UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3235
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD ELWOOD, a/k/a Nap,
WILLIAM BARNES, JR. and
ERNEST MARRERO,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
August 23, 1993
Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and MAHON,*
District Judge.
POLITZ, Chief Judge:
On this appeal we consider the Beechum1 findings made on
remand by the trial court, together with a sentencing issue raised
by Gerald Elwood which was not reached on the prior appeal because
of the remand. The operative facts are detailed in our prior
opinion, 993 F.2d 1146 (5th Cir. 1993). For present purposes we
*
District Judge of the Northern District of Texas, sitting
by designation.
1
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
(en banc), cert. denied, 440 U.S. 920 (1979).
note merely that Elwood and three other males departed his hotel
room in LaPlace, Louisiana with over 2000 grams of cocaine. Two
carried the cocaine in a car while Elwood and another, both
carrying firearms, followed in an armor-plated pickup truck. When
police stopped the car for a traffic violation, Elwood pulled the
truck directly behind the police vehicle. All four males were
arrested and Elwood was ultimately convicted of possession of
cocaine with intent to distribute, conspiracy to possess with
intent to distribute, and using and carrying a firearm in relation
to the drug trafficking offenses. We now affirm Elwood's
convictions but for the reasons assigned vacate his sentences and
remand for resentencing.
I. The 404(b) Evidence
Prior to trial the government noticed its intent to introduce
certain 404(b)2 evidence against Elwood to prove his intent to
participate in the narcotics offenses and to use firearms in
connection therewith.3 Elwood moved in limine, seeking the
2
Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance
of trial . . . of the general nature of any such evidence
it intends to introduce at trial.
3
The evidence included several weapons, weapon boxes,
ammunition, a bullet-proof vest, a glass tube and spoon coated with
2
exclusion of the evidence and asking the court to make record
findings regarding the probative value/prejudicial effect of the
proposed evidence as required by United States v. Robinson.4 The
district court admitted the evidence, but the Robinson findings
were not made on the record. Tracking United States v. Anderson,5
we remanded for Beechum/Robinson findings.6
In accordance with our instructions, the district court
received additional briefing and conducted a hearing on both the
admissibility of the evidence and whether any error in its
cocaine residue, and some plastic bags, all seized from Elwood's
home about a year before this offense (hereinafter the "Rackert
Street evidence").
4
700 F.2d 205 (5th Cir. 1983).
5
933 F.2d 1261 (5th Cir. 1991).
6
We instructed the district court as follows:
If the court holds that the evidence meets [the] first
Beechum step as to relevancy, it then must decide whether
the evidence's probative value was substantially
outweighed by its prejudicial effect. If the court
determines that the probative value was substantially
outweighed, then the court must decide whether there is
a reasonable possibility that the evidence affected the
outcome of the case. In making this determination, the
court should consider the effect of the jury instruction
and the government's closing argument. If the court
finds that the evidence improperly affected the outcome
of the case, the court must order a new trial. If the
court finds that the evidence did not improperly affect
the outcome of the case, "[t]he trial judge shall certify
to us his findings and conclusions. The record shall be
supplemented by the on-the-record determination herein
prescribed, and by any materials submitted by the parties
to the district court. Following such filing, the clerk
will set a schedule for supplementary briefing and the
matter will be returned to this panel for disposition."
993 F.2d at 1153-54 (quoting Anderson, 933 F.2d at 1277; further
citations omitted).
3
admission improperly affected the outcome of the trial.7 The court
concluded that the evidence was admissible under Rule 404(b) and,
alternatively, given the substantial evidence of Elwood's guilt,
any error from the admission of the evidence was harmless.
We apply a highly deferential standard to a trial court's
evidentiary rulings, reversing only for an abuse of discretion.8
Beechum details this circuit's procedure for admitting 404(b)
evidence: "First, it must be determined that the extrinsic
evidence is relevant to an issue other than the defendant's
character. Second, the evidence must possess probative value that
is not substantially outweighed by its undue prejudice and must
meet the other requirements of Rule 403."9
Relevance
Given that his counsel readily conceded during opening
statement that Elwood possessed a firearm, the only question was
his intent to participate in the cocaine distribution conspiracy.
The district court found the 404(b) evidence probative of this
fact. "In determining the probative value of extrinsic evidence,
the court should consider the overall similarity between the
extrinsic and charged offenses, because 'the probative value of the
extrinsic evidence correlates positively with its likeness to the
7
From its chambers file on this case, the district court
provided an internal bench memorandum which contained its findings
at a sidebar conference which was not transcribed.
8
Anderson.
9
582 F.2d at 911.
4
offense charged.'"10 The court a` quo deemed important the fact
that the Rackert Street evidence consisted of several weapons and
ammunition in close proximity to evidence indicative of drug
distribution, specifically, a spoon with cocaine residue, a
cellular phone, plastic baggies, and a scale. In this respect, the
Rackert Street evidence was similar to the evidence supportive of
the charged offenses SQ a scale, plastic baggies, and a cellular
phone were found either at the arrest scene or in the hotel room;
these items and the drugs were in relative close proximity to the
firearms in Elwood's truck. This evidence tends to negate Elwood's
assertion that he knew nothing of the drugs and that his possession
of a firearm was in no way related to the possession of the two
kilos of cocaine in the car he was following closely. We find no
error in the district court's determination that this evidence had
some relevance to the issue of intent.
