UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41007
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
RALPH NATHANIEL THOMPSON; TIMOTHY GARDELL WOOTEN;
GERALD PHILLIP WOOTEN
Defendants-Appellants,
Appeals from the United States District Court for the
Eastern District of Texas
(4:98-CR-64)
April 9, 2001
Before GOODWIN,* GARWOOD and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:**
Defendant-Appellants Ralph Thompson, Timothy Wooten and
Gerald Wooten were convicted on a variety of conspiracy and
substantive offenses arising out of a multi-state cocaine
distribution and money laundering enterprise that engaged in acts
of violence, including murder, robbery, and obstruction of justice.
*
Circuit Judge of the Ninth Circuit, 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opinion should not be published and is not precedent except under the limited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.
Appellants now assert multiple errors regarding sufficiency of the
evidence, the verdict form, the jury charge, denials of motions for
severance, the indictment, the constitutionality of 18 U.S.C.
922(g), a motion in limine regarding the closing argument, and
sentencing.
After carefully reviewing the arguments and the record,
the court finds that there is no merit to the appellants’
complaints. We affirm.
BACKGROUND
On August 12, 1998, the grand jury for the Eastern
District of Texas named, among others, all three Defendant-
Appellants in an eighteen count indictment. On October 15, 1998,
Ralph Thompson and Gerald Wooten filed motions to sever. The
district court denied severance on April 8, 1999. A second
superseding 18 count indictment1 was returned on March 11, 1999,
1
The counts in the indictment are follows: (1) RICO, 18 U.S.C. §
1962(c); (2) RICO conspiracy, 18 U.S.C. § 1962(d); (3) conspiracy to distribute
cocaine, 21 U.S.C. § 846; (4) conspiracy to commit murder in aid of racketeering
activity, 18 U.S.C. § 1959(a)(5); (5) interstate travel for murder for hire-
victim Edgar Reece, Jr., 18 U.S.C. § 1958, and aiding and abetting, 18 U.S.C.
§ 2; (6) interstate travel for murder for hire-victim Fasha Norman, 18 U.S.C. §
1958, and aiding and abetting, 18 U.S.C. § 2; (7) interstate travel for murder
for hire-victim Harvey Lee Gabriel, 18 U.S.C. § 1958 and aiding and abetting, 18
U.S.C. § 2; (8) interstate travel for murder for hire-victim Keno Fletcher, 18
U.S.C. § 1958, and aiding and abetting, 18 U.S.C. § 2; (9) violent crime (murder)
in aid of racketeering activity-victim Edgar Reece, Jr., 18 U.S.C. § 1959(a)(1);
aiding and abetting, 18 U.S.C. § 2; (10) violent crime (murder) in aid of
racketeering activity-victim Fasha Norman, 18 U.S.C. § 1959(a)(1), aiding and
abetting, 18 U.S.C. § 2; (11) use or carrying a firearm during a crime of
violence (murder), 18 U.S.C. § 924(c)(1), aiding and abetting, 18 U.S.C. § 2;
(12) felony in possession of a firearm, 18 U.S.C. § 922(g) aiding and abetting,
18 U.S.C. § 2; (13) violent crime (assault with a dangerous weapon/assault
causing bodily injury) in aid of racketeering activity-victim Harvey Lee
2
again naming all three Defendant-Appellants. All three Appellants
were tried by jury in a single proceeding in the Eastern District
of Texas, Sherman Division. On May 21, 1999, all were convicted of
various offenses related to their participation in the cocaine
distribution and money laundering enterprise. Ralph Thompson was
sentenced to life in prison. Timothy Wooten was sentenced to life
in prison plus thirty-five years. Gerald Wooten was sentenced to
360 months on count three and 240 months on count seventeen, to be
served concurrently. All three now appeal to this court, assigning
various errors and claiming insufficiency of the evidence.
The Government alleged that the appellants were, to
varying degrees, involved in “a multi-state cocaine distribution
and money laundering enterprise . . . .” The enterprise shipped
cocaine from California to Texas, Colorado, Kansas and Alabama
using commercial carriers and drug couriers. The proceeds of the
sales were funneled back to California using the mails, couriers
and Western Union. The enterprise used violence to maintain
discipline and silence.
Gabriel, 18 U.S.C. § 1959(a)(3), aiding and abetting, 18 U.S.C. § 2; (14) violent
crime (assault with a dangerous weapon) in aid of racketeering activity- victim
Keno Fletcher, 18 U.S.C. § 1959(a)(3), aiding and abetting, 18 U.S.C. § 2; (15)
using or carrying a silenced firearm during a crime of violence, 18 U.S.C. §
924(c)(1), aiding and abetting, 18 U.S.C. § 2; (16) Possession of an unregistered
firearm (silencer), 18 U.S.C. § 5861(d); aiding and abetting, 18 U.S.C. § 2;
(17) money laundering conspiracy, 18 U.S.C. § 1956(h); (18) obstruction of
justice, 18 U.S.C. § 1503.
3
Mark Barney was the leader of the enterprise. Both his
brother, Vincent Barney, and girlfriend, Kelley Sorbellini, were
involved. All three were named in at least one count of the second
superseding indictment. All made deals with the Government and
testified at trial.
Ralph Thompson started out as a drug courier but his role
eventually expanded. He became Mark Barney’s right-hand man and
served as liaison between Barney and other major distributors.
Thompson, who had an ability to transport cocaine without arousing
suspicion, made many flights transporting drugs. He also
participated in the channeling of proceeds back to California. He
was present when the Timothy Wooten Texas robbery and murder scheme
was first discussed. Thompson was convicted on counts one, two,
three and seventeen.
Timothy Wooten distributed large amounts of the
enterprise’s cocaine in Texas and participated in the money
laundering operation that returned the proceeds to California. He
was also involved in acts of violence. In November 1994, Tim
Wooten discussed with Mike Whittaker, another enterprise dealer, a
proposal to lure four of Whittaker’s customers from Oklahoma to
Paris, Texas, to purchase cocaine. The idea was for the four to be
robbed and murdered so that Tim Wooten could repay a drug debt he
owed to Mark Barney. The plan called for two of the Oklahomans to
be shot in a hotel room while the other two would be shot at the
4
rural site of the supposed drug deal. A silencer would be used for
the hotel room murders. The two Oklahomans at the rural site were
murdered by Wilbert Watson. The other two escaped death. In
February 1995, Mark Barney, in Ralph Thompson’s presence, stated
that something had to be done with Frankie Dunham, an employee of
the enterprise who was cooperating with police. More meetings
between Mark Barney and Tim Wooten followed. Tim Wooten murdered
Dunham in May 1995, one week before she was to testify against Mark
Barney in a state court proceeding. The jury found Tim Wooten
guilty of counts one through seventeen.
Gerald Wooten, Tim Wooten’s brother, was not charged
under RICO, but was involved in a few incidents of delivering
packages of cocaine and wiring of drug money back to California.
The jury found Gerald Wooten guilty on counts three and seventeen.
