REVISED, APRIL 3, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-60265
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DERWIN RENWICK MCWAINE, also known as Skibow,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Northern
District of Mississippi
___________________________________________________
January 12, 2001
Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.1
W. EUGENE DAVIS, Circuit Judge:
McWaine challenged his convictions and sentence on multiple
drug trafficking, firearms, and money laundering offenses. We
affirm his convictions, but remand for resentencing.
I.
Derwin McWaine was indicted in February of 1998 and charged
with conspiracy to distribute crack cocaine, possession of
marijuana with intent to distribute, possession of firearms as a
prior convicted felon, possession of a firearm with an obliterated
serial number, and nine counts of money laundering. The
1
Judge of the U.S. Court of International Trade, sitting by
designation.
government’s evidence at trial against McWaine was overwhelming.
Government agents testified that they conducted surveillance of
McWaine’s activities for several years revealing criminal drug
activity. The government produced a videotape of McWaine wiring
substantial sums of money by Western Union using fictitious names.
Finally, at least four co-conspirators testified that they were
involved in the sale of drugs with McWaine.
McWaine was convicted on all counts and was sentenced to life
in prison for the cocaine conspiracy, twenty years each on eight of
the nine money laundering charges, ten years for possessing a
firearm as a felon, five years for the possession of marijuana, and
five years for possession of the firearm with an obliterated serial
number. The sentences on the various counts were ordered to run
concurrently. McWaine now appeals his convictions and sentence.
II.
Appellant first argues that numerous instances of
prosecutorial misconduct at trial require that he be granted a new
trial. Among the alleged wrongdoings are the following: the
prosecutor was present at the search, which he revealed during
cross-examination (R. 4-490-91); the prosecutor asked McWaine on
cross-examination whether it would surprise him “if I told you that
Ms. Brown [McWaine’s girlfriend] told me that she’s addicted to
crack cocaine, that she used it, got it from you, and sold it for
you”, while no other evidence was introduced of her statement (R.
4-509); in going through a list of names of persons to whom
witnesses testified that McWaine sold drugs, the prosecutor listed
2
four names not presented to the jury elsewhere (R. 4-501); the
prosecutor supplied details about the guns that were not otherwise
introduced into evidence (for example, during closing arguments
referring to one of the guns as “silver-plated”, when this
description was not mentioned at any other time during the trial
(R. 5-590)); the prosecutor referred to threats McWaine had made
against IRS Criminal Investigation Division Agent Bostick with no
other evidence introduced on this point (R. 4-506).
Even if all of the comments made by the prosecutor were
improper, we must first look to whether McWaine objected to the
prosecutor’s remarks in order to determine the proper standard of
review. With the exception of the prosecutor’s question regarding
defendant’s alleged threats against Agent Bostick, defense counsel
made no objection at trial to any of the comments listed above. In
order to warrant a new trial for comments to which McWaine failed
to enter an objection, appellant must show “plain error”. United
States v. Andrews, 22 F. 3d 1328, 1341 (5th Cir. 1994).2 This
requires McWaine to show: “1) an error; 2) that is clear or plain;
3) that affects the defendant’s substantial rights; and 4)
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Meshack, 225 F. 3d 556,
575 (5th Cir. 2000). “Plain error may be recognized only if the
error is so obvious that our failure to notice it would seriously
2
We reject defendant’s argument that the district court’s
adverse ruling on the threat objection made it futile to object to
the other alleged trial errors; the other errors are not
sufficiently similar to establish futility.
3
affect the fairness, integrity, or public reputation of the
judicial proceedings and result in a miscarriage of justice.”
Andrews, 22 F. 3d at 1341; see also United States v. Olano, 507
U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993). The misconduct must
cast serious doubt upon the correctness of the jury verdict.
United States v. Carter, 953 F. 2d 1449, 1457 (5th Cir. 1992).
