IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-11491
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD GABRIEL MCBROWN, also known as Red; FREDRICK
ASBERRY, also known as Andre; FRANK STOLDEN; BOBBY
WAYNE REED, also known as BR, also known as Bobby
Wayne; RODERICK GENE REED, also known as Rod; KEVIN
REED,
Defendants-Appellants.
_______________________________________________________
Appeals from the United States District Court for
the Northern District of Texas
(4:96-CR-68-A)
_______________________________________________________
June 22, 1998
Before POLITZ, Chief Judge, REAVLEY and JONES, Circuit Judges.
REAVLEY, Circuit Judge:*
Appellants Bobby Reed, Roderick Reed, Fredrick1 Asberry,
Edward McBrown, Kevin Reed, and Frank Stolden were convicted on
drug conspiracy and other charges. They raise numerous points on
*
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this opinion should not be published and is not precedent except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.
1
Also spelled “Frederick” in the record.
appeal. We conclude that the convictions and sentences should
stand.
2
BACKGROUND
The appellants and others were indicted for conspiracy to
distribute cocaine and cocaine base (crack cocaine), and for
numerous other drug-related and firearm offenses. The government
presented evidence that appellants and others were involved in
numerous drug transactions in the 1987-1995 time period. Because
all defendants were convicted on the conspiracy count and other
counts they challenge on appeal, we view the evidence, including
all reasonable inferences drawn therefrom and all credibility
determinations, in the light most favorable to the verdict,2 and
summarize the evidence here accordingly.
K.M. Sam, a Fort Worth police officer and member of the task
force investigating the Bobby Reed organization, testified that
appellant Bobby Reed operated Reed’s Starter Shop in Fort Worth,
and that he also owned the Ebony Terrace Apartments and a club in
Crosby, Texas. Sam testified that appellant Roderick Reed, Bobby
Reed’s brother, lived at a residence on Flamingo Street, and that
appellant Stolden lived at a residence on Donalee Street.
J.C. Anderson, a captain with the Tarrant County Sheriff’s
Department, testified that in 1987, while acting in an undercover
role, he and an informant visited Bobby Reed at the starter shop.
Reed offered to sell ounce quantities of cocaine for $1800 per
ounce. When Anderson returned later that day to make a purchase,
2
United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th
Cir. 1995).
3
Reed informed him that he was shutting the cocaine business down
for the day because the police were nearby.
Fort Worth police officer Mitchell Felder testified that in
1989 he bought crack cocaine from Willie Collins at the starter
shop. Police detective Michael Jones executed a search warrant
on the premises the same day. Prior surveillance indicated that
persons came and went at the shop without conducting any apparent
automotive business. Jones believed that activity was consistent
with an illegal narcotics business. Money from Felder’s purchase
was found in Bobby Reed’s pocket. Crack cocaine was found in the
shop. Jones also noticed that there were no new or rebuilt
starters in the shop.
Larry Jones testified that he purchased crack cocaine from
Bobby Reed at that starter shop, in amounts of up to two
kilograms. He dealt with Bobby Reed from 1988 through 1992. In
1992 Jones and Reed had a recorded conversation in which Reed
quoted Jones a price of $22,000 for a kilogram of cocaine. Jones
made purchases from several other people, including Glenn
Williams and “Slim.” These purchases were arranged through Bobby
Reed.
Frank Magee testified that he traveled from Mississippi to
the starter shop five to seven times to purchase cocaine for
resale. He sent associates on other trips to the starter shop to
purchase cocaine. These trips occurred in 1991 and 1992. He
dealt with Bobby Reed and Slim at the starter shop.
4
Evangela Asberry, the wife of appellant Fredrick Asberry,
testified that in 1993 and 1994 she saw Fredrick purchase and
sell crack cocaine. On one occasion Fredrick picked up a one
kilogram package of cocaine from Slim. At Bobby Reed’s
direction, Evangela picked up cocaine in kilogram quantities at
Slim’s house at least seven times. Bobby Reed would contact
Evangela through Fredrick. In January of 1995 Evangela picked up
one kilogram of cocaine from Slim and delivered it to Stanley
Williams. Williams paid her $18,000 and she delivered the
payment to appellant Stolden, at Bobby Reed’s instruction.
Stolden was at his house on Donalee. Bobby Reed paid Evangela
$1000 for the delivery. On another occasion she and Fredrick
went to Glen Williams’ house and watched Williams “cook” powder
cocaine to make crack cocaine. Other testimony linked Glen
Williams to Bobby Reed.
In May of 1995, Evangela traveled to Crosby, Texas with
appellants Fredrick Asberry and Kevin Reed, Bobby Reed’s brother.
They went to see Bobby Reed at his club. Appellant McBrown was
present. Fredrick picked up money from Bobby Reed at the club.
On one occasion Evangela was with Fredrick when he picked up cash
from McBrown and delivered it to a house on Hampshire Street.
Evangela Asberry’s brother, Darron Reed (no relation to the
Reed appellants) testified that he and Evangela were drug
dealers. Evangela told Darron she had a drug connection through
appellant Fredrick Asberry. In the summer of 1993 Darron told
5
Evangela that he needed a kilogram of cocaine. Darron then spoke
to Fredrick, and they arranged to meet at Evangela’s nail shop.
There Darron paid Fredrick $18,500 and received a kilogram of
cocaine. On another occasion Darron purchased two kilograms from
Fredrick. Darron bought cocaine directly from Evangela twenty to
thirty times, in quantities of one to four kilograms. Evangela
told Darron she was getting the cocaine from Bobby Reed.
John Clay testified that in 1993 he met Bobby Reed at the
starter shop and expressed an interest in buying cocaine. Reed
told him he made about two big buys a year and that he could hook
Clay up with Slim. Clay contacted Slim, who was already aware of
the price Reed had offered. Clay began buying cocaine from Slim,
“Pooh,” and Tammy Yarborough, all Reed associates, two to three
times a week, in quantities of a quarter kilogram to two
kilograms. He also purchased cocaine from appellant McBrown. He
testified that he purchased one and two kilogram quantities about
fourteen times from McBrown. McBrown told Clay he was getting
the cocaine from Houston. Clay also sold three kilograms of
cocaine to McBrown.