DISCUSSION
A. Motions for Severance
Both Thompson and Gerald Wooten contend that the district
court erred by failing to grant their motions for severance,
thereby denying their rights to due process as guaranteed by the
Sixth Amendment. Thompson argues that he was prejudiced because a
significant part of the trial testimony dealt with the murders and
attempted murders of the four Oklahomans. Thompson contends that
he had no involvement, in these murders or the events surrounding
them, beyond the inference that he delivered drugs to the leader of
5
the conspiracy Mark Barney. In addition, he complains that he was
prejudiced by “graphic depictions and courtroom theatrics,”
including testimony from dentists identifying decomposed bodies and
violent and gory photographs. The testimony was presented,
Thompson argues, in such a manner as to shock the conscience. For
example, while one witness testified about finding the bodies of
murder victims, members of the victims’ families were comforted and
assisted out of the courtroom by Assistant United States Attorneys.
For these reasons, Thompson requests that his conviction be vacated
and that the matter be remanded for a new trial.
Gerald Wooten likewise argues that he was prejudiced to
such an extent that he received an unfair trial. Similar to
Thompson, he complains about the amount and nature of the evidence
admitted as proof of the Paris, Texas murders. He also points to
the fact that the Government attempted to link him to the murders
and acts of violence by referencing telephone calls made to him on
the night of the murders. These calls, he argues, left the jury
with the impression that he had some role, albeit minor, in those
murders. He also argues that his brother’s fugitive status was
prejudicial. Further, he submits that the judge did not provide
adequate protection through the jury instructions because he did
not clarify the fact that Gerald Wooten was not charged in the RICO
count and must be distinguished from his co-defendants. For
example, he complains that at one point the court incorrectly
6
advised that the indictment contained seventeen counts and that
Ralph Nathaniel Thompson and Timothy Gerald Wooten, as opposed to
Timothy Gardell Wooten, only are charged in count one. Finally, he
argues that the court failed adequately to distinguish and separate
the counts charged against him.
Federal Rule of Criminal Procedure 14 provides that a
district court may order severance of defendants if it appears that
a defendant is prejudiced by joinder. Fed. R. Crim. Pro. Rule 14.
A district court’s decision to deny a Rule 14 motion to sever is
reviewed for abuse of discretion. United States v. Pasado-Rios,
158 F.3d 832, 863 (5th Cir. 1998). The general rule is that
“‘persons indicted together should be tried together, especially in
conspiracy cases, and . . . the mere presence of a spillover effect
does not ordinarily warrant severance . . . .’” Id. (quoting
United States v. Moser, 123 F.3d 813, 828 (5th Cir. 1997) (quoting
United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993))). A
defendant’s burden is two-fold. He must show first that “‘the
joint trial prejudiced him to such an extent that the district
court could not provide adequate protection.’” United States v.
Richards, 204 F.3d 177, 193 (5th Cir. 2000)(quoting United States
v. McCord, 33 F.3d 1434, 1452 (5th Cir. 1994) (quoting United
States v. DeVarona, 872 F.2d 114, 120-21 (5th Cir. 1989))). He
must present “‘clear, specific and compelling prejudice that
resulted in an unfair trial” Posada-Rios, 158 F.3d at 863 (quoting
7
United States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995)), and
“that he did not receive adequate protection from the potential
prejudice of a joint trial through the court’s instructions to the
jury.” Posada-Rios, 158 F.3d at 863. Second, he must show that
“the prejudice outweighed the Government's interest in economy of
judicial administration." Richards, 204 F.3d at 193.
The district court took various steps to lessen the
prejudice to each defendant. During voir dire, the district court
instructed the jury to consider separately the charges against each
defendant. In his preliminary instructions to the jury, the court
admonished them to give separate consideration to the case against
each defendant. The jury charge likewise instructed:
A separate crime is charged against one or more of the
defendants in each count of the Superseding Indictment.
Each count, and the evidence pertaining to it, should be
considered separately. Also, the case of each defendant
should be considered separately and individually. The
fact that you may find one of the accused guilty or not
guilty of any of the crimes charged should not control
your verdict as to any other crime or other defendant.
You must give separate consideration of the evidence as
to each defendant.
This court has held virtually identical instructions sufficient,
among other factors, to cure the possibility of prejudice. Pasado-
Rios, 158 F.3d at 863-64; see also Richards, 204 F.3d at 194.
Indeed, the Supreme Court has stated that “less drastic measures
[than severance], such as limiting instructions, often will suffice
8
to cure any risk of prejudice.” Zafiro v. United States, 506 U.S.
534, 539, 113 S.Ct. 933, 938 (1993).
Here, the court took another step by allowing the jurors
to take notes during the trial. Posada-Rios, 158 F.3d at 863. The
jurors were also provided a copy of the indictment and written
charge of the court during deliberations. In addition, attempting
to prevent the possibility of prejudice, the court gave a specific
instruction to the jury, after the family members were led out, not
to “draw any kind of inference at all from anyone being asked to
leave the courtroom or leaving the courtroom. Just put it out of
your mind. Ignore it. Don’t draw any inference at all from it.”
Moreover, we have previously rejected the argument that
evidence of crimes committed by co-conspirators, including gruesome
murders, suffices to establish prejudice. Posada-Rios, 158 F.3d at
863. We have held that "the pernicious effect [of spillover] ...
is best avoided by precise instructions to the jury on the
admissibility and proper uses of the evidence introduced by the
Government." United States v. Harrelson, 754 F.2d 1153, 1175 (5th
Cir. 1985). Likewise, that there was a “large volume of evidence
introduced” concerning the murders is not dispositive because "a
quantitative disparity in the evidence 'is clearly insufficient in
itself to justify severance.' " U.S. v. Pettigrew, 77 F.3d 1500,
1517 (5th Cir. 1996)(quoting United States v. Neal, 27 F.3d 1035
(5th Cir. 1994)).
9
In addition, the Government correctly points out that
Thompson was indicted for being part of an enterprise that enriched
and protected its members, in part by committing and threatening
“acts of violence including murder, attempted murder and robbery,”
and by promoting or engaging in activities “designed to prevent
members and associates of the enterprise from disclosing the
activities of the enterprise to law enforcement authorities.” See
Count 1, paras. 2a-3d. Although Thompson apparently did not know
beforehand of the conspiracy to rob and kill the Oklahomans,
Thompson continued his association with the enterprise and its
members after learning of the murders.2 He was an employee or
associate of an enterprise with violent aspects, means and members.
The Government contends that the prosecution could not have
presented its case against any employee or associate of the
“enterprise” without presenting all of the evidence to give an
accurate depiction of the enterprise.
Testimony from Vincent Barney supports the Government’s
contention that Thompson had knowledge and was concerned about the
investigation of Frankie Dunham’s murder. Vincent Barney testified
that his brother, Mark Barney, who later pled guilty to soliciting
Dunham’s murder, and Thompson, questioned him after the murder
2
Specifically, Mark Barney testified that Tim Wooten told Barney and
Thompson about the murders a day or so after they occurred, on January 6, 1996.
Thompson was with Mark Barney, Tim Wooten and Whittaker in a hotel room when a
plot to murder Preston was discussed. Likewise, the need to silence Frankie
Dunham was discussed in Thompson’s presence.
10
about whether or not homicide investigators had asked him questions
about the murder. The two informed Vincent Barney that law
enforcement had “nothing on us” and “were grabbing at straws.”
