United States v. Davis

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2004

Charles R. Fulbruge III
Clerk
No. 03-20324

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GLEN M. DAVIS, also known as Glen Davis,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-90-1

Before SMITH, PRADO, and PICKERING, Circuit Judges.

PER CURIAM:*

Following a jury trial, Appellant Glen Davis was convicted

on two counts: 1) conspiracy to distribute in excess of five

kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii), and 846; and 2) possession with intent to

distribute in excess of five kilograms of cocaine in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii) and 18 U.S.C. § 2.

*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

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Davis was sentenced to two concurrent terms of life imprisonment

and was fined $25,000.00. He now appeals his conviction and

sentence. For the following reasons we affirm the conviction and

sentence.

Factual Background

On January 27, 1999, Houston Police Officer Dennie Harmon,

who was working at the Houston airport, noticed a female who

appeared “frantic.” This woman, later identified as Aldrenna

Wade, made successive phone calls without talking to anyone.

After Wade went through security and while she waited at the

gate, Officer Harmon observed that she seemed “real nervous.”

Wade then boarded the plane.

Officer Harmon, who had noted Wade’s name on her baggage,

brought a trained canine to sniff Wade’s checked luggage. The

canine alerted to Wade’s bags. Officer Harmon found Wade and

asked her to get off the plane. While Officer Harmon was

escorting Wade off the plane, an African-American male, later

identified as Davis, walked off the plane past Wade and Officer

Harmon.

A consensual search of Wade’s luggage revealed thirteen

kilograms of cocaine. Wade first told investigators that she was

carrying the cocaine for her cousin, but later stated that Davis

had given her the cocaine. Wade agreed to participate in a

controlled drug transaction, in which she would fly to Cleveland,

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Ohio, and attempt to deliver the cocaine there. The controlled

delivery was unsuccessful. However, agents of the Drug

Enforcement Administration (“DEA”) were still able to use Wade’s

statements to obtain an arrest warrant for Davis and a search

warrant for a house at 15627 Rio Del Sol in Houston, where they

believed Davis lived. DEA agents went to the house and watched

Davis leaving the driveway in his car. An agent followed Davis

but could not stop him. After a chase involving several DEA

agents, Davis was arrested and his car was searched. The agents

found a copy of Wade’s criminal complaint in the car. The agents

later searched the house and found a Nextel cellular phone bill

for a number Wade had called as part of the controlled sale, and

a drug ledger labeled “Glen.”

The DEA agents obtained a second warrant to search the house

after Wade informed them that Davis kept records of his drug

transactions on his computer. The agents then confiscated

Davis’s computer and disks from the Rio Del Sol residence.

Procedural History

After a jury trial, Davis and Wade were found guilty on one

count of aiding and abetting each other in the possession of,

with the intent to distribute, more than five kilograms of

cocaine. Davis appealed that conviction. The Fifth Circuit

reversed Davis’s conviction and remanded his case because the

trial judge did not adequately warn Davis about the dangers of

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pro se representation. After Davis’s case was remanded, the U.S.

Attorney added a superseding indictment charging Davis with

possession with intent to distribute more than five kilograms of

cocaine, and with conspiracy to possess with intent to distribute

more than five kilograms of cocaine. After a second trial in

which he was represented by counsel, Davis was convicted again.

Davis timely appealed this second conviction.

On appeal, Davis argues the district court erred by: 1) not

granting his motions to suppress2 the search warrants and his

motion to quash his arrest warrant; 2) not granting his motion to

dismiss the superseding indictment; 3) restricting cross-

examination; 4) enhancing his sentence based on a prior felony

drug offense; and 5) failing to ask him whether he admitted or

denied the prior convictions listed in his enhancement. Davis

also asserts that he is entitled to resentencing because the

prosecution did not serve him or his counsel with the information

of enhancement.

Motions

Waiver of motions to suppress

Davis contends the district court should have conducted an

evidentiary hearing on his motions to suppress the evidence

2
In his brief, Davis refers to a single “motion to suppress
all evidence seized from searches that occurred on February 4,
1999 and March 12, 1999." Appellant’s Br. at 11. However, the
trial record includes a separate motion to suppress for each
date. 4 R. at 44, 48.

