United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30013
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC GERMAN,
FELICIA SMITH,
RICHARD RANDALE JACKSON,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Louisiana
Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Defendants appeal their convictions and sentences for drug
related offenses. Eric German argues that the district court
abused its discretion in denying his motion for a continuance, and
that his within-guidelines sentence is unreasonable in light of the
section 3553(a) factors. Richard Jackson argues that there is
insufficient evidence to support his conviction for conspiracy to
distribute crack and that the district court legally erred in
ruling that suppression is not a remedy for violations of the
pen–trap statute. He also argues that the district court abused
its discretion in denying his motion for a continuance and that the
district court erred in calculating his drug quantity. Finally, he
argues that his within-guidelines sentence is unreasonable in light
of the 3553(a) factors. Felicia Smith argues only that her within-
guidelines sentence is unreasonable in light of the 3553(a)
factors. We affirm.
I
By the evidence, defendant Eric German regularly bought
cocaine by the kilo at the Downtown Collision Shop on Oak Cliff
Street in Dallas, drove it home to Louisiana, turned some into
crack, and sold both throughout North Louisiana. He lived with his
girlfriend, Defendant Felicia Smith, who often helped out, buying
baking power, and accompanying him on pickups and deliveries.
State’s witness Kelvin Gay was Eric German’s right-hand man.
Before Kelvin Gay was convicted in 2001 on drug charges, he
distributed large quantities of crack and cocaine for Eric German.
Eric German paid for Gay’s defense in 2001, and regularly sent him
money while he was in prison. German also helped Gay earn a
downward departure by fabricating stories about drug dealers that
they knew, and even setting up a dealer on Gay’s behalf. For his
substantial assistance, Gay’s sentence was reduced to thirteen
years, six months.
While Kelvin Gay was in prison, Defendant Richard Jackson
covered his turf, selling crack for Eric German in amounts varying
2
from 9 to 18 ounces. A government informant made five controlled
purchases of crack from Jackson between December 2003 and April of
2004. Pen register records at trial indicated that 273 phone calls
were made between Jackson and German during the months of January
through April of 2004.
In August of 2004, police officers tailed German and Smith
while on their drug runs — a meeting with a tow truck, a visit to
an apartment complex, and an exchange of packages at a car wash.
Eventually, German and Smith violated the traffic code. Officers
pulled them over, got consent to search the car, and found one kilo
of cocaine in the engine compartment. Officers next got a warrant
to search a second car that the couple had left at the apartment
complex, and found in its engine compartment both crack and
cocaine. At the station, German waived his Miranda rights and
admitted the details of his crime, including the names of his
supplier and distributors.
When Kelvin Gay’s payments from German stopped coming, he
turned state’s evidence, agreeing to testify against Eric German,
Felicia Smith, and Richard Jackson. For his cooperation, his
sentence was reduced to time served. Kelvin Gay’s girlfriend,
Dommneaka Green, who had pleaded guilty to drug charges, also
agreed to testify.
The case went to trial on the Third Superseding Indictment
charging one count of conspiracy to distribute cocaine (Count 1),
3
one count of conspiracy to distribute crack cocaine (Count 2), and
one count of conspiracy to distribute marijuana (Count 3), all
in violation of 21 U.S.C. §§ 841(a) and 846. Each defendant was
also charged with seven counts of possession with intent to
distribute either cocaine or crack cocaine in violation of 21
U.S.C. § 841(a) (Counts 4 - 10).
German was charged with one count of possession of a firearm
during and in relation to a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1) (Count 11) and one count of conspiracy to
commit money laundering in violation of 18 U.S.C.§ 1956 (Count 12).
Three additional counts of forfeiture were charged against German
in Counts 13, 14 and 15 in connection with the drug distribution
offenses, the money laundering offense and the firearm offense
(Counts 13 - 15).
