Revised August 17, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-10134
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHENARD TYVON WELLS; RODNEY W. WELLS,
Defendants-Appellants,
__________________
No. 00-10266
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOLETTA DENISE SCOTT,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
August 16, 2001
Before JONES, DeMOSS and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This direct criminal appeal involves three appellants who were
each convicted of one count of conspiracy to distribute cocaine base
and one count of distribution of cocaine base. The appellants raise
various arguments, including challenges to evidentiary rulings, jury
instructions, and sentencing error. Because we find the erroneous
admission of hearsay testimony against Loletta Scott was not harmless,
we VACATE her convictions and REMAND for further proceedings. With
respect to Rodney Wells, we find the submission of a deliberate
ignorance instruction was harmless error, and AFFIRM his convictions.
Finally, we conclude that Shenard Wells has not established a
presumption of prosecutorial vindictiveness and thus AFFIRM his
sentence.
I. FACTUAL AND PROCEDURAL HISTORY
On March 24, 1999, a grand jury charged Shenard Tyvon Wells
(Shenard), his wife, Loletta Scott (Loletta), his brother, Rodney W.
Wells (Rodney), and several others with one count of conspiracy to
distribute cocaine base and one count of distribution of approximately
26.2 grams of cocaine base. Pursuant to a plea agreement, Shenard
pleaded guilty to the distribution count and the government dismissed
the count of conspiracy. Also pursuant to the agreement, Shenard
promised to provide complete information about his criminal activities
and the government agreed that, if he provided substantial assistance,
it would file a motion for downward departure pursuant to U.S.S.G. §
5K1.1.
2
On July 19, 1999, the government moved to revoke the plea
agreement, alleging that Shenard had failed to fully disclose his
criminal conduct and had attempted to kill one government witness and
corruptly influence another. At the revocation hearing, the government
ultimately relied solely on Shenard’s failure to cooperate, and the
district court allowed the government to revoke the agreement.
On August 11, 1999, the grand jury returned a superseding
indictment again charging Shenard, Loletta, and Rodney with one count
of conspiracy to distribute cocaine base and one count of distribution
of cocaine base. Additionally, the grand jury charged Shenard with one
count of attempting to kill a person to prevent him from communicating
with law enforcement officers and one count of attempting to intimidate
a witness. Shenard persisted in his plea of guilty to the count
alleging distribution and pleaded not guilty to the three remaining
counts. Loletta and Rodney pleaded not guilty to the conspiracy and
distribution counts.
The government introduced the following evidence at trial. On June
15, 1998, William Block and Darren Lee, both confidential informants for
the Drug Enforcement Administration, were looking for a drug dealer
named Terrence Spencer in Terrell, Texas. Instead, they ran into
Shenard and Mark Perkins.
Lee arranged for Block to buy two ounces of crack cocaine from
Shenard. Block and Lee followed Shenard and Perkins to Shenard’s
apartment, and Rodney met the men at the bottom of the stairway.
Loletta was at the apartment when the men arrived and opened the door
3
to allow them entry.
Shenard, Rodney, Block, Lee, and Perkins seated themselves in the
den and discussed the transaction. Loletta remained outside the den
during the entire transaction. At one point, Shenard called for his
wife to bring him the cocaine. However, she was unable to locate it in
the refrigerator, and Shenard retrieved it. After some concern was
expressed regarding the weight of the cocaine, Shenard asked his brother
to borrow scales from a neighbor. Rodney then left the apartment and
returned, stating that the neighbor was not home.1
Shenard also instructed Loletta to bring him a plastic bag. She
complied by handing a bag to Rodney who then gave it to Shenard.
Shenard placed the crack cocaine in the bag. After paying cash for the
cocaine, Block and Lee left the apartment with the cocaine. Shenard
handed Loletta the money, which she took to their bedroom.
All three appellants testified at trial. Each of them, including
Shenard, testified that Shenard sold cocaine base. Each of them
testified that neither Rodney nor Loletta were involved in the drug
business with Shenard.
The appellants do not challenge the sufficiency of the evidence to
support their convictions. Therefore, any remaining facts necessary to
1
Rodney testified that he had met Shenard at the apartment to
borrow money to purchase diapers for his infant son. Rodney claimed
that he initially did not know that Shenard was conducting a drug
transaction. He realized it after he had exited the apartment to borrow
the scales. According to Rodney, he did not want to be involved in the
transaction and did not actually go to the neighbor’s apartment. He
lied when he told Shenard that the neighbor was not home.
