United States v. Thomas

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 91-8583
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLIS RAY THOMAS, A/K/A NUMBER 7, JERRY THOMAS
MAXWELL, STEVEN DARREL GREGG, MODESTO SERNA
SANCHEZ, JR., A/K/A NUMBER 6, and ROY LEE HODGKISS,
Defendants-Appellants.
__________________________________________________
Appeals from the United States District Court
for the Western District of Texas
__________________________________________________
(January 25, 1994)
ON PETITION FOR REHEARING
(Opinion December 21, 1993, 5th Cir. 1993, ___ F.3d ___)
Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE,*
District Judge.
EMILIO M. GARZA, Circuit Judge:
IT IS ORDERED that the petition for rehearing filed in the
above entitled and numbered cause be and the same is hereby
GRANTED. We hereby WITHDRAW our prior opinion and substitute the
following:
Defendants Ellis Ray Thomas ("Thomas"), Jerry Thomas Maxwell
("Maxwell"), Steven Darrel Gregg ("Gregg"), Modesto Serna Sanchez,
*
District Judge of the Western District of Louisiana, sitting by
designation.
Jr. ("Sanchez"), and Roy Lee Hodgkiss ("Hodgkiss") were jointly
tried before a jury and convicted of various offenses stemming from
a conspiracy to distribute narcotics. Thomas, Maxwell, Gregg, and
Sanchez were convicted of conspiring to possess a controlled
substance with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 846 (1988). The jury also found Thomas and Sanchez
guilty of possessing a controlled substance with intent to
distribute and aiding and abetting such possession, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Additionally, Sanchez was
found guilty of money laundering and aiding and abetting money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2.
Hodgkiss was convicted of engaging in a continuing criminal
enterprise ("CCE"), in violation of 21 U.S.C. § 848(a)(1), and of
using or carrying a machine gun in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1). All five
defendants now appeal their convictions and sentences. We affirm
in part and remand in part.
I
From 1986 to 1989, Hodgkiss operated an extensive conspiracy
to distribute cocaine, amphetamine, methamphetamine, and marijuana
in central Texas. Hodgkiss employed many people, including
government witnesses Aaron Clark and Robbie Curtis, to store,
transport, and distribute controlled substances. To facilitate the
purchase and sale of narcotics, and to insulate the conspiracy from
detection by law enforcement personnel, Hodgkiss devised a code
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system utilizing digital pagers. Hodgkiss assigned code numbers to
various people,1 types of drugs, and locations where the sales were
to be consummated. Customers would contact Hodgkiss to set up a
drug deal. Hodgkiss then would use the pagers to notify his
employees that, for example, person "01" would be waiting at
location "01" to purchase a specified amount of drug "01."
Hodgkiss kept records detailing many of the drug transactions he
arranged.
Hodgkiss obtained the drugs distributed by his retailers from
various sources. John Rogala provided Hodgkiss with much of the
cocaine distributed by the conspiracy, while Alan Gardner sold
large quantities of methamphetamine to Hodgkiss.2 Eventually,
Hodgkiss and Rogala began manufacturing methamphetamine themselves
at a laboratory they established near Smithville, Texas. Hodgkiss
and Rogala also attempted to import large quantities of marijuana
into the United States from Mexico, although they ultimately were
unsuccessful.
An investigation by local and federal authorities led to the
arrests of twenty-nine participants in the Hodgkiss conspiracy,
including the defendants, all of whom were charged in an indictment
1
John Rogala and his associates were "01"; Alan Gardner and his
associates were "03"; Sanchez was "06"; Thomas was "07"; Vance Zimmerman was
"10"; Wesley Schneider was "13"; Clark was "14"; Curtis was "17"; Keith and
Angela Norman were "26"; and Donald Copeland was "333". The government was
unable to discover the identities of "09", "10", and "69".
2
Hodgkiss also arranged purchases of drugs from David LeBoeuf, Joe
Reed, Kanetha Childers, Diane Watson, Clyde McCullar, and Billy Basham.
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alleging a number of drug-related offenses.3 A jury found the five
defendants guilty of all charged offenses. The district court then
sentenced Thomas to a prison term of 240 months. Maxwell received
a term of 124 months. Gregg received a 324 month term of
imprisonment. The district court sentenced Sanchez to a prison
term of 240 months, and Hodgkiss to life imprisonment. The
defendants now appeal their convictions and sentences.
II
Joint Claims
A
All five defendants generally argue that the evidence proved
the existence not of the single conspiracy alleged in the
indictment, but of multiple conspiracies. Gregg specifically
argues that there was a "material variance" between the single
conspiracy alleged in the indictment and the multiple conspiracies
proved by the government at trial. A conspiracy is "an agreement
by two or more persons to commit one or more unlawful acts and an
overt act by one of the conspirators in furtherance of the
conspiracy." United States v. Romeros, 600 F.2d 1104, 1106 (5th
Cir. 1979), cert. denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed.
3
On December 14, 1989, agents seized from Hodgkiss's home drug
ledgers, a list of code numbers and telephone numbers assigned to Hodgkiss's
distributors, a small amount of methamphetamine, over $20,000 in cash, a
telephone scrambling device, and firearms. Agents already had seized drug
ledgers, methamphetamine, marihuana, and other narcotics from Gregg's home.
Agents who searched Sanchez's residence in March 1990 seized a scale of the type
commonly used to weigh drugs, a trunk containing marihuana residue, and a
telephone scrambling device. Agents searching Maxwell's house seized several
hand scales, firearms, and a cocaine grinder.
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2d 759 (1980). A conspiracy conviction must be upheld if any
reasonable trier of fact could find beyond a reasonable doubt that
"a conspiracy existed, that each co-defendant knew of the
conspiracy, and that each co-defendant voluntarily joined it."
United States v. Simmons, 918 F.2d 476, 483-84 (5th Cir. 1990)
(internal quotation omitted). "No evidence of overt conduct is
required. A conspiracy agreement may be tacit, and the trier of
fact may infer agreement from circumstantial evidence." United
States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988).
"In general, once an indictment has been returned, its charges
may not be broadened through amendment except by the grand jury."
United States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th
Cir. 1991). A material variance occurs when a variation between
proof and indictment occurs, but does not modify an essential
element of the offense charged. Id. "With variance, our concern
is whether the indictment, assuming it has otherwise alleged the
elements of the offense, has so informed a defendant that he can
prepare his defense without surprise and has protected him against
a second prosecution for the same offenses." United States v.
Cochran, 697 F.2d 600, 604 (5th Cir. 1983). If a material variance
occurs, we determine whether the defendant has been prejudiced by
it using the harmless error analysis. United States v. Lokey, 945
F.2d 825, 832 (5th Cir. 1991).
Whether the evidence, or the reasonable inferences drawn
therefrom, proved one or more conspiracies turns on the following
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elements: (1) the time period involved, (2) the persons acting as
co-conspirators, (3) the statutory offenses charged in the
indictment, (4) the nature and scope of the criminal activity, and
(5) the places where the events alleged as the conspiracy took
place. Lokey, 945 F.2d at 831; United States v. Devine, 934 F.2d
1325, 1333 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.
954, 117 L. Ed. 2d 120 (1992). Here, the jury was presented with
evidence from which it could reasonably infer that the defendants
were involved in a single conspiracy between 1986 and 1989. For
example, Clark and Curtis both testified that they delivered drugs
at Hodgkiss's direction to Thomas and Sanchez during the relevant
time period. Curtis also testified that he obtained his "job" with
Hodgkiss through Alan Gardner, who often would collect the proceeds
of drug sales from Curtis for Hodgkiss. Moreover, Gardner would
inform Curtis of the pick-up locations for methamphetamine that
Hodgkiss purchased. Additionally, Clark testified that John Rogala
and Patrick Palmer set up the Smithville methamphetamine laboratory
at Hodgkiss's direction and that Rogala brought the methamphetamine
produced at the laboratory to Clark for distribution pursuant to
Hodgkiss's directions. Palmer stated that Rogala introduced him to
Hodgkiss and that Hodgkiss and Rogala jointly reimbursed him for
expenses he incurred while leasing the Smithville property. Edward
Crawford, who oversaw the manufacture of methamphetamine for
Hodgkiss, testified that he was paid for his services by Hodgkiss
through Gardner. Donald Copeland testified that Rogala and
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Hodgkiss attempted to smuggle a large quantity of marijuana into
the United States from Mexico. Gardner testified that he often
purchased narcotics from Hodgkiss and that Hodgkiss knew Gardner
would be distributing the drugs to others, including Maxwell.
Richard Townsen, one of Rogala's employees, testified that Gregg
delivered up to fifteen kilograms of cocaine to him, many of which
Rogala then delivered to Hodgkiss. Finally, Norman Allanson
testified that Gregg transported fifteen kilograms of cocaine that
Rogala had purchased from Florida to Texas.