Over denials by the prosecution, German insisted that he had
been given immunity for all crimes prior to 2002 in exchange for
his cooperation in setting up the dealer on Gay’s behalf. Then,
five days before trial, the government notified German that it did
indeed have evidence of his cooperation, though it still denied
that he was given immunity. On the eve of trial the government
produced:
(1) A memo from the AUSA in Kelvin Gay’s case which identifies the
drug dealer that was set up as a result of German’s cooperation;
(2) The identity of an FBI agent in Texas to whom German was
referred for cooperation by the FBI in Louisiana; (3) A transcript
4
of a recent interview with Kelvin Gay corroborating German and
listing a new cast of characters in the conspiracy that Gay was
prepared to name at trial, characters which the government would
argue were fabricated at the time to earn a reduction in his
sentence; and (4) An FBI agent who asserted that German first came
to the FBI’s attention when he offered to provide cooperation on
behalf of Kelvin Gay.
German moved for a continuance, a motion joined by his co-
defendants. The district judge heard argument and testimony from
government agents denying that immunity was ever offered. The
district court denied the motion for continuance, ruling that none
of the information provided to defendants gave rise to a claim that
a federal agent had granted immunity. The district court reviewed
Kelvin Gay’s complete file, including grand jury evidence, and
concluded that “there was nothing exculpatory to any defendant in
it” and that it was “in almost perfect conformity” with government-
agent testimony.
German then argued that the prosecutors production of the file
with information on Kelvin Gay was untimely. The district court
disagreed, ruling that the impeachment information about Kelvin Gay
having been provided before the cross-examination of the witness,
was timely. The court further ruled that defendants had time to
make effective use of the impeachment evidence at trial.
After an eight-day trial, the jury found Eric German guilty of
Counts 1, 2, 4, 5, and 12 and not guilty of Count 3. The jury found
5
Felicia Smith guilty of Counts 1, 2, and 4 and not guilty of Count
5. The jury found Richard Jackson guilty of Counts 2 and 6 - 10.
II
Jackson first attacks the sufficiency of the evidence for his
conspiracy conviction, arguing that no rational trier of fact could
have found the essential elements of that offense beyond a
reasonable doubt.1 In reviewing a conviction for sufficiency, we
accept all reasonable inferences and credibility choices that
support the jury’s verdict.2
The essential elements of a drug conspiracy are that Jackson
(1) agreed with at least one other person; (2) possessed with the
intent to distribute a controlled substance; (3) knew the
conspiracy existed; and (4) participated intentionally in the
conspiracy.3
The evidence against Jackson is considerable. First, an
informant testified about five purchases of crack cocaine from
Jackson between December 16, 2003 and April 13, 2004. Second,
there is evidence of frequent phone contact between Jackson and
German, including 273 phone calls over a period of four months in
2004. This evidence takes the form of both phone records pulled
1
United States v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004).
2
United States v. Gonzales, 866 F.2d 781, 783 (5th Cir. 1989).
3
United States v. Rena, 981 F.2d 765, 771 (5th Cir. 1993); 21 U.S.C. §
841(a) & 846.
6
from German’s trash and pen register evidence. Third, a drug
ledger was pulled from German’s trash that referenced a person
named “Black.” Kelvin Gay then testified that Jackson’s street
name was “Black.” And fourth, Kelvin Gay testified that German
told him that Jackson had taken over Gay’s turf while he was in
prison. Gay also described drug transactions with Jackson
involving as much as 18 ounces of crack.
Jackson asks us to ignore Gay’s testimony as incredible,
arguing that Gay and Jackson were not on the street at the same
time. Yet Gay was out of prison from November of 2000 through
October 2001, a period about which he testified. The determination
of witness credibility is the province of the jury, and we will not
disturb its finding unless the witness asserted “facts that the
witness physically could not have observed or events that could not
have occurred under the laws of nature.”4 We accept the jury’s
beyond a reasonable doubt finding as rational. On review of
Jackson’s challenge to the sufficiency of the evidence, we affirm
his conviction.
III
Jackson next argues that the district court legally erred in
ruling that there is no suppression remedy for violations of the
pen–trap statute. Jackson argued that pen-register evidence, which
recorded only phone numbers dialed from Jackson’s and German’s
4
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
7
phones, was obtained in violation of the pen-trap statute, 18
U.S.C. 3122. Proceeding without a hearing, the district court
denied Jackson’s motion to suppress, ruling that even if a
statutory violation had occurred, suppression was unavailable
because the Fourth Amendment is not implicated by a pen register.
