IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21216
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN FORTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(00-CR-531-1)
March 24, 2003
Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Presenting numerous issues, many of which were not raised in
district court, John Forte appeals his conviction and sentence for
possession with intent to distribute cocaine. The principal issue
is whether Forte had standing to challenge a seizure and search of
suitcases (containing the cocaine) being delivered to him, but
before he received them. DISMISSED in PART; AFFIRMED in PART,
resulting in the conviction and sentence being AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
On 12 July 2000, a DEA Agent at a Houston, Texas, airport
discovered freezer packs (containing cocaine in liquid form) in
suitcases being transported by Angela Gegg and Marissa Laken. Gegg
told the Agent that she and Laken were delivering the cocaine to
Forte in Newark, New Jersey. Gegg and Laken agreed to cooperate
with law enforcement by recording conversations with Forte and
making a controlled delivery of the cocaine to him. That evening
and the next morning, several conversations between Gegg and Forte
were recorded.
That next morning (13 July), the women and several officers
flew to Newark. When they arrived, Gegg called Forte and asked him
to pick up Laken and her. Upon Forte arriving at the airport,
Gegg handed him the suitcases; he was arrested.
In January 2001, Forte and Laken were charged with one count
of possession with intent to distribute five kilograms or more of
cocaine on 12 July 2000, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii) and 18 U.S.C. § 2, and a related conspiracy count.
(Gegg had entered a plea agreement.)
Trial began in late August 2001, with Laken soon pleading
guilty. At trial, the Government claimed: Forte contracted with
Chris Thompson, an experienced drug trafficker, to supply Thompson
with female drug couriers to transport cocaine; Forte recruited
Gegg, Laken, and Jessica Robinson; prior to the July 2000 incident
2
for which Forte was indicted, Gegg and Robinson each made multiple
drug-transport trips (some involving international travel) at
Forte’s direction; and, for that July incident, Forte contracted
with Gegg and Laken to transport from Harlingen, Texas, to New York
City collapsible coolers containing ice packs filled with cocaine.
Forte’s defense was that he did not knowingly possess the
cocaine. He testified he believed he was introducing Thompson to
women who could discretely transport money.
In September 2001, a jury convicted Forte on the possession
with intent to distribute count; it acquitted him on the conspiracy
count. Forte was sentenced, inter alia, to a 168-month
imprisonment term.
II.
Trial had four days of testimony, among others, by Forte,
Thompson, Gegg, Laken, and Robinson. Forte retained new counsel
for this appeal. New counsel present 13 issues (some involve sub-
issues) concerning pre-trial, trial, and sentencing; but, seven of
those issues, as well as a portion of another, were not preserved
in district court, including, for example, no motion for judgment
of acquittal. The glaring difference between issues preserved and
issues presented is, perhaps, explained by the fact that appellate
counsel did not try this case; they are scouring a cold record in
an attempt to find reversible error. That, of course, is their
obligation to their client. On the other hand, nothing in this
3
opinion is intended to suggest that Forte’s trial counsel should
have preserved in district court the many issues being raised for
the first time on appeal.
For the pre-trial phase, Forte contends: (1) the freezer
packs should have been suppressed because the warrantless seizure
and search violated the Fourth Amendment; and (2) the court
improperly denied his motion to dismiss the indictment for
Government misconduct (presentation of perjured testimony to grand
jury).
For the trial, he contends: (1) the court denied him a valid
challenge for cause, requiring him to unnecessarily exercise a
peremptory strike against that juror and forcing him to accept
another objectionable juror; (2) the prosecutor abused her work
product privilege and improperly deprived him of witness
statements; (3) the prosecutor improperly and repeatedly referred
to Forte’s exercise of his Fifth Amendment right to post-arrest
silence and assistance of counsel; (4) the court improperly
instructed the jury on willful blindness even though no evidence
justified the instruction; (5) the court improperly instructed that
the Government was not required to prove Forte knew the controlled
substance was cocaine; (6) the court erred when it excused a juror
after deliberations had begun and recalled an alternate; and (7)
the evidence was insufficient to support his conviction for knowing
possession with intent to distribute cocaine.
4
For sentencing, Forte claims the court improperly: (1)
assessed him a management role; (2) failed to apply the safety
valve guideline; (3) denied an “aberrant behavior” downward
departure because it based its decision on acquitted count conduct;
and (4) sentenced him more harshly solely because he went to trial
and declined to cooperate.
The standard of review for the sufficiency challenge is
presented infra. For the other issues, we normally review the
district court’s legal conclusions de novo; its factual findings,
only for clear error. E.g., United States v. Chavez-Villareal, 3
F.3d 124, 126 (5th Cir. 1993). A finding is clearly erroneous if
we are left with the definite and firm conviction that a mistake
has been committed. E.g., United States v. Hernandez, 279 F.3d
302, 306 (5th Cir. 2002).
The many issues not raised in district court are reviewed only
for plain error. FED. R. CRIM. P. 52(b); e.g., United States v.
Garcia-Flores, 246 F.3d 451, 457 (5th Cir. 2001). This narrow
standard requires Forte to demonstrate a “clear” or “obvious” error
that affected his substantial rights. Id. Even then, we have
discretion to correct the error and will generally do so only if it
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings”. E.g., United States v. Calverley, 37
F.3d 160, 164 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.
1196 (1995).
5
A.
For the pre-trial phase, Forte contends: (1) the cocaine was
discovered during a seizure and search that violated his Fourth
Amendment rights and should have been suppressed; and (2) the
indictment should have been dismissed because the Government
presented perjured testimony to a grand jury.
1.
Forte maintains he had standing to contest the seizure and
search and that they were unconstitutional. Because Forte lacks
standing, we do not reach the latter issue.
In December 2000 (prior to trial), Forte joined co-defendant
Laken’s motion to suppress. In an extremely comprehensive and
fact-intensive motion, with supporting documents and legal
authority, Forte claimed, inter alia: he had standing to challenge
the search of the suitcases carried by Laken and Gegg. The
Government contested standing.
At the start of the suppression hearing, the district court
ruled Forte had failed to make a prima facie showing for standing.
It determined Forte’s extensive joinder motion papers failed to
state sufficient specific facts to show either (1) a possessory or
ownership interest in the seized luggage or any of its contents or
(2) his interest was one that society recognizes as objectively
reasonable. The court reasoned, based on the allegations in those
papers, that Forte had no reasonable expectation of privacy,
6
because all he owned, or expected to own, was the cocaine. The
court offered Forte an opportunity to present new evidence related
to standing; he declined. (Subsequently, Laken’s motion to
suppress was denied.)
