United States v. Lowder

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 97-10078
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL Z. LOWDER, also known as P.Z.,

Defendant-Appellant.

Appeals from the United States District Court
For the Northern District of Texas

July 28, 1998

Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Paul Z. Lowder appeals his conviction for conspiracy to

distribute over one thousand kilograms of marijuana and possession

with intent to distribute approximately six hundred pounds of
marijuana. Lowder also challenges the district court’s imposition

of a 340-month sentence. We affirm.

I

On May 7, 1996, the government filed a five-count superseding

indictment against the appellant, Paul Z. Lowder (“Lowder”), his

sons Richard Lowder (“Richard”) and James Lowder (“Jim”), and eight

other defendants, including Michael Terry. Count One charged all
the defendants, including Lowder, Richard, Jim, and Terry with

conspiracy to distribute over one thousand kilograms of marijuana

in violation of 21 U.S.C. § 846. Count Two charged that on or

about April 4, 1995, Lowder, Richard, and Terry possessed with

intent to distribute approximately six hundred pounds of marijuana

in violation of 21 U.S.C. § 841(a)(1). Count Four charged that

certain of Lowder’s assets were subject to forfeiture under 21

U.S.C. § 853. The remaining counts did not involve Lowder.

Richard pled guilty before trial, and the government proceeded

against Lowder, Jim, and Terry. At trial, Paul M. Lowder (“Paul

M.”), son of the appellant, Paul Z. Lowder, testified that he, his

father, and two of his brothers were deeply involved in the

marijuana business. Other cooperating co-defendants testified to

the same effect. Richard, on the other hand, testified for his

father, alleging that although he and his brother Paul M. ran a

thriving marijuana business, his father, Lowder, had nothing to do

with drugs.

With regard to Count Two specifically, Jerry Lee Hathcock, a

cooperating co-defendant, and Paul M. testified that on April 4,

1995, they waited with Terry and Richard at a hotel in Waxahachie,

Texas for a load of marijuana to arrive. The testimony indicated

that some time in the afternoon, a large bus arrived with hundreds

of pounds of marijuana packed in U-Haul boxes. The government

presented the jury with pictures of a bus that both Hathcock and

Paul M. identified as the one that carried the marijuana to

Waxahachie. The vehicle pictured was a large, customized Blue Bird

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bus, which other testimony indicated had a sticker price of

approximately $250,000. The government introduced evidence that

Lowder owned just such a bus, which he had purchased with cash.

Hathcock could not identify the driver of the Blue Bird bus, but

Paul M. stated that it was his father, Lowder. Richard, in

testifying for his father, did not deny being present at the scene

and helping to unload the marijuana, but he claimed that the driver

was a heavy-set man with red hair named Sean Puopolo——not his

father.

The jury acquitted Jim and Terry on all counts, but convicted

Lowder of conspiracy as charged in Count One and possession with

intent to distribute as charged in Count Two. At sentencing, the

district court overruled Lowder’s objections to the Pre-Sentence

Report (“PSR”) and assigned an offense level of 40, reflecting

findings that Lowder had obstructed justice by suborning Richard’s

perjured testimony, was responsible for the total amount of drugs

possessed and sold by his co-conspirators, and had been a

leader/organizer of the enterprise. Lowder filed a timely appeal,

but before we disposed of the case, Lowder moved in the district

court for a new trial, alleging that newly discovered evidence

could demonstrate his innocence of the crimes charged. Included

with this motion was a request that the district court conduct an

in camera inspection of any government file existing on the drug

trafficking activities of the now deceased Sean Puopolo, in order

to determine whether such file(s) contained material required to be

disclosed to the defense under Brady v. Maryland, 373 U.S. 83, 83

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S. Ct. 1194, 10 L. Ed. 2d 215 (1963). On Lowder’s unopposed

motion, we granted Lowder a stay of time for the filing of his

appellate brief until the district court ruled on Lowder’s motions.

The district court subsequently denied these motions, and Lowder

now proceeds with his appeal.

