UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11098
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TIMOTHY ECKERSON, also known as Baby, also known as Tommy
Lee Irons; TYRON DOUGLAS HENTON; JOHNNY WILLIAM IRONS, also known
as Cube; WILLIAM ERIC RICHARDSON, also known as Big E,
Defendants-Appellants.
Appeal from the United States District Court
For the Northern District of Texas
(4:95-CR-36-Y)
January 21, 1997
Before JOLLY, JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:*
Tyrone Henton (“Henton”), Johnny William Irons (“Irons”), and
Timothy Wayne Eckerson (“Eckerson”) appeal their convictions and
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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sentences related to a drug conspiracy. Finding no reversible
error, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Henton, Irons and Eckerson were among seventeen individuals
named in a thirty-two count indictment. From at least January 1991
through March 8, 1995, the indictment alleged that the appellants
were part of a large network of individuals that distributed crack
cocaine, primarily in the Fort Worth, Texas area. Eckerson is
Irons’ younger brother and the two lived together and were both
employed at what were described as tedious jobs at Bunge Foods, a
rendering plant.
Henton, Irons and Eckerson were charged in Count 1 with
conspiracy to distribute fifty grams or more of cocaine base.
Additionally, Henton was charged in Count 7 with distribution of
12.81 grams of cocaine base; Irons and Eckerson were charged in
Count 13 with distributing 62.12 grams of cocaine base and in Count
26 with possession with intent to distribute 35.8 grams of cocaine
base.
The three were tried before a jury in June 1995.1 The jury
found Henton guilty of the conspiracy count and the distribution
count. Likewise, Eckerson was found guilty of the conspiracy
1
In addition to the three appellants, the defendants at trial
included Dwayne Mitchell, who entered a guilty plea during the
proceeding, and William Eric Richardson, whose pro se appeal in
this matter was dismissed for want of prosecution on August 12,
1996.
2
count, the distribution count and the possession with intent to
distribute count. Irons was found guilty of the conspiracy count
and not guilty of the counts of distribution and possession with
intent to distribute.
Henton was sentenced to 121 months imprisonment on both
counts, to run concurrently, a five-year term of supervised release
and a special assessment of $100. Eckerson was sentenced to 121
months imprisonment on all three counts, to run concurrently, a
five-year term of supervised release, and was ordered to pay a
special assessment of $150. Irons was sentenced to 324 months on
the conspiracy count, a five-year term of supervised release and
was ordered to pay a special assessment of $50. All three timely
filed notices of appeal with this court.
II. DISCUSSION
a. Sufficiency of evidence
All three appellants argue that their convictions should be
overturned because the evidence was insufficient. We must
determine whether, viewing the evidence and the inferences that can
be drawn from it in the light most favorable to the verdict, a
rational jury could have found the essential elements of the
challenged offenses beyond a reasonable doubt. United States v.
Sneed, 63 F.3d 381, 385 (5th Cir. 1995), cert. denied, ___ U.S.
___, 116 S. Ct. 712 (1996).
The appellants each attack their conspiracy convictions for
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insufficiency of evidence. In order to prove a drug conspiracy,
the government must show, beyond a reasonable doubt that (1) there
existed an agreement to violate narcotics laws; (2) the defendant
knew of the conspiracy and intentionally joined in it; and (3) the
defendant’s participation in the conspiracy was voluntary. United
States v. Castillo, 77 F.3d 1480, 1492 (5th Cir.), cert. denied,
___ U.S. ___, 117 S. Ct. 180 (1996). A conspiracy conviction may
be upheld even if the alleged conspirator did not have knowledge of
the exact details of the conspiracy or the precise identities of
all co-conspirators, so long as he knowingly participated in the
overall conspiracy. United States v. Alix, 86 F.3d 429, 436 (5th
Cir. 1996). “[A] defendant need only have had a minor role in the
conspiracy, once it is shown that he voluntarily agreed to
participate.” Castillo, 77 F.3d at 1493.
Irons contends that the only evidence upon which the jury
could have premised its guilty verdict as it related to him was the
testimony of an accomplice, Gary Willie, who had entered a guilty
plea. It is clearly established that a conviction may rest solely
on the “uncorroborated testimony of an accomplice if the testimony
is not incredible or otherwise insubstantial on its face.” United
States v. Moreno, 649 F.2d 309, 312 (5th Cir. 1981). Willie’s
testimony was not incredible or otherwise insubstantial on its face
and was sufficient to bring Irons within the scope of the
conspiracy. There is no basis for reversing Irons’ conviction on
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the conspiracy charge.