The denial of a suppression motion is reviewed de novo.
United States v. Gomez, 276 F.3d 694, 697 (5th Cir. 2001). Whether
a defendant has standing to challenge a search and seizure is
reviewed de novo; underlying factual findings, of course, only for
clear error. E.g., id. Forte has the burden of demonstrating
standing. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.
1994). In reviewing a ruling on a motion to suppress (including
standing), we review “the evidence taken at trial as well as the
evidence taken at the suppression hearing”. United States v.
Alvarez, 6 F.3d 287, 289 (5th Cir. 1993), cert. denied, 511 U.S.
1010 (1994).
“In general, a person who is aggrieved by an illegal search
and seizure only through the introduction of damaging evidence
secured by a search of a third person’s premise or property has not
had any of his Fourth Amendment rights infringed.” Wilson, 36
F.3d. at 1302. See also United States v. Krout, 66 F.3d 1420,
1430-31 (5th Cir. 1995), cert. denied, 516 U.S. 1136 (1996). “Co-
defendants ... may not assert the Fourth Amendment rights of their
alleged partners in crime solely on the basis of their
7
interpersonal association.” United States v. Dyar, 574 F.2d 1385,
1391 (5th Cir.), cert. denied, 439 U.S. 982 (1978).
As the district court held, to establish standing, Forte must
show: (1) an actual, subjective expectation of privacy with respect
to the place searched or things seized; and (2) that expectation is
one society would recognize as reasonable (collectively reasonable
expectation of privacy). E.g., United States v. Cardoza-Hinojosa,
140 F.3d 610, 614 (5th Cir.), cert. denied, 525 U.S. 973 (1998);
United States v. Thomas, 120 F.3d 564, 571 (5th Cir. 1997), cert.
denied, 522 U.S. 1061 (1998). To determine whether Forte had the
requisite reasonable expectation of privacy, we consider several
factors: “whether [Forte] has a [property or] possessory interest
in the thing seized or the place searched”; “whether he has the
right to exclude others from that place”; “whether he has exhibited
a subjective expectation of privacy that it would remain free from
governmental intrusion”; “whether he took normal precautions to
maintain privacy”; and (not applicable here), “whether he was
legitimately on the premises”. Cardoza-Hinojosa, 140 F. 3d at 615.
In applying this test, the reasonable expectation of privacy
vel non is reviewed de novo. E.g., United States v. Vicknair, 610
F.2d 372, 379 (5th Cir.), cert. denied, 449 U.S. 823 (1980).
Again, underlying factual findings are reviewed only for clear
error. Id. The following analysis demonstrates Forte lacked
standing.
8
a.
For the legitimate expectation of privacy prong (as opposed to
whether society would recognize it as reasonable, discussed infra),
and regarding the sub-issue of a property or possessory interest,
Forte did not have either interest in the suitcases or their
contents at any time prior to or during the search. First, he
never owned the suitcases. Thompson and Jose Flores purchased them
in Texas, and gave them to Gegg and Laken. Second, Forte did not
own a single item in either suitcase. Thompson and Flores provided
the coolers and freezer packs filled with cocaine; the suitcases
contained those items, as well as the women’s clothing and other
personal belongings.
Forte confirmed this, testifying at trial that he was merely
a courier, his role being to deliver the suitcases to Thompson; he
testified that he did not even intend to open the suitcases because
the contents did not belong to him and he was to hold them for
Thompson. Moreover, Forte clearly did not possess the suitcases or
their contents at the relevant time: for the search in Houston,
Gegg and Laken were in sole possession of the luggage.
Regarding the right to exclude others from the suitcases,
Forte had no right to exclude anyone. Only Gegg and Laken could
have done so. (Voluntarily vel non, the women failed to exercise
this right, providing access to the suitcases.)
9
Regarding both exhibition of a subjective expectation of
privacy and precautions taken to maintain privacy, Forte did
neither. He never had the suitcases in his possession until he met
Gegg and Laken at the Newark airport; before then, while he was
more than 1,000 miles away (in the New York area), the suitcases
were purchased in Texas by Thompson and Flores and placed in the
possession of Gegg and Laken. Cf. Rawlings v. Kentucky, 448 U.S.
98 (1980) (one who put drugs in another’s purse had no reasonable
expectation of privacy). The suitcases were unlocked, which is
inconsistent with an expectation of privacy, see, e.g., United
States v. Payne, 119 F.3d 637 (8th Cir.), cert. denied, 522 U.S.
987 (1997), and were traveling openly on a common carrier as
“checked” luggage, subject at least to inspection by airport
security.
Forte claims standing because: the suitcases were being
delivered to him; he took possession of them; and he claimed an
interest in their contents. He notes: he made telephone calls
checking on the arrival of the suitcases and assuring their safe
delivery; he warned the women not to draw attention to themselves
or raise any “red flags”; and, when Gegg threatened to abandon the
suitcases at the Newark airport instead of delivering them to
Forte's apartment, he went to the airport to receive them. (Forte
asserts (for the first time in his reply brief) that the Government
is precluded from contending Forte lacked standing because, at
10
trial (subsequent to pre-trial no-standing ruling), the Government
took the position that Forte did all of these things. No authority
need be cited for the rule that we generally do not review issues
first raised in a reply brief.)
Forte's actions are insufficient to vest him with standing.
Although the suitcases may have been intended for him (so he could
transfer them to Thompson), Forte did not have a property or
possessory interest at the time of the earlier search and did not
maintain a right to exclude others from the suitcases or freezer
packs at that time. Forte’s actions reflect a desire to avoid
detection by law enforcement; but, they do not demonstrate a
generalized expectation of privacy in the suitcases or constitute
reasonable precautions to exclude others. See Cardoza-Hinojosa,
140 F.3d at 616 (citing Rakas v. Illinois, 439 U.S. 128, 143-44
n.12 (1969)) (“the ‘subjective expectation of not being discovered’
conducting criminal activities is insufficient to create a
legitimate expectation of privacy”).