4
determine their appeals are set forth in our discussion of their claims.
The jury acquitted Shenard of the two obstruction of justice
counts, and we therefore do not recite the evidence introduced in
support of those charges. The jury found the appellants guilty as
charged on the remaining counts.
II. ANALYSIS
A. ADMISSION OF HEARSAY EVIDENCE OF DESTROYED LEDGERS
Loletta argues that the district court erred in overruling her
hearsay objections to the testimony of Joseph Antoine, a cooperating
witness. Antoine testified concerning his memory of the contents of
previously destroyed ledgers that purportedly contained information
regarding amounts of drugs he and his friend, Gerard Busby, sold to
Loletta. He also testified that he knew Loletta purchased drugs based
on representations Busby made to him. We review the district court’s
decision to allow admission of evidence for abuse of discretion. United
States v. Harrison, 178 F.3d 374, 379 (5th Cir. 1999).
Prior to the instant trial, Antoine, known as “Spider” on the
streets of Houston, pleaded guilty to a charge of conspiracy to
distribute cocaine and cocaine base in the Southern District of Texas
in exchange for the government’s dismissal of three other counts in the
indictment against him. During the instant trial, Antoine testified
that pursuant to a plea agreement he had promised to “cooperate fully
and give full statements.” He further testified that he had not been
promised anything by either the Houston or Dallas United States
5
Attorney’s Office in exchange for his cooperation.
On direct examination, Antoine admitted that he had been involved
with drugs since 1992. In 1994 or 1995, Shenard would travel from
Terrell to Houston to purchase cocaine base directly from Antoine.
Antoine did not know “exactly how many times, but it was a lot of
times.” Sometime in 1995, Shenard stopped purchasing drugs from Antoine
because Shenard was sent to the penitentiary.
Antoine subsequently began using his friend Gerard Busby to make
drug deliveries for him. Antoine admitted that he had no personal
knowledge of Loletta purchasing drugs. Indeed, he admitted that he had
never met her and had never seen her face to face, but thought he had
seen the side of her face while she was sitting in a car. Antoine did
not identify Loletta in court.
Notwithstanding these admissions, he testified that he and Bubsy
kept “little ledgers with the sales on it, and [Loletta’s] name would
be on it, and [Busby] would speak about her.” Antoine asserted that,
through Busby, he sold cocaine base to Loletta over a period of six
months. Based on the ledgers, Antoine contended that Loletta “mov[ed]
more drugs than Shenard.”
On cross-examination, Antoine related that he kept a weekly ledger
and threw it away each week after he counted the money from the drug
sales. He admitted that he “didn’t keep a long time ledger, just a
weekly ledger.”
It is undisputed that Loletta’s counsel made hearsay objections to
Antoine’s testimony regarding the ledgers and to the statements Busby
6
made to Antoine.2 On appeal, the government argues that the district
court did not err in allowing the testimony. With respect to Antoine’s
testimony regarding the destroyed drug ledgers, the government contends
that evidence was admissible pursuant to the hearsay exception known as
the business records exception under Rule 803(6) of the Federal Rules
of Evidence. Whether evidence is admissible under Rule 803(6) is
“chiefly a matter of trustworthiness.” Mississippi River Grain
Elevator, Inc. v. Bartlett & Co., 659 F.2d 1314, 1319 (5th Cir. 1981).
Rule 803(6) provides as follows:
(6) Records of Regularly Conducted
Activity.–A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted
by, a person with knowledge, if kept in the course
of a regularly conducted business activity, and if
it was the regular practice of that business
activity to make the memorandum, report, record or
data compilation, all as shown by the testimony of
the custodian or other qualified witness, or by
certification that complies with Rule 902(11),
Rule 902(12), or a statute permitting
certification, unless the source of information or
the method or circumstances of preparation
indicate lack of trustworthiness. The term
“business” as used in this paragraph includes
business, institution, association, profession,
occupation, and calling of every kind, whether or
not conducted for profit.