Eckerson argues that the evidence presented failed to
demonstrate that he knowingly joined in any agreement with the
other alleged co-conspirators. However, there was clear evidence
that Eckerson actually completed a transaction with an undercover
officer while Irons was present, arguably providing counter-
surveillance. Additionally, Eckerson worked with many of the co-
conspirators and lived with Irons, providing evidence from which it
might be inferred that Eckerson was aware of the conspiracy and
knowingly joined in it to advance its purpose. Although a
conspiracy conviction may not be based solely on familial
relationships or mere knowing presence, inferences may be drawn
from the evidence of the relationships in this case that, in
combination with other circumstantial evidence, adequately supports
Eckerson’s conviction. See United States v. Broussard, 80 F.3d
1025, 1031 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 264
(1996).
Henton alleges that the government charged a single conspiracy
in the indictment then attempted to convict him based on multiple
conspiracies, but introduced insufficient evidence of the single
conspiracy. We disagree. When a single conspiracy is alleged in
the indictment but multiple conspiracies are demonstrated at trial
and the defendant’s participation in at least one of the
conspiracies is proved, there is no basis for reversal. United
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States v. Richerson, 833 F.2d 1147, 1155 (5th Cir. 1987). There is
sufficient evidence in this record to allow the jury to conclude
that Henton knowingly and voluntarily joined a conspiracy with at
least some of the alleged co-conspirators. We therefore affirm
Henton’s conspiracy conviction.
Henton next argues that the evidence was insufficient to
support his conviction for possession with intent to distribute
cocaine. However, Henton was convicted of distribution of cocaine,
rather than for possession. Testimony of an informant concerning
Henton’s involvement in a drug transaction was clearly sufficient
to sustain the distribution conviction. This ground of error has
no merit.
Eckerson also appeals his conviction for possession with
intent to distribute cocaine.2 A conviction for possession with
intent to distribute requires the government to show that the
defendant knowingly possessed a controlled substance with the
intent to distribute the substance. United States v. Anchondo-
Sadoval, 910 F.2d 1234, 1236 (5th Cir. 1990). Possession may be
shown by circumstantial evidence. United States v. Hernandez-
Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988). Knowing possession
may be inferred from control over the concealed contraband in
connection with other evidence that is suspicious in nature or
2
Eckerson does not appeal his conviction for distribution of
cocaine on the basis of the sufficiency of the evidence.
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demonstrates guilty knowledge. Anchondo-Sadoval, 910 F.2d at 1236.
Here, Eckerson’s fingerprints were found on the false bottom
shaving cream can seized from the apartment he shared with Irons.
The can contained the cocaine that formed the basis of the
possession with intent to distribute count, and the presence of the
fingerprint, in connection with the previous drug transaction and
other evidence, is sufficient to support the conviction.
b. Irons’ motion for severance
Irons asserts that he was denied a fair trial by virtue of
being joined in the indictment and at trial with other, allegedly
more culpable, co-defendants. He contends that the refusal of the
district court to sever him from the other defendants was an abuse
of discretion. United States v. Box, 50 F.3d 345, 357 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S. Ct. 309 (1995)(Decision whether
to grant a defendant a severance under Federal Rule of Criminal
Procedure 14 is reviewed for abuse of discretion.) Generally,
parties joined in an indictment alleging conspiracy should be tried
together. United States v. McKinney, 53 F.3d 664, 674 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S. Ct. 261 (1995). An appellant
must show more than the mere fact that a severance would have
provided him a better chance of acquittal. Box, 50 F.3d at 357.
Severance of properly joined defendants is proper only if there
exists a serious risk that a single trial would interfere with a
specific trial right of a defendant or would interfere with the
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jury’s ability to reach a reliable verdict. Zafiro v. United
States, 506 U.S. 534, 113 S. Ct. 933, 938, 122 L. Ed. 2d 317
(1993). Additionally, proper jury instructions, requiring the jury
to consider each defendant and the relevant proof of guilt
individually are sufficient to cure the risk of prejudice. Id. at
939.
Irons argues that he was less culpable than the other
defendants and was harmed by “spill-over” evidence. However, the
trial judge instructed the jury to consider each charge and each
defendant separately. The fact that the jury acquitted Irons of
the two substantive charges further supports the conclusion that he
was not prejudiced by the joint trial. Irons has not made the
requisite showing of abuse of discretion, particularly in light of
the district court’s instructions to the jury.
c. The Government’s failure to disclose documents
Both Eckerson and Henton contend that their convictions should
be reversed because of the government’s failure to disclose
material exculpatory evidence in accordance with Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). The
government must disclose material evidence favorable to the defense
or beneficial to the defense for purposes of impeaching a witness
testifying against the defense. United States v. Holley, 23 F.3d
902, 914 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 635
(1994). Failure to disclose such material evidence requires
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reversal. Id. Evidence is material only if there is a reasonable
probability that, had the defendant known of the evidence, the
outcome of the trial would have differed. Id.
