UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 92-8104
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AMY RALSTON POFAHL,
CHARLES T. NUNN, and
RANDY WHITE,
Defendants-Appellants.
__________________________________________________
Appeals from the United States District Court
for the Western District of Texas
__________________________________________________
(May 6, 1993)
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants, Amy Ralston Pofahl ("Pofahl"), Charles T. Nunn
("Nunn"), and Randy White ("White"), were jointly tried before a
jury and convicted of offenses stemming from a conspiracy to import
into the United States and distribute 3,4-
methylenedioxymethamphetamine ("MDMA" or "Ecstasy"). Pofahl, Nunn,
and White were all convicted of conspiring to distribute and
possess with intent to distribute MDMA, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1988). Both Pofahl and Nunn were convicted of
conspiring to import MDMA into the United States, in violation of
21 U.S.C. §§ 952(a), 963 (1988). Pofahl was also convicted of
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)
(1988). All three defendants now appeal their convictions and
sentences. We vacate Nunn's sentence and remand for specific
findings of fact. Otherwise we affirm in all respects.
I
A
From 1985 until early 1989, Charles Pofahl1 and Morris Key
operated an elaborate conspiracy for the purpose of trafficking in
MDMA, more popularly known as Ecstasy. Charles Pofahl hired Dr.
Morris Key, a professional chemist, to assist in the production of
MDMA. Raw chemicals were purchased in West Germany and shipped to
Guatemala, where they were used to manufacture MDMA tablets. Key
and Charles Pofahl then employed a number of individuals to smuggle
the drugs into the United States, where an extensive network of
distributors and dealers sold them to consumers. Between 1985 and
1989, several million MDMA tablets were manufactured by the Pofahl-
Key operation, some of which were imported and sold. Large
quantities of MDMA were seized by law enforcement officials.
Amy Pofahl met Charles Pofahl in 1985, and they married in
November of that year. Amy Pofahl was personally involved in many
aspects of her husband's drug trafficking operation. She traveled
with him to Guatemala on several occasions when he was taking part
in the management of the conspiracy. Amy Pofahl assisted Charles
1
Charles Pofahl was the ringleader of the conspiracy which
led to the convictions of Amy Pofahl, Charles Nunn, and Randy
White. However, Charles Pofahl is not a party to this appeal. He
was arrested in Germany, was tried and convicted by German
authorities, and was incarcerated in Germany when Amy Pofahl,
Charles Nunn, and Randy White were tried in the Western District of
Texas.
-2-
Pofahl with counting and bottling MDMA tablets. She also
introduced her former boyfriend, Larry Morrow, into the conspiracy
and thereafter sold MDMA to him when he became a distributor. Amy
Pofahl continued to sell MDMA and receive the proceeds of MDMA
sales after Charles Pofahl's personal involvement in the conspiracy
ended with his arrest in West Germany.
Charles T. Nunn served the conspiracy as a smuggler. Nunn
transported 130,000 tablets of MDMA from Guatemala to the United
States by car, and he was in Guatemala preparing to return with
another shipment when he learned that Charles Pofahl had been
arrested in Germany.
Randy White lived, worked, and sold MDMA in the Dallas area.
White regularly received substantial quantities of
MDMA))manufactured by the Pofahl-Key operation))from Tom and Dan
Drath. The Draths received the MDMA from Charles Wesley Knight,
who received it directly from Morris Key and Charles Pofahl. Randy
White regularly sold MDMA to several lower-level distributors.
B
A cooperative investigation by state and federal authorities
led to the arrests of a number of participants in the conspiracy,
including Pofahl, Nunn, and White, all of whom were charged in an
indictment alleging a variety of drug and money laundering
offenses. Pofahl, Nunn, and White were tried together before a
jury, which found all three defendants guilty of Count One of the
indictment))conspiring to distribute and possess with intent to
distribute MDMA, in violation of 21 U.S.C. §§ 841(a)(1), 846
-3-
(1988). Both Pofahl and Nunn were found guilty of Count
Two))conspiring to import MDMA into the United States, in violation
of 21 U.S.C. §§ 952(a), 963 (1988). The jury also found Pofahl
guilty of Count Six))money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (1988).
The district court sentenced Pofahl to consecutive prison
terms of 240 months for Count One and 52 months for Count Two.
Pofahl received a concurrent term of 60 months on Count Six. The
district court sentenced Nunn to 235 months imprisonment for Count
One and a concurrent term of 60 months on Count Two. Randy White
received a sentence of 109 months imprisonment.2
C
Pofahl, Nunn, and White now appeal their convictions and
sentences. All three appellants allege racial discrimination in
the selection of the jury. Both Pofahl and White attack the
sufficiency of the evidence to support their conspiracy
convictions.
Pofahl raises several additional claims: (a) that the district
court erred in its handling of her motion for appointment of a
psychiatric consultant, pursuant to 18 U.S.C. § 3006A, and that her
trial counsel was ineffective for failing to object to the district
court's handling of the motion; (b) that the district court
erroneously denied her motion to suppress evidence seized from her
residences in violation of the Fourth Amendment; (c) that the
2
The three defendants also received terms of supervised
release, fines, and special assessments.
-4-
district court, in imposing sentence, held her accountable for an
excessive quantity of MDMA; (d) that her sentence was enhanced on
account of an erroneous finding that she was a manager in the
conspiracy; and (e) that her sentence was enhanced as a result of
the district court's erroneous finding that she attempted to
obstruct justice.
Charles Nunn argues that (a) the district court erred by
denying his motion to sever, (b) the district court held him
responsible at sentencing for an excessive quantity of drugs,
(c) he should have been granted an offense level reduction as a
minimal or minor participant in the conspiracy, (d) he was entitled
to an offense level reduction for acceptance of responsibility, and
(e) the district court erred by enhancing his sentence for
possession of a firearm during the course of the offense without
first specifically finding that he possessed the gun, as required
by Fed. R. Crim P. 32(c)(3)(D).
Randy White claims that (a) his confession should have been
suppressed, because it was given without the benefit of the
warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), and (b) the district court at
sentencing held him accountable for an excessive quantity of MDMA.
II
Joint Claims
A
Pofahl, Nunn, and White argue that their convictions must be
reversed on account of racial discrimination in the selection of
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the jury. The appellants present several arguments to that effect,
none of which has merit.
(i)
Pofahl, Nunn, and White contend that the district court erred
by overruling White's objection, premised on Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the
prosecutor's use of peremptory strikes to remove all of the
African-Americans and Hispanic-Americans from the jury. The Equal
Protection Clause3 forbids a prosecutor to exercise peremptory
challenges against prospective jurors solely on account of their
race. Id. at 89, 106 S. Ct. at 1719. To show that the prosecutor
violated the Equal Protection Clause by her use of peremptory
strikes, a defendant must first demonstrate that the facts raise an
inference that the strikes were racially motivated. Id. at 93-94,
106 S. Ct. at 1721. Once the defendant makes that prima facie
case, the prosecutor then has the burden of showing that the
strikes were based on "permissible racially neutral selection
criteria." See id. at 94, 106 S. Ct. at 1721. After the
prosecutor offers a racially neutral explanation, the district
court must determine whether the defendant has established
purposeful racial discrimination. See id. at 98, 106 S. Ct. at
1724.
3
The Equal Protection Clause of the Fourteenth Amendment
pertains to the states, but Batson applies to federal, as well as
state, criminal cases. See Brown v. United States, 479 U.S. 314,
107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (federal criminal
conviction reversed on the basis of Batson).
-6-
Following voir dire, counsel for White drew the district
court's attention to the fact that the prosecutor had exercised
peremptory strikes to remove from the jury the only two African-
American venire members and the one Hispanic venire member. See
Supp. Record on Appeal, vol. 7, at 74, 77. The district court
apparently understood counsel to be making a Batson objection, and
asked the prosecutor whether he could "state nondiscriminatory
reasons for striking" the three venire members.4 See id. at 74.
The prosecutor answered that he generally tended to strike jurors
"on economic grounds" rather than racial grounds. See id. at 75.
In particular the prosecutor preferred "a middle class jury" made
up of jurors "who work[ed] eight hours a day and [were] preferably
salaried." See id.
4
The Supreme Court contemplated that district courts faced
with Batson objections would decide whether the facts supported an
inference of racial discrimination. See Batson, 476 U.S. at 97,
106 S. Ct. at 1723. If the district court determined that the
facts supported that inference, the government would then be
required to come forward with race neutral explanations for its
peremptory strikes. See id. Here the district court did not
explicitly find that the facts supported an inference of racial
discrimination. See Supp. Record on Appeal, vol. 7, at 74. The
district court responded to the apparent Batson objection by
immediately asking the prosecutor for race-neutral explanations for
his peremptory challenges. See id. However, "[t]his departure
from the normal course of proceeding need not concern us. . . .
Once a prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes moot."
Hernandez v. New York, ___ U.S. ___, ___, 111 S. Ct. 1859, 1866,
114 L. Ed. 2d 395 (1991); see also United States v. Broussard, ___
F.2d ___, ___ n.4, 1993 WL 72937, *5 n.4 (5th Cir. 1993) (declining
to decide whether defendant had established prima facie case of
racial discrimination, where district court required explanation
for peremptory strikes).
-7-
The prosecutor offered specific reasons for striking each of
the three contested venire members. See id. He stated that
venireman Bolds was struck because he was single and a school bus
driver. Based on those facts, the prosecutor surmised that Mr.
Bolds probably earned low wages and was not employed full time.
See id. The prosecutor said that he struck venireman Olivarez
because he was a self-employed auto mechanic, and as a result it
was not possible to determine how many hours Mr. Olivarez worked or
how much money he earned. See id. at 76. The prosecutor also
stated that he was suspicious of Mr. Olivarez's dress and demeanor.
See id. The prosecutor asserted that he struck Ms. Sargent because
she was not paying attention during voir dire. See id. at 75-76.
After hearing these explanations, the district court overruled
White's objection to the prosecutor's use of his peremptory
strikes. See id. at 77.
Because only White objected to the prosecutor's use of
peremptory challenges, see id. at 74-77, the government argues that
Pofahl and Nunn are barred from raising a Batson claim on appeal.
See Brief for United States of America at 26 n.13. Because a
timely objection is an essential prerequisite to a Batson claim, we
agree that neither Nunn nor Pofahl is entitled to assert such a
claim. See Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.
1992) (holding that failure to make timely Batson objection at
trial was "a constitutional bar" to Batson claim), petition for
cert. filed, (U.S. Mar. 18, 1992) (No. 91-7669); Thomas v. Moore,
866 F.2d 803, 805 (5th Cir.), cert. denied, 493 U.S. 840, 110 S.
-8-
Ct. 124, 107 L. Ed. 2d 85 (1989); Jones v. Butler, 864 F.2d 348,
369 (5th Cir. 1988), cert. denied, 490 U.S. 1075, 109 S. Ct. 2090,
104 L. Ed. 2d 653 (1989); United States v. Forbes, 816 F.2d 1006,
1011 (5th Cir. 1987); United States v. Erwin, 793 F.2d 656, 667
(5th Cir.), cert. denied, 479 U.S. 991, 107 S. Ct. 589, 93 L. Ed.
2d 590 (1986).
White's Batson argument lacks merit entirely. "Where . . .
the [district court] has entertained and ruled on a defendant's
motion charging a Batson violation, we review only [its] `finding
of discrimination vel non.'" United States v. Terrazas-Carrasco,
861 F.2d 93, 94 (5th Cir. 1988) (quoting United States v. Forbes,
816 F.2d 1006, 1010 (5th Cir. 1987)). The district court's
determination whether the prosecutor's strikes are racially
motivated is purely factual, and largely turns on an evaluation of
the prosecutor's credibility. Hernandez v. New York, ___ U.S. ___,
111 S. Ct. 1859, 1869, 114 L. Ed. 2d 395 (1991). We review the
district court's finding concerning the presence vel non of
purposeful racial discrimination under the "clearly erroneous"
standard. See Hernandez, ___ U.S. ___, 111 S. Ct. at 1871;
Terrazas-Carrasco, 861 F.2d at 94. We will not find a district
court's ruling to be clearly erroneous unless we are left with the
definite and firm conviction that a mistake has been committed.
