UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-10932
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JULIE JOHNSON; RAYMOND BULLARD, also known as Frosty;
and ROY LEE BRADFORD,
Defendants-Appellants.
Appeals from the United States District Court
For the Northern District of Texas
(4:98-CR-217-13-Y)
February 22, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT,* District
Judge.
PER CURIAM:**
Defendants-Appellants Julie Johnson, Raymond Bullard, and Roy
Lee Bradford (collectively “the appellants”) appeal their
convictions and sentences arising from various drug-related
*
District Judge of the Southern District of Texas, sitting by
designation.
**
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opinion should not be published and is not precedent except under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.
violations. Because the district court did not commit reversible
error, we affirm.
I. BACKGROUND
On December 22, 1998, a grand jury returned a 42-count
indictment against the appellants and several other individuals.
The indictment charged the appellants as members of a wide-ranging
conspiracy to distribute quantities of crack, powder cocaine, and
heroin.
Ultimately, the three appellants were tried together and were
convicted and sentenced on various counts. To establish their
guilt, the government submitted, among other things, tapes of
telephone conversations between the appellants and other co-
conspirators, suggesting the sale and distribution of controlled
substances. In addition, the government’s case included evidence
seized by the police from a traffic stop of Bullard’s vehicle.
That evidence consisted of several grams of crack, cocaine, and
heroin, which were discovered behind the vehicle’s dashboard by a
canine unit.1
Both Bradford and Bullard were found guilty of conspiracy to
possess with intent to distribute, possession with intent to
distribute, and use of a communication facility to facilitate the
commission of the conspiracy. As for Johnson, the jury was unable
1
Bullard filed a motion to suppress, which the district court
denied.
2
to reach a verdict with respect to the conspiracy count, but found
her guilty of two counts of use of a communication facility to
facilitate the commission of the conspiracy.1
This appeal followed.
II. DISCUSSION
The individual appellants each raise various points of error.
We review them in turn.
A. Bullard
Bullard raises four issues on appeal. First, Bullard
maintains that the district court erred in admitting evidence that
he contends was obtained in violation of the Fourth Amendment.
Second, Bullard challenges the admission of Carl Roberts’
testimony, which he believes was prejudicial and inflammatory in
contravention of Federal Rule of Evidence 404(b).2 Third, he
challenges the sufficiency of the evidence to sustain his
conspiracy conviction. Finally, he insists that the district court
erred when it refused to grant a downward departure under the
sentencing guidelines.
1. The Stop And Seizure Did Not Violate The Fourth Amendment
With respect to his first point of error, Bullard charges that
1
The indictment did not charge Johnson with possession with
intent to distribute.
2
Bradford raises this same issue on appeal.
3
the stop and search of his vehicle by Officer Richard Van Houten,
Jr., amounted to a Fourth Amendment violation. He makes three
arguments in support of such a conclusion. Initially, Bullard
maintains that the stop was pretextual and that Officer Van
Houten’s motives transformed the stop into an unreasonable seizure
under the Fourth Amendment. Next, he argues that the duration of
his detention was unreasonable under the Fourth Amendment. Lastly,
Bullard attempts another pretext argument, insisting that the
search was an inventory search, which cannot be conducted under a
heightened level of pretext as was allegedly the case here.
In situations involving a district court’s ruling on a motion
to suppress, we review questions of law de novo and factual
findings for clear error. United States v. Dortch, 199 F.3d 193,
197 (5th Cir. 1999). Moreover, we view the evidence in the light
most favorable to the party that prevailed in the district court.
Id.
Under the Fourth Amendment, people have the right to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures. The temporary detention of an individual
during an automobile stop constitutes a seizure within the meaning
of the Fourth Amendment. Whren v. United States, 116 S. Ct. 1769,
1772 (1996). As a result, an automobile stop is subject to the
constitutional imperative that it not be unreasonable under the
circumstances. Id.
4
Generally, “the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic
violation has occurred.” Id. Here, Bullard concedes that Officer
Van Houten had probable cause to believe that he had incurred a
traffic violation due to his cracked windshield. See Tex. Trans.
Code Ann. § 547.613(a)(1) (“[A] person commits an offense that is
a misdemeanor if the person operates a motor vehicle that has an
object or material that is placed on or attached to the windshield
. . . that obstructs or reduces the operator’s clear view . . .