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gathered in the searches of the Rio Del Sol residence and on his

motion to quash his arrest warrant. Before addressing the merits

of Davis’s suppression argument, we address the government’s

assertion that Davis waived his right to contest the suppression

on appeal. The government argues that Davis may not raise this

issue on appeal because 1) the issue was not decided by the trial

judge in open court and 2) Davis did not re-urge the motions at

trial. The government’s contention that the motions were not

ruled upon in open court is plainly wrong as the record shows

that both motions were denied in open court.3 Having received a

ruling, Davis did not need to re-urge the motions.

The government next contends that Davis waived his right to

argue the suppression issue in his present appeal because he

failed to raise the issue during his first appeal. We have held

that:

[a] legal decision made at one stage of a civil or
criminal case, unchallenged in a subsequent appeal
despite the existence of ample opportunity do so,
becomes the law of the case for future stages of the
same litigation, and the aggrieved party is deemed to
have forfeited any right to challenge that particular
decision at a subsequent date.

United States v. Becerra, 155 F.3d 740, 757 (5th Cir. 1998)

3
9 R. at 55 to 59 (“(Open court, defendant present) . .
.[prosecutor]: It was my understanding there were two motions to
suppress filed by the defendant[.] THE COURT: . . . one had to do
with suppress [sic] evidence executed on March 12th, I believe
the other had to do with the February 4th, and both of those are
denied.”)

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(quoting United States v. Bell, 988 F.2d 247, 250 (1st Cir.

1993)). Davis does not claim to have raised this issue in his

first appeal, nor could we find any reference to it in either of

his briefs from that appeal.4 Further, Davis does not allege any

reason he could not have raised the issue in his first appeal.

We note that although his first conviction was overturned because

he was not fully warned about the dangers of self-representation,

he was represented by an attorney during his first appeal.

Davis argues that he may appeal the suppression issue

regardless of whether he raised it in his first appeal. Davis

cites a portion of the dissenting opinion in United States v.

O’Keefe,5 to support the proposition that an issue may be raised

in a later appeal even if it was not raised in a previous appeal.

The portion of the O’Keefe dissent that Davis cites is itself

taken from MOORE’S FEDERAL PRACTICE.6 However, the citation refers

to an interlocutory appeal, not to an appeal of a final judgment.

4
Although the briefs from Davis’s first appeal are not part
of the record, we may take judicial notice of them. See FED. R.
EVID. 201(b); see also MacMillan Bloedel Ltd. v. Flintkote Co.,
760 F.2d 580, 587 (5th Cir. 1985) (affirming summary judgment
based on the district court’s judicial notice of pleadings,
files, and proceedings in a separate matter); United States v.
Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir. 2001) (“[a]n appellate
court may take judicial notice of facts, even if such facts were
not noticed by the trial court”).
5
169 F.3d 281, 283 (5th Cir. 1999) (Dennis, J.,
dissenting).
6
18 MOORE’S FEDERAL PRACTICE § 134.20 (3d ed. 1988).

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Davis’s first appeal was not an interlocutory appeal, but was an

appeal from a final judgment. Therefore, we apply the rules

relating to final judgment appeals and hold that Davis has waived

his right to appeal the denial of his motion to suppress.

Motion to quash the arrest warrant

Davis also asserts that the district court erred by not

granting his pro se7 motion to quash the arrest warrant. Davis

fails to explain how the district court erred on this issue.8 In

any case, this issue is now moot because the relief sought in the

motion to quash – pre-trial release – can no longer be granted.

See First Ind. Fed. Sav. Bank v. F.D.I.C., 964 F.2d 503, 507 (5th

Cir. 1992)(issue was moot where there was no meaningful relief

available that would redress the alleged harm). Therefore, we do

not examine Davis’s argument regarding his motion to quash the

arrest warrant.

Prosecutorial vindictiveness

Davis argues that the district court erred by refusing to

grant his motion to dismiss the superceding indictment.9 Davis

7
When Davis filed his pro se motion, he was represented by
counsel. For the purposes of argument, we assume the motion was
properly filed in the district court.
8
Although Davis in his brief purports to address both types
of motions, he only mentions the motion to quash in passing.
9
Davis does not state whether the motion was brought to the
attention of the trial court. The docket sheet lists the motion
as terminated on December 12, 2002, but we could find no mention
of the motion on the record. For the purposes of argument, we

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contends that the prosecution acted vindictively by superseding

the original one-count indictment against him with a two-count

indictment that included an additional conspiracy charge. We

review a district court’s factual findings on prosecutorial

vindictiveness for clear error and review the underlying legal

principles applied by the district court de novo. United States

v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996).