2
Additionally, at the conclusion of Antoine’s testimony, while
Loletta’s counsel was requesting that Antoine’s testimony be stricken
because Antoine had no personal knowledge of Loletta purchasing drugs,
the prosecutor interrupted, stating: “Objection to this. I think we
need to come to the bench.” The district court responded as follows:
“I don’t need you to come to the bench. I’ll overrule the objection.”
This is the extent of the argument allowed by the district court with
respect to the admissibility of Antoine’s hearsay testimony.
7
Here, the district court allowed the government to elicit testimony
from Antoine without requiring it to establish the above foundational
requirements. Antoine testified regarding the volume of drugs Loletta
purportedly “moved” in comparison to her husband without first
testifying that the ledgers had been “made at or near the time by, or
from information transmitted by, a person with knowledge. . . . “ Nor
did Antoine first testify that either the ledgers were “kept in the
course of a regularly conducted business activity, or [that] it was the
regular practice of [his] business activity to make the [ledgers.]”
On cross-examination, Antoine explained that he kept a ledger every
week of “an inventory of [his] supplies so [his] money [would] be right
and [his] drugs [would] be right.” Also, each week, he threw away the
ledger. This testimony could arguably fulfill the foundational
requirements of Rule 803(6).3 Assuming for purposes of this appeal that
if the government had produced the original ledgers they would have
qualified as business records under Rule 803(6), we now turn to the
government’s argument that Antoine’s testimony with respect to the
3
We note that it is not clear to us that destroying the ledgers
at the end of each week constituted keeping them in the course of a
regularly conducted business activity. See United States v. Holladay,
566 F.2d 1018, 1020 (5th Cir. 1978) (explaining that notebooks were
admissible under Rule 803(6) upon showing that they were part of a
bookkeeping system “continuously maintained” for purpose of accounting
for receipts and disbursements of defendant’s business); United States
v. Jones, 554 F.2d 251, 252 (5th Cir. 1977) (finding that a proper
foundation was laid under Rule 803(6) because the witness was “able to
identify the record as authentic and specify that it was made and
preserved in the regular course of business”). However, our conclusion
that Antoine’s testimony was inadmissible does not rest on this basis.
8
contents of the ledgers was admissible.
The government argues that Antoine’s testimony regarding the
contents of the ledger was admissible as secondary evidence (under Rule
10044) of the destroyed business records. In support of its argument,
the government cites a First Circuit opinion in which a copy of a
business record that had been destroyed was held to be admissible. In
United States v. Lizotte, 856 F.2d 341 (1st Cir. 1988), a lawyer was
convicted of conspiring to impede the collection of taxes by assisting
a client in hiding drug proceeds. The First Circuit explicitly noted
that, in addition to a drug business, the client had a legitimate
wholesale business in which he “was accustomed to keeping records.” Id.
at 344. This client also kept records of his drug sales. At the end
of each day in 1994, the client would mark his calendar with the amount
of drugs that he had sold that day along with a code to identify the
buyer. At the end of the year, he copied the weekly sales totals from
1984 to the 1985 calendar’s corresponding weeks to allow him to make
comparisons between his weekly sales in 1984 and 1985. After
transferring the subtotals to the 1985 calendar, the client destroyed
the 1984 calendar. The First Circuit held that the 1984 entries
constituted a business record under Rule 803(6) and held that the
transfer of the record of those entries to the new calendar did not
4
In pertinent part, Rule 1004 provides that “[t]he original is
not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if– . . . [a]ll originals are
lost or have been destroyed, unless the proponent lost or destroyed them
in bad faith. . . .”
9
“destroy its credibility.”5 Id. As such, the First Circuit concluded
that the original 1984 calendar was admissible under Rule 803(6) and
therefore apparently held that the 1985 calendar with the copied entries
was properly admitted as secondary evidence.6
The government also relies on United States v. Prevatt, 526 F.2d
400 (5th Cir. 1976). In that case, the district court allowed the
admission of a single sheet of paper upon which an employee had written
yearly totals of collection amounts transferred from a notebook. Id.
at 403. At the time of trial, the original records had been destroyed.
We concluded that the notebook was admissible under the Business Records
Act, 28 U.S.C. § 1732(a).7 The notebook was lost at the time of trial,
and thus the copy was admissible. Id.