.”). Nevertheless, he believes that the traffic violation was
merely a pretext and that Officer Van Houten only wanted to search
for drugs. In Whren, however, the Supreme Court held that the
constitutional reasonableness of traffic stops did not depend on
the actual motivations of the individual officers involved. Whren,
116 S. Ct. at 1774. That holding squarely forecloses the first
basis of Bullard’s argument that the stop and search violated the
Fourth Amendment.
Likewise, Bullard’s second basis for a Fourth Amendment
violation is unavailing. He argues that the duration of his
detention was unreasonable under the Fourth Amendment, but the
facts do not support his contention. Upon being stopped, Officer
Van Houten sought Bullard’s driver’s license and insurance
information. Within no more than five minutes of that stop and
before Officer Van Houten completed a citation for the traffic
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violation, he obtained verbal consent from Bullard to search the
vehicle. About five to ten minutes later, a canine unit arrived
and examined his vehicle, finding several grams of various
controlled substances.
In two recent cases, we addressed the issue of when the
duration of an automobile stop transformed it into an unreasonable
detention in violation of the Fourth Amendment. See United States
v. Jones, 234 F.3d 234 (5th Cir. 2000); Dortch, 199 F.3d 193. In
both of those cases, the officers held the defendants for a
prolonged period of time, including several minutes after the
purpose for the stop, which had initially justified the
interference, had been fulfilled. See Jones, 234 F.3d at 241;
Dortch, 199 F.3d at 198. Here, the purpose of the stop had not
been completed, as Officer Van Houten had yet to mete out the
citation, when Bullard gave consent to search his vehicle. Thus,
the instant case is outside the parameters of our precedent
affording protection against unreasonable detentions that violate
the Fourth Amendment.
Bullard’s third basis for finding a Fourth Amendment violation
merits even less attention. That argument essentially posits that
Officer Van Houten’s search of the vehicle was an inventory search
and that such searches cannot be done under a pretext. The Supreme
Court has observed that “an inventory search must not be a ruse for
a general rummaging in order to discover incriminating evidence.”
6
Florida v. Wells, 110 S. Ct. 1632, 1635 (1990). “An inventory
search is the search of property lawfully seized and detained, in
order to ensure that it is harmless, to secure valuable items (such
as might be kept in a towed car), and to protect against false
claims or loss or damage.” Whren, 116 S. Ct. at 1773 n.1. The
instant case does not involve an inventory search. Consequently,
any argument that an inventory search cannot be accomplished under
a pretext has no bearing on this case.
2. The Admission Of Roberts’ Testimony Was Not An Abuse Of
Discretion
Bullard’s and Bradford’s second point of error is that the
district court erred in admitting Roberts’ testimony at trial.
Roberts supplied drugs to several of the alleged conspirators and
testified about drug transactions involving Bullard from 1994
through 1996 and Bradford from 1992 to 1997. Both Bullard and
Bradford contend that because much of Roberts’ testimony concerned
activities that predated many of the events in the present case,
that testimony was extrinsic to the charges in the indictment. As
a result, they charge that his testimony should not have been
admitted under Federal Rule of Evidence 404(b).
We review the district court’s decision to admit Roberts’
testimony for an abuse of discretion. United States v. Garcia
Abrego, 141 F.3d 142 (5th Cir. 1998). Rule 404(b) provides in
pertinent part that “[e]vidence of others crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
7
show action in conformity therewith.” Such evidence, however, may
be allowed for a litany of other reasons, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Fed. R. 404(b). Moreover,
“[u]ncharged offenses arising from the same transaction or series
of transactions charged in the indictment . . . are not barred by
the rule.” United States v. Krout, 66 F.3d 1420, 1431 (5th Cir.
1995). “More specifically, evidence of acts committed pursuant to
a conspiracy and offered to prove the defendant’s membership or
participation in the conspiracy are not extrinsic evidence.” Id.
Thus, to avoid the strictures of Rule 404(b), the government must
suggest a “logical hypothesis of the relevance of the evidence for
a purpose other than to demonstrate propensity to act in a
particular manner.” Id.
We believe the government has done that. The government
maintains that Roberts’ testimony alluded to acts that were not
extrinsic but that were part and parcel of the charged conspiracy.
Roberts purchased drugs from Bradford and sold them to Bullard,
helping form the foundation of the conspiracy charged in the
instant case. Roberts’ testimony revealed how the conspiracy
developed and how he helped establish several of the conspirators’
relationships. Accordingly, we find no abuse of discretion by the
district court.