We agree. In Smith v. Maryland the Supreme Court held that
the non-content surveillance of a pen register is an insufficient
invasion of privacy to implicate the Fourth Amendment.5 Jackson
concedes this, but urges us to “fashion as a remedy for breach of
the statute the exclusion of evidence obtained without complying
with the statute.”
The government replies that in Kington we held that the
suppression remedy is available for constitutional violations only,
citing a footnote which explains that “[t]he Supreme Court has
expressly rejected the idea that ‘a federal court should use its
supervisory power to suppress evidence tainted by [even] gross
illegalities that did not infringe defendant's constitutional
rights.’”6
5
442 U.S. 735 (1979).
6
Unites States v. Kington, 801 F.2d 733, 737 (5th Cir. 1986); United
States v. Payner, 447 U.S. 727, 734 (1980).
8
Although generally supported by case law,7 such a sweeping
conclusion is far from clear. In Miller v. United States, the
Supreme Court excluded money seized by federal officers because
they violated 18 U.S.C. § 3109 by breaking through a door without
indicating their authority and purpose to arrest.8 Later in
Caceres, the Supreme Court refused to exclude evidence obtained by
an IRS agent who recorded a phone call, explaining that “[s]ince no
statute was violated by the recording of respondent's
conversations, this Court's decision in Miller v. United States is
likewise inapplicable.”9
What is clear, however, is that in statutory cases like this
one, Congressional intent controls.10 Indeed, “[w]here Congress
has both established a right and provided exclusive remedies for
7
United States v. Harrington, 681 F.2d 612, 612 (9th Cir. 1982) (“There
must be an exceptional reason, typically the protection of a constitutional
right, to invoke the exclusionary rule.”); United States v. Hensel, 699 F.2d
18, 29 (1st Cir. 1982) ("The exclusionary rule was not fashioned to vindicate
a broad, general right to be free of agency action not 'authorized' by law,
but rather to protect specific, constitutionally protected rights."); United
States v. Ware, 161 F.3d 414, 424 (6th Cir. 1998) (“While the exclusionary
rule has been applied to remedy statutory violations, these cases typically
implicate underlying constitutional rights such as the right to be free from
unreasonable search and seizure.”); see also United States v. Thompson, 936
F.2d 1249, 1251 (11th Cir. 1991). Moreover, even in constitutional cases the
Supreme Court has recently cautioned against expanding the exclusionary rule,
emphasizing that suppression is a "last resort" that generates "substantial
social costs." Hudson v. Michigan, 126 S.Ct. 2159, 2163 (2006).
8
357 U.S. 301 (1958). But see Thompson, 936 F.2d at 1251 (arguing that
this statute implicates underlying Fourth Amendment rights).
9
Unites States v. Caceres, 440 U.S. 741, 755 n.21 (1979).
10
United States v. Kington, 801 F.2d 733, 737 (5th Cir.1986).
9
its violation, we would encroach upon the prerogatives of Congress
were we to authorize a remedy not provided for by statute.”11
Jackson has identified no statutory provision empowering this
court to suppress evidence collected in violation of the pen-trap
statute. Yet the pen-trap statute provides for fines and
imprisonment for knowing violations.12 In contrast, the wire-tap
statute specifically provides for an exclusionary remedy when the
statutory requirements are not met.13 In our case, Congress has
determined that the benefits of an exclusionary rule do not
outweigh its substantial social costs.
The Eleventh Circuit agrees. In Thompson, relying in part on
our Kington decision, it refused to extend the exclusionary rule to
statutory violations of the pen-trap statute. We join our sister
circuit in concluding that the district court properly denied
Jackson’s motion to suppress as a matter of law.
IV
Eric German and Richard Jackson next argue that the district
court abused its discretion in denying their motion for a
continuance, which would have allowed them to obtain more documents
11
United States v. Frazin, 780 F.2d 1461, 1466 (9th Cir.1986); see also
Unites States v. Ware, 161 F.3d 414, 424 (6th Cir. 1998) (“Generally, when
Congress has designated a specific remedy for violation of one of its acts,
courts should presume that Congress has engaged in the necessary balancing of
interests to determine the appropriate penalty.”).