Nonetheless, the defendants assert that because they did not
know the identity of other members of the Hodgkiss conspiracy, they
could not be guilty of conspiring with them. However, a jury may
find a defendant guilty of conspiring with unknown persons where a
sufficient overlap of personnel occurs))i.e., "if a pivotal figure,
such as [Hodgkiss], directs and organizes the illegal activity, and
has extensive dealings with each of the parties." Lokey, 945 F.2d
at 833. Thus, "[p]arties who knowingly participate with core
conspirators to achieve a common goal may be members of an overall
conspiracy," even in the absence of contact with other
conspirators. United States v. Richerson, 833 F.2d 1147, 1154 (5th
Cir. 1987) (internal quotation omitted). Therefore, as noted, the
jury's conclusion that Hodgkiss, Gregg, Sanchez, Thomas, and
Maxwell were co-conspirators was reasonable in light of the
evidence presented at trial.
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Moreover, the jury reasonably could have inferred from the
evidence that the defendants had a common goal of distributing
illegal drugs for profit, that they knew they were part of a larger
venture, and that the activities of each conspirator were
advantageous to the success of the overall venture:
Where the activities of one aspect of the scheme are
necessary or advantageous to the success of another
aspect of the scheme or to the overall success of the
venture, where there are several parts inherent in a
larger common plan, or where the character of the
property involved or nature of the activity is such that
knowledge on the part of one member concerning the
existence and function of other members of the same
scheme is necessarily implied due to the overlapping
nature of the various roles of the participants, the
existence of a single conspiracy will be inferred.
United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982). "[I]n
many narcotics distribution networks the ultimate retailers may not
know the identities of those who supply their wholesaler, and the
retailers' identities may be unknown to those suppliers; but all
are well aware that they are participating in a collective
venture." Lokey, 945 F.2d at 831 (internal quotation omitted).
The jury reasonably could have found that the defendants were part
of a single conspiracy: Gregg as a supplier, Hodgkiss as a
wholesaler, and Thomas, Maxwell, and Sanchez as retailers. Thus,
we find that the jury convicted the defendants only of the single
conspiracy charged, not the multiple conspiracies defendants allege
existed.4
4
In fact, the district court specifically instructed the jury that
[i]f you find that the conspiracy charged did not exist, then you
must return a not guilty verdict as to each Defendant . . . , even
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Finally, even if the evidence did prove the existence of
multiple conspiracies, the defendants, to obtain reversal, still
must demonstrate that the variance affected their substantial
rights. Here, we find that the indictment sufficiently informed
the defendants of the offenses charged and that they were not
surprised at trial. See Cochran, 697 F.2d at 604. Nor were the
convictions based upon a "set of facts distinctly different from
that set forth in the indictment." United States v. Chandler, 858
F.2d 254, 257 (5th Cir. 1988) (internal quotation omitted).
Accordingly, if any material variance occurred, we find that it was
harmless error. See Lokey, 945 F.2d at 834; see also United States
v. Jackson, 978 F.2d 903, 911 (5th Cir. 1992) ("[W]hen the
indictment alleges the conspiracy count as a single conspiracy, but
the ``government proves multiple conspiracies and a defendant's
involvement in at least one of them, then clearly there is no
variance affecting that defendant's substantial rights.'")
(citation omitted), cert. denied, ___ U.S. ___, 113 S. Ct. 2429,
124 L. Ed. 2d 649 (1993).
though you find that some other conspiracy or conspiracies existed.
If you find that a defendant was not a member of the conspiracy
charged in the indictment, then you must find that Defendant not
guilty, even though the Defendant may have been a member of some
other conspiracy.
This instruction, which substantially tracks our Pattern Jury Instructions, does
not permit the jury to convict the defendants for crimes not charged in the
indictment. See Zafiro v. United States, ___ U.S. ___, 113 S. Ct. 933, 939, 122
L. Ed. 2d 317 (1993) (noting that "``juries are presumed to follow their
instructions'") (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107 S. Ct. 1702,
1708, 95 L. Ed. 2d 176 (1987)).
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B
The defendants contend that the evidence was insufficient to
support their respective convictions for various drug-related
offenses. However, they failed to move for a judgment of acquittal
at the close of their cases.5 Accordingly, we restrict our review
of their claims to whether their convictions resulted in a manifest
miscarriage of justice. United States v. Vaquero, 997 F.2d 78, 82
(5th Cir.), petition for cert. filed (1993); United States v.
Galvan, 949 F.2d 777, 782 (5th Cir. 1991). "Such a miscarriage
would exist only if the record is devoid of evidence pointing to
guilt, or . . . [if] the evidence on a key element of the offense
was so tenuous that a conviction would be shocking." Galvan, 949
F.2d at 782-83 (citations omitted). "In making this determination,
the evidence, as with the regular standard for review of
insufficiency of evidence claims, must be considered ``in the light
most favorable to the government, giving the government the benefit
of all reasonable inferences and credibility choices.'" United
States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) (quoting
Hernandez-Palacios, 838 F.2d at 1348). Moreover, "[o]nly slight
evidence is needed to connect an individual to an illegal
conspiracy once the [government] has produced evidence of that
conspiracy." Vaquero, 997 F.2d at 82.
5
Maxwell and Gregg moved for a judgment of acquittal at the close of
the government's case, but not at the close of their cases.
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1
Maxwell contends that the evidence is insufficient to support
his conviction for conspiracy to possess controlled substances with
intent to distribute. However, Alan Gardner))who at one time
supplied Hodgkiss with drugs but later began purchasing drugs at
wholesale prices from Hodgkiss))testified that he began selling
cocaine to Maxwell in March 1988. Gardner stated that although
Maxwell usually purchased two ounces of uncut cocaine every other
week, Maxwell on occasion would order up to four ounces. Moreover,
Gardner normally "fronted"6 the cocaine to Maxwell. Gardner
employee Charles Barton corroborated Gardner's testimony. Ronald
McWilliams, who at one time supplied cocaine to Maxwell, testified
that he purchased cocaine from Maxwell on two occasions in 1989.
The jury could have concluded from this evidence that Maxwell
was a member of the Hodgkiss conspiracy. Maxwell received uncut
cocaine from Gardner, who purchased cocaine from Hodgkiss with
Hodgkiss's knowledge that the cocaine would be resold. Moreover,
Gardner also fronted the cocaine to Maxwell, allowing the jury to
infer that Maxwell was acting as a retailer of the cocaine. This
inference is supported by the testimony of McWilliams, who stated
6
"The term ``fronted' refers to a transfer of drugs in which one person
transfers the drugs to a second person in return for the second person's promise
to pay the sales price within a few days." United States v. Alfaro, 919 F.2d
962, 963 (5th Cir. 1990); see also United States v. Chase, 838 F.2d 743, 746
(5th Cir.) (defining "fronted" to mean "delivered on consignment"), cert. denied,
486 U.S. 1035, 108 S. Ct. 2022, 100 L. Ed. 2d 609 (1988). Thus, the jury may
reasonably infer that if a person has been fronted drugs, that person likely is
a dealer who intends to sell all or a portion of the drugs in order to pay the
drug supplier.
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that he purchased cocaine from Maxwell on two occasions.
Accordingly, Maxwell's conviction did not result in a manifest
miscarriage of justice.
2
Gregg also argues that the evidence did not support his
conviction for conspiracy to possess with intent to distribute.
However, Richard Townsen, who worked for Rogala, testified that on
several occasions Gregg delivered multiple kilograms of cocaine to
him that had been purchased by Rogala. Pursuant to instructions
from Rogala, Townsen would park his truck at a specified location
and then "disappear" for a couple of hours. Gregg, who obtained
the keys to Townsen's truck from Rogala, would place the cocaine in
the truck during Townsen's absence. Norman Allanson testified that
he sold cocaine to Rogala and Grey Hayes.7 On one occasion, Gregg
transported eight kilograms of cocaine from Florida to Texas for
Rogala. On a second occasion, Gregg transported seven kilograms
from Florida to Texas for Rogala. On a third occasion, Gregg
transported a sizable quantity of marijuana to Florida, picked up
five kilograms of cocaine from Allanson, but sold some of the
cocaine in Florida when he was not able to sell the marijuana.
Consequently, viewing the evidence in the light most favorable to
the government, Gregg's conviction did not result in a manifest
miscarriage of justice. See United States v. Greenwood, 974 F.2d
7
Townsen testified that Grey Hayes and Gregg were "partners" and that
Rogala purchased cocaine from Hayes. Allanson stated that he had been selling
cocaine to Gregg and Hayes for approximately ten years before his arrest.