3. There Was Sufficient Evidence To Convict Bullard
8
Although Bullard argues that the government failed to produce
sufficient evidence that he was involved in a conspiracy, the focus
of his ambiguous brief seems to be that there was a variance
between the allegations in the indictment and the evidence
supporting the conspiracy count. Bullard asserts that the
indictment alleged a singular conspiracy but that the evidence
proved multiple conspiracies. According to Bullard, that variance
requires reversal.
We review a claim of variance for harmless error and will
reverse only if a defendant shows that his substantial rights were
prejudiced. United States v. Lokey, 945 F.2d 825, 832 & n.1 (5th
Cir. 1991). “‘With variance, our concern is whether the
indictment, assuming it has otherwise alleged the elements of the
offense, has so informed a defendant that he can prepare his
defense without surprise and has protected him against a second
prosecution for the same offenses.’” Id. at 832 (quoting United
States v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983)). A material
variance may occur when the variation between proof and indictment
does not effectively modify an essential element of the offense
charged. Id. To require reversal based on variance between the
proof and indictment, Bullard must prove: 1) that the evidence at
trial actually established more than one conspiracy, and 2) that
the variance affected a substantial right. United States v.
Franklin, 148 F.3d 451, 459 (5th Cir. 1998).
9
Having reviewed the record, we see no material variance that
affected a substantial right. Although Bullard contends that,
besides Bradford, he did not interact with any other alleged
conspirator, “‘[t]here is no requirement that every member must
participate in every transaction to find a single conspiracy.’”
United States v. Morris, 46 F.3d 410, 416 (5th Cir. 1995) (quoting
United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987)).
A single conspiracy may exist where a key man is involved in and
directs illegal activities, while various combinations of other
participants exert individual efforts toward a common goal. Id.
The evidence revealed that Bradford played a central role in
distributing drugs to the alleged conspirators, including Bullard,
who then resold those drugs. Those alleged conspirators all had
the common goal of deriving “personal gain from the illicit
business of buying and selling cocaine” and other drugs. Id. at
415. Finally, even if what the government proved was not actually
a single conspiracy, the indictment sufficiently apprised Bullard
to afford him the opportunity to present a defense, and no
prejudice resulted.
4. There Is No Jurisdiction Over Bullard’s Appeal Of His
Sentence
Bullard’s final point of error concerns the district court’s
refusal to grant a downward departure under the sentencing
guidelines. Statutorily, we have jurisdiction to review a
defendant’s challenge of his sentence in any of four situations: 1)
10
if the sentence was imposed in violation of law; 2) if the sentence
was imposed as a result of an incorrect application of the
guidelines; 3) if the sentence was due to an upward departure; and
4) if the sentence was imposed for an offense not covered by the
guidelines and is plainly unreasonable. 18 U.S.C. § 3742(a);
United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).
Furthermore, “appellate review is available for claims that the
district court erroneously believed that it lacked authority to
depart from the sentencing guideline range.” Id. at 478. Bullard
makes no such claims. He bases his appeal for a downward departure
on his age and ill health. That does not suffice to confer
jurisdiction, and this issue is dismissed for lack of jurisdiction.
B. Bradford
Besides the identical issue concerning Roberts’ testimony that
we found unavailing in Bullard’s appeal, Bradford contends that the
district court should have only held him accountable for less than
250 milligrams of cocaine base instead of the 79,400.97 kilograms
of marijuana equivalency for which he was sentenced. He presents
two arguments for this proposition: 1) there was no direct evidence
tying him to any of the drugs, unlike with his co-defendants who
were found in possession of large quantities; and 2) the witnesses
who testified that he possessed large quantities of drugs were
unreliable.
11
We review the district court’s interpretation or application
of the guidelines de novo and its factual findings for clear error.
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). “As
long as a factual finding is plausible in light of the record as a
whole, it is not clearly erroneous.” Id.
Upon reviewing Bradford’s arguments and the record, we find no
clear error on the part of the district court. Bradford was
convicted of several counts of possessing cocaine, cocaine base,
and heroin. Those convictions could not have been predicated
solely on the trace drugs that were found in Bradford’s garbage and
that totaled 250 milligrams. The jury must have credited some of
the so-called unreliable testimony against Bradford to find him
guilty of those possession counts. Hence, the district court did
not clearly err in considering those witnesses’ testimony. Indeed,
a sentencing court may rely on the debriefings of co-defendants in
assessing a defendant’s sentence. See United States v. Posada-
Rios, 158 F.3d 832, 879 n.24 (5th Cir. 1998). Furthermore, there
was corroborating evidence, in the form of taped telephone
conversations, that implicated Bradford in the drug transactions.