While these two cases indicate that documents constituting
secondary evidence of destroyed business records may be admissible, they
do not stand for the proposition that oral testimony regarding the
contents of destroyed business records is admissible. It is undisputed
that the government has the burden of proving that the evidence was
5
Although the First Circuit used the word “credibility,” as
explained below, this Court has looked to the “trustworthiness” of the
evidence in making its determination of admissibility.
6
The First Circuit did not expressly state the basis upon which
the 1985 calendar could be admitted. It is not clear if the basis was
secondary evidence or whether the court believed a copy of a business
record constituted a business record under Rule 803(6).
7
See Falcon v. General Telephone Co. of the Southwest, 626 F.2d
369, 383 (5th Cir. 1980) (noting that the business records exception of
Rule 803(6) is very similar to 28 U.S.C. § 1732(a)) vacated on other
grounds, 450 U.S. 1036, 101 S.Ct. 1752 (1981).
10
admissible as an exception to the rule against hearsay. The government
has not cited a case in which testimony was allowed to suffice as
secondary evidence of a business record under Rule 803(6).
The only case we discovered involved the government’s use of oral
testimony when the business records were available but the government
did not introduce them. We found this to be reversible error. In
United States v. Marshall, 762 F.2d 419 (5th Cir. 1985), a defendant was
convicted of theft of property of the United States in excess of $100,
i.e., a lawn mower. The allegedly stolen lawn mower was not introduced
into evidence. To prove that a lawn mower was missing from the Army and
Air Force Exchange Service, the government called an investigator, Terri
Stanlin. Stanlin testified, over an hearsay objection, that based on
her review of the store’s records, three lawn mowers were unaccounted
for during this time period. On appeal, the government argued that,
because it had allowed defense counsel access to the store’s records
prior to trial, this Court should review the evidentiary ruling as if
the records had been introduced into evidence under Rule 803(6). Id.
at 426. We rejected this argument, explaining that “instead of the
record itself the district court permitted introduction of Ms. Stanlin’s
‘fact’ testimony that her generalized review of the records showed that
three lawn mowers were missing from the store.” Id. We determined that
such evidence was clearly inadmissible and constituted reversible error.
In sum, we held that:
reversible error occurred because, over defense
objection, the trial court permitted a non-expert
11
to give prejudicial hearsay testimony as to the
contents of documents that were not themselves
introduced into evidence, which documents,
moreover, could not have been introduced without
prior authentication, including a query into their
trustworthiness for the purpose for which
introduced.
Although Marshall is not controlling because, unlike the instant
case, the original records were available, we believe the basic holding
in that case tends to indicate that Antoine’s testimony with respect to
the contents of the ledgers was hearsay. Again, the government had the
burden of proving that the evidence was admissible, and we do not find
the authority it cites persuasive.
While recognizing that a district court is given great latitude in
determining admissibility under this rule, we simply cannot conclude
that the oral testimony of Antoine, a cooperating witness, with respect
to his memories of notations of drug sales apparently drafted by someone
else several years earlier and destroyed soon thereafter had sufficient
indicia of trustworthiness. If we allowed this testimony, we would, in
effect, be allowing an end run around the rule against hearsay and the
requirements of the business records exception. This we are unwilling
to do.
Indeed, the rationale underlying this exception to the rule against
hearsay is that the inherent reliability of business records is
"supplied by systematic checking, by regularity and continuity which
produce habits of precision, by actual experience of business in relying
upon them, or by a duty to make an accurate record as part of a
12
continuing job or occupation." Fed.R.Evid. 803(6), Notes of Advisory
Committee on Proposed Rules. We have expressly recognized that the
“‘primary emphasis of rule 803(6) is on the reliability or
trustworthiness of the records sought to be introduced.’” United States
v. Duncan, 919 F.2d 981, 986 (5th Cir.1990)(quoting United States v.
Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir.1979)).
We certainly do not decide that, as a general rule, drug ledgers
are inadmissible under Rule 803(6). We recognize, of course, that the
First and Ninth Circuits have allowed the admission of drug ledgers (or
copies thereof) under Rule 803(6).8 Here, we hold only that, under the
circumstances of this case, the oral testimony regarding the destroyed
ledgers falls outside the hearsay exception under Rule 803(6).
Therefore, the district court clearly abused its discretion in admitting
the hearsay testimony of Antoine with respect to the drug “ledgers.”
