IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2009
No. 07-30001 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUSTIN PAUL STERLING
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
We are required to affirm a conviction for offenses that led inexorably to
a 99-year sentence of imprisonment for a young, addicted drug dealer. This
sentence exceeds, in this court’s experience, what has been meted out to some
drug trafficking kingpins. Why the Government chose to pile on its indictment
against Sterling, especially after he pled guilty to the Mullins incident, is not
ascertainable from the Pre-Sentence Report (“PSR”). This court is obliged to
apply the law, but we expect that the prosecutor’s nearly unfettered discretion
will not be abused. Here, we are not so confident of that precondition to justice.
Based on his recanted confession, a jury convicted Justin Paul Sterling
(“Sterling”) of three counts of distribution of cocaine base, three counts of
No. 07-30001
possession of a firearm in furtherance of a drug trafficking crime, and one count
of possession of a firearm with an obliterated serial number. Sterling appeals
the drug trafficking and firearm convictions, arguing that his conviction rested
solely on his uncorroborated confession. He further argues that because under
the Government’s theory he did not receive the firearms at the time he
purchased them with drugs, he did not possess the firearms in furtherance of a
drug trafficking crime. Because other evidence corroborated Sterling’s
confession and showed that he possessed firearms in furtherance of a drug
trafficking crime, we AFFIRM.
I. BACKGROUND
On three separate occasions within a two-month period, the police
recovered handguns possessed by Sterling. On January 23, 2005, Keith Mullins
approached Sterling and asked if he had any crack to sell. As Sterling broke off
the requested quantity, Mullins punched him in the face and grabbed the drugs.
During a struggle, Sterling drew an RG Model 14 .22 caliber revolver and shot
Mullins in the hand and abdomen. Undeterred by his wounds and assisted by
his wife, Mullins seized Sterling’s gun, drugs, and money and escaped. Mullins
reported the incident to the police and turned over the RG revolver.
The next day, after being advised of his Miranda rights, Sterling gave a
written statement to the police in which he described the robbery and shooting.
Sterling further explained that he purchased the revolver for $20 from a drug
addict named “Wild Bill,” who drove an old white camper van with a brown
stripe down the side. Sterling was not arrested.
On March 1, a Calcasieu Parish Sheriff’s Officer stopped Sterling as he
walked along the road because he fit the description of a suspect reported to be
engaged in narcotics trafficking. Sterling consented to a search, and the deputy
discovered a Lorcin .380 caliber pistol in his pocket but found no drugs. Sterling
was arrested, given a misdemeanor summons, and released.
2
No. 07-30001
Detectives eventually traced the RG revolver Sterling used to shoot
Mullins and learned that it had been stolen from its registered owner in a
burglary. A warrant was issued to arrest Sterling for possession of the stolen
revolver. The police served the warrant and arrested Sterling on the morning
of March 10 at the trailer of Renata Guillory. As police moved Sterling from the
couch where he was sleeping, they discovered he was lying atop a Bryco
.380 caliber pistol. The serial number on the gun had been scratched off.
In a videotaped interview, Sterling explained to the police that he
purchased all three pistols from “Wild Bill” in exchange for crack cocaine. As in
his previous statement, he explained that Wild Bill lived in Sulphur and drove
a white camper with a brown stripe. When Wild Bill would drive around the
neighborhood, Sterling would ask him about buying a pistol and immediately
furnish the crack. Sterling could later retrieve the gun from under a trash can.
Sterling provided a detailed description of Wild Bill and his vehicle.
Following this confession, the Government charged Sterling with one
count of possession of cocaine base with attempt to distribute arising out of the
attempted sale to Mullins, 21 U.S.C. § 841 (b)(1)(A); one count of possession of
a firearm in furtherance of a drug trafficking crime for using the .22 revolver to
defend his drugs from Mullins, 18 U.S.C. § 924 (c)(1)(A)(iii); three counts of
distribution of cocaine base for giving crack to Wild Bill, 21 U.S.C. § 841 (b)(1)(c);
three counts of possession of a firearm in furtherance of a drug trafficking crime
for purchasing the pistols with crack, 18 U.S.C. § 924 (c)(1)(c)(i); and one count
of possession of a firearm with an obliterated serial number because of the
Lorcin .380, 18 U.S.C. § 922(k) .
Sterling pled guilty to the counts involving the incident with Mullins, but
he repudiated his earlier statement to the police and proceeded to trial on the
other counts. During the trial, the Government played Sterling’s videotaped
confession and introduced his written statement. The Government additionally
3
No. 07-30001
presented Federal Rule of Evidence 404(b) evidence that on January 11, 2005,
Sterling possessed 0.59 grams of crack cocaine, an atypically large amount for
a crack addict but a normal amount for a street dealer.
Sterling took the stand and testified that he made up the entire story
about Wild Bill. He did not purchase guns with crack—his friends gave or
loaned them to him. Sterling said he was under the influence of ecstasy at the
time of the interview and said he lied to protect the people who gave him the
guns and, in the case of the Bryco .380, the gun’s actual owner.
