Case: 09-50589 Document: 00511264437 Page: 1 Date Filed: 10/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2010
No. 09-50589 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
GEECHIE DEVAIN TEMPLETON,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Geechie Devain Templeton challenges his convictions for using a firearm
and committing murder during and in relation to a drug trafficking crime and
for possession with the intent to distribute cocaine. We affirm.
I
This case stems from the murder of Gabriel Rodriguez in Odessa, Texas.
Templeton arranged to purchase drugs from Rodriguez, and the two met in an
alley adjacent to a house rented by Templeton’s sister, Tanisha Lewis (Tanisha),
and her then-boyfriend, Terrell Lewis (Lewis). Rodriguez arrived in a red pickup
truck, and shortly thereafter, Templeton knocked on the door of his sister’s
house. Lewis admitted him, and Templeton asked Lewis for $5,000 so that they
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could “go half on a brick” of cocaine. Lewis replied that he did not have the
money.
Templeton returned to talk to Rodriguez, who was still sitting in his truck.
As Tanisha watched, Templeton pulled a gun, and Rodriguez put his hand up to
protect himself. Templeton shot Rodriguez twice, fatally wounding him.
After the shooting, Templeton signaled to his sister and Lewis that they
needed to leave. Carrying a gun and what his sister identified as“two bricks” of
cocaine, Templeton rode with Tanisha and Lewis to Templeton’s mother’s
apartment, where Templeton went inside. Tanisha and Lewis returned to their
house and removed a stash of drugs, which they delivered to the house of
Lacrisha Franklin, Tanisha’s cousin. Tanisha and Lewis then drove to a fire
station. Lewis entered and reported to a firefighter that “something bad” had
happened to a man in a truck outside of his house. The firemen went to the alley
and found Rodriguez dead in the truck.
Meanwhile, when Templeton arrived at his mother’s apartment, he asked
his girlfriend, Montoya Sprague, who was also there, to wash his clothes. He
then left, but called to ask Sprague to take his gun to Franklin’s apartment.
Sprague wrapped the gun in a T-shirt and complied. She washed Templeton’s
clothes, but when she could not remove a brown stain, she burned them. At
some point after the incident, a friend drove Templeton from his mother’s
apartment to Hobbs, New Mexico, where he lived. Templeton had only a plain
shoe box in his possession.
When Tanisha, Lewis, and a family friend discovered that Templeton’s gun
was at Franklin’s apartment, they became concerned because Franklin was on
parole. This concern prompted the friend to remove the gun from Franklin’s
apartment and return it to Templeton’s mother’s apartment. About ten days
after the murder, an attorney representing Tanisha and Lewis contacted the
police and indicated that the pair wanted to meet with them, which was
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arranged. They explained to the police what they witnessed the night of the
murder. A few days later, officers searched Templeton’s mother’s apartment and
found a loaded Desert Eagle pistol wrapped in a T-shirt.
Approximately a month after the murder, Templeton and Sprague met and
traveled together, first to Lubbock, Texas, and ultimately to Topeka, Kansas.
Templeton occupied a Topeka motel room under an assumed name, paying cash,
for about a month and half before U.S. Marshals and local law enforcement
officers raided the motel room and arrested Templeton. As he was being
arrested, Templeton said, “I’m glad this shit is over.”
Templeton was indicted and charged in Count One with possession with
intent to distribute 500 grams or more of a mixture or substance containing
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and in Count Two
with using a firearm and committing murder during and in relation to the drug-
trafficking crime described in Count One, in violation of 18 U.S.C. §§ 924(c)(1)
and 924(j). A jury convicted him on both counts, and the district court sentenced
him to 120-months’ imprisonment on Count One and life imprisonment on Count
Two, to be served consecutively. This appeal followed.