Michael Mitchell testified that from 1990 to 1992 he
purchased cocaine from Eric Richardson, who got his supply from
Bobby Reed. In 1993 he began purchasing cocaine from Darrell
Sauls, who was linked to Bobby Reed through other evidence. In
1994 he purchased cocaine from Glenn Williams and Roderick Reed.
Williams worked for or with Bobby Reed. On one occasion he saw
6
Williams and Roderick Reed unwrapping a kilogram of cocaine.
Mitchell told Officer Sam that he often saw Williams at the
starter shop.
Terry Reed, another brother of Evangela Asberry, testified
that he worked with Eric Richardson in 1989, and that Richardson
got his cocaine from Bobby Reed. Richardson had first met Bobby
Reed at the starter shop, where he purchased a kilogram of
cocaine. From the end of 1989 until some time in 1992,
Richardson would buy two kilograms of cocaine a week from “Tasha”
or “Tashon,” who worked for Bobby Reed. Richardson bought three
kilograms directly from Bobby Reed in 1992. In 1993 Richardson
bought three kilograms of cocaine from “Brisha,” who worked for
Bobby Reed.
Bobby Willie testified that in 1993 and 1994 he bought
cocaine from Bobby Reed, Eric Richardson and Evangela Reed
(Evangela Asberry after she married appellant Asberry). He
bought about twenty-five kilograms from Evangela.
Cedric Clayborne testified that he purchased thirty-one
grams of cocaine from appellant Asberry in 1995. He sold the
cocaine to Loritha Johnson, a Fort Worth police officer working
undercover. Kendra Bagley testified that she began using crack
cocaine in 1991. She obtained it from Cedric Clayborne and
Darrel Sauls, among others. She also bought crack cocaine for
personal use from Roderick Reed, at Reed’s Flamingo residence or
elsewhere. Evern Charleston testified that he worked for Stanley
7
Williams in the drug trade, and on one occasion picked up a
kilogram of cocaine for Williams from appellant Asberry. On
another occasion he picked up two kilograms from Asberry.
Sylvester Jackson testified that in 1995 he traveled to
Baytown with appellant McBrown and others to purchase cocaine.
They had $140,000 with them. They arrived at a club. McBrown
informed Jackson that the seller was Bobby Reed, who was at the
club. Jackson saw Evangela Asberry at the club. Jackson and his
companions did not pick up the drugs, because according to
Jackson the drugs somehow managed to arrive in Fort Worth through
other means. Upon returning to Fort Worth Jackson saw two
kilograms of cocaine at McBrown’s house.
In addition to the conspiracy count (count 1 of the
indictment), the appellants were convicted on several other
counts. The conspiracy count incorporated by reference each of
the other counts as overt acts of the conspiracy. Count 4,
against Bobby Reed, concerned a purchase by an undercover agent
of 125 grams of cocaine from Bobby Reed and Melonique Lister, his
girlfriend, at the Starter Shop on September 7, 1991. Gabreielle
Jones testified that on September 7, 1991 she and Melonique
Lister went to the starter shop. Bobby Reed gave her the cocaine
referenced in count 4. Everett Frye, a Dallas police detective,
testified that he went to the starter shop on September 7 to make
the undercover buy. Lister went into the shop and retrieved the
cocaine, and then gave it to Gabreielle Jones. Jones gave the
8
cocaine to Frye, who in turn gave Jones $3800. A few days later
Frye arranged to purchase three kilograms of cocaine from Lister
and Gabreielle Jones. They delivered the cocaine to an agreed
location and were arrested. Count 5, against Bobby Reed, alleged
that he maintained a building -- the starter shop -- for the
purpose of distributing cocaine, in violation of 21 U.S.C. §
856(a)(1).
Counts 8-13 were against appellants Kevin Reed and Frank
Stolden. These counts involved drug purchases by informant Frank
Tillis. Count 8 alleged a purchase of cocaine from Kevin Reed
and Stolden on August 26, 1994. Counts 9 and 13 accused these
two of maintaining a residence for purposes of distributing
cocaine, in violation of 21 U.S.C. § 856(a)(1). Counts 10 and 11
alleged that Kevin Reed used a telephone in committing and
facilitating the August 26 transaction and another transaction,
in violation of 21 U.S.C. § 843(b). Count 12 concerned the
latter transaction, an undercover purchase of cocaine from Kevin
Reed and Stolden on September 23, 1994. Frank Tillis testified
that in 1993 or 1994 he first discussed purchasing cocaine from
Kevin Reed at the starter shop. The starter shop had changed
locations, but Tillis had seen Bobby Reed at the new location.
On a later occasion when Tillis wanted to buy cocaine from Kevin
Reed, Kevin told him to check with appellant Stolden. On or
about August 25, 1994, Tillis went to the starter shop and told
Kevin Reed he wanted to purchase 125 grams of cocaine. Kevin
9
Reed later paged Tillis, who then called Reed from the starter
shop. Reed told Tillis to go to Stolden’s house on Donalee to
pick up the drugs. Tillis went to Stolden’s house, where Stolden
gave Tillis the cocaine and took receipt of $3000. Around
September 21, 1994, Tillis called Kevin Reed to purchase another
125 grams of cocaine. The two spoke by phone the next day and
Kevin Reed told Tillis to pick up the drugs at Stolden’s house.
Tillis went to Stolden’s house. Stolden and a slender man later
arrived. The slender man sold cocaine to a man named “Big Mark,”
then left and returned with Tillis’ cocaine. Tillis paid either
Stolden or the slender man $3000 for the cocaine.