During trial, Payton, a paid informant for the government,
testified regarding various transactions with the defendants.
After direct examination of Payton was concluded, the government
revealed that Payton had signed agreements with the Fort Worth
Police Department and the Alcohol Tobacco and Firearms agency that
constituted the terms and conditions of his work as an informant.3
The district court took a break to allow the defendants to review
the documents and prepare cross-examination on them. Eckerson and
Henton claim that the failure of the government to reveal the
existence of these documents earlier constitutes a violation of
Brady and requires reversal. They argue that the agreements could
have been utilized to impeach the credibility of Payton.
Additionally, they assert that since Payton breached the terms of
the agreements by engaging in unauthorized illegal drug
transactions the importance of the documents increased.
The prosecutor was initially unaware of the agreements, and
disclosed them when they came to her attention, at the beginning of
3
Eckerson also objects to the failure of the government to
disclose an internal FBI document that demonstrated that the
federal agents were not in compliance with their own regulations
when they used Payton as an informant. The district court
concluded that the FBI document was not relevant to the questions
before the jury and was not material under Brady. We agree.
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defendants’ cross-examination of Payton. During direct
examination, the government elicited the information that Payton
was paid for his informant work and that he had engaged in
unauthorized drug transactions. The defendants were then able to
fully cross-examine Payton concerning the agreements. Neither
defendant asked for a continuance in order to review the agreements
or prepare for the remainder of the trial.
We are not convinced that Brady was violated in this case.
However, even assuming that it was, the failure to timely disclose
the documents is not an omission that calls into question the
reliability of the outcome of the trial. See Holly, 23 F.3d at
914. We therefore find no merit in appellants’ Brady issue.
However, we are concerned, as a matter of policy, that the
prosecutor’s lack of communication with law enforcement personnel
resulted in the government’s failure to timely comply with the
district court’s discovery order. The price of such violations
may, within the discretion of the district court, include mistrial
or exclusion of the evidence. In this case, because the jury’s
truth-finding function was not impaired, we find no abuse of
discretion in the district court’s handling of the matter.
d. Evidence of extrinsic acts
The district court allowed a government informant to testify
regarding three drug transactions with Henton in addition to the
transaction that was included as Count 7 in the indictment. Henton
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contends that this was error because the testimony amounted to
testimony of extrinsic acts and, therefore required advance notice
under Federal Rule of Criminal Procedure 404(b). We review the
district court’s decision to admit testimony for abuse of
discretion. United States v. Hooker, 997 F.2d 67, 76 (5th Cir.
1993). In addition to the distribution count, Henton was on trial
for conspiracy. The evidence of the other drug transactions goes
to the proof of the conspiracy. As this court has held,
[e]vidence that is “inextricably intertwined” with the
evidence used to prove a crime charged is not “extrinsic”
evidence under Rule 404(b). United States v. Randall,
887 F.2d 1262, 1268 (5th Cir. 1989). Such evidence is
considered “intrinsic” and is admissible “so that the
jury may evaluate all the circumstances under which the
defendant acted.” Id. See also United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990) (“‘Other act’
evidence is ‘intrinsic’ when the evidence of the other
act and the evidence of the crime charged are
‘inextricably intertwined’ or both acts are part of a
‘single criminal episode’ or the other acts were
necessary preliminaries to the crime charged.”)
United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992), cert.
denied, 507 U.S. 911 (1993).
e. Scope of re-direct examination
Irons asserts that the district court erred in overruling his
objection to questions posed to Gary Willie on re-direct
examination. In matters relating to the scope of cross-
examination, the discretion of the trial judge in far-reaching.
United States v. Carrillo, 20 F.3d 617, 621 (5th Cir.), cert.
denied, ___ U.S. ___, 115 S. Ct. 261 (1994). On cross-examination,
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Irons asked Willie whether a particular individual, Hawkins, was
involved in selling cocaine. On redirect, the attorney for the
United States asked the witness a series of questions regarding
whether that same individual was involved in storing cocaine. The
allowance of this question, arguably related to the question asked
on cross-examination, was not an abuse of discretion.
f. Motion for mistrial after guilty plea
During the course of the trial, co-defendant Mitchell entered
a guilty plea. Irons contends that the district court erred when
it overruled his objection to the entry of the plea during trial
and when it subsequently denied his motion for a mistrial.
Following the plea, the district court instructed the jury as
follows:
ladies and gentlemen, you may notice that Dwayne Mitchell
is no longer present in the courtroom. There are any
number of explanations for that that could be given, but
it’s not important to you to know why. So I’m
instructing you that you should put that out of your mind
and not consider that for any purpose, nor should you
speculate as to why he might not be continuing in this
case. Having said that, I think that’s the last thing
that needs to be said or thought about it, and we will
move on with the case.
