REVISED - AUGUST 12, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-30495
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UNITED STATES,
Plaintiff-Appellee,
VERSUS
MICHAEL SHORT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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July 15, 1999
Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Michael Short appeals his conviction on a number of counts
arising out of his leadership of a drug-distribution ring. For the
reasons that follow, we vacate Short’s conviction on Count 1 and
affirm the remaining counts of his conviction.
I.
Michael Short was the leader of a substantial drug-dealing
organization named after its principal distribution point in New
Orleans, the intersection of Phillip Street and Clara Street.
Numerous witnesses testified about Short’s management of the
Phillip and Clara drug ring in 1995 and 1996. For example, Lloyd
Locke testified that he sold heroin for Short; Gregory Cooks
testified that he sold heroin for Short and acted as Short’s
enforcer.
Law enforcement officers also testified as to Short’s
involvement in the drug trade. For example, Officer Tim Bayard of
the New Orleans Police Department testified that on September 15,
1995, he observed Short leaving 4507 S. Prieur Street carrying a
bag. When Short noticed Bayard, he threw the bag away. The police
retrieved the bag and found that it contained $15,000 cash. The
police seized the money after drug dogs alerted to the presence of
illegal substances on it. Officer Jake Schnapp testified that on
May 14, 1995, he and his partner observed Short give a brown paper
bag to Cooks. When Cooks saw the police, he threw the bag to the
ground. The police detained both men. While they did so, Yvonne
Cooks picked up the bag and began walking into a house at 903
Fourth Street. The police apprehended Ms. Cooks and searched the
bag. The bag contained $5,000 cash. Morever, a search of the 903
Fourth Street residence found five clear plastic bags of off-white
powder (later determined to be heroin) and a loaded pistol. The
prosecution also presented numerous recordings of phone
conversations between Short and others directly implicating Short
in the drug trade.
For the purposes of this appeal, two additional events are
important: the search of the car driven by Lerman Robinson and the
murder of Derrick Hubbard.
On June 25, 1996, Lerman Robinson was driving his mother-in-
law’s Pontiac. Short, who had been riding in a Jeep Cherokee with
Cooks and John Bryant, waved Robinson down. Robinson stopped the
Pontiac in an intersection so that Short could enter the car.
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Officer Raymond Veit of the New Orleans Police Department saw
Robinson’s Pontiac blocking the intersection and pulled the car
over. Officer Veit asked the occupants to step out of the car and
conducted routine pat downs. He felt a large bulge in Short’s
pocket, which turned out to be $891 cash. Veit had previously
arrested Short on a narcotics-related offense, so he called a
canine officer to determine whether the money contained traces of
narcotics. The drug dog alerted to the money. Office William
Kingman, an ATF agent assigned to a local drug task force, assisted
Veit. When Kingman looked inside the Pontiac, he saw three
cellular phones. He picked up the phones, removed their backs, and
followed the instructions on how to retrieve the number assigned to
the phones. One of the numbers Kingman obtained was (404) 694-
7126, which he passed on to a DEA agent. The drug task force later
obtained a warrant to tap this phone. This wire tap was the source
of much of the evidence that led to Short’s conviction.
The second important event was the murder of Derrick Hubbard,
who was acting as an informant for the DEA. The Government
presented evidence that Hubbard had been a drug dealer and an
enforcer for Short’s organization. Short and Hubbard had a falling
out because Hubbard had been stealing drugs and money from Short.
On the day that Hubbard was murdered, Short threatened to kill
Hubbard after seeing him at the Phillip and Clara intersection.
After making this threat, Short had a conversation with Troyel Ross
and Kevin Brown. Ross then shot and killed Hubbard in front of a
number of eyewitnesses. Ross left the scene with Cooks. Cooks
went to a pay phone at the corner of Phillip and Clara. Short
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called Cooks at that pay phone and exclaimed, “We got that bitch.
That bitch dead. We got that bitch.” A little while later, Short
gave Ross $2,500, stating, “This is a little something for handling
that.”
Short and a number of coconspirators were charged in a
multicount indictment. Short was charged in ten counts.1 He was
found guilty on all counts. The district court imposed four
concurrent life sentences on Counts 1-4, plus a mandatory
additional five-year prison sentence on Count 5, the firearm
offense. The district court imposed additional prison terms on the
remaining counts, but these terms all run concurrently with the
life sentences. Short now appeals.