Forte cites United States v. Villareal, 963 F.2d 770, 774 (5th
Cir. 1992), for the proposition that persons do not lose their
expectation of privacy in repositories of personal effects they
send by private parties. Villareal held the defendant had a
reasonable expectation of privacy in a container he shipped by
common carrier (a motor transport company) to himself using a
fictitious name. Id. Villareal stated that a party does not
11
surrender expectations of privacy by sending closed containers by
private parties. Id. A legitimate expectation of privacy vel non,
however, is a fact-specific inquiry to be decided on a case-by-case
basis, based on the totality of the circumstances. E.g., United
States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981), cert.
denied, 455 U.S. 1022 (1982).
Obviously, this case is factually distinct from Villareal on
a number of grounds, the most significant of which is that Forte
lacked an ownership interest in the suitcases (or their contents).
Further, in Villareal, no other party could have potentially
consented to a search of the container (it was in the possession of
the carrier at the time of the search). Here, Gegg and Laken had
possession of the luggage, including the ability to exclude others.
In sum, Forte has not met his burden of demonstrating a
legitimate expectation of privacy. Cf. Payne, 119 F.3d 637 (no
legitimate expectation of privacy in car, where defendant did not
own car and had not possessed or driven it; or in suitcase, where
defendant only possessed it for a short time, it was zipped not
locked, and identification tags did not name him).
b.
Even assuming Forte demonstrated a legitimate expectation of
privacy, he cannot meet the second prong for standing — that
expectation is one society would recognize as reasonable. See
Thomas, 120 F.3d at 571. The cocaine was not in Forte's personal
12
possession and was, instead, being conveyed by common carrier in
another person’s luggage.
2.
Forte and Laken were indicted on two counts: (1) possession
with intent to distribute cocaine; and (2) conspiracy in that
regard. Forte claims the district court erred in denying his
motion to dismiss the indictment because of the Government's
knowing presentation of perjured testimony to the grand jury, as
urged in Laken's August 2001 motion. Forte joined that motion.
Laken alleged that a DEA Agent presented perjured testimony to
the grand jury to secure an indictment on two occasions (with three
statements): the Agent testified in September 2000 that Gegg and
Laken admitted they knew they were carrying drugs; and testified in
January 2001 that Laken became involved in the case before her
arrest in July 2000 and that Laken was instructed on how to
preserve the cocaine. The court orally denied the motion to
dismiss.
The denial of a motion to dismiss the indictment for
Governmental misconduct is reviewed de novo. United States v.
Johnson, 68 F.3d 899, 902 (5th Cir. 1995). We review only for
clear error factual findings regarding perjury, United States v.
Strouse, 286 F.3d 767, 771 (5th Cir. 2002), and prosecutorial
misconduct, United States v. Bourgeois, 950 F.2d 980, 984 (5th Cir.
13
1992). The materiality of perjured statements is determined de
novo. Strouse, 286 F.3d at 771.
“Government misconduct does not mandate dismissal of an
indictment unless it is so outrageous that it violates the
principle of fundamental fairness under the due process clause”;
such violations are found only in the rarest circumstances.
Johnson, 68 F.3d at 902 (internal quotation marks omitted). The
knowing presentation of perjured testimony at trial in order to
secure a conviction constitutes such a due process violation.
E.g., Miller v. Pate, 386 U.S. 1 (1967). However, where the
Government presents false testimony to the grand jury, the
indictment may be dismissed only if the testimony is knowingly
sponsored by the Government and material to the decision to indict.
See Strouse, 286 F.3d at 773-74. A statement is material if it is
capable of influencing the factfinder with regard to the issue
before it. Id. at 771.
As demonstrated infra, the Agent did not present false
testimony. Therefore, we do not reach the other elements necessary
for the relief sought on this issue.
a.
The Agent immediately clarified to the grand jury that neither
Gegg nor Laken admitted to knowingly transporting cocaine:
Just to clarify it, when the girls [Gegg and
Laken] ... were approached ... they said it
was just cooler packs ... they eventually told
14
us that they weren’t really sure what was in
there ... and we explained ... we had seen
narcotics transported in manners like this,
and both girls didn’t come right out and say,
“Yes, I know that there’s fourteen kilos of
cocaine in there,” but Marissa [Laken] says
that she didn’t actually open the suitcases
....
(Emphasis added.)
b.
Regarding whether the Agent testified falsely that Laken had
been involved in the scheme since June 2000, there is trial
testimony that: around that time (approximately one month before
the arrests), Forte asked Gegg whether she would be interested in
carrying cocaine hidden in coolers; she discussed this with Laken
(her roommate); and the two decided “[h]ell, yeah, let’s do it.
Rock on”.
c.
Regarding whether Forte gave both Laken and Gegg instructions
on how to care for the freezer packs to prevent them from melting,
Forte claims he spoke only to Gegg when she was in Houston on 12
July (day before arrest) and instructed her to put the “ice cream”
on ice in a hotel bathtub to prevent it from thawing. As the
Government points out, the instructions were intended for both
women, who were operating together. Each had freezer packs of
cocaine in her suitcase that had to be put on ice.
15
B.
For the trial, Forte contends: (1) the district court
improperly denied him a challenge for cause, requiring him to use
a peremptory strike and accept another unacceptable juror; (2) the
prosecutor failed to turn over witness statements as required under
the Jencks Act; (3) the prosecutor improperly used Forte's post-
arrest silence against him; (4) the willful blindness instruction
was not justified by evidence; (5) the instruction that the
Government was not required to prove Forte knew the controlled
substance was cocaine was incorrect; (6) the court erred in
excusing a juror and substituting an alternate; and (7) the
evidence was insufficient on the knowledge element to support his
conviction.
1.
The first denied challenge for cause concerned prospective
juror number 18. Forte maintains this denial was erroneous and
caused him to unnecessarily use a peremptory strike, which forced
him to accept another objectionable juror (number 25).
Forte challenged number 18 on the basis that she would give
more credence to a police officer than to an ordinary citizen.
Number 18 stated: she would not be open to the proposition that an
officer would “stretch the truth”; she put officers in a different
category than others (in terms of truth-telling); and she could not
say whether it would be difficult for her to follow an instruction
16
that the law regards “everyone even” in terms of how to assess
credibility. Relying on United States v. Duncan, 191 F.3d 569, 573
(5th Cir. 1999), cert. denied, 529 U.S. 1122 (2000), the district
court denied the challenge and Forte used a peremptory strike.
Number 25 stated during voir dire that she: had a very close
family member involved in drugs and alcohol; was not sure whether
she could not let that experience affect her impartiality, but
would try; and could not put her personal experience “out of [her]
mind”. The court then asked her whether she could conscientiously
base her decision solely on the evidence at trial; she responded:
“I would try to the best of my ability to do that”. Forte
challenged number 25 for cause. The court re-questioned the
potential juror: “Can you base your decisions in this case solely
on the evidence you hear in this courtroom?” She replied: “Yes,
I think I can.” The court denied the challenge and number 25
served on the jury.