Counts 14-16 were against appellant McBrown. At a traffic
stop McBrown ran away from Fort Worth police officers after
striking one of them. The officers found a handgun and crack
cocaine in the car. The counts are for possession with intent to
distribute, carrying a firearm during a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1), and possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
Counts 21-24 are against appellant Roderick Reed. The
counts are for possession of cocaine and cocaine base with intent
to distribute, maintaining a residence for purposes of
distributing drugs, and possession of a firearm by a felon. A
search of Roderick Reed’s home on Flamingo yielded crack and
powder cocaine, and an assault rifle.
10
In addition to testimony including the testimony of Bobby
Reed in his own defense, the defendants offered the testimony of
James Jackson, Michael Dixon, and George Gillis, who were inmates
in a federal facility along with several prosecution witnesses.
Jackson testified that he heard government witness Evern
Charleston state that he intended to give false testimony about
appellant Asberry. Jackson also heard John Clay state that “he
couldn’t do no life sentence,” and that “anybody that was going
to trial that he knowed anything about, he was going to testify
against them.” According to Jackson, “Mr. Clay said he had to
testify against anybody. He was going to testify against anybody
that he could to get -- in order to get a reduction in his
sentence.” Jackson understood that Clay was going to “lie on
somebody for no reason just to try to get a reduction in his
sentence.”
Dixon testified that Darron Reed told him that “it’s
election year and the government must show the taxpayers what
they’re doing with their money, so all they’re interested in is
convictions. You can either roll with them or get rolled over.”
Bobby Willie told Dixon that all he had to do to “get down” was
contact FBI agent Garrett Floyd. Dixon understood “get down” as
meaning to “basically lie on someone” to get a reduction in
sentence. At one meeting he heard government witnesses Mike
Mitchell, Darron Reed, Bobby Willie, Ronnie Bennett, and Evern
Charleston indicate that they all wanted to “get down.” To
11
Dixon, the government witnesses indicated that they were going to
lie for a reduced sentence.
Gillis testified that he heard Evern Charleston say that he
was going to frame appellant Asberry because of a dispute over a
woman. Gillis heard government witnesses Charleston, Mitchell,
and Bennett say that they were going to “get on the bandwagon,”
which Gillis took to mean that they were going to lie for a
reduced sentence.
DISCUSSION
A. Sufficiency of Evidence
Bobby Reed, Roderick Reed, and McBrown raise several
sufficiency of evidence points. The jury’s verdict will be
upheld if a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.3
Roderick Reed challenges his conviction under count 1 for
conspiracy.4 To establish a drug conspiracy in violation of 21
U.S.C. § 846, the government must establish that (1) an agreement
existed to violate the narcotics laws, (2) the defendant knew of
3
United States v. Walters, 87 F.3d 663, 667 (5th Cir.),
cert denied, 117 S. Ct. 498 (1996) .
4
Bobby Reed adopts Roderick Reed’s brief on this issue,
but we have held that an appellant cannot adopt another
appellant’s argument on a fact-specific challenge such as
sufficiency of the evidence. United States v. Alix, 86 F.3d 429,
434 n.2 (5th Cir. 1996). In any event the evidence against Bobby
Reed on count 1 was overwhelming.
12
the existence of the agreement, and (3) the defendant voluntarily
participated in the conspiracy.5
We find the evidence sufficient. There was overwhelming
evidence that Bobby Reed, working in concert with Roderick Reed
and others, distributed large quantities of cocaine and cocaine
base. All the appellants engaged in drug activities linked to
Bobby Reed. A rational jury could find the existence of an
agreement among the alleged conspirators. Each element of a
conspiracy may be inferred from circumstantial evidence.6 A
conspiracy may exist by tacit agreement; an express or explicit
agreement is not required.7 An agreement may be inferred from a
concert of action.8 The evidence, discussed above, amply
supports the jury’s finding of the existence of a conspiracy.
The evidence also supports the jury’s finding of Roderick
Reed’s participation in the conspiracy. Powder and crack cocaine
were recovered at Roderick Reed’s residence, along with a triple
beam balance scale and large boxes of baking soda. Officer Sam
testified that in his experience such a scale and baking soda are
5
United States v. Garcia, 86 F.3d 394, 398 (5th Cir.
1996), cert. denied, 117 S. Ct. 752 (1997).
6
United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.
1993).
7
United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.
1997), cert. denied, 118 S. Ct. 1059 (1998).
8
Cardenas, 9 F.3d at 1157.
13
associated with the cocaine trade. Baking soda is used to “cook”
cocaine powder into crack cocaine. He testified that Brenda Ford
was part of the Bobby Reed organization, that Ford cooked powder
cocaine into crack cocaine for Glenn Williams (linked to the
organization by other evidence) and Roderick Reed, and that he
had seen Ford and Williams at Roderick Reed’s house. An
electricity bill for the Ebony Terrace Apartments, owned by Bobby
Reed, was found at the Roderick Reed residence on Flamingo Road.
A piece of paper with Ford’s address written on it was found at
the house. An officer involved in the search of the residence
testified that papers he perceived to be “dope notes” were found
at the Flamingo residence. Michael Mitchell testified that he
bought cocaine from Darrell Sauls, Glenn Williams, and Roderick
Reed, who were all linked to Bobby Reed through Mitchell’s
testimony and other evidence. Kendra Bagley bought crack cocaine
from Roderick Reed, and saw him with Glenn Williams on one of
those occasions.
Roderick Reed challenges the credibility of Mitchell, based
on the defense testimony of Gillis and Dixon (described above),
and challenges the credibility of Bagley based on the Melonique
Lister affidavit (described below). However, we have repeatedly
stated that the jury is the final arbiter of the credibility of
witnesses.9 A guilty verdict may be sustained if supported only
9
E.g., United States v. Restrepo, 994 F.2d 173, 182 (5th
Cir. 1993).
