United States v. Green

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 99-30761
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

HENRY L. GREEN, BENJAMIN BLOUNT,
RONALD LEE BLOUNT, JR., JOHNNY GREEN,
RONALD PERNELL GREEN, and COREY LYNDELL BLOUNT,
Defendants-Appellants.

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Appeals from the United States District Court
For the Western District of Louisiana

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June 11, 2002

Before POLITZ, STEWART, and CLEMENT, Circuit Judges.*

CLEMENT, Circuit Judge:

I. FACTS AND PROCEEDINGS

Defendants engaged in drug trafficking over a period of eight

and a half years in parts of Texas and Louisiana. Defendants were

indicted on June 11, 1998, on seven counts. The grand jury

returned a superceding indictment on December 8, 1998, that added

one count of distribution of cocaine base and additional overt acts

*
Judge Politz was a member of the panel that heard oral arguments. However, due
to his death on May 25, 2002, he did not participate in this decision. This case
is being decided by a quorum pursuant to 28 U.S.C. § 46(d) (1996).

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to the conspiracy charged. The counts in the superceding

indictment were: conspiring to possess with intent to distribute

over fifty grams of cocaine base between January 1, 1990, and May

7, 1998 (count 1); distribution of cocaine base (counts 2, 3, 5, 6,

and 7); use of a communication facility to facilitate or cause

controlled substance offenses (count 4); and participation in a

continuing criminal enterprise (count 8).

The district court convicted all defendants of count 1.1

Defendants were sentenced as follows (all terms to run

concurrently): Corey Blount to 48 months imprisonment followed by

one year supervised release on count 4 and life imprisonment

followed by five years supervised release on count 8; Ronald Blount

to life followed by ten years supervised release on count 1 and 96

months imprisonment, three years supervised release on count 4;

Benjamin Blount to life imprisonment, ten years supervised release

on count 1; Henry Green to life imprisonment, ten years supervised

release on count 1, 360 months imprisonment, eight years supervised

release on count 2, and 360 months imprisonment, eight years

supervised release on count 3; Ronald Green to life, ten years

supervised release on count 1, 360 months, eight years supervised

on count 3, 96 months, one year supervised on count 4, 360 months,

eight years supervised on count 5, and life, ten years supervised

1
Corey Blount’s conviction on this charge was dropped because of double jeopardy
concerns.

2
on count 6; and Johnny Green to 600 months, five years supervised

on count 1, and 600 months, five years supervised on count 6.

II. ANALYSIS

A. Continuing criminal enterprise

Corey Blount was convicted on counts 1, 4, and 8. His

conspiracy conviction was dismissed on a government motion entered

to avoid double jeopardy. Corey challenges his conviction for

participating in a continuing criminal enterprise (“CCE”) between

January 1, 1992, and November 1, 1996, under 21 U.S.C. § 848 (count

8).

A continuing criminal enterprise involves a drug violation

that “is a part of a continuing series of violations.” Richardson

v. U.S., 526 U.S. 813, 815 (1999) (citing § 848(c)). Corey claims

that the jury was not properly instructed that each crime in the

series is an element of the CCE charge and that all jurors must

agree that the defendant committed three specific offenses.

According to Richardson, decided after Corey’s trial but before

sentencing, “a jury in a federal criminal case brought under § 848

must unanimously agree not only that the defendant committed some

‘continuing series of violations’ but also that the defendant

committed each of the individual ‘violations’ necessary to make up

that ‘continuing series.’” 526 U.S. at 815. It is not disputed

that in light of Richardson the jury instruction given was in

error. It is disputed whether or not the error was harmless.

3
 The court gave the jury the standard pre-Richardson Fifth

Circuit instruction for defining the elements of a continuing

criminal enterprise.2 Corey did not object at trial because

Richardson had not been decided at that time. Once Richardson was

decided, Corey filed a motion to dismiss on the grounds that the

instruction did not ensure jury unanimity as to which three crimes

made up the continuing series. The district court held that the

error did not affect Blount’s substantial rights and stated that

even if it did, it would use its discretion to deny relief under

Rule 52(b) of the Federal Rules of Criminal Procedure. It asserted

that in view of the overwhelming evidence of his guilt as a leader

of a well-organized extensive drug distribution network the error

did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings.

