UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60308
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLAUDE MORMON; REGINALD E. GREEN; HORACE LEE
LEE COLONEL; RALPH GREEN also known as Chuck Green,
Defendants-Appellants.
Appeal from the United States District Court
For the Northern District of Mississippi
(1:94-CR-001)
December 31, 1996
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellants/Defendants Claude Mormon, Reginald E. Green, Horace
Lee Colonel, and Ralph Green, also known as Chuck Green, were
convicted by a jury of conspiracy to distribute and to possess with
*
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opinion should not be published and is not precedent except under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.
1
intent to distribute in excess of 50 grams of cocaine base between
March 1992 and November 1993, in violation of 21 U.S.C. §§ 841 and
846. Reginald Green was also convicted of unlawfully engaging in
a continuing criminal enterprise during the same period, in
violation of 21 U.S.C. § 848.
Claude Mormon was sentenced to 339 months imprisonment
followed by five years of supervised release. He was fined $1,000
and charged an assessment of $50. Reginald E. Green was sentenced
to 384 months imprisonment followed by five years of supervised
release. He was fined $50,000 and charged an assessment of $50.
Horace Lee Colonel was sentenced to 240 months imprisonment
followed by five years of supervised release. He was fined $1,500
and charged an assessment of $100. Ralph Green was sentenced to
292 months imprisonment followed by five years of supervised
release. He was fined $1,000 and charged an assessment of $50. On
appeal, Appellants raise multiple points of error. For the
following reasons, the convictions and sentences of Appellants are
affirmed.
BACKGROUND
Reginald Green ran a narcotics distribution operation based in
San Antonio, Texas. Green’s brother, Ralph Green, a/k/a Chuck
Green, worked in Reginald’s liquor store in San Antonio and
assisted Reginald by distributing crack cocaine (“crack”) and
2
accepting drug proceeds for Reginald. Horace Colonel distributed
crack supplied by the Greens in Florida and North Carolina through
street dealers who worked for him. Claude Mormon was employed by
Colonel and other co-conspirators to transport supplies of crack
from Texas to Florida and other locations.
Reginald Green ran this operation from March 1992 to November
1993. In short, Reginald would “front” crack cocaine to various
individuals and those individuals would distribute the drug and
return the profits to Reginald. Reginald would then resupply these
distributors with more crack and await the profits. This cycle
continued and eventually led to a pyramid of employees, all of whom
worked for Reginald or one of the other named Appellants.
Eventually, some of the lower-level distributors were arrested
and charged with federal drug and firearms violations. Individuals
such as Demarco Morgan, Sam Hall, Raymond Rowe, and Raymond Kinsey,
pleaded guilty to these charges and agreed to cooperate with law
enforcement authorities with regard to apprehending the Appellants.
Ultimately, search warrants were issued and Appellants were
arrested.
On January 28, 1994, a federal grand jury in the Northern
District of Mississippi returned an eight count indictment against
Reginald Green, Ralph Green, Horace Colonel, and Claude Mormon.
Count One charged all four Defendants with conspiracy to distribute
and to possess with intent to distribute in excess of 50 grams of
cocaine base between March 1992 and November 1993, in violation of
3
21 U.S.C. §§ 841 and 846. Count Two charged Reginald Green with
unlawfully engaging in a continuing criminal enterprise during the
same period, in violation of 21 U.S.C. § 848. Counts Three, Four,
Five, Seven, and Eight charged Ralph Green with use of a telephone
to facilitate a conspiracy to distribute cocaine base, in violation
of 21 U.S.C. § 843. Count Six charged Reginald Green with use of
a telephone to facilitate a conspiracy to distribute cocaine base,
in violation of 21 U.S.C. § 843.
Trial by jury began on March 6, 1995. At trial, government
witnesses, including Morgan, Hall, Kinsey, and Rowe, each testified
about their own participation in the conspiracy, as well as that of
the Defendants. Upon the close of the government’s case-in-chief,
the district court granted Defendants’ motions to dismiss Counts
Three through Eight. The jury returned verdicts of guilty as to
all Defendants on Count One, and as to Reginald Green on Count Two.
Defendants now appeal.
