United States v. Farahkhan

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20711
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BILAL TROY FARAHKHAN; TERRELL RAY BARNES;
RALPH TERRELL HAWKINS,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(CR H 96-24)
_________________________________________________________________
December 24, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Bilal Troy Farahkhan, Terrell Ray Barnes, and Ralph

Terrell Hawkins appeal their convictions and sentences for

conspiracy to possess with intent to distribute cocaine base and

possession with intent to distribute cocaine base under 21 U.S.C.

§§ 841(a) and 846. We affirm the district court’s judgments of

conviction and sentence.

*
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that this opinion should not be published and is not precedent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.
 I. FACTUAL AND PROCEDURAL BACKGROUND

This case began with a confidential informant (CI)

contacting Police Officer Darrin Bush and telling him that

someone wanted to sell eighteen ounces of crack cocaine for

$600/ounce. The seller and Officer Bush arranged to meet at a

fast food restaurant. Officer Bush went to the restaurant with

another officer, and several other officers were near the

restaurant in a back-up role. At the restaurant, he met the CI

and defendant Terrell Ray Barnes, the seller. The CI and the

other officer went into the restaurant, while Officer Bush and

Barnes talked in Officer Bush’s car. Barnes counted the money

and called his cousin, who he identified as “Bilal.”

After about a half hour, defendant Bilal Troy Farahkhan

arrived. He wanted to count the money. After being assured that

the money had been counted, Farahkhan walked Officer Bush and

Barnes around to the other side of the restaurant where they met

Ivan Sledge in Sledge’s car. Sledge invited Officer Bush to get

into the passenger seat of the car, but he refused because

someone was in the backseat. Defendant Ralph Terrell Hawkins,

who was the person in the backseat, said “everything is cool” and

that the dope was good. Hawkins then invited Officer Bush to get

into the car, but again he refused. Sledge pulled a bag from the

backseat and handed it to Officer Bush. The bag contained crack

2
cocaine. Officer Bush went to get the money and signaled the

back-up officers to move in and make the arrests.

The other individuals were arrested, but Barnes ran from the

scene and had to be chased over a couple of blocks. In Sledge’s

car, a fully-loaded automatic pistol with a chambered round was

found in the pocket behind the passenger seat directly in front

of where Hawkins was sitting. The pistol was completely

concealed in the pocket, with the muzzle pointed down with the

butt to the right. The substance in the bag tested positive as

cocaine base.

The above facts embody the government’s presentation at

trial. The only defendant to put on a defense was Hawkins.

Hawkins presented character witnesses who testified that they

could not believe that Hawkins would be involved in a drug

transaction. One witness also testified that Hawkins had a pre-

existing head injury for which he was on medication that induced

drowsiness and nausea. Hawkins also took the stand and testified

that he was at Sledge’s house playing video games; while there,

he took a nap and was awakened by Sledge who said, “let’s go.”

According to Hawkins, he and Sledge got into Sledge’s car with

another man and went to the restaurant. Hawkins claims that he

laid down and went to sleep in the backseat and that he was

awoken by the police. He denied talking to Officer Bush or

knowing that the gun was in the pocket in front of him.

3
 Farahkhan, Hawkins, Barnes, and Sledge were charged with

conspiracy to possess with intent to distribute cocaine base

(crack cocaine) and with possession with intent to distribute

cocaine base pursuant to 21 U.S.C. §§ 841(a) and 846. Sledge

pled guilty, while the other three proceeded to trial. The jury

found all three guilty of both charges. During the proceedings,

the district court denied the defendants’ motions to disclose the

government’s CI after an in camera examination of the informant.

The court sentenced Farahkhan to two concurrent life terms with

ten years of supervised release, a $10,000 fine, and a $100

special assessment. The court sentenced Barnes to two concurrent

240-month terms of imprisonment with ten years of supervised

release, a $7500 fine, and a $100 special assessment. The court

sentenced Hawkins to two concurrent 151-month terms with five

years of supervised release, a $5000 fine, and a $100 special

assessment. The defendants now bring this appeal.