See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047 (1996)
(a district court necessarily abuses its discretion when it makes an
error of law). In view of our conclusion that the district court abused
its discretion in allowing the testimony of the destroyed “ledgers,” we
must determine whether such error was harmless. In making this
8
United States v. Foster, 711 F.2d 871, 882 (9th Cir. 1983)
(allowing the drug ledgers after explaining that “[a] record is
considered as having been kept in the regular course of business when
it is made pursuant to established procedures for the routine and timely
making and preserving of business records, and is relied upon by the
business in the performance of its functions.”); See also Lizotte, 856
F.2d at 344 (finding that the transfer of the drug ledger sales to
another calendar did not make the document inadmissible under Rule
803(6)).
13
determination, we view the error in relation to the entire trial.
United States v. Gadison, 8 F.3d 186, 192 (5th Cir.1993). We must
determine whether the inadmissible evidence contributed to the jury’s
verdict and reversal is warranted “only if the evidence had a
‘substantial impact’ on the verdict.” Id. (citation omitted).9
The remaining evidence in support of Loletta’s convictions for
conspiring to distribute crack cocaine and distribution of crack cocaine
certainly is not overwhelming. With respect to the drug transaction
that occurred on June 15, 1998, Block, a paid government informant,
testified that although Loletta never stepped into the room in which the
drug transaction was taking place, he thought she was observing the
transaction. Block overheard Loletta ask her husband if Block was
going to buy all the crack cocaine. Block also testified that, at
her husband’s request, she retrieved a plastic bag and gave it Rodney,
who in turn gave it to her husband. However, on cross-examination,
Block admitted that, although he had been “wired” with recording
equipment and a transcript had been made of the audiotape, the
transcript did not contain Shenard’s request of Loletta to bring a bag.
With some prompting from the prosecutor, Mark Perkins, a
9
Although the government shoulders the burden of proving
harmless error, United States v. Munoz, 150 F.3d 401, 412 (5th Cir.
1998), it does not argue (even in the alternative) that the admission
of the ledgers was harmless error. The government does argue that the
admission of Antoine’s testimony with respect to Busby’s statements was
harmless error.
14
cooperating witness, testified that Shenard asked Loletta to get the
cocaine from the refrigerator. Perkins observed Loletta ostensibly
looking for the cocaine, but she could not find it. Ultimately, Shenard
had to retrieve it. Perkins asserted that Shenard gave the sale
proceeds to Loletta, who took the money to their bedroom. Clearly,
this is sufficient evidence to support Loletta’s convictions–-but
that is not the question. The question is whether Antoine’s testimony
(that during a six-month period in which her husband was in jail,
Loletta sold more drugs than her husband) had a substantial impact on
the verdict.
There are several witnesses who testified that Loletta was present
or observed her husband sell drugs. However, that evidence was
undisputed in that Loletta admitted she knew her husband was a drug
dealer.
Additionally, one government witness’s testimony indicated that
Loletta herself sold crack cocaine on one occasion.10 Darlene Skinner
Jones, who admitted that she had smoked crack cocaine for nearly twenty
years, testified that although she did not observe the actual
transaction, she saw a fellow crack user, Sherry Wilson, who had forty
10
The charges against Loletta involved only cocaine base.
However, Ananias Nickerson, who was charged in the original indictment
and pleaded guilty, testified that on one occasion, pursuant to
Shenard’s instructions, Loletta handed him a “blunt” (apparently a cigar
filled with marijuana) and he gave her money that she threw on the seat
of the car. Mark Perkins, who also pleaded guilty after being charged
in the original indictment, testified that on one occasion, Shenard told
him that he was saving some marijuana for Loletta so that she could take
it to “the old girl downstairs” or sell it.
15
dollars, talk to Loletta and return with crack cocaine. Curiously, on
cross-examination, when asked whether Loletta was a drug dealer, Jones
responded “Not that I know of.” In rebuttal, defense counsel called
Sherry Wilson. In direct contradiction of Jones’s testimony, Wilson
testified that she had never purchased drugs from Loletta. Moreover,
another government witness, Victor Robinson, who had lived in Terrell
his entire life and had sold crack cocaine with Shenard, testified that
he had no knowledge of Loletta selling any drugs.