DISCUSSION
Appellants raise several points of error. We will address
each point of error in turn.1
1
The appellate brief of each Defendant expressly adopts by
reference the arguments presented in the briefs of his co-
defendants. Rule 28(i) of the Federal Rules of Appellate Procedure
provides for such adoption by reference in cases involving multiple
appellants. We have previously held, however, that an appellant
may not raise fact specific challenges to his own conviction or
sentence -- such as sufficiency-of-the-evidence challenges or
challenges to the application of the sentencing guidelines -- by
4
1. Admission of Recorded Telephone Conversations
Defendants argue that the district court erred when it
admitted into evidence certain post-arrest taped telephone
conversations between Ralph Green, Reginald Green, and government
witness Demarco Morgan. In these conversations, the parties
discuss, inter alia: their likely sentences, their need to use
“safe phones” or alternative communication methods to avoid
government monitoring, and whether certain Defendants are “talking”
to the government. Defendants argue that such statements are
inadmissible hearsay because they do not constitute statements of
a co-conspirator during the course and in furtherance of the
conspiracy.2
For a statement to be admissible under this rule, "[t]here
must be evidence that there was a conspiracy involving the
merely referring to similar challenges in another appellant’s
brief. United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir.
1996), citing, United States v. Harris, 932 F.2d 1529, 1533 (5th
Cir.), cert denied, 112 S. Ct. 270, and cert denied, 112 S. Ct. 324
(1991), and cert denied, 112 S. Ct. 914 (1992). Accordingly, to
the extent that the issues raised by each Defendant have been
properly adopted by the other Defendants, our holding as to each
issue may be deemed to be our holding as to all Defendants. Alix,
86 F.3d at 434 n.2.
2
Rule 801(d)(2)(E) of the Federal Rules of Evidence states that
a “statement is not hearsay if ... [t]he statement is offered
against a party and is ... a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.”
FED. R. EVID. 801(d)(2)(E).
5
declarant and the nonoffering party, and that the statement was
made during the course and in furtherance of the conspiracy."
United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992)
(internal citations omitted) (citing, Bourjaily v. United States,
107 S. Ct. 2775, 2778 (1987)). Whether statements are admissible
under this rule is a preliminary question that shall be determined
by the court. FED. R. EVID. 104(a); Fragoso, 978 F.2d at 899.
“When preliminary facts to admissibility of coconspirator testimony
under Rule 801(d)(2)(E) are disputed, the offering party must prove
them by a preponderance of the evidence.” Fragoso, 978 F.2d at
899. Thus, the Government must establish by a preponderance of the
evidence that the declarant and the defendant were involved in a
conspiracy and that the statements were made during and in
furtherance of the conspiracy. Bourjaily v. United States, 107 S.
Ct. 2775, 2778-709 (1987). “[W]e accept all credibility choices
that support the jury's verdict, letting jurors use their common
sense and apply common knowledge, observation, and experience
gained in the ordinary affairs of life when giving effect to the
inferences that may reasonably be drawn from the evidence....”
United States v. Steen, 55 F.3d 1022, 1031 (5th Cir.), cert.
denied, 116 S. Ct. 577 (1995) (internal citations omitted).
“[T]he failure to explicitly discuss drugs or drug-trafficking
does not automatically indicate that the conversations were not in
furtherance of the conspiracy. United States v. Broussard, 80 F.3d
6
1025, 1039 (5th Cir.), cert. denied, 117 S. Ct. 264 (1996).
“Indeed, ‘in furtherance of a conspiracy’ is not to be construed
too strictly lest the purpose of the exception be defeated.” Id.
“We have shunned an overly literal interpretation of this
[phrase]." Id. (internal citations omitted).
“Given that concealment is often a necessary part of a
conspiracy, statements made to aid the concealment are made in
furtherance of the conspiracy.” Id. A statement emphasizing the
need to use ‘safe’ phones “clearly indicates” a desire that the
conspiracy be kept concealed. Id. The alleged hearsay statements
may be considered in making the Rule 801(d)(2)(E) determination.
Id. at 2781.
Over the objections of Appellants, the district court
conditionally admitted the taped telephone conversations. At the
close of the government's case-in-chief, the district court
determined that the government had satisfied its threshold burden
of demonstrating, by a preponderance of the evidence, that a
conspiracy existed.
We must interpret the evidence supporting the district court’s
determination in the light most favorable to the government.
United States v. Villareall, 764 F.2d 1048, 1050 (5th Cir.), cert.
denied, 106 S. Ct. 272 (1985). After granting such deference and
after thoroughly reviewing the record, including the record
citations made by both the government and the Appellants, we hold
7
that the independent evidence offered by the government supports
the trial court's determinations. Accordingly, out-of-court
statements made by Ralph Green, Reginald Green, and Demarco Morgan
were properly admitted into evidence.
