United States v. Frazier

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-40636
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTONIO DEWAYNE FRAZIER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-95-CR-10-3)
_________________________
July 16, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Antonio Frazier appeals his conviction of, and sentencing for,
one count of conspiracy to possess with intent to distribute five
kilograms or more of cocaine and fifty grams or more of cocaine
base, or “crack.” Finding no reversible error, we affirm.
I.
While incarcerated in the Galveston County, Texas, jail for a
violation of the terms of parole for a state drug offense, Frazier
was visited by two Drug Enforcement Agency (“DEA”) agents who were
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
investigating a drug ring in League City, Texas. Special Agents
Michael Moser and Hugh Hawkins solicited Frazier's cooperation in
learning about the drug operations of Michael Raven, who the DEA
believed was a major distributor of crack in the League City area.
Before visiting Frazier in the county jail, however, the DEA
contacted the Galveston County District Attorney's office to
inquire whether Frazier was represented by counsel. The D.A.'s
office told the DEA agents that Kevin Rekoff had represented
Frazier in the state proceeding for which he was then incarcerated.
The U.S. Attorney's Office thereafter contacted Rekoff to ask his
permission for the agents to speak with Frazier about the federal
investigation.
Rekoff told the Assistant U.S. Attorney that he could not give
or deny permission because he no longer represented Frazier. The
Agents subsequently contacted Rekoff and scheduled a meeting later
that day so that they could discuss the agents' impending
interview. Rekoff testified that, at the meeting, he again
reiterated to the agents that he could not give them permission to
meet with Frazier because he no longer represented him. Apparently
knowing of no other attorney representing Frazier, Rekoff gave the
agents his business card with his cellular phone number written on
the back. Rekoff told the agents to give the card to Frazier and
tell him that Rekoff was available should Frazier wish to consult
with him.
When the agents arrived at the county jail, they informed
2
Frazier that they had spoken with Rekoff and produced his business
card. The agents told Frazier that Rekoff “gave them permission”
to speak with him. Frazier and the agents contest whether the
agents then told Frazier that Rekoff “told him to cooperate” with
the agents. In any case, thereafter, Frazier agreed to give a
written statement and did so after receiving his Miranda warnings
both orally and in writing. He subsequently signed a waiver of his
rights and proceeded to disclose the extent of his drug dealing
with Raven. Frazier did, however, requestSSand the officers
agreedSSnot to include the other persons with whom he dealt in his
confession.
After Frazier was released from the county jail, he
voluntarily traveled to the DEA's Galveston office for a
debriefing. He again was read his Miranda rights, and he again
provided information without requesting an attorney. Agent Moser
prepared a summary of these oral statements.
Frazier, Raven, and others associated with the Raven's drug
ring were subsequently indicted. Although Frazier had signed a
waiver of his rights and made self-incriminatory statements, he
recanted and pleaded not guilty.
Frazier moved to suppress his self-incriminatory statements as
involuntarily given. He argued that Agents Moser and Hawkins told
him that his former lawyer, Rekoff, encouraged him to cooperate
with the police, when, in fact, Rekoff denied ever making such a
3
statement.
A magistrate judge held a hearing and heard the testimony of
Frazier, Rekoff, and the agents. Frazier testified that the agents
told him that Rekoff encouraged his cooperation with the agents.
On cross-examination, Frazier admitted that, at the time, Rekoff
was not his attorney and he did not seek hisSSor otherSScounsel.
Rekoff testified that when the agents arrived at his office,
he reiterated what he had told the Assistant U.S. AttorneySSthat he
could neither grant nor deny permission for the agents to speak
with Frazier, as Rekoff was no longer his attorney. Rekoff also
denied that he had ever told the agents to tell Frazier that he
thought Frazier should cooperate.
The agents testified that Rekoff did give them permission to
meet with Frazier. They also stated under oath that they had
showed Frazier Rekoff's business card and told him that Rekoff had
given them permission to speak with him. They denied, however,
that they ever told the defendant that Rekoff encouraged him to
cooperate. On the stand, they stated that they had informed
Frazier that he was likely to be indicted; that they had talked to
Rekoff, and Rekoff offered to speak with Frazier if Frazier wished;
and that Frazier thereafter had decided to waive his rights and
tell the agents some, but not all, of what he knew of Raven's
operations.
The magistrate judge was troubled by the agents' display of
4
Rekoff's business card, noting that the agents were using the
business card for the “psychological advantage” of putting Frazier
at ease. Ultimately, however, the magistrate judge found that the
agents never explicitly told Frazier that Rekoff wanted him to
cooperate with them. Given this fact-finding, the magistrate judge
concluded that the use of the business card did not amount to the
“official overreaching” necessary to suppress the confession as
involuntarily made. The district court, after a de novo review of
the transcript of the hearing before the magistrate judge, adopted
the report and recommendation over Frazier's objections.