Loletta’s defense essentially was that she was a good wife. She
admitted that she knew that her husband was a drug dealer. She
introduced evidence to show that she had worked for a factory for the
better part of ten years. She introduced actual business records
proving that she worked full time and even overtime at the factory
during the time frame alleged in the indictment. She called witnesses
to testify that she had indicated to them that she wanted her husband
to quit selling drugs and hold a legitimate job.
We have read the entire record and it is apparent that, prior to
the introduction of Antoine’s testimony, the jury could have believed
that the government had not proven beyond a reasonable doubt that
Loletta had the intent to distribute or to conspire to distribute
cocaine.
The government apparently perceived that the evidence was not
overwhelming and, in rebuttal, called Antoine. His testimony
obliterated her defense. He accused her of being a bigger dope pusher
16
than her husband. He was allowed to do so even though he admitted that
he did not have any personal knowledge of her purported drug sales. He
bolstered his testimony by relying on purported business records of his
drug sales. The only person who had personal knowledge of the contents
of the “ledgers” was Gerard Busby, and the government failed to call
him.
Because Antoine’s testimony was by far the most damning testimony
in terms of Loletta’s actual involvement in distributing drugs, we
believe that the evidence contributed to the jury’s verdict and that it
“had a ‘substantial impact’ on the verdict.” Gadison, 8 F.3d at 192.
Accordingly, under these circumstances, we simply cannot say that this
error was harmless. Therefore, we VACATE Loletta Wells’ convictions and
REMAND for further proceedings.11
B. DELIBERATE IGNORANCE INSTRUCTION
Rodney Wells asserts that the submission of a deliberate
ignorance instruction to the jury constitutes reversible error.12
11
Because we vacate Loletta’s convictions on this basis, we need
not reach the other arguments she raises with respect to Antoine’s
testimony.
12
The deliberate ignorance charge read as follows:
You may find that a defendant had
knowledge of a fact if you find that the
defendant deliberately closed his or her eyes
to what would otherwise have been obvious to
him or her. While knowledge on the part of
the defendant cannot be established merely by
demonstrating that the defendant was
negligent, careless, or foolish, knowledge can
be inferred if the defendant deliberately
blinded himself or herself to the existence of
a fact.
17
Rodney testified in his own defense at trial. He related that, on
June 15, 1998, he had called his brother Shenard to see if he could
borrow money to purchase diapers for his infant son. After calling
his brother, Rodney met Shenard at Shenard’s apartment to borrow
the money. Although he initially did not realize that his brother
was conducting a drug transaction, while in route to borrow scales
from the neighbor at Shenard’s request, Rodney surmised that a drug
transaction was taking place. Once he realized the purpose of his
errand for Shenard, he decided to report that the neighbor was not
home. In short, his defense was that he never knowingly
participated or aided and abetted the distribution of cocaine base.
"A district court has broad discretion in framing the
instructions to the jury and this Court will not reverse unless the
instructions taken as a whole do not correctly reflect the issues
and law." United States v. McKinney, 53 F.3d 664, 676 (5th Cir.
1995) (citation and internal quotation omitted). "The purpose of
the deliberate ignorance instruction is to inform the jury that it
may consider evidence of the defendant's charade of ignorance as
circumstantial proof of guilty knowledge." Id. (citation and
internal quotation omitted). "It should only be given when a
defendant claims a lack of guilty knowledge and the proof at trial
supports an inference of deliberate indifference." Id. at 676-77.
"The instruction is proper where the evidence shows (1) subjective
18
awareness of a high probability of the existence of illegal
conduct, and (2) purposeful contrivance to avoid learning of the
illegal conduct." United States v. Threadgill, 172 F.3d 357, 368
(5th Cir. 1999).
Rodney concedes that if his defense had been that he was
merely present at a drug deal and did not know that his brother
requested scales in order to weigh the cocaine, a deliberate
ignorance instruction would have been proper. He contends,
however, that his defense was that he never actually attempted to
obtain the scales from the neighbor. He argues that because he
testified that he knew both that a drug deal was taking place and
that the scales were to be used for measuring drugs there was no
basis for the submission of the instruction on deliberate
ignorance.13
13
Rodney also complains that the prosecutor’s closing
argument compounded the error. Rodney asserts that the prosecutor
argued that it did not matter whether Rodney attempted to obtain
the scales. We reject Rodney’s interpretation of the prosecutor’s
argument. Instead, we understand the prosecutor’s argument to be
that it did not matter whether Rodney was actually successful in
his attempt to obtain the scales, only that he attempted to obtain
them. Moreover, contrary to Rodney’s contentions otherwise, we
believe the court’s charge, which included the following
instruction on “mere presence,” would have cured any confusion.