2. Constitutionality of Sentencing Guidelines
Acknowledging that this Court has rejected similar arguments
in the past,3 Appellants, nevertheless, argue that their respective
sentences violate their equal protection and due process rights,
and constitute cruel and unusual punishment in violation of the
Eighth Amendment to the Constitution. Specifically, Appellants
argue that the Sentencing Guidelines unconstitutionally utilize a
100-1 sentencing ratio for those convicted of crimes involving
crack cocaine versus powder cocaine. Appellants argue that the
penalty scheme of U.S.S.G. § 2D1.1 disproportionately burdens
African-Americans and that Congress enacted the scheme with the
intent to discriminate on the basis of race. In support of their
position, Appellants cite a recommendation by the United States
Sentencing Commission to reduce or eliminate the sentencing
disparity between cocaine and crack.4 While Appellants acknowledge
3
This Court appreciates the candidness of Mormon’s counsel in
appropriately acknowledging unfavorable precedent.
4
In 1994, Congress directed the Sentencing Commission to
examine the federal sentencing scheme and to provide
recommendations for retention or modification of the policy. The
Sentencing Commission's report, transmitted to Congress on February
28, 1995, concludes that the 100 to one ratio is too great, and
8
that this recommendation was ultimately rejected by Congress, Pub.
Law 104-38, they argue that Congress’ failure to adopt the
Commission’s recommendations evinces Congress’ intent to
discriminate against African-Americans.
We review the district court's legal conclusions de novo, and
will uphold the district court's factual finding if it is supported
by substantial evidence. United States v. Cherry, 50 F.3d 338, 342
(5th Cir. 1995).
In Cherry, we noted that crack cocaine is a different drug
from powder cocaine, and that Congress need not treat dissimilar
drugs similarly. Cherry, 50 F.3d 338 at 344 (noting, inter alia,
that crack cocaine is more addictive). We also held that Congress’
choice to create disparate sentences for crack cocaine and powder
cocaine,
is rationally related to Congress's legitimate
interest in protecting the general welfare. The
100 to one ratio is extreme, but it is not the
province of this Court to second-guess Congress's
chosen penalty. That is a discretionary
legislative judgment for Congress and the
that the penalty scheme should be amended. The Commission took
into account the "inescapable conclusion" that African-Americans
comprise the largest percentage of those affected by the penalties
associated with crack cocaine, and stated that, in the months
ahead, it planned to refine the drug guidelines to account for the
harms related to cocaine without the "difficulties associated with
an automatic 100-to-1 ratio". U.S. Sentencing Commission, SPECIAL
REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY at xi, xv
(1995). United States v. Cherry, 50 F.3d 338, 344 n.21 (5th Cir.
1995).
9
Sentencing Commission to make. Our review is
limited to whether the penalty has a rational
basis. We conclude that it does....
Cherry, 50 F.3d at 344. Accordingly, we find Defendants’ arguments
unpersuasive. No error was committed.
3. Failure to Strike Jurors 19 and 31.
Appellants argue that the district court erred when it failed
to strike Jurors No. 19 and 31 for cause. Appellants contend that
this error violated their Constitutional rights to due process and
trial by an impartial jury. After reviewing the transcript of the
proceedings, we find no error.
During voir dire, counsel for Reginald Green asked a series of
questions concerning any potential biases which the potential
jurors might have concerning the drug-related nature of the case
and the race of the Defendants. Among the questions asked by
counsel were: “Do any of you all right now have a perception that
because this is a drug offense that is being charged and because
the defendants are African American that might insinuate guilt more
so than if they were of another race?” and “So would anyone think
that any of the four defendants would be more likely to be guilty
of the charged offense because they are African Americans?” In
response to these questions and others, Juror 19 stood and engaged
counsel in the following dialogue:
JUROR 19: How did you determine that they are
African American:
10
COUNSEL: Sir?
JUROR 19: How did you determine that?
COUNSEL: The defendants?
JUROR 19: I am trying to make a point here. You
have them stand up and we looked at them and you
said African American. How did you determine that
they are African American?
COUNSEL: Let me think of a nice way to respond. I
am familiar, of course, with Reginald Green because
he is my client, so I know he is African American.
JUROR 19: How do you know?
COUNSEL: And his brother is Chuck Green, so I know
he is African American.
JUROR 19: How do you know?
COUNSEL: I talked to the attorneys for Will Ford -
- for Claude Mormon and Horace Colonel and I know
that they know that their clients are African
American, so I know that is something in [sic] true
in this case.
JUROR 19: But that is pedigree, there is no way of
proof.
COUNSEL: Thank you, sir, for your comment.
JUROR 19: My point is, we are just going by the way
they look, right?
COUNSEL: Yes, sir.
JUROR 19: So they are American.