II.
Short argues eleven points of error on appeal. We address
these points in turn.
A.
Short argues first that Agent Kingman violated rights secured
by the Fourth Amendment when the agent obtained the telephone
1
Count 1 for conspiring to distribute heroin and cocaine in
violation of 21 U.S.C. § 846; Count 2 for leading, organizing, and
managing a continuing criminal enterprise involving a conspiracy to
distribute heroin in violation of 21 U.S.C. § 848; Count 3 for
intentionally killing Derrick Hubbard in furtherance of a
continuing criminal enterprise in violation of 21 U.S.C. §
848(e)(1)(A) and 18 U.S.C. § 2; Count 4 for causing the killing of
Hubbard through the use of a firearm in violation of 18 U.S.C. §
924(j)(1) and 18 U.S.C. § 2; Count 5 for carrying a firearm during
the commission of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1); Counts 6 and 8 for using a telephone in
furtherance of a drug conspiracy in violation of 21 U.S.C. §
843(b); Count 7 for using the Postal Service in furtherance of a
drug conspiracy in violation of 21 U.S.C. § 843(b); Count 24 for
using a modified cellular phone with the intent to defraud in
violation of 18 U.S.C. § 1029(a)(5); and Count 27 for conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956.
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numbers assigned to the cellular phones found in the Pontiac being
driven by Lerman Robinson. Short argues that because this search
was improper, the wire tap of one of the phone numbers discovered
in that search was illegal and therefore all the fruits of that
wire tap should have been suppressed.
Preliminarily, however, we address the Government’s contention
that Short does not have standing to assert this argument. Under
the precedent of the Supreme Court and this Court, a passenger in
an automobile generally lacks standing to challenge a search of
that automobile, especially when there is no indication that the
items being searched belong to the passenger. See Rakas v.
Illinois, 439 U.S. 128, 132-45, 99 S. Ct. 421, 424-30, 58 L. Ed. 2d
387 (1978); United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir.
1993); United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th
Cir. 1992). Short points to no evidence from the search or any
legal theory that supports an argument that this general rule does
not apply to the search of Robinson’s Pontiac and the cellular
phones found in that vehicle. Short did not have the phones on his
person, nor were the phones in a location that indicated that the
phones were his, nor did he indicate to the police that the phones
were his. Under the cases cited above, Short does not have
standing to challenge the search of Robinson’s Pontiac or the
cellular phones found in the vehicle. We therefore reject his
Fourth Amendment challenge.
B.
Short next argues that the district court erred by refusing to
instruct the jury that, in order to find Short guilty of being an
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organizer, supervisor, or manager of the continuing criminal
enterprise, the jurors must agree unanimously as to the identities
of at least five of the people being organized, supervised, or
managed.
This Court previously rejected this exact argument in United
States v. Linn, 889 F.2d 1369, 1374 (5th Cir. 1989). The Supreme
Court, however, recently held that a jury must agree unanimously on
the three criminal acts forming a series of criminal acts for the
purposes of the continuing criminal enterprise statute. Richardson
v. United States, 119 S. Ct. 1707, 1712-13 (1999). This holding
raises the question of whether this Circuit’s precedent that does
not require jury unanimity as to the identities of supervisees
still stands. In Richardson, the Supreme Court gave us guidance on
this issue. Although the Court did not decide whether unanimity is
required as to supervisees, the Court distinguished the
“supervisor” provision from the “series” provision it found to
require unanimity. The Court stated: “Assuming without deciding,
that there is no unanimity requirement [as to supervisees], we []
find [that provision] significantly different from the provision
before us. They differ in respect to language, breadth, tradition,
and the other factors we have discussed.” Id. at 1713. Thus,
although the Supreme Court in Richardson did not decide the issue,
it gave no indication that a jury finding of unanimity as to
supervisees is required. In other words, Richardson did not
suggest that our precedent is no longer valid. Indeed, the
Richardson opinion implied just the opposite. Because this panel
is bound by the precedent of previous panels absent an intervening
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Supreme Court case explicitly or implicitly overruling that prior
precedent, we are bound by our decision in Linn. For that reason,
we reject Short’s contention that the district court erred by
refusing his proposed jury instruction requiring unanimity as to
the identities of the five people being organized, supervised, or
managed.