The “mere presence” instruction provided:
Mere presence at the scene of an event, even with
knowledge that a crime is being committed, or the
mere fact that certain persons may have associated
with each other, and may have assembled together
and discussed common aims and interests, does not
necessarily establish proof of the existence of a
conspiracy. Also, a person who has no knowledge
of a conspiracy, but who happens to act in a way
19
Rodney’s contentions are partially correct. He testified that
at the time his brother asked him to retrieve the scales, he did
not know there was a drug transaction taking place. In any event,
he did testify that, after he left the apartment and was walking to
the neighbor’s apartment, he realized that his brother was
conducting a drug transaction. Assuming that it was error for the
district court to submit the instruction, Rodney’s admission of
actual knowledge proves fatal to his claim. “We have consistently
held that an ‘error in giving the deliberate ignorance instruction
is ... harmless where there is substantial evidence of actual
knowledge.’" Threadgill, 172 F.3d at 369 (quoting United States v.
Cartwright, 6 F.3d 294, 301 (5th Cir. 1993)). Accordingly, we
conclude that any error in submitting the charge was harmless.
C. DUE PROCESS VIOLATION
1. District Court’s Refusal to Rule
Shenard claims that, in response to exercising his right to
trial, the government violated his due process rights by
manipulating the sentencing guidelines. He first argues that the
district court refused to rule on this objection based on a
which advances some purpose of a conspiracy, does
not thereby become a conspirator. . . .
Of course, mere presence at the scene of a
crime and knowledge that a crime is being
committed are not sufficient to establish that the
defendant either directed or aided and abetted a
crime unless you find beyond a reasonable doubt
that the defendant was a participant and not
merely a knowing spectator.
20
technical failure to object to a certain paragraph in the
presentence report.
Our careful examination of the record leads us to conclude
that the district court did not refuse to rule on his claim of
prosecutorial vindictiveness at sentencing based on a technical
failure to object to a certain paragraph in the presentence report.
It appears to us there are two possible interpretations of the
district court’s response to Rodney’s objection. On one hand, it
could be that the district court simply did not perceive that
Shenard was raising the due process claim of prosecutorial
vindictiveness.14 Instead, the court understood that Shenard was
objecting to the inclusion of the additional amounts of drugs but
in doing so failed to articulate any challenge to the “rationale
for calculating the amount of crack cocaine [attributable] to
[him].”
On the other hand, the government believes that the district court
ruled that Shenard could not prevail on his claim of prosecutorial
vindictiveness because he had not undermined the factual basis for drug
calculation. Under either scenario, it is undisputed that the district
court never expressly addressed Shenard’s claim of prosecutorial
vindictiveness, and the government agrees that the district court’s
reasoning was not dispositive of this claim. Therefore, regardless of
14
Although the objection was not precisely made, we believe that
it was sufficiently raised in the district court. We note in its brief
the government has expressly stated that Shenard’s “objection below
claimed prosecutorial vindictiveness.”
21
the district’s interpretation of Shenard’s claim of prosecutorial
vindictiveness, we now address it on the merits.
2. Prosecutorial Vindictiveness
As stated, Shenard asserts that the government violated his due
process rights by vindictively increasing the drug quantity after he
exercised his right to trial. This Court, sitting en banc, has made
clear that in deciding claims of prosecutorial or judicial
vindictiveness, we should neither attempt to classify the decisions,
e.g., pre- or post-trial, nor measure the case against “fixed gauges.”
United States v. Krezdorn, 718 F.2d 1360, 1364 (5th Cir. 1983) (en
banc). Instead, we should apply the following test. Id. at 1365.