COUNSEL: I am going -- Sir, I don’t want to argue
with you, but I do want to say that I appreciate
your comment. Thank you very much.
Based upon this exchange, counsel for Defendant Mormon sought to
have Juror 19 excused for cause, arguing that the dialogue was
11
“bizarre” and that Juror 19 was “hostile with regard to race.”
Determining that Juror 19's responses and demeanor did not indicate
bias or prejudice, the district court held:
[H]e obviously has a different perception or
conception of the term African American than the
way it was being asked about by [Counsel], but that
in itself does not show he is a racist or has
racial prejudice. When he responded to all of your
questions about whether he would be prejudiced in
any way because of race, he said no, so that
challenge will be denied.5
“Voir dire examination serves the dual purposes of enabling the
court to select an impartial jury and assisting counsel in
exercising peremptory challenges.” Mu’min v. Virginia, 111 S. Ct.
1899, 1908 (1991). “Because the obligation to empanel an impartial
jury lies in the first instance with the trial judge, and because
he must rely largely on his immediate perceptions, federal judges
have been accorded ample discretion in determining how best to
conduct the voir dire.” Id. at 1904. “Despite its importance, the
adequacy of voir dire is not easily subject to appellate review.”
Id. “The trial judge's function at this point in the trial is not
unlike that of the jurors later on in the trial. Both must reach
conclusions as to impartiality and credibility by relying on their
own evaluations of demeanor evidence and of responses to
5
The transcript shows that Reginald Green’s counsel did not
directly ask Juror 19 if he would be prejudiced by Defendants’
race. However, on voir dire, the jury pool was collectively asked,
on several occasions, if any member maintained any prejudice
against Defendants on the basis of their race. No potential juror,
including Juror 19, responded in the affirmative.
12
questions.” Id. at 1904. Ultimately, the trial court must
determine whether the juror is to be believed when he says that he
has not formed an opinion about the case. Id. at 1905.
We review a district court’s ruling as to juror impartiality
for abuse of discretion. United States v. Mendoza-Burciaga, 981
F.2d 192, 197-198 (5th Cir. 1992), cert. denied, 114 S. Ct. 356
(1993). In this case, the district court determined that Juror 19
did not possess a prejudice which would cause him to form an
opinion about the case. The district court based its decision not
only upon the content of the exchange between Juror 19 and counsel,
but also upon Juror 19's demeanor, manner, and tone. After
reviewing the record, we find no basis upon which we can conclude
that the district court committed error as to Juror 19.
In the alternative, we hold that any error was harmless.
Defendants exercised one of their preemptory challenges to remove
Juror 19. Accordingly, Juror 19 did not serve on the jury.
Nevertheless, Defendants argue that the district court’s alleged
error in not striking Juror 19 for cause resulted in Defendants
needing to use one of their preemptory challenges to strike Juror
19, thereby effectively reducing by one the number of challenges
available to Defendants. For the following reasons, Defendants’
argument fails.
The standard by which we determine the impact of an increase
or decrease in the number of a party's peremptory challenges as a
13
result of a court's erroneous ruling on a challenge for cause is
set forth in United States v. Prati, 861 F.2d 82, 87 (5th Cir.
1988). Citing the Supreme Court decision in Ross v. Oklahoma, 108
S. Ct. 2273 (1988), we made clear that the pertinent inquiry is
whether the jurors who actually sat were impartial as required by
the Sixth Amendment. Prati, 861 F.2d at 87. We rejected the
notion that the loss of a peremptory challenge constitutes a
violation of a constitutional right to an impartial jury. Although
peremptory challenges are a means to an end of achieving an
impartial jury, peremptory challenges are not of constitutional
dimension. Therefore, although the alleged improper removal of the
venire member may have altered the ultimate composition of the
panel, this is not a ground upon which the defendants’ convictions
can be reversed. Prati, 861 F.2d at 87.
Next, Defendants argue that the district court abused its
discretion by refusing to strike Juror No. 31 for cause. Juror No.
31 stated that she had an uncle in law enforcement. When counsel
for Reginald Green asked Juror 31 if that relationship would effect
her ability to be “a fair and impartial juror,” Juror 31 responded,
“No ma’am.” Defendants offer no evidence to show that Juror 31
would be a partial or biased juror. In essence, Defendants invite
this Court to hold that relatives of law enforcement officials are,
per se, incapable of making fair determinations. We decline
Defendants’ invitation. Based upon the record before us, we hold
14
that Defendants have not shown that the district court abused its
discretion by refusing to strike Juror 31 for cause.