United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992).
The prosecutor's explanations of his peremptory strikes))focusing
on employment, economic status, attentiveness, and demeanor))were
certainly non-racial. Furthermore, White does not argue, and the
-9-
record does not indicate, that the prosecutor's explanations lacked
credibility. Therefore, the district court's finding that the
prosecutor's peremptory strikes were not racially motivated was not
clearly erroneous, and White is not entitled to relief.
(ii)
Pofahl, Nunn, and White also contend that they are entitled to
reversal because the jury was selected in violation of the Jury
Selection and Service Act, 28 U.S.C. §§ 1861 et seq. (1988).5 We
will not consider that claim, because it was not preserved below.
The Act provides:
In criminal cases, before the voir dire examination
begins, or within seven days after the defendant
discovered or could have discovered, by the exercise of
diligence, the grounds therefor, whichever is earlier,
the defendant may move to dismiss the indictment or stay
the proceedings against him on the ground of substantial
failure to comply with the provisions of this title in
selecting the grand or petit jury.
28 U.S.C. § 1867(a). By failing to act timely as directed by
§ 1867(a), a defendant waives her objection under the Act. See 28
U.S.C. § 1867(e) ("The procedures prescribed by this section shall
be the exclusive means by which a person accused of a Federal crime
. . . may challenge any jury on the ground that such jury was not
selected in conformity with the provisions of this title."); United
States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied, 475
U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); United States
5
28 U.S.C. § 1862 (1988) provides:
No citizen shall be excluded from service as a grand
or petit juror in the district courts of the United
States . . . on account of race, color, religion, sex,
national origin, or economic status.
-10-
v. Green, 742 F.2d 609, 612 (11th Cir. 1984). Because none of the
appellants complied with § 1867(a), they are barred from raising a
claim under the Jury Selection and Service Act on appeal.
(iii)
Pofahl, Nunn, and White also appear to claim that they were
denied their Sixth Amendment right to a jury selected from a pool
that represents a fair cross-section of the community. See Taylor
v. Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 697, 42 L. Ed. 2d
690 (1975). In order to state a claim of that sort, the appellants
must show that a distinctive group is generally and systematically
excluded from jury venires. See Timmel v. Phillips, 799 F.2d 1083,
1086 (5th Cir. 1986). The appellants have not alleged, much less
demonstrated, general and systematic exclusion of a distinctive
group from jury venires in the Western District of Texas. None of
the appellants is entitled to reversal on the basis of their
complaints regarding the selection of the jury.
B
Both Pofahl and White contend that the evidence was
insufficient to support their convictions for conspiracy to
distribute and possess with intent to distribute a controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988).
Pofahl further argues that the evidence was insufficient to support
her conviction for conspiracy to import a controlled substance, in
-11-
violation of 21 U.S.C. §§ 952(a), 963 (1988).6 Pofahl's and
White's contentions are without merit.
(i)
"In deciding the sufficiency of the evidence, we determine
whether, viewing the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict, a rational jury
could have found the essential elements of the offenses beyond a
reasonable doubt."7 United States v. Pruneda-Gonzalez, 953 F.2d
190, 193 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 2952,
119 L. Ed. 2d 575 (1992). "It is not necessary that the evidence
exclude every rational hypothesis of innocence or be wholly
inconsistent with every conclusion except guilt, provided a
reasonable trier of fact could find the evidence establishes guilt
beyond a reasonable doubt." Id. "We accept all credibility
choices that tend to support the jury's verdict." United States v.
Anderson, 933 F.2d 1261, 1274 (5th Cir. 1991).
In order to prove that a defendant conspired to distribute and
possess with intent to distribute MDMA, in violation of 21 U.S.C.
6
Pofahl was also convicted of money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i). Pofahl does not
challenge the sufficiency of the evidence to support her conviction
for money laundering.
7
This standard of review is applied here, because Pofahl
and White properly preserved their sufficiency claims by moving for
a judgment of acquittal at trial. A more stringent standard is
applied where the defendant fails to preserve her sufficiency
claim. See United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir.
1991) (applying "manifest miscarriage of justice" standard because
defendant failed to move for directed verdict or for judgment of
acquittal).
-12-
§§ 841(a)(1), 846,8 the government must prove beyond a reasonable
doubt that (1) there was a conspiracy9 to distribute and possess
with intent to distribute MDMA; (2) the defendant knew about the
conspiracy; and (3) the defendant voluntarily joined in the
conspiracy. See United States v. Hernandez-Palacios, 838 F.2d
1346, 1348 (5th Cir. 1988) (citing United States v. Jackson, 700
F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S. 842, 104 S. Ct.
139, 78 L. Ed. 2d 132 (1983)). The government must prove the same
basic elements))existence of a conspiracy, knowledge, and voluntary
participation))in order to convict an individual of conspiring to
import MDMA in violation of 21 U.S.C. §§ 952(a), 963.10 See id.;
8
Title 21, section 841(a)(1) provides:
[I]t shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or
dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance . . . .
21 U.S.C. § 841(a)(1) (1988).
Title 21, section 846 provides:
Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or
conspiracy.
21 U.S.C. § 846 (1988).
9
A conspiracy consists of "an agreement by two or more
persons to commit one or more unlawful acts and an overt act by one
of the conspirators in furtherance of the conspiracy." United
States v. Romeros, 600 F.2d 1104, 1106 (5th Cir. 1979), cert.
denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed. 2d 759 (1980).
10
Title 21, section 952(a) provides:
It shall be unlawful . . . to import into the United
States from any place outside thereof, any controlled
substance . . . .
21 U.S.C. § 952(a) (1988).
-13-
United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.
1986). "No evidence of overt conduct is required. A conspiracy
agreement may be tacit, and the trier of fact may infer agreement
from circumstantial evidence." Hernandez-Palacios, 838 F.2d at
1348 (citations omitted).
(ii)
Amy Pofahl was convicted of two distinct conspiracies.11 One
concerned possession and distribution of MDMA, while the other
concerned importation. Evidence presented by the prosecution
established the existence of both conspiracies, as well as Pofahl's
knowledge of and participation in both.
Witnesses presented by the prosecution testified to the
existence of a conspiracy to import MDMA. Morris Key testified
that he met with Charles Pofahl in February of 1985, and Pofahl
hired him to determine whether or not MDMA was a legal substance.
See Supp. Record on Appeal, vol. 7, at 104-05. Key determined that
MDMA was not illegal in the United States, but that it soon would
be. See id. at 106, 112. As a result, Key and Charles Pofahl
agreed to manufacture the drug in Guatemala, and Charles Pofahl
promised to pay Key one million dollars for his assistance in
Title 21, section 963 provides:
Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or
conspiracy.
21 U.S.C. § 963 (1988).
11
See Supp. Record on Appeal, vol. 12, at 5.
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manufacturing the MDMA. See id. at 112. Key and Charles Pofahl
employed a number of other individuals to smuggle the MDMA into the
United States. For example, in the summer of 1988 they arranged
with Jerry Williamson to have half a million MDMA tablets carried
to the United States from Guatemala by boat. See id. at 150-54.
Other smugglers employed by Key and Charles Pofahl included Judy
Snell, Charles Nunn, and Robert Petty. See id. vol. 9, at 680-86;
id. vol. 10, at 867-72. Evidence of the agreements and overt acts
of these individuals established the existence of a conspiracy to
import MDMA.
Amy Pofahl's knowledge of, and voluntary participation in the
conspiracy were also established by the evidence. Richard Cesarski
testified at trial that he manufactured MDMA tablets for Charles
Pofahl in Lewisville, Texas, and that Amy Pofahl was present at the
time and was "counting [pills] and putting them in bottles."12 See
id. vol. 8, at 247. Morris Key testified that Amy Pofahl was
present in an apartment in Guatemala where MDMA was being stored by
Charles Pofahl. See id. vol. 7, at 148. Carlos de la Riva
testified that he saw Amy Pofahl at the apartment where the MDMA
was stored, and that she was helping Charles Pofahl remove "Made in
12
Because the events in Lewisville occurred in 1985, before
MDMA became a controlled substance, Amy Pofahl's conduct on that
occasion was not illegal. However, Cesarski's testimony
establishes that in 1985 Amy Pofahl knew that her husband agreed
with others to traffick in MDMA, and that she joined in the
agreement by assisting with the packaging of MDMA tablets. That
evidence, especially when considered in light of other evidence
presented at trial, supports the conclusion that Amy Pofahl
continued to take part in a conspiracy to traffic in MDMA after it
became illegal.
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Guatemala" labels from plastic bottles, which would then be used to
package MDMA tablets for shipping to the United States. See id.
vol. 8, at 281. Kathleen Key, Morris Key's ex-wife, testified that
she was visited by Amy Pofahl in February of 1989, after Morris Key
was arrested. See id. vol. 10, at 771. Pofahl was concerned about
her husband and didn't know where he was. See id. at 772. Pofahl
was also concerned about her money, but she told Key "that there
was enough product in Guatemala to take care of everyone." See id.
at 773-74.
Based on the foregoing evidence, the jury could have
reasonably concluded that Pofahl knew of, and entered into the
conspiracy to import MDMA. See United States v. Mitchell, 777 F.2d
248, 261 (5th Cir. 1985) (finding that evidence supported
conviction for conspiracy to import drugs, where the defendant had
knowledge of the origin of the drug shipments, participated in
weighing and distributing the drugs, and collected and disbursed
funds in connection with the importation), cert. denied, 476 U.S.
1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986); see also United
States v. Rojas-Martinez, 968 F.2d 415, 420-21 (5th Cir.) (finding
circumstantial evidence sufficient to support conviction for
conspiracy to import marijuana), cert. denied, ___ U.S. ___, 113 S.
Ct. 828, 121 L. Ed. 2d 698 (1992); United States v. Gibson, 963
F.2d 708, 711 (5th Cir. 1992) (upholding conviction for importation
of marijuana where circumstantial evidence))such as defendant's
nervousness and inability to explain her unusual conduct))was
-16-
sufficient to support finding that defendant knew marijuana was
present in side panel of her car).
The conspiracy to distribute and possess with intent to
distribute MDMA involved additional participants and agreements.
Larry Morrow was a friend of Amy Pofahl's who testified that he
periodically purchased as many as two thousand tablets from Amy
Pofahl. See id. vol. 9, at 594. When Amy Pofahl moved to
California, she arranged for Morrow to begin receiving MDMA from
her husband. See id. at 596. Morrow testified that he sold the
MDMA to Sherry Wallingford, who was his "main distributor." See
id. at 610-15. Pofahl concedes that this evidence was presented at
trial, but she argues that the evidence was nonetheless
insufficient to prove that she participated in the conspiracy. See
Brief for Pofahl at 32 ("At most, the evidence shows that Mrs.
Pofahl was acting as an independent dealer for the conspiracy.").
Pofahl also contends that no evidence showed that she participated
in negotiations or discussions concerning dealings in MDMA.
However, those arguments fall short of demonstrating that the
government's evidence was insufficient to support Pofahl's
conviction. "[T]he trier of fact may infer agreement from
circumstantial evidence." Hernandez-Palacios, 838 F.2d at 1348.
Although some of the government's evidence may have been
circumstantial, it was not therefore insufficient to support the
jury's verdict. Consequently, we reject Pofahl's sufficiency
claim.
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(iii)
The evidence also supported the jury's conclusion that White
was guilty of conspiracy to distribute and possess with intent to
distribute MDMA. At trial Tom Drath testified that he had a
meeting with Boyd Knight and Charles Wesley Knight, at which they
discussed forming a partnership to sell MDMA. See Supp. Record on
Appeal, vol. 8, at 404. Thereafter Drath began to receive large
quantities of MDMA from Wes Knight,13 which he sold to two
"distributors" who were "underneath" him. See id. at 406-07.