Vincent also testified that he knew that Mark Barney knew about and
was upset that Frankie Dunham was a witness against him. Mark
Barney testified that it was “important to all of us,” including
Thompson, that Frankie Dunham not testify again him. This was the
case because if Barney “went down,” Thompson, Tim Wooten and
others, would not have access to Barney’s suppliers. In sum, based
on the judge’s instructions and the evidence linking Thompson to
the Dunham murder, the district court did not abuse its discretion
by denying Thompson’s motion to sever.
Likewise, the court did not err with respect to Gerald
Wooten. In addition to the aforementioned instructions, the judge
specifically instructed the jury that testimony from a witness
about Frankie Dunham was “not to be considered at all for any
purpose in connection with” Gerald Wooten.
We do not agree with Gerald Wooten’s assertion that the
district court’s mispronunciation of his brother’s name was
prejudicial. The district court made this mistake during the
preliminary instructions to the entire group of prospective jurors.
During those same instructions, the judge correctly pronounced Tim
Wooten’s name many times. At the same time, the court asked the
following of the venire members:
11
They are all seated over there together, but I want to
find out if you can give each one of the defendants the
benefit of considering his case separately and
considering the evidence against the defendant separately
and not be influenced by the fact that he’s seated at a
counsel table with other defendants that are also
charged, some charged in counts in which the defendant is
not charged. Can you separate in your mind those three
defendants and the evidence that is submitted against
them?
The judge dismissed the two venire members who indicated that they
would have difficulty making such a distinction.
Gerald’s most sympathetic argument is that because of the
prejudicial joinder, the Government implied that he played some
part in the Oklahoman’s murders. The only evidence of a connection
came from records of telephone calls exchanged between the location
of the murders, just after they were committed, and Gerald’s
workplace. Weak as the inference from these records might be, it
seems the same evidence could have been offered for proof of his
part in the conspiracy in a separate trial of Gerald. Regardless
of that circumstance, this court has previously held that neither
a disparity in the amount of evidence against each defendant, nor
the fact that a defendant was only a minimal participant,
constitutes prejudice. United States v. Fields, 72 F.3d 1200, 1215
(5th Cir. 1996); United States v. Krout 66 F.3d 1420, 1430 (5th
Cir. 1995) (citing United States v. Neal, 27 F.3d at 1045). The
court did not abuse its discretion in denying severance.
B. Sufficiency of the Evidence on the RICO convictions of
Thompson and Tim Wooten
12
Thompson and Tim Wooten submit that the evidence was
insufficient to convict them on both the substantive and conspiracy
RICO charges. When reviewing a sufficiency of the evidence
challenge, this court does not “weigh the evidence or . . .
determine the credibility of the witnesses. The verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469 (1962). The
evidence need not exclude every reasonable hypothesis of innocence.
United States v. Leed, 981 F.2d 202, 205 (5th Cir. 1993). If a
rational trier of fact could have found each essential element of
the offense established beyond a reasonable doubt, the verdict must
be affirmed. Posada-Rios, 158 F.3d at 855.
The RICO statute charged in the indictment, 18 U.S.C. §
1962(c), prohibits “any person employed by or associated with any
enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly in the conduct of such enterprise’s affairs through
a pattern of racketeering activity or collection of unlawful debt.”
When establishing such a violation, the Government must prove “(1)
the existence of an enterprise that affects interstate or foreign
commerce, (2) that the defendant was ‘employed by’ or ‘associated
with’ the enterprise, (3) that the defendant participated in the
conduct of the enterprise’s affairs, and (4) that the participation
13
was through a ‘pattern of racketeering activity.’” Posada-Rios, 158
F.3d at 855 (citing United States v. Erwin, 793 F.2d 656, 670 (5th
Cir. 1986)). We review each of the elements.
1. Enterprise
18 U.S.C. § 1961(4) states that an “enterprise” includes
“any individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associated in
fact although not a legal entity.” This court has defined
“enterprise” as “an entity, for present purposes a group of persons
associated together for a common purpose of engaging in a course of
conduct.” United States v. Williams, 809 F.2d 1072, 1094 (5th Cir.
1987). It may be “proved by evidence of an ongoing organization,
formal or informal, and by evidence that the various associates
function as a continuing unit.” Id. (quoting United States v.
Turkette, 452 U.S. 953, 99 S.Ct. 349 (1978)). The enterprise “must
have an existence separate and apart from the pattern of
racketeering.” Crowe v. Henry, 43 F.3d 198, 205 (5th Cir. 1995).
The “continuing unit” may be “‘shown by a hierarchical or
consensual decision making structure.’” Id. at 205 (quoting Delta
Truck & Tractor, Inc.. v. J.I. Case Co., 855 F.2d 241, 243 (1988)).
In determining that an enterprise exists, we may also look to the
“number of acts, their relationship, their having taken place over
several years, and the consistent participation of the central
14
figures in the scheme.” United States v. Doherty, 867 F.2d 47, 68
(1st Cir. 1989). A jury may “infer the existence of an enterprise
on the basis of largely or wholly circumstantial evidence.” United
States v. Elliot, 571 F.2d 880, 898 (5th Cir. 1978).
Thompson argues that there was insufficient proof of an
enterprise. He does not dispute that the Government’s evidence
supports a finding that a common or shared purpose existed.
Rather, he argues that the Government lacked proof that the alleged
structure had any continuity of structure and personality. See
United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir. 1982).3 He
argues that, contrary to the Government’s contention, the alleged
substitution of him into the place of Vincent Barney does not
support this element because, according to the Government’s
evidence, he and Vincent Barney merely packaged the cocaine. In
addition, he argues that the fact that the “enterprise activity”
ceased after the arrest of Mark Barney provides strong evidence
that the “enterprise” lacked continuity.
We decline to adopt the Bledsoe definition of enterprise.
The record reveals sufficient evidence of a continuing unit with a
consensual decisionmaking structure, as required by this circuit.
As the Government argues, the evidence shows that the enterprise
3
Bledsoe holds that an enterprise must have three elements: 1) a
common or shared purpose; 2) continuity of structure and personality; and 3) an
“‘ascertainable structure’ distinct from that inherent in the conduct of a
pattern of racketeering activity.” Bledsoe, 674 F.2d at 665.
15
consisted of its leader, Mark Barney, and his “team”, including
Ralph Thompson, Vincent Barney, Tim Wooten, Wilbert Watson, Mike
Whittaker, and Kerwin “Buddy” Wade. Mark Barney brought members of
the team together and organized connections among them. Their
common goal was to enrich the members of the association by sharing
the economic benefits of the enterprise and by preserving the
organization.4 This group, tracing through Mark Barney, formed
lines of interdependence. For example, Mark Barney provided
evidence of this interdependence when he testified that it was
“important to all of us” that Frankie Dunham not testify against
him, because it “would shut business down” and that those in
Kansas, Texas and Colorado would “get cut off,” including Tim
Wooten and Ralph Thompson.