14
by the uncorroborated testimony of a coconspirator, even if the
witness is interested due to a plea bargain or promise of
leniency, unless the testimony is incredible or insubstantial on
its face.10 Testimony is incredible as a matter of law only if
it relates to facts that the witness could not possibly have
observed or to events which could not have occurred under the
laws of nature.11 The testimony of Mitchell and Bagley was not
incredible as a matter of law.
Roderick Reed challenges his convictions on counts 21-24 on
grounds that there was insufficient proof that he lived at the
Flamingo residence. A rational jury could find that Roderick
Reed lived at the Flamingo residence, and that the drugs and
firearm were his. Officer Sam testified that cable service for
the residence was in Roderick Reed’s name. Letters to and from
Roderick Reed were found at the residence, along with other
documents bearing his name. Bagley testified that she bought
cocaine from Roderick Reed at the Flamingo residence.
Bobby Reed challenges the sufficiency of the evidence on
counts 4 and 5. Count 4 concerned the September 7, 1991 purchase
of cocaine by an undercover agent at the starter shop.
Gabreielle Jones and detective Frye testified that on September
7, 1991 Jones and Melonique Lister went to the starter shop.
10
United States v. Gadison, 8 F.3d 186, 190 (5th Cir.
1993).
11
Id.
15
Bobby Reed gave Lister the cocaine. Lister delivered the drugs
to Jones, who then delivered it to Frye for $3800. We find the
evidence sufficient on count 4.
Count 5 alleged that Bobby Reed maintained the starter shop
for the purpose of distributing cocaine. Detective Frye made an
undercover purchase of cocaine at the starter shop in 1991.
Anderson testified that Reed offered to sell him cocaine in 1987
at the starter shop. Felder purchased crack cocaine there in
1989. Michael Jones found the marked bills from this transaction
on Bobby Reed’s person and crack cocaine in the shop, and
testified that prior surveillance indicated that the shop sold
illegal narcotics. He also noticed that there were no new or
rebuilt starters at the shop. Larry Jones purchased or
negotiated to purchase large quantities of cocaine from Bobby
Reed at the starter shop. Magee testified that he regularly
purchased cocaine from the starter shop. Terry Reed testified
that Bobby Reed’s drug associate Eric Richardson first met Bobby
at the starter shop, and purchased a kilogram of cocaine there.
McBrown’s state parole records state that he was employed at the
starter shop. The evidence is sufficient on count 5.
McBrown challenges his conviction on count 15 for carrying a
firearm in relation to a drug offense, in violation of 18 U.S.C.
§ 924(c)(1). This charge related to the incident, described
above, where McBrown was stopped by Fort Worth police officers
while driving an automobile, struck one of the officers and fled.
16
The police found a handgun under the front passenger’s seat and
crack cocaine in the glove compartment.
McBrown argues that there was insufficient evidence linking
him to the contents of the vehicle, pointing to evidence that the
vehicle was not his. He also argues that Bailey v. United States
requires that the defendant “actively employed the firearm during
and in relation to the predicate crime.”12 Bailey is
inapplicable, since it interpreted the “use” prong of §
924(c)(1). McBrown was charged and convicted under the “carry”
prong of the statute, which applies to one who “during and in
relation to [the predicate drug offense] uses or carries a
firearm . . . .” Under the “carry” prong of the statute, the
Supreme Court has recently held that one carries a firearm by
transporting it in an automobile, even where the firearm is
located in a locked glove compartment or the trunk of the
vehicle.13
Further, a rational jury could find beyond a reasonable
doubt that the gun was carried “during and in relation to” the
drug offense. The jury was properly instructed that “you must be
convinced beyond a reasonable doubt that the firearm played a
role in or facilitated the commission of a drug offense. In
12
116 S. Ct. 501, 509 (1995).
13
Muscarello v. United States, 1998 WL 292058, at *2 (June
8, 1998).
17
other words, you must find that the firearm was an integral part
of the drug offense charged.” A rational jury could find that
the drugs and the firearm belonged to McBrown, and that he
carried the weapon as protection or for some other purpose in
relation to his drug dealing. He was the only occupant of the
vehicle. He struck a police officer and fled the scene after he
was stopped, evidencing knowledge that the vehicle contained
contraband. The jury heard extensive evidence of his ties to the
drug conspiracy, as described above. In addition to this
evidence, the jury heard evidence that in the month following the
incident, another Fort Worth police officer pulled McBrown over.
As with the prior incident, McBrown was driving without a license
and fled the scene, and drugs were found in the passenger
compartment.
B. Variance Between Indictment and Proof
Roderick and Bobby Reed argue that there was a variance
between indictment and proof because there was at most proof of
several conspiracies instead of a single conspiracy. In
considering whether one or multiple conspiracies exist, “the
principal factors are (1) the existence of a common goal, (2) the
nature of the scheme and (3) overlapping of participants in the
various dealings.”14 “The members of a conspiracy which
14
United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.
1987).
18
functions through a division of labor need not have an awareness
of the existence of the other members, or be privy to the details
of each aspect of the conspiracy.”15 Further, a single
conspiracy may have several objectives and aim at the commission
of several offenses.
It is for this reason that the government need prove
only that a conspirator agreed to one of the many
objectives charged to hold him liable for the other
objectives of the agreement. . . . Because one
conspiracy may have many illegal objectives, it will
necessarily involve a number of sub-agreements to
commit each of these specified objectives. Some
members may concur in only some of the many objectives,
yet they are liable for all because there is but one
scheme, one enterprise, one conspiratorial web.16
We are persuaded that the government proved a single
conspiracy. All the appellants were linked to the common goal of
obtaining and selling powder and crack cocaine for financial
gain. While the conspiracy may not have been tightly organized,
all of the appellants were linked to Bobby Reed, the principal
supplier. All pursued through a division of labor the common
objectives of obtaining wholesale quantities of powder and crack
cocaine, breaking the shipments into smaller quantities, selling
to purchasers for resale and personal use, and avoiding
detection.
15
Id. at 1154.