4. Double Jeopardy
On February 3, 1994, two vehicles owned by Reginald Green were
seized by the government pursuant to a search warrant executed at
Reginald Green’s residence. On April 15, 1994, both vehicles were
administratively forfeited to the government subsequent to a
summary forfeiture proceeding. A lis pendens was filed with the
deed records of Bexar County, San Antonio, Texas, attaching both
the residence of Reginald Green, as well as, a piece of rental
property which he owned. The lis pendens prohibits the sale or
transfer of these properties pending the outcome of Reginald
Greens’ appeal before this Court.
Reginald Green moved the district court to dismiss the
criminal charges against him on the grounds that the summary
forfeiture of his vehicles, as well as the pending forfeiture of
his real property, constitutes punishment for his crime. Reginald
Green argues that the sentence which he received for his criminal
conviction constitutes additional punishment in violation of the
double jeopardy clause of the Fifth and Eighth Amendments to the
Constitution. We disagree.
15
The double jeopardy clause of the Fifth Amendment to the
Constitution states that "[n]o person shall...be subject for the
same offense to be twice put in jeopardy of life or limb...." U.S.
CONST. AMEND. V. Because double jeopardy raises a legal issue of
constitutional dimensions, we review de novo the denial of a motion
to dismiss on double jeopardy grounds. United States v. Arreola-
Ramos, 60 F.3d 188, 191 (5th Cir. 1995). The Supreme Court has
interpreted the Double Jeopardy Clause to shield citizens from both
multiple prosecutions and multiple punishments for the same
offense. Id. at 191-192. Thus, only when a civil forfeiture
constitutes "punishment" can jeopardy attach. Id. at 192. In
Arreola-Ramos, we held that,
a summary forfeiture, by definition, can never
serve as a jeopardy component of a double jeopardy
motion. In summary forfeiture proceedings, there
is no trial, there are no parties, and no one is
punished. Absent a trial, a party, and a
punishment, jeopardy can never attach. As Arreola
did not appear and contest the forfeiture, he was
never in jeopardy. Without former jeopardy, double
jeopardy cannot arise. We agree with the district
court: As Arreola failed to establish former
jeopardy, he necessarily failed to establish even
the possibility of double jeopardy.
Arreola-Ramos, 60 F.3d at 192-193. See also, United States v.
Morgan, 84 F.3d 765, 767 (5th Cir. 1996) (“When a defendant fails
to judicially contest a civil forfeiture action by filing a
‘claim’, the defendant is not subject to former jeopardy in the
forfeiture action, and therefore, by definition, the government's
16
subsequent prosecution of the defendant does not constitute double
jeopardy.”). Additionally, an appellant has the burden of
directing the court to all relevant evidence in support of his
argument. See, United States v. Gonzalez, 76 F.3d 1339, 1342 (5th
Cir. 1996). If he fails to provide the necessary record for
review, we need not consider the issue on appeal. Id. at 1342.
Because Reginald Green fails to offer any evidence showing
that he appeared and contested the forfeiture of his vehicles, he
failed to establish former jeopardy. Having failed to establish
former jeopardy, he cannot now claim double jeopardy. Furthermore,
Reginald Green has failed to direct this Court to any record
evidence in support of his argument that the lis pendens filed
against his real properties constitutes a punishment. For these
reasons, we hold that Reginald Green has not shown that the
district court erred in denying his motion to dismiss the criminal
charges and sentence based upon double jeopardy. No error was
committed.
5. Validity of Search Warrant
Reginald Green argues that the district court erred in not
granting his motion to suppress evidence obtained from a search of
his home because, he argues, the search warrants were overly broad
and failed to specify with particularity the items to be searched.
The Fourth Amendment prohibits the issuance of general
17
warrants which allow officials to burrow through a person's
possessions looking for any evidence of a crime. United States v.
Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995), cert. denied, 116 S.
Ct. 1547 (1996), citing, Andresen v. Maryland, 96 S. Ct. 2737, 2748
(1976). A warrant must particularly describe the place to be
searched and the person or things to be seized. Id.; United
States v. Layne, 43 F.3d 127, 132 (5th Cir.), cert. denied, 115 S.
Ct. 1722 (1995). In testing whether a specific warrant meets the
particularity requirement, a court must ask whether an executing
officer reading the description in the warrant would reasonably
know what items are to be seized. Kimbrough, 69 F.3d at 727. “In
identifying the property to be seized, the agents are required to
interpret the warrant, but are not obliged to interpret it
narrowly.” United States v. Hill, 19 F.3d 984, 987 (5th Cir.)
(internal citations omitted), cert. denied, 115 S. Ct. 320 (1994).