Mark Barney designated certain assignments for the team
members. Vincent Barney scanned kilos of powdered cocaine that he
got from “Chicalee,” a supplier, cleaning them of metal fragments
and re-packaging them. Thompson carried the kilos on commercial
airlines and interacted with the public and other members of the
organization. Thompson delivered drugs to Tim Wooten and Buddy
Wade, and others, who in turn moved large quantities of cocaine
through networks of cocaine dealers. They also kept a steady flow
4
For example, Ralph Thompson occasionally profited by investing his
own money into the overall price that Mark Barney paid for the cocaine. He would
“invest” by putting in a certain percent of the price and paying that share of
the overall cost of the transaction. In turn, he would receive the same percent
of the profits.
16
of money into the office of the organization. When in trouble,
members of the team worked to bail each other out. Members also
met on different occasions to discuss the organization and various
problems.
2. “Employed By” or “Association With” the Enterprise
The evidence shows that Thompson and Tim Wooten were
“employed by” or “associated with” the enterprise. Thompson served
as the liaison between Mark Barney and associates in Texas to whom
he delivered kilos of cocaine for sale and distribution. He was
the only other person who knew the name of Mark Barney’s source.
He understood the inner workings of the enterprise and interacted
with many associates. He was the mediator between the field and
the home office when Barney was absent. Other employees or
associates prepared packages of cocaine for him to pick up.
Frankie Dunham made airplane and hotel reservations for him.
Transportation, such as limousine rentals, was often arranged for
him. He traveled frequently for the enterprise. While he began as
an employee, he later became an investor or partner, sharing both
the costs and profits of the enterprise.
According to testimony from Vincent Barney, Tim Wooten
served as the key distributor of cocaine in the Dallas, Texas area,
and as the conduit of cocaine between Mark Barney and others. He
supplied both his brother, Gerald Wooten, and Wilbert Watson. In
addition, he brought Mike Whittaker into the enterprise. At one
17
point, Whittaker and Wooten flew to California to meet with Mark
Barney and to receive cocaine. Tim Wooten delegated to Whittaker
the responsibility of supplying cocaine to Gerald Wooten and
Wilbert Watson.
3. Participation in the Conduct of the Enterprise’s Affairs
Both Thompson and Tim Wooten argue that the Government
did not establish that they participated in the conduct of the
enterprise’s affairs as required by Reves v. Ernst & Young, 507
U.S. 170, 113 S.Ct. 1163 (1993). In particular, they argue the
Government did not meet the “operation and management” test set
forth in Reves because neither took part in directing the affairs
of the enterprise. Thompson contends that he was a “mere ‘mule’”,
and Wooten submits that he was a “mere ‘party’” or a “user.”
Contrary to the appellants’ contention, Reves does not
require that a defendant direct the affairs of the enterprise.
Posada-Rios, 158 F.3d at 856 (“Although such evidence [of decision-
making power] would certainly be relevant to show that a defendant
participated in the operation of an enterprise, Reves does not
require it.”). In Reves, the Supreme Court held that a conviction
under § 1962(c) required that “one must participate in the
operation or management of the enterprise itself.” Reves, 507 U.S.
at 185, 113 S.Ct. at 1173. The term “participate” was meant to
have the “common understanding of the word . . . to take part in.”
Id. at 179, 113 S.Ct. at 1170. This court noted in Posada-Rios
18
that the Supreme Court “specifically rejected the D.C. Circuit’s
suggestion that § 1962(c) requires significant control over or
within an enterprise.” Posada-Rios, 158 F.3d at 856 (citing Reves,
507 U.S. at 179 n.4, 113 S.Ct. at 1170 n.4). Rather, “[t]he
[Reves] Court held that ‘the word ‘participate’ makes clear that
RICO liability is not limited to those with primary responsibility
for the enterprise’s affairs.” Id. (quoting Reves, 507 U.S. at
179, 113 S.Ct. at 1170). In particular, the Reves Court explained
that an enterprise may be ‘operated’ both by upper management and
by lower rung participants. Id. (quoting Reves, 507 U.S. at 184,
113 S.Ct. at 1173). For example, in Posada-Rios, this court found
that a mid-level distributor participated in the operation “by
deciding how much cocaine to buy and what prices and terms to
charge to the lower-level distributors to whom he redistributed the
cocaine.” Id. As has been described at length above, the evidence
is sufficient to show that Tim Wooten and Thompson were operational
participants as required by Reves, and that Thompson participated
in the management.
4. Pattern of Racketeering Activity
Tim Wooten argues that the Government failed to establish
that there was a pattern of racketeering activity. In particular,
he submits that the Government did not prove that there was a
continuing threat of criminal activity. He points to the fact that
19
the last relevant act alleged in the indictment occurred more than
two years before the date of the second superseding indictment. He
also states that the Government did not allege any criminal
violation between August 1995 and the time that Wooten and his co-
defendants were incarcerated in 1998. Finally, he states that
following Mark Barney’s conviction and incarceration, the
enterprise ceased without law enforcement intervention.
18 U.S.C. § 1651(5) states that establishing a “pattern
of racketeering activity” requires that at least two racketeering
predicates were committed within a 10-year period. The Supreme
Court, in H.J., Inc. v. Northwestern Bell Telephone Co.,held that
this element requires that a plaintiff or prosecutor show both
“that the racketeering predicates are related, and that they amount
to or pose a threat of continued criminal activity.” 492 U.S. 229,
239, 109 S.Ct. 2893, 2900 (1989). Wooten challenges only the
continuity element of the “pattern of racketeering” requirement.
The continuity requirement stems from Congress’s concern
“in RICO with long-term criminal conduct.” Id. at 242, 109 S.Ct.
at 2902. H.J., Inc. stated that ‘continuity’ may refer to either
a closed-ended or an open-ended period. Id. at 241, 109 S.Ct. at
2901. This case may be evaluated under the closed-ended concept
because it involves a closed period of repeated conduct. By
contrast, an open-ended period would involve “past conduct that by
20
its nature projects into the future with a threat of repetition.”
Id.5 Both are temporal concepts.
Sufficient proof of continuity over a closed period may
be demonstrated “by providing a series of related predicates
extending over a substantial period of time.” Id. at 242, 109
S.Ct. at 2902. H.J., Inc. gave little direction as to what may
constitute a “substantial period of time” other than stating that
“[p]redicate acts extending over a few weeks or months and
threatening no criminal conduct do not satisfy this requirement.”
Id. This court has held that seven months is an insufficient
period of time, see Tel-phonic Services, Inc. v. TBS Int’l, Inc.,
975 F.2d 1134, 1140 (5th Cir. 1992), but that two racketeering acts
extending nearly four years suffices, see United States v.
Bustamante, 45 F.3d 933, 941-42 (5th Cir. 1995).
Wooten does not contest the time period between the first
and last predicate acts. The evidence showed that the enterprise
spanned 20-21 months, beginning in December 1993 and ending in
5
The Government believes that it has also provided sufficient evidence
for an open-ended concept. As to the open-ended concept, the Government asks
that this court follow United States v. Richardson, 167 F.3d 621, 625-26 (D.C.
Cir 1999) which held that although a defendant’s four predicate acts spanned only
thirty-four days and the entire crime spree only three and one-half months, the
“‘fortuitous interruption of [racketeering] activity such as by an arrest’ does
not grant defendants a free pass to evade RICO charges.” Id. (quoting United
States v. Busacca, 966 F.2d 232, 236 (6th Cir. 1991)). The court held that the
defendant’s pre-arrest conduct was of such frequency and increasing seriousness
that a jury could find that the predicate acts of racketeering, by their very
nature, “projected into the future with a threat of repetition.” Id. Because
we find that the Government satisfied its burden under the closed-ended concept,
we need not address whether the open-ended concept applies.