16
United States v. Rodriguez, 585 F.2d 1234, 1249-50 (5th
Cir. 1978) (citations omitted), on reh’g en banc, 612 F.2d 906
(5th Cir. 1980), aff’d, 450 U.S. 333 (1981).
19
Further, a variance between the offense charged in the
indictment and the proof relied upon at trial constitutes
reversible error only if it affects the substantial rights of the
defendant.17 “We have long held that when the indictment alleges
the conspiracy count as a single conspiracy, but the ‘government
proves multiple conspiracies and a defendant’s involvement in at
least one of them, then clearly there is no variance affecting
that defendant’s substantial rights.’”18 Even if the proof
established the existence of multiple conspiracies, such a
variance between proof and indictment, standing alone, is not
reversible error.
C. New Trial Motion
All six appellants complain that the court abused its
discretion in not ordering a new trial on grounds of newly
discovered evidence. Appellants discovered that John Clay, who
had testified for the government, had been taken by FBI agent
Garrett Floyd to the house Clay shared with his girlfriend
17
United States v. Hernandez, 962 F.2d 1152, 1159 (5th Cir.
1992).
18
United States v. Jackson, 978 F.2d 903, 911 (5th Cir.
1992) (quoting Richerson, 833 F.2d at 1155); see also United
States v. L’Hoste, 609 F.2d 796, 801 (5th Cir. 1980) (“If the
Government proves multiple conspiracies and defendant’s
involvement in at least one of them, then clearly there is no
variance affecting that defendant’s substantial rights.”); Jolley
v. United States, 232 F.2d 83, 88 (5th Cir. 1956) (“If more than
one conspiracy was proved, of at least one of which the appellant
was guilty, it is clear that there was no variance affecting his
substantial rights.”).
20
Latonya Biggins. This trip occurred several months prior to
trial. Floyd allowed Clay and Biggins to be alone briefly, and
the two engaged in a sexual encounter. At the time, Clay was in
federal custody and was cooperating with the government. Glen
Williams, another inmate in federal custody, submitted an
affidavit claiming that Floyd had allowed him to have sex with
his girlfriend at the federal courthouse. Appellants also
submitted the affidavit of Melonique Lister. Lister stated that
while she was in jail with Raynetta Taylor, an inmate who
testified for the government in another case, Floyd had taken
Clay and Taylor to dinner and allowed the two to have sex before
returning them to jail.19
The government submitted the affidavits of Clay, Biggins,
Floyd, the prosecutor and others. Clay and Biggins admitted to
the sexual encounter. However, Floyd and the prosecutor denied
knowledge of the encounter until after the trial. Floyd and Clay
stated that the purpose of the trip to the house shared by Clay
and Biggins was to obtain information relevant to the
investigation of Clay’s drug connections, or that the trip had
been requested by Clay’s attorney. Floyd denied ever meeting
Williams until after the alleged sexual encounter made the
19
Lister also claimed that she heard government witnesses
Evangela Asberry, Gabrielle Jones, and Kendra Bagley state that
they had given false information or testimony for reduced
sentences.
21
subject of Williams’ affidavit. The government offered another
affidavit rebutting the allegations made by Lister.
Appellants contend that the evidence of the sexual
encounters constitutes Brady material20 that the government
failed to turn over to them prior to trial. To succeed on a
Brady claim, the defendant must establish that (1) evidence was
suppressed, (2) the evidence was favorable to the defense, and
(3) the evidence was material to guilt or punishment.21 Brady
violations require reversal only if there is a reasonable
probability that the outcome of the trial would have been
different if the evidence had been disclosed to the jury.22 A
“reasonable probability” is established when the failure to
disclose the evidence “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the
verdict.”23
We review Brady determinations de novo.24 Assuming that the
government was aware of the sexual encounters and suppressed this
evidence, we conclude after a careful review of the record that
20
Brady v. Maryland, 373 U.S. 83 (1963).
21
United States v. Ellender, 947 F.2d 748, 756 (5th Cir.
1991).
22
United States v. Bagley, 473 U.S. 667, 682 (1985).
23
Kyles v. Whitley, 514 U.S. 419, 435 (1995).
24
United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995).
22
there is not a reasonable probability that the outcome of the
trial would have been different if the evidence concerning the
sexual encounters had been disclosed. Glen Williams did not
testify, and the alleged sexual favor he received was not
relevant to the trial. As for Clay, we conclude that even if
Floyd knowingly allowed a sexual encounter to take place between
Clay and Biggins or Clay and Taylor, we can see no reasonable
probability that the such evidence would have affected the
outcome of the trial.
Clay was one of many witnesses who testified for the
government, and cannot fairly be described as the central or key
government witness. The evidence is sufficient to support the
convictions even if Clay’s testimony is completely disregarded.
We cannot say what weight the jury gave Clay’s testimony, but we
know that (1) the jury was aware that Clay was testifying
pursuant to a plea bargain and was seeking a reduced sentence for
his testimony, (2) Clay admitted on the stand that he was a drug
dealer and had prior felony convictions, and (3) the jury had
heard from James Jackson, who testified that he had heard Clay
say that he was going to lie for a reduced sentence. We cannot
imagine how additional evidence that he was allowed one or two
sexual encounters while in custody would have altered the jury’s
view of his credibility or lack thereof.
23
Similar allegations arose in Spence v. Johnson.25 The
appellant argued that the government had failed to disclose Brady
material relating to the testimony of a government witness,
including the receipt by the witness of “special privileges with
his girlfriend while in the McLennan county jail leading up to
his testimony.”26 We rejected this claim, noting inter alia that
the undisclosed evidence was cumulative of other impeaching
evidence, and that “no reasonable jury would have believed that
[the witness] fabricated his testimony and statements given over
the course of two and a half years . . . just to receive a few
conjugal visits.”27
D. Denial of Hearing on Motion for New Trial
Bobby and Kevin Reed, Asberry, McBrown, and Stolden argue
that the court erred in denying a hearing on the motion for new
trial. Denial of a hearing on a motion for new trial is reviewed
for abuse of discretion.28
We find no abuse of discretion. The district court had
before it the affidavits of Clay, Floyd, Biggins, and others.