This test for particularity may be made with supporting affidavits
if the warrant expressly refers to the affidavits. Layne, 43 F.3d
at 132. In circumstances where detailed particularity is
impossible, generic language is permissible if it particularizes
the types of items to be seized. Kimbrough, 69 F.3d at 727. The
ultimate determination of reasonableness of the search is a
conclusion of law which is reviewed de novo. United States v.
Capote-Capote, 946 F.2d 1100, 1102 (5th Cir. 1991), cert denied,
112 S. Ct. 2278 (1992).
18
Several search warrants were issued which collectively
authorized a search of the following locations:
1. The residence of REGINALD GREEN, a
dwelling house at 8848 Willmon, San Antonio, Texas;
2. The business of REGINALD GREEN, CRESTWAY
LIQUOR STORE, 5121 Crestway Drive, San Antonio,
Texas;
3. The house and premises located at 1203
Hays Street, San Antonio, Texas.
4. A 1990 Nissan Pathfinder registered to
Reginald Green bearing Texas License CPY90L, VIN:
JN8HD17YXLW234841.
5. A 1987 Mercedes Benz registered to
Reginald Green bearing Texas License 877RWW, VIN:
WDBEA30D6HA570225.
Each search warrant referenced a 25-page affidavit by Federal Drug
Enforcement Agency Special Agent Morgan Thompson, which described
the items to be searched as follows:
(1) Controlled Substances, including cocaine,
as well as materials and paraphernalia used in the
weighing, cutting (diluting), packaging, concealing
and distributing controlled substances, including
cocaine;
(2) Books, records, receipts, notes, ledgers,
bank records, money orders, and/or papers relating
to, the transportation, importation, sale, and/or
distribution of controlled substances, including
cocaine, and/or records relating to the receipt
and/or disposition of the proceeds from the
transportation, importation, sale, and/or
distribution of controlled substances, including
cocaine;
(3) Currency, financial instruments, precious
metals, and/or other proceeds of the
transportation, importation, sale, and/or
distribution of controlled substances, including
cocaine, and records related to the laundering,
19
secreting and/or distribution of monies related to
illegal cocaine trafficking activities;
(4) Telephone and address books, telephone
toll records, or papers which reflect names,
addresses and/or telephone numbers of individuals
associated in the illegal transportation,
importation, sale, and/or distribution of
controlled substances, including cocaine;
(5) Firearms and ammunition; and
(6) Documents reflecting dominion and control
of properties used to illegally distribute,
transport, store, and conceal illegal controlled
substances and the proceeds of the transportation,
importation, sale, and or distribution of
controlled substances, including cocaine.
Reginald Green argues that this language was unconstitu-
tionally overbroad such as to “authorize [the government] to seize
what they wished rather than requiring them to reasonably ascertain
and identify the items authorized to be seized.” We disagree.
The language in the warrants, as described through the affidavit,
properly limited the executing officers' discretion; an executing
officer reading the description in the warrant would reasonably
know what items were to be seized. Accordingly, we find this
contention to be without merit.
6. Sufficiency of the Evidence
The following issues constitute challenges based upon the
sufficiency of the evidence. First, Morman argues that the
evidence does not support the district court’s refusal to grant him
20
a “minor participant” two-level reduction in the sentencing offense
level. "[A] minor participant means any participant who is less
culpable than most other participants, but whose role could not be
described as minimal." United States v. Gaytan, 74 F.3d 545, 561
(5th Cir. 1996); U.S.S.G. § 3B1.2(b), comment (n.3). “[A] district
court should not make an adjustment for minor participation merely
because the defendant's participation is somewhat less than the
other participants'; to warrant such a downward adjustment, the
defendant's participation must be enough less so that he at best
was peripheral to the advancement of the illicit activity." United
States v. Castillo, 77 F.3d 1480, 1494 (5th Cir.), cert. denied,
117 S. Ct. 180 (1996). “The defendant bears the burden of proving
that his role in the offense was minor.” United States v. Atanda,
60 F.3d 196, 198 (5th Cir. 1995).
We review the district court's application and legal
interpretation of the sentencing guidelines de novo, United States
v. Domino, 62 F.3d 716, 719 (5th Cir. 1995), and its findings of
fact for clear error. United States v. Hooker, 997 F.2d 67, 75
(5th Cir. 1993). "A factual finding is not clearly erroneous as
long as the finding is plausible in the light of the record as a
whole." United States v. Edwards, 65 F.3d 430, 432 (5th Cir.
1995). After reviewing the record, we find plausible the district
court’s refusal to find that Morman was a minor participant.