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1449, 1457 (5th Cir. 1992) (noting that "common sense dictates that
someone ultimately would be responsible for distributing the
various . . . loads of marijuana which [the defendant] had helped
smuggle into the United States"), cert. denied, ___ U.S. ___, 113
S. Ct. 2354, 124 L. Ed. 2d 262 (1993); United States v. Pineda-
Ortuno, 952 F.2d 98, 102 (5th Cir.) (noting that intent to
distribute may be inferred from the fact that the defendant
possessed "a larger quantity of cocaine than an ordinary user would
possess for personal consumption"), cert. denied, ___ U.S. ___, 112
S. Ct. 1990, 118 L. Ed. 2d 587 (1992).
3
Thomas contends that the evidence was insufficient to support
his conspiracy conviction. Curtis, however, testified that while
he worked for Hodgkiss, he delivered one to two ounce quantities of
controlled substances to Thomas twice a week. Clark testified
that, pursuant to instructions given to him by Hodgkiss, he gave
both drugs and records of drug sales to Thomas for delivery to
Hodgkiss. Moreover, Clark stated that he delivered controlled
substances to Thomas on several occasions, and Hodgkiss assigned a
code number to Thomas to facilitate the distribution of narcotics.8
8
Thomas further argues that the government did not establish the
identity of "07" because the government's "entire case was based on
circumstantial evidence." However, the government may use circumstantial
evidence to establish the identity of a conspirator. See Hernandez-Palacios, 838
F.2d at 1348 (allowing the jury to infer that a defendant voluntarily joined a
conspiracy from circumstantial evidence). Moreover, Clark testified that Thomas
was "07" and Curtis testified that he delivered cocaine to Thomas on a regular
basis. Thus, the evidence supports the jury's finding that Thomas was "07."
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As with Gregg, we find that this evidence is sufficient to support
Thomas's conviction for conspiring to possess a controlled
substance with intent to distribute.
4
Sanchez contends that the evidence was insufficient to support
his conviction for money laundering, in violation of 18 U.S.C.
§ 1956. To establish a violation of this section, the government
must prove that Sanchez (1) knowingly conducted a financial
transaction9 (2) that involved the proceeds of an unlawful activity
(3) with the intent to promote or further that unlawful activity.
United States v. Salazar, 958 F.2d 1285, 1293 (5th Cir.), cert.
denied, ___ U.S. ___, 113 S. Ct. 185, 121 L. Ed. 2d 129 (1992).
Sanchez argues that the evidence supporting his conviction is
insufficient because it consists only of "government agents piecing
together some written materials seized during drug raids which
materials purportedly referenced [Sanchez] selling marijuana to
someone unknown in the Hodgkiss organization." We disagree.
Clark testified that Sanchez, whose code number was "06,"
delivered ten to fifteen pound quantities of marijuana to Clark
"more than once." Clark stated that these transactions would be
reflected in the drug ledgers seized from his residence. Officer
Philip Steen testified that Clark's drug ledgers showed that Clark
received fifteen pounds of marijuana from and paid $8,800 to
9
A "financial transaction" is defined as "the movement of funds by
wire or other means or . . . one or more monetary instruments" that "in any way
or degree affects interstate or foreign commerce." 18 U.S.C. § 1956(c)(4).
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Sanchez in March 1988. Steen also stated that a similar sale
occurred in April 1988 and that Sanchez was paid with money derived
from drug sales. As Clark was a member of the Hodgkiss conspiracy
and the drug ledgers reflected the movement of drug proceeds from
Clark to Sanchez, the evidence supports the jury's conclusion that
Sanchez was guilty of money laundering.
5
a
Hodgkiss first argues that the evidence is insufficient to
support his conviction for engaging in a CCE, in violation of 21
U.S.C. § 848, because he did not organize, supervise, or otherwise
manage five participants in his drug-trafficking conspiracy.10
Hodgkiss, however, admits in his brief that he supervised three
persons)) Aaron Clark, Robbie Curtis, and Gina Raven, Hodgkiss's
girlfriend.11 Thus, the question before us is whether the evidence
supports a finding that Hodgkiss supervised two additional
participants in the conspiracy.
10
Section 848(c) provides that a person engages in a CCE if:
(1) he violates any provision of [title 21] the punishment for which
is a felony, and
(2) such violation is part of a continuing series of violations of
[title 21]))
(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such
person occupies a position of organizer, a supervisory
position, or any other position of management, and
(B) from which such person obtains substantial income or
resources.
11
Hodgkiss conceded at oral argument that he "probably" supervised a
fourth person))Edward Crawford.
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Edward Crawford, who has a doctorate in chemistry, testified
that, for the sum of $25,000, he manufactured methamphetamine for
Hodgkiss and, at Hodgkiss's direction, instructed two other
persons))"Jake" and Patrick Palmer))"in the art and science of
manufacturing methamphetamine." Crawford, Jake, and Palmer used
chemicals obtained from Wesley Schneider to produce approximately
twenty-four pounds of methamphetamine at a "meth lab" near
Smithville, Texas. Thus, the jury reasonably could infer from
Crawford's testimony that Hodgkiss directed Crawford, Jake, and
Palmer.12 Consequently, examining the evidence in the light most
favorable to the government and giving the government the benefit
of all reasonable inferences and credibility choices, we find that
Hodgkiss managed at least five persons within the meaning of the
statute.13
b
Hodgkiss also appeals his conviction for using or carrying a
machine gun in relation to a drug trafficking offense, in violation
12
Moreover, Palmer testified that Hodgkiss directed him to find a
suitable location for a methamphetamine lab. Palmer then found the Smithville
site, leased it in his own name with his own funds, and subsequently was
reimbursed by John Rogala and Hodgkiss. After Crawford and Palmer manufactured
one batch of methamphetamine, Hodgkiss instructed Palmer to place the remaining
chemicals and lab equipment in storage.
13
Because we find that Hodgkiss organized, supervised, or managed
Crawford and Palmer, we need not discuss whether Hodgkiss managed anyone else.
However, we note that substantial evidence indicates that Hodgkiss likely managed
several other persons at various times during the conspiracy's existence. See
United States v. Phillips, 664 F.2d 971, 1034 (5th Cir. Unit B 1981) (noting that
"the requisite five persons need not have acted in concert at the same time"),
cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982).
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of 18 U.S.C. § 924(c)(1).14 Hodgkiss argues that the firearm
alleged by the government to be a machine gun actually was not such
a weapon, that he did not "use or carry" the machine gun within the
meaning of the statute, and that the district court erred in not
granting a judgment of acquittal on the machine gun count. We
disagree with all three contentions.
(i)
Hodgkiss initially argues that the AR-15 rifle found in his
house by government agents was not a machine gun within the meaning
of § 924(c)(1). However, two expert witnesses))Bureau of Alcohol,
Tobacco, and Firearms agents Davy Aguilera and Geoffrey
Descheemaeker))testified that the weapon had been altered to fire
as a machine gun. Thus, the evidence sufficiently supported the
jury's conclusion that the weapon at issue was a machine gun.15 See
Greenwood, 974 F.2d at 1458 ("Assessing the credibility of
witnesses . . . is the exclusive province of the jury.").
(ii)
14
This section provides that
[w]hoever, during and in relation to any crime of violence or drug
trafficking crime . . . for which he may be prosecuted in a court of
the United States, uses or carries a firearm, shall, in addition to
the punishment provided for such crime of violence or drug
trafficking crime, be sentenced . . . if the firearm is a machine
gun . . . to imprisonment for thirty years.
18 U.S.C. § 924(c)(1). "The term ``machinegun' means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot, automatically more than
one shot, without manual reloading, by a single function of the trigger." 26
U.S.C. § 5845(b).
15
Interestingly, Hodgkiss's attorney conceded during closing argument
that the weapon was a machine gun: "I started out trying to downplay the fact
that it was a machine gun. But after [Descheemaeker] got on, I just))he just
backed me down. I))it's a machine gun, I give up."
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Hodgkiss next contends that he did not "use or carry" the
firearm within the meaning of the statute because the machine gun
was unloaded and stored in a zippered gun bag in a second-floor
closet. The presence of firearms at the home of a defendant where
drugs, money, and ammunition are also found, however, is sufficient
to establish the "use" of a firearm as an integral part of a drug-
trafficking crime in violation of § 924(c). See United States v.
Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988). "The fact that a
weapon is ``unloaded' or ``inoperable' does not insulate the
defendant from the reach of section 924(c)(1)." United States v.