To determine whether a prosecutorial action was vindictive

“the court must examine the prosecutor’s actions in the context

of the entire proceedings.” United States v. Krezdorn, 718 F.2d

1360, 1365 (5th Cir. 1983)(en banc). There is no presumption of

vindictiveness if in the context of the entire proceedings “any

objective event or combination of events in those proceedings

should indicate to a reasonable minded defendant that the

prosecutor’s decision . . . was motivated by some purpose other

than a vindictive desire to deter or punish appeals . . . .”

United States v. Wells, 262 F.3d 455, 466-67 (5th Cir. 2001)

(quoting Krezdorn, 718 F.2d at 1365). The defendant has the

burden of proving, by a preponderance of the evidence,

prosecutorial vindictiveness. Krezdorn, 718 F.2d at 1365.

In this case, the government explained it had added the

conspiracy charge on the superseding indictment as a way to

assume the motion was brought to the attention of the trial court
and was denied.

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“overcome issues of admissibility as to certain testimony, not to

punish Davis for being successful on appeal.” This explanation

is reasonable because the added conspiracy charge allowed the

government greater flexibility in introducing witness testimony

about other drug-related incidents involving Davis. Davis

presents no argument to refute the government’s explanation.

Instead, the government has presented a plausible explanation for

the superseding indictment. Therefore, the trial court did not

err in failing to grant Davis’s motion to dismiss for

prosecutorial vindictiveness.

Recross-examination

Davis contends that the district court erred by not allowing

him to recross-examine two government witnesses – Officer Harmon

and a co-conspirator witness named Anita Shoemate. We review a

trial court’s restriction of the scope of cross-examination for

an abuse of discretion. United States v. Alexius, 76 F.3d 642,

644 (5th Cir. 1996). “In order to show an abuse of discretion

related to the limitations placed on cross-examination, a

defendant must show that those limitations were clearly

prejudicial.” United States v. Martinez, 151 F.3d 384, 390 (5th

Cir. 1998).

The right to recross-examine a witness is limited to

situations in which a “new matter is brought out on re-direct

examination.” Hale v. United States, 435 F.2d 737, 750 (5th Cir.

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1970). Further, this right is “[s]ubject always to the broad

discretion of a trial judge to preclude repetitive and unduly

harassing interrogation.” Davis v. Alaska, 415 U.S. 308, 316

(1974).

Examination of Officer Harmon

At trial, Officer Harmon testified about observing Aldrenna

Wade acting suspiciously at the airport and about bringing a dog

to sniff Wade’s luggage. On cross-examination, Officer Harmon

admitted that she did not originally find Wade to be a credible

person and that Wade had originally told her that a cousin,

rather than Davis, had bought her plane ticket. The government

conducted a brief redirect examination and then Davis requested

the opportunity to recross-examine. The trial court denied

Davis’s request.

Davis fails to identify a line of questioning that he would

have pursued if he had been permitted recross-examination.

Instead, Davis argues only that Wade’s credibility was critical

to the case against him. While her credibility was certainly a

key issue, Davis does not suggest what new information a jury

would have learned from a recross-examination of Officer Harmon.

Consequently, Davis has failed to demonstrate that he was

prejudiced by the district court’s denial of recross-examination.

See United States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998)

(“[i]n order to show an abuse of discretion related to the

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limitations placed on cross-examination, a defendant must show

that those limitations were clearly prejudicial.”). The trial

court did not abuse its discretion by refusing to allow

repetitive questioning of Officer Harmon.

Examination of Anita Shoemate

Anita Shoemate was a hostile witness called by the

government. She testified that she had once carried money from

Ohio to Texas for Davis. On cross-examination of Shoemate, Davis

suggested that the money Shoemate transported was from an

insurance claim. Shoemate also testified that at the time she

carried the money she did not believe Davis was a drug dealer.