II. DISCUSSION

All three defendants raise challenges to their convictions

and sentences, and Hawkins also appeals the denial of his motion

for a new trial.

A. Challenges to Conviction

All three defendants raise unsuccessful challenges to their

convictions. All three defendants challenge the district court’s

denial of their motions to disclose the identity of the CI and

4
the district court’s exclusion of defense counsel from the in

camera examination of the CI. Barnes argues that the reference

to Sledge’s guilty plea by Hawkins’s counsel during opening

argument denied him his right to a fair trial, and Farahkhan and

Hawkins challenge the sufficiency of the evidence to support

their convictions.

1. In camera examination of confidential informant

The defendants argue that the district court erred when it

excluded defense counsel and not the government from an in camera

examination of the CI. The district court solicited questions

from the defendants for for the court to pose to the CI and

stated that the government would not have the opportunity to ask

any questions. The defendants did not object to this procedure.

At the in camera examination, the district court allowed the

government to ask questions relating to the CI’s safety and

possible future aid to law enforcement. After the in camera

examination, the court told defense counsel that he had allowed

the government to ask questions, and they again did not object.

Exclusion of defense counsel from this type of in camera

examination is within the discretion of the trial court. See

United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir.

1992). The defendants failure to object drops our review to one

for plain error. Plain error review has four steps: (1) there

must be error; (2) the error must be plain; (3) the error must be

5
prejudicial; and (4) the court must then exercise its discretion

in determining whether to correct the error. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994).

This circuit has said that the recommended procedure for an

in camera examination of a CI would include defense counsel who

could be bound by an appropriate gag order. See id.; United

States v. Singh, 922 F.2d 1169, 1172-73 (5th Cir. 1991).

However, this court has held the exclusion of defense counsel

from this type of examination to be within the discretion of the

court as long as the court adequately protects the rights of the

defendants. Mendoza-Burciaga, 981 F.2d at 196.

In considering this challenge, we have thoroughly examined

the sealed transcript of the in camera examination. The district

court’s questioning covered all the questions that defense

counsel had given him. The government’s questioning was limited

as described by the court. Although the district court may not

have followed up some answers with questions defense counsel may

have asked, we find that he adequately represented the

defendants’ interests in eliciting information related to the

district court’s decision on whether to disclose the identity of

the confidential informant, which includes possible defenses.

The district court’s exclusion of defense counsel in this case

does not constitute plain error, nor does the district court’s

failure to ask follow-up questions that defense counsel might

have asked rise to the level of plain error because he adequately

6
represented the defendants’ interests in eliciting facts related

to the disclosure decision.1 Additionally, even if the exclusion

of defense counsel was plain error, no prejudice that would

require reversal resulted because the nondisclosure of the CI’s

identity was not an abuse of the district court’s discretion as

discussed below.

2. Disclosure of confidential informant’s identity

The defendants argue that the district court abused its

discretion in failing to disclose the CI’s identity because it

denied them the ability to put on a defense. According to the

defendants, the CI was necessary to defense counsel’s evaluation

of the viability of an entrapment defense. Without the CI, the

defendants claim they could not even attempt to show that the CI

badgered Barnes into performing the transaction or how the

transaction was initiated. The only suggestion of an entrapment

defense in the record at the district court was in Barnes’s

questions for the CI; the defendants did not present any evidence

of entrapment or request an entrapment instruction.

A court’s denial of the disclosure of the identity of a CI

is reviewed for an abuse of discretion. United States v. De Los

Santos, 810 F.2d 1326, 1333 (5th Cir. 1987). Factual findings by

the trial court in making its determination as to whether

disclosure should occur are reviewed under a clearly erroneous

1
We express no opinion as to whether this failure may have
risen to the level of an abuse of discretion.

7
standard while its conclusions are reviewed for an abuse of

discretion. Mendoza-Burciaga, 981 F.2d at 195.