Finally, the “decision to correct the forfeited error [lies] within
the sound discretion of the court of appeals...” Olano, 507 U.S.
at 732, 113 S.Ct. at 1776.
In assessing error based on prosecutorial misconduct we
consider the following factors: “1) the magnitude of the
statement’s prejudice, 2) the effect of any cautionary instructions
given, and 3) the strength of the evidence of defendant’s guilt.”
United States v. Tomblin, 46 F. 3d 1369, 1389 (5th Cir. 1995).
It is not clear that the trial court’s failure to respond to
the prosecutor’s comments was obviously erroneous. Even if it
were, we conclude that any such “error” did not affect McWaine’s
substantial rights. As detailed in Section I of this opinion, the
government presented overwhelming proof of McWaine’s guilt. The
trial judge also carefully instructed the jury at least twice that
a lawyer’s statements are not evidence and to consider only the
evidence introduced. No new trial is warranted for these
statements by the prosecutor.
McWaine also argues that the district court erred in allowing
the testimony of Agent Sullivan stating that McWaine was in
“possession” of guns when police entered his trailer. R. 3-229.
4
McWaine argues that it would have been permissible for Sullivan to
testify regarding McWaine’s supposed dominion and control over the
guns and to explain what facts he observed that led him to this
conclusion; however, appellant contends that allowing testimony on
“possession”, a legal conclusion, was plain error. Again, McWaine
failed to object to this testimony. He therefore faces the same
problem as above - demonstrating that the error probably altered
the outcome of the trial. For the same reasons noted above, it is
clear to us that this testimony would not have changed the outcome
of this trial given the overwhelming evidence presented against
McWaine. Even if the district court did err in allowing this
testimony - which is doubtful - appellant is not entitled to a new
trial because the “error” did not affect the outcome of the trial.
Defense counsel did object at trial to the prosecutor’s
question regarding a threat defendant allegedly made against Agent
Bostick. This argument is based on one question by the prosecutor
during cross-examination of McWaine, asking “you have threatened
the case agent in this case, Harry Bostick, haven’t you?” R. 4-
506. Defendant did not answer the question directly, however,
stating only “well, that’s what y’all say.” R. 4-506. Defense
counsel then objected to the question for lack of foundation; this
objection was overruled by the district court. The prosecutor did
not pursue a further answer after the objection was overruled nor
did he mention the alleged threat again during the trial.
We review the district judge’s denial of a motion for new
trial for abuse of discretion. Whitehead v. Food Max of Miss., 163
5
F. 3d 265, 270 n.2 (1998). We are unable to conclude from the
brief reference to the threat and McWaine’s non-denial of its
occurrence that the prosecutor had no good faith belief in a
factual basis for the question. The district court did not abuse
its discretion in denying McWaine’s motion for new trial.
III.
Next, appellant argues that the district court erred in
refusing to suppress evidence obtained in a search of his
residence. McWaine argues that in seeking the search warrant,
Agent Sullivan relied on an untested supposed co-conspirator in the
drug trade who told him that marijuana was present in defendant’s
trailer. McWaine argues that no probable cause can exist without
some confirmation of such an informant.
For years, the Fourth Amendment analysis of probable cause
based on the tips of anonymous informants was based on the two-
pronged analysis under Aguilar and Spinelli: 1) an affiant was
required to establish to the satisfaction of a neutral and detached
magistrate that his confidential informant was either a credible
person or that his information was reliable, and 2) that the
informant’s basis of knowledge was firsthand. The reliability
prong could be satisfied by establishing the informant’s track
record for credibility or by corroborating the informant’s tip in
order to show that his information was reliable.3 The Supreme
Court has since abandoned this two-pronged analysis in favor of a
3
See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964);
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969).
6
“totality of the circumstances” test. The requirements above are
now merely factors to be used in determining whether there was
probable cause for a search. Illinois v. Gates, 462 U.S. 213
(1983).