Drath testified that Randy White was one of those distributors, see
id. at 407, and that White was assigned to him by Boyd Knight. See
id. at 433. According to Drath, White carried a beeper, and Drath
would call the beeper to let White know that a certain quantity of
MDMA was waiting for him at a storage locker to which White had a
key. See id. at 410-11. White would retrieve the drugs and sell
them, and then pay Drath for the drugs by placing part of the
proceeds from his sales back in the locker. See id. Drath stated
that he distributed over 100,000 tablets to White between October
of 1987 and December of 1988. See id. at 406, 425, 428.
Internal Revenue Service Special Agent Gary Terrell testified
at trial and recounted an interview with White. White stated to
Terrell that he entered into an agreement with Tom Drath to
purchase two to three thousand tablets of MDMA per week. See id.
at 440. White also told Terrell that he had distributors to whom
13
Wes Knight received MDMA directly from Morris Key. See
Supp. Record on Appeal, vol. 7, at 144.
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he resold the MDMA which he received from Tom Drath. See id. at
440-42. These distributors included Shawn Guillory, Sandy Paulas,
Gary Strauss, and Chris Edwards. See id. White told Terrell that
at one time he accumulated $75,000 in proceeds from sales of MDMA.
See id. at 448. This evidence reveals a number of agreements
entered into by White for the sake of trafficking in MDMA, and
amply proves that White knew of, and participated in a conspiracy
to distribute and to possess with intent to distribute MDMA.
White points out that he did not know the top-level organizers
of the conspiracy, such as Charles Pofahl and Morris Key. However,
in order for White to be convicted of conspiracy it was not
necessary for the government to prove that he knew all of the
members of the conspiracy. In Blumenthal v. United States, 332
U.S. 539, 68 S. Ct. 248, 92 L. Ed. 154 (1947), Blumenthal was
convicted of conspiracy to sell whiskey at a price in excess of the
price set by the government. See id. The Supreme Court found the
evidence sufficient to support Blumenthal's conviction, even though
Blumenthal had no knowledge of the identity or participation of the
individual who actually owned the whiskey, see id. at 556-57, 68 S.
Ct. at 256:
[I]t is most often true, especially in broad schemes
calling for the aid of many persons, that after discovery
of enough to show clearly the essence of the scheme and
the identity of a number participating, the identity and
the fact of participation of others remain undiscovered
and undiscoverable. Secrecy and concealment are
essential features of successful conspiracy. The more
completely they are achieved, the more successful the
crime. Hence the law rightly gives room for allowing the
conviction of those discovered upon showing sufficiently
the essential nature of the plan and their connections
-19-
with it, without requiring evidence of knowledge of all
its details or of the participation of others.
Id. The evidence here amply demonstrated the essential nature of
the conspiracy))a network of agreements to traffick in MDMA))as well
as White's participation in the conspiracy. The government was not
required to prove that White knew the top-level organizers of the
conspiracy. See id.; United States v. Alvarez, 625 F.2d 1196, 1198
(5th Cir. 1980) (en banc) (citing Blumenthal), cert. denied, 451
U.S. 938, 101 S. Ct. 2017, 68 L. Ed. 2d 324 (1981).
White also contends that he dealt in MDMA while it was legal
in the United States, but withdrew from the conspiracy "shortly"
after MDMA became a controlled substance. We disagree. Although
it appears that White began dealing in MDMA before it was illegal
to do so, he continued to traffick in the contraband long
afterwards. The record reveals that MDMA became a controlled
substance on October 27, 1986. See Supp. Record on Appeal, vol.
10, at 949. The record also reveals that White was still
trafficking in MDMA as late as December of 1988, more than two
years after it became a controlled substance. See id. vol. 8, at
446. The evidence was sufficient to support White's conviction for
conspiracy to distribute and possess with intent to distribute
MDMA.
III
Amy Ralston Pofahl
A
Pofahl makes several claims concerning her motion for
appointment of a psychiatrist to assist in preparing and presenting
-20-
her defense, pursuant to 18 U.S.C. § 3006A (1988).14 Pofahl's trial
counsel, John Hurley, filed in the district court Pofahl's Ex Parte
Motion for Appointment of Defense Psychiatric Consultant,
"respectfully request[ing] the Court to appoint Dr. Stephen Mark,
a licensed psychiatrist, as a defense consultant pursuant to 18
U.S.C. § 3006A(e)." See Record on Appeal, vol. 1, at 313 (sealed).
The motion stated that a psychiatric consultant was needed for the
following reasons:
The contents of some of [Pofahl's] writings express
strong beliefs in ideas such as reincarnation and the
channeling of spirits. While these beliefs may not in
themselves be evidence of mental unsoundness, the sheer
volume of writing produced by [Pofahl], her supposed easy
access to hallucinogenic drugs, and her steadfast
rejection of any suggestion to reduce her potential penal
exposure by plea bargaining create a need for [Pofahl] to
be examined by a psychiatric expert, and for this
attorney to consult with said expert in order to
adequately represent [Pofahl], and investigate all
possible defenses available to [her], and to determine
whether [she] is unable to properly assist in her defense
because of mental disease or defect.
Id.
The district court entered an order without conducting a
hearing or otherwise taking evidence concerning the merits of
Pofahl's motion. See id. at 324. The district court found "that
14
Section 3006A provides:
Counsel for a person who is financially unable to
obtain investigative, expert, or other services necessary
for adequate representation may request them in an ex
parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are
necessary and that the person is financially unable to
obtain them, the court . . . shall authorize counsel to
obtain the services.
18 U.S.C. § 3006A(e) (1988).
-21-
a psychiatrist should be appointed to examine [Pofahl] and to
determine her present competency to stand trial and her sanity at
the time of the offense." Id. The district court appointed Dr.
Stephen Mark to conduct the examination, and ordered him to prepare
a written report of his findings. The district court directed Dr.
Mark to forward copies of his report to the prosecutor.
Dr. Mark met with Pofahl and thereafter forwarded to all
concerned parties a one-page letter which contained the following
description of the meeting:
[Pofahl] basically told me that she did not want to talk
to me. She did say that she faces lots of years in
prison and because of the way things have gone she is not
sure who to trust and who not to trust. She did tell me
that she has never been in a psychiatric facility nor has
she been under psychiatric care or on psychiatric-type
medications. The very little bit that she did talk, I
could not pick up any reason to believe that she would
not be competent to stand trial, although, certainly
before I come to that conclusion, I typically like to ask
a lot more questions and get responses to questions than
what I was able to ask today.
Id. (letter of Stephen L. Mark, M.D., Sept. 16, 1991). Pofahl's
counsel, Mr. Hurley, made no objection to the district court's
handling of Pofahl's motion, and made no further attempts to obtain
psychiatric assistance or to present a defense of insanity.
(i)
Pofahl argues that the district court committed reversible
error by denying her motion15 without first conducting an ex parte
15
The district court effectively))though not
expressly))denied Pofahl's motion. The psychiatric examination
ordered by the district court was neither requested by Pofahl nor
authorized by § 3006A(e). "The expert appointed under § 3006A . .
. is intended to serve the interests of the defendant. . . . `His
conclusions need not be reported to either the court or the
-22-
inquiry to determine whether she was entitled to the relief
requested. When a criminal defendant moves under § 3006A(e) for
psychiatric expert assistance, the district court is required to
conduct an ex parte inquiry to determine whether the requested
relief is appropriate. See United States v. Hamlet, 456 F.2d 1284,
1284 (5th Cir. 1972) (holding that the district court "erred in
denying the § 3006A(e) motion without conducting the ex parte
inquiry required by the statute"); United States v. Theriault, 440
F.2d 713, 715 (5th Cir. 1971) (same). However, the district
court's failure to conduct the inquiry required by § 3006A(e) does
not automatically warrant reversal in this case. Where, as here,
a party fails to object to an alleged error before the district
court, we generally will not disturb the district court's ruling,
unless plain error is shown. See, e.g., United States v. Surasky,
974 F.2d 19, 20 (5th Cir. 1992) (holding that plain error standard
applied where criminal defendant failed to object to allegedly
erroneous application of the sentencing guidelines); United States
v. Lopez, 923 F.2d 47, 49-51 (5th Cir.) (declining to review the
merits of appellant's sentencing guidelines claim, where the
alleged error was not raised at trial, and no plain error was
found), cert. denied, ___ U.S. ___, 111 S. Ct. 2032, 114 L. Ed. 2d
117 (1991). Plain error is "error so obvious and substantial that
failure to notice it would affect the fairness, integrity, or
public reputation of [the] judicial proceedings" and would "result
prosecution.'" United States v. Chavis, 476 F.2d 1137, 1142 (D.C.
Cir. 1973) (quoting United States v. Theriault, 440 F.2d 713, 715
(5th Cir. 1971)).
-23-
in manifest injustice." Lopez, 923 F.2d at 50; see also United
States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir. 1984); United
States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982).
We have not previously applied the plain error standard where
a criminal defendant failed to object to the district court's
failure to conduct the ex parte inquiry required by 18 U.S.C. §
3006A(e). Neither Hamlet nor Theriault mentioned whether the
defendant made an objection. However, we now choose to follow the
Tenth Circuit in applying the plain error standard in this context.
See United States v. Greschner, 802 F.2d 373, 380 (10th Cir. 1986)
(applying plain error standard where defendant failed to object to
the presence of government attorneys at hearing on § 3006A(e)
motion for appointment of penologist), cert. denied, 480 U.S. 908,
107 S. Ct. 1353, 94 L. Ed. 2d 523 (1987).
Pofahl has not shown plain error resulting from the district
court's failure to conduct an ex parte inquiry. Pofahl would have
been prejudiced by that alleged error only if it had prevented the
presentation of a meritorious defense of insanity, and nothing in
the record suggests that Pofahl suffered from any mental disease or
defect which would have supported an insanity defense. The only
items in the record which bear on Pofahl's sanity are the
allegations in her Ex Parte Motion for Appointment of Defense
Psychiatric Consultant. Mr. Hurley alleged that Pofahl's writings
revealed her belief in reincarnation and the channeling of spirits,
but he conceded that these beliefs "may not in themselves be
evidence of mental unsoundness." See Record on Appeal, vol. 1, at
-24-
313 (sealed). Counsel also alleged that Pofahl had "easy access to
hallucinogenic drugs," but did not allege that Pofahl had ever used
such drugs, or that she was impaired by their use at the time of
the offense. See id. Finally, counsel alleged that Pofahl refused
to consider a plea bargain. See id. While that choice may have
been unwise, it is hardly symptomatic of a mental disease or
defect. In sum, nothing in the record suggests that Pofahl could
have presented a successful defense of insanity. Consequently, we
find no plain error in the district court's failure to conduct an
ex parte inquiry.
(ii)
Pofahl also argues that her conviction should be reversed
because she was denied her Sixth Amendment right to effective
assistance of counsel. Pofahl argues that her trial attorney was
ineffective for failing to object to the district court's
disposition of her § 3006A(e) motion. We reject Pofahl's argument,
because she has not shown that, in the absence of her counsel's
failures, the outcome of her trial probably would have been
different.
In order to prevail on her claim of ineffective assistance of
counsel, Pofahl must show that (1) her counsel's performance was
deficient, and (2) the deficient performance prejudiced her
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984). We agree that counsel's
performance in this case was deficient. In United States v.
Edwards, 488 F.2d 1154 (5th Cir. 1974), a case presenting facts
-25-
very similar to these, we held that counsel's performance was
ineffective. In Edwards a motion was filed under § 3006A(e), and
the district court ordered a psychiatric examination. See id. at
1159. After performing the examination, the psychiatrist reported
his findings to the prosecution as well as the defense. See id.