Neder v. United States held that an omission in jury

2
The jury instruction read:
“First: That the defendant violated the Controlled Substances Act as charged
in Counts 2 through 6 of the superceding indictment;
Second: That such violations were part of a continuing series of violations,
as hereinafter defined;
Third: That the defendant obtained substantial income or resources from the
series of violations; and
Fourth: That the defendant undertook such violations in concert with five or
more other persons with respect to whom the defendant occupied a
position of organizer, supervisor or manager. The five other
persons need not have acted at the same time or in concert with each
other.
A ‘continuing series of violations’ means at least three violations of the
Controlled Substances Act as charged in Counts 2 through 6 of the superseding
indictment, and also requires a finding that those violations were connected
together as a series of related or ongoing activities as distinguished from
isolated and disconnected acts. In this case, a ‘continuing series’ means at
least three of the violations alleged in the superseding indictment.”

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instructions of an essential element of the offense charged is

subject to harmless error review. 527 U.S. 1 (1999). Where a

court omits an essential element, the conviction is affirmed if it

is beyond a reasonable doubt that a rational jury would have found

the defendant guilty absent the error. Id. at 18. United States

v. Olano laid out three requirements for plain error review: (1)

error and no waiver; (2) plain or obvious error; and (3) error

affecting the defendant’s substantive rights. 507 U.S. 725, 730-32

(1993). Even if the three requirements are satisfied, the court

has the discretion not to correct an issue that does not seriously

“affect the fairness, integrity, or public reputation of judicial

proceedings.” Id. Plain errors are clear and obvious under

current law. Id. at 732-34. When Corey was tried and convicted,

existing precedent did not require unanimity as to the specific

violations constituting the continuing criminal enterprise. At

that time, the error was not clear and obvious, but it was clear

and obvious at the time of this appeal. When there was no error

under the law existing at the time of trial, but plain error at the

time of appeal, the plainness prong is satisfied. United States v.

Miranda, 248 F.3d 434, 445 (5th Cir. 2001).

Since the jury agreed that Corey committed three specific

crimes in the series and the evidence of his guilt was

overwhelming, the error here was harmless and did not affect the

fairness or integrity of the proceedings. The jury convicted

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Blount of conspiracy and of count 4, which contained the predicate

violations supporting the CCE count. Implicit in the convictions

is the jury’s unanimous agreement that Blount was guilty of three

specific violations in the CCE series.

B. Apprendi and penalty enhancements for drug quantity

Defendants claim that the absence of a requirement in the jury

instructions on the conspiracy charge that the jury find a specific

amount of crack cocaine resulted in Apprendi error. Under this

Circuit’s interpretation of Apprendi v. New Jersey, 530 U.S. 466

(2000), drug quantities that the government uses to seek penalty

enhancements under 21 U.S.C. § 841(b)(1)(A) or (B) must be charged

in the indictment, submitted to the jury, and proved beyond a

reasonable doubt. United States v. Green, 246 F.3d 433, 436 (5th

Cir. 2001). Because defendants raise this issue for the first time

on appeal,3 review is for plain error even though Apprendi was

decided after trial. United States v. Meschack, 225 F.3d 556, 575

(5th Cir. 2000); United States v. Rios-Quintero, 204 F.3d 214, 215

(5th Cir. 2000); Johnson v. United States, 520 U.S. 461, 466

(1997).

3
Ronald and Johnny Green argue that they submitted a request for responsive
verdicts that constituted a request for the jury to determine specific amounts
of cocaine. (No such request is in the record.) In United States v. Candelario,
240 F.3d 1300, 1311-12 (11th Cir. 2001), the court reviewed the Apprendi issue
for plain error because, even though defendant objected to the drug amount, he
did not raise a constitutional objection on Apprendi grounds. Defendants’
requests for responsive verdicts logically fall into this category of objecting
but not raising the specific constitutional objection based on Apprendi
principles.

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 Though the instruction on the conspiracy charge did not

explicitly inform the jury that they had to determine a specific

amount, it did require the jury to find three elements beyond a

reasonable doubt with respect to each defendant. The instruction

concerning the first element required the jury to find each

defendant party to an agreement with at least one other person to

possess “with intent to distribute cocaine base, ‘crack’, as

charged in the indictment.” The indictment stated that each

defendant possessed with intent to distribute “over fifty (50)

grams of cocaine base or ‘crack’” and that the conspiracy involved

more than “fifty (50) grams of cocaine base.” It also listed overt

acts involving well over fifty grams and the government presented

testimony that the conspiracy dealt with amounts far exceeding

fifty grams.