A juror impartiality ruling is reviewed only for manifest
abuse of discretion. United States v. Munoz, 15 F.3d 395, 397 (5th
Cir.), cert. denied, 511 U.S. 1134 (1994). “We grant broad
discretion to the trial judge in making determinations of
impartiality and will not interfere with such decisions absent a
clear abuse of discretion.” United States v. Hinojosa, 958 F.2d
624, 631 (5th Cir. 1992).
17
Under the Sixth Amendment, Forte has a right to an impartial
jury, including “the exclusion of a potential juror if his views
would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath”.
Duncan, 191 F.3d at 573 (internal citation omitted). The loss of
a peremptory strike, however, does not violate the Sixth Amendment,
as long as the jury is impartial.
We have long recognized that peremptory
challenges are not of constitutional
dimension. They are a means to achieve the
end of an impartial jury. So long as the jury
that sits is impartial, the fact that the
defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth
Amendment was violated.
Id. (internal citation omitted). Accordingly, our inquiry is
limited to the impartiality vel non of number 25. See Ross v.
Oklahoma, 487 U.S. 81, 88 (1988).
The district court, which had the opportunity to evaluate the
credibility of number 25, including her demeanor, did not commit a
manifest abuse of discretion in denying the challenge. On the one
hand, that juror expressed her frustration with a close family
member who was involved in drugs and alcohol and who was currently
proceeding in the court system. On the other hand, she testified
she thought she could be fair and told the court she would try to
the best of her ability to base her decision solely on the
evidence. The court questioned number 25 regarding her ability to
18
decide the case based solely on that evidence; based on her answer,
it was assured she could do so.
2.
The district court did not require the prosecutor to produce
her notes of witness interviews (originally requested pre-trial).
Forte claims the prosecutor abused her work product privilege by
taking notes of witness interviews during preparation for trial,
but not reducing those notes to statements.
At a November 2000 hearing on discovery motions, the district
court ruled that neither side was required to preserve notes of
witness interviews. At a June 2001 hearing, Forte requested
witness statements by Thompson (hired Forte to recruit couriers).
The prosecutor told the court that Thompson had not made any Jencks
Act statements, but that she had debriefed Thompson and made notes.
Forte responded that the Government was purposefully not writing
reports of its witness interviews. The court ruled that the
Government did not have to prepare such reports and determined that
it had substantially complied with its discovery obligations.
Nevertheless, the prosecutor provided her interview notes to the
court for an in camera inspection.
The day before Thompson testified at trial, Forte’s counsel
again requested any interview notes or reports concerning
Thompson's statements, as well as those of Robinson (courier not
involved in July incident). The prosecutor responded that neither
19
Thompson nor Robinson had prepared a statement and there were no
reports; she had only her handwritten notes of her interviews.
The court ruled that it would listen to the testimony, and if
any of the prosecutor’s notes were discoverable under the Jencks
Act, Brady v. Maryland, 373 U.S. 83 (1963) (evidence favorable to
the accused or useful to the defense for impeachment must be
produced), or Giglio v. United States, 405 U.S. 150 (1972) (same),
in the light of that testimony, it would provide the notes (in its
possession) to the defense. The court also directed the Government
to produce Thompson for an interview by Forte’s counsel. Although
the Government did so, Thompson apparently refused, of his own
volition, to be interviewed when he met with Forte's counsel.
After hearing the testimony and conducting its in camera review,
the court determined that the notes contained no discoverable
Jencks, Brady, or Giglio material.
A district court’s decisions regarding discovery under the
Jencks Act are reviewed only for clear error. United States v.
Hodgkiss, 116 F.3d 116, 117 (5th Cir. 1997). And, even if we
determine there was a violation, we conduct harmless error review.
Id.
Under the Jencks Act, the Government must provide the
defendant with witness statements relating to the subject matter on
which the witness has testified. 18 U.S.C. §§ 3500(b), (e)(1). A
“statement” includes a written statement made by the witness and
20
signed or otherwise adopted and approved by him, and a
substantially verbatim recital of a statement made and
contemporaneously recorded. 18 U.S.C. § 3500(e)(1), (2). (Brady
and Giglio hold the Constitution forbids the Government from
suppressing evidence favorable to the accused or useful to the
defense for impeachment of witness who testifies against the
accused. 373 U.S. 83; 405 U.S. 150.)
In United States v. Martino, 648 F.2d 367 (5th Cir. 1981),
further unrelated proceedings at 681 F.2d 952 (5th Cir. 1982),
defendants raised essentially the issue being raised by Forte.
They “condemn[ed] the manner in which the government conducted
interviews with its witnesses ostensibly to avoid producing Jencks
Act material”, challenging its practice of interviewing potential
witnesses during which no written or recorded statements were taken
and maintaining the Government purposely failed to record the
interviews or create “statements”. Id. at 387. Noting that “[i]t
is undisputed that interview notes taken by an interviewer during
an interview with the witness do not qualify as a statement under
the Jencks Act”, Martino held that the notes were not discoverable
Jencks Act statements. Id.
No requirement has been brought to our
attention that all interviews must be recorded
or that interview notes must be reduced to
writing and signed or otherwise approved by
the witness. We cannot presume that the
prosecutor acted in bad faith by failing to
reduce his notes to written form.... Indeed
21
only the foolish or exceptionally talented
counsel will depend solely on his memory when
preparing for the examination of a key
witness. But the fact that counsel usually
will take notes does not mean that these notes
often will be “statements”. Counsel rarely
take down verbatim what witnesses say in these
prepatory conferences. Consequently
prosecutors’ notes may be expected to meet the
requirements of [the Jencks Act] very
infrequently.
Id. (internal citations omitted).
In any event, the prosecutor’s notes are not in the record.
Thus, we cannot determine whether those notes are sufficiently
detailed to constitute one of the “very infrequent” instances where
they must be produced. “It is well-settled that the appellant
bears the burden of creating the record on appeal. Fed. R. App. P.
11(a). If the record does not establish a basis for reversal, we
must affirm.” United States v. Coveney, 995 F.2d 578, 587 (5th
Cir. 1993). See also United States v. Myers, 198 F.3d 160 (5th
Cir. 1999), cert. denied, 530 U.S. 1220 (2000). Forte did not
include the notes in the record. Lacking them, there is no basis
on which we can hold that the failure to disclose them violated the
Jencks Act (or, assuming it did, that the error was not harmless).