Consequently, the district court did not clearly err when it
attributed the 79,400.97 kilograms of marijuana equivalency to
Bradford when it computed his sentence.
C. Johnson
12
Johnson raises two issues on appeal. Her first issue charges
that there was insufficient evidence to convict her as to the two
counts for use of a communication facility, i.e., a telephone, to
facilitate the commission of the conspiracy to distribute a
controlled substance. Second, she maintains that the district
court should have held her responsible only for 31 grams of cocaine
base, rather than the 226 grams for which she was sentenced.
1. There Was Sufficient Evidence To Convict Johnson
With respect to the first point of error, Johnson proffers
three arguments. First, she maintains that because the jury failed
to convict her on the conspiracy charge, there could not have been
sufficient evidence to convict her of the using a telephone in
furtherance of a drug conspiracy counts. Similarly, she insists
that the jury’s failure to convict her on the conspiracy count
establishes the jury’s disbelief of some of the government
witnesses whose testimony supported the use of a telephone in
furtherance of a drug conspiracy counts. Finally, Johnson
independently attacks the credibility of those witnesses.
In reviewing challenges to the sufficiency of the evidence, we
view the evidence presented and the reasonable inferences drawn
from the evidence in the light most favorable to the verdict.
Glasser v. United States, 62 S. Ct. 457, 469 (1942). We must
overturn a jury verdict if no rational trier of fact could have
found the defendant’s guilt of the offense charged beyond a
13
reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789
(1979).
In United States v. Powell, 105 S. Ct. 471 (1984), the Supreme
Court confronted a situation similar to the present case. At
trial, a jury acquitted the defendant of conspiracy to possess
cocaine and possession of cocaine, but found her guilty of using a
telephone to facilitate those offenses. Id. at 474. Because of
the government’s inability to invoke review, the general reluctance
to inquire into the workings of the jury, and the possible exercise
of lenity, the Supreme Court held that inconsistent verdicts are
generally not reviewable. Id. at 479. Accordingly, Johnson’s
inconsistent verdict argument is without merit.
Furthermore, we find unavailing Johnson’s arguments pertaining
to the credibility of the witnesses who testified against her.
Although those witnesses were also the basis for the government’s
drug conspiracy charge, to which the jury could not return a
verdict, “a not guilty verdict on one count does not establish any
facts favorable to the defense for the purpose of determining the
sufficiency of the evidence on the counts of conviction . . . .”
United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994).
Considering that the jury in the instant case did not even return
a not guilty verdict, we believe Johnson’s position to be even less
meritorious.
As for Johnson’s independent attack on the credibility of the
14
government’s witnesses, it is inadequate to support reversal. “[A]
conviction may be sustained solely on the basis of the testimony of
a coconspirator–-even a coconspirator who testifies on the basis of
a plea bargain or promise of leniency–-so long as that testimony is
not incredible as a matter of law–-that is, so long as it does not
defy the laws of nature or relate to matters that the witness could
not have observed.” Garcia Abrego, 141 F.3d at 155-56. Johnson
has not demonstrated that any of the testimony defied the laws of
nature or related to matters that the witnesses could not have
observed.
2. The District Court Did Not Clearly Err In Attributing 226
Grams Of Cocaine Base To Johnson
Johnson’s second point of error charges that the district
court should only have held her responsible for 31 grams of cocaine
base, rather than the 226 grams for which she was sentenced. Her
argument is essentially a rehash of some of the arguments that she
offered with respect to her sufficiency of the evidence claim.
Specifically, she maintains that the jury’s failure to convict her
on the conspiracy count establishes the jury’s disbelief of some of
the government witnesses whose testimony established the quantity
of drugs assessed against her. As with her sufficiency of the
evidence claim, Johnson’s second point of error is unavailing for
substantially the same reasons. In addition, she has not
demonstrated that the district court committed any clear error.
15
III. CONCLUSION
For the foregoing reasons, the appellants’ judgments of
conviction and Bradford’s and Johnson’s sentences are affirmed.
With respect to Bullard’s appeal of his sentence, that is dismissed
for lack of jurisdiction.
16