge performed
a creditable job of managing overzealous counsel. Nevertheless,
somewhere we must draw the line and send a message to prosecutors
that the Constitution governs their actions at trial. This is such
a case.
SENTENCING ISSUES
Edward Johnston and Eric Lowery appeal their sentences. They
each assert that their base offense level was improperly
calculated. Johnston also contends that his criminal history
category was not properly computed, and that the district judge
erred in stating during the sentencing that he did not have the
authority to depart from the Sentencing Guidelines.
Conversion of $90,000 to Cocaine Quantity
We apply the clearly erroneous standard of review to the
11
Because we reverse Hill's conviction we do not address his
contention that his sentence was improperly calculated.
49
district court's factual determination regarding the quantity of
drugs used to establish the base offense level. United States v.
Morris, 46 F.3d 410, 419 (5th Cir.), cert. denied,
U.S. 115 S.Ct. 2595 (1995). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole.
Id. A preponderance of the evidence must support the district
court's determination. United States v. Ruiz, 43 F.3d 985, 989
(5th Cir. 1995).
The base offense level under the Sentencing Guidelines is
determined in part by the amount of drugs involved. Both Johnston
and Lowery claim that the district court erred in converting
$90,000 in cash delivered by Johnston to Adams into five kilograms
of cocaine for the purpose of determining their base offense
levels. They contend that there is no evidence that the cash
represented proceeds of cocaine transactions.
Kimela Lomax testified that when Johnston delivered the money,
Adams complained that the money was short. There is evidence that
when Johnston called Lowery to discuss the shortage, Adams spoke to
Lowery and told him that he would be "minus one." Lomax testified
that "minus one" meant one "kilo." It is reasonable to infer that
"minus one" was a reference to a kilogram of cocaine.
Additionally, there is evidence that $18,000 is a reasonable price
for a kilogram of cocaine.
Although there is evidence that Lowery and Johnston were
involved in trafficking marijuana as well as cocaine, there is no
evidence of a single marijuana shipment large enough to account for
50
proceeds of $90,000. However, there is considerable evidence of
cocaine shipments equalling or exceeding five kilograms. The
district judge's conversion of the $90,000 into five kilograms of
cocaine was not erroneous.
Johnston also contends that his criminal history category was
improperly computed. Johnston was assessed three criminal history
points: one for driving under suspension and two because the
conviction involved in this appeal occurred while Johnston was on
probation for driving under suspension. Because Johnston had more
than one criminal history point he did not qualify for the "safety
valve" provision in §5C1.2 of the Sentencing Guidelines.
Johnston urges two grounds in support of his contention that
the district court committed error in calculating his criminal
history category: the driving under suspension charge was not
timely disclosed, thereby rendering it impossible for his attorney
to investigate the charge, and the government failed to prove the
driving under suspension offense by a preponderance of the
evidence.
Although the driving under suspension charge appeared in the
Presentence Investigation Report, detailed information concerning
the charge and a copy of the documents supporting that charge were
not provided to defense counsel until the addendum to the report
was filed on the morning of sentencing. Nevertheless, the claim
that the untimely disclosure prohibited counsel from investigating
the charge is without merit. Johnston's counsel was given time at
the sentencing hearing to review the addendum. Thereafter he
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indicated that he was ready to proceed with the sentencing. Had
counsel desired or required additional time to investigate the
validity of the driving under suspension charge, he should have
advised the court of that need. Considering counsel's statement
that he was ready to proceed with the sentencing, defendant cannot
now claim that he had insufficient time to investigate the charge.
Johnston's contention that the government failed to establish
the driving under suspension offense by a preponderance of the
evidence is also without merit. The district judge examined the
record of the offense and determined that there was a valid
conviction. There is no evidence to the contrary.
Johnston also contends that his sentence should be vacated
because the district judge mistakenly believed that he did not have
the authority to depart below the guidelines range. In support of
his contention, defendant relies on the following comments by the
district judge:
the United States laws control this matter, including
the guidelines that are prescribed by the United States
Sentencing Commission, and a court is required by law
to sentence within the guideline range. The defendant,
having been convicted by the findings of a jury, leads
then to the requirement that the judge impose a sentence
as prescribed by law. It's not within the power of the
judge to impose or not to sentence or to let one off or
to let one proceed without having a sentence within the
guideline range prescribed by federal law.
(46 R. 32) The comments were made in response to Johnston's
mother's request that her son be allowed to go home with her. The
comments are a reasonable explanation of why her request could not
be granted. The experienced district judge surely was aware of his
power to depart downward from guidelines; indeed he did so in
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assigning Johnston a criminal history category of I.12
ADAMS' 18 U.S.C. §924(c) CONVICTION
Adams was convicted on count 15 of the superseding indictment,
which charged that he "did knowingly and unlawfully aid, abet, and
assist others, known and unknown to the Grand Jury, to use and
carry a firearm during and in relation to a drug trafficking crime"
in violation of 18 U.S.C. §924(c)(1)." Based on Bailey v. United
States, U.S. , 116 S.Ct. 501, 508 (1995), Adams contends
that his conviction on that count must be reversed.
Adams admits that there is evidence that he aided and abetted
Roosevelt Gatterson in "carrying" a weapon in violation of 18
U.S.C. §924(c). However, Adams contends that because the jury was
improperly instructed as to the meaning of "use" as construed in
Bailey, there is no way to determine whether the conviction was
based on "use" or "carry", and therefore his conviction must be
reversed. The government concedes that there is insufficient
evidence of "use" as construed in Bailey to uphold Adams'
conviction and that the conviction must be reversed and the case
remanded for a trial on the "carrying" theory only. See United
States v. Fike, 82 F.3d 1315, 1328 (5th Cir.) cert. denied sub.
nom, U.S. , 117 S.Ct. 241 (1996).
CONCLUSION
For the reasons stated, we affirm the conviction of Gonzalo
Alvarado and the convictions and sentences of Edward Johnston and
12
The district judge concluded that a criminal history
category of II overrepresented the seriousness of Johnston's
criminal history.
53
Eric Lowery. We also affirm the convictions of Darrell Adams
except as to his conviction on count 15, which is reversed and
remanded for trial on the charge of "carrying" a firearm in
relation to a drug trafficking crime. We reverse the conviction of
Larry Hill on count 1 and remand for a new trial.
ENDRECORD
54
KING, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from the judgment of the panel
reversing the conviction of Larry Hill on Count 1 of the
indictment. Judge Duplantier’s opinion does a careful job of
outlining the substantial evidence against Hill. In my view, the
prosecutorial misconduct that occurred here does not cast serious
doubt on the correctness of the jury’s verdict. I would affirm his
conviction. In all other respects, I concur in the panel’s
judgment and in Judge Duplantier’s superb opinion.
55