United States v. Thompson

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opinion should not be published and is not precedent except under the limited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

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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.

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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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