3.
During cross-examination of Forte, and in order to impeach his
exculpatory story (believed only money being transported), the
prosecutor raised Forte's post-arrest silence in conjunction with
post-arrest interviews he gave:
22
Q. And you testified on direct that [the
Agent] told you that you were under arrest for
possession of cocaine. Remember that?
A. Yes.
Q. And when you were arrested for possession
of cocaine and you were given an opportunity
to explain your involvement you didn’t claim
ignorance, did you?
A. No, I did not.
Q. You didn’t claim mistake, did you?
A. No, I did not.
Q. You didn’t claim innocence, did you?
A. No. I asked for a call—I asked to call
my lawyer.
Q. You didn’t say, “Whoa, possession of
cocaine? There’s clearly been some mistake.
I thought it was money,” did you?
A. I asked to call my lawyer.
Q. As a matter of fact, when given the
opportunity to explain your involvement to law
enforcement in this operation that you now
claim you thought was completely legal, you
lied to them, didn’t you?
A. Did I lie to them? In what respect?
Q. Well, let’s go through it because you
said that you don’t really remember the
conversation. But [the Agent] did. As a
matter of fact, she made a report of that
conversation.
A. Yes, she did.
Q. And she testified you lied to her, didn’t
she?
A. I’m not privy to that. Can we go over
that again?
23
***
Q. And you heard [the Officer] ask you how
you got involved in the drug business, and you
didn’t say “Drug business? I’m not involved
in the drug business,” did you?
A. [The Officer] never asked me how I got
myself involved in the drug business, she
asked me how I got myself involved in this
situation.
Q. And when asked by [the Officer], you
didn’t say at that time, “I’m innocent. I
don’t know anything about any cocaine,” did
you?
A. I said, “Sometimes things happen beyond
your control.”
Q. You didn’t say to [the Officer] when she
asked you how you got involved in this, “Hey,
hey, wait a minute. I thought this was money.
I didn’t know anything about cocaine,” did
you?
A. No.
Q. As a matter of fact, you didn’t offer a
denial to [the Officer], you offered an
explanation?
A. No. I was in handcuffs.
Forte did not object during this colloquy.
Forte rested at the conclusion of his testimony, and the
Government had no rebuttal evidence. Shortly thereafter, a
conference was held outside of the presence of the jury to discuss,
inter alia, the time permitted for closing argument. Pursuant to
Doyle v. Ohio, 426 U.S. 610 (1976) (Due Process Clause prohibits
impeachment of defendant’s exculpatory story by using defendant’s
24
post-arrest, post-Miranda silence), the district court sua sponte
cautioned the prosecutor “to be awfully careful in final argument
about any Doyle error”. It noted that the Government was “allowed
to cross examine [Forte]” about “inconsistent statements he gave to
[the Agent] and other[s]” but recommended that she “stay away from
it entirely” and cautioned her that, if she was going to use it,
she should carefully read the Doyle precedent. (Emphasis added.)
Because Forte did not object to the reference to his post-
arrest silence, we review only for plain error. E.g., Garcia-
Flores, 246 F.3d 451. Again, we will only reverse if, inter alia,
there was a clear or obvious error that affected Forte’s
substantial rights.
As mentioned, Doyle held that the Due Process Clause prohibits
using the defendant’s post-arrest, post-Miranda silence to impeach
his exculpatory story, offered for the first time at trial. It
forbids the Government’s exploitation of silence after the
Government has helped induce it by informing the defendant of his
right to remain silent. E.g., Jenkins v. Anderson, 447 U.S. 231
(1980) (use of pre-arrest silence does not violate due process).
On the other hand, as the district court discussed with
counsel, Doyle does not prohibit all use of post-arrest silence.
For example, Doyle is not violated by the impeachment use of a
defendant’s voluntary statement made post-Miranda warnings.
Anderson v. Charles, 447 U.S. 404, 408 (1980); Pitts v. Anderson,
25
122 F.3d 275, 279-83 (5th Cir. 1997). In other words, and
consistent with the above-referenced comment by the district court,
“Doyle does not apply to cross-examination that merely inquires
into prior inconsistent statements”, because “[s]uch questioning
makes no unfair use of silence” and “a defendant who voluntarily
speaks after receiving Miranda warnings had not been induced to
remain silent”. Charles, 447 U.S. at 408.
a.
It does not appear that the prosecutor’s references
constituted Doyle-error. Even assuming arguendo there was error,
it was not plain error. First, although the prosecutor clearly
intended to use Forte’s silence to impeach the story he offered at
trial, it is not “clear” or “obvious” that this use violated Doyle.
Forte did not exercise his right to remain silent after his
arrest and Miranda warnings. He voluntarily waived his rights and
agreed to be interviewed, without the presence of his attorney, by
the Agent and later by the Officer referenced in the above-quoted
colloquy.
During these interviews, Forte claimed he did not know the
contents of the suitcases; at trial, he testified he had believed
they contained money, not cocaine. As such, the prosecutor’s
cross-examination may be viewed as an attempt to impeach Forte
through the use of a prior inconsistent statement (permitted by
Charles) rather than a plea for the jury to infer guilt from his
26
exercise of his Fifth Amendment rights (prohibited by Doyle). See
Pitts, 122 F.3d at 281 (most courts have held where post-arrest and
trial statements involve the same subject matter and the post-
arrest statement is sufficiently incomplete to be “arguably
inconsistent”, comments upon omissions are permitted).
b.
Even assuming a “clear” or “obvious” Doyle error, Forte has
not shown it substantially affected his rights; nor has he shown
the error was so significant that we should exercise our discretion
to correct it. In cases where Doyle error has been held
reversible, the critical error was the prosecutor’s closing
argument use of an inference of guilt from post-arrest silence.
United States v. Rodriguez, 260 F.3d 416, 421 n.2 (5th Cir. 2001),
for instance, held the Doyle error was reversible,
emphasiz[ing], that it was the prosecutor’s
foregoing final comment [during closing
argument] that crossed the Doyle line. The
prosecutor’s questioning of [the defendant]
during cross-examination was a permissible
attempt to impeach....
See also Garcia-Flores, 246 F.3d at 457 (gravamen of claimed Doyle
violation focused on Government’s closing argument). The
prosecutor heeded the district court’s advice and, during closing
argument, did not refer to Forte’s post-arrest silence.