The Supreme Court has stated that whether a CI’s identity

should be disclosed requires a balancing of the needs of the

defendant in preparing his defense against the public interest in

a free flow of information to the police. Roviaro v. United

States, 353 U.S. 53, 62 (1957). The Fifth Circuit performs this

balancing by weighing three factors to determine if a CI’s

identity must be disclosed: “1) the informant’s degree of

involvement in the crime, 2) the helpfulness of the disclosure to

the defense, and 3) the Government’s interest in nondisclosure.”

United States v. Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993).

If the CI is a mere tipster, the balancing favors nondisclosure.

See United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979).

However, a CI may be more than a mere tipster and still have

minimal involvement in the criminal transaction supporting

nondisclosure. See United States v. Diaz, 655 F.2d 580, 588 (5th

Cir. Unit B Sept. 1981) (finding that the CI was a mere

“introducer”). While a defense of entrapment may sway the

balance in favor of the disclosure of a CI’s identity, United

States v. Bower, 575 F.2d 499, 503 (5th Cir. 1978), a “mere

allegation of entrapment is not sufficient in and of itself to

force disclosure,” Gonzales, 606 F.2d at 75.

From the facts in the public record, the CI was more than a

mere tipster and at least an introducer because he brought

8
Officer Bush and Barnes together. The CI may have observed, but

did not participate in, the transaction because he was inside the

restaurant with another officer during the events in the

restaurant parking lot--i.e., in a detached position. The public

record only shows that the CI was minimally involved in the

transaction, and the sealed transcript reveals nothing to suggest

a greater role. The defendants’ mere allegations of entrapment

are not enough to favor disclosure, especially considering that

the CI’s answers to the only questions suggesting the entrapment

defense actually undermined that defense.

Applying the balancing test, the district court denied the

motion to disclose the CI’s identity based upon his detached

location in the restaurant from the transaction outside, the CI’s

inability to provide helpful information to the defendants, and

the government’s interest in the security and safety of the CI.

After a careful review of the sealed transcript, we find no clear

error in the district court’s factual findings nor an abuse of

discretion in its conclusions.

3. Hawkins’s reference to Sledge’s guilty plea

Barnes argues that the reference by Hawkins’s counsel in his

opening statement to Sledge’s guilty plea denied Barnes the right

to a fair trial. According to Barnes, defense counsel knew that

Sledge would not be called as a witness and that his guilty plea

therefore would not be admitted into evidence. Barnes failed to

9
object to this reference at trial or request a cautionary jury

instruction, and he now argues that it is reversible error that

the government did not request such an instruction.

Because of the failure to object, our review is for plain

error. United States v. Leach, 918 F.2d 464, 467 (5th Cir.

1990). The government concedes that the reference to Sledge’s

guilty plea by codefendant’s counsel constituted plain error, but

it argues that no prejudice resulted from this error. This

circuit has consistently found this reference when made by a

prosecutor to be reversible plain error. See Leach, 918 F.2d at

467 (citing cases). However, this circuit has found a trial

court’s instructions to the jury to be curative and avoid

prejudice where the codefendant’s counsel has made the remark.

See United States v. Robins, 978 F.2d 881, 888-89 (5th Cir.

1992); see also United States v. Ornelas-Rodriguez, 12 F.3d 1339,

1348-49 (5th Cir. 1994) (finding instructions to the jury and

passage of time curative where the improper remark was made by

the judge during voir dire). A specific instruction admonishing

the jury from improperly considering a codefendant’s guilty pleas

in deciding the guilt of a defendant is not required. See United

States v. Horton, 646 F.2d 181, 187 (5th Cir. Unit A May 1981)

(finding codefendant’s reference to codefendant’s guilty plea in

opening statements nonprejudicial where mention was brief and

court instructed the jury to try each defendant separately

considering only the evidence against each defendant).

10
Additionally, it is presumed that the jurors followed the court’s

instructions. Ornelas-Rodriguez, 12 F.3d at 1349.

In Robins, a codefendant’s counsel referred to the guilty

pleas of coconspirators not on trial in that proceeding. 978

F.2d at 887. Some of the coconspirators testified, but their

guilty pleas were not entered into evidence. Id. at 888. The

Robins court found that the district court’s instructions that

each defendant was to receive separate consideration, that

opening statements were not evidence, and that a guilty plea by

one person is not evidence of guilt of another erased any

prejudice created by the remark in the opening statement. Id.