As in the instant case, defense counsel failed to object, and we
held that Edwards did not receive "counsel reasonably likely to
render and rendering reasonably effective assistance." See id. at
1162, 1165. In light of Edwards we conclude that Pofahl's
counsel's performance was deficient.
However, Pofahl is not entitled to reversal unless she
demonstrates that her defense was prejudiced by her attorney's
errors. To demonstrate prejudice, Pofahl must show that "there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Pofahl was
prejudiced by counsel's errors only if those errors stopped her
from presenting a meritorious defense of insanity. As discussed in
the preceding section, the record reveals no basis for such a
defense. Therefore Pofahl has not shown that, but for counsel's
unprofessional performance, the outcome of her trial probably would
-26-
have been different.16 Accordingly, we find no merit to Pofahl's
ineffective assistance of counsel claim.
(iii)
Pofahl further argues that "the district court, having itself
raised the issue of Mrs. Pofahl's competency,17 erred in failing to
conclusively determine whether in fact Mrs. Pofahl was competent at
the time of offense and at the time of trial." Brief for Pofahl at
15. Pofahl contends that Dr. Mark's examination was inconclusive,
and therefore the district court erroneously failed to resolve the
issue which it raised. Pofahl did not object below to the district
court's alleged failure to determine whether she was competent.
Consequently, absent a showing of plain error, Pofahl is not
entitled to relief. For the reasons stated previously, see supra
III.A.(i)., Pofahl has not shown plain error. Pofahl does not
allege that she was ever mentally incompetent, and nothing in the
record would support such an allegation. Consequently, we reject
Pofahl's argument.
B
16
Edwards is distinguishable in this regard. It appears
that Edwards was prejudiced by his attorney's failure to pursue the
insanity defense because Edwards was diagnosed as "`an immature
personality' exhibiting `simple schizophrenia with depression,
sociopathic tendencies, religiosity and passive dependent
features.'" Edwards, 488 F.2d at 1159. Consequently, there was a
reasonable probability that Edwards could have presented a
meritorious insanity defense, if not for his counsel's omissions.
17
Pofahl argues that the district court raised the issue of
her competency by ordering Dr. Mark to conduct a psychological
evaluation.
-27-
Pofahl next argues that the district court erred by denying
her motion to suppress evidence seized from three of her residences
in California. Law enforcement officers obtained search warrants
for the following three locations: 8488 Carlton Way, Los Angeles;
8447 West 4th Street, Los Angeles; and 17 Yawl Street, Marina Del
Rey. Pofahl argues that the affidavits supporting the warrants did
not establish probable cause. According to Pofahl, the affidavits
alleged that her husband, Charles Pofahl, and Dr. Morris Key
engaged in criminal activities in Texas, but failed to allege that
she engaged in any illegal conduct or that any illegal conduct took
place in California. Pofahl contends that the affidavits therefore
did not establish a nexus between her residences in California and
the evidence sought there by officials.
Where a district court denies a motion to suppress evidence
seized pursuant to a warrant, and the motion is premised on an
alleged lack of probable cause to support the warrant, we review
the denial of the motion to determine (1) whether the good-faith
exception to the exclusionary rule applies, see United States v.
Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); and
(2) whether the warrant was supported by probable cause. United
States v. Satterwhite, 980 F.2d at 317, 320 (5th Cir. 1992); see
also United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.),
cert. denied, ___ U.S. ___, 113 S. Ct. 355, 121 L. Ed. 2d 269
(1992). However, it is unnecessary to address the probable cause
issue if the good-faith exception applies, unless the case involves
a "`novel question of law whose resolution is necessary to guide
-28-
future action by law enforcement officers and magistrates.'"
Illinois v. Gates, 462 U.S. 213, 264, 103 S. Ct. 2317, 2346, 76 L.
Ed. 2d 527 (1983) (White, J., concurring); Satterwhite, 980 F.2d at
320 (quoting Gates). Because Pofahl's Fourth Amendment argument
does not present a novel question of law, we address the good-faith
issue first.
Evidence obtained by officers in objectively reasonable good-
faith reliance upon a search warrant is admissible, even though the
warrant was unsupported by probable cause. See Leon, 468 U.S. at
922-23, 104 S. Ct. at 3420; Satterwhite, 980 F.2d at 320. The
evidence is not admissible where the warrant is based upon an
affidavit "`so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.'" Leon,
468 U.S. at 923, 104 S. Ct. at 3421 (quoting Brown v. Illinois, 422
U.S. 590, 610-611, 95 S. Ct. 2254, 2265-66, 45 L. Ed. 2d 416 (1975)
(Powell, J., concurring in part)). We often refer to an affidavit
of that sort as a "bare bones affidavit."18 See United States v.
Craig, 861 F.2d 818, 821 (5th Cir. 1988). Where a warrant is
supported by more than a bare bones affidavit, an officer may rely
in good faith on the warrant's validity. Satterwhite, 980 F.2d at
321; United States v. Pigrum, 922 F.2d 249, 252 (5th Cir.), cert.
denied, ___ U.S. ___, 111 S. Ct. 2064, 114 L. Ed. 2d 468 (1991).
We review de novo the reasonableness of an officer's reliance upon
18
A bare bones affidavit contains "wholly conclusory
statements, which lack the facts and circumstances from which a
magistrate can independently determine probable cause."
Satterwhite, 980 F.2d at 321.
-29-
a warrant issued by a magistrate. Satterwhite, 980 F.2d at 321
(citing United States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990)).
(i)
The search warrant for 8488 Carlton Way in Los Angeles was
supported by the affidavit of Internal Revenue Service Special
Agent Michel L. Lamberth. See Record on Appeal, vol. 2, at 232-53.
The affidavit described at length how Charles Pofahl and Morris Key
obtained chemicals in West Germany, shipped them to Guatemala for
use in the manufacture of MDMA, and then imported the MDMA tablets
into the United States for sale. Most of the criminal activities
discussed in the affidavit involved Charles Pofahl and Morris Key,
but not Amy Pofahl. However, a confidential informant ("CI-3")
told Lamberth "that Amy Pofahl was fully knowledgeable and heavily
involved with Charles F. Pofahl's personal and business
activities." Id. at 234-35. Another confidential informant ("CI-
5") stated that, following the arrest of Charles Pofahl in April of
1989, "Amy Pofahl [had] taken charge of the business and personal
effects of Charles F. Pofahl." See id. at 234.
Prior to Charles Pofahl's arrest, he and Amy Pofahl resided at
12526 Sunlight Drive in Dallas. See id. at 243. Confidential
informant CI-3 stated that he maintained an office at Charles
Pofahl's residence and was once a business partner of Charles
Pofahl. See id. at 244. CI-3 stated that he had seen "numerous
filing cabinets containing records relating to the manufacture of
pharmaceutical products . . . at Pofahl's residence located at
12526 Sunlight." See id. at 243. CI-3 said that additional
-30-
records were kept at an office at 3317 Finley, in Irving. See id.
CI-3 further reported that Charles Pofahl kept a safe at his Dallas
residence, which contained "large amounts of currency, jewelry,
coins, firearms, and plastic bags containing white powder and
tablets." See id.
Around the time of Charles Pofahl's arrest, Amy Pofahl vacated
the residence in Dallas. See id. at 243. A neighbor of the
Pofahls reported seeing furniture being loaded into a moving van at
12526 Sunlight Drive in April of 1989. See id. at 234. Amy Pofahl
told the neighbor that she was moving to California. See id. CI-5
reported that, following Charles Pofahl's arrest, he assisted Amy
Pofahl by transporting office equipment, books, and records
pertaining to Charles Pofahl's business from an office at 3317
Finley, in Irving, to a storage facility in Dallas. See id. at
241. CI-5 also stated that he helped Amy Pofahl move boxes of
documents to the same storage facility from the Pofahls' house on
Sunlight Drive around the same time. See id. Lamberth searched
the storage facility and found what he believed to be only part of
the Pofahls' business and financial records. See id. at 238. At
the time of Lamberth's affidavit, the whereabouts of the safe
referred to by CI-3 were unknown. See id. at 242.
Utility company records revealed that Amy Pofahl obtained
utility services for 8488 Carlton Way in Los Angeles on April 12,
1989, see id. at 235-36, and Pacific Bell Telephone listed a number
for Amy Ralston (Pofahl's maiden name) at 8488 Carlton Way. See
id. at 235. A Drug Enforcement Administration ("DEA") agent told
-31-
Lamberth that he had seen a woman matching Amy Pofahl's description
at the 8488 Carlton Way residence. See id.
Citing United States v. Green, 634 F.2d 222 (5th Cir. 1981),
Pofahl argues that the foregoing information did not support an
objectively reasonable good faith belief in probable cause because
it did not allege that Pofahl engaged in any criminal activity in
California. In Green, law enforcement officers obtained a search
warrant for Green's Florida residence. See id. at 226. The
affidavits supporting the warrant amply demonstrated that Green was
involved in criminal activities in California, "[b]ut no evidence,
other than residence, was set forth in the affidavits that
connected the Key West, Florida, home to the criminal activity
taking place almost 3,000 miles away." See id. at 225-26. On
appeal the question was "whether evidence that a person is engaged
in criminal conduct in California constitutes probable cause, in
and of itself, to search that person's Florida residence." See id.
at 226. We answered that question in the negative:
The justification for allowing a search of a
person's residence when that person is suspected of
criminal activity is the common-sense realization that
one tends to conceal fruits and instrumentalities of a
crime in a place to which easy access may be had and in
which privacy is nevertheless maintained. In normal
situations, few places are more convenient than one's
residence for use in planning criminal activities and
hiding fruits of a crime. But we are confronted with a
different situation: in this case defendant Green
allegedly engaged in criminal activity several thousand
miles from his residence. The convenience of the
residence for use as a place to plan and hide fruits of
the crime is thus diminished, if not eliminated.
Id. Under those circumstances we found "no justification for a
reasonable person to conclude that there was probable cause to
-32-
believe that fruits or instrumentalities of crimes could be found
at the Florida residence." Id. Pofahl argues that, in light of
Green, Lamberth's allegations of criminal conduct in Texas did not
support a reasonable good faith belief in probable cause to search
Pofahl's residence in California. We disagree.
In Green the only support for probable cause was the
assumption that, because it is usually convenient for criminals to
keep the fruits and instrumentalities of their crimes at home,
Green would do so as well. Here the search warrant was supported
by specific, concrete facts, rather than a mere assumption about
the tendencies of criminals to keep evidence of their crimes at
home. The facts alleged by Lamberth showed that Amy and Charles
Pofahl stored records and fruits of their criminal enterprise at
their residence, and that Amy Pofahl moved from Sunlight Drive in
Dallas to 8488 Carlton Way in Los Angeles after she took control of
the drug trafficking business. Therefore, it was reasonably
inferable that Amy Pofahl had the records, fruits, and
instrumentalities of the Pofahls' crimes transported to California
and stored at her residence.19 See United States v. Thomas, 973
F.2d 1152, 1157 (5th Cir. 1992) ("Since [the] criminal instruments
were not found at Thomas's . . . business, the expectation of
19
When Amy Pofahl moved to California, she removed from the
house in Dallas any records and fruits of the criminal enterprise;
she also removed business records and equipment from the office in
Irving. Some of these items were transported to a storage facility
in Dallas, but Lamberth concluded that the business records
discovered there were only part of the records pertaining to the
Pofahls' drug smuggling operation. Lamberth did not indicate that
the search of the storage facility revealed any of the items
mentioned by CI-3 as the contents of Charles Pofahl's safe.
-33-
finding the [criminal instruments] at Thomas's home was a
reasonable inference supporting a determination of probable
cause."); United States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992)
(noting that nexus between evidence sought and location to be
searched "may be established `through normal inferences as to where
the articles sought would be located'" (quoting United States v.