27
4.
28
Forte claims the district court erred by instructing on
willful blindness because the evidence was insufficient to support
the instruction. During the charge conference, Forte agreed,
however, that a willful blindness instruction was “appropriate”.
Therefore, the court, without objection, instructed as follows:
You may find that [Forte] had knowledge of a
fact if you find that [Forte] deliberately
closed his eyes to what would otherwise have
been obvious to him. While knowledge on the
part of [Forte] cannot be established merely
by demonstrating that [Forte] was negligent,
careless, or foolish, knowledge can be
inferred if [Forte] deliberately blinded
himself to the existence of a fact.
Because Forte did not object, we review only for plain error.
See, e.g., FED. R. CRIM. P. 30, 52(b); United States v. Gray, 96 F.3d
769, 775 (5th Cir. 1996), cert. denied, 520 U.S. 1129 (1997). (In
fact, because Forte expressly agreed to the instruction, the
claimed error is arguably invited error. See United States v.
Pankhurst, 118 F.3d 345, 349 (5th Cir.), cert. denied, 522 U.S.
1030 (1997) (agreeing in charge conference to later-challenged
instruction nearly invited error).)
When reviewing a jury instruction, we determine “whether the
charge, as a whole, is a correct statement of the law and whether
it clearly instructed the jurors as to the principles of law
applicable to the factual issues confronting them”. United States
v. Farfan-Carreon, 935 F.2d 678, 680 (5th Cir. 1991) (internal
citations omitted). A “deliberate ignorance” or “wilfull
29
blindness” instruction is appropriate when “the facts support an
inference that the defendant was subjectively aware of a high
probability of the existence of illegal conduct, and ... he
purposefully contrived to avoid learning of the illegal conduct”.
United States v. Fierro, 38 F.3d 761, 772 (5th Cir. 1994), cert.
denied, 514 U.S. 1051 (1995) (internal citations omitted).
Forte does not contend that the instruction misstated the law.
Rather, he maintains the evidence was insufficient to support it
because nothing demonstrated his conscious purpose to avoid
enlightenment.
The instruction was supported by Forte’s testimonial denial of
his knowledge that Gegg and Laken were transporting cocaine and his
claim he thought they were instead carrying money. Inter alia,
Forte testified on direct examination as follows:
Q. What did you start thinking, they’re in
Panama, they’re in Mexico City, they’re
bringing money? Somehow your mind had to be
working, like, what’s all this about. I mean,
just basic curiosity. Did you make any
assumptions? If so, what were they?
A. In all honesty, that was [Thompson’s]
business. So, I didn’t think it was
necessarily my place to delve into that as
long as at the end of the day, he would stick
to his end of the agreement and provide me the
money....
5.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring
v. Arizona, 536 U.S. 584 (2002), Forte maintains that, because a
30
quantity and type substance were charged in the indictment, the
Government had to prove these elements beyond a reasonable doubt.
The court instructed the jury, without objection:
The government is not required to show that
[Forte] knew that the substance involved was
cocaine. It is sufficient if the evidence
establishes beyond a reasonable doubt that
[Forte] possessed with intent to distribute a
controlled substance.
Again, unobjected-to instructions are reviewed only for plain
error.
Forte’s contention is foreclosed by our recent decision in
United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir. 2003): the
Government is not required to prove a defendant’s mens rea
regarding the type and quantity of a controlled substance for drug
possession offenses.
6.
The district court excused a juror after deliberations had
begun and substituted an alternate. Deliberations began late in
the morning of 5 September 2001. Early that afternoon, the court
received a note from the jury seeking direction because one of the
jurors had limited English proficiency.
The court advised counsel that, if the juror was
incapacitated, the court could excuse her and either proceed with
only 11 jurors or substitute an alternate. It then conducted an
evidentiary hearing (although one was not required) to determine if
the juror was incapacitated. See United States v. Virgen-Moreno,
31
265 F.3d 276, 288 (5th Cir. 2001), cert. denied, 534 U.S. 1095
(2002).
The juror testified: she only spoke a little English; she
only understood the testimony in the case “[a] little bit, not too
much”; and she was unable to communicate in English with her fellow
jurors. After giving counsel the opportunity to recommend
additional questions for the juror (they had none), the court ruled
that the juror was not conversant in English, did not understand
the testimony, and could not read documents in English. Without
objection, the court excused the juror, recalled an alternate, and
ordered the jury to begin its deliberations anew.
A district judge's decision to remove a juror he believes is
impaired is reviewed only for abuse of discretion. E.g., United
States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992), cert.
denied, 508 U.S. 905 (1993).
[I]t is within the trial judges’s sound
discretion to remove a juror whenever the
judge becomes convinced that the juror’s
abilities to perform his duties become
impaired. We will not disturb the judge’s
decision unless we find that it prejudiced the
defendant or another party. Prejudice occurs
... when a juror is discharged without factual
support or for a legally irrelevant reason.
Id. (internal citations omitted).
Forte maintains: the juror was not incompetent; and, even if
she were (and her dismissal proper), the district court should have
32
instead proceeded with 11 jurors. Because Forte did not object, we
review only for plain error.
a.
Dismissing the juror, who the court had good reason to believe
was impaired (based on the jury’s note and her own testimony), was
not error, much less plain error; the decision fell well within the
court's broad discretion. The juror was dismissed with factual
support and for a legally-relevant reason (inability to fulfill her
duties as a juror).
b.
Likewise, substituting the alternate for the dismissed juror,
rather than proceeding with 11, was not error, much less plain
error. Substitution is allowed by FED. R. CRIM P. 24(c)(3):
Retention of Alternate Jurors. When the jury
retires to consider the verdict, the court in
its discretion may retain the alternate jurors
during deliberations. If the court decides to
retain the alternate jurors, it shall ensure
that they do not discuss the case with any
other person unless and until they replace a
regular juror during deliberations. If an
alternate juror replaces a juror after
deliberations have begun, the court shall
instruct the jury to begin its deliberations
anew.
Before the jury began its deliberations, the court permitted
the alternate to leave the courthouse after instructing him not to
discuss the case with anyone because he could be required to serve
if one of the jurors became incapacitated. The court also told the
alternate it would call him and advise him once the jury had
33
reached a verdict. After the court excused the incapacitated
juror, and before recalling the alternate, it confirmed, by
telephone, that the alternate had not spoken to anyone about the
case. And, consistent with the rule, post-substitution the jury
was instructed “to begin its deliberations anew”. Forte does not
contend that the rule was not followed.