Contreras, 950 F.2d 232, 241 (5th Cir. 1991), cert. denied, ___
U.S. ___, 112 S. Ct. 2276, 119 L. Ed. 2d 202 (1992); see also Reed
v. Butler, 866 F.2d 128 (5th Cir.) (discussing the dangerousness of
unloaded or inoperable firearms), cert. denied, 490 U.S. 1050, 109
S. Ct. 1963, 104 L. Ed. 2d 431 (1989). "Moreover, this Court has
held that the Government is only obliged to show that the firearm
was available to provide protection to the defendant in connection
with his engagement in drug trafficking; a showing that the weapon
was used, handled or brandished in an affirmative manner is not
required." United States v. Molinar-Apodaca, 889 F.2d 1417, 1424
(5th Cir. 1989); see also United States v. Blake, 941 F.2d 334,
342 (5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 596,
121 L. Ed. 2d 533 (1992).
Agents seized from Hodgkiss's house the machine gun,
ammunition for it, other firearms, coded drug ledgers, a small
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amount of methamphetamine, and over $20,000 in cash. Don Howell,
the stepfather of Hodgkiss's girlfriend, Gina Raven, testified that
Hodgkiss on one occasion stated that he needed the weapon for
protection because of "his line of business."16 See United States
v. Martinez, 808 F.2d 1050, 1057 (5th Cir.) ("Firearms are ``tools
of the trade' of those engaged in illegal drug activities."), cert.
denied, 481 U.S. 1032, 107 S. Ct. 1962, 95 L. Ed. 2d 533 (1987).
Based upon the record evidence, the jury was entitled to conclude
based that Hodgkiss used the machine gun in relation to a drug-
trafficking offense. See, e.g., United States v. Capote-Capote,
946 F.2d 1100, 1104 (5th Cir. 1991) (machine gun found with a
loaded clip beside it in a closed drawer of a chest on the second
floor of an apartment facilitated a drug transaction), cert.
denied, ___ U.S. ___, 112 S. Ct. 2278, 119 L. Ed. 2d 204 (1992);
United States v. Coburn, 876 F.2d 372, 375 (5th Cir. 1989)
(unloaded shotgun in gun rack of vehicle containing marijuana
violated § 924(c) even though no shells were found in the vehicle).
(iii)
Hodgkiss finally contends that the district erred in denying
his post-trial motion for a judgment of acquittal on the machine
gun count, which defined the predicate drug trafficking crime
required by § 924(c) to be the conspiracy alleged in count two of
the indictment. Hodgkiss argues that because he was acquitted of
16
Hodgkiss previously told Howell that "his business" involved
supplying money to people for drug deals.
-19-
the conspiracy upon which the § 924(c) violation was predicated, he
could not have been guilty of a § 924(c) violation.17
Hodgkiss misinterprets the requirements of § 924(c). "[T]here
is no statutory requirement that the government secure an
underlying drug-trafficking conviction as a predicate for invoking
section 924(c)(1)." United States v. Munoz-Fabela, 896 F.2d 908,
909 (5th Cir.), cert. denied, 498 U.S. 824, 111 S. Ct. 76, 112 L.
Ed. 2d 49 (1990). Instead, "it is only the fact of the offense,
and not a conviction, that is needed to establish the required
predicate." Id. at 911; see also United States v. Ruiz, 986 F.2d
905, 911 (5th Cir.) (acquittal on the predicate count does not
preclude a conviction under § 924(c) if a reasonable jury could
have found the defendant guilty of the predicate act), cert.
denied, ___ U.S. ___, 114 S. Ct. 145, 126 L. Ed. 2d 107 (1993).
Thus, the jury's finding that Hodgkiss engaged in a conspiracy to
distribute illegal drugs qualifies as a drug-trafficking offense
under § 924(c), and is more than sufficient to support Hodgkiss's
conviction. Accordingly, the district court did not err in
refusing to enter a judgment of acquittal.
C
Sanchez and Hodgkiss contend that the district court erred in
denying their motions for severance under Fed. R. Crim. P. 14.
17
Although the jury found Hodgkiss guilty of the conspiracy alleged in
count two, the district court entered a judgment of acquittal on that count
because the jury also found Hodgkiss guilty of engaging in a continuing criminal
enterprise, of which conspiracy is a lesser-included offense. See Devine, 934
F.2d at 1342 (noting that "a § 846 conspiracy is a lesser-included offense of a
§ 848 continuing criminal enterprise").
-20-
Sanchez contends that he was entitled to a severance because he had
only a minimal involvement in the conspiracy, the jury was "simply
overwhelmed" by the volume of evidence, and evidence admissible
against other defendants was inadmissible as to him. Hodgkiss
argues that he was entitled to severance because evidence was
admissible against other defendants but inadmissible against him
and his defense strategy conflicted with that of at least one of
his co-defendants.18
Denial of a motion for severance is reviewable only for an
abuse of discretion. Zafiro v. United States, ___ U.S. ___, 113 S.
Ct. 933, 939, 122 L. Ed. 2d 317 (1993); United States v. Arzola-
Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933,
110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). "Reversal is warranted
only when the [defendant] can demonstrate compelling prejudice
against which the trial court was unable to afford protection."
Arzola-Amaya, 867 F.2d at 1516. "The rule, rather than the
exception, is that persons indicted together should be tried
together, especially in conspiracy cases." United States v.
Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, ___ U.S. ___,
114 S. Ct. 266, 126 L. Ed. 2d 218 (1993). Accordingly, a
18
Sanchez and Hodgkiss further allege that the indictment incorrectly
charged a single conspiracy, thus demonstrating that joinder was initially
incorrect under Fed. R. Crim. P. 8(b). In such cases, the defendants, to obtain
a reversal of their convictions, need only establish that the misjoinder resulted
in "actual prejudice." United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725,
732, 88 L. Ed. 2d 814 (1986). However, we already have found that the evidence
supported the jury's verdict that a single conspiracy existed. See part II.A.
supra. Consequently, the Lane test is inapplicable. See also United States v.
Piaget, 915 F.2d 138, 142 (5th Cir. 1990) (stating that Rule 8(b) "is to be
broadly construed in favor of initial joinder").
-21-
quantitative disparity in the evidence "is clearly insufficient in
itself to justify severance." United States v. Harrelson, 754 F.2d
1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S. Ct. 599,
88 L. Ed. 2d 578 (1985). Moreover, "the mere presence of a
spillover effect does not ordinarily warrant severance." United
States v. Sparks, 2 F.3d 574, 583 (5th Cir. 1993). Finally,
severance is not required merely because co-defendants present
mutually antagonistic defenses: "Rule 14 leaves the determination
of risk of prejudice and any remedy that may be necessary to the
sound discretion of the district court." Zafiro, 113 S. Ct. at
938-39.
In this case, the government offered sufficient evidence
demonstrating that Sanchez and Hodgkiss were guilty of the crimes
charged. See parts II.B.4 and .5 supra. Moreover, even if some
risk of prejudice existed, the district court properly instructed
the jury to limit evidence to the appropriate defendant,19 and
"``juries are presumed to follow their instructions.'" Zafiro, 113
S. Ct. at 939 (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107
S. Ct. 1702, 1708, 95 L. Ed. 2d 176 (1987)). Sanchez and Hodgkiss
19
In addition to the multiple conspiracy instruction, see note 4 supra,
the district court gave the following instruction:
In determining whether a Defendant was a member of the alleged
conspiracy, . . . you should consider only the evidence, if any,
pertaining to his own acts and statements. He is not responsible
for the acts or declarations of other alleged participants until it
is established beyond a reasonable doubt first that a conspiracy
existed, and second, that the Defendant was one of the members.
The district court also instructed the jury that the defendants were not "on
trial for any act, conduct or offense or offenses not alleged in the superseding
indictment."
-22-
provide no sound reason for departing from this principle. Because
Sanchez and Hodgkiss did not suffer compelling prejudice against
which the district court was unable to afford protection, the
district court did not abuse its discretion in refusing to sever
their cases.
D
Sanchez and Hodgkiss next contend that the district court's
denial of their requests for production of notes prepared by
federal agents who debriefed several plea-bargaining defendants
violated both the Jencks Act, 18 U.S.C. § 3500,20 and the Supreme
Court's holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 1196-97, 10 L. Ed. 2d 215 (1963).21 The government contends
that the debriefing notes are neither Jencks Act nor Brady
material.
Under the Jencks Act, a "statement" is (1) a written statement
signed or otherwise adopted or approved by the witness, or (2) a
"substantially verbatim recital" of an oral statement made by the
20
This section provides in relevant part:
(b) After a witness called by the United States has testified
on direct examination, the court shall, on motion of the defendant,
order the United States to produce any statement (as hereinafter
defined) of the witness in the possession of the United States which
relates to the subject matter as to which the witness has testified.
If the entire contents of any such statement relate to the subject
matter of the testimony of the witness, the court shall order it to
be delivered directly to the defendant for his examination and use.
21
In Brady, the Supreme Court held that "the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1196-
97.
-23-
witness. 18 U.S.C. § 3500; United States v. Pierce, 893 F.2d 669,
675 (5th Cir. 1990). An agent's interview notes thus are not
"statements" of the witnesses interviewed unless the witnesses
"signed, read, or heard the entire document read." Pierce, 893
F.2d at 675. Although the defendants thoroughly cross-examined
each of the government witnesses, they were unable to produce any
evidence that one of these three conditions was met. See id.