21
August 1995. Following our sister circuits, we hold that 20-21
months is a sufficient time period to establish continuity. See
Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1528 (9th Cir. 1995)
(thirteen months could demonstrate a “substantial period of time”
to satisfy the continuity requirement); United States v. Pelullo,
964 F.2d 193, 209 (3rd Cir. 1992)(a jury could find a period of
nineteen months sufficient for a finding of continuity); United
States. v. Freeman, 6 F.3d 586, 596 (9th Cir. 1993)(two years);
Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543 (10th Cir.
1993)(eighteen months); Metromedia Co. v. Fugazy, 983 F.2d 350, 369
(2nd Cir. 1992)(two years); United States v. Stodola, 953 F.2d 266,
270 (7th Cir. 1992)(twenty months). Contrary to Wooten’s
contention, therefore, the continuity requirement did not
necessitate that the Government allege a continuation of unlawful
acts during the period from August 1995 until his incarceration in
1998.
5. Count 2-RICO Conspiracy
Both Thompson and Tim Wooten challenge the sufficiency of
evidence as to Count 2, the RICO conspiracy charge. Neither,
however, explains in what respect the evidence is insufficient or
develops his insufficiency argument. The briefs contain no
argument or discussion of the facts as related to the RICO
conspiracy charge. They have not complied with the requirements of
22
Fed. R. App. P. 28(a)(9) and have waived this issue. See Posada-
Rios, 158 F.3d at 867.
C. Jury Verdict Form
Thompson and Tim Wooten argue that the failure to require
the jury to designate in its verdict form which specific acts were
unanimously agreed upon to support the “pattern of racketeering
activity” element, denied them due process. Both concede that the
jury was properly instructed, but they assert that because the
verdict form required only a general finding of guilt as to Count
one of the indictment, they are unable to determine and test on
which specific acts the jury relied to support the guilty verdicts.
Neither objected to the verdict form at trial.
Since the defendants did not object to the verdict form
during trial, we review these claims for plain error. See United
States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998). A district
court has the discretion to decide whether to submit special
interrogatories as to each element of an offense to the jury.
United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993). See
also Griffin v. United States, 502 U.S. 46, 47, 112 S.Ct. 466, 473
(1991). There is no right to a verdict on each element of an
offense. Id. Confusion created by a verdict form may be cured by
a jury instruction. Jones, 132 F.3d at 245. See also United
States v. Flores, 63 F.3d 1342, 1374 (5th Cir. 1995). Where a
23
district court properly instructs the jury on the elements of a
RICO conspiracy violation and, in particular, the requirement of
unanimity regarding the predicate offenses, we do not find plain
error. See United States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir.
1996)(holding that a district court did not abuse its discretion
when it gave a proper unanimity instruction but denied a request
for a special verdict form).
The district court judge instructed the jury that:
At a minimum, a pattern of racketeering activity requires
at least two acts of racketeering activity within ten
years of each; provided, however, that the government
proves the relationship and continuity of those acts as
I have defined them for you. All of you must be
unanimous as to which racketeering acts you each believe
beyond a reasonable doubt that the defendant under
consideration committed. Unless you are unanimous in
finding beyond a reasonable doubt that the defendant
under consideration committed a racketeering act charged,
you must disregard that act in deciding whether that
defendant is guilty or not guilty of racketeering. It is
not sufficient that some of the jurors find that the
defendant committed two of the acts while others of you
find that the defendant committed different acts.
(emphasis added).
“We presume that a jury follows the court’s instructions.” Id.
(citing United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993)).
The appellants provide no reason to doubt that this jury properly
followed the court’s instructions. The district court did not
plainly err by submitting a general verdict form.6
6
Tim Wooten relies on Richardson v. United States, 526 U.S. 813, 119
S.Ct. 1707 (1999), where the Supreme Court held that the Continuing Criminal
Enterprise States (the “CCE” statute), which requires that the Government prove
24
D. Money Laundering Conspiracy
Both Gerald Wooten and Ralph Thompson challenge the
sufficiency of the evidence to convict them for conspiracy to
commit money laundering transactions in violation of 18 U.S.C. §
1965(h), as alleged in Count 17. A conviction for conspiracy to
launder money requires that the Government prove five elements:
(1) there is a conspiratorial agreement, (2) one
conspirator knowingly commits an overt act by
participating in a financial transaction, (3) the
financial transaction involves the proceeds of an
unlawful activity, (4) the conspirator participating in
the transaction had the intent to promote or further that
unlawful activity, and (5) the transaction affected
interstate or foreign commerce.
United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994).
Thompson argues on appeal that the Government did not
present sufficient evidence to establish his overt acts. Count 17
of the indictment lists fifty-one overt acts of money laundering.
Thompson is the designated sender of a money transfer through
Western Union in Act 2 and the designated recipient of money
transfers through Western Union in Acts 47 and 48. Thompson’s only
contention is that the Government did not present sufficient
that a current drug violation “is a part of continuing series of violations,”
21 U.S.C. § 848(a), requires that the jury unanimously agree about which specific
violations the defendant had committed. Richardson is inapplicable to our review
of the verdict form in this RICO case. See generally United States v. Meshack,
225 F.3d 556, 580 (5th Cir. 2000) (finding that Richardson is generally
inapplicable to a money laundering statute). First, the Court’s conclusion was
based on an extensive statutory analysis of the CCE statute. Second, the
Richardson defendant’s request for a specific unanimity instruction, not for a
special verdict form, was at issue. Here, there is no contention that the judge
did not give the appropriate unanimity instruction.
25
evidence to prove that the Act 2 sender and Acts 47 and 48
recipient were, in fact, Thompson. We disagree.
Regarding Act 2, Ralph Thompson’s name appears as the
sender and Vincent Barney as the recipient in Western Union
documents. Vincent Barney verified that Thompson sent and that
Barney received the money transfer, which was for drug proceeds.
As to Acts 47 and 48, a Western Union representative testified that
Ralph Thompson’s name appeared as the recipient of the money
transfer and that proof of recipients’ identification is always
checked for money transfers over $500. Act 47 involved a transfer
of $2,000 from Tim Wooten to Thompson; Act 48 involved a transfer
of $1,330 from Tim Wooten to Thompson.
Gerald Wooten also contends that the Government failed to
prove by a reasonable doubt that he knew the proceeds involved an
illegal activity or that he intended to promote or further an
illegal activity. We find that a juror could make such inferences.
Western Union records list Gerald as the sender in Acts 22 and 37.
Wooten admitted to sending the two Western Union wire transfers to
Vincent Barney and told a Special Agent that “he felt that what he
was doing was a relatively minor thing and there was little chance
he would get caught.” This statement supports the inference that
Gerald knew that the money was for the proceeds of illegal
activity. While Gerald’s involvement may have been minor, only one
26
overt act is required to prove that a defendant was involved in a
money laundering conspiracy.