Accordingly, the district court committed no clear error.
21
Second, all Appellants argue that the evidence does not
support the district court’s application of a two-level increase in
their respective sentencing offense levels for possession of a
firearm. “The sentencing guidelines direct a sentencing court to
increase the defendant's sentence by two levels whenever, in a
crime involving the manufacture, import, export, trafficking, or
possession of drugs, the defendant possessed a dangerous weapon.”
United States v. Flucas, 99 F.3d 177, 179 (5th Cir. 1996); see,
U.S.S.G. § 2D1.1(b)(1). “Application Note 3 to § 2D1.1 explains
that this enhancement should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with
the offense.”6 Flucas, 99 F.3d at 179; and see United States v.
Mitchell, 31 F.3d 271, 277 (5th Cir.), cert. denied, 115 S. Ct. 455
(1995). "The burden of proof in this respect is on the government
under a preponderance of the evidence standard." United States v.
Sparks, 2 F.3d 574, 587 (5th Cir. 1993), cert. denied, 114 S. Ct.
720, cert. denied, 114 S. Ct. 899, cert. denied, 114 S. Ct. 1548
(1994). “The Government may satisfy its burden of proving a
connection between the weapon and the offense by showing that the
weapon was found in the same location where drugs or drug
6
In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme
Court, construing 18 U.S.C. § 924(c)(1), held that the term “use”
(of a weapon) requires the “active employment” of the weapon by the
defendant. Id. at 505. Our Circuit has already held that Bailey
does not apply to § 2D1.1 enhancements. United States v. Castillo,
77 F.3d 1480, 1499 n.34 (5th Cir. 1996).
22
paraphernalia are stored or where part of the transaction
occurred.” Flucas, 99 F.3d at 179.
Neither the sentencing guidelines nor the case law
requires that the Government prove a defendant had
knowledge of a weapon's existence. The adjustment
must be made when a weapon is found at the scene of
the crime unless there is clear improbability that
the weapon is connected to the offense.
Flucas, 99 F.3d at 179. “[S]entencing courts [in drug cases] may
ordinarily infer that a defendant should have foreseen a
co-defendant's possession of a dangerous weapon, such as a firearm,
if the government demonstrates that another participant knowingly
possessed the weapon while he and the defendant committed the
offense." Sparks, 2 F.3d at 587, citing, United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). The district
court’s determination that a weapon was present and that its
possession by a co-conspirator was foreseeable is a factual finding
reviewable for clear error.
In the instant case, it is undisputed that Demarco Morgan,
Samuel Hall, and Raymond Kinsey pled guilty to carrying a firearm
during, and in relation to, a drug trafficking crime, in violation
of 18 U.S.C. § 924(c). Morgan, Hall, and Kinsey were each involved
in the conspiracy. The district court did not clearly err in
finding that Morgan, Hall, and Kinseys’ possession of a firearm was
reasonably foreseeable to the other defendants as co-conspirators.
Finally, Ralph Green argues that the evidence does not support
the district court’s refusal to grant his motion to acquit.
23
Specifically, Ralph Green summarily asserts that the government did
not prove, beyond a reasonable doubt, that he was involved in a
conspiracy because he claims that the government’s witnesses were
incredible, unreliable, and their testimonies uncorroborated. He
asserts that many of the witnesses were drug dealers whose
testimonies were “substantially impeached by ‘deals’ with the
government.”
In a sufficiency review, we must determine whether viewing the
evidence and the inferences therefrom in a light most favorable to
the jury's guilty verdicts, a rational trier of fact could have
found these defendants guilty beyond a reasonable doubt. United
States v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996). In denying
Ralph Green’s motion for acquittal, the district court passed on
the sufficiency of the evidence. We review the denial of the
motion for acquittal de novo, applying the same standards as in a
general sufficiency review. Payne, 99 F.3d at 1278; United States
v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert. denied, 113 S.
Ct. 330 (1992).
The elements of a drug conspiracy are: "(1) the existence of
an agreement between two or more persons to violate narcotics law;
(2) the defendant's knowledge of the agreement; and (3) the
defendant's voluntary participation in the agreement." Payne, 99
F.3d at 1278; United States v. Gonzalez, 76 F.3d 1339, 1346 (5th
Cir. 1996). "A jury may infer the elements of a conspiracy
24
conviction from circumstantial evidence: an agreement to violate
narcotics law may be inferred from concert of action. Knowledge of
the conspiracy may be inferred from a collection of circumstances."
Payne, 99 F.3d at 1278; United States v. Leal, 74 F.3d 600, 606
(5th Cir. 1996) (internal quotations and citations omitted).