Frazier was tried before a jury. The confession and Moser's
summary of Frazier's oral statements were read to the jury, but all
references to the other defendants were redacted. Several
witnesses also testified that they had seen Frazier dealing cocaine
and crack with Raven and Raven's associates.
When the government rested, the defense moved for judgment of
acquittal, which the court denied. The defense rested without
introducing testimony. The jury returned a verdict of guilty, and
the judge sentenced Frazier to 402 months' imprisonment.
II.
Frazier contends that the court erred by failing to suppress
his written and oral self-incriminatory statements, which he claims
were involuntarily made. We review factual determinations made in
the course of a suppression hearing for clear error. See, e.g.,
5
United States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir. 1992)
(citation omitted). Yet, we make “an independent review of the
legal conclusion of voluntariness.” Id.“Voluntariness [of a confession] depends upon the totality of
the circumstances and must be evaluated on a case-by-case basis.”
Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
“[A] confession is voluntary in the absence of official
overreaching, in the form either of direct coercion or subtle forms
of psychological persuasion.” Id. (citations omitted). The
government bears the burden of proving by a preponderance of the
evidence that a defendant has waived his rights voluntarily. See
id. at 417.
At the hearing on the motion to suppress, the main factual
dispute concerned whether the agents affirmatively told Frazier
that Rekoff, his former attorney, said that he should talk to the
agents, or whether, instead, the agents merely related that Rekoff
said that the agents could talk with Frazier if Frazier so wished.
Predictably, Frazier testified that the former representation was
made, and the officers denied it. The court credited the officers'
testimony over Frazier's.
Frazier bases his challenge to the factual finding on the
cross-examination testimony of Agent Moser, which contains what
Frazier characterizes as an admission that Moser told Frazier that
the agents had contacted Rekoff and that Rekoff had told them to
6
tell Frazier that it was “O.K.” for Frazier to talk to them. The
record, however, belies Frazier's characterization of Moser's
cross-examination testimony. Although Frazier attempted to get
Moser to make such an admission on cross-examination, Moser stated
that Frazier's version of the events was “not even close to a fair
interpretation” of the conversation that the agents had with
Frazier. Moser testified that Rekoff “gave [the agents] permission
to talk to” the defendant and that they gave Frazier Rekoff's
business card and told him to feel free to contact Rekoff. The
factual finding on this issue was not clearly erroneous.
Accordingly, we must decide whether the agents'
representations to Frazier that the defendant's former attorney
“gave the agents permission to speak with the defendant,” and the
agents' showing Frazier Rekoff's business card and telling him that
his former attorney had stated that he should “feel free” to
contact him, constitutes the coercion necessary to make his
subsequent confession involuntary. We conclude that these actions
do not constitute “official overreaching” and thus did not give
rise to an involuntary confession.
“[T]here is nothing inherently wrong with efforts to create a
climate for confession. Neither 'mere emotionalism and confusion,'
nor mere 'trickery' will alone necessarily invalidate a
confession.” Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.
1988) (citations omitted). When a self-incriminatory statement is
7
given in the absence of an attorney, however, the government bears
a “heavy burden” of showing a knowing and intelligent waiver. Self
v. Collins, 973 F.2d 1198, 1206 (5th Cir. 1992) (quoting Miranda v.
Arizona, 384 U.S. 436, 475 (1966)).
It follows that “[t]he waiver inquiry has 'two distinct
dimensions': First, the relinquishment of the right must have been
voluntary, in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences
of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412,
421 (1986). Both parts of this test are met in this case.
Frazier made a free and deliberate choice to relinquish his
rights. Although, as the magistrate judge found, the agents may
have been using the business card for “psychological advantage,”
Frazier, by his own account, knew that Rekoff, at that point, no
longer represented him. Frazier also chose not to exercise his
rights to call Rekoff, or another attorney, to ask his advice.
Most importantly, Frazier chose to exercise his rights partially,
even in the absence of an attorney, while at the same time
partially relinquishing themSSthat is, he refused to name anyone
other than Raven in the confession that he gave. Because Frazier
does not claim that the agents related a qualified directive from
Rekoff (such as “tell only part of the story”), it is not apparent
8
why their use of the business card was able to overcome only part
of Frazier's will.
Frazier also knew the consequences of waiving his rights. He
received the Miranda warnings both orally and in written form
before deciding to speak while in jail; he also received the
Miranda warnings again at the DEA office before he offered more
self-incriminatory statements. He was an adult with at least a
high-school education. And perhaps most of all, he was no tyro in
the criminal justice system.
III.