7.
Forte claims the evidence was insufficient to support his
conviction for possession with intent to distribute cocaine. He
challenges only the sufficiency of the evidence on the “knowledge”
element, claiming the evidence establishes that he only knew money
was being transported.
Forte did not move for a Federal Rule of Criminal Procedure 29
judgment of acquittal. Normally, evidence is sufficient if, after
viewing all evidence in the light most favorable to the verdict,
any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See, e.g., United States
v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc), cert.
denied, 71 U.S.L.W. 3567 (U.S. 3 March 2003) (No. 02-8782).
However, where, as here, a defendant fails to request a judgment of
acquittal, our review is limited, inter alia, to determining
whether “the record is devoid of evidence pointing to guilt”. Id.
at 885. See also, e.g., Delgado, 256 F.3d 264, 274 (5th Cir.
2001).
34
Forte contends, on the other hand, that he preserved his
sufficiency claim by objecting to the inconsistency of the verdicts
(conviction for possession, acquittal for conspiracy). This
contention is without merit. E.g., United States v. Haney, 429
F.2d 1282 (5th Cir. 1970)(sufficiency of evidence not preserved
where no motion for judgment of acquittal). In the alternative,
Forte asserts (for the first time in his reply brief) that, if
indeed there was no acquittal motion, then counsel was ineffective
for failing to so move. Again, generally, we do not review issues
raised for the first time in a reply brief. Even if we did, we
would not review this ineffective assistance of counsel claim on
this direct appeal; among other reasons, it has not been addressed
by the district court. E.g., United States v. Armendariz-Mata, 949
F.2d 151 (5th Cir. 1991), cert. denied, 504 U.S. 945 (1992).
Needless to say, the record is far from devoid of evidence
that Forte knowingly possessed with intent to distribute cocaine.
Three witnesses (Thompson, Robinson, and Gegg) testified that Forte
knew cocaine was being transported.
There was evidence that, inter alia: Thompson was an
experienced drug trafficker who contracted with Forte to recruit
young females to transport cocaine; Thompson explained to Forte
that the cocaine would be hidden in freezer packs to escape
detection by drug-sniffing dogs and x-rays; Forte recruited
Robinson in May 2000 to carry such packs from Panama to Mexico City
35
and then to Reynosa, Texas; and, upon Robinson's return, Forte
explained to her the chemical process to liquify the cocaine for
travel in the frozen freezer packs and then to extract it.
Regarding the count of conviction, there was evidence that,
inter alia: Forte recruited Gegg and Laken to transport freezer
packs of cocaine; although Forte told them they would be
transporting cash, Gegg confronted him by telephone when she
discovered (12 July 2000) she would be transporting cocaine; Forte
directed Gegg to return to New York that night, before the ice
packs melted (recorded conversation); when Forte learned the women
could not return until the next morning, he instructed Gegg to put
the “ice cream” on ice to prevent its melting (recorded
conversation); “ice cream” was a code name for the freezer packs
containing cocaine; Forte was concerned about the possibility of
raising a “red flag” to law enforcement (recorded conversation);
and, when Gegg arrived at the airport, she told Forte she was
concerned that the “ice cream” could melt if she took a taxicab to
his apartment, and he reassured her it would be fine (recorded
conversation).
C.
For sentencing, Forte contends: (1) the management-role
enhancement should have been proven to the jury beyond a reasonable
doubt and was otherwise improper; (2) the safety valve should have
been applied; (3) Forte deserved an “aberrant behavior” downward
36
departure; and (4) he was punished for exercising his right to
trial.
1.
For the leadership enhancement, Forte presents two claims.
For the first time on appeal, he contends that the court erred by
using a preponderance of the evidence standard in making the
assessment. According to Forte, Apprendi, 530 U.S. 466, requires
the managerial role to be proved to a jury beyond a reasonable
doubt. Next, he contends that the facts did not support the
enhancement; he maintains he did not manage anyone, but merely
passed on Thompson's directions.
The district court adopted the Pre-Sentence Investigation
Report (PSR) and increased Forte’s base offense level by three for
being a manager or supervisor, pursuant to U.S.S.G. § 3B1.1(b). It
provides:
If the defendant was a manager or supervisor
(but not an organizer or leader) and the
criminal activity involved five or more
participants or was otherwise extensive,
increase by 3 levels.
Forte objected to the enhancement.
The Apprendi question is a legal issue, normally reviewed de
novo. See, e.g., United States v. Doggett, 230 F.3d 160, 165 (5th
Cir. 2000), cert. denied, 531 U.S. 1177 (2001). Because it was not
raised in district court, it is reviewed only for plain error.
Assignment of a leadership role is reviewed only for clear error.
37
E.g., United States v. Peters, 283 F.3d 300, 314 (5th Cir. 1990),
cert. denied, 535 U.S. 1071 (2002).
a.
Regarding Apprendi, the district court did not err, much less
commit plain error, in applying the preponderance standard rather
than requiring the jury to decide the leadership issue under the
reasonable doubt standard. Factual determinations by the district
court that simply dictate a sentence within the statutorily allowed
range are not called into question by Apprendi. E.g., United
States v. Miranda, 248 F.3d 434, 444 (5th Cir.), cert. denied, 534
U.S. 980 (2001); United States v. Garcia, 242 F.3d 593, 599 (5th
Cir. 2001).
In fact, we have specifically rejected the claim that Apprendi
requires a leadership role to be proven to a jury beyond a
reasonable doubt. United States v. Clinton, 256 F.3d 311 (5th
Cir.), cert. denied, 534 U.S. 1008 (2001). Forte contends,
however, that the recent decision in Ring, 536 U.S. 584, reinforces
his reading of Apprendi and demonstrates our court has been reading
Apprendi too narrowly. Ring, however, simply held (consistent with
our case law) that, where enumerated aggravating factors operate as
the functional equivalent of an element of a greater offense, they
must be proven beyond a reasonable doubt to the jury. 536 U.S.
584. See also United States v. Matthews, 312 F.3d 652 (5th Cir.
2002) (post-Ring)(key factor in whether element must be proved to
38
jury beyond reasonable doubt is whether it exceeds statutory
maximum penalty).
The leadership assessment did not operate as the functional
equivalent of an element of a greater offense; in other words, it
did not increase the sentence above the statutorily imposed range.