C.
Short next argues that his counsel made improper statements
during closing argument and therefore the district court should
have granted him a new trial.
During closing argument, Short’s counsel stated,
If you listen to the tapes, if you hear between the lines and
read between the lines of the several people who testified out
there, you know that bunches of people were selling drugs and
they were distributing drugs to numbers of people. Michael
Short[] was involved; you’ve heard that evidence; it can’t be
denied. But the idea that he was a kingpin relies on the
testimony of these men. There was money to be made; they made
money. There was money that was earned illegally through the
drug trade, but that doesn’t make a continuing criminal
enterprise.
. . .
Ladies and gentlemen of the jury, the bottom level of this
case is the conspiracy charge. And that is, for me, the most
difficult thing to argue because the evidence is so strong; .
. . but they were basically independent operators who, from
time to time, came in contact with and worked with some other
people. They were basically independent people.
At the end of this closing argument, Short told the district court
that he did not agree with the statements of his counsel, which he
felt were tantamount to an admission of guilt. After he was
convicted, Short requested a new trial on the ground that his
counsel had effectively entered a guilty plea for him.
The district court characterized Short’s claim as one of
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ineffective assistance of counsel. The court then ruled that
counsel’s argument fell “within the ambit of trial strategy and
tactics.” In light of the overwhelming evidence of Short’s
involvement in the drug trade, the district court found that
counsel’s trial strategy was reasonable and therefore it was not
ineffective assistance under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
We concur with the district court’s analysis. While counsel
did not explicitly admit Short’s guilt on any of the particular
counts with which Short was charged, counsel clearly implicated
Short in the drug trade. However, we agree with the district court
that this closing argument does not amount to ineffective
assistance of counsel. The evidence from coconspirators, law
enforcement officers, and recorded telephone conversations was
overwhelming that Short was involved in the drug trade. Thus,
counsel took the reasonable strategic approach of trying to
establish his credibility with the jury and enhance his chances
that the jury would accept his arguments on the more serious
counts, such as the kingpin element of the continuing criminal
enterprise and the murder of Derrick Hubbard. We agree with the
district court that counsel’s use of such a tactic does not mandate
that we grant Short a new trial.
D.
Short argues that his conviction and sentence on both Count 1
(conspiracy) and Count 2 (continuing criminal enterprise) violate
the Double Jeopardy Clause of the Constitution because Count 1 is
a lesser included offense of Count 2. See United States v. Brito,
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136 F.3d 397, 408 (5th Cir. 1998). The Government agrees and
concedes that if we affirm Count 2, then we should vacate Count 1.
Therefore, because we do affirm Count 2, we vacate Count 1.
E.
Short next contends that the evidence is insufficient to
support his conviction on Counts 3 and 4. He also argues that his
conviction on Counts 3 and 4 must be overturned because the jury
reached inconsistent verdicts.
Count 3 of the amended indictment alleged that Short and
Troyel Ross intentionally killed Derrick Hubbard in furtherance of
a continuing criminal enterprise. Count 4 alleged that Short
procured and caused the killing of Derrick Hubbard through the use
of a firearm and that Ross performed the actual killing. The jury
convicted Short on both Counts 3 and 4. The record evidence
discussed above amply supports these verdicts.
While the jury convicted Short on Counts 3 and 4, it was
unable to reach a verdict as to Ross. Short contends that because
the jury was not convinced beyond a reasonable doubt that Ross
killed Hubbard, it could not have been convinced beyond a
reasonable doubt that Short caused Ross to kill Hubbard. Short
contends that to permit such inconsistent verdicts would violate
his right to due process of law under the Fifth Amendment.
This argument is meritless. First, it is not clear to us that
the verdicts are necessarily inconsistent. Second, inconsistent
verdicts do not require reversal of the guilty verdicts, so long as
there is sufficient evidence to support the jury’s determination of
guilt. See, e.g., United States v. Sylvester, 143 F.3d 923, 930
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(5th Cir. 1998) (inconsistent verdicts not a bar to conviction even
when all coconspirators are acquitted); United States v. Scurlock,
52 F.3d 531, 537 (5th Cir. 1995) (jury can render inconsistent
verdicts, even when inconsistency is result of mistake or
compromise); United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.
