UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-8471
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JON HAROLD ROYAL,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
(September 8, 1992)
Before HIGGINBOTHAM and DUHÉ, Circuit Judges and HARMON, District
Judge.1
DUHÉ, Circuit Judge.
Defendant Jon Harold Royal appeals both his conviction of
conspiracy to possess cocaine with intent to distribute it and his
sentence. We affirm both.
I.
Royal met David LeBoeuf in 1977 and sometime thereafter they
began trafficking methamphetamine together in the Houston area. By
1983, the two were trafficking cocaine, with Royal supplying the
drug to LeBoeuf for resale. In 1985, Royal was arrested for
selling cocaine to an undercover agent. He pled guilty to federal
drug charges and was imprisoned upon his guilty plea in April 1986.
1
District Judge of the Southern District of Texas, sitting by
designation.
While imprisoned, Royal enlisted LeBoeuf and others to carry on his
drug operations for him.
The jury had before it the following evidence supporting the
charge that Royal conspired to perpetuate his cocaine business
while imprisoned. After his arrest in 1985, he asked LeBoeuf to
assist in transporting cocaine from Florida to Texas. LeBoeuf and
his brother-in-law, Jay Husik, met with Royal and agreed that Husik
would be paid $2500 per trip. Husik had previously transported
cocaine between Austin and Houston for LeBoeuf. Royal arranged and
provided the money for the purchase of a truck for Husik and he
accompanied Husik on one trip to Florida. Husik made five to ten
trips, returning each time with two to six kilograms of cocaine.
Of each such delivery, Leboeuf received one kilogram and Royal the
rest.
Shortly before Royal was imprisoned, he arranged for LeBoeuf
to assume his role in this trafficking scheme. He accompanied
LeBoeuf to Florida and introduced LeBoeuf to his supplier. LeBoeuf
agreed to pay the Defendant a commission for the cocaine bought in
Florida during his imprisonment.
At the time these arrangements were made, the Defendant
thought he would be in prison for six to eight months. Actually,
he was imprisoned for almost three years. After his release,
LeBoeuf refused to pay him the promised commissions because,
according to LeBoeuf, the bottom had fallen out of the cocaine
market during the Defendant's longer-than-expected prison term. To
settle their dispute, LeBoeuf arranged for a loan for Royal's used
2
car business and agreed to provide him with 500 grams of cocaine.
After federal authorities began investigating LeBoeuf's
activities, LeBoeuf, Husik and others agreed to cooperate with
these investigators, who arrested the Florida suppliers and got a
warrant for the Defendant's arrest. These agents also obtained a
warrant to search the Defendant's house, where they found cocaine,
scales, business records and guns. Subsequently, Royal was
convicted of conspiracy to possess cocaine with intent to
distribute it. He was sentenced to thirty years' imprisonment, ten
years' supervised release, a $25,000 fine and a $50 special
assessment. He now appeals both his conviction and his sentence.
II.
Royal contends that the district court erred in several
evidentiary rulings. We examine a district court's ruling on the
admissibility of evidence for abuse of discretion. United States
v. Shaw, 920 F.2d 1225, 1229 (5th Cir.), cert. denied, 111 S.Ct.
2038 (1991).
A.
First, Royal complains of the denial of his motion to exclude
evidence that a customer of his, Geno Hernandez, died in 1986 as a
result of using cocaine Royal supplied. During cross-examination,
he denied that he was Hernandez's supplier at that time. A
government rebuttal witness testified that the Defendant supplied
the cocaine to LeBoeuf, who was unable to sell it as planned
because there was something wrong with it, and that LeBoeuf then
gave it to Hernandez. The government argues that this evidence is
3
relevant to the conspiracy charge because Royal initially intended
for Hernandez to take over his cocaine business and chose LeBoeuf
for this position only after Hernandez died. This evidence is also
relevant, the government contends, to impeach the Defendant's
testimony that he had discontinued all drug trafficking activities
by the time Hernandez died.