Similarly, there is no evidence that any portion of the notes was
a substantially verbatim transcription of the witness's statements.
Thus, the notes are not discoverable under the Jencks Act as
statements of the plea-bargaining defendants.22 United States v.
Mora, 994 F.2d 1129, 1138 (5th Cir.), cert. denied, ___ U.S. ___,
___ S. Ct. ___ (1993); United States v. Ramirez, 954 F.2d 1035,
1038 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 3010, 120
L. Ed. 2d 884 (1992).
The defendants also contend that the notes constitute Brady
material because they contain either exculpatory evidence or
evidence useful for impeachment purposes. Prior to trial, the
defendants requested from the government any Brady evidence. The
district court denied their motions as moot in light of the
government's assurances that all Jencks and Brady material would be
produced. During trial, however, the defendants discovered that
22
Although the district court addressed the issue whether the notes
constituted Jencks Act statements of the plea-bargaining defendants, the court
did not discuss whether the notes constituted Jencks Act statements of the
testifying agents. See note 25 infra.
-24-
the government failed to produce the notes made by agents during
debriefing sessions with the plea-bargaining defendants. The
government contends that the debriefing notes did not have to be
produced because they contained no exculpatory or otherwise useful
information. The record is unclear as to whether the district
court reviewed in camera all or just a portion of the notes sought
by the defendants.23 Moreover, the record is unclear as to the
exact findings of the district court regarding the material
reviewed in camera by the court.24
Accordingly, rather than determine ourselves whether the
government should have produced the notes pursuant to the Brady
doctrine))i.e., whether the notes contain evidence material either
to guilt or punishment))we remand this matter to permit the
district court to make such a determination in the first instance.
United States v. Gaston, 608 F.2d 607, 614 (5th Cir. 1979); see
also United States v. Welch, 810 F.2d 485, 491 (5th Cir. 1987)
(similar remedy with respect to Jencks Act); United States v.
Hogan, 763 F.2d 697, 704 (5th Cir. 1985) (same). If the district
23
The government contends that the district court reviewed all
debriefing notes prepared by government agents. The record, however, indicates
that the government produced only two sets of notes))one for the debriefing
sessions of Alan Gardner and one for witness Don Howell. Moreover, only the
notes related to Gardner are included in the record on appeal.
24
The district court reviewed in camera the notes from Gardner's
debriefing sessions. The court then denied Maxwell's motion for production of
the notes, thereby implying that the notes contained no Brady material. However,
in denying Maxwell's motion, the court remarked that "to say there is no
exculpatory or Brady material in that would be to engage in severe
overstatement." (Emphasis added). While the district court may have merely
misstated his conclusion, the exact import of its ruling is unclear in these
circumstances.
-25-
court concludes that the notes need not have been produced, it
should supplement the record with the notes and with sufficiently
detailed findings to enable us to review the decision. Welch, 810
F.2d at 491; Gaston, 608 F.2d at 614. If the defendants contest
the district court's findings, they need not file a new appeal.
"They may, instead, lodge with this court certified copies of the
trial court's findings and, if needed, supplementary briefs or
other materials. This matter will be referred to this panel."
Welch, 810 F.2d at 491. If the district court concludes that any
portion of the notes should have been produced, it then should
determine whether the government's failure to furnish the notes
amounts to a due process violation))i.e., whether "there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,
87 L. Ed. 2d 481 (1985). Unless the district court is persuaded
that the result of the proceeding would not have been different, it
should vacate the judgment of conviction and grant a new trial.25
Welch, 810 F.2d at 491; Gaston, 608 F.2d at 614.
25
Because we remand this matter the district court, we need not address
the defendants' additional contention that the notes constitute Jencks Act
statements of the testifying agents. Notes taken by an agent during witness
interviews can constitute statements of the agent under the Jencks Act, even if
the notes do not constitute statements of the witnesses. See United States v.
Sink, 586 F.2d 1041, 1051 (5th Cir. 1978) (finding an agent's report, prepared
from his notes and recollections from witness interviews, to be a statement of
the agent), cert. denied, 443 U.S. 912, 99 S. Ct. 3102, 61 L. Ed. 2d 876 (1979).
The government did not brief, and the district court did not address, this claim.
On remand, the district court also should evaluate this claim.
-26-
III
Jerry Thomas Maxwell
Maxwell contends that the trial judge should have given to the
jury the "buyer-seller" instruction that he requested. This
instruction, apparently based on United States v. Hughes, 817 F.2d
268, 273 (5th Cir.), cert. denied, 484 U.S. 858, 108 S. Ct. 170, 98
L. Ed. 2d 124 (1987), directed the jury to acquit Maxwell if they
believed that he received cocaine "for his own personal use and not
to facilitate the conspiracy or because he was a member of the
conspiracy." The government argues that the essence of Maxwell's
proposed instruction was substantially covered by the charge
actually given to the jury. We agree.
The district court's refusal to give a requested instruction
is reviewed for an abuse of discretion. United States v. Sellers,
926 F.2d 410, 414 (5th Cir. 1991). Under this standard of review,
the district court has "substantial latitude in tailoring
instructions so long as they fairly and adequately cover the issues
presented," United States v. Pool, 660 F.2d 547, 558 (5th Cir. Unit
B Nov. 1981), and is "under no obligation to give a requested
instruction that misstates the law, is argumentative, or has been
adequately covered by other instructions." United States v.
L'Hoste, 609 F.2d 796, 805 (5th Cir.), cert. denied, 449 U.S. 833,
101 S. Ct. 104, 66 L. Ed. 2d 39 (1980).
"While it is true that a buyer-seller relationship, without
more, will not prove a conspiracy, evidence of such activity goes
-27-
to whether the defendant intended to join in the conspiracy or
whether his or her participation was more limited in nature."
United States v. Maserati, 1 F.3d 330, 336 (5th Cir. 1993).
Accordingly, the drug conspiracy laws focus exclusively on the
question "whether the participants knowingly joined an agreement to
distribute drugs in violation of the law." Id. Therefore, if the
evidence demonstrates only that someone purchased drugs from the
conspiracy and did not agree to join it, "the elements necessary to
prove a conspiracy would be lacking, and a not guilty verdict would
result." Id. In this case, the district court, using our Pattern
Jury Charge, accurately instructed the jury on the law of
conspiracy, and the jury found Maxwell guilty of conspiring to
distribute drugs. Thus, the jury, by rendering a guilty verdict,
specifically found that Maxwell agreed to join the conspiracy. We
therefore find that Maxwell's theory was adequately covered by the
instructions, and the district court did not abuse its discretion
in refusing to give the requested instruction. See id.; L'Hoste,
609 F.2d at 805.26
26
Hodgkiss argues that the district court erred in refusing to instruct
the jury that they had to unanimously agree on the identity of the five
individuals whom Hodgkiss managed as part of the CCE. However, as Hodgkiss noted
at oral argument, the jury need not unanimously agree on the identities of the
five individuals. United States v. Linn, 889 F.2d 1369, 1374 (5th Cir. 1989),
cert. denied, 498 U.S. 809, 111 S. Ct. 43, 112 L. Ed. 2d 19 (1990). The district
court thus did not abuse its discretion in rejecting the proposed instruction.
-28-
IV
Steven Darrel Gregg
A
Gregg argues that the district court incorrectly denied his
motion to suppress evidence seized during the search of an
automobile he was driving. Gregg contends that the police officer
who searched the vehicle lacked probable cause to do so, thus
making the seized evidence the fruit of an illegal search. The
government argues that the officer had probable cause to search the
vehicle and that Gregg abandoned the bag in which the officer found
the contraband, thereby barring Gregg from challenging the legality
of the search.
"In reviewing a district court's ruling on a motion to
suppress evidence based on testimony at a suppression hearing, we
must accept the district court's factual findings unless they are
clearly erroneous or are influenced by an incorrect view of the
law." United States v. Garcia, 849 F.2d 917, 917 n.1 (5th Cir.
1988). "Further, we must view the evidence in the light most
favorable to the party that prevailed below." Id. However, we
review de novo the ultimate conclusion drawn from the district
court's factual finding. United States v. Diaz, 977 F.2d 163, 164
(5th Cir. 1992).
The Fourth Amendment provides that "the right of the people to
be secure in their persons, houses, papers, and effect, against
unreasonable searches and seizures shall not be violated."
-29-
Evidence obtained by the government in violation of a defendant's
Fourth Amendment rights may not be used to prove the defendant's
guilt at trial. Weeks v. United States, 232 U.S. 383, 398, 34 S.
Ct. 341, 346, 58 L. Ed. 652 (1914). In Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court stated
that where there is a reasonable and articulable suspicion that a
person has committed a crime, a limited search and seizure is not
unreasonable. Thus, if the detaining officer can "point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the search and
seizure]," the intrusion is lawful. Id. at 21, 88 S. Ct. at 1880.