E. Conspiracy to Possess With Intent to Deliver a Controlled
Substance
1. Ralph Thompson and Tim Wooten
All three Appellants argue that the evidence was
insufficient to support their convictions for violation of 21
U.S.C. § 846, conspiracy to possess with intent to deliver a
controlled substance. Thompson contends that the Government’s
evidence consisted of circumstantial evidence “woven together” by
the “purchased testimony from the likes of Mark Barney, Vincent
Barney and Kelly Sorbellini.” He argues that the volumes of
telephone records, flight records and hotel records do not
positively identify him. In addition, he asserts that the
Government never presented any contraband obtained from Thompson,
or photographic, audio or video evidence supporting the
Government’s claims. Tim Wooten likewise argues that there was no
evidence that he intended to join or associate himself with the
objective of the conspiracy and complains that all of the evidence
against him comes from “paid informants.”
“To establish guilt of a drug conspiracy under 21 U.S.C.
§ 846, the Government must prove that (1) there was an agreement
between two or more persons to import or possess controlled
substances with intent to distribute; (2) each defendant knew of
27
the conspiracy and intended to join it; and (3) each defendant
voluntarily participated in the conspiracy.” United States v.
Mitchell, 31 F.3d 271, 274 (5th Cir. 1994). All elements must be
proven, but all may be inferred from circumstantial evidence.
United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1989).
“Circumstances altogether inconclusive, if separately considered,
may, by their number and joint operation . . . be sufficient to
constitute conclusive proof.” Mitchell, 31 F.3d at 274 (quoting
United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)). As
such, “an agreement may be inferred from a ‘concert of action.’”
Espinoza-Seanez, 862 F.2d at 536 (quoting United States v. Vergara,
687 F.2d 57, 61 (5th Cir. 1982)). “Knowledge may be inferred from
‘surrounding circumstances.’” Id. (quoting Vergara, 687 F.2d at
61). “Voluntary participation may be inferred from ‘a collocation
of circumstances.’” Id. (quoting United States v. Marx, 635 F.2d
436, 439 (5th Cir. 1981)). Most importantly, for our purposes,
“‘[a]s long as it is not factually insubstantial or incredible, the
uncorroborated testimony of a co-conspirator, even one who has
chosen to cooperate with the Government in exchange for non-
prosecution or leniency, may be constitutionally sufficient
evidence to convict.’” United States v. Meshack, 225 F.3d 556, 566
(5th Cir. 2000)(quoting United States v. Westbrook, 119 F.3d 1176,
1189-90 (5th Cir. 1997)). Therefore, although it is true that much
of the evidence came from the testimony of co-conspirators who had
28
chosen to cooperate with the Government, their testimony suffices.
Indeed, similar to Meshack, the Government’s evidence implicating
Thompson was voluminous. Arguments about the credibility of the
Government’s witnesses were presented to the jury. Such
credibility determinations are for the jury, not the court, to
decide. See Meshack, 225 F.3d at 567 n6.
The Government’s evidence showed that Thompson
voluntarily and knowingly joined in an agreement with Mark Barney
and others to distribute cocaine and possess cocaine with the
intent to distribute. His involvement began with an agreement to
deliver cocaine to Texas, Kansas and Colorado. He eventually
became an investor, sharing in the costs and profits. His repeated
trips to deliver large quantities of cocaine to Tim Wooten, who in
turn distributed cocaine to others, provides sufficient evidence of
an agreement. Both were intimately involved in the actual
distribution of what they both knew to be cocaine. Their repeated
acts furthering the distribution of cocaine manifest their knowing
and voluntary participation in the conspiracy. They were also both
aware that the business involved others. Indeed, they coordinated
their efforts with other members of the conspiracy. Testimony from
Vincent Barney and Whittaker verified that Thompson made deliveries
of cocaine to Tim Wooten. Kerwin “Buddy” Wade testified that
Thompson served as a courier for his drug payments to Mark Barney.
Vincent Barney also gave extensive testimony about Thompson’s
29
involvement. He testified that Thompson was primarily the drug
courier who would transport packages of cocaine by plane. Vincent
Barney described the system by which Thompson would pack the
cocaine in his carry-on luggage to avoid detection. He testified
that Thompson received about a thousand dollars for each kilogram
of cocaine. According to Vincent Barney, Thompson made about
twenty such trips. Mark Barney likewise discussed Ralph Thompson’s
involvement in the business.
Vincent Barney also testified about Tim Wooten’s role as
the primary distributor of cocaine in Dallas, Texas. Tim Wooten
would receive the cocaine either from Thompson or by Federal
Express. Vincent testified that he sent between ten and twenty
shipments of drugs to Tim Wooten, ranging from two ounces to half
a kilogram of cocaine. Vincent Barney also verified that he
received a number of money wire transfers from Wooten as proceeds
from drug transactions.
Mark Barney also testified that Tim Wooten brought
Whittaker into the enterprise and that Wooten and Whittaker flew to
California on one occasion to meet with Mark Barney and to receive
cocaine. There was testimony that Tim Wooten delegated to
Whittaker the responsibility of supplying cocaine to Gerald Wooten
and Wilbert Watson. Mark Barney stated that Tim Wooten and Buddy
Wade were his contacts in Texas, meaning that they were the people
he sold drugs to in Texas. In addition, when Tim Wooten was
30
arrested for drug dealing, Gerald Wooten contacted Mark Barney, who
started arranging money for Tim Wooten’s bail. Mark Barney also
testified that Tim Wooten introduced him to a man named Lay-Low in
order to facilitate a drug transaction.
The Government also presented telephone records
indicating that the co-conspirators, including Tim Wooten and Ralph
Thompson, communicated with each other hundreds of times. For
example, there were 146 calls from numbers associated with Ralph
Thompson to numbers associated with Tim Wooten. There were sixty-
three calls between numbers associated with Ralph Thompson and
Whittaker.
The evidence was sufficient to establish that both Ralph
Thompson and Tim Wooten were part of an agreement to possess
cocaine with intent to distribute, that they knew about and joined
the conspiracy and that their participation was voluntary.
2. Gerald Wooten
The Government’s case against Gerald Wooten is weaker
than that against Tim Wooten and Ralph Thompson. However, after a
careful review of the record, this court finds that there was
sufficient evidence for a rational trier of fact to find Gerald
Wooten guilty of the drug conspiracy.
The Government presented evidence that Gerald had
knowledge of the conspiracy and intended to join it. First, as
discussed above, an agent testified that Gerald Wooten told him
31
that “what he was doing [receiving one or two packages for Tim and
sending funds via Western Union on Tim’s or Whittaker’s behalf] was
a relatively minor thing and that there was little chance that he
would get caught.” Vincent Barney testified that he received two
wire transfers from Gerald Wooten that were proceeds from a drug
transaction. Vincent worked out the details of the wire transfer
over the phone after contacting Gerald Wooten and based on Tim
Wooten’s instruction. Western Union documents confirm that these
two transfers, for $2,000 and $1,425, were sent from Gerald Wooten
to Vincent Barney. Mike Whittaker testified that Gerald made
initial contact with Whittaker. He also testified that when he
came to pick up a package of drugs, Gerald “knew why I was there”
and gave him the package. Another witness, Luther Moore, testified
that Gerald Wooten said that he could get drugs from Tim Wooten.