II

Lowder first alleges that the district court erred in denying

his request for an in camera inspection of the government’s file on

the narcotics activities of Sean Puopolo in order to determine

whether that file contains the type of evidence that must be

disclosed to the defense under Brady v. Maryland, supra. We

review the district court’s Brady determination de novo. See

United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997).

In order to establish a due process violation under Brady, a

defendant must show that: (1) evidence was suppressed; (2) the

suppressed evidence was favorable to the defense; and (3) the

suppressed evidence was material either to guilt or to punishment.

See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; United States v.

Aubin, 87 F.3d 141, 148 (5th Cir. 1996), cert. denied, ___ U.S.

___, 117 S. Ct. 965, 136 L. Ed. 2d 850 (1997). “[E]vidence is

‘material’ under Brady, and the failure to disclose it justifies

setting aside a conviction, only where there exists a ‘reasonable

probability’ that had the evidence been disclosed the result at

trial would have been different.” Wood v. Bartholomew, 516 U.S. 1,

5, 116 S. Ct. 7, 10, 133 L. Ed. 2d 1 (1995). Nevertheless, a

defendant seeking merely an in camera inspection to determine

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whether certain files contain Brady material need only make a

“plausible showing” that the file will produce “material” evidence.

See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989,

1002 n.15, 94 L. Ed. 2d 40 (1987).

In rejecting Lowder’s request for an in camera inspection, the

district court assumed “that the government possessed evidence of

Puopolo’s drug trafficking activity and withheld such evidence,”

but nevertheless determined that the absence of this evidence did

not “taint” Lowder’s trial. We agree. The mere fact that Puopolo

participated in the marijuana trade says nothing about Lowder’s

guilt or innocence and thus does not implicate the core concerns of

Brady. See, e.g., United States v. Agurs, 427 U.S. 97, 112, 96 S.

Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976) (“The proper standard of

materiality must reflect our overriding concern with the justice of

the finding of guilt.”). Moreover, even if Lowder might have used

some of the government’s information to impeach Agent Styron, who

testified that no one moves marijuana the way Richard claims

Puopolo did, this information hardly “put[s] the whole case in . .

. a different light,” and certainly does not raise a “reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Kyles v.

Whitley, 514 U.S. 419, 433, 435, 115 S. Ct. 1555, 1565-66, 131 L.

Ed. 2d 490 (1995). The government’s case against Lowder consisted

of testimony from numerous witnesses who directly implicated Lowder

in a conspiracy to possess and distribute literally tons of

marijuana, corroborated by hotel records, credit card records, and

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numerous financial documents. Nothing that Lowder might find in

Puopolo’s file would undermine our confidence in the jury’s finding

that Lowder was guilty of conspiracy and guilty of using his Blue

Bird bus to transport almost six hundred pounds of marijuana to his

son Richard in Waxahachie, Texas. See, e.g., Spence v. Johnson, 80

F.3d 989, 998 (5th Cir. 1996) (finding no violation of Brady when

evidence “does not undermine confidence in the jury’s verdict”).

Accordingly, we find no error in the district court’s denial of

Lowder’s request for an in camera inspection of any government file

existing on Sean Puopolo.

III

Lowder also claims that the district court erred in denying

his motion for a new trial based on evidence that Lowder alleges to

be newly discovered. We review the district court’s denial of a

motion for new trial based on allegedly newly discovered evidence

only for an abuse of discretion. See United States v. Jaramillo,

42 F.3d 920, 924 (5th Cir. 1995).

In order to warrant a new trial on the basis of newly

discovered evidence, a defendant must demonstrate that: (1) the

evidence is newly discovered and was unknown to the defendant at

the time of trial; (2) failure to detect the evidence was not due

to a lack of diligence by the defendant; (3) the evidence is not

merely cumulative or impeaching; (4) the evidence is material;

and (5) the evidence introduced at a new trial would probably

produce an acquittal. United States v. Pena, 949 F.2d 751, 758

(5th Cir. 1991). Here, Lowder claims that the affidavit of Sonny

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Knight, an employee of Traylor’s Motor Homes (“Traylor”),

demonstrates that Lowder’s Blue Bird bus was parked on Traylor’s

lot on the date Lowder allegedly drove to Waxahachie to meet

Richard, Paul M., and Hathcock. The affidavit never explicitly

states that the Blue Bird bus was on the lot on April 4, 1995, but

Knight does swear that he was working on April 3-5, 1995, and “at

no time did [Lowder] leave or return in the Blue Bird.”