We are sympathetic to Royal's argument that the evidence of
Hernandez's death was improperly admitted. The government could
have offered evidence that the Defendant supplied cocaine to
Hernandez in 1986 and intended to pass on his drug business to
Hernandez to establish the details of the conspiracy and the time
frame in which his drug activities occurred without also offering
evidence that Hernandez's death resulted from "bad" cocaine that
originated with Royal. In light of the other evidence against the
Defendant, this evidence was completely unnecessary to the
government's case and we discern no purpose other than
prosecutorial overkill in the government's insistence that it be
admitted.
Nonetheless, Royal has not demonstrated that the admission of
this evidence prejudiced him in any way. The evidence of his
involvement in the cocaine conspiracy was overwhelming, supported
by the testimony of LeBoeuf, Husik, and LeBoeuf's brother, who also
transported drugs for LeBoeuf, as well as by the physical evidence
found in Royal's home. He has not convinced us that the jury
convicted him to punish him for Hernandez's death, rather than for
the drug conspiracy offense with which he was charged.
4
Accordingly, the admission of this evidence, if error at all, was
harmless. United States v. Williams, 957 F.2d 1238, 1243 (5th Cir.
1992) (finding erroneous admission of drug courier profile as
substantive evidence of defendant's guilt to be harmless error
where evidence of guilt was overwhelming).
B.
Next, Royal argues that the court erred in allowing the
testimony by Kalim Tippit that Tippit's mother2 tried to convince
him to testify that the guns and drugs found in the house belonged
to him and not to Royal. The Defendant objected on hearsay grounds
and now argues that such evidence is admissible only if he, as the
defendant, and not a third party, tried to influence the witness's
testimony.
We cannot agree. Tippit was a defense witness and the
government was entitled to elicit during cross-examination
testimony relevant to any possible bias he may have had. United
States v. Abel, 469 U.S. 45, 51 (1984) (holding that the Federal
Rules of Evidence permit impeachment of a witness showing bias).
Although Tippit did not comply with his mother's request, the
influence his mother tried to assert on his testimony was certainly
relevant to show that his testimony may have been biased. The jury
was entitled to hear this evidence so that it could evaluate his
credibility. Although Royal evidently believes that this evidence
caused the jury to unfairly discredit Tippit's testimony on Royal's
2
Tippit's mother was the Defendant's girlfriend. Tippit, his
mother and the Defendant shared a house at the time of the
Defendant's arrest.
5
behalf, we think it just as likely that Tippit's refusal to perjure
himself despite pressure from his mother may have leant more
credibility to his testimony. In any case, the evidence was
clearly relevant to the jury's evaluation of Tippit's credibility
and his possible bias. See United States v. Bratton, 875 F.2d 439,
443 (5th Cir. 1989) (finding no abuse of discretion where court
allowed evidence that defendant had physically abused wife to show
that her testimony on his behalf may have been motivated by fear).
C.
Royal asserts that evidence found in his home pursuant to a
search warrant was unlawfully admitted because the warrant was
supported by stale evidence and therefore failed to show probable
cause. The warrant was based on a twelve-page affidavit by Special
IRS Agent Gary Gallman and described conduct by the Defendant
occurring over the several years prior to the issuance of the
warrant.3 A United States magistrate issued the warrant, and the
district court determined that the magistrate's finding of probable
cause was reasonable, rejected the argument that the evidence was
stale, and, in any case, concluded that the "good faith exception"
under United States v. Leon, 468 U.S. 897, 922-23 (1984), applied
to this case.
3
The affidavit recited details of Royal's involvement with drug
trafficking since the early 1980s. It also described his
continuing involvement with his co-conspirators, including his
receipt of cocaine as partial payment for the commissions LeBoeuf
"owed" him, after his release from prison in 1988. The warrant
issued on September 5, 1990.