Likewise, the jury could rationally infer that Gerald
Wooten voluntarily participated in the conspiracy. Whittaker
testified that as he started working closer with Tim, he also
started working with Gerald by providing him with drugs to sell.
It was his understanding that prior to that, Tim was to supply
Gerald with drugs. In addition, Whittaker testified about an
incident where Tim Wooten owed a debt to Mark Barney because Gerald
gave too much cocaine to someone in a drug transaction who ran off
with the extra cocaine.
F. Typographical Error in the Indictment
32
Tim Wooten claims that the district court erred in
denying his Motion for Judgment of Acquittal when he requested that
the district court set aside the verdict against him on counts 12,
13, 14 and 17 because the indictment contained an incorrect date.
Those counts state that Tim Wooten committed certain crimes “on or
about January 4, 1994,” instead of January 4, 1995.
The district court instructed the jury as follows:
You will note that the Second Superseding Indictment
charges that the offenses were committed ‘on or about’ a
certain date. The Government does not have to prove with
certainty the exact date of the alleged offense. It is
sufficient if the Government proves beyond a reasonable
doubt that the offense was committed on a date reasonably
near the date alleged.
During their deliberations, the jury sent a note to the district
court asking for clarification on the dates of these counts. The
district court answered the jury’s note as follows:
I cannot clarify the dates for you. I instruct you to
consider all of the evidence in this case and the
instructions the Court has given you, consider all of the
instructions the Court has previously given you.
Rule 12(b)(2) of the Federal Rules of Criminal Procedure
states that defenses and objections based on defects in the
indictment must be raised before trial. “Failure to comply with
this requirement results in waiver of the objection.” United
States v. Lerma, 657 F.2d 786, 790 (5th Cir. 1981). Tim Wooten did
not file an objection prior to trial. Moreover, even if the
objection was timely, “an allegation as to the time of the offense
33
is not an essential element of the offense charged in the
indictment.” Russell v. United States, 429 F.2d 237, 238 (5th Cir.
1970). Accordingly, this court denies Tim Wooten’s request for
relief based on the flawed indictment.
G. Constitutionality of 18 U.S.C. § 922(g)
Tim Wooten challenges his conviction in count 12 for
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). He acknowledges that this court’s precedent affords no
relief, but raises constitutional issues, albeit for the first time
on appeal, merely to preserve review. They are in any event
foreclosed by this court’s precedent. United States v. Rawls, 85
F.3d 240, 242-43 (5th Cir. 1996).
H. Charge against Tim Wooten for Aiding and Abetting in the Use
and/or Carrying of a Firearm in Relation to a Crime of Violence
Tim Wooten contends that his conviction on count fifteen
for using or carrying a silenced firearm during a crime of
violence, 18 U.S.C. § 924(c)(1), is invalid under Bailey v. United
States, 516 U.S. 137, 116 S.Ct. 501 (1995). He argues that the
Government failed to meet the requirements of Bailey because it did
not prove that he actively used or employed a gun or silencer.
Wooten ignores the fact that this count was brought
against him for knowingly aiding, abetting, counseling, commanding,
inducing and procuring Serdaris Jemal Preston in the use and the
carrying of a firearm during and in relation to a crime of violence
34
for which Wooten was prosecuted. See 18 U.S.C. § 924 (c)(1) and
(2). An aider and abettor need not actively use or employ the
weapon. See United States v. Wainuskis, 138 F.3d 183, 188 (5th Cir.
1998). Rather, in order for a defendant to be convicted of aiding
and abetting the § 924(c)(1) offense, under the use prong, the
Government must prove that he “act[ed] with the knowledge or
specific intent of advancing the ‘use’ of the firearm in relation
to the drug trafficking offense.” United States v. Sorrells, 145
F.3d 744, 753 (5th Cir. 1998). In addition, “‘there must also be
proof that the defendant performed some affirmative act relating to
the firearm.’” Id. at 754 (quoting United States v. Giraldo, 80
F.3d 667, 676 (2d Cir. 1996)(knowledge of the presence of
firearms). Wooten failed to argue, much less demonstrate, that the
Government did not meet its burden with respect to Count 15. His
challenge is without merit.
I. Motion in Limine for Defendant’s Closing Argument
At the close of trial, the Government filed a motion in
limine seeking to prevent Gerald Wooten’s counsel from comparing
Gerald Wooten’s conduct with that of other uncharged or immunized
witnesses. Wooten’s attorney wanted to compare his client’s
conduct with those who had done similar acts but were not
prosecuted. This included examples of those who wired money and
delivered packages to others involved in the conspiracy. Wooten
35
argues that the court erred by not allowing his counsel to
summarize this “relevant and material” evidence in a fashion that
would assist his defense. He claims that this error violated his
Sixth Amendment right of cross examination by effectively
nullifying his cross examination of various witnesses.
The Government submits that its motion in limine was
directed at preventing jury nullification, and that the district
court had the power to prevent this type of argument. In
particular, the motion in limine requested that the court prevent
counsel for the defendants from mentioning the following:
Any type of comparison during closing argument of the
arguably criminal acts of immunized or uncharged
witnesses to the alleged criminal acts of a Defendant.
Such argument is objectionable in that it inherently
advocates jury nullification of the Defendant’s alleged
criminal acts.
We review a district court's decision regarding closing arguments
for abuse of discretion. Bernard v. IBP, Inc. of Nebraska, 154
F.3d 259, 266 (5th Cir. 1998). “A judge has wide discretion to
control the material presented by counsel in closing argument.”
United States v. Taylor, 680 F.2d 378, 380 (5th Cir. 1982).
In United States v. Leach, this court stated in dicta
that jury nullification, “the right of a jury to acquit for
whatever reasons even though the evidence supports a conviction[,]
is an important part of the jury trial system.” 632 F.2d 1337,
1341 n.12. (5th Cir. 1980). As such, this court recognized that
36
a jury may acquit based on its determination that the number of
witnesses allowed to plead guilty to reduced charges in exchange
for their testimony render it unfair to convict the defendant. Id.
That a jury has the power to base its verdict on such a reason does
not, by implication, mean that defense counsel has a right to make
an argument encouraging the jury to do so. Indeed, we have noted
that courts “have almost uniformly held that a criminal defendant
is not entitled to an instruction that points up the existence of
that practical power to his jury.” Washington v. Watkins, 655 F.2d
1346, 1374 n.54 (5th Cir. 1981). Jury nullification is not a
“right” belonging to the defendant. United States v. Gonzalez, 110
F.3d 936, 947-48 (2d Cir. 1997).
A criminal defendant has a Sixth Amendment right to
present a proper closing argument based “on the evidence and the
applicable law in his favor.” United States v. Martinez, 974 F.2d
589, 591 (5th Cir. 1992). Here, Gerald’s lawyer made a
comprehensive closing argument without encouraging nullification.
Like other circuits, we hold that the right to make closing
argument does not include the right to have counsel make an
improper argument encouraging the jury to use its “de facto power
to refuse to apply the law as instructed by the court [and]
exercise . . . such power in dereliction of the jury’s sworn duty.”
United States v. Funches, 135 F.3d 1405, 1408 (11th Cir. 1998); see
also United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997)(“We
37
categorically reject the idea that, in a society committed to the
rule of law, jury nullification is desirable or that courts may
permit it to occur when it is within their authority to prevent.”).