In our case, Lily Brown, the informant, came to police and
made a statement against her penal interest that she had been
involved in the drug trade with McWaine. R. 2-100. This tip
confirmed what police knew from surveillance videos and other
investigation of McWaine during the previous three years. R. 3-
201. It is clear that the district court did not err in refusing
to suppress the physical evidence seized in the search of
defendant’s residence, as there was probable cause for the warrant
to issue.4
IV.
Finally, McWaine argues that this Circuit’s recent case-law
interpreting Apprendi5 requires that his sentence be vacated
because drug quantity was not specified in his indictment or
submitted to the jury for determination beyond a reasonable doubt.
McWaine contests only the sentence he received on count 1 of the
indictment - life imprisonment for cocaine conspiracy. The
indictment did not specify drug quantity on this count, but merely
4
We agree with the Third Circuit that the Supreme Court’s
decision in Florida v. J.L., 120 S.Ct. 1375 (2000), should be read
narrowly to allow an anonymous tip to support probable cause where
officers can assess the informant’s credibility one-on-one and have
an opportunity to find the informant should the tip not pan out.
See United States v. Valentine, 232 F. 3d 350, 355 (3rd Cir. 2000).
5
Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).
7
stated that McWaine conspired to distribute a “detectable amount”
of cocaine. McWaine was sentenced to life imprisonment on count 1
under 21 U.S.C. § 841(b)(1)(A) which authorizes a life sentence
where a defendant possesses five kilograms or more “of a mixture or
substance containing a detectable amount of...cocaine.” McWaine
argues that since he was subjected to increased penalties based on
drug quantity, that quantity should have been alleged in the
indictment and submitted to the jury for determination beyond a
reasonable doubt. This position is supported by our cases
interpreting Apprendi.
In United States v. Doggett, 230 F. 3d 160 (5th Cir. 2000),
this Court held that the statute under which McWaine was convicted
[C]learly calls for a factual determination regarding the
quantity of the controlled substance, and that factual
determination significantly increases the maximum penalty
from 20 years under § 841(b)(1)(C) to life imprisonment
under § 841(b)(1)(A). Therefore, we hold that if the
government seeks enhanced penalties based on the amount
of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the
quantity must be stated in the indictment and submitted
to the jury for a finding of proof beyond a reasonable
doubt.
Id. at 164-65.
We recently addressed the same issue in United States v.
Meshack, 225 F. 3d 556, 577-58 (5th Cir. 2000), where Meshack was
charged with both conspiracy to possess crack cocaine and crack
possession. Drug quantity was neither alleged in the indictment
nor submitted to the jury for determination. Meshack received a
life sentence on each count, in excess of the maximum statutory
sentence he could have received under 21 U.S.C. § 841(b)(1)(C),
8
which controls where drug quantity is not at issue. We held that
[P]lain error analysis...does not allow us to uphold
Meshack’s life sentences because those sentences are
longer, at least in theory, than his unchallenged
concurrent sentence of 360 months for a different crack
cocaine possession count. Thus, in light of the
government’s concession that Apprendi applies, we must
vacate Meshack’s two life sentences and remand to the
district court for appropriate proceedings.
Id. at 578.
Here, McWaine received a life sentence for the cocaine
offense. His next highest sentence is twenty years. Since his
sentences are to run concurrently, the life sentence will affect
the time he must serve in prison and we cannot rely on the plain
error analysis to affirm this sentence. Id. at 577-78 (5th Cir.
2000). As in Meshack, the failure of the government to allege drug
quantity in the indictment and the court’s failure to submit this
issue to the jury for determination requires us to vacate McWaine’s
sentence and remand to the district court for resentencing pursuant
to 21 U.S.C. § 841(b)(1)(C).
V.
For the above reasons, we AFFIRM McWaine’s convictions, but
VACATE his sentence and REMAND to the district court for further
proceedings consistent with this opinion.
9