1985) (“Juries are free to return inconsistent verdicts, for
whatever reason, provided their convictions are supported by
adequate evidence.”). In this case, ample evidence supports
Short’s conviction on Counts 3 and 4. Therefore, the jury’s
failure to convict Ross on Counts 3 and 4 does not provide any
reason to vacate Short’s conviction on the same counts.
F.
Short also argues that the evidence is insufficient to support
his conviction on Counts 2, 5, and 27. We disagree.
In Count 2, Short was convicted of organizing, supervising, or
managing a continuing criminal enterprise to possess and distribute
heroin. Short contends that the Government failed to provide
sufficient proof that Short supervised five or more members of the
criminal enterprise, as required by 21 U.S.C. § 848. In response,
the Government argues that it presented evidence sufficient for the
jury to find that Short supervised or managed at least nine members
of the Phillip and Clara drug ring. After reviewing the record, we
agree with the Government that the evidence was clearly sufficient
for the jury to conclude that Short organized, supervised, or
managed at least five members of the criminal enterprise.
In Count 5, Short was convicted of carrying a gun during the
commission of a drug trafficking crime in violation of 18 U.S.C. §
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924(c)(1). Short contends that the Government did not prove that
Short carried a gun during or in relation to a drug crime, as
required by Section 924(c)(1). Short, however, ignores the
evidence that he directed his underlings to carry guns.
The record is replete with references to firearms being used
by the Phillip and Clara organization, usually at Short’s behest.
For example, Lloyd Locke testified to a number of times when Short
told him to “get strapped”--get a firearm--and accompany him on a
drug-related errand. The Government also presented wire tap
recordings in which Short ordered Locke and Kevin Brown to arm
themselves and handle various problems for the organization. This
evidence is clearly sufficient to support Short’s conviction on
Count 5. See 18 U.S.C. § 2 (“Whoever commits an offense . . . or
aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.”).
Next, Short challenges the sufficiency of the evidence
supporting his conviction on Count 27 for money laundering. In
support of this count, the Government presented evidence that Short
had given his wife, Kim Short, $25,000 in cash and instructed her
to place the money in a safety deposit box under the name of one of
her relatives. Based on this evidence, the Government charged
Short with money laundering under two provisions of a federal money
laundering statute: 18 U.S.C. § 1956(a)(1)(A)(i), which prohibits
financial transactions “with the intent to promote the carrying on
of specified, unlawful activity,” and 18 U.S.C. § 1956(a)(1)(B)(i),
which prohibits financial transactions designed “to conceal or
disguise the nature, the location, the source, the ownership, or
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the control of the proceeds of specified, unlawful activity.” The
district court instructed the jury that it could find Short guilty
if it found that his actions satisfied the elements of either the
“intent to promote” provision or the “conceal and disguise”
provision. After reviewing the record, we conclude that the
evidence is sufficient to support conviction under the “conceal or
disguise” provision. The Government provided evidence sufficient
for the jury to infer that the $25,000 cash was profit from drug
dealing that Short was attempting to conceal or disguise by having
his wife place the money in a safety deposit box under the name of
one of her relatives. This inference satisfies all elements of the
crime and is therefore sufficient to uphold the money laundering
conviction. We therefore reject Short’s sufficiency argument on
Count 27.
G.
Short’s remaining arguments are as follows: his conviction
must be set aside because the Government offered leniency to the
coconspirators who testified against him; the district court erred
by denying his Motion to List the Individuals the Government Will
Allege Were Organized, Supervised, or Managed by Defendant Short in
a Continuing Criminal Enterprise; and the district court erred by
denying his Motion for a New Trial based on newly discovered
evidence. We have considered these arguments and conclude that
they are without merit.
CONCLUSION
We agree with Short and the Government that Count 1 should be
vacated. With that one exception, the judgment of the district
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court is affirmed. Although we vacate Count 1, because Short’s
sentences on Counts 1, 2, 3, and 4 are to be served concurrently,
it is unnecessary for the district court to resentence Short.
AFFIRMED in part, VACATED in part.
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