The error was harmless. Given the reference to the

indictment, the jury found the defendants guilty of conspiring to

possess with the intent to distribute “over fifty (50) grams of

cocaine base,” and the record holds more than enough evidence to

substantiate the over fifty grams threshold that triggers maximum

sentencing pursuant to § 841(b)(1)(A). See Green, 246 F.3d at 437

(holding that the district court’s failure to instruct the jury on

quantity was harmless, in part, because the testimony regarding

quantity was “extensive, detailed, and uncontroverted”).

C. Sequestration of witnesses

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 Defendants raise two claims concerning witnesses at trial.

For both claims, review is for abuse of discretion. The opposing

party must demonstrate resulting prejudice to obtain a reversal.

United States v. Hickman, 151 F.3d 446, 453 (5th Cir. 1998); United

States v. Posada-Rios, 158 F.3d 832, 871 (5th Cir. 1998) (review of

the district court’s decision to allow the testimony of witnesses

despite a violation of Federal Rule of Evidence 615, the rule of

sequestration, is for abuse of discretion); Moore v. United

States, 598 F.2d 439, 442 (5th Cir. 1979) (review of the district

court’s conduct at trial, including the examination of witnesses,

is for abuse of discretion). The judge abuses his discretion when

his behavior is “so prejudicial that it denied the [defendant] a

fair, as opposed to a perfect, trial,” United States v. Saenz, 134

F.3d 697, 702 (5th Cir. 1998), and the judge’s intervention was

substantial considering the totality of the circumstances. United

States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994).

1. Three investigating officers not sequestered

The district court allowed three investigators to sit at

counsel table throughout the trial. All three officers testified

as fact witnesses concerning the search of the home of Henry

Green’s parents in January 1996. The officers represented the FBI,

the Louisiana State Police, and the Allen Parish Sheriff’s Office.

Federal Rule of Evidence 615 gives the court discretion to exempt

more than one case agent from sequestration if their presence is

8
essential to the presentation of the case. United States v.

Alvarado, 647 F.2d 537, 540 (5th Cir. 1981).

The trial court overruled the defendants’ objections to the

presence of the investigators. The court determined that the

investigators’ presence was essential to the presentation of the

case. The case was complex. The investigation was lengthy, broad

geographically, and involved numerous witnesses. The conspiracy

was from 1990 to 1998, and occurred throughout Houston, Texas,

Oakdale, Louisiana, and surrounding areas. Each investigator

represented a different law enforcement entity during the

investigation. None of the agencies took part in all aspects of

the investigation, and each performed independent investigations.

Due to the complexities of the case and the defendants’ failure to

show how the investigators’ presence prejudiced their testimony or

that their testimony had a significant impact on the conviction,

the district court did not abuse its discretion.

2. Sequestration of prison witnesses

Approximately thirty-seven of the government’s witnesses were

housed together at a prison facility before they testified. The

court failed to instruct them not to discuss the case, a violation

of Federal Rule of Evidence 615, the rule of sequestration.

Defense counsel suggested to the district court that the government

witnesses were discussing the substance of their testimony with

each other before and after testifying. In response, the district

9
court conducted a thorough examination and found that witnesses

kept to themselves concerning the trial. Relying on United States

v. Blasco, 702 F.2d 1315, 1326 (5th Cir. 1983), and United States

v. Bobo, 586 F.2d 355, 366 (5th Cir. 1978), the district court

denied defendants’ motions for mistrial. Defendants have not shown

any taint by discussions with other witnesses nor any prejudice.

Given the thorough investigation and the defendants’ failure to

bring out any actual harm or prejudice, we do not find abuse of

discretion.

D. Questioning of witness Joseph Reed

Besides himself, Benjamin Blount introduced one witness in his

defense. That witness was Joseph Martin Reed, a member and manager

of a band Benjamin played in during the time of the conspiracy.