Freeman, 685 F.2d 942, 949 (5th Cir. 1982))). In Green "[w]e
emphasize[d] that the affidavits contain[ed] no allegations tending
to establish that criminal activity of any kind was taking place at
the Florida residence." Green, 634 F.2d at 226 n.8. Because the
affidavit at issue here contained substantially greater indicia of
probable cause than did the affidavit in Green, Pofahl's reliance
on that case is misplaced.
Lamberth's affidavit was not a bare bones affidavit containing
only "wholly conclusory statements, which lack the facts and
circumstances from which a magistrate can independently determine
probable cause." See Satterwhite, 980 F.2d at 321. The specific
facts alleged by Lamberth tended to establish the existence of an
ongoing criminal enterprise, as well as the likelihood that
evidence of that enterprise would be found at Pofahl's California
residence. Therefore, the officers reasonably relied in good faith
on the search warrant for the house at 8488 Carlton Way, and the
district court did not err by admitting evidence seized at that
residence.
-34-
(ii)
Amy Pofahl apparently moved to 8447 West 4th Street in Los
Angeles in April of 1990.20 A search warrant was issued for that
address in July. DEA Special Agent Douglas Cortinovis was the
affiant in support of the warrant. Cortinovis alleged numerous
facts which indicated that Pofahl was actively involved in the
importation and distribution of MDMA along with Charles Pofahl and
Morris Key. For example, Cortinovis stated that he had interviewed
Morris Key at a federal prison, and that Key reported seeing Amy
Pofahl carrying 10,000 MDMA tablets in the trunk of her car. See
Record on Appeal, vol. 2, at 216, 219. Cortinovis also interviewed
Charles Pofahl in a German prison, at which time Charles Pofahl
stated that Amy Pofahl had full knowledge of his drug business, and
even assisted in tableting and packaging MDMA and counting currency
acquired through sales of MDMA. See id. at 210-11. Charles Pofahl
admitted that he and his associates were involved in the
importation and distribution of MDMA from 1985 to 1989. See id. at
220. Cortinovis stated, based on his experience investigating
crimes of this kind, that individuals who participate in drug
trafficking maintain records and other evidence of their illegal
activities at their residences for long periods of time, often
months or years. See Record on Appeal, vol. 2, at 222-24.
20
In March of 1990 Pofahl's landlords at 8488 Carlton Way
told an IRS investigator that Pofahl was terminating her tenancy
that month. See Record on Appeal, vol. 2, at 202. Pofahl began
receiving phone service at 8447 West 4th Street in April of 1990.
See id. Water, gas, and electric services for that address were
registered in Pofahl's name as well. See id.
-35-
Pofahl presses essentially the same arguments with respect to
the search warrant for her West 4th Street apartment as she did
with respect to the warrant for the Carlton Way residence.
Pofahl's argument under Green is even less persuasive here. In
addition to demonstrating Pofahl's extensive involvement in the
MDMA business, Cortinovis alleged specific facts tending to show
that Pofahl continued to be involved with MDMA after she moved to
California. At the 8488 Carlton Way residence, officers seized
Pofahl's Mercedes Benz, which contained half a dozen MDMA tablets.
See id. at 205. Long distance telephone records also indicated
that Pofahl kept in touch with Larry Morrow, a major participant in
Charles Pofahl's MDMA operation,21 while she was living in the house
on Carlton Way. See id. at 204. Because the facts alleged in
Cortinovis's affidavit do not pertain only to Texas, Pofahl's
reliance on Green is again misplaced.
Many of the facts alleged by Cortinovis concerning Amy
Pofahl's involvement in the MDMA trafficking scheme occurred before
she moved from Carlton Way to West 4th Street. Therefore, Pofahl
argues, the facts alleged by Cortinovis had little if anything to
do with the West 4th Street location, and did not justify admission
of evidence seized at that location. We disagree.
First, facts alleged by Cortinovis tend to show that after Amy
Pofahl moved to the apartment on West 4th Street, she regularly
communicated with Jerry Williamson, the individual who was
21
Cortinovis alleged that Larry Morrow participated in
Charles Pofahl's operation as a smuggler and as a regular
distributor of MDMA. See id. at 210.
-36-
responsible for smuggling the majority of Charles Pofahl's MDMA
into the United States from Guatemala. See id. at 204. Williamson
stated, during a post-arrest interview, that Amy Pofahl contacted
him to warn him that Charles Pofahl was cooperating with the
authorities and might be revealing incriminating information about
him. See id. Long distance telephone records indicated that
Williamson called Amy Pofahl's residence several times each month
during the first few months that she lived at the West 4th Street
address. See id.
Second, Pofahl's argument has little weight in light of our
decision in United States v. Webster, 960 F.2d 1301 (5th Cir.),
cert. denied, ___ U.S. ___, 113 S. Ct. 355, 121 L. Ed. 2d 269
(1992). Webster argued that evidence seized at his residence
should have been suppressed because the affidavit supporting the
search warrant failed to establish probable cause. See id. at
1306. The affidavit alleged that Webster sold drugs at his
residence 18 months before the issuance of the warrant. See id.
The more recent drug sales alleged in the affidavit occurred at
other locations. See id. at 1307. We affirmed the district
court's admission of the seized evidence, under the Leon good-faith
exception:
The affidavit alleged that, based on the officer's
experience, drug dealers and traffickers commonly keep
caches of drugs, as well as paraphernalia and records of
drug transactions, in their residences. In other words,
the basis for searching Webster's residence was his
overall drug trafficking and sales activity, not just
those sales that actually took place at his residence.
See id. The same can be said here.
-37-
Agent Cortinovis did not submit a bare-bones affidavit.
Cortinovis alleged facts tending to show that Amy Pofahl's
involvement in a long-standing drug trafficking operation continued
into the period when she lived at the apartment on West 4th.
Cortinovis also pointed out that participants in drug trafficking
enterprises are likely to keep records and other evidence of their
illegal activities at their homes for long periods of time.
Therefore, we conclude that the facts alleged by Cortinovis
supported a reasonable good faith belief in probable cause.22 The
district court did not err by admitting evidence seized at 8447
West 4th Street.
(iii)
Law enforcement officers executed a search warrant for
Pofahl's residence at 17 Yawl Street, Unit #4 in Marina Del Rey on
March 27, 1991. Internal Revenue Service Special Agent Gary
Gallman submitted an affidavit in support of the search warrant
application. Gallman alleged that Charles Pofahl and Morris Key's
MDMA racketeering operation persisted for several years and
involved the importation and distribution of millions of MDMA
tablets. See Record on Appeal, vol. 2, at 185-86. Gallman
22
See also United States v. Kleinebreil, 966 F.2d 945 (5th
Cir. 1992). There we upheld the admission of evidence under the
Leon good faith exception, even though evidence relating directly
to the residence searched was a year old. See id. at 948-49. We
concluded that the affidavit "`clearly show[ed] a long-standing,
ongoing pattern of criminal activity,' continuing through the date
of issuance of the warrant," and "the type of evidence
sought))records of drug-trafficking activity))`[was] of the sort
that [could] reasonably be expected to be kept for long periods of
time in the place to be searched.'" See id. at 949 (quoting United
States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988)).
-38-
referred to an interview with Morris Key, during which Key stated
that Amy Pofahl had full knowledge of the MDMA operation, and that
he had seen her carrying about 10,000 MDMA tablets in the trunk of
her car. See id. at 183. Charles Pofahl also stated that Amy
Pofahl knew about, and assisted him with, the production,
importation, and distribution of MDMA. See id. at 181. Gallman
alleged facts which tended to show that, after the arrest of
Charles Pofahl in Germany, Amy Pofahl removed large sums of cash
from various storage facilities in the Dallas area and transported
the money, or had it transported, to California. See id. at 174,
177-79. Other facts alleged by Gallman indicate that Amy Pofahl
placed at least some of the currency in storage facilities in
California. See id. at 173. Gallman recounted an interview with
an individual named Robert Petty, who stated that he had sold MDMA
for Amy Pofahl and delivered the proceeds ($218,930) to her while
she was living in Los Angeles. See id. Dean Bornstein and Heather
Teague were friends of Amy Pofahl, who claimed that Pofahl provided
them with MDMA for their personal use during 1989 and 1990. See
id. at 173-74. Gallman also alleged facts tending to show that Amy
Pofahl, while living in California, maintained contact with Jerry
Williamson, who had been primarily responsible for importing
Charles Pofahl's MDMA into the United States from Guatemala. See
id. at 175-76. Finally, when Amy Pofahl was arrested on March 26,
1991))the day before the search of the Yawl Street residence))the
arresting officers asked her where her money was hidden. See id.
-39-
at 170-71. Pofahl asked the officers whether they "would let her
go free if she gave up her money." See id. at 170.
Agent Gallman did not submit a bare-bones affidavit. The
specific facts alleged by Gallman tended to show that Amy Pofahl
had been involved in an elaborate, longstanding MDMA trafficking
operation, and that she continued to be involved with the
operation, or at least some facets of it, after she moved to
California. Because Amy Pofahl utilized storage facilities in
California, it was likely when the Yawl Street warrant was issued
that evidence of drug trafficking, particularly the proceeds of
drug sales, had not been seized at either of Amy Pofahl's
residences in Los Angeles and remained in her hands. That
conclusion would have been bolstered by Amy Pofahl's offer to the
arresting officers to hand over her money in return for her
freedom. These facts supported a reasonable good faith belief in
probable cause to search the Yawl Street residence. See
Kleinebreil, 966 F.2d at 949; Webster, 960 F.2d at 1307. The
district court did not err by admitting evidence seized at the Yawl
Street location.23
23
Randy White claims that his conviction must be reversed
because certain evidence admitted at trial was unconstitutionally
seized from Amy Pofahl's Jaguar automobile outside the Yawl Street
residence in Marina del Rey. Because White has no standing to
object to the search, his argument fails. An individual who has no
reasonable expectation of privacy in a vehicle lacks standing to
challenge a search of that vehicle. See Rakas v. Illinois, 439
U.S. 128, 148, 99 S. Ct. 421, 433, 58 L. Ed. 2d 387 (1978); United
States v. Johnston, 685 F.2d 934, 939 (5th Cir. 1982) (citing
Rakas). We have found that an individual lacks standing to object
to the search of a vehicle where he asserts no ownership interest
in the vehicle. See United States v. Harrison, 918 F.2d 469, 472
(1990) (citing Rakas and Johnston); Johnston, 685 F.2d at 939.
-40-
C
Pofahl also contends that the district court erred by
calculating her sentence on the basis of the full amount of MDMA
involved in the conspiracy))1.4 million grams. Pofahl argues that
it was not reasonably foreseeable to her that the conspiracy would
involve such a large quantity of MDMA, and therefore the district
court should not have taken that amount of drugs into account in
determining her base offense level for the drug conspiracy counts.24
The district court assigned Pofahl a base offense level of 38 based
on 1.4 million grams of MDMA.25 Pofahl failed to object to the
amount of MDMA used to calculate her base offense level. See
Letter from Attorney John M. Hurley to U.S. Probation Officer
William H. Moore, attached to Presentence Report, United States of
America v. Amy Ralston Pofahl, No. W-91-CR-038 (Pofahl's objections
White concedes that he "did not know . . . Pofahl and knew nothing
of her residence in Marina del Rey, California or her automobile."
Brief for White at 15. Clearly White lacks standing to contest the
search of that automobile.
24
A defendant's base offense level is determined on the basis of:
[A]ll acts and omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise
accountable, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense, or
that otherwise were in furtherance of that offense . . . .
United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(1) (Nov.
1991). "Conduct `for which the defendant would be otherwise accountable' . . .
includes conduct of others in furtherance of the execution of [a] jointly-
undertaken criminal activity that was reasonably foreseeable by the defendant."
U.S.S.G. § 1B1.3, comment. (n.1).