II
Templeton contends that there was insufficient evidence for the jury to
convict him on either count since there was no evidence that the substance he
allegedly possessed was a mixture or substance containing cocaine. We consider
“whether a reasonable jury could conclude that the relevant evidence, direct or
circumstantial, established all of the essential elements of the crime beyond a
reasonable doubt when viewed in the light most favorable to the verdict.” 1
1
United States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009) (internal quotation
marks and citation omitted).
3
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Because law enforcement officers never recovered the substance
Templeton possessed on the night of the murder, the Government relied on the
testimony of Tanisha and Lewis to establish that it was cocaine. Both witnesses
were experienced in drug trafficking, and Tanisha had previously been convicted
for possession of crack cocaine. Tanisha testified that Templeton was carrying
“two bricks or two kilos of cocaine” when he got into the car with her after the
murder. She stated that the bricks were wrapped in cellophane, explaining that
she had previously seen bricks packaged similarly to those Templeton carried.
She further testified that the bricks were powder cocaine, noting that she had
never seen a brick of crack cocaine. Lewis, moreover, testified that Templeton
asked him for $5,000 to “go half on a brick” before the murder. He explained
that “brick” was a reference to one kilo of cocaine. Lewis also stated that when
Templeton got into the car after the murder, he was carrying two bricks of “dope”
wrapped in brown packaging and tape. Lewis testified that he knew the
packages contained cocaine since he had seen similarly wrapped bricks in the
course of his own drug deals.
In addition to this testimony, the jury heard evidence concerning
Templeton’s behavior after the shooting that suggests he sold something for
large sums of cash. After the murder, Templeton went to Hobbs, New Mexico,
carrying only a shoe box. He later carried this shoe box with him when his
friend transported him to another house in Hobbs, where he visited with the
occupant for ten to fifteen minutes. Templeton purchased a new television in
Hobbs, paying over one thousand dollars in cash, and he similarly paid cash for
his motel room in Topeka. When he was apprehended by law enforcement in
that motel room, he possessed a digital hand scale with white residue on it.
Though there was insufficient residue for chemical testing, the law enforcement
officer who found this item of evidence testified that such scales are typically
used to weigh illegal drugs when packaging them for sale. From this evidence,
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the jury could infer that, after the murder, Templeton generated large sums of
cash through cocaine sales.
Given the eyewitnesses’ testimony that Templeton was carrying two
kilograms of cocaine, the circumstances surrounding the murder of Rodriguez,
and Templeton’s behavior after the incident, the jury could reasonably conclude
that Templeton possessed 500 grams or more of a mixture or substance
containing cocaine on the night in question.2
Templeton argues that we should look to the Tenth Circuit’s decision in
United States v. Baggett3 in considering whether the evidence sufficiently
showed he possessed cocaine. In Baggett, the Tenth Circuit determined that
evidence of three telephone calls arranging for the purchase of heroin and the
defendant’s confession that she had used some heroin each day of the month was
insufficient to show that the defendant possessed heroin on the day in question.4
The court explained, however, that in some cases circumstantial evidence could
be sufficient to show that a defendant possessed illegal drugs. Such evidence
may include “evidence of the physical appearance of the substance
involved in the transaction, evidence that the substance produced
the expected effects when sampled by someone familiar with the
illicit drug, evidence that the substance was used in the same
manner as the illicit drug, testimony that a high price was paid in
cash for the substance, evidence that transactions involving the
substance were carried on with secrecy or deviousness, and evidence
that the substance was called by the name of the illegal narcotic by
the defendant or others in [her] presence.” 5
2
Cf. United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993) (similarly concluding
that witness testimony and other circumstantial evidence was sufficient to allow a reasonable
jury to conclude that the defendant had trafficked in cocaine).
3
890 F.2d 1095 (10th Cir. 1989).
4
Id. at 1096-97.
5
Id. at 1096 (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)).