6
We need not address probable cause for the warrant because we
conclude that law enforcement officials acted in good faith in
relying on the warrant. United States v. Puma, 937 F.2d 151, 158
(5th Cir. 1991), cert. denied, 112 S.Ct. 1165 (1992). Evidence
obtained under a warrant, even one based upon inadequate probable
cause, is admissible if an officer's reliance on the warrant was
objectively reasonable. Id. "Such reliance is objectively
reasonable unless the affidavit supporting the warrant is so
lacking in indicia of probable cause as to render belief in its
existence unreasonable." Id. Furthermore, the "[i]ssuance of a
warrant by a magistrate normally suffices to establish good faith
on the part of law enforcement officers who conduct a search
pursuant to a warrant." United States v. Craig, 861 F.2d 818, 821
(5th Cir. 1988). Accordingly, we find no reason to reverse the
district court.
D.
Next, Royal complains of the admission of evidence of several
prior bad acts. The government offered evidence that he sold
LeBoeuf cocaine on numerous occasions during 1983 and 1984, and was
arrested in 1985 and imprisoned in 1986 for several sales of
cocaine to an undercover drug agent in 1983. Royal argues that the
government admitted evidence of these prior bad acts to prove
character in contravention of Rule 404(b),4 that the cocaine sales
4
Fed.R.Evid. 404(b) provides that "Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent preparation, plan, knowledge, identity,
7
to LeBoeuf were so remote in time that the jury may have convicted
him for acts which were barred by the statute of limitations, and
that in any case the court should have excluded this evidence under
Rule 4035 because of the likelihood of unfair prejudice.
The government argues that Rule 404(b) should not operate as
an evidentiary bar because the evidence was not extrinsic evidence
admitted to prove character. Rather, it was evidence essential to
proving that the Defendant had engaged in the conduct constituting
the offense charged. The government contends that his imprisonment
in 1986 and his relationship prior to that time with LeBoeuf was
critical background information necessary to understand the charged
conspiracy.
Evidence that is "inextricably intertwined" with the evidence
used to prove a crime charged is not "extrinsic" evidence under
Rule 404(b). United States v. Randall, 887 F.2d 1262, 1268 (5th
Cir. 1989). Such evidence is considered "intrinsic" and is
admissible "so that the jury may evaluate all the circumstances
under which the defendant acted." Id. See also United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990) ("'Other act' evidence
is 'intrinsic' when the evidence of the other act and the evidence
of the crime charged are 'inextricably intertwined' or both acts
are part of a 'single criminal episode' or the other acts were
or absence of mistake or accident."
5
Fed.R.Evid. 403 provides that "Although relevant, evidence may
be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by consideration of undue delay, waste of
time, or needless presentation of cumulative evidence."
8
'necessary preliminaries' to the crime charged.") (citing United
States v. Torres, 685 F.2d 921, 924 (5th Cir. 1982)).
The evidence of Royal's arrest and imprisonment was
inextricably intertwined with the crime of which he was charged--
namely, that he conspired with LeBoeuf for LeBoeuf to take over his
drug business while he was in prison. The government could not
have proven its case without establishing that the Defendant had an
ongoing drug business at the time he entered prison. Accordingly,
we find no abuse of discretion in the admission of this evidence,
especially in light of the court's cautionary instruction.6
6
The district court made the following relevant limiting
instructions:
You have been told that the Defendant was
found guilty in 1985 of distribution of
cocaine. This conviction and other matters
which might be considered by you as acts
similar to those charged in the indictment
have been brought to your attention because
you may wish to consider them when you decide,
as with any witness, how much of the
Defendant's testimony you will believe in this
trial. The fact that the Defendant was
previously found guilty of another crime or
has committed similar acts does not mean that
the Defendant committed the crime for which he
is on trial, and you must not use this prior
conviction as proof of the crime charged in
this case. You may consider such conviction
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident. Rec. Vol. V, p. 718.
You are here to decide whether the government
has proved beyond a reasonable doubt that the
Defendant is guilty of the crime charged. The
Defendant is not on trial for any act, conduct
or offense not alleged in the indictment.
Rec. Vol. V, p. 720.