25
See Presentence Report, United States of America vs. Amy
Ralston Pofahl, No. W-91-CR-038, at 22 (sealed); Supp. Record on
Appeal, vol. 12, at 20 (applying offense level recommended by
probation officer).
-41-
to Presentence Report); Supp. Record on Appeal, vol. 12 (Pofahl's
sentencing hearing). Because Pofahl failed to object below, the
district court's ruling will be reviewed only for plain error. See
United States v. Hatchett, 923 F.2d 369, 376 (5th Cir. 1991)
(applying plain error standard where defendant failed to object to
district court's consideration of a quantity of cocaine in
calculating his base offense level). Plain error is "error so
obvious and substantial that failure to notice it would affect the
fairness, integrity, or public reputation of [the] judicial
proceedings" and would "result in manifest injustice." United
States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, ___ U.S.
___, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991) (citations omitted);
see also United States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir.
1991); United States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982).
We find no plain error here. "Questions of fact capable of
resolution by the district court upon proper objection at
sentencing can never constitute plain error." Lopez, 923 F.2d at
50. The quantity of drugs reasonably foreseeable to Pofahl is a
question of fact which the district court could have resolved at
sentencing. See United States v. Cockerham, 919 F.2d 286, 289 (5th
Cir. 1990) (holding that determination of relevant conduct under
§ 1B1.3 is "primarily factual"); United States v. Rivera, 898 F.2d
442, 445 (5th Cir. 1990) (holding that quantity of drugs implicated
by a crime is a factual question).
In the alternative, we find no plain error in holding Pofahl
accountable for the full amount of MDMA involved in the conspiracy
-42-
because it appears that the full amount of MDMA was reasonably
foreseeable to Pofahl. Evidence presented by the prosecution
revealed that Pofahl was personally involved in several aspects of
her husband's MDMA business, practically from the inception of the
conspiracy, and that she knew or should have known of the large
quantities of MDMA that were involved in the conspiracy. Before
the manufacturing operation was moved to Guatemala, Amy Pofahl
assisted in counting MDMA tablets and placing them in bottles in
Lewisville, Texas. See Supp. Record on Appeal, vol. 8, at 247.
Pofahl was also present in Guatemala at the apartment where Charles
Pofahl stored MDMA before importing it into the United States, and
she helped him to remove the "Made in Guatemala" labels from
bottles that were used to package the MDMA. See id. vol. 7, at
148; vol. 8, at 281. Charles Pofahl stated to law enforcement
officers that Amy Pofahl had full knowledge of his manufacturing,
importation, and distribution activities, and that she frequently
assisted him in counting large quantities of currency received in
exchange for MDMA. See Record on Appeal, vol. 2, at 181 (affidavit
of IRS Special Agent Gary Gallman in support of search warrant).26
26
In determining Pofahl's sentence, the district court
could consider information included in the sworn affidavits of law
enforcement officers. See 18 U.S.C. § 3661 (1988) ("No limitation
shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose
of imposing an appropriate sentence."); United States Sentencing
Commission, Guidelines Manual, § 1B1.4 (Nov. 1991); United States
v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) ("The district
court is free to consider all relevant evidence [at
sentencing]))even inadmissible evidence))as long as the evidence
relied upon has `sufficient indicia of reliability to support its
probable accuracy.'" (quoting United States v. Alfaro, 919 F.2d
-43-
A confidential informant reported that, after Charles Pofahl's
arrest, Amy Pofahl took charge of Charles Pofahl's "business and
personal effects." See id. at 234 (affidavit of IRS Special Agent
Michael Lamberth in support of search warrant). Amy Pofahl's
knowledge of the large quantity of MDMA involved in the conspiracy
was also evident from a conversation with Morris Key's wife,
Kathleen Key, soon after Morris Key's arrest. See Supp. Record on
Appeal, vol. 10, at 771-74. Pofahl stated that she did not know
where her husband was, and she was concerned about her money, but
"that there was enough product in Guatemala to take care of
everyone." See id. at 772-74. The district court's consideration
of 1.4 million grams of MDMA did not amount to plain error.
D
Pofahl also contends that the district court erred in
increasing her offense level by two, based upon its finding that
she was a manager of the conspiracy.27 See Supp. Record on Appeal,
vol. 12, at 7; United States Sentencing Commission, Guidelines
Manual, § 3B1.1(c) (Nov. 1991). The district court's factual
finding that Pofahl was a manager of the conspiracy will not be
reversed absent a showing of clear error. See United States v.
962, 965 (5th Cir. 1990))).
27
The term "manager" is not defined by the Sentencing
Guidelines. See U.S.S.G. § 3B1.1 and comment. As that term has
been applied in this Circuit, it implies, inter alia, recruitment
of participants in the offense, the exercise of control over
others, and the exercise of decision-making authority. See United
States v. Peters, 978 F.2d 166, 170 (5th Cir. 1992); United States
v. Liu, 960 F.2d 449, 456 (5th Cir.), cert. denied, ___ U.S. ___,
113 S. Ct. 418, 121 L. Ed. 2d 341 (1992).
-44-
Mueller, 902 F.2d 336, 345 (5th Cir. 1990); United States v.
Alvarado, 898 F.2d 987, 993 (5th Cir. 1990). We will not deem the
district court's finding to be clearly erroneous unless we are left
with the definite and firm conviction that a mistake has been
committed. See Alvarado, 898 F.2d at 993-94.
The district court's characterization of Pofahl as a manager
was not clearly erroneous. On several occasions Pofahl influenced
the course of the drug trafficking operation or exercised authority
over others in furtherance of the conspiracy. Pofahl was
responsible for introducing Larry Morrow into the conspiracy. See
Supp. Record on Appeal, vol. 9, at 593. Morrow was first
introduced to Charles Pofahl by Amy Pofahl, and for some time she
personally supplied Morrow with MDMA for resale and for his
personal use. See id. at 593-94. Amy Pofahl negotiated with
Morrow regarding the price that he would pay her for the MDMA. See
id. at 594-95. When Amy Pofahl moved to California, she made
arrangements for Morrow to deal with her husband in her absence.
See id. at 595-96. After Charles Pofahl was arrested, Amy Pofahl
contacted Morrow and requested that he visit a locked storage vault
in order to retrieve a sum of money which she expected to be stored
there. See id. at 608. Morrow did not find the money, but
retrieved a quantity of MDMA from the vault. See id. at 611-12.
Amy Pofahl later instructed him to return to the vault to determine
whether any MDMA remained. See id. at 613.
Pofahl exercised authority over others in furtherance of the
conspiracy on other occasions as well. In May of 1989 Amy Pofahl
-45-
rented a Lincoln Town Car in Dallas and instructed Dean Bornstein
to drive the car to Los Angeles, carrying, among other things, a
gym bag full of money. See id. vol. 10, at 788-89. Robert Petty
smuggled MDMA into the United States for Charles Pofahl. See id.
at 866-69. However, upon entering the United States with a
shipment of MDMA from Guatemala, Petty learned that Charles Pofahl
had been arrested. See id. at 870. Because he could not deliver
the MDMA to Charles Pofahl, Petty sold it for a substantial sum.
See id. at 871. Thereafter Amy Pofahl contacted Petty and arranged
a meeting with him, at which she told Petty that she knew he had
either a quantity of MDMA or the proceeds therefrom. See id. at
873-74. Amy Pofahl demanded that Petty relinquish the money, which
he did at a later meeting. See id. at 874-75. When Petty reported
that he had sold the MDMA tablets for two dollars apiece, Pofahl
commented that she could have sold them for four or six dollars
each. See id. at 875-76.
Because Amy Pofahl's role in the conspiracy involved
negotiating the price of MDMA, recruiting other members of the
conspiracy, and directing the actions of others in furtherance of
the conspiracy, the district court's characterization of Pofahl as
a manager of the conspiracy does not leave us with the definite and
firm conviction that a mistake has been committed. See United
States v. Peters, 978 F.2d 166, 170 (5th Cir. 1992) (upholding
enhancement under U.S.S.G. § 3B1.1(c) where defendant recruited
others to take part in the offense); United States v. Liu, 960 F.2d
449, 456 (5th Cir.) (holding that, in determining whether defendant
-46-
is a manager or supervisor, district court should consider
recruitment of participants in the offense, the exercise of control
over others, and the exercise of decision-making authority), cert.
denied, ___ U.S. ___, 113 S. Ct. 418, 121 L. Ed. 2d 341 (1992);
Alvarado, 898 F.2d at 993-94 (upholding enhancement under
§ 3B1.1(c) where defendant negotiated drug deals, directed the
actions of others, and dealt with the proceeds of the criminal
enterprise); U.S.S.G. § 3B1.1, comment. (n.1) (recommending that
district court consider "the exercise of decision making authority,
. . . the recruitment of accomplices, . . . and the degree of
control and authority exercised over others" in applying § 3B1.1).
The district court's finding was not clearly erroneous.
E
Pofahl next contends that the district court erred by
enhancing her sentence as a result of an erroneous finding that she
attempted to obstruct justice. Section 3C1.1 of the federal
sentencing guidelines provides for a two level increase in a
defendant's offense level "[i]f the defendant willfully obstructed
or impeded, or attempted to obstruct or impede the administration
of justice during the investigation, prosecution, or sentencing of
the instant offense." See United States Sentencing Commission,
Guidelines Manual, § 3C1.1 (Nov. 1991). The district court imposed
an increase of two levels because, at the time of her arrest Pofahl
was living part-time in Florida under an assumed name, and because
she wrote a letter to her husband, asking him not to provide the
authorities with information which would incriminate her. Where a
-47-
district court enhances a defendant's offense level on account of
an obstruction of justice, the district court's finding of
obstructive conduct is reviewed for clear error. See United States
v. Pierce, 893 F.2d 669, 677 (5th Cir. 1990); United States v.
Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, 493 U.S. 998,
110 S. Ct. 554, 107 L. Ed. 2d 550 (1989); United States v. Franco-
Torres, 869 F.2d 797, 800 (5th Cir. 1989).
The district court's finding of obstructive conduct was not
clearly erroneous. Pofahl wrote to her husband during his
incarceration in Germany, and implored him to stop providing the
authorities with incriminating information about her.28 Application
Note 3 to § 3C1.1 provides as an example of conduct which warrants
28
Pofahl's letter contained the following passages:
Everyone does not want me to correspond with you[, and]
considering what info [sic] was passed on to me by your
attorney I must agree. Why do you say things that harm
me [and] make their case against me stronger[?] I can't
try to help [and] support you when you do the opposite.
I will always love you Sandy [for]ever but you are
forcing me into a position of alienating you because you
bring me harm.
* * *
I must say every attorney I've talked to can't believe
you're co-operating [and] now they simply are getting
statements from everyone you squeled [sic] on . . . Win
win situation for them. Everyone goes to prison and no
lengthy trial. Except me, little ole Amy))Do me a favor
please from now on don't mention my name to anyone
anymore. By simply writing this letter I could also be
accused of obstruction of justice [and] since I can't
trust you to keep your mouth shut I am doing this with
great reserve. I'm positive it will come back to haunt
me.
Government's Exhibit No. 1058, United States of America vs. Amy
Ralston Pofahl, No. W-91-CR-038.
-48-
an enhancement for obstruction of justice "conduct prohibited by 18
U.S.C. §§ 1501-1516," see U.S.S.G. § 3C1.1, comment. (n.3(i)); and
it appears that Pofahl's letter, by which she attempted to prevent
her husband from cooperating with the authorities, was prohibited
by 18 U.S.C. § 1512(b) (1988). See 18 U.S.C. § 1512(b)
(prohibiting "corruptly persuad[ing] another person, or
attempt[ing] to do so . . . with intent to influence, delay, or
prevent the testimony of any person in an official proceeding");
United States v. Masterpol, 940 F.2d 760, 763 (2d Cir. 1991)
(suggesting that urging a witness to lie to authorities is
indictable under § 1512 as corrupt persuasion); United States v.