5
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In Baggett, the Government presented no such evidence, leading the court to
conclude that the evidence was insufficient to support the conviction. But in this
case, there is much more evidence, direct and circumstantial. There was
testimony regarding the “physical appearance” of the packages, testimony that
Templeton intended to pay “a high price” for the substance, testimony that
Templeton had an abundance of cash in the days and weeks after he had taken
the two packages, and testimony that the packages contained cocaine. Thus
unlike Baggett, the evidence here was more than sufficient to establish that the
packages contained cocaine.
Templeton’s other sufficiency arguments do not require reversal of his
conviction. He argues that Lewis’s testimony that Templeton asked him for
$5,000 to pay for half a brick of cocaine cannot be reconciled with Agent Dean
Cook’s testimony that a kilogram of cocaine sells for $18,000 to $20,000, and that
Lewis’s testimony is therefore not credible. But we “accept the jury’s credibility
determinations unless a witness’s testimony is incredible or patently
unbelievable.”6 Templeton also contends that the Government presented no
evidence that he possessed either a large amount of cocaine or money at the time
of his arrest, three months after the murder. While true, the jury could have
determined that the three-month lapse gave Templeton sufficient time to sell the
cocaine and either spend or hide the money.
Accordingly, we conclude that the evidence was sufficient to support both
convictions.
III
Templeton argues that the district court abused its discretion when it
admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine
possession. We review the admission of evidence under Federal Rule of Evidence
6
United States v. Miller, 588 F.3d 897, 907 (5th Cir. 2009) (internal brackets, quotation
marks and citation omitted).
6
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404(b) under a “heightened” abuse of discretion standard.7 “Evidence in criminal
trials must be strictly relevant to the particular offense charged.”8 However, we
do not reverse for erroneous admissions under Rule 404(b) if the error was
harmless.9
Before trial, the Government filed notice that it would offer evidence under
Rule 404(b). The Government asked the district court to admit testimony from
two witnesses who were prepared to testify that Templeton frequently sold them
large amounts of crack cocaine. The Government also asked the court to admit
evidence of Templeton’s 2004 arrest for possessing nine ounces of cocaine. The
district court determined that Templeton’s not guilty plea put his state of mind
at issue; the court therefore allowed the evidence of his prior crack cocaine
trafficking to prove intent, knowledge, and motive. The court similarly allowed
the evidence of Templeton’s arrest to show intent, knowledge, and motive. The
court determined in each instance that the probative value of the evidence
outweighed any prejudice to Templeton.
On the second day of trial, Templeton renewed his objections. His counsel
explained that the defense’s theory of the case was that “Geechie Templeton was
not there, didn’t commit the murder, didn’t retrieve any cocaine from Gabriel
Rodriguez.” Accordingly, defense counsel offered to stipulate to Templeton’s
intent to distribute cocaine, but only if the Government proved both presence at
the crime scene and possession of cocaine. Due to Templeton’s refusal to
stipulate to presence and possession, the district court declined to exclude the
evidence.
7
United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), cert. denied, 129 S. Ct.
2018 (2009).
8
United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (internal brackets,
quotation marks, and citation omitted).
9
Id.
7
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Under Rule 404(b), evidence of other crimes or bad acts is inadmissible “to
prove the character of a person in order to show action in conformity
therewith.”10 But such evidence may be admissible to prove motive, intent, or
knowledge, among other things.11 We analyze Rule 404(b) admissions under the
two-prong test outlined in United States v. Beechum.12 First, we must consider
whether, applying Rule 401, “the extrinsic offense evidence is relevant to an
issue other than the defendant’s character.”13 Second, we must determine
whether the probative value of the evidence is substantially outweighed by its
undue prejudice.14 This prong involves a “commonsense assessment of all the
circumstances surrounding the extrinsic offense.” 15 We consider the
“incremental probity” of the evidence “with regard to the extent to which the
defendant’s unlawful intent is established by other evidence, stipulation, or
inference.” 16
Pointing to United States v. Yeagin,17 Templeton argues that the district
court abused its discretion when it admitted the extrinsic evidence even after he
offered to stipulate to his intent to distribute if the Government proved
possession. In Yeagin, we overturned a defendant’s convictions for possession
of methamphetamine with intent to distribute, use of a firearm in connection
10
FED . R. EVID . 404(b).