Even assuming arguendo that this alibi, if believed, would

“probably produce an acquittal” for Lowder (at least on Count Two),

Lowder has not met his burden of demonstrating that the failure to

procure Knight’s testimony at trial was not the result of his own

lack of diligence. See United States v. Sullivan, 112 F.3d 180,

183 n.3 (5th Cir. 1997) (collecting cases on due diligence in the

context of motions for new trial). Lowder states in an affidavit

attached to his motion for new trial that he informed his attorney

well in advance of trial that Lowder thought the Blue Bird bus was

parked on Traylor’s lot on April 4, 1995. Indeed, Lowder himself

professes bewilderment as to why his attorney might not have

interviewed all of Traylor’s employees to substantiate this claim.

While naturally one might sympathize with Lowder’s good faith in

his attorney, the heart of that complaint is ineffective assistance

of counsel, not “newly discovered evidence.” Cf. id. (phrasing the

question for review in a newly discovered evidence case as whether

the defendants’ attorneys had exercised due diligence in obtaining

the allegedly “new” material); Butts v. Wainwright, 575 F.2d 576,

578 (5th Cir. 1978) (indicating that lack of diligence in pursuing

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evidence may give rise to a claim for ineffective assistance of

counsel). Thus, because Lowder has failed on the face of his own

affidavit to demonstrate due diligence, he is not entitled to a new

trial. See, e.g., United States v. Time, 21 F.3d 635, 642 (5th

Cir. 1994) (finding a lack of due diligence when the defendant knew

of the allegedly relevant information and had an opportunity to

investigate the matter further).

IV

With regard to his sentence, Lowder alleges that the district

court erred in following the PSR’s recommendation that he (1) be

held responsible for 6,622 kilograms of marijuana, (2) receive a

two-level obstruction of justice enhancement for suborning or

attempting to suborn perjury, and (3) receive a four-level

enhancement as a leader/organizer of criminal activity. We review

the trial court’s legal interpretation and application of the

sentencing guidelines de novo and its factual findings for clear

error. United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

“Although a district court must resolve disputed issues of fact if

it intends to use those facts as a basis for sentencing, the court

can adopt facts contained in a PSR without inquiry, if those facts

ha[ve] an adequate evidentiary basis and the defendant does not

present rebuttal evidence.” See United States v. Puig-Infante, 19

F.3d 929, 943 (5th Cir. 1994) (citation omitted). “Mere objections

do not suffice as competent rebuttal evidence.” Parker, 133 F.3d

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at 329.1

A

The Sentencing Guidelines authorize an adjustment for

obstruction of justice “when a defendant engages in conduct which

‘obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution, or

sentencing of the instant offense.’” United States v. Graves, 5

F.3d 1546, 1555 (5th Cir. 1993) (quoting U.S.S.G. § 3C1.1).

Suborning perjury is one type of obstructive conduct contemplated

by the drafters of this section. See U.S.S.G. § 3C1.1 app. note

3(b). We review a district court’s finding of obstructive conduct

only for clear error. United States v. Pofahl, 990 F.2d 1456, 1481

(5th Cir. 1993). “A factual finding is not clearly erroneous as

long as it is plausible in the light of the record read as a

whole.” United States v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998).