Kulczyk, 931 F.2d 542, 546 n.7 (9th Cir. 1991) (same).
Pofahl's correspondence with her husband was not the only
conduct which supported an enhancement for obstruction of justice.
At the time of her arrest, Pofahl had established a new identity
and a new life in Florida. The arresting officers found in
Pofahl's possession a Florida driver's license, a birth
certificate, and a Social Security card, all in the name of Amy
Rossell.29 See Supp. Record on Appeal, vol. 12, at 16. Pofahl was
living part-time in Florida with a friend, see id. at 17, and she
had acquired new bank accounts, a safety deposit box, and storage
29
Pofahl apparently acquired at least the Florida driver's
license after she became aware that she was the target of an
ongoing investigation. The driver's license was issued on December
13, 1990. See Government Exhibit No. 1029, United States of
America vs. Amy Ralston Pofahl, No. W-91-CR-038. At that time over
a year had elapsed since the search of Pofahl's residence on
Carlton Way in Los Angeles, and several months had passed since the
search of her residence on West 4th Street.
-49-
units in Florida under the name Amy Rossell. See id. at 16.
Pofahl also purchased an automobile in Florida. See id. at 17.
Pofahl did not have a telephone number registered in her name in
California, where she was residing part-time, and she appears to
have been in the process of obtaining a California driver's license
under the name Amy Scalisi. See id. at 15-17. The aggregate of
all the conduct through which Pofahl established a new identity and
a new life in Florida suggests persuasively that Pofahl willfully
attempted to evade prosecution for her crimes.
In light of Pofahl's letter to her husband, as well as her
adoption of a new identity in Florida,30 the district court's
finding that Pofahl attempted to obstruct justice was not clearly
erroneous. Therefore, we affirm the district court's imposition of
the § 3C1.1 enhancement.31
IV
30
Pofahl argues strenuously that her possession of false
identification documents at the time of her arrest did not warrant
an enhancement for obstruction of justice under § 3C1.1. See
U.S.S.G. § 3C1.1, comment. (n.4(a)) (stating that "providing a
false name or identification document at arrest" does not warrant
an enhancement for obstruction of justice, except when providing
the false name or document seriously impedes the administration of
justice). However, mere possession of counterfeit identification
was not the sole basis for the enhancement of Pofahl's sentence.
Pofahl did not merely possess false identification documents. It
appears that she used those documents to assume a new identity and
embark on a new life in Florida, and it could be inferred that she
did so in order to avoid apprehension or impede the investigation
of her offenses. That inference is bolstered by Pofahl's letter to
husband.
31
Lastly Pofahl argues that MDMA was not properly
designated as a controlled substance. We have already rejected
Pofahl's argument. In United States v. Piaget, we held that MDMA
was properly listed as a controlled substance. See United States
v. Piaget, 915 F.2d 138, 141 (5th Cir. 1990).
-50-
Charles T. Nunn
A
Nunn contends that the district court erred in denying his
motion for severance. Nunn filed a pre-trial motion to sever
pursuant to Fed. R. Crim. P. 14,32 claiming unfair prejudice due to
"the sheer number of defendants and counts in the indictment, the
complexity and interrelatedness of issues, and the maze of
evidentiary problems."33 The district court denied Nunn's motion
to sever.
Denial of a Rule 14 motion for a severance is reviewable only
for abuse of discretion. See Zafiro v. United States, ___ U.S.
___, 113 S. Ct. 933, 939, ___ L. Ed. 2d ___ (1993) (holding that
determination of the risk of prejudice from joint trials, and of
the necessary remedy to avoid such prejudice, are entrusted to the
sound discretion of the district court); United States v. Arzola-
Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933,
110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); United States v.
Manzella, 782 F.2d 533, 540 (5th Cir.), cert. denied, 476 U.S.
1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986). "Reversal is
warranted only when the appellant can demonstrate compelling
32
Rule 14 provides:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in
an indictment or information or by such joinder for trial
together, the court may order an election or separate
trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.
Fed. R. Crim. P. 14.
33
Supp. Record on Appeal, vol. 2, at 56.
-51-
prejudice against which the trial court was unable to afford
protection." Arzola-Amaya, 867 F.2d at 1516; United States v.
Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S.
1034, 106 S. Ct. 599, 88 L. Ed. 2d 578 (1985). The rule, rather
than the exception, is that persons indicted together should be
tried together, especially in conspiracy cases. See Arzola-Amaya,
867 F.2d at 1516; United States v. McGuire, 608 F.2d 1028, 1031
(5th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S. Ct. 1060, 62
L. Ed. 2d 782 (1980).
Nunn claims he was entitled to a severance because his
involvement in the drug trafficking as a "mere mule" was extremely
limited.34 Nunn's absence from particular episodes in the
conspiracy does not mandate severance. See United States v. Rocha,
916 F.2d 219, 228 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111
S. Ct. 2057, 114 L. Ed. 2d 462 (1991). Nunn asserts that the
amount of evidence offered against him was far less than the
evidence offered against his co-defendants,35 but we have held that
a quantitative disparity in the evidence "is clearly insufficient
in itself to justify severance." Harrelson, 754 F.2d at 1175.
Furthermore, Nunn asserts that the reputations of the co-defendants
and evidence of their past crimes created a prejudicial spillover
34
See Brief for Nunn at 9-10 (claiming that "[d]efendant's
activities were limited to at most 210,000 tablets [of Ecstacy or
MDMA] . . . whereas the entire conspiracy dealt in approximately
5.6 million tablets").
35
See Brief for Nunn at 9 (noting that testimony regarding
Nunn consisted of 53 pages, while testimony regarding other co-
defendants consisted of almost 900 pages).
-52-
effect. We have also held that the mere presence of a spillover
effect does not ordinarily warrant severance. See Rocha, 916 F.2d
at 228; Harrelson, 754 F.2d at 1178. Moreover, in the case at bar
the district court properly instructed the jury to limit evidence
to the appropriate defendant.36 "[J]uries are presumed to follow
their instructions." Zafiro, ___ U.S. at ___, 113 S. Ct. at 939.
Consequently, the jury was able to separate the evidence and
properly apply it only to those against whom it was offered.
Because Nunn did not suffer compelling prejudice against which the
district court was unable to afford protection, we find that the
district court did not abuse its discretion by refusing to sever
his case.
B
Nunn also asserts that the district court miscalculated his
base offense level by holding him responsible for a large quantity
of drugs, the importation of which was not reasonably foreseeable
to him. See United States Sentencing Commission, Guidelines
Manual, § 1B1.3(a)(1), comment. (n.1) (Nov. 1991) ("In the case of
criminal activity undertaken in concert with others," the defendant
36
The district court's instructions to the jury provided:
In determining whether a Defendant was a member of an
alleged conspiracy . . . the jury should consider only
that evidence, if any, pertaining to his or her own acts
and statements . . . Each count, and the evidence
pertaining to it, should be considered separately and
individually. The fact that you may find one or more of
the Defendants guilty or not guilty of any of the crimes
charged should not control your verdict as to any other
crime or any other Defendant. You must give separate
consideration to the evidence as to each Defendant.
Supp. Record on Appeal, vol. 2, at 166, 174.
-53-
is responsible for "conduct of others in furtherance of the
execution of the jointly-undertaken criminal activity that was
reasonably foreseeable by the defendant."). The district court
based Nunn's sentence on "all of the trafficking which occurred
after he became involved in the conspiracy . . . because . . . he
would have known about that and certainly [would] be accountable
for it." See Supp. Record on Appeal, vol. 13, at 5. The district
court held that the appropriate amount of drugs was 1.2 million
tablets of MDMA. See id. at 8. In addition to 200,000 tablets
that Nunn imported or attempted to import, there were 500,000 MDMA
tablets in Guatemala undelivered and awaiting importation, and co-
conspirator Jerry Williamson imported another 500,000 MDMA tablets
from Guatemala. See id. at 7. "A district court's findings about
the quantity of drugs implicated by the crime are factual findings
reviewed under the `clearly erroneous' standard." Rivera, 898 F.2d
at 445.
Nunn claims that he should only be held responsible for the
200,000 MDMA tablets which he imported or attempted to import, not
the 1.2 million tablets the district court attributed to him. Nunn
asserts that the 500,000 tablets imported by Williamson are not
attributable to him, because their importation predated his
participation in the conspiracy. See Brief for Nunn at 15, 17-18.
Nunn's argument lacks support in the record. Testimony at trial
placed the Williamson importation somewhere between late June and
August of 1988, see Supp. Record on Appeal, vol. 7, at 150-51, 153-
-54-
55, and Nunn was involved with the conspiracy several months prior
to June of 1988. See id. vol. 9, at 676-78.
Nunn also asserts that the 500,000 tablets awaiting
importation from Guatemala are not attributable to him because he
withdrew from the conspiracy. Witness testimony at trial placed
the 500,000 MDMA tablets in Guatemala in February of 1989, the same
month Nunn scheduled a trip to Guatemala to import MDMA tablets.
See id. vol. 10, at 774. After learning that a co-conspirator was
arrested, Nunn cancelled his trip to Guatemala, but this did not
end his involvement in the conspiracy. See id. vol. 9, at 689. We
have held that involvement in a conspiracy is presumed to continue
and will not be terminated until the co-conspirator acts
"affirmatively to defeat or disavow the purpose of the conspiracy."
United States v. Devine, 934 F.2d 1325, 1335 (5th Cir. 1991), cert.
denied, ___ U.S. ___, 112 S. Ct. 954, 117 L. Ed. 2d 121 (1992).
Nunn's decision to cancel his trip to Guatemala in the face of
possible arrest is hardly an affirmative action to defeat the
conspiracy. Because Nunn was a member of the conspiracy when the
disputed 1 million tablets were imported or when importation was
attempted, the district court's finding of reasonable
foreseeability was not clearly erroneous. Therefore, we hold that
the district court properly calculated Nunn's base offense level.
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C
Nunn contends that he was entitled to a downward adjustment,
under § 3B1.2 of the sentencing guidelines, for minimal or minor
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participation in the offense.37 Nunn claims that he was a "mere
mule" possessing less knowledge and understanding of the conspiracy
than the average participant, and therefore he was a minimal or
minor participant in the offense. Section 3B1.2 is designed to
reduce a sentence when the defendant is substantially less culpable
than the average participant in the offense. See United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert. denied, 495
U.S. 923, 110 S.Ct. 1957, 109 L. Ed. 2d 319 (1990). The district
court denied Nunn's request for the downward adjustment, stating
that it "[did not] believe Mr. Nunn was either a minor or a minimal
participant." See Supp. Record on Appeal, vol. 13, at 14. A
judicial fact-finding that a defendant is not a minimal or minor
participant will enjoy the protection of the clearly erroneous
standard. United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th
Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L. Ed. 2d
602 (1989).
We have held that a "`mule' or transporter of drugs may not be
entitled to minor or minimal status." United States v. Bethley,
37
Section 3B1.2 provides:
Based on the defendant's role in the offense, decrease
the offense level as follows:
(a) If the defendant was a minimal participant in any
criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any
criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3
levels.
United States Sentencing Commission, Guidelines Manual, § 3B1.2
(Nov. 1990).
-57-
973 F.2d 396, 401 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113
S. Ct. 1323, ___ L. Ed. 2d ___ (1993); Buenrostro, 868 F.2d at 137-
38. Nunn's role as a courier was not limited to a single delivery,
but included a second delivery attempt which was later aborted.
Additionally, Nunn's role was not confined to that of a mule. Nunn
recruited an individual named "David" to transport an MDMA shipment
from Guatemala into the United States, and received large payments
for his efforts. See Supp. Record on Appeal, vol. 9, at 678, 684-
87. Consequently, the district court's finding that Nunn's role
was not minimal or minor was not clearly erroneous, and Nunn was
not entitled to an adjustment under § 3B1.2.