On redirect, the government elicited from Shoemate that Davis

might have hidden his drug activities from her and that the money

Davis gave her - rolls of cash tied up in a rubber band - was

unlikely to have been given to him by an insurance company.

Again, Davis fails to point to any new information brought

out in redirect examination that would have given him a right to

recross-examine Shoemate. The government’s redirect examination

did not present any new information, rather it addressed the

problems with the insurance-payment explanation that Davis

presented on cross-examination. Aside from reiterating the

insurance-payment explanation, there was nothing for Davis to

address on recross-examination. The district court did not abuse

its discretion by refusing to allow repetitive questioning.

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Sentence enhancement

Davis argues that the district court erred by imposing a

life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).10 We review

“the application of sentencing provisions and the sentencing

guidelines de novo and the facts supporting those applications

for clear error.” United States v. Green, 293 F.3d 886, 894 (5th

Cir. 2002).

In sentencing Davis to life imprisonment, the district

court relied on its finding that Davis had two prior convictions

of a felony drug offense. Section 841(b)(1)(A) mandates that

“[i]f any person commits a violation of this subparagraph . . .

after two or more prior convictions for a felony drug offense

have become final, such person shall be sentenced to a mandatory

term of life imprisonment . . . .” 21 U.S.C. § 841(b)(1)(A).

However, Davis contends that the district court erred by

considering one of his prior convictions from Ohio a “felony drug

offense” for sentencing purposes. A “felony drug offense” is

defined as an offense “punishable by imprisonment for more than

one year under any law of the United States or of a State . . .

that prohibits or restricts conduct relating to narcotic drugs. .

. .” 21 U.S.C. § 802(44).

In 1993, Davis was convicted of violating OHIO REV. CODE §

10
The government contends that Davis waived this issue
because he did not brief it on appeal. For purposes of this
discussion, we assume that he did not waive it.

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2925.11(A).11 At the time Davis was convicted, a violation of §

2925.11(A) was punishable by imprisonment for more than one year

and was therefore a “felony drug offense” within the meaning of

21 U.S.C. § 802(44). However, in 1996, Ohio reclassified §

2925.11 and reduced the term of punishment to six to twelve

months. Therefore, a conviction under the revised version of §

2925.11 is not a “felony drug offense.” Davis argues that his

federal sentence should be based on the revised version of §

2925.11 and not on the version under which he was convicted.

In support of his argument, Davis cites United States v.

Morton, 17 F.3d 911 (6th Cir. 1994). In Morton, the Sixth

Circuit examined whether a prior state conviction was a “serious

drug offense” for sentencing purposes, when the state statute

under which the defendant had been convicted had been later

changed to mandate a lesser sentence. See id. The state statute

at issue in Morton did not state whether it was retroactive. See

id. at 915. Morton held that the trial court should have based

its sentencing determination on the version of the state statute

in effect at the time of federal sentencing, rather than the

version in effect at the time of state conviction.

In United States v. Hinojosa, this court expanded upon

Morton, to explain how non-retroactive statutory revisions should

11
In 1993, OHIO REV. CODE § 2925.11(A) stated that “[n]o
person shall knowingly obtain, possess, or use a controlled
substance.”

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be considered for sentencing purposes. See United States v.

Hinojosa, 349 F.3d 200 (5th Cir. 2003). Hinojosa held that where

a state statute is revised after a defendant’s state conviction,

the federal sentencing court must make its sentencing

determination based on the punishment that the defendant would

receive if he were to be currently sentenced in state court for

the crime of conviction. See id. at 205. In Hinojosa, the state

statute under which Hinojosa was convicted was later revised, but

the revision specifically stated that it was not retroactive for

offenses committed before it became effective. Id. Therefore,

Hinojosa’s federal sentence was based on the unrevised version of

the state statute because that was the version of the statute

under which Hinojosa would have been sentenced in state court.