Mississippi Deputy Sheriff Billy Collins initially stopped the
vehicle Gregg was driving because the automobile was weaving
between lanes. Thus, the initial detention was proper under Terry
because Collins had reasonable and articulable facts that warranted
the intrusion))Gregg had violated traffic laws. United States v.
Shabazz, 993 F.2d 431, 435 (5th Cir. 1993); United States v. Kye
Soo Lee, 898 F.2d 1034, 1040 (5th Cir. 1990). After Gregg was
initially detained, however, Collins was presented with a second
set of circumstances that, in our opinion, justified Gregg's
continued detention. This second set of facts included the smell
of marijuana emanating both from Gregg's person and from the
vehicle, Gregg's deception regarding whether he had ever been
-30-
arrested,27 and that Gregg was not the registered owner of the
vehicle. These factors gave Collins probable cause to believe that
the vehicle contained contraband, thus giving him the right to
search the vehicle. See United States v. Ryles, 988 F.2d 13, 14
n.2 (5th Cir.) (noting that an officer's "smelling marijuana
afford[s] probable cause to engage in a warrantless search" of a
vehicle), cert. denied, ___ U.S. ___, 114 S. Ct. 168, 126 L. Ed. 2d
128 (1993); United States v. Piaget, 915 F.2d 138, 140 (5th Cir.
1990) ("A warrantless search of an automobile is permissible where
officers have probable cause to believe the vehicle contains
contraband.").
Gregg nevertheless contends that because Collins did not have
probable cause to search the camera bag in which Collins found
marijuana and cocaine, the evidence should be suppressed. However,
Gregg ignores the fact that he abandoned the camera bag. When
Collins asked Gregg who owned the bag, Gregg shrugged his shoulders
and stated that he did not know.28 Gregg thus abandoned the bag,
allowing Collins to examine its contents. Piaget, 915 F.2d at 140;
Garcia, 849 F.2d at 919; United States v. Canady, 615 F.2d 694,
27
While running routine computer checks during the traffic stop,
Collins asked Gregg whether he had ever been arrested, and Gregg replied that he
had not. See Shabazz, 993 F.2d at 437 (finding that an officer may lawfully ask
questions of traffic-stop detainees while waiting for the results of computer
checks). However, Collins discovered via the computer checks that Gregg
previously had been arrested in Florida for a drug-related offense.
28
Gregg appears to challenge the district court's decision to credit
the testimony of officer Collins over that of Gregg. However, we must give due
deference to the credibility determinations of the district court, who has the
opportunity to observe the demeanor of witnesses. See Amadeo v. Zant, 486 U.S.
214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988).
-31-
697 (5th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 165, 66 L.
Ed. 2d 78 (1980). "Once a bag has been abandoned, and the
abandonment is not a product of improper police conduct, the
defendant cannot challenge the subsequent search of the bag."
Piaget, 915 F.2d at 140. As Collins had probable cause both to
stop Gregg's vehicle and to search it, Gregg could not have
abandoned the bag as result of improper police conduct.
Consequently, we find no error in the district court's denial of
Gregg's motion to suppress.
B
Gregg further argues that the prosecutor engaged in
prosecutorial misconduct by improperly bolstering the credibility
of government witnesses and expressing his personal opinion about
the credibility of one government witness during closing arguments.
The government contends that the prosecutor simply responded,
albeit in a "rhetorically excessive" fashion, to defense counsel's
attack on the credibility of the witnesses.
Thomas did not object to the prosecutor's statements that he
now contends requires reversal of his conviction. Consequently, we
must consider whether the statements were improper and, if so,
whether they amounted to plain error under Fed. R. Crim. P. 52(b).29
United States v. Hernandez, 891 F.2d 521, 526 (5th Cir. 1989),
cert. denied, 495 U.S. 909, 110 S. Ct. 1935, 109 L. Ed. 2d 298
29
Fed. R. Crim. P. 52(b) provides that "[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court."
-32-
(1990). We must review the allegedly improper argument "in light
of the argument to which it responded." United States v. Canales,
744 F.2d 413, 424 (5th Cir. 1984). Thus, the government "may even
present what amounts to be a bolstering argument if it is
specifically done in rebuttal to assertions made by defense counsel
in order to remove any stigma cast upon [the prosecutor] or his
witnesses." United States v. Dorr, 636 F.2d 117, 120 (5th Cir.
1981).
During closing arguments, defense counsel contended that the
plea bargain agreements between many of the government witnesses
and the prosecution invited the witnesses to perjure themselves so
as to procure lesser sentences. Specifically, defense counsel
argued that Clark, who testified that he was afraid of the
prosecutor, lied because of the "Draconian thumb" that the
government placed on his neck.30 The prosecutor, in rebuttal,
responded in kind:
Perhaps I should turn to Aaron Clark and why he is afraid
of me. And you know, Ladies and Gentlemen, they're
right, Aaron Clark was afraid of me, and I hope he was
afraid of me. I hope he remains afraid of me, because he
did something that is unforgivable, he lied under oath to
you; that isn't tolerable.
As Clark admitted under oath that he lied to the jury with regard
to whether he was an employee of Hodgkiss or an "independent
contractor," the prosecutor was entitled to comment before the jury
30
Defense counsel also argued that the government first determined what
it believed to be the truth and then "put[] the thumbscrew on the witness" to
agree with the government's version.
-33-
on Clark's testimony. Moreover, the prosecutor's statements
directly responded to defense counsel's attacks on both the
prosecutor and government witnesses who testified pursuant to plea
agreements. Accordingly, the comments were not improper and do not
constitute plain error under Rule 52(b).
V
Ellis Ray Thomas
Thomas contends that he was denied his Sixth Amendment right
to effective assistance of counsel because his trial counsel failed
to make various objections at trial and also failed to move for a
judgment of acquittal following the close of the evidence. Thomas,
however, failed to present this issue to the district court.31
"The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been before the district court since
no opportunity existed to develop the record on the merits of the
allegation." United States v. Higdon, 832 F.2d 312, 313-14 (5th
Cir. 1987), cert. denied, 484 U.S. 1075, 108 S. Ct. 1051, 98 L. Ed.
2d 1013 (1988). If the defendant fails to raise the claim before
the district court, we will reach the merits of the claim only if
the record is well-developed. Id. This is not such a case. As in
United States v. Freeze, 707 F.2d 132, 139 (5th Cir. 1983),
31
Although Thomas in his brief cited two instances where he raised his
claim before the district court, we have reviewed the record without finding any
indication that the district court was made aware of Thomas's allegation that his
trial counsel was constitutionally ineffective.
-34-
[w]hile we might be able to determine, on the basis of
the trial record, whether the defendant had been deprived
of effective assistance of counsel with regard to the
failure to make a motion for judgment of acquittal, we
can only speculate about why defense counsel made no
objections to the evidence. Accordingly, we decline to
reach the merits of the defendant's ineffective
assistance claim.
Thomas, of course, may raise this issue in an appropriate
proceeding under 28 U.S.C. § 2255. Id.; see also United States v.
Casel, 995 F.2d 1299, 1307 (5th Cir.), cert. denied, ___ U.S. ___,
___ S. Ct. ___ (1993).
VI
Sentencing
The defendants appeal the sentences imposed by the district
court under the Sentencing Guidelines. We will affirm any sentence
imposed by the district court "so long as it results from a correct
application of the guidelines to factual findings which are not
clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806
(5th Cir. 1989). "A factual finding is not clearly erroneous as
long as it is plausible in light of the record as a whole." United
States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
A
The defendants initially argue that the district court erred
by calculating their sentences on the basis of drug purchases and
sales not only by themselves, but also by other co-conspirators.32
32
The presentence investigative report ("PSR") found that the Hodgkiss
conspiracy distributed over 150 kilograms of cocaine or its equivalent. The PSRs
additionally found that Hodgkiss, Thomas, Gregg, and Sanchez each should be held
responsible for that amount. The defendants objected to these findings during
sentencing. The district court, however, overruled the objections and adopted
-35-
They contend that because they could not have reasonably foreseen
that the Hodgkiss conspiracy would involve such a large quantity of
drugs, the district court should not have taken into account the
entire amount of drugs attributed to the conspiracy when
determining their respective base offense levels.33
"A district court's findings about the quantity of drugs
implicated by the crime are factual findings reviewed under the
``clearly erroneous' standard." United States v. Rivera, 898 F.2d
442, 445 (5th Cir, 1990). Applying this standard, we uphold the
district court's determinations that the defendants could
reasonably foresee the amount of cocaine for which they were held
responsible.