Here, Lowder concedes that the district court did not commit

clear error in determining that his son Richard committed perjury

by testifying under oath that Lowder did not supply him with

marijuana. Lowder also concedes that the district court correctly

1
The district court relied on this standard of review to
reject all of Lowder’s objections to the PSR because Lowder
presented no sworn rebuttal evidence. See Parker, 133 F.3d at 329.
To the extent that the district court based its sentencing
determinations on facts found by the PSR, we agree. See id. To
the extent that Lowder’s objections involve only challenges to the
PSR’s conclusions, however, we will address those claims on the
merits. Cf. United States v. Martinez-Cortez, 988 F.2d 1408, 1415
(5th Cir. 1993) (holding that even when the defendant made no
objections to the PSR below, we must address whether the PSR alone
“even when accepted as true and reliable” was “legally []adequate”
to support the relevant enhancement).

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inferred that Lowder must have known of Richard’s perjury. Lowder

claims instead that the district court erred by concluding that

Lowder “procured” the false testimony because Lowder’s attorney,

not Lowder himself, called Richard to the stand. We disagree.

A defendant charged with an enhancement under U.S.S.G. § 3C1.1

“is accountable for his own conduct and for conduct that he aided

and abetted, counseled, commanded, induced, procured, or willfully

caused.” U.S.S.G. § 3C1.1 app. note 7. Thus, even if Lowder did

no more than “counsel” or “induce” his lawyer to call Richard as a

witness, the enhancement was properly applied. We do not find it

implausible in light of the record as a whole that Lowder in fact

gave such counsel or inducement. Particularly in light of the

government’s well-known threats to seek a perjury enhancement for

Richard if he testified for his father, the district court could

reasonably infer that Lowder and his attorney discussed Richard’s

testimony before trial. During those discussions, we certainly

consider it plausible if not likely that Lowder’s attorney would

have suggested to Lowder that the government might seek a similar

enhancement against anyone using Richard’s testimony. Given that

the ultimate result of these discussions was the decision of

Lowder’s attorney to call Richard as a witness, we again see

nothing implausible about the inference that Lowder counseled his

attorney in favor of calling Richard))perhaps indicating a desire

to accept the risk at sentencing, or perhaps inducing the attorney

to call Richard by assuring him that the proposed testimony was

truthful. In any event, whatever discussions actually took place

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between Lowder and his attorney, these plausible inferences, taken

together, sufficiently support the district court’s factual

finding, particularly in light of Lowder’s failure to submit any

sworn rebuttal. The mere fact that we ourselves might have drawn

different or less certain conclusions based on the record before us

is simply irrelevant.

In the alternative, Lowder contends that enhancing his

sentence for presenting perjured testimony undermines his right to

present a defense. Yet just as “a defendant’s right to testify

does not include a right to commit perjury,” see United States v.

Dunnigan, 507 U.S. 87, 96, 113 S. Ct. 1111, 1117, 122 L. Ed. 2d 445

(1993), Lowder’s right to present witnesses in his own defense does

not encompass a right to suborn perjury. We therefore find no

clear error in the district court’s two-level adjustment for

obstruction of justice.

B

Lowder also challenges the district court’s assessment of his

base offense level, calculated based on the PSR’s recommendation

that Lowder be held responsible for 6,622 kilograms of marijuana.

So long as the sentencing court’s adoption of a particular drug

quantity is plausible in light of the record as a whole, it is not

clearly erroneous. United States v. Sparks, 2 F.3d 574, 586 (5th

Cir. 1993). Lowder presents no competent rebuttal evidence to

refute the PSR’s factual determinations regarding the scope of the

conspiracy, and we therefore find no clear error. See United

States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991) (“If

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information is presented to the sentencing judge with which the

defendant would take issue, the defendant bears the burden of

demonstrating that the information cannot be relied upon because it

is materially untrue, inaccurate or unreliable.”); Parker, 133 F.3d

at 329 (“Mere objections do not suffice as competent rebuttal

evidence.”). Moreover, the base offense level assigned by the PSR

covers offenses involving 3,000 to 10,000 kilograms of marijuana,

an amount amply supported by the testimony presented at trial.