11
Id.
12
See United States v. Cockrell, 587 F.3d 674, 678 (5th Cir. 2009) (citing United States
v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)).
13
Beechum, 582 F.2d at 911.
14
Cockrell, 587 F.3d at 678.
15
Id. (quoting Beechum, 582 F.2d at 914).
16
Beechum, 582 F.2d at 914.
17
927 F.2d 798 (5th Cir. 1991).
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with a drug trafficking offense, and possession of a firearm as a convicted felon
because the district court admitted evidence of the defendant’s nine prior felony
convictions despite the defendant’s offer to stipulate to the intent-to-distribute
element of the drug charge and the convicted-felon element of one of the firearm
charges.18 As in this case, the defendant offered to stipulate to intent to
distribute if the Government proved possession.19 In ruling that the district
court abused its discretion, we acknowledged the “general rule” that “a party
may not preclude his adversary’s proof by an admission or offer to stipulate,” 20
but explained that the “nine prior felonies were unrelated to the factual
circumstances of the charged offense” and would have an “extremely prejudicial
effect” on the defendant.21
The circumstances here are distinguishable from those in Yeagin. The
evidence in Yeagin was proffered to show intent only. Here, the court admitted
the evidence to show intent, knowledge, and motive for the murder of Rodriguez.
Even if the proposed stipulation weakened the evidence’s probative value as to
Templeton’s intent, the evidence still had significant probative value as to
Templeton’s motive. The evidence showed that Templeton had previously
trafficked crack cocaine, and the jury could infer that access to more cocaine
motivated Templeton to murder Rodriguez. Moreover, the evidence was not as
prejudicial as that in Yeagin, where the district court admitted the defendant’s
convictions for five drug crimes and four unrelated crimes with little relevance
to the drug charge against the defendant. In contrast, no evidence was
presented to the jury that Templeton was convicted of a drug crime. The witness
18
Id. at 801-03.
19
Id. at 801.
20
Id. at 802 (quoting United States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976)).
21
Id. at 802-03.
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testimony was less prejudicial than evidence of prior convictions, since the jury
was free to disregard the testimony of the witnesses, who were both imprisoned
on drug charges and testified that they hoped for sentence reductions in
exchange for their cooperation. The judge was within his discretion to determine
that the probative value of this evidence with regard to intent, knowledge, and
motive substantially outweighed its prejudicial effect.
IV
Templeton next contends that the district court committed reversible error
by preventing defense counsel from cross-examining Tanisha to establish that
she was assaulted by Lewis. The defense intended to rely “on a theory that
[Lewis] pressured his wife into marrying him to ensure the husband-wife
privilege applied, and then used fear to make sure she testified against her
brother and not against him.” The Government argues that the court properly
limited the cross-examination in this regard since defense counsel provided no
evidence that Lewis inflicted violence on his wife to influence her testimony or
that Tanisha altered her testimony out of fear.
We review alleged Sixth Amendment Confrontation Clause violations de
novo, but any violations are subject to a harmless error analysis.22 If there is no
Confrontation Clause violation, we review the district court’s limitation of cross-
examination for abuse of discretion.23
The Confrontation Clause “provides that, ‘[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against
him.’”24 “The main and essential purpose of confrontation is to secure for the
22
United States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006).
23
Id. at 558-59.
24
Crawford v. Washington, 541 U.S. 36, 42 (2004) (quoting U.S. CONST . amend. VI).