In addition, the Robins court found that if there was error it

was harmless due to the “wealth of evidence” regarding the

defendant’s guilt. Id. at 889.

The district court instructed the jury that statements by

counsel were not evidence to be considered in their

deliberations, that the jury is not concerned with the guilt or

innocence of those not on trial in this case, and that each

defendant and the evidence against him should be considered

separately. The absence of a specific guilty plea instruction is

not dispositive here where no other factors in the trial would

require the inclusion of such an instruction. The district

court’s more general instructions cured any prejudice that may

have resulted from the reference to Sledge’s guilty plea, like

11
those in Robins. The lack of prejudice bars a reversal under

plain error review. See Calverly, 37 F.3d at 162-64.

4. Sufficiency of the evidence

Farahkhan and Hawkins argue that the evidence is

insufficient to sustain their convictions for conspiracy to

possess drugs with intent to distribute and for possession of

drugs with intent to distribute.

We will affirm a jury verdict against a sufficiency of the

evidence claim “‘unless the evidence and all reasonable

inferences, examined in the light most favorable to the

government, would preclude reasonable jurors from finding a

single conspiracy beyond a reasonable doubt.’” United States v.

Puig-Infante, 19 F.3d 929, 936 (5th Cir. 1994) (quoting United

States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989)).

Credibility determinations are left to the jury. United States

v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987).

To prove a conspiracy conviction, the government must show

that an agreement existed to violate the drug laws, that the

defendant knew of the conspiracy and intended to join it, and

that the defendant voluntarily joined the agreement. United

States v. Inocencio, 40 F.3d 716, 725 (5th Cir. 1994). No proof

of an overt act is necessary to prove conspiracy under § 846.

United States v. Shabani, 513 U.S. 10, 13 (1994). Proof of the

conspiracy can be by concerted action and the whole of the

12
circumstances surrounding the drug transaction. See United

States v. Lechuga, 888 F.2d 1472, 1476-77 (5th Cir. 1989).

However, the defendant’s mere presence at the scene of a drug

transaction without knowledge of the drugs or of the transaction

will not support a drug conspiracy conviction. Gardea Carrasco,

830 F.2d at 45.

To prove possession with intent to distribute, the

government must prove knowledge of the drugs, possession of the

drugs, and intent to distribute the drugs. United States v.

Pedroza, 78 F.3d 179, 183 (5th Cir. 1996). Intent to distribute

can be inferred from possession of a quantity of drugs too large

for ordinary personal consumption. United States v. Pineda-

Ortuno, 952 F.2d 98, 102 (5th Cir. 1992). Guilt on the

conspiracy count establishes guilt on the possession count where

it is shown that the defendants did possess with intent to

distribute cocaine. See United States v. Mergerson, 4 F.3d 337,

342-43 (5th Cir. 1993). The possession conviction can also be

established by showing that the defendant aided and abetted

another, which requires proof that he associated with the

criminal venture, purposefully participated in the venture, and

acted in such a way as to make the venture successful. See

United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert.

denied, 514 U.S. 1134 (1995).

a. Farahkhan

13
 Farahkhan argues that he cannot be guilty of possession with

intent to distribute because the crack cocaine was never in his

car or on his person. In addition, he argues that he was merely

present at the scene of the transaction, and Officer Bush’s

testimony is not supported by any other evidence or testimony.

The evidence against Farahkhan shows more than mere

presence. He has the same name as the person Barnes called from

the restaurant, and he arrived at the restaurant after Barnes’s

phone call. Thereafter, he immediately came over to the car with

Barnes and Officer Bush when they were awaiting the arrival of

the drugs, asked to count the money, and led Barnes and Officer

Bush to Sledge’s car which carried the drugs after Officer Bush

said that he wanted to see the dope. This evidence shows an

active participation and interest in the transaction in that

Farahkhan was involved in taking the officer to the drugs and was

instrumental in delivering the drugs to the restaurant. The

phone call by Barnes to get Farahkhan (Bilal) to deliver the

drugs shows an agreement, as does the coordinated action of the

defendants. Farahkhan was more than merely present, and his

conspiracy conviction should stand because this evidence is

sufficient to support a juror’s finding of a conspiracy beyond a

reasonable doubt.