Irons asserts that Mitchell’s absence from the courtroom allowed
the jury to speculate that co-defendant Mitchell was persuaded that
he would be found guilty and he therefore availed himself of such
benefit as he might by entering a guilty plea.
Denial of a motion for mistrial is reviewed for abuse of
discretion. United States v. Merida, 765 F.2d 1205, 1220-21 (5th
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Cir. 1985). In United States v. Ramirez, 963 F.2d 693, 700-01 (5th
Cir.), cert. denied, 506 U.S. 944 (1992), this court held that a
trial judge did not abuse his discretion in refusing to grant a
mistrial after six of nine defendants entered guilty pleas during
trial and were thereafter absent from the courtroom. The court
noted that the trial judge appropriately instructed the jury not to
consider the absence of the other defendants and concluded that the
instruction was “sufficient to cure any prejudicial impact”
resulting form the absence of the pleading defendants. Id.
Following Ramirez, we find that the district court’s denial of the
motion for mistrial was not an abuse of discretion.
g. Sentencing guidelines for cocaine base
Irons argues that the sentencing guidelines violate his rights
under the Fifth and Eighth Amendments. This argument is foreclosed
by settled circuit precedent. See, e.g., United States v. Wilson,
77 F.3d 105, 112 (5th Cir. 1996).
Eckerson contends that the refusal of the district court to
depart downward to the sentencing guidelines for powder cocaine on
the basis of “an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by the
Sentencing Commission” was error. Eckerson asserts that the
Sentencing Commission’s study that concluded that the ratio
reflected by the guidelines is not supported by the difference in
harms caused by the drugs is a factor not taken into account by the
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Commission under the guidelines. Subsequent to the Eckerson’s
sentencing, this court considered this question and rejected it.
We held that a district court may not downwardly depart based on
the sentencing disparity between crack cocaine and powder cocaine
because that disparity was specifically considered by Congress and
it would be inappropriate for a district court to second guess the
judgment of Congress expressed in sentencing legislation. United
States v. Fonts, 95 F.3d 372, 374 (5th Cir. 1996). We therefore
find no error in the district court’s application of the crack
cocaine guidelines to Irons and Eckerson.
h. Three-level increase in offense level
Irons argues that the district court erroneously increased his
offense by three levels. The findings of the district court
regarding a defendant’s role in the offense are reviewed on appeal
for clear error. United States v. Bethley, 973 F.2d 396, 401 (5th
Cir. 1992), cert. denied, 507 U.S. 935 (1993). The district court
adopted the Presentence Report’s (“PSR”) recommendation that the
offense level be increased by three levels because Irons acted as
a manager or supervisor of the conspiracy. Although Irons objected
to the PSR, he offered no testimony to rebut the conclusions drawn
by the probation officer. The PSR recommendation flows from trial
testimony and from information provided by four co-conspirators.
Irons contends this is an unreliable source and that, therefore,
the increase was erroneous.
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Irons asserts that the fact that the jury acquitted him of the
two substantive charges weighs against his role as a manager or
supervisor. While that is true, the district court’s conclusion
that Irons played the role of manager is not clearly erroneous
based on all of the information properly before the court at
sentencing.
Additionally, Irons objects to the fact that the District
Court made no finding other than to adopt the conclusions reached
by the Probation Officer. It is not necessary for the district
court to do any more than that; a district court is free to simply
adopt the PSR recommendation. United States v. Singer, 970 F.2d
1414, 1419 (5th Cir. 1992).
i. Denial of minor participant reduction
Henton claims that the district court erred by refusing to
decrease his offense level by two levels in accordance with
Sentencing Guideline § 3B1.2(b), which allows for a decrease based
upon a finding that the defendant was a minor participant. The
district court’s refusal to grant a decrease is reviewed for clear
error. United States v. Majia-Orosco, 867 F.2d 216, 221 (5th
Cir.), cert. denied, 492 U.S. 924 (1989). A decrease is not
appropriate merely because the defendant’s participation is
“somewhat less” than the other participants in the crime. United
States v. Castillo, 77 F.3d 1480, 1493-94 (5th Cir. 1996).
Additionally, “when a sentence is based on an activity in which a
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defendant was actually involved, U.S.S.G. § 3B1.2 does not require
a reduction in the base offense level even though the defendant’s
activity in a larger conspiracy may have been minor or minimal.
United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995).
Henton was convicted of distribution of cocaine and his
offense level was calculated based on the actual amount of cocaine
he distributed, not on the reasonably foreseeable amount of cocaine
distributed during his time in the conspiracy. Therefore, under
Atanda, Henton was not entitled to a decrease in his offense level,
and the district court was not clearly erroneous in his refusal.
III. CONCLUSION
Based on the foregoing, the Appellants’ convictions and
sentences are affirmed.
AFFIRMED.
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