“A trial judge . . . may block defense attorneys' attempts to
serenade a jury with the siren song of nullification. . . .”
United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).
Given that the district court forbade Gerald Wooten from mentioning
only those facts that were intended to tempt jurors to violate
their oaths, the district court’s grant of the Government’s motion
was not an abuse of discretion.
J. Gerald Wooten’s Requested Jury Instruction on a Lesser
Included Offense
Gerald Wooten was convicted on Count 3, conspiracy to
distribute cocaine. He submitted jury instructions that provided
for the lesser included offense of simple possession of cocaine.
However, Gerald Wooten never objected to the district court’s
instructions that did not include his requested instruction. Where
a defendant does not object to jury instructions at trial, this
court reviews the instruction for plain error. United States v.
Winn, 948 F.2d 145, 159 (5th Cir. 1991). “The ‘plain error’
exception shall not be invoked unless when we consider the charge
as a whole, we conclude that it is so clearly erroneous that the
result would be a grave miscarriage of justice or seriously affects
38
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 156-60.
The defendant is entitled to a lesser included offense
instruction if: 1) the elements of the lesser offense are a “subset
of the elements of the charged offense;” and 2) the evidence is
such that “a jury could rationally find the defendant guilty of the
lesser offense and not guilty of the charged offense.” United
States v. Harrison, 55 F.3d 163, 166 (5th Cir. 1995). “Simple
possession is not a lesser included offense of a drug conspiracy.
. . .” United States v. Krout, 66 F.3d 1420, 1432 (5th Cir. 1995).
Thus, as a matter of law, Gerald was not entitled to the lesser
included offense instruction he sought. That the evidence
indicated Gerald could also have been found guilty of simple
possession is irrelevant.
K. Sentencing
1. Ralph Thompson
Thompson argues that the district court erred in its
sentencing by finding that the murder of Frankie Dunham was
reasonably foreseeable to him and holding that U.S.S.G. §
2D1.1(D)1, 2A1.1(a) applied.
"The factual findings made by a district court in its
determination of a defendant's relevant conduct for sentencing
purposes are subject to the 'clearly erroneous' standard of review
39
on appeal." United States v. McCaskey, 9 F.3d 368, 372 (5th Cir.
1993). "The district court's sentence will be upheld so long as it
results from a correct application of the guidelines to factual
findings that are not clearly erroneous." Id.
The district court found that it was reasonably
foreseeable to Thompson that Frankie Dunham would be killed or
eliminated as a witness against Mark Barney. In particular, the
district court fond that the only reasonable interpretation of the
conversation about Frankie Dunham at the Hyatt Hotel in Dallas was
that she needed to be eliminated. This factual finding was not
clearly erroneous.
2. Gerald Wooten
Gerald Wooten submits that the district court abused its
discretion when it denied him a downward departure at sentencing.
Wooten incorrectly relies on United States v. Lugman, 130 F.3d 113
(5th Cir. 1997) for the proposition that we review a requested
downward departure for abuse of discretion. The correct rule is
that a refusal to grant a downward departure is not reviewable
unless the district court committed legal error in believing that
it did not have the power to grant the downward departure. Id. at
115. “[W]e have no jurisdiction if the court's refusal is based on
its determination that departure is not warranted on the facts of
the case.” Id. Wooten does not claim that the district court
40
erroneously believed it could not grant the requested downward
departure. He contends only that the district court abused its
discretion in failing to do so. This decision is not reviewable.
3. Apprendi
Ralph Thompson requests that this court remand his case
for resentencing in light of the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). As
the Appellants’ briefs were due on or before June 23, 2000, they
did not mention Apprendi, because that decision had not yet been
issued by the Supreme Court. Nevertheless, Apprendi was decided on
June 26, 2000, yet Thompson then waited until October 27, 2000, to
file a letter citing supplemental authority. Both Thompson and the
Government submitted supplemental briefs addressing this issue at
the court’s request after oral argument on November 6, 2000.
Federal Rule of Appellate Procedure 28(j) permits a party
to file supplemental materials if pertinent authorities come to a
party’s attention after the party’s brief has been filed. However,
the Rule states that the party must do so “promptly.” Fed. R. App.
Proc. 28(j). Thompson’s initial filing on this issue was not
prompt. As a result, we are inclined to deem this argument waived.
Nonetheless, on the merits, Thompson’s Apprendi argument
must fail. He did not object in the trial court to an alleged
failure to instruct the jury on a material issue in the crimes he
was charged with. Appellate review, therefore, takes place under
41
the plain error standard. The demanding plain error standard
leaves this court with discretion not to reverse unless the error
“‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Meshack, 225 F.3d at 577 (quoting
United States v. Franks, 46 F.3d 402, 404 (5th Cir. 1995)). We
would so exercise our discretion here. There was no dispute at
trial that the quantity of cocaine involved in the offense was
greater than 5 kilograms, which alone justifies his life sentence.
See 21 U.S.C. § 841(b)(1)(A)(ii); 21 U.S.C. § 846. “No
‘miscarriage of justice’ will result here if we do not notice the
error.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct.
1544, 1550 (1997)(quoting United States v. Olano, 507 U.S. 725,
736, 113 S.Ct. 1770, 1779 (1993)).
CONCLUSION
For the foregoing reasons, this court AFFIRMS the
convictions and sentences of the three Appellants.
AFFIRMED.
42
Garwood, Circuit Judge dissenting in part.
I concur in all of Judge Jones’ cogent opinion except insofar
as it deals with the denial of Gerald Wooten’s motion for
severance. While I have no disagreement with the majority’s
explication of the general rules related to this issue, I am unable
to agree with their application of those principles to the
particular facts of Gerald Wooten’s case.
Of the seventeen counts which went to trial, thirteen involved
violence, including three murders and two attempted murders, and
two were felon in possession of firearm and possession of an
unregistered silencer. Gerald Wooten was not charged in any of
these counts, but only with conspiracy to distribute cocaine and
money laundering conspiracy, neither of which counts alleged any
violence or attempted violence or weapons possession. The evidence
to sustain Gerald Wooten’s conviction on these two counts though
minimally adequate was thin indeed and at most tended to show that
he was a minor, local player in those endeavors. At trial, the
government improperly tried to insinuate that Gerald Wooten may
have been connected to the murders and attempted murders of the
Oklahomans, because shortly after those events his brother, who was
complicit in those offenses, called Gerald Wooten’s phone number,
and this was emphasized in the government’s closing argument.
Surely, in any trial on only the counts charging Gerald Wooten,
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this evidence and the related argument would have been excluded as
irrelevant or at least under Fed. R. Evid. 403. In this setting,
it was impossible for Gerald Wooten to receive a fair trial, and it
is evident that he was severely prejudiced by the denial of his
motion for severance. See, e.g., U.S. v. DiNome, 954 F.2d 839,
844-45 (2d Cir. 1992).
In my opinion, the trial court abused its discretion in
denying Gerald Wooten’s motion for severance, and we should for
this reason reverse Gerald Wooten’s conviction and remand the case
against him for a new trial. I respectfully dissent from the
majority’s holding to the contrary.
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United States v. Thompson
Combined Opinion