1
Hodgkiss contends that the evidence does not support the
district court's finding that he knew or should have reasonably
the PSRs's findings. Hodgkiss, Gregg, and Sanchez now argue that the district
court did not comply with Fed. R. Crim. P. 32(c)(3)(D) because it failed to
specifically find that they knew or reasonably should have foreseen that the
conspiracy would involve over 150 kilograms of cocaine. However, an oral
rejection of a defendant's objection to a PSR satisfies the rule. United States
v. Sparks, 2 F.3d 574, 588 (5th Cir. 1993); United States v. Stouffer, 986 F.2d
916, 927 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 115, 126 L. Ed. 2d
80 (1993); United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).
33
A defendant's base offense level is determined on the basis of
all acts and omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise
accountable, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense, or
that otherwise were in furtherance of that offense.
U.S.S.G. § 1B1.3(a)(1). "Conduct ``for which the defendant would otherwise be
accountable' . . . includes conduct of others in furtherance of the execution of
the jointly-undertaken criminal activity that was reasonably foreseeable by the
defendant." U.S.S.G. § 1B1.3, comment. (n.1).
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foreseen that the conspiracy he founded distributed over 150
kilograms of cocaine or its equivalent. However, drug ledgers
seized from Hodgkiss's residence indicate that the conspiracy was
responsible for distributing approximately 56 kilograms of cocaine
from January 27, 1988 to July 7, 1989. As this period constitutes
approximately one-third of the conspiracy's life-span, the district
court, in light of the record evidence, reasonably could have
inferred that the conspiracy was responsible for distributing in
excess of 150 kilograms of cocaine during its existence. Moreover,
testimony presented by the government and evidence contained in the
PSR, including information obtained from other defendants, also
established that the conspiracy distributed in excess of 150
kilograms of cocaine.34 Consequently, the district court's finding
that Hodgkiss, who organized and retained control over every aspect
of the conspiracy, knew or should have reasonably foreseen the
amount of controlled substances distributed by the conspiracy is
not clearly erroneous.
2
Gregg also contends that the district court improperly held
him accountable for an excessive quantity of drugs. However,
Gregg, pursuant to a carefully devised plan, delivered multiple
kilograms of cocaine to Richard Townsen for John Rogala that Rogala
later sold to Hodgkiss. Moreover, Norman Allanson testified that
34
We note that government agents repeatedly classified this as
"conservative" estimate of the entire amount of illegal substances distributed
during the life of the conspiracy.
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Gregg transported, or attempted to transport, twenty-one kilograms
of cocaine from Florida to Texas for Rogala, who also joined forces
with Hodgkiss to manufacture a large quantity of methamphetamine.
Furthermore, the PSR indicates that Gregg was involved in
transporting massive quantities of cocaine for Allanson and Rogala.
See also part II.B.2 supra. "[A]n individual dealing in a sizable
amount of controlled substances ordinarily will be presumed to
recognize that the drug organization with which he deals extends
beyond his universe of involvement."35 United States v. Thomas, 963
F.2d 63, 65 (5th Cir. 1992). Thus, the district court's finding
that Gregg was responsible for the distribution of over 150
kilograms of cocaine is not clearly erroneous.36
35
In this regard, we note that Gregg apparently was not a novice in
matters related to the distribution of controlled substances. Ledgers seized
from Gregg's residence indicated that, separate from the Hodgkiss conspiracy, he
was responsible for drug sales of over $245,000 between 1987 and 1990.
36
Gregg argues that recent amendments to the commentaries and
application notes for U.S.S.G. § 1B1.3 indicate that the district court
erroneously held him accountable for a quantity of drugs not reasonably
foreseeable to him. Illustration (c)(7) to application note 2 provides:
Defendant R recruits Defendant S to distribute 500 grams of cocaine.
Defendant S knows that Defendant R is the prime figure in a
conspiracy involved in importing much larger quantities of cocaine.
As long as Defendant S's agreement and conduct is limited to the
distribution of the 500 grams, Defendant S is accountable only for
that 500 gram amount . . ., rather than the much larger quantity
imported by Defendant R.
In United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), we cited this
illustration when vacating the sentences of defendants convicted of conspiring
to distribute drugs "who may [have been] involved in less than the entire
conspiracy." Maseratti, however, is distinguishable from the present case
because the evidence indicates that Gregg, like the other defendants, did not
enter into an agreement involving limited conduct like that described in the
illustration. Instead, Gregg agreed to enter into an ongoing relationship with
other co-conspirators involving not only the acquisition and distribution of
drugs, but also protecting the conspiracy from detection using the relatively
sophisticated code and delivery systems. Moreover, the evidence indicates that
Gregg knew both that he was part of a larger conspiracy and that his actions
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3
Thomas argues that the district court improperly held him
accountable for the entire amount of controlled substances
distributed by the Hodgkiss conspiracy. Hodgkiss's drug ledgers
indicated that between January 1988 and July 1989, Thomas))whom
Hodgkiss assigned code number "07"))received in excess of two
kilograms of cocaine and amphetamine from Hodgkiss. Moreover, both
Curtis and Clark identified Thomas as someone to whom they
delivered narcotics on a regular basis for several years. Thomas
also served as a conduit for the delivery of drug ledgers and drugs
from Clark to Hodgkiss. See also part II.B.3 supra. Accordingly,
the district court's finding that Thomas knew or should have
reasonably foreseen that the conspiracy of which he was a member
would distribute in excess of 150 kilograms of cocaine is not
clearly erroneous.
4
Sanchez contends that he could not reasonably foresee that the
Hodgkiss conspiracy would distribute the amount of drugs for which
the district court held him responsible. However, Sanchez))whom
Hodgkiss assigned code number "06"))sold large quantities of
marijuana to Hodgkiss on three separate occasions. On two
occasions, Sanchez received $8,800 in drug-related proceeds from
Clark as payment for the marijuana. Clark also identified Sanchez
as one of Hodgkiss's distributors to whom Clark delivered cocaine
helped to ensure))indeed, were necessary for))the success of the conspiracy.
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and amphetamine on numerous occasions. Ledgers seized from
Hodgkiss's residence indicated that from January 27, 1988 to July
7, 1989, Sanchez received twenty-two ounces of cocaine and five
ounces of amphetamine from Hodgkiss. Moreover, a telephone
scrambling device seized from Sanchez's residence matched a similar
device found in possession of Hodgkiss. See also part II.B.4
supra. Consequently, the district court's finding that Sanchez knew
or should have reasonably foreseen that his co-conspirators would
be responsible for distributing in excess of 150 kilograms of
cocaine is not clearly erroneous.
5
The district court ultimately held Maxwell responsible only
for the distribution of between fifteen and fifty kilograms of
cocaine or its equivalent. This amount roughly corresponds to the
amount of cocaine sold by Alan Gardner during the time that Gardner
supplied both Hodgkiss and Maxwell with cocaine. In 1988, Maxwell
began purchasing on a regular basis multi-ounce quantities of uncut
cocaine from Gardner. Gardner's employee Charles Barton usually
delivered the cocaine to Maxwell, and Gardner often "fronted"
Maxwell the uncut cocaine. Cf. U.S.S.G. § 2D1.1, comment. (n.8)
(noting "the fact that a defendant is in possession of unusually
pure narcotics may indicate a prominent role in the criminal
enterprise and proximity to the source of the drugs. . . . [T]his
factor is particularly relevant where smaller quantities are
involved."). Maxwell also sold cocaine to Ronald McWilliams, who
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at one time had been a supplier of cocaine to Maxwell. See also
part II.B.1. supra. The district court found from this evidence
that Maxwell reasonably should have foreseen from this evidence
both that the conspiracy with which he was involved extended beyond
himself and that the conspiracy was distributing at least fifteen
kilograms of cocaine. Because this finding is not clearly
erroneous, we will uphold Maxwell's sentence.
B
Thomas and Hodgkiss argue that the district court erred in
sentencing them under the amendments to the sentencing guidelines
effective November 1, 1989, because the Hodgkiss conspiracy ended
before that date. They contend that because the 1989 amendments to
the guidelines increased the penalties to which they were subject,
the district court violated the Ex Post Facto Clause of the
Constitution by sentencing them under the amendments.
"[A]n increase in sentence based on an amendment to the
guidelines effective after the offense was committed ``would be an
obvious . . . violation' of the ex post facto clause in article 1
of the United States Constitution." United States v. Suarez, 911
F.2d 1016, 1021 (5th Cir. 1990) (quoting United States v. Woolford,
896 F.2d 99, 102 n.4 (5th Cir. 1990)). A conspiracy, however, "is
a continuing offense. So long as there is evidence that the
conspiracy continued after the effective date of the [amendments to
the] guidelines, the Ex Post Facto Clause is not violated." United
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States v. Buckhalter, 986 F.2d 875, 880 (5th Cir.), cert. denied,
___ U.S. ___, 114 S. Ct. 203, 126 L. Ed. 2d 160 (1993).
Thomas and Hodgkiss argue that no evidence exists
demonstrating that any acts related to the conspiracy took place
after November 1, 1989. They do not, however, argue that they
withdrew from the conspiracy by taking "affirmative acts
inconsistent with the object of the conspiracy and communicated in
a manner reasonably calculated to reach other conspirators."