9
Similarly, we find no error in the admission of the evidence
relating the 1983 and 1984 cocaine sales to LeBoeuf. In United
States v. Stovall, 825 F.2d 817, 825 (5th Cir. 1987), as amended,
833 F.2d 526 (1987), we examined a credit association fraud scheme.
One of the defendants had been convicted of improperly receiving
benefits from a loan and he complained that evidence allowed by the
district court pertaining to the relationship between himself and
another defendant in connection with that loan constituted
extrinsic evidence of prior bad conduct. We held that "[s]ince the
evidence admitted by the district court detailed the full
relationship between [the parties] and established that [the
appellant] did receive an immediate financial benefit, . . . it was
a legitimate and necessary part of the government's case." Id.
In this case, the evidence pertaining to the Defendant's
relationship with LeBoeuf, particularly as it involved prior drug
transactions, was relevant to the crime charged in that it allowed
the jury to understand the nature of the relationship between the
two and evaluate whether it was likely that the Defendant would
have conspired with LeBoeuf as charged. Especially in view of the
limiting instructions, the admission of this evidence was not an
abuse of discretion.
Finally, the admission of these prior acts did not violate
Rule 403. The balancing of probative value against prejudicial
effect required under this rule is within the discretion of the
trial judge, and we reverse such determinations only if we find an
abuse of the court's discretion. United States v. Maceo, 947 F.2d
10
1191, 1199 (5th Cir. 1991), cert. denied, 112 S.Ct. 1510 (1992).
Finding none, we affirm. See also United States v. Harris, 932
F.2d 1529, 1534 (5th Cir.) (finding proof of prior drug activities
more probative than prejudicial), cert. denied, 112 S.Ct. 270
(1991); United States v. Stephenson, 887 F.2d 57, 59 (5th Cir.
1989) (same), cert. denied, 493 U.S. 1086 (1990).
E.
The remaining evidentiary point of error merits only the
briefest discussion. Royal complains of the admission of evidence
that his attorney made a false representation to the court.7 He
argues that this unfairly prejudiced him before the jury. Our
review of the record reveals that the single on-the-record
discussion of this issue occurred out of the presence of the jury.
The court sustained Royal's objection to its admission. Hence, he
has nothing of which to complain.
III.
Next, Royal makes two arguments that the district court
committed plain error with respect to the jury instructions.
First, he attacks the court's failure to give a unanimity
instruction in connection with its multiple conspiracies
instruction.8 He argues that because the jury heard evidence
7
Allegedly, defense counsel falsely represented to the court at
a bond hearing that Royal's parole officer knew Royal was in
possession of the guns seized from the house, a violation of a term
of the Defendant's parole, and that the officer had given him
permission to possess the guns.
8
The court instructed the jury as follows:
If you believe that the evidence has shown the
11
supporting multiple conspiracies, the court's failure to instruct
the jury that it must unanimously agree that he had participated in
one particular conspiracy was plain error. We disagree. The
court's multiple conspiracy instruction reflects that the Defendant
was charged in the indictment with one conspiracy. The court's
instruction told the jury to convict Royal only if each juror
believed beyond a reasonable doubt that he had participated in that
conspiracy. Accordingly, there was no error in the court's failure
to offer a special unanimity instruction, let alone plain error.
See also, United States v. Richerson, 833 F.2d 1147, 1155-56 (5th
Cir. 1987) (finding no plain error where court failed to give even
a multiple conspiracies instruction).
Second, Royal contends that the court's instructions may have
allowed the jury to convict him based upon conduct barred by the
statute of limitations. Although the indictment charged him with
conduct occurring between May 1, 1985 and April 1, 1990, the court
admitted relevant evidence of his conduct occurring prior to this
period. The court instructed the jury as follows:
You will note that the indictment charges the
that the offense was committed on or about a
specified date. The government does not have
to prove that the crime was committed on that
exact date, so long as the government proves
beyond a reasonable doubt that the defendant
committed the crime on a date reasonably near
the date stated in the indictment. (Emphasis
added.)
existence of multiple conspiracies, you may
not find the Defendant guilty unless you find
beyond a reasonable doubt that he was a member
of the conspiracy charged in the indictment
and not some other separate conspiracy.