12
18 U.S.C. § 312(c). Compare this with the wiretap statute, which does
provide for an exclusionary remedy. 18 U.S.C. §§ 2515, 2518(10)(a).
13
18 U.S.C. §§ 2515, 2518(10)(a).
10
with which to impeach Gay, and which might have turned up evidence
of immunity.14 Trial judges have broad discretion in deciding
requests for continuances, and we review only for an abuse of that
discretion resulting in serious prejudice.15
Such abuse has not been shown. The district court examined
the file and ruled that it contained nothing exculpatory. And even
now defendants can identify no evidence that might have helped
their case. They raise only the speculative argument that the
district court’s ruling “robbed [German] of time to investigate the
possibility of additional inconsistent statements.” What we do
know is that the defendants made good use of Gay’s file at trial,
impeaching his credibility as a convicted drug-dealer who had
changed his story to shorten his prison time.
German continues to hint that he was granted immunity and that
a continuance would have uncovered this agreement. After hearing
testimony from several AUSAs, the district court disagreed, ruling
that the defense could continue its investigation of German’s
“immunity” throughout trial. No motion for new trial was filed on
the basis of newly-discovered evidence of immunity and no such
evidence is identified on appeal. Neither defendant has shown
prejudice. Hence, on review of the district court’s denial of the
14
See United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993)
(reviewing for abuse of discretion).
15
United States v. Correa-Ventura, 6 F.3d 1070, 1074 (5th Cir. 1993).
11
defendant’s motion for a continuance, we affirm the judgment of
conviction.
V
Finally, all three defendants challenge their sentences, each
arguing that their within-guideline sentences are unreasonable in
light of the 3553(a) factors. Jackson alone further argues that
the district court clearly erred in calculating his drug quantity.
Felicia Smith’s challenge is the most compelling, but fails.
She was sentenced to 292 months, the bottom of the advisory
guideline range. As she notes, her role in the offense, largely
chauffeuring and buying baking soda, was significantly less than
that of her co-defendants. At sentencing, her counsel pointed out
that Smith was “just a kid,” without so much as a traffic ticket in
her past, who refused repeated plea offers to avoid hurting the
father of her three-year-old child.
The district court considered these arguments and was unmoved.
The court ruled that “the guidelines adequately take into account
the seriousness of the offense for which she was found guilty,
which is also one of the concerns under Section 3553(a).” The
district court properly calculated Smith’s guideline range, and her
resulting sentence is accordingly entitled to a presumption of
reasonableness.16
16
402 F.3d 511, 519 (5th Cir. 2005).
12
Eric German and Richard Jackson also urge this court to reduce
their sentences on the grounds that a lesser sentence would better
achieve the objectives listed in 3553(a). Richard Jackson was
sentenced to 360 months. Eric German was sentence to life. Each
argues that his prior conviction is either too minor or too stale
to be included in his criminal history score. The district court
considered and rejected Jackson’s argument and German’s argument
wasn’t raised below. Both within-guideline sentences are entitled
to a presumption of reasonableness.17
Finally, Jackson argues that the district court clearly erred
in calculating his drug quantity by charging him with more drugs
than he could have reasonably foreseen when he joined the drug
conspiracy. We disagree. The informant Tim Adams testified that
Jackson supplied him with crack in excess of the 50 grams charged.
Adams testified that when he made the controlled buys, he saw a lot
of crack in Jackson’s possession. He also told investigators that
while he was living with Jackson, he had seen other drug sales.
Gay testified that Jackson took over his turf while in prison,
receiving as much as 9 to 18 ounces of crack from German at a time.
In addition to this testimony, the district court found that three
“trash pulls” suggested enough kilogram wrappers of cocaine and
baking soda to connect 1500 grams of crack to the conspiracy during
the time that Jackson was a member. Jackson has not persuaded us
17
Unites States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
13
that this conclusion is clearly erroneous. The convictions and
sentences of German, Smith, and Jackson are
AFFIRMED.
14