United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65, 98 S. Ct.
2864, 2887-88, 57 L. Ed. 2d 854 (1978); see also United States v.
Puma, 937 F.2d 151, 157-58 (5th Cir. 1991), cert. denied, ___ U.S.
___, 112 S. Ct. 1165, 117 L. Ed. 2d 412 (1992). If a conspirator
fails to effectively withdraw from the conspiracy, he "will be
sentenced under the [amendments to the] guidelines even if he
himself did not commit an act in furtherance of the conspiracy
after [November 1, 1989], or did not know of acts committed by
other co-conspirators after [November 1, 1989], if it was
foreseeable that the conspiracy would continue past the effective
date of the [amendments]." Devine, 934 F.2d at 1332.
The district court determined that the defendants should be
sentenced under the 1989 amendments because the evidence adduced
both at trial and during sentencing indicated that the conspiracy
did not cease until, at the earliest, the search of Hodgkiss's home
in December 1989. We regard this determination as a factual
finding protected by the clearly erroneous standard of review. Id.
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After reviewing the record as a whole, we find that the district
court's conclusion was not clearly erroneous.37 Moreover, the jury,
as alleged in the indictment, found the defendants guilty of
conspiring to distribute drugs from "on or about June 1, 1986 and
continuing until December 15, 1989." Consequently, the district
court's use during sentencing of the amendments in effect at the
time the conspiracy concluded did not violate the Ex Post Facto
Clause.
C
Gregg contends that he was entitled to a downward adjustment
under the sentencing guidelines for minimal or minor participation
in the conspiracy.38 He argues that he was only slightly involved
with the conspiracy and therefore is less culpable than the other
conspirators. Section 3B1.2, however, is designed to reduce a
sentence only when a defendant is substantially less culpable than
the average participant in the offense. United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert. denied, 495
U.S. 923, 110 S. Ct. 1957, 109 L. Ed. 2d 319 (1990). The district
37
For example, we note that Hodgkiss's drug ledgers indicate that at
least one drug transaction occurred during December 1989. Moreover, Clark))whom
Hodgkiss concedes was his employee))testified that his relationship with Hodgkiss
did not end until December 1989.
38
U.S.S.G. § 3B1.2 provides:
Based on the defendant's role in the offense, decrease the offense
level as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling in between (a) and (b), decrease by three levels.
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court denied Gregg's request for a downward adjustment because
Gregg was not substantially less culpable than the average co-
conspirator. We agree that the record belies Gregg's argument that
he was a minimal or minor participant in the Hodgkiss conspiracy.
See parts II.B.2 and VI.A.2 supra. Consequently, we will not
disturb the district court's finding that Gregg was not a minimal
or minor participant.
D
Gregg argues he was entitled to a downward adjustment in his
offense level because he accepted responsibility for his crimes.
Under § 3E1.1(a) of the guidelines, "[i]f the defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct," a district court may
reduce the defendant's offense level by two points. However, the
adjustment "is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits guilt
and expresses remorse." U.S.S.G. § 3E1.1. comment. (n.2). The
district court found that Gregg did not fully accept responsibility
for his crimes and refused to reduce the offense level. We review
this finding using the clearly erroneous standard. United States
v. Hardeman, 933 F.2d 278, 283 (5th Cir. 1991).39
39
We have not definitively determined what standard applies when
reviewing a district court's refusal to credit a defendant's acceptance of
responsibility. Compare Hardeman, 933 F.2d at 283 (applying the clearly
erroneous standard) with United States v. Thomas, 870 F.2d 174, 176 (5th Cir.
1989) (applying the "without foundation" standard) and United States v. Brigman,
953 F.2d 906, 909 (5th Cir.) (applying the "great deference" standard), cert.
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While Gregg accepted responsibility for some acts, he did not
demonstrate "sincere contrition" regarding the full extent of his
criminal conduct. United States v. Beard, 913 F.2d 193, 199 (5th
Cir. 1990). Instead, Gregg both minimized his participation in the
conspiracy even after he was found guilty and refused to discuss
information contained in the drug ledgers seized from his home.
See United States v. Windham, 991 F.2d 181, 183 (5th Cir.) (noting
that a defendant is required under the pre-1992 guidelines to
accept responsibility for all relevant criminal conduct to be
eligible for a downward departure under § 3E1.1), cert. denied, ___
U.S. ___, ___ S. Ct. ___ (1993); United States v. Alfaro, 919 F.2d
962, 968 (5th Cir. 1990) (same). Accordingly, the district court's
finding that Gregg did not accept responsibility is not erroneous.
E
Gregg further contends that the district court miscalculated
his criminal history category for sentencing purposes.40 Gregg
contends that the district court improperly considered hearsay
evidence, supplied by a government agent, indicating that Gregg was
involved in narcotics activity while on probation from a previous
conviction. However, a district court "may properly consider any
denied, ___ U.S. ___, 113 S. Ct. 49, 121 L. Ed. 2d 16 (1992). For the purpose
of this appeal, however, "there appears to be no practical difference between the
three standards." United States v. Cartwright, ___ F.3d ___, slip op. at 893
(Oct. 25, 1993).
40
The guidelines direct the district court to "[a]dd 2 points [to the
defendant's offense level] if the defendant committed the instant offense while
under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status." U.S.S.G. § 4A1.1.
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relevant evidence ``without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy'" during sentencing. Alfaro, 919 F.2d at 964
(quoting U.S.S.G. § 6A1.3(a)).
Sworn testimony given by a government agent at a sentencing
hearing generally bears sufficient indicia of reliability to be
considered by the trial judge during sentencing. See id. at 966
(noting that a PSR generally bears sufficient indicia of
reliability); United States v. Cuellar-Flores, 891 F.2d 92, 93
(5th Cir. 1989) (finding uncorroborated hearsay testimony provided
by a probation agent to be sufficiently reliable). Merely because
the agent's testimony was based on information obtained from one of
Gregg's co-conspirators is not sufficient to bar the district court
from considering it. Consequently, the district court did not err
by considering the agent's testimony when determining Gregg's
criminal history category.
F
The jury found Gregg guilty of conspiring to possess a
controlled substance with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and 846. Section 841(b)(1), which is the
applicable sentencing provision, establishes three sentencing
ranges based upon the amount of narcotics involved: (1) ten years
to life if five or more kilograms of cocaine were involved; (2)
five to forty years if between five hundred grams and five
-46-
kilograms of cocaine were involved; and (3) zero to twenty years
if less than five hundred grams were involved. See United States
v. Royal, 972 F.2d 643, 649 (5th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 1258, 122 L. Ed. 2d 655 (1993). The district
court, as requested by the government, found the applicable
sentencing range to be ten years to life because over five
kilograms of cocaine were involved. Gregg contends that the
sentence imposed by the district court was unlawful because the
government failed to give timely notice under 21 U.S.C. § 851 of
its intent to seek an "enhancement" based upon the quantity of
drugs involved.41
The record supports the district court's finding that Gregg
trafficked in more than five kilograms of cocaine. See part II.B.2
supra. Thus, the sentence imposed by the district court))twenty-
seven years' imprisonment))falls within the statutory range.
Gregg, nevertheless, argues that because the government failed to
provide notice prior to trial that it would seek to have him
41
Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall
be sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of
guilty, the United States attorney files an information with the
court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous conviction
to be relied upon. . . .
Thus, the § 851(a)(1) notice requirement applies to situations in which a
convicted defendant's statutory minimum or maximum penalty is enhanced under the
recidivist provisions of 21 U.S.C § 841. United States v. Marshall, 910 F.2d
1241, 1244-45 (5th Cir. 1990), cert. denied, 498 U.S. 1092, 111 S. Ct. 976, 112
L. Ed. 2d 1061 (1991); Hansen v. United States, 904 F.2d 306, 309 (5th Cir.
1990), cert. denied, 498 U.S. 1052, 111 S. Ct. 765, 112 L. Ed. 2d 784 (1991).
-47-
sentenced within the higher sentencing range established by
§ 841(b), such an "enhancement" is improper. We, however,
previously have rejected this very argument. See Royal, 972 F.2d
at 649-50. As in Royal, Gregg received sufficient notice that the
government intended to seek a sentence based upon quantity when the
government filed a "Penalty Enhancement Information" after his
trial but before sentencing. Id. at 650. Accordingly, we affirm
his sentence.
VII
For the foregoing reasons, we REMAND to permit the district
court to determine in the first instance whether the notes
described herein constitute either Jencks Act or Brady material.
We AFFIRM the district court's decision in all other respects.
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