C

Lowder’s final contention is that the district court erred in

following the PSR’s recommendation that Lowder receive a four-level

adjustment for a leader/organizer role pursuant to U.S.S.G. §

3B1.1(c). Lowder claims that he was at most a supplier for his

sons, but did not organize or direct any of their distribution

activities. We review the district court’s determination regarding

the defendant’s leadership status only for clear error. See United

States v. Powell, 124 F.3d 655, 667 (5th Cir. 1997).

In support of its recommendation for the four-level

adjustment, the PSR made no factual findings, but merely stated

that a federal agent would be available at sentencing to justify

the leader/organizer conclusion. No agent appeared at sentencing,

but the district court found “based upon the trial testimony, the

jury’s verdict and inferences from the available facts that Mr.

Lowder exercised a leadership role so as to warrant an enhancement

under Guideline Section 3B1.1.” On appeal, the government points

to two pieces of evidence in support of this finding: (1) the

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testimony of Richard’s wife, Tonya Lowder (“Tonya”), that Lowder

continuously telephoned her home to inquire about Richard’s

progress in selling “trucks” (allegedly a code-word for marijuana),

and (2) Tonya’s testimony that Lowder, when confronted about his

involvement in marijuana distribution, claimed that he was only

trying to “help” his sons by giving them a “good start.”2

While we do note that this evidence is rather thin in terms of

demonstrating Lowder’s control or authority over other individuals,

see U.S.S.G. 3B1.1, app. note 4, we cannot say that the district

court clearly erred in making those inferences from Tonya’s

testimony. See United States v. Valencia, 44 F.3d 269, 273 (5th

Cir. 1995) (affirming district court’s factual finding that

defendant was a leader or organizer when it was “plausible, in

light of the record read as a whole, that Valencia was more than

just a supplier”). In Valencia, we faced similar facts, where the

defendant claimed to be merely a supplier to the relevant

organization, rather than a leader or organizer. Id. at 272.

Stressing the extreme deference of the “clear error” standard, we

affirmed, noting that the district court’s finding regarding

Valencia’s role was supported by evidence in the record indicating

2
We decline the government’s invitation to infer from
Lowder’s familial relationship to the other conspirators that he
was somehow “in charge” of the operation. Although we recognize
that in the correct context, family relationships, along with other
probative evidence, may give rise to reasonable inferences
regarding the power structure of a criminal enterprise, the
government has presented no evidence here supporting the idea that
Lowder’s children looked to Lowder for guidance or authority. In
the absence of such evidence, we will not attempt to extrapolate
Lowder’s role in the criminal enterprise.

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(1) the role of one of Valencia’s co-defendants and (2) the

“connection” between that co-defendant and Valencia. Id. at 273.

In support of this decision, we also cited the report of a

magistrate judge, who noted in a written statement that “Valencia

explained that he wanted Moreno [a co-defendant] to accompany Mills

and Stewart on [a particular] delivery to make sure that the money

got back to Houston so that Valencia could pay his source for the

drugs.” Id. at 273 & n.4. In light of this report, we opined that

the district court “could easily infer that Valencia played an

organizational role over and above that of supplying the [drugs].”

Id. at 273 n.4. In addition, we noted that “[a]lthough the

quantity of [drugs] is a nondispositive factor in the § 3B1.1

determination, it is a factor nonetheless.” Id. at 273.

Here, we also have a defendant claiming to have functioned

merely as a supplier, but nevertheless having strong business

connections to the main players in an organization devoted to the

sale and distribution of large amounts of marijuana. Those

business ties, in addition to Tonya’s testimony regarding Lowder’s

demonstrated interest in the progress of her husband’s sales

indicate that the district court committed no clear error in

inferring that Lowder occupied an organizational or leadership role

in the conspiracy. We therefore will not disturb the district

court’s enhancement under U.S.S.G. § 3B1.1.

V

In summary, we find no error in the district court’s denial of

an in camera inspection of certain files allegedly possessed by the

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government, its denial of Lowder’s motion for a new trial based on

allegedly newly discovered evidence, or its sentencing

determinations. The judgment of the district court is in all

respects AFFIRMED.

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