Frazier next challenges the sufficiency of the evidence to
support his conspiracy conviction. The district court denied his
motion for judgment of acquittal on this ground, and we review that
decision de novo. See United States v. Sanchez, 961 F.2d 1169,
1179 (5th Cir. 1992). We affirm if a reasonable trier of fact
could conclude from the evidence that the elements of the offense
were established beyond a reasonable doubt, viewing the evidence in
the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict. The evidence
presented at trial need not exclude every reasonable possibility of
innocence. See United States v. Faulkner, 17 F.3d 745, 768 (5th
Cir. 1994).
In a prosecution for a drug conspiracy, the government must
prove (1) the existence of an agreement between two or more persons
9
to violate the narcotics laws; (2) that the defendant knew of the
agreement; and (3) that he voluntarily participated in the
agreement. See United States v. Gonzalez, 76 F.3d 1339, 1346 (5th
Cir. 1996). “Proof of any element may be by circumstantial
evidence, and circumstances altogether inconclusive, if separately
considered, may, by their number and joint operation, . . . be
sufficient to constitute conclusive proof.” United States v.
Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995) (internal quotations
and citations omitted). “[A]ssent to a conspiracy may be inferred
from acts which furthered the purpose of the conspiracy.” Id. at
162 (internal quotations and citations omitted).
Frazier was identified by several witnesses who testified that
he had sold crack to them. Two of these witnesses further
testified that Frazier had obtained his crack from Raven. A
government agent stated on the stand that Frazier and a co-
defendant had met with a confidential informant in a motel room to
discuss a crack deal on Raven's behalf. The meeting was taped by
authorities, and the tape and transcript were introduced at trial.
Frazier also admitted to being a crack cocaine dealer. This
evidence is more than sufficient to allow a jury to conclude beyond
a reasonable doubt that Frazier and Raven agreed to violate the
drug laws; that Frazier knew of the agreement; and that he
participated in the agreement voluntarily.
IV.
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Frazier argues that the district court erred in failing to
grant him a reduction in sentence for “acceptance of
responsibility.” His argument is based on his apology at
sentencing that he had “no one to blame except [him]self.”
Because Frazier did not object at sentencing, we review for
plain error. “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of
the court.” FED. R. CRIM. P. 52(b). This requires (1) that there
be error; (2) that the error be plain; and (3) that the error must
affect substantial rights. See United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994) (en banc). The burden of showing
prejudice lies with the defendant. See id. at 164. Even if an
error meets this criteria, we have the discretion not to reverse if
the error does not “seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
Section 3E1.1(a) of the Sentencing Guidelines permits a two-
level reduction for acceptance of responsibility “[i]f the
defendant clearly demonstrates a recognition and affirmative
acceptance of personal responsibility for his criminal conduct.”
United States v. Allibhai, 939 F.2d 244, 253 (5th Cir. 1991)
(quoting U.S.S.G. § 3E1.1). “The defendant bears the burden of
demonstrating to the sentencing court that he is entitled to a
downward adjustment for acceptance of responsibility, and we review
11
the sentencing court's acceptance of responsibility determination
with even more deference than under the pure clearly erroneous
standard.” United States v. Bermea, 30 F.3d 1539, 1577 (5th Cir.
1994) (citations omitted).
Frazier has not met his burden on this prong: “This
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 cmt. 2. The district
court therefore was well within its discretion.
V.
Frazier contests his base offense level. He argues that the
district court erred in the amount of drugs it attributed to him
and in determining that the cocaine at issue was “crack.”
Frazier failed to object to the finding in the presentence
report that the drug involved was crack cocaine. We thus review
for plain error and find none. In addition to other evidence
introduced at trial, the record reflects that Frazier admitted in
his confession that the drug involved was crack.
Frazier also challenges the drug amount used in calculating
his base offense level.2 The PSR used the figure of 8.883
2
Because of the sketchy record on this point, we assume arguendo that
Frazier properly raised this argument in the district court. This assumption
does not affect the outcome of our analysis.
12
kilograms.3
Unless a defendant submits relevant affidavits or other
evidence to rebut the information in the presentence report, the
district court is free to adopt the report's findings without
further inquiry or explanation. See United States v. Mir, 919 F.2d
940, 943 (5th Cir. 1990). Here, the probation office calculated
the figure primarily from Frazier's own statements admitting that
he distributed as much as nine ounces of crack every three weeks.
In addition, the probation office found that Frazier had
participated in two transactions in July and August 1995 in which
approximately 283 grams of cocaine were involved. Frazier put on
no evidence to challenge these findings, which were included in the
presentence report. We therefore find that the court's use of the
8.883 kilogram number in the calculation of the base offense level
was not error.
AFFIRMED.
3
Frazier also contends that the PSR improperly attributed Raven's crack
to him, and that such amounts were not foreseeable. It appears that these
contentions were not made in the district court, and we find no plain error in
this regard.
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