12
While the underlined language may be ambiguous, the facts of the
case eliminate the possibility that the jury could have convicted
the Defendant for acts barred by the statute of limitations. The
government admitted facts supporting the charge in the superseding
indictment that Royal conspired with others to perpetuate his
cocaine business during the period of his imprisonment. This
conspiracy involved an agreement which necessarily must have
occurred after the Defendant was arrested and knew that he would be
going to prison. He was arrested on May 22, 1985, and so any
agreement must have been reached at some point thereafter. The
court's failure to narrow the dates for the jury was not plain
error.
IV.
Royal challenges his sentence, contending that the district
court unlawfully enhanced it. He was indicted under and convicted
of violating 21 U.S.C. § 846, which provides that persons convicted
of conspiracies involving controlled substances "shall be subject
to the same penalties as those prescribed for the offense, the
commission of which was the object of the . . . conspiracy." The
object of the conspiracy for which Royal was convicted was
possession with intent to distribute cocaine, a violation of 21
U.S.C. § 841.9 He was therefore subject to the penalties of that
9
Specifically, Royal was convicted of conspiring to violate 21
U.S.C. § 841(a), which makes it "unlawful for any person knowingly
or intentionally (1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance; or (2) to create, distribute, or dispense, or
possess with intent to distribute or dispense, a counterfeit
substance."
13
provision. Under § 841(b), three penalty ranges, based upon the
amount of cocaine involved, apply to this offense: 1) ten years to
life if five kilograms or more of cocaine were involved; 2) five to
forty years if five hundred grams of cocaine or more were involved;
and 3) zero to twenty years for all other cocaine offenses (except
those involving death, serious bodily injury or repeat offenders).
The proof at sentencing established that the Defendant
conspired to traffick in more than five kilograms of cocaine. His
sentence, thirty years' imprisonment with ten years' supervised
release, falls within the range provided by the statute for that
amount, ten years to life. He argues that, because the superseding
indictment failed to allege the quantity of cocaine involved, his
maximum appropriate sentence was twenty years. He contends that
sentencing him within the higher sentence range based upon the
quantity involved when the indictment did not allege such quantity
constitutes an enhancement of his sentence.
Royal argues that for the government to seek an enhanced
sentence under § 841(b), the quantity of drugs triggering that
enhancement must be alleged in the indictment. Any other notice,
he contends, is constitutionally deficient.10 The superseding
10
Royal does not challenge the standard of proof applicable to
sentencing factors, conceding that quantity need not be proven
beyond a reasonable doubt. See McMillan v. Pennsylvania, 477 U.S
79 (1986). Furthermore, he evidently does not dispute that the
court was entitled to find, from the evidence produced at
sentencing, that his conduct constituting the offenses of which he
was convicted involved more than five kilograms of cocaine. In
fact, the evidence established that ninety-five to one hundred
kilograms of cocaine were involved.
14
indictment in this case made no mention of a specific quantity of
cocaine. The Defendant received notice that the government
intended to seek a sentence based upon quantity when the government
filed a "Penalty Enhancement Information" several days after the
jury returned its guilty verdict and three months before his
sentencing. In addition, the Presentence Report notified him that
the quantity of cocaine would be relevant in determining his
sentence. At the sentencing hearing, the government presented two
witnesses who testified about the amount of cocaine involved and he
had opportunity to present controverting evidence.