The evidence is undisputed that Floyd drove Clay to the house
25
80 F.3d 989 (5th Cir. 1996).
26
Id. at 995.
27
Id. at 995-96.
28
United States v. Brewer, 60 F.3d 1142, 1146 (5th Cir.
1995).
24
Clay shared with Biggins, where Clay and Biggins had a sexual
encounter. Other evidence is in dispute, such as whether Floyd
allowed Williams to have a sexual encounter at the courthouse, or
allowed Clay to have a sexual encounter with Taylor. While Floyd
swore that he did not know of the encounter between Clay and
Biggins until after the trial, appellants argue that with an
evidentiary hearing they might have shown otherwise. They also
argue that Floyd’s knowledge should be imputed to the government
for Brady purposes, whether or not the prosecutors knew of the
encounter.29
However, our conclusion that appellants are not entitled to
a new trial turns on none of the disputed issues of fact that
appellants claim should have been resolved by evidentiary
hearing. As explained above, we conclude that even if Floyd
knowingly allowed Clay to have sex while in custody, on one or
both occasions alleged, there is no reasonable probability that
such evidence would have changed the outcome of the trial.
E. McBrown’s Motion to Suppress
McBrown complains that the district court erred in denying
his motion to suppress. The motion concerned the incident,
described above, where McBrown was pulled over by Fort Worth
police officers, struck one of the officers, and fled. The
29
See United States v. Deutsch, 475 F.2d 55, 57 (5th Cir.
1973).
25
officers discovered a handgun under the front passenger seat and
cocaine in the glove compartment. This evidence was the basis of
counts 14-16 of the indictment.
McBrown argues that the officers did not have probable cause
or reasonable suspicion to stop the vehicle. The evidence, as
contained in a police report and later verified at trial by the
two officers in question, is undisputed.30 McBrown was stopped
after officer Bach ran the car’s license plate through a
computer, which showed that there were outstanding arrest
warrants on the driver of the vehicle for traffic violations.
Officer Bach pulled over the vehicle based on this information.
Officer Nesbitt was also on the scene, having arrived in another
patrol car. Bach asked McBrown for identification, and was
presented with what appeared to be a fictitious identification
card. At first McBrown refused to leave the vehicle. After he
was asked to sit in the back seat of one of the patrol cars, he
struck officer Nesbitt and fled. The vehicle was then searched,
and the drugs and firearm were discovered.
30
Since the evidence is undisputed, there is no merit to
McBrown’s argument that the district court erred in failing to
convene a hearing on the motion to suppress.
26
Officers need only reasonable suspicion to make an
investigatory stop of a vehicle.31 Reasonable suspicion is a
considerably less stringent standard than probable cause.32
Officer Harris had reasonable suspicion to stop the car
because his computer showed that the driver had outstanding
arrest warrants. Reasonable suspicion may be based on personal
observation or other information, so long as the information
possesses “an indicia of reliability.”33 We have held that
computerized warrant information used by law enforcement officers
is sufficiently reliable to meet the even higher probable cause
standard,34 and McBrown does not argue that the computerized data
was unreliable. In United States v. Tellez, officer Montoya was
told by another officer that a parole violator known to Montoya
was driving a black 4 X 4 pickup truck with large tires and a
chrome roll bar with attached lights. Montoya spotted a truck
matching this description and pulled it over. We held that the
officer made a proper investigatory stop based on an outstanding
warrant for a parole violator who had been seen in a similar
31
United States v. Tellez, 11 F.3d 530, 532 (5th Cir.
1993).
32
United States v. Wangler, 987 F.2d 228, 230 (5th Cir.
1993).
33
Id. (quoting Adams v. Williams, 407 U.S. 143, 147
(1972)).
34
United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.
1979).
27
truck, and that the scope of the investigatory stop extended to
ordering the suspect out of the vehicle.35 McBrown argues that
later evidence showed that he was not the owner of the vehicle,
but we fail to see how this fact should alter our conclusion that
officer Harris had reasonable suspicion at the time to pull over
the vehicle. He did not know that McBrown was not the owner of
the vehicle.
F. Denials of Motions for Severance
Roderick Reed and McBrown complain that the court erred in
denying their motions for severance. Each requested that they be
tried separately from all other defendants.
We review the denial of a motion for severance for abuse of
discretion.36 To demonstrate an abuse of discretion, the
defendant “bears the burden of showing specific and compelling
prejudice that resulted in an unfair trial,”37 and such prejudice
must be of a type “against which the trial court was unable to
afford protection.”38 We have further noted that “[t]he rule,
rather than the exception, is that persons indicted together
35
11 F.3d at 532-33.
36
United States v. Holloway, 1 F.3d 307, 310 (5th Cir.
1993).
37
Id. at 311.
38
United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.
1993) (quoting United States v. Arzola-Amaya, 867 F.2d 1504, 1516
(5th Cir. 1989).
28
should be tried together, especially in conspiracy cases,” and
that “the mere presence of a spillover effect does not ordinarily
warrant severance.”39
There was no abuse of discretion. The district court did
order a severance of the defendants into two groups for trial.
Only six of the nineteen defendants originally indicted together
were tried in the pending case. Roderick Reed and McBrown have
not shown compelling prejudice from the joint trial with the
other appellants. The court’s charge directed the jury to
consider the evidence against each defendant on each count
separately. Similar instructions have been held sufficient to
avoid any possible prejudice from a trial with multiple
defendants.40 We also note that the jury acquitted defendants
Bobby Reed, Kevin Reed, and Asberry on five counts, “which
supports the inference that the jury considered separately the
evidence as to each defendant and each count.”41
McBrown also argues that the court erred in denying a
renewed motion for severance and motion for mistrial after co-
defendant Asberry engaged in a verbal outburst during the
39
Pofahl, 990 F.2d at 1456.