The conspiracy conviction allows the possession of the drug

by Farahkhan’s coconspirators to be attributed to him. Even

without the conspiracy count, Farahkhan aided and abetted the

14
others because his acts demonstrate that he associated with the

criminal venture, purposefully participated in the venture, and

acted in such a way as to make the venture successful. While

unnecessary, the evidence collected at the scene and the

testimony of the other officers corroborates Officer Bush’s

testimony.

b. Hawkins

Hawkins claims that the evidence supports his contention

that he was merely present at the transaction and had no

knowledge of the drugs. He argues that no credible evidence was

presented at trial showing that he was a knowing member of any

conspiracy. Hawkins also relies upon the fact that he testified

and, according to him, the prosecution failed to elicit any

evidence on cross-examination that would support his conviction.

Because Hawkins failed to renew his motion for a directed

verdict at the close of all the evidence, any objection to the

motion’s denial is waived. United States v. Shannon, 21 F.3d 77,

83 (5th Cir. 1994). Therefore, our review of Hawkins’s

sufficiency challenge is “restricted to whether there has been a

manifest miscarriage of justice” allowing reversal “only if the

record is devoid of evidence pointing to guilt.” Id. (citations

and internal quotation marks omitted).

The record includes a great deal of evidence pointing toward

Hawkins’s guilt, which the jury obviously found to be credible.

15
Other than his presence, the evidence includes his arriving at

the restaurant in the car that contained the drugs, his sitting

in the backseat of the car with the drugs, his commenting on the

quality of the drugs to Officer Bush, his inviting Officer Bush

to have a seat in the car, and his sitting in the backseat in

easy reach of a loaded pistol. As these facts show, the record

is not devoid of inculpatory evidence. Hawkins’s conspiracy and

possession convictions are supported by the evidence under this

level of review.2 Additionally, the fact that the government was

unable to get Hawkins to incriminate himself on the stand does

not draw the verdict into question.

B. Challenges to Sentence

All three defendants raise meritless challenges to their

sentences. Hawkins challenges the two-level increase to his

offense level for possession of a firearm. Barnes argues that

the district court erred by applying the crack cocaine sentencing

guidelines rather than the powder cocaine guidelines. Farahkhan

argues that his life sentence is unconstitutional. We consider

each of these arguments in turn.

2
Even under our general standard of review of a jury
verdict, Hawkins’s conviction would stand because the evidence
shows more than mere presence. His acts are much more
participatory, and they indicate that he was thoroughly involved
in the transaction and reasonable jurors would not be precluded
from finding beyond a reasonable doubt that he was part of the
conspiracy.

16
 1. Increase to Hawkins’s sentence for possession of a
firearm

Hawkins argues that the evidence is insufficient to support

the district court’s application of the sentencing guidelines

two-level increase for possession of a firearm during commission

of the crime. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)

(1995). A sentencing court’s findings of fact need only be

supported by a preponderance of the evidence and are reviewed

under the clearly erroneous standard. United States v. McCaskey,

9 F.3d 368, 372 (5th Cir. 1993); see also United States v.

Westbrook, 119 F.3d 1176, 1192-93 (5th Cir. 1997) (applying clear

error review to two-level increase for a firearm in a drug

possession with intent to distribute case), petition for cert.

filed, (U.S. Nov. 3, 1997) (Nos. 97-6641 & 97-6667).

Sentencing Guidelines section 2D1.1(b)(1) provides: “If a

dangerous weapon (including a firearm) was possessed, increase by

2 levels.” U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1) (1995).

The comments to the Guidelines note that “[t]he adjustment should

be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense,” as in

the case where an unloaded weapon is in a closet. Id.

Application Note 3. Section 2D1.1(b)(1) applies “where a

temporal and spatial relationship exists between the weapon, the

drug-trafficking activity, and the defendant.” United States v.

Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997). In Marmolejo,

17
the district court did not apply the two-level increase because

the defendant did not display or brandish the firearm. This

court reversed because, in this circuit, only possession is

necessary for the enhancement, not active use. Id.

The district court’s finding that Hawkins possessed the

firearm in connection with the crime is not clearly erroneous.

The district court found that the firearm was in close proximity

to Hawkins and arranged in a way that suggests he put it there.

Therefore, the necessary relationship to the crime exists to

invoke the two-level increase. A review of the record shows that

it supports this finding, and the only evidence in conflict is

the testimony of Hawkins.3 We therefore hold that the district

court’s factual finding supporting the increase is not clearly

erroneous and is supported by a preponderance of the evidence.

2. Crack versus powder cocaine

Barnes argues that the court plainly erred in applying the

cocaine base (crack cocaine) guidelines, which require a higher

sentence than the powder cocaine guidelines for the same weight

of illegal drugs. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c).

3
Hawkins claims that a polygraph test taken by Sledge shows
that he had no knowledge of the gun. The record does not include
this evidence, but the sentencing hearing transcript includes
references to the polygraph. Without deciding whether the
polygraph was or should have been considered or whether the
failure of the defendant-appellant to include it in the record
bars our consideration of the evidence, we do not think that the
polygraph evidence would alter the result of affirming the
district court’s fact-finding in relation to Hawkins’s possession
of the firearm.

18
He does not dispute that the drug he is convicted of trying to

sell was crack cocaine, but argues that the guidelines make a

meaningless distinction between crack and powder cocaine. Barnes

therefore argues that he should have been sentenced under the

powder cocaine guidelines under the rule of lenity. Barnes’s

claim is meritless in light of United States v. Flanagan, 87 F.3d

121, 123 (5th Cir. 1996), in which this court has rejected this

same argument.

3. Farahkhan’s life sentence

Farahkhan was sentenced to life imprisonment pursuant to the

enhancement provisions of 21 U.S.C. § 841(1)(b), which require a

life sentence when the defendant has two prior felony drug

convictions. Farahkhan did not object to this sentence before

the district court, but he now argues that the sentence violates

the Eighth Amendment as grossly disproportionate to the

seriousness of his crime. He argues that possession with intent

to distribute over 400 grams of crack cocaine is a “victimless”

crime that is not so serious as to merit life imprisonment. We

find no error in his sentencing.

This court can consider an Eighth Amendment challenge only

if a sentence is grossly disproportionate to the offense. See

United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997)

(upholding a 438-month sentence for 1,998.4 grams of cocaine

including an enhancement for use of a machine gun), petition for

19
cert. filed, (U.S. Nov. 26, 1997) (No. 97-6904). Rummel v.

Estelle, 445 U.S. 263 (1980), is the benchmark for this review

for gross disproportionality. Gonzales, 121 F.3d at 943. In

Rummel, the defendant was sentenced to life imprisonment for a

conviction of obtaining $120.75 by false pretenses under a

recidivist statute that mandated the sentence for any offender

with three felony convictions; the Supreme Court upheld the

sentence as constitutional. 445 U.S. at 266, 284-85.

Farahkhan’s life sentence for selling over 400 grams of crack

cocaine for $10,800 is less disproportionate in relation to the

sentence in Rummel. See also Harmelin v. Michigan, 501 U.S. 957,

996 (1991) (upholding a mandatory life sentence for 672 grams of

cocaine under a Michigan statute not requiring prior felony

convictions); United States v. Davis, 61 F.3d 291, 305 (5th Cir.

1995) (upholding life sentence where cocaine was measured in

kilograms), cert. denied sub nom., Jefferson v. United States,

116 S. Ct. 961 (1996); cf. United States v. Cooks, 52 F.3d 101,

105 (5th Cir. 1995) (upholding life sentence under § 841(b)(1)

for 3.5 ounces of crack cocaine (about 99 grams) where the

defendant had two prior drug convictions, but reasoning that

Harmelin had entirely disposed of proportionality review4).