Reed testified that to his knowledge Benjamin never participated in

the drug trade and, given their closeness and the amount of time

they spent together (allegedly three to four nights a week), he

felt that it was impossible for Benjamin to have traded drugs

without him knowing. The defense elicited testimony from Reed that

he did not do drugs and did not allow band members to drink and

smoke when they rode with him to a show. Before Reed left the

stand, the court asked him a series of questions that brought out

the fact that he did not report income the band received in cash

10
for tax purposes.4

Federal Rule of Evidence 614(b) allows the district court to

“interrogate witnesses, whether called by itself or by a party.”

The judicial investigatory power is to be used to help the jury

understand the evidence; the court must be careful not to express

a bias or to confuse the roles of the judge and prosecutor. See

United States v. Reyes, 227 F.3d 263, 265 (5th Cir. 2000); Saenz,

134 F.3d at 702; Bermea, 30 F.3d at 1569.

Review is for plain error when the defendant fails to object

at trial. Saenz, 134 F.3d at 701. Though Benjamin’s counsel

requested a conference with the judge immediately after Reed was

excused, he acknowledged the court’s right to examine witnesses and

4
The court’s questions to Mr. Reed:
“Q. Mr. Reed, you indicate that you work 3 to 4 nights a week for this
band?
A. Yes, I do, your honor.
Q. You pay the other band members a hundred dollars a night?
A. Yes, I do.
Q. Do you file W-2 forms on them at the end of the year?
A. I do if--like most of my shows are dealing with like--excuse me--church
events. If it was something where I got a W-2 form where I had to show, I did,
but most of the times, like local, I was paid cash.
Q. Did you report that income and pay tax on it?
A. Some of the ones that I had W-2 on, correct.
Q. You’re telling me that only if you got a W-2 from somebody that you
played for, that was the only time you ever reported that income?
A. Yes, and--I also had a job, and whenever I got W-2 at the end of the
year, I turn it--I file my income tax.
Q. But when you got paid in cash, you didn’t report it?
A. No, sir, your honor.
Q. And you didn’t make any reports on any of these people that played for
you?
A. Uh, uh--
Q. Did you or did you not prepare W-2 forms and send them out to these
people at the end of the year?
A. No, sir.
Q. When you went to the horse stalls, did you go look in the haystacks to
see if you could find any drugs?
A. No, sir, your honor.”

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was principally concerned that the jury receive appropriate

instructions. There was no objection to the questioning of Reed.

The court gave the standard jury instructions, telling the jury:

“Do not assume from anything I may have said that I have any

opinion concerning any of the issues in this case. Except for my

instruction to you on the law, you should disregard anything I may

have said during trial in arriving at your own findings as to the

facts.”

The judge’s questioning was negligible, with no cumulative

effect. See id. at 699. The judge’s only questions were at the

end of Reed’s testimony and relatively brief. Further, Benjamin’s

own testimony played a key role in his conviction and the

conviction did not hinge on Reed’s testimony. The line of

questioning does not reach the plain error and abuse of discretion

thresholds.

E. Alleged inaccuracies in the trial transcript

Johnny, Henry, and Ronald Green claim inaccuracies in the

trial transcripts. A court reporter “shall record verbatim by

short hand or by mechanical means . . . (1) all proceedings in

criminal cases had in open court . . .” The Court Reporter Act, 28

U.S.C. § 753(b) (1970). A criminal defendant has a right to a

record on appeal, including a complete transcript of the

proceedings at trial. United States v. Selva, 559 F.2d 1303, 1305

(5th Cir. 1977). If the same attorney represents the defendant at

12
trial and on appeal, reversal is required only if the defendant can

show a failure to record that results in an undue hardship and

prejudices his appeal. However, where the defendant is represented

by different attorneys at trial and on appeal, the absence of a

substantial and significant portion of the record is sufficient for

reversal. See id.

Henry Green alleges twelve errors in the trial transcripts.

He is vague as to what the errors are and fails adequately to

explain what actually happened and how it differs from the

transcripts. His counsel disclaims any responsibility for the

validity of the claims. Given the vagueness of the claim and the

lack of a substantial effect on the trial, this claim lacks merit.