To apply Hinojosa to Davis’s sentencing determination, we

must determine what punishment Davis would receive if he were to

now be sentenced by an Ohio court for his 1993 offense. The

state statute under which Davis was convicted, § 2925.11, does

not explain whether it is retroactive. However, the Ohio Supreme

Court explicitly determined that the sentencing amendments to §

2925.11 did not apply to anyone whose offense of conviction

occurred before the amendments became effective in 1996. See

State v. Rush, 697 N.E.2d 634, 636 (Ohio 1998). Because Davis’s

offense of conviction occurred in 1993, an Ohio court examining

his case today would sentence him under the older version of §

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2925.11. Thus, the district court was correct to find that

Davis’s 1993 Ohio conviction is a “felony drug offense” for

sentencing purposes. Because this finding was correct, and since

Davis does not contest the other sentencing findings, there was

no error in the district court’s imposition of a life sentence

pursuant to 21 U.S.C. § 841(b)(2)(A).

Service of information and inquiry under 21 U.S.C. § 851(b)

Davis asserts that he should be resentenced because of two

alleged violations of the technical requirements of 21 U.S.C §

851. First, he argues that the government violated 21 U.S.C. §

851(a)(1) by failing to serve him or his counsel with the

information of sentencing enhancement. Second, he contends that

the district court violated 21 U.S.C. § 851(b) by failing to

engage him in a colloquy at sentencing.

Information of sentencing enhancement

Davis contends that he was not properly served with the

information of sentencing enhancement, as required by §

851(a)(1), before sentencing in his second trial. Because Davis

did not raise this claim in the district court, we review it for

plain error only. See United States v. Thomas, 348 F.3d 78, 86

(5th Cir. 2003).

The record includes a copy of the information of enhancement

from Davis’s second trial, along with a certificate of service on

his attorney of record for his second trial, Kenneth W. McGuire.

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Davis does not argue that this certificate was inaccurate, or

that McGuire was not his attorney of record at the time.

Instead, Davis misleadingly supports his claim by citing a

certificate that shows service on Davis's attorney from his first

trial. This certificate is part of the information of

enhancement from Davis's first trial. The record is clear that

part of the first enhancement (and thus the first certificate of

service) was merely attached as an exhibit to the information of

enhancement from Davis's second trial. Because the record shows

that the second information, which contained part of the first

information as an exhibit, was properly served on Davis’s

counsel, there was no violation of § 851(a)(1).

Section 851(b) colloquy

Davis argues that the district court erred by failing to

engage him in a § 851(b) colloquy regarding the government’s

information of enhancement. To analyze this claim we determine

whether the trial court substantially complied with § 851(b), and

if no such compliance occurred, whether that error was harmless.

See Fragoso, 978 F.2d at 902-03.

Section 851(b) requires that after conviction but before

pronouncement of sentence “the court shall . . . inquire of [the

defendant] whether he affirms or denies that he has been

previously convicted as alleged in the information . . . .” 21

U.S.C. § 851(b). The sentencing court is also required to

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“inform [the defendant] that any challenge to a prior conviction

which is not made before sentence is imposed may not thereafter

be raised to attack the sentence.” Id.

Neither party contests that the district court failed to

engage in the formal two-part colloquy.12 However, Davis has not

shown how this failure harmed him.13 Section 851(e) prohibits a

defendant from challenging a prior conviction “which occurred

more than five years before the date of the information alleging

such prior conviction.” 21 U.S.C. § 851(e). The most recent of

Davis’s convictions listed on the information occurred in 1994,

and the information was served in 2002 - well beyond the five-

year time limit of the statute. Thus, Davis would not have been

permitted to challenge the convictions. We have held that it is

harmless error for a district court to fail to follow the

dictates of § 851(b) when a prior conviction occurred more than

five years before the information was filed. United States v.

Fragoso, 978 F.2d 896, 902 (5th Cir. 1992). Therefore, though

the district court erred by failing to hold a § 851(b) colloquy,

12
During sentencing the district court addressed Davis: “you
were aware, Mr. Davis, that you had these criminal charges,
convictions the first time the trial occurred back in 1999 or
2000, were you not?” (4 Supp. R. 81-82). Davis then responded,
“I broke the law, yeah, I guess I would --” Id. This exchange
gave Davis the opportunity to contest his prior convictions, but
for the purposes of argument we will assume that it did not meet
the requirements of § 851(b).
13
Davis argues that there is a valid basis to challenge the
convictions, but does not suggest what that basis might be.

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such error did not affect Davis and was harmless.

Conclusion

For the foregoing reasons, we AFFIRM Davis’s conviction and

sentence.

AFFIRMED.

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