If the defendant challenges as vindictive a
prosecutorial decision to increase the number or
severity of charges following a successful appeal,
the court must examine the prosecutor’s actions in
the context of the entire proceedings. If any
objective event or combination of events in those
proceedings should indicate to a reasonable minded
defendant that the prosecutor’s decision to
increase the severity of charges was motivated by
some purpose other than a vindictive desire to
deter or punish appeals, no presumption of
vindictiveness is created.
In the case at bar, we must therefore determine whether there is
an objective event that should have indicated that the government’s
decision to hold Shenard responsible for all the drugs attributable to
him was motivated by some purpose other than a vindictive desire to
punish him for exercising his right to trial. Although Krezdorn
involved prosecutorial vindictiveness after a successful appeal, we have
applied the above-quoted test in a case alleging vindictiveness after
22
the defendant successfully repudiated a plea agreement. See United
States v. Moulder, 141 F.3d 568 (5th Cir. 1998). In Moulder, after
pleading guilty pursuant to a plea agreement, the defendants had
successfully obtained the district court’s dismissal of their
convictions based on a subsequent Supreme Court decision. Id. at
572. In response, the government reinstated charges that
previously had been dismissed pursuant to the plea agreement. We
concluded that “it should be clear to a reasonable minded defendant
that the dismissal of the . . . conviction in the light of Bailey15
was an event that would certainly motivate the government to
reinstate the dismissed drug charge.” Id. (footnote added).
Initially, the government apparently held Shenard accountable
for less drugs as a dispensation for a guilty plea. Subsequently,
the district court granted the government’s motion to revoke the
plea agreement with Shenard, finding “that the undisputed evidence
presented by the government supports that contention that Mr.
[Shenard] Wells has breached his agreement by failing to
cooperate.” It seems that a reasonable defendant would understand
that his breach of the plea agreement would motivate the government
to revoke their decision to hold Shenard accountable for the lesser
amount of drugs.
The prosecutor’s decision to hold Shenard accountable for the
greater quantity of drugs after he breached the plea agreement is
15
516 U.S. 137, 116 S.Ct. 501 (1995).
23
comparable to the prosecutor’s decision in United States v. Molina-
Iguado, 894 F.2d 1452 (5th Cir. 1990). In Molina, the government
arrested a defendant on felony and misdemeanor charges, then
dropped the felony counts when she signed a plea agreement. At a
hearing, however, the defendant refused to consent to the
jurisdiction of a magistrate and asserted her right to proceed
before a district judge. The government successfully moved to
withdraw the plea agreement and reinstated the felony charges.
This Court held that the prosecutor’s actions did not create a
presumption of vindictiveness. Id. at 1455.
Molina-Iguado suggests that a defendant should realize
breaching a plea agreement is an event that could cause the
prosecutor to withdraw leniency with respect to the sentencing
recommendation previously given. The facts of this case simply do
not indicate that the government was punishing Shenard for going to
trial. Here, the government moved to have the plea agreement
revoked based on Shenard’s failure to cooperate.16 Because a
presumption is inappropriate and Shenard has presented no evidence
16
The government’s decision was also motivated by the
government’s belief that Shenard had obstructed justice. Although the
jury acquitted Shenard of those charges, the Supreme Court has made
clear that acquittal is not a barrier to consideration of the underlying
conduct at sentencing so long as that conduct was proven by a
preponderance of the evidence. See United States v. Watts, 519 U.S.
148, 117 S.Ct. 633 (1997). Cf. United States v. Stokes, 124 F.3d 39,
45 (1st Cir. 1997) (explaining that “prosecutors are not required to
function as bloodless automatons: they may (indeed, they should) make
judgments about dangerousness, set priorities, and give heightened
attention to cases which inspire a sense of outrage”).
24
of actual vindictiveness, we must reject Shenard’s vindictiveness
claim.
D. OBSTRUCTION OF JUSTICE
Shenard finally challenges his obstruction of justice
enhancement, arguing that the district court relied on a finding
that it did not actually make at his plea agreement revocation
hearing. He concedes that this enhancement does not affect his
sentencing range and any error was harmless unless this Court
reverses on his vindictiveness claim. Because we do not find his
claim of prosecutorial vindictiveness meritorious, we agree that
any error was harmless.
For the above reasons, we VACATE Loletta Scott’s convictions and
REMAND for further proceedings. We AFFIRM the convictions of Rodney
Wells. Finally, we AFFIRM Shenard Wells’ sentence.
25