This circuit is part of an overwhelming majority of courts
which have concluded that quantity is not an element of the
offenses proscribed by § 841(a). See United States v. Lokey, 945
F.2d 825, 836 (5th Cir. 1991) (quoting United States v. Morgan, 835
F.2d 79, 81 (5th Cir. 1987).11 Rather, quantity is relevant only
at sentencing under § 841(b). Id. Royal does not allege that the
indictment did not adequately notify him of the charges against
him. Because quantity is not an element of the offense of which he
11
See also the following cases holding that quantity is not an
element under § 841(a): United States v. McHugh, 769 F.2d 860, 868
(1st Cir. 1985); United States v. Campuzano, 905 F.2d 677, 679 (2d
Cir.), cert. denied, 111 S.Ct. 363 (1990); United States v. Gibbs,
813 F.2d 596, 599-601 (3d Cir.), cert. denied, 484 U.S. 822 (1987);
United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989), cert.
denied, 493 U.S. 1084 (1990); United States v. Levy, 955 F.2d 1098,
1106 (7th Cir. 1992), petition for cert. filed, __ U.S.L.W. ___
(U.S. Apr. 1, 1992) (No. 92-____); United States v. Woods, 834 F.2d
1382, 1388 (8th Cir. 1987); United States v. Sotelo-Rivera, 931
F.2d 1317, 1319 (9th Cir. 1991), cert. denied, 112 S.Ct. 1186
(1992); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990),
cert. denied, 111 S.Ct. 1331 (1991); and United States v.
Patrick,959 F.2d 991, 995 n.5 (D.C. Cir. 1992).
15
was convicted, he was not entitled to be notified through the
indictment that quantity would be relevant to his sentencing. The
notice he received that the court would take quantity into account
when sentencing him was sufficient to allow him to present
evidence, if any, disputing the government's evidence concerning
quantity. Accordingly, we affirm his sentence.
V.
Finally, Royal argues that he received ineffective assistance
of counsel during his trial. To succeed, he must prove that 1) his
counsel's performance was deficient and 2) this deficient
performance prejudiced the case. Strickland v. Washington, 466
U.S. 668 (1984); Wilkerson v. Collins, 950 F.2d 1054, 1063-64 (5th
Cir. 1992), petition for cert. filed, __ U.S.L.W. ___ (U.S. Mar.
18, 1992). We presume that counsel's performance falls within "the
wide range of reasonable professional assistance." Strickland, 466
U.S. at 689. To establish prejudice, Royal must demonstrate a
reasonable probability that the result of his trial would have been
different but for his counsel's errors. Id., at 694.
First, he argues that his attorney failed to move to dismiss
the indictment for uncertainty or to move for a bill of
particulars. He has not established that his counsel's error, if
it be such, prejudiced his case. In Morlett v. Lynaugh, 851 F.2d
1521 (5th Cir. 1988), cert. denied, 489 U.S. 1086 (1989), the
defendant made an ineffective assistance claim based, in part, on
his counsel's failure to move to quash the indictment. We stated:
16
[i]f Morlett's counsel had made a timely
motion to quash, the State would have been
obligated to specifically plead the method of
coercion used by Morlett to influence Herrera
at the murder trial. . . As the evidence at
trial demonstrated that Morlett used threats
to coerce Herrera to testify falsely, the
State could simply have reindicted Morlett
specifically alleging the coercion. Thus,
even assuming counsel's performance was
deficient in failing to move to quash, no
prejudice has been shown.
Id., at 1525. Similarly, in this case, had Royal's counsel made
the motions he now suggests, the Government would simply have made
the indictment more specific.
Royal next points us to counsel's failure to object to the
court's jury charge. He attacks his counsel's performance with
respect to these instructions for the same reasons he attacked the
instructions directly. Having previously concluded that he was not
prejudiced by the court's failure to include the instructions
requiring unanimity and narrowing the applicable dates, we conclude
that this indirect attack on the instructions also fails. The
overwhelming evidence of the Defendant's guilt further supports our
conclusion that he suffered no prejudice as a result of his
counsel's performance. See e.g., United States v. Oakley, 827 F.2d
1023, 1026 (5th Cir. 1987) (ineffective assistance claim fails, in
part, because of overwhelming evidence against defendant).
VI.
For the reasons stated above, we affirm the Defendant's
conviction and his sentence.
AFFIRMED.
17