40
United States v. Faulkner, 17 F.3d 745, 759 (5th Cir.
1994).
41
Id.
29
testimony of his wife Evangela.42 The court instructed the jury
to disregard the outburst,43 and as noted above, its final jury
charge gave a standard instruction that the jury should consider
the evidence against each defendant on each count separately. We
have held on similar facts that such instructions were sufficient
to cure any possible prejudice to the codefendants resulting from
the outburst.44 We also note that McBrown was the only defendant
to move for a mistrial or severance as a result of the outburst,
and as the government argues, the outburst may have been more
helpful to the defense than the prosecution, since it conveyed,
if crudely, Asberry’s belief that his wife’s testimony was
rehearsed and false, and that she was testifying to save herself
or her brother from a long sentence.
42
The outburst consisted of the following: “This is
rehearsed ass s--t. That’s a f---ing lie. You understand what
I’m saying. You rehearsed this s--t. You’re a motherf---ing
liar. You motherf---ing liar. Man, what is this? She’s a
bitch. Y’all set this up, man. Y’all set this up. You motherf-
--ing ho. Say, you know you got me f---ed up. This is some
rehearsed ass s--t. S--t. I don’t believe this s--t. You want
your brother out that bad? You’ll f--- me to get out.” On
another occasion the court had to warn Asberry to stop making
audible noises and facial expressions.
43
The court instructed the jury: “Sometimes it’s hard to
put things out of your mind, but I’m going to ask you to do it.
Put out of mind what you saw and heard before you were taken out
of the courtroom. Trials are emotional things, and sometimes
things happen that shouldn’t happen. I have assurances that it
will not happen again, and so I’m going to ask you to completely
disregard what happened before you were asked to leave the
courtroom.”
44
United States v. Stotts, 792 F.2d 1318, 1322 (5th Cir.
1986).
30
G. Dismissal of Prospective Juror
Bobby and Roderick Reed (by adoption), Asberry and McBrown
complain that the district court sua sponte dismissed a
prospective juror for improper attire. The prospective juror in
question was wearing long shorts, a sleeveless shirt with the
shirttail out, and sneakers. The district court, in responding
to post-verdict motions, noted that under 28 U.S.C. § 1866(c)(2),
the court may excuse a prospective juror on the ground that “his
service as a juror would be likely to disrupt the proceedings.”
The court also noted that the juror summons received by all
prospective jurors plainly instructs: “In keeping with the
dignity of the Court, please wear appropriate attire (i.e., men
should wear coats and ties; women should wear dresses, suits, or
skirts and blouses.” The court concluded that the juror’s attire
“evidenced disrespect for the court and disregard of the
seriousness of the proceedings,” and “that the presence of the
juror in question would clearly have disrupted the proceedings.”
Determinations as to the general qualifications of jurors
are reviewed for abuse of discretion.45 We find no abuse of
discretion. The prospective juror’s attire raised an issue of
his understanding of the seriousness of the proceedings, or
45
United States v. McCord, 695 F.2d 823, 828 (5th Cir.
1983).
31
alternatively his ability read and follow the simplest of
instructions.
Moreover, there is no basis for a reversal unless appellants
show that the jurors who were chosen to serve were not impartial
or otherwise show that their rights were prejudiced.46
Appellants fail to make such a showing.
H. Motion for Mistrial
Bobby and Roderick Reed, Asberry, and McBrown argue that the
district court erred in denying a motion for mistrial on grounds
that a juror had seen some of the defendants escorted in chains
and handcuffs, and told all the other jurors what he had seen.
The district court instructed the jury to disregard the fact that
some defendants were in custody.
Motions for mistrial generally are reviewed for abuse of
discretion.47 Likewise, decisions regarding complaints of
outside influence are reviewed for abuse of discretion.48 There
was no abuse of discretion. We have held that brief and
inadvertent exposure to jurors of defendants in handcuffs is not
46
United States v. Jensen, 41 F.3d 946, 960 (5th Cir.
1994); United States v. Prati, 861 F.2d 82, 87 (5th Cir. 1988).
47
United States v. Limones, 8 F.3d 1004, 1007 (5th Cir.
1993).
48
United States v. Sotelo, 97 F.3d 782, 794 (5th Cir.)
cert. denied, 117 S. Ct. 620 (1996).
32
so prejudicial as to require a mistrial, even when the court
gives no cautionary instruction.49
I. Requested Jury Instruction
Roderick Reed and Bobby Reed (by adoption) complain that the
court erred in denying Roderick and Kevin Reed’s requested jury
instruction that “[g]uilt of conspiracy cannot be proven solely
by familial relationships or by mere knowing presence.”
“When reviewing challenges to jury instructions, we take
into account the court’s charge as a whole and the surrounding
context of the trial, including arguments made to the jury.”50
We will reverse only if the requested instruction (1) is
substantially correct, (2) was not substantially covered in the
charge actually delivered to the jury, and (3) concerns an
important point such that failure to give it seriously impaired
the defendant’s ability to effectively present a given defense.51
Appellants have not shown that the district court reversibly
erred in refusing the requested instruction. Insofar as the
requested instruction states that mere presence will not suffice
to prove a conspiracy, the charge given to the jury adequately
49
United States v. Diecidue, 603 F.2d 535, 549 (5th Cir.
1979).
50
United States v. Flores, 63 F.3d 1342, 1374 (5th Cir.
1995).
51
United States v. Rochester, 898 F.2d 971, 978 (5th Cir.
1990).
33
addressed this point. The jury was instructed that “[m]ere
presence at the scene of an event, even with knowledge that a
crime is being committed, or the mere fact that certain persons
may have associated with each other, and may have assembled
together and discussed common aims and interests, does not
necessarily establish proof of the existence of a conspiracy.”