10
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opponent the opportunity of cross-examination.” 25 The Supreme Court has
explained that “the exposure of a witness’[s] motivation in testifying is a proper
and important function of the constitutionally protected right of cross-
examination.”26 The potential bias of a witness “is always relevant as
discrediting the witness and affecting the weight of his testimony.” 27 This court
has further emphasized that “[t]he right to cross-examination ‘is particularly
important when the witness is critical to the prosecution’s case.’”28 But the
Confrontation Clause does not prohibit the trial judge from putting some limits
on an inquiry into potential bias.29 Rather, “trial judges retain wide
latitude . . . to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’[s] safety, or interrogation that is repetitive or only
marginally relevant.” 30
We have explained that “the Confrontation Clause is generally satisfied
when the defendant has been ‘permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witness.’”31 “The relevant inquiry is
whether the jury had sufficient information to appraise the bias and motives of
25
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (internal quotation marks and citation
omitted).
26
Id. at 316-17.
27
Davis, 415 U.S. at 316 (internal quotation marks and citation omitted).
28
Jimenez, 464 F.3d at 559 (quoting United States v. Mizell, 88 F.3d 288, 293 (5th Cir.
1996)).
29
Van Arsdall, 475 U.S. at 679.
30
Id.
31
United States v. Skelton, 514 F.3d 433, 439 (5th Cir. 2008) (quoting United States v.
Restivo, 8 F.3d 274, 278 (5th Cir. 1993)).
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the witness.”32 To establish a Confrontation Clause violation, the defendant
need not show that the jury would have rendered a different verdict.33 Instead,
the defendant need only show that “a reasonable jury might have received a
significantly different impression of the witness’s credibility had defense counsel
been permitted to pursue his proposed line of cross-examination.” 34
To determine whether Templeton’s confrontation right was violated, we
must examine Tanisha Lewis’s trial testimony and the line of cross-examination
the district court prohibited. As an eyewitness to both the murder and
Templeton’s cocaine possession, Tanisha was a particularly important witness
for the Government. She testified that a man in a red pickup truck arrived in
the alley outside her house and that Templeton knocked on her door shortly
thereafter. She stated that Templeton briefly spoke with Lewis and then left
through the front door. She explained that, through an open door, she saw
Templeton approach the red truck and shoot the man sitting inside. She further
testified that after the shooting, Templeton told her and Lewis to get into her
car, where Templeton joined them carrying the gun and two kilograms of
cocaine.
On cross-examination, defense counsel was able to elicit some information
showing Tanisha’s potential bias. He asked her questions about waiting to talk
to the police until eleven days after the murder, and she testified that she was
with Lewis in the days before she talked to the police. Defense counsel also
questioned her as to whether her decision to marry Lewis one month after the
murder was an effort to obtain the spousal privilege, so that any subsequent
32
United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993).
33
Skelton, 514 F.3d at 439.
34
Id. (citing Van Arsdall, 475 U.S. at 680) (internal brackets and quotation marks
omitted).
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conversations concerning the murder could not be introduced in court. But
defense counsel did not otherwise question Tanisha in front of the jury regarding
Lewis’s influence on her testimony.
Before trial, defense counsel informed the court that Templeton’s mother
had told him that Lewis had “savagely beat up” Tanisha. In order to determine
whether further cross-examination on this line was appropriate, the court
allowed defense counsel to question Tanisha about Lewis’s alleged abuse outside
the presence of the jury. Tanisha explained that Lewis gave her a black eye in
2008 during a fight about infidelity. When defense counsel asked how many
times Lewis had bruised her since the night of the murder, she replied that the
black eye was the only violent incident. She testified that Lewis had never
instructed her on how to testify, that they had never fought about the case, and
that she was not afraid of Lewis. Defense counsel stated that Templeton’s
mother would also testify about the incident, but counsel could not locate her
when she was supposed to testify. The court prohibited cross-examination on
the subject based on Tanisha’s proffered testimony, but left open the possibility
of recalling her if defense counsel provided information that the abuse was
related to Tanisha’s testimony or the murder. Defense counsel proffered no
other testimony regarding the alleged abuse.