403 Balance - Probative Value/Prejudice
We also give great deference to the district court's
determination of the second Beechum inquiry SQ whether the
probative value of the evidence is outweighed by the risk of unfair
prejudice.11 In addition to its probative value, the Rackert Street
evidence had obvious prejudicial effect. The sheer quantity of
weapons and ammunition found at the Rackert Street residence
suggested a disturbing level of potential violence. The indepen-
10
United States v. Moye, 951 F.2d 59, 62 (5th Cir. 1992)
(quoting Beechum, 582 F.2d at 915).
11
Moye; Beechum.
5
dent prejudicial effect, however, was diminished by, among other
things, Elwood's admissions on the stand that he owned several
weapons, including ".357s, nine millimeters, . . . an AK-47," and
a "riot shotgun." In addition, there was significant evidence
connecting Elwood to the charged offenses. Finally, the district
court properly instructed the jury on three occasions of the
limitations in the consideration of the Rackert Street evidence.12
In light of the other evidence and the limiting instructions, we
find no 403 breach in the admission of the 404(b) evidence.
II. Assessment of Adjustment for Leadership Role
Elwood received a two level upward adjustment of the offense
level for his leadership role in the criminal activity. He timely
objected to the presentence report, contending that there was no
evidence at trial supporting the adjustment and that "[w]hile the
12
The court cautioned:
Ladies, this officer is going to testify and SQ from
evidence that is going to be presented, so you may hear
evidence of acts of the defendant, Gerald Elwood, which
may be similar to those charged in the indictment in this
case of which were committed on another occasion. You
must not consider any of this evidence in deciding if the
defendant, Gerald Elwood, committed the acts charged in
this indictment; however, you may consider this evidence
for other very limited purposes. You may consider
evidence of the similar act allegedly committed on
another occasion to determine whether the defendant,
Gerald Elwood, had the state of mind or intent necessary
to commit the crime charged in this indictment. This is
the limited purpose for which any evidence of other
similar acts may be considered. Further, this evidence
may be considered by you only in relation to the charges
against Gerald Elwood. You may not consider it when
weighing the evidence regarding charges against William
Barnes and Ernest Marrero.
6
government will have the opportunity at sentencing to establish
that Elwood was an organizer, leader . . . of the alleged criminal
activity, its mere allegation that he played such a role is not
sufficient to warrant the two level adjustment." At sentencing,
the government presented no additional evidence in support of the
adjustment; the record contains only the probation officer's
amendment to the PSR stating: "In discussing the relative roles of
the defendants in this case with the government and the DEA, it was
determined that Elwood should receive a role adjustment pursuant to
Section 3B1.1(c)." Based on the PSR the trial court sentenced
Elwood to 121 months on counts 1 and 2, and a consecutive 60-month
sentence on the gun count. Elwood contends that this adjustment
was improper; the government, on the other hand, contends that the
district court's sentencing was proper because it was based upon a
reliable source SQ the presentence report.13
Confronted with an objection to the findings in the PSR, "the
party seeking an adjustment in the sentence level must establish
the factual predicate justifying the adjustment" by a preponderance
of relevant and sufficiently reliable evidence.14 In this case, the
party seeking the adjustment is the government. "[A] presen-
tence report generally bears sufficient indicia of reliability to
be considered as evidence by the trial judge in making the factual
determinations required by the guidelines."15 In this case,
13
United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990).
14
Alfaro, 919 F.2d at 965.
15
Id. at 966.
7
however, the PSR lent no support for the essential factual
determinations about Elwood's alleged leadership role; the PSR
merely gave a recitation of the conclusions of the DEA and the
prosecutor.
We recently addressed a similar problem in United States v.
Patterson16 in which the government attempted to support an offense
level increase for the defendant's role as a manager or supervisor
of a conspiracy based upon the following statement in the PSR:
"Information from [the AUSA] indicates that the defendant and co-
defendant . . . managed and supervised other persons who worked for
them as they carried out their illegal activities." We vacated
Patterson's sentence finding that "the unsworn assertions of the
Government's attorney do not provide, by themselves, a sufficiently
reliable basis on which to sentence the defendant."17 Bald,
conclusionary statements do not acquire the patina of reliability
by mere inclusion in the PSR. As in Patterson, we must vacate and
remand for a factual determination whether Elwood in fact had the
requisite leadership role in the offense to warrant the
adjustment.18
16
962 F.2d 409 (5th Cir. 1992).
17
962 F.2d at 415 (citing United States v. Johnson, 823 F.2d
840, 842 (5th Cir. 1987)).
18
We note that in United States v. Williams, 117 L.Ed.2d 341
(1992), the Supreme Court instructed that "in determining whether
a remand is required under [18 U.S.C.] § 3742(f)(1), a court of
appeals must decide whether the district court would have imposed
the same sentence had it not relied upon the invalid factor or
factors." Id. at 355. The government points to the following
trial evidence to support the adjustment: Room 102 was Elwood's
room; he was the oldest defendant; he displayed intelligence,
8
For the foregoing reasons, we AFFIRM the convictions of Gerald
Elwood but VACATE his sentences and REMAND for resentencing.
articulateness, and savvy on the witness stand; Dennison told
police when he was stopped that he had been visiting his Uncle
Gerald; and Elwood admitted that the cash found in the hotel room
was his. Elwood correctly points out that in passing sentence the
judge accepted the PSR and did not suggest that he relied on a
recollection of the trial evidence. After reviewing the entire,
albeit cold, trial record we simply cannot determine whether the
assessment for a leadership role would have been imposed by the
district court if it had not erroneously relied upon the statement
in the PSR. The trial evidence relied upon by the government does
not compel the conclusion that the leadership role adjustment was
warranted.
9