F. Whether Ronald Green had three prior convictions

Ronald Green was sentenced to mandatory life for conspiracy

(count 1) and distribution of cocaine base (count 6) pursuant to

the recidivist provisions of 21 U.S.C. § 841(b)(1)(A). Under 21

U.S.C. § 841(b)(1)(A), one prior conviction makes the range twenty

years to life; two prior convictions make the sentence mandatory

life. Prior convictions must be felony drug offenses that are

final, i.e., all times for appeal and filing for certiorari have

expired. This court reviews the application of sentencing

provisions and the sentencing guidelines de novo and the facts

supporting those applications for clear error. Posada-Rios, 158

F.3d at 877.

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 Green argues that because the offenses used occurred after the

beginning of the conspiracy they are not prior convictions.5

Because the conspiracy was a continuing offense that began in 1990

and continued until May 1998, see United States v. Miro, 29 F.3d

194, 198 (5th Cir. 1994) and United States v. Garcia Abrego, 141

F.3d 142, 167 (5th Cir. 1998), the offenses can be considered prior

and enhance Green’s sentence for conspiracy.

Green further argues that the three narcotics convictions the

government used to enhance his sentence pursuant to § 841(b) were

actually only one offense because they occurred within minutes of

each other. On September 14, 1990, a police officer observed

Ronald Green sell crack to individuals in a Ford LTD. Minutes

later Green sold to an undercover officer not related to the

persons in the Ford. Shortly after this second trade another

narcotics agent spoke to a “Mr. Caesar” about a trade. Caesar

called Green over to the vehicle to complete the sale. Green pled

guilty to the three counts on June 15, 1992, and was sentenced to

six years in prison.

The Fifth Circuit has adopted the reasoning of United States

v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994), that separate

convictions constitute only one offense when the violations occur

simultaneously but more than one when they occur sequentially.

5
His conviction on these offenses occurred after the distribution charged in count
6. The government concedes that count 6 cannot be enhanced pursuant to §
841(b)(1)(A).

14
United States v. Ressler, 54 F.3d 257, 260 (5th Cir. 1995). United

States v. Barr explicitly adopted this test for determining whether

two separate convictions constitute a single act of criminality for

purposes of 21 U.S.C. § 841(b)(1)(A). 130 F.3d 711 (5th Cir.

1997).

Hudspeth states that “when considering whether multiple

convictions arose out of ‘separate and distinct criminal episodes,’

[the court should look] to the nature of the crimes, the identities

of the victims, and the locations.” 42 F.3d at 1019. Among other

cases, Hudspeth cites United States v. Tisdale, 921 F.2d 1095 (10th

Cir. 1990), which held that burglaries of three stores in one

shopping mall by one defendant in the same night constituted three

separate offenses. The Tisdale court reasoned that “[a]fter the

defendant ‘successfully completed’ burglarizing one business, he

was free to leave. The fact that he chose, instead, to burglarize

another business is evidence of his intent to engage in a separate

criminal episode.” 921 F.2d at 1099.

Though the three offenses here occurred within minutes of each

other, they are distinct because they were sales to different

individuals and each transaction was complete in and of itself.

They were only related in that they occurred at the same place

within a short period of time and defendant was the seller in all

three. We affirm the sentence enhancement on the conspiracy

charge.

15
 G. Sufficiency of the evidence

Defendants’ sufficiency of the evidence claims are reviewed

under a stricter than usual standard, because none of the

defendants renewed their motions for judgment of acquittal at the

close of all evidence.6 United States v. Ruiz, 860 F.2d 615, 617

(5th Cir. 1988). Under the stricter standard, review is for “a

manifest miscarriage of justice,” which is found if the record is

“devoid of evidence pointing to guilt.” Id. The evidence is

considered in the light most favorable to the government. The jury

has responsibility for determining the weight and credibility of

testimony and evidence, even from co-conspirators. U.S. v. Garza,

42 F.3d 251, 253 (5th Cir. 1994); U.S. v. Landerman, 109 F.3d 1053,

1068 (5th Cir. 1997).

Having thoroughly reviewed the record and the arguments in the

briefs, we determine that no miscarriage of justice occurred here.

Given the standard of review and the overwhelming evidence, the

sufficiency of the evidence claims should be denied.

H. Additional claims

After careful consideration of the record and the briefs, we

find no merit in the additional claims raised by the defendants.

III. CONCLUSION

For all of the foregoing reasons, we find no merit in

6
The district court denied all of the motions for judgment of acquittal made after
the government rested.

16
defendants’ contentions on appeal and AFFIRM the sentences imposed

by the district court.

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