We have previously held that “non-credibility is generally not
a sound basis for alleging insufficiency of the evidence; it is the
jury's function to determine credibility." Payne, 99 F.3d at 1278;
United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995). We have
also held that, unless the testimony is incredible or insubstantial
on its face, a guilty verdict may be supported by only the
uncorroborated testimony of a coconspirator, even if the witness is
interested due to a plea bargain of promise of leniency. Payne, 99
F.3d at 1278; United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.
1994), cert. denied, 115 S. Ct. 1825 (1995). Ralph Green has
pointed to no evidence in the record showing that the testimony in
this case is incredible or insubstantial on its face, nor do we
find any upon our own review. Accordingly, there is sufficient
evidence to support the conspiracy conviction of Ralph Green. The
district court did not commit error.
7. Fast Food Receipt
Defendants argue that the district court erred in admitting
into evidence two government exhibits, namely: (1) a fast food
25
receipt from a San Antonio restaurant which law enforcement
officials found within Mormon’s possession when he was arrested
(Exhibit 68A), and (2) an enlarged photocopy of that receipt
(Exhibit 68B). This evidence was important to the government’s
case because it placed Mormon in San Antonio (where the drug
conspiracy was based) on the evening before his arrest. Defendants
argue that the district court should not have admitted this
evidence because it was never effectively disclosed to the
Defendants by the government. While Defendants acknowledge that
they were given an opportunity to generally review the government’s
documents, they argue that their opportunity to do so was hollow
because the government neither specified the contents of Exhibits
68(A) and (B) on its disclosure list, nor indicated its
significance. For the following reasons, we find no error.
During the discovery process, the government voluntarily
complied with FED. R. CRIM. P. 16(a)7 and specifically listed, inter
alia, items that the government intended to introduce at trial.
Among the descriptions of the items disclosed was the following:
“miscellaneous notes and papers found as the result of an August
17, 1993 traffic stop of Mormon.” It is not disputed that all of
7
In relevant part, Rule 16(a) requires the government, upon
defendant’s request, to disclose to defendant and make available
for inspection, copying, or photographing any relevant written or
recorded statements made by the defendant which is within the
possession, custody, or control of the government. FED. R. CRIM. P.
16(a).
26
the disclosed documents were made available to Defendants who
reviewed them at the office of the United States Attorney.
The narrow issue presented for review is whether the
government substantially complied with the discovery requirements
of the Federal Rules of Criminal Procedure. United States v. Elam,
678 F.2d 1234, 1252 (5th Cir. 1982). “Rule 16, FED.R.CRIM.P., does
not require that the prosecution disclose all the minutiae of its
evidence, it does not require revelation of trial strategy; nor
does the Rule require delineation of the government's case with
total specificity.” Id. The admission of evidence which has not
been properly identified in any pretrial order or other procedure
is largely a matter for the sound discretion of the trial judge.
Id., citing, Calamia v. Spivey, 632 F.2d 1235 (5th Cir. 1980).
Under the circumstances of this case, where the government's
exhibit list included a general reference to all of the disputed
records, and those records were made available to the defense, the
district court did not abuse its discretion in admitting those
records into evidence. Elam, 678 F.2d at 1253. We find no error.
8. Jury Instructions
Appellants argue that the district court abused its discretion
when it refused to grant Appellants’ proposed jury instructions
concerning a government witness’ immunity, credibility, and alleged
drug addiction. The district court held that the issues of
27
immunity and credibility were already addressed in the charge, and
that the evidence did not support an instruction concerning a
witness’ alleged drug addiction.
The trial court has broad discretion in formulating its
charge, so long as the charge accurately reflects the law and facts
of the case. United States v. Allred, 867 F.2d 856, 868 (5th Cir.
1989). A defendant is entitled to a correctly stated instruction,
but not to his own particular language. United States v. Davis, 61
F.3d 291, 304-05 (5th Cir. 1995), cert. denied, 116 S. Ct. 961
(1996). “[A] district court may properly decline to give a
requested instruction which incorrectly states the law, is without
foundation in the evidence, or is stated elsewhere in the
instructions. Allred, 867 F.2d at 868 (citations omitted). The
defendant must show that the district court’s instruction failed to
correctly state the law. Davis, 61 F.3d at 304.
Having reviewed the district court’s jury charge, we find that
it was an adequate statement of the law. The district court’s
refusal to give the requested instructions was not in error.
CONCLUSION
For the aforementioned reasons, the judgment of the district
court is, in all respects, AFFIRMED.
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