This leaves the issue of familial relations. Defendant
Bobby, Roderick and Kevin Reed are brothers. However, the
government never argued to the jury that familial relations were
sufficient to establish a conspiracy, and a reasonable jury could
not infer from the charge given that familial relationships alone
can establish a conspiracy, or that such relationships are even
relevant to the existence of a conspiracy or membership is such.
J. Sentencing Issues
Roderick Reed and Stolden raise objections to their
sentences.52 We accept the district court’s fact findings
regarding sentencing unless they are clearly erroneous.53
52
In his brief Bobby Reed purports to adopt Roderick Reed’s
arguments regarding sentencing. A defendant may not adopt a co-
defendant’s arguments on such fact-intensive issues. See Alix,
86 F.3d at 434 n.2. Bobby Reed’s sentence was based on evidence
specific to him, regarding the quantity of drugs attributable to
him, his role as a leader or organizer, and a finding of
obstruction of justice derived from his testimony at trial. He
cannot challenge his sentence by adopting arguments relating to
the facts specific to Roderick Reed’s sentence.
53
18 U.S.C. § 3742(e).
34
Roderick Reed was sentenced to life under 21 U.S.C. §§ 841
and 851. Under § 841, a defendant with two prior felony drug
convictions shall be sentenced to life if the defendant is
convicted of a drug offense involving five or more kilograms of
cocaine or fifty or more grams of crack cocaine. The presentence
report found that Reed had two prior state felony drug
convictions. Reed maintained at his sentencing hearing that his
guilty pleas in the two state cases were not knowing and
voluntary because he was under the influence of cocaine when he
pleaded guilty.
The government filed an information stating its intent to
rely on the prior convictions for sentencing, pursuant to 21
U.S.C. § 851(a). Under 21 U.S.C. § 851(c)(2), a defendant
challenging the validity of a prior conviction bears the burden
of proof on any fact issue bearing on such a challenge. As to
the first guilty plea, Reed testified that he used cocaine the
day he pleaded guilty and was under its influence. He testified
that the drug use imposed “some kind of impairment” on him.
Reed’s mother also testified that he was addicted to drugs at the
time. As to the second guilty plea, Reed testified that he was
in jail perhaps three weeks before pleading guilty. The court
found that Reed was not under the influence of drugs at all when
he pleaded guilty in the second case. As to the first guilty
plea, the court found that based on the testimony and the written
findings of the state court judgment on the issue of
35
voluntariness, Reed understood the proceedings and made a knowing
a voluntary guilty plea. These findings are not clearly
erroneous.
Roderick Reed also challenges the findings in the
presentence report, adopted by the district court, as to drug
quantity, his status as a manager or supervisor, and his
possession of a firearm. These arguments are moot, however,
since Reed was sentenced to life based on the two prior felony
drug convictions. A life sentence is mandated under § 841 if the
offense involved fifty or more grams of crack cocaine and the
defendant has two prior felony drug convictions. All other
issues of drug quantity aside, more than fifty grams of crack
cocaine were found at the Flamingo residence alone. The evidence
was sufficient that Reed possessed this crack cocaine with intent
to distribute, as discussed above.
Stolden objects to the drug quantity used in calculating his
sentence. The presentence report found that fifty to 150
kilograms of cocaine were attributable to him. The district
court concluded that fifteen to fifty kilograms were attributable
to Stolden.
The district court’s finding as to drug quantity is a
finding of fact and hence reviewable under the clearly erroneous
standard.54 Facts contained in a presentence report are
54
United States v. Parks, 924 F.2d 68, 71 (5th Cir. 1991).
36
considered reliable and may be adopted without further inquiry if
they had an adequate evidentiary basis and the defendant fails to
present competent rebuttal evidence.55 Such rebuttal evidence
must demonstrate that the presentence report information is
“materially untrue, inaccurate or unreliable.”56
“Under the Sentencing Guidelines, a defendant who
participates in a drug conspiracy is accountable for the quantity
of drugs, which is attributable to the conspiracy and reasonably
foreseeable to him.”57 We have held that “an individual dealing
in a sizable amount of controlled substances ordinarily would be
presumed to recognize that the drug organization with which he
deals extends beyond his universe of involvement.”58 According
to Glenn Williams, in a debriefing relied upon in the presentence
report, Williams purchased one-half kilogram of cocaine
approximately once a week, and picked up the cocaine at Stolden’s
house or another house. Stolden would hold five or six kilograms
at a time for Bobby Reed. The presentence report also found that
when Roderick Reed was released from prison in 1994, he was often
seen at Stolden’s house picking up cocaine, as was McBrown.
55
United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.
1994).
56
United States v. Angulo, 927 F.2d 202, 205 (5th Cir.
1991).
57
United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.
1994) (citing U.S.S.G. § 1B1.3(a)(1)(B)).
58
United States v. Thomas, 963 F.2d 63, 65 (5th Cir. 1992).
37
Evangela Asberry testified that she delivered the payment for a
kilogram of cocaine to Stolden, at Bobby Reed’s instructions.
Tillis testified that when he told Bobby Reed that he was
interested in buying cocaine, Reed told Tillis to contact
Stolden. Tillis made two buys at Stolden’s house. During one of
these buys another man made a half-kilogram purchase at Stolden’s
house. The district court also found that Stolden was involved
in the trip to Crosby where several kilograms of cocaine were
purchased for $140,000. During this trip phone calls were made
to Crosby from Stolden’s house on Donalee, and a Crosby motel
receipt was found at the house. Given this evidence, the
district court’s finding that fifteen to fifty kilograms of
cocaine were attributable to Slolden is not clearly erroneous.
Stolden also complains that the district court should have
given him a two-point reduction in offense level since he was a
minor participant under U.S.S.G. § 3B1.2. Again, given the
evidence linking Stolden to the conspiracy on numerous fronts,
the district court did not err in failing to make this downward
adjustment.
For the foregoing reasons, the convictions and sentences are
AFFIRMED.
38