4
In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme
Court did not completely dispose of any Eighth Amendment
proportionality requirement. See Magruder v. Puckett, 954 F.2d
313, 316 (5th Cir. 1992); see also Gonzales, 121 F.3d at 942-43,
943 n.11 (citing Magruder). The earlier of two conflicting panel
opinions from this circuit is controlling. Broussard v. Southern

20
Following this precedent, Farahkhan’s life sentence cannot be

considered grossly disproportionate and therefore does not

violate the Eighth Amendment. His argument that this is a

“victimless” crime is, at least, meritless.

C. Denial of Hawkins’s Motion for a New Trial

After the close of trial, Hawkins made a motion for a new

trial based upon the prosecution’s failure to turn over pre-trial

statements by Sledge that Hawkins had no knowledge of the gun or

the drug transaction in violation of Brady v. Maryland, 373 U.S.

83 (1963). According to the Assistant United States Attorney

representing the government at Sledge’s July 25, 1996 sentencing

hearing, Sledge stated that Hawkins did not know about the gun or

the drug deal at the government’s attempted debriefing of Sledge

on April 27, 1996 which was two days before the trial commenced.5

The district court denied Hawkins’s motion for a new trial

because Hawkins knew that Sledge had pleaded guilty and knew of

the evidence because he testified at trial that he had overheard

Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en banc).
5
At oral argument and in a post-submission filing, the same
Assistant United States Attorney claimed that the government did
not know of Sledge’s statements until after the trial began. A
review of the record finds the above statement in the text in a
transcript of Sledge’s sentencing hearing attached to the
government’s response to Hawkins’s motion for a new trial. We
are concerned by the Assistant United States Attorney’s failure
to uncover this information and make the court aware of it in his
post-submission filing after denying knowledge of the statement
prior to trial in oral argument.

21
Sledge tell the police at their arrest that he was asleep and not

involved in the drug transaction.

A denial of a motion for a new trial is reviewed for an

abuse of discretion. United States v. Dula, 989 F.2d 772, 778

(5th Cir. 1993). However, a district court’s Brady

determinations are reviewed de novo. East v. Johnson, 123 F.3d

235, 237 (5th Cir. 1997). To succeed on a motion for new trial

on a Brady violation, Hawkins must show “that (1) the prosecution

suppressed or withheld evidence (2) favorable to the defense and

(3) material to guilt or punishment.” Id. Brady does not

require the prosecution to direct the defendant to evidence of

which the defendant is already in possession, that he could

discover by exercising due diligence, or that is available from

other sources. Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir.

1997), petition for cert. filed, (U.S. Nov. 13, 1997) (No.

97-6761). Evidence is not “suppressed” if the defendant knew of

the essential facts contained in the exculpatory evidence in the

government’s possession. See Lawrence v. Lensing, 42 F.3d 255,

257 (5th Cir. 1994).

Hawkins’s own testimony defeats his Brady claim. He

testified that he (1) knew Sledge, (2) knew Sledge was the driver

of the car that brought him while sleeping to the restaurant and

that delivered the drugs to the restaurant, and (3) heard Sledge

tell the police that Hawkins was not involved in the drug

transaction and had no knowledge of the drugs or the gun.

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Hawkins and his counsel were also aware that Sledge had pleaded

guilty prior to trial. Hawkins, by his own testimony, knew what

was contained in the exculpatory statements made by Sledge to the

government at the attempted debriefing and could have interviewed

him or called him as a witness. Therefore, the government did

not improperly suppress any evidence, and Hawkins cannot claim

that he would have called Sledge as a witness if he had known of

Sledge’s statements to the government because he already had the

information contained in them. For the same reasons, the

district court properly denied Hawkins’s motion for a new trial

under the standard for newly discovered evidence because the

information contained in Sledge’s statements was not discovered

following trial. See Unites States v. Ugalde, 861 F.2d 802, 808

(5th Cir. 1988) (setting out the newly discovered evidence

standard, which requires among other things that the evidence was

discovered following the trial).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

judgment of conviction and sentence for each of the defendants.

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