D
Nunn also contends that he was entitled to a downward
adjustment, under § 3E1.1 of the sentencing guidelines, because he
accepted responsibility for the offense.38 Nunn claims that he
cooperated with the authorities and provided "extensive debriefing
of his criminal conduct." Brief for Nunn at 23-24. However, the
38
Section 3E1.1 provides:
(a) If the defendant clearly demonstrates a recognition
and affirmative acceptance of personal responsibility for
his criminal conduct, reduce the offense by 2 levels.
(b) A defendant may be given consideration under this
section without regard to whether his conviction is based
upon a guilty plea or a finding of guilt by the court or
jury or the practical certainty of conviction at trial.
(c) A defendant who enters a guilty plea is not entitled
to a sentencing reduction under this section as a matter
of right.
United States Sentencing Commission, Guidelines Manual, § 3E1.1
(Nov. 1991).
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district court found that Nunn did not accept responsibility for
the offense. See Supp. Record on Appeal, vol. 13, at 10. This
finding by the district court "is entitled to great deference,
greater than that accorded under the clearly erroneous standard."
United States v. Gonzalez-Basulto, 898 F.2d 1011, 1013 (5th Cir.
1990) (quoting United States v. Tellez, 882 F.2d 141, 143 (5th Cir.
1989)).
Section 3E1.1 "requires a showing of sincere contrition on the
defendant's behalf to warrant the reduction." United States v.
Beard, 913 F.2d 193, 199 (5th Cir. 1990); United States v. Reed,
882 F.2d 147, 150 (5th Cir. 1989). The guidelines also provide
that "[t]his adjustment is not intended to apply to a defendant who
puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse." U.S.S.G. § 3E1.1, comment.
(n.2). Moreover, only "[i]n rare situations [may] a
defendant . . . clearly demonstrate an acceptance of responsibility
for his criminal conduct even though he exercises his
constitutional right to a trial." Id.
Nunn claims that his pre-trial discussions with officers,
where he admitted involvement in the drug trafficking, qualify as
acceptance of responsibility. However, Nunn plead not guilty and
proceeded to trial, where his counsel argued emphatically for
acquittal. See Supp. Record on Appeal, vol. 11, at 1112, 1119-20.
Furthermore, Nunn's admission of guilt))"I guess I'm guilty of both
[counts]"))came only after the jury returned a verdict of guilty.
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See Presentence Report, United States of America v. Charles Thomas
Nunn, No. W-91-CR-038, at 24 (sealed). In light of those facts,
the district court's finding))that Nunn did not accept
responsibility))was not erroneous.
E
Nunn asserts that the district court erred by increasing his
offense level under § 2D1.1(b) of the Federal Sentencing
Guidelines39 due to possession of a firearm, without first
specifically finding that Nunn possessed the weapon, as required by
Fed. R. Crim. P. 32. During Nunn's arrest at his home/business on
July 2, 1991, police officers confiscated a handgun stored in a
drawer with assorted drugs. The Presentence Report (PSR) alleged
that the pistol belonged to Nunn, and that he possessed it at the
time of and in connection with his offenses. See Presentence
Report, United States of America v. Charles Thomas Nunn, No. W-91-
CR-038, at 26-27 (sealed). Therefore the PSR recommended an
enhancement of 2 levels under § 2D1.1(b)(1). See id. Nunn
contended in his objections to the PSR and at the sentencing
hearing that the enhancement for possession of the gun was improper
because the weapon belonged to his roommate. See Letter from
39
Section 2D1.1(a) provides the base offense level for,
inter alia, the unlawful trafficking of drugs. Section 2D1.1(b)(1)
further provides:
(b) Specific Offense Characteristics
(1) If a dangerous weapon (including a
firearm) was possessed, increase by 2 levels.
United States Sentencing Commission, Guidelines Manual, § 2D1.1
(Nov. 1991).
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Attorney J. Marlin Blackledge to U.S. Probation Officer Mikal
Klumpp at 4, attached to Presentence Report; Supp. Record on
Appeal, vol. 13, at 11. After hearing argument from both sides at
the sentencing hearing, the district court overruled Nunn's
objection without explanation. See Supp. Record on Appeal, vol.
13, at 12.
Nunn argues that the district court was required by Fed. R.
Crim. P. 32(c)(3)(D) to make specific factual findings as to
whether Nunn possessed the gun. Rule 32(c)(3)(D) provides:
If the comments of the defendant and the defendant's
counsel or testimony or other information introduced by
them allege any factual inaccuracy in the presentence
investigation report or the summary of the report or part
thereof, the court shall, as to each matter controverted,
make (i) a finding as to the allegation, or (ii) a
determination that no such finding is necessary because
the matter controverted will not be taken into account in
sentencing.
Fed. R. Crim. P. 32(c)(3)(D). The issue of Nunn's possession of
the gun was in dispute, by virtue of Nunn's objections to the PSR
and his counsel's argument at sentencing. Consequently, the
district court was required either to resolve the dispute or to
determine that possession of the gun would not be taken into
account in sentencing. Because the district court failed to do
either, we must vacate Nunn's sentence and remand to the district
court for specific findings as to whether Nunn possessed the
pistol, or a determination that possession of the gun will not
affect Nunn's sentence. See United States v. Sherbak, 950 F.2d
1095, 1098-99 (5th Cir. 1992) (vacating and remanding for specific
findings as to amount of drugs attributable to defendant) (citing
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United States v. Warters, 885 F.2d 1266, 1271-73 (5th Cir. 1989);
United States v. Burch, 873 F.2d 765, 767-68 (5th Cir. 1989));
United States v. Hooten, 942 F.2d 878, 881-82 (5th Cir. 1991)
(remanding for findings as to possession of gun).
On remand, if the district court determines that Nunn did not
possess the gun personally, the enhancement under § 2D1.1 is still
appropriate if the gun was possessed by one of Nunn's accomplices,
and the accomplice's possession was reasonably foreseeable to Nunn.
See U.S.S.G. § 1B1.3(a)(1), comment. (n.1) (Nov. 1991); Hooten, 942
F.2d at 881-82. "The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. § 2D1.1, comment. (n.3).
The firearm need not be an integral part of the offense; simple use
or possession per se is justification for the upward adjustment.
See United States v. Hewin, 877 F.2d 3, 5 (5th Cir. 1989); see also
United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
V
Randy White
A
Randy White contends that the district court erred by allowing
IRS Special Agent Gary Terrell to testify regarding statements made
by White during an interview in White's home. White argues that
his rights under the Fifth Amendment were violated, because the
self-incriminating statements admitted into evidence were made by
White without the benefit of the warnings prescribed by Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Special Agents Terrell and Gallman went to White's apartment
to serve a subpoena in connection with the investigation of the
Pofahl-Key MDMA conspiracy. When the agents arrived, White stated
that he knew they were there to talk about MDMA, and he invited
them inside. White voluntarily spoke to the agents for about an
hour and a half, during which he explained his dealings in MDMA in
detail. White was not given Miranda warnings. Before trial, White
moved to suppress evidence of any statements that he made to
Terrell and Gallman, on the grounds that he was not given the
warnings required by Miranda. The district court found that
Miranda warnings were not required, because White voluntarily
invited the agents into his apartment and proceeded to speak to
them, and because White was never in custody during the
conversation with the agents. See Supp. Record on Appeal, vol. 4,
at 144. Therefore, the district court denied White's motion to
suppress.
The district court properly denied White's motion, because
White was not entitled to Miranda warnings. Miranda requires that
the warnings be given prior to a custodial interrogation. See
Miranda, 384 U.S. at 467, 478-79, 86 S. Ct. at 1624, 1630; see also
Illinois v. Perkins, 462 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d
243 (1990); United States v. Harrell, 894 F.2d 120, 123 (5th Cir.),
cert. denied, 498 U.S. 834, 111 S. Ct. 101, 112 L. Ed. 2d 72
(1990). The district court correctly held that White was not in
custody when he confessed to Gallman and Terrell. A person is "`in
custody' for Miranda purposes when placed under formal arrest or
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when a reasonable person in the suspect's position would have
understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal
arrest." United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.)
(en banc), cert. denied, 488 U.S. 924, 109 S. Ct. 306, 102 L. Ed.
2d 325 (1988); see also United States v. Harrell, 894 F.2d 120, 123
(5th Cir. 1990) (citing Bengivenga). The record does not indicate
that White was under arrest or that he was subject to a restraint
of his freedom comparable to formal arrest. The record
demonstrates that White spoke to the agents in his home, of his own
volition. We agree with the district court's conclusion that White
was never in custody, and therefore was not entitled to suppression
of the statements which he made without the benefit of Miranda
warnings. See Harrell, 894 F.2d at 125 ("A reasonable person,
questioned within his own home, would not suffer `a restraint on
freedom of movement of the degree which the law associates with
formal arrest.'").
B
White also argues that the district court improperly
calculated his base offense level by holding him responsible for an
excessive quantity of MDMA.40 Under § 1B1.3 of the federal
sentencing guidelines, the district court was required to assign
40
See Brief for White at 20 ("[T]he Government, over the
objections of counsel, greatly exaggerated the amount of contraband
sold by Appellant, thereby enhancing the severity of the sentence
Appellant received."); Reply Brief for White at 5 ("Obviously, the
trial court considered the maximum number of pills in applying the
guidelines . . . .").
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White a base offense level corresponding to the amount of drugs
which was reasonably foreseeable to him. See U.S.S.G.
§ 1B1.3(a)(1), comment. (n.1) (Nov. 1991).
The district court held White accountable for 200,000 MDMA
tablets. See Supp. Record on Appeal, vol. 14, at 37. The district
court's finding that this amount of drugs was reasonably
foreseeable to White is reviewed only for clear error. See Rivera,
898 F.2d at 445 ("A district court's findings about the quantity of
drugs implicated by the crime are factual findings reviewed under
the `clearly erroneous' standard."). We will not regard the
district court's finding as clearly erroneous unless we are left
with the definite and firm conviction that a mistake has been
committed. Mitchell, 964 F.2d at 457-58.
The district court's finding of reasonable foreseeability of
200,000 tablets was not clearly erroneous. Evidence at trial
revealed that White dealt in large quantities of MDMA, and knew of
dealings in MDMA by other members of the conspiracy. White entered
into an agreement with Tom and Dan Drath in the fall of 1987, under
which he purchased from the Draths two to three thousand MDMA
tablets per week. See Supp. Record on Appeal, vol. 8, at 459; id.
vol. 14, at 12. White continued to buy drugs from the Draths and
resell them, until December of 1988. See id. vol. 14, at 12. Tom
Drath estimated that he sold White "100,000 to perhaps 150,000"
tablets of MDMA during the course of their business relationship.
See id. vol. 8, at 417. White sold Shawn Guillory "a few thousand
to 12,000" tablets per month. See id. vol. 14, at 25. White sold
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an individual named Sammy five hundred to a thousand tablets from
time to time. See id.
On the basis of those facts, the district court certainly
could have concluded that White personally dealt in more than a
hundred thousand MDMA tablets during the course of his involvement
in the conspiracy. Moreover, White knew that he was not the only
person distributing MDMA on behalf of the Draths. See id. vol. 8,
at 446. White knew that he had a "major competitor" named Craig
who also acquired MDMA from the Draths. See id. at 447. Given
that information, White should have realized that the conspiracy
involved dealings in substantial quantities of MDMA in addition to
the tens of thousands of tablets which he bought and sold. White
could reasonably have foreseen that the conspiracy would lead to
trafficking in at least 200,000 tablets of MDMA. Therefore, the
district court did not commit clear error by finding that
trafficking in that quantity of MDMA was reasonably foreseeable.
The district court properly sentenced White on the basis of 200,000
half-gram tablets of MDMA.
VI
For the reasons stated in Part IV.E. supra, Charles Nunn's
sentence is VACATED, and his case is remanded to the district
court. Nunn's conviction is AFFIRMED, as are the convictions and
sentences of Pofahl and White.
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