Forte’s sentence is within the statutory maximum of life.
b.
Nor did the district court commit clear error in assessing a
management role. The enhancement requires an activity that
involved five or more persons (Forte, Thompson, Gegg, Laken, and
Flores) and a role as a manager or supervisor (but not as a leader
or organizer, which warrants a greater enhancement). U.S.S.G. §
3B1.1(b).
In determining whether a role was managerial or supervisory,
courts consider
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control exercised
over others.
U.S.S.G. § 3B1.1 n.4. The purpose of the assessment is to punish
more severely those who “tend to profit more [from an offense] and
present a greater danger to the public and/or are more likely to
recidivate.” U.S.S.G. § 3B1.1, cmt.
39
Forte instructed the women regarding details; throughout the
offense, Gegg called Forte for instructions. For example, Forte
told the women to return to New York from Houston (12 July); when
that was not possible, he instructed them to put the “ice cream” on
ice. He also instructed them to exchange their tickets for a later
flight on the same airline rather than fly on another carrier, in
order to not raise suspicions.
Forte was a major participant, who worked closely with
Thompson to coordinate the pick up, transportation, and delivery of
cocaine. Thompson’s cellular telephone records indicate 22
telephone calls between him and Forte on the day before the arrest.
Forte also recruited the women, arranged their itineraries, and
gave them directions (e.g., where to go when they arrived in
Harlingen). He kept in touch with them by telephone throughout the
day, providing instructions and advice.
Regarding the fruits of the crime, Thompson agreed to pay
Forte $10,000 on a per trip basis to recruit the female couriers.
Forte was responsible for paying his couriers out of that amount.
On 5 July 2000, Forte agreed to pay Gegg and Laken $1000 each for
the Texas to New York trip. Thompson, not Forte, reimbursed the
women for their travel expenses. Thus, Forte’s net share was
$8000, compared to $1000 for each woman.
Finally, Forte and at least four others transported
approximately 13 kilograms of cocaine from Harlingen to Newark.
40
The entire operation took several days to execute and involved
various hotels and airports in Harlingen, Houston, and Newark.
In sum, it is true that Thompson exercised more of a
leadership role than Forte in organizing the offense. But, Forte’s
enhancement was for management, not leadership.
2.
Forte maintains the court failed to apply the safety valve
guideline, U.S.S.G. § 5C1.2, because it improperly assessed him a
management role. Forte did not object to not applying the
reduction. Therefore, although whether to apply § 5C1.2 is
normally reviewed for clear error, United States v. Flanagan, 80
F.3d 143, 145, here we review only for plain error.
To be eligible for the safety valve provision of 18 U.S.C. §
3553(f), adopted verbatim in U.S.S.G. § 5C1.2, a defendant must
meet five requirements: (1) he did not have more than one criminal
history point; (2) he did not use, or threaten to use, violence or
possess a firearm; (3) the offense did not result in death or
serious bodily injury; (4) he was not a manager or supervisor; and
(5) he truthfully provided all information concerning the offense
to the Government before the sentencing hearing. 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2.
Because Forte does not qualify for the safety valve reduction,
there was no error, much less plain error. As discussed supra,
Forte was properly assessed a managerial role; therefore, he does
41
not satisfy the fourth factor. We need not address whether he
provided information to the Government.
3.
According to Forte, the district court erred by denying a
downward departure for aberrant behavior, based upon acquitted-
count conduct. He claims the court relied improperly on evidence
pertaining to the conspiracy count, for which he was acquitted. At
the sentencing hearing, the district court ruled:
[Forte] was involved in a sophisticated drug
distribution scheme that got drugs from
Columbia, to Mexico, to the United States, to
New York and Canada. He was an integral
manager of that scheme, and he did it for the
money over quite a long period of time. So
there was not an incident of aberrant
behavior. He was doing it for the money. He
was a professional drug dealer in it for the
money.
Forte did not object to the now-claimed reliance on acquitted-count
conduct as a basis for the downward departure denial.
The district court did not erroneously believe it lacked the
authority to depart. Instead, it refused to do so. Therefore, we
lack jurisdiction to review this issue.
A defendant’s general dissatisfaction with his
sentencing range provides no ground for review
of a district court’s refusal to grant a
downward departure. We have jurisdiction only
if the refusal was in violation of the law. A
refusal to depart downward is a violation of
the law only if the district court’s refusal
is based on the mistaken belief that the court
lacked discretion to depart.
42
United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000), cert.
denied, 532 U.S. 986 (2001) (internal citations and footnotes
omitted).
4.
Forte's final contention is that the district court improperly
sentenced him, within the guidelines’ range, more harshly than Gegg
and Laken because he exercised his right to a trial and declined to
cooperate. He asserts that the district court indicated its
intention to depart downward based on disproportionate sentences
given Gegg and Laken (18 months each), but ultimately declined to
do so.
Before pronouncing sentence, the district court considered
departing downward from the bottom of the guidelines range (168 to
210 months) to the ten-year mandatory minimum. Forte contended:
he was a good person gone astray; he tutored an underprivileged
youth; he received an extraordinary education; he used his musical
career to promote morality; and he had no knowledge of, or control
over, the purity of the cocaine. The Government objected to a
downward departure, and the district judge held that none of the
points Forte had raised justified one.
Next, the district judge expressed concern about the disparity
between the proposed sentence for Forte and those given Gegg and
Laken, noting: “Of course, that disparity is because of a number
of factors: his role in the offense, [and] the fact that they pled
43
guilty and agreed to cooperate”. (Emphasis added.) The court then
asked the Government to explain what additional deterrent effect
would be achieved, or penological interest served, by the
additional 48 months Forte would serve at 168 months as opposed to
120 months (the mandatory minimum). The Government emphasized
Forte’s decision to go to trial rather than cooperate. The
district court then declined to grant the downward departure.
As discussed supra, we have no jurisdiction to review a
district court’s decision not to depart from the sentencing
guidelines, unless that court believed it lacked authority to do
so. Regarding a departure on the basis of disparity, the district
judge did not believe he could not depart; instead, he considered
doing so and decided it would not be appropriate. Accordingly, we
lack jurisdiction to review that decision.
III.
For the foregoing reasons, that portion of Forte's appeal
concerning denial of a downward departure is DISMISSED; the rulings
contested in the balance of the appeal are AFFIRMED. Accordingly,
Forte's conviction and sentence are AFFIRMED.
44
United States v. Forte
Combined Opinion