Evidence that Tanisha was the victim of prolonged spousal abuse or that
Lewis beat her in relation to her testimony could be probative of whether her
testimony was influenced by fear of further abuse. If there was such evidence,
the jury could “appropriately draw inferences relating to” the reliability of
Tanisha’s damning evidence.35 But here, the proffered testimony showed only
that Lewis gave Tanisha a black eye once, in an altercation regarding infidelity.
This testimony has only marginal, if any, relevance to Tanisha’s credibility. The
35
Skelton, 514 F.3d at 439.
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trial judge gave the defense ample opportunity to present more evidence to show
the relevance of the abusive incident, but the defense failed to do so.
Accordingly, the trial judge’s limitation on this line of questioning in cross-
examination was well within his “wide latitude” to impose such limits.36
V
Finally, Templeton argues that the district court abused its discretion by
instructing the jury that evidence of flight could reflect a consciousness of guilt.
He asserts that the evidence shows that he went to Topeka, Kansas, on vacation
at the behest of his girlfriend and that no evidence shows that he was aware that
he was a criminal suspect.
We review jury instructions for abuse of discretion37 and consider “whether
the court’s charge, as a whole, correctly states the law and clearly instructs
jurors as to the principles of law applicable to the factual issues confronting
them.”38 In determining whether the jury instructions are factually supportable
by the evidence, “we evaluate that evidence in the light most favorable to the
government.” 39
Evidence of a defendant’s flight is generally admissible as tending to show
guilt.40 We have explained that a flight instruction is proper when the evidence
supports four inferences: “1) the defendant’s conduct constituted flight; 2) the
defendant’s flight was the result of consciousness of guilt; 3) the defendant’s
36
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
37
United States v. Clark, 582 F.3d 607, 615 (5th Cir. 2009), cert. denied, 130 S. Ct. 1306
(2010).
38
United States v. Martinez, 190 F.3d 673, 678 (5th Cir. 1999).
39
Clark, 582 F.3d at 615.
40
Martinez, 190 F.3d at 678.
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guilt related to the crime with which he was charged; and, 4) the defendant felt
guilty about the crime charged because he, in fact, committed the crime.” 41
The evidence here supports each of the four inferences. The record reflects
that Templeton traveled to Topeka before Christmas, about a month after the
murder, and stayed in an extended stay hotel room under an assumed name,
paying cash for the room. We have previously found that similar evidence
supports an inference of flight,42 and the fact that Templeton did not flee until
approximately one month after the crime does not undermine this inference.43
Templeton’s statement to law enforcement upon his arrest that “I’m glad this
shit is over” further supports the inference that he in fact fled and demonstrates
his awareness that he was wanted for Rodriguez’s murder, drug trafficking, or
both, as the record reveals no other crime from which Templeton could have been
fleeing.44 His statement similarly supports an inference that he felt guilty about
the crime charged because he had in fact committed the crime.
That the jury could also have found an innocent motive in Templeton’s
actions does not render the flight instruction erroneous.45 Because the evidence
supported the four required inferences, the district court did not abuse its
41
Id.
42
See United States v. Murphy, 996 F.2d 94, 97 (5th Cir. 1993) (concluding that
evidence the defendant rented a house under his friend’s name supports a flight inference);
United States v. Mesa, 660 F.2d 1070, 1078 (5th Cir. Unit B Nov. 1981) (concluding that
evidence the defendant rented a hotel room under an assumed name supports a flight or
concealment inference).
43
See Murphy, 996 F.2d at 97 (concluding that the defendant’s conduct constituted
flight even though one month had passed since the crime).
44
See id. (explaining that the evidence supported the defendant’s consciousness of guilt
in relation to the crime charged since the record did not show any other crime from which the
defendant could have been fleeing).
45
See Mesa, 660 F.2d at 1078 (“The fact that the record might sustain either inference
does not make the concealment instruction erroneous.”).
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discretion in instructing the jury concerning flight. Further, given the strong
evidence of Templeton’s guilt, as discussed in Part II, any error in this regard
would be harmless.
* * *
For the foregoing reasons, we AFFIRM Templeton’s convictions.
16