In rebuttal, a Sulphur police officer testified that a person in Sulphur goes
by the name “Wild Bill Elliot” and that someone named “Greg Elliot” owned a
gun store near Sulphur. He drew no connection between Sterling and either
Wild Bill or Greg Elliot, and neither Elliot appeared as a witness.
The jury convicted Sterling on all counts. On March 1, 2006, Sterling filed
a motion for a judgment of acquittal or, alternatively, a new trial because he
could not be convicted solely on the basis of his uncorroborated confession. After
denying Sterling’s motion, the district court sentenced him to a total of 99 years
in prison, including the sentence for counts to which he pled guilty. Sterling
appeals.
II. CORROBORATION REQUIREMENT
Sterling argues that his conviction for the drug trafficking and firearm
offenses rests solely on his videotaped confession. Under a longstanding rule of
criminal law, an accused may not be convicted on the basis of his uncorroborated
extrajudicial confession. Although commentators doubt the need for this rule,
particularly following the development of Fifth Amendment protections,1 the
1
See, e.g., 1 McCormick On Evid. § 145 (Kenneth S. Broun, ed., 6th ed. 2006) (“Given
the development of other confession law doctrines, especially Fifth Amendment protections as
promulgated in Miranda and the voluntariness requirement, concerns regarding law
enforcement interrogation practices do not provide significant support for the corroboration
requirement.”).
4
No. 07-30001
Supreme Court has held that the requirement applies even to crimes where no
tangible injury results. Smith v. United States, 348 U.S. 147, 154, 75 S. Ct. 194,
198 (1954). We treat this argument as a challenge to the sufficiency of the
evidence,2 which we review de novo without deference to the district court.
The federal courts do not apply the traditional common-law corpus delicti
doctrine, which required independent evidence to establish the occurrence and
criminal cause of the injury. “[C]orroborative evidence need not be sufficient,
independent of the statements, to establish the corpus delicti.” Opper v. United
States, 348 U.S. 84, 93, 75 S. Ct. 158, 164 (1954). The Government may instead
introduce “substantial independent evidence which would tend to establish the
trustworthiness of the statement.” Id. In analyzing the corroboration require-
ment, this court examines the confession as a whole: “If there is extrinsic
evidence tending to corroborate the confession, the confession as a whole is
admissible.” United States v. Deville, 278 F.3d 500, 507 (5th Cir. 2002) (quoting
United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.1973)). Additionally, where
there is no tangible proof of injury to person or property, the corroborative
evidence must tend to connect the accused with the crime. Wong Sun v. United
States, 371 U.S. 471, 491 n.15, 83 S. Ct. 407, 419 n.15 (1963); United States v.
Abigando, 439 F.2d 827, 832 (5th Cir. 1971).
This court does not determine the truth of Sterling’s confession. The
factfinder must still weigh the confession against the later denial, determine
which it finds credible, and ask, as always, whether the Government proved
2
The D.C. Circuit, perhaps more accurately, characterizes the corroboration
requirement as “something of a hybrid rule having elements both of admissibility and
sufficiency.” United States v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999). The requirement
makes an odd sufficiency rule because it accords no deference to the factfinder and simply
evaluates whether a particular piece of evidence may be considered. But as a rule of
admissibility, the corroboration requirement also answers the evidentiary sufficiency
question—where the independent evidence fails to meet the lesser standard to allow the
confession to be used against the accused, it also fails the greater standard for conviction.
5
No. 07-30001
guilt beyond a reasonable doubt. The court merely determines whether
sufficient evidence supports the confession to allow the factfinder to consider it.
Although the police could have gone much further in uncovering
independent evidence supporting Sterling’s confession (most obviously and most
effectively, by locating Wild Bill), the confession includes many facts known to
be true. First, Sterling actually possessed the weapons that he claimed to have
purchased from Wild Bill. The corpus delicti requirement was intended to bar
confessions to fictitious crimes—if Sterling had told the police that he had
purchased a gun with crack but no gun was found, lack of corroboration would
almost certainly prevent his conviction. See Bremerton v. Corbett, 723 P.2d
1135, 1139 (Wash. 1986) (discussing the basis for the corpus delicti
requirement). Possession of the firearms establishes that Sterling’s account of
acquiring the weapons is not wholly a fabrication. These firearms also satisfy
the requirement of connecting Sterling to the crime.
Second, Sterling’s possession of crack cocaine on other occasions
corroborates his account of purchasing the handguns with crack cocaine. The
Government presented evidence that police found dealer-quantities of crack on
Sterling on January 11, and Sterling confessed in court to attempting to sell
crack to Mullins. These support Sterling’s admission that he had access to crack
cocaine and makes it far more believable that he traded it for guns.
Moreover, Sterling’s confession discusses the incident between himself and
Mullins on January 23. Sterling confirmed the truth of this part of his
statement when he pled guilty to the charges arising out of this incident.
Sterling also reported consistently about Will Bill in each of his statements to
the police. Given the close connection between the counts, Sterling cannot divide
his statement into separate counts and demand corroboration for each particular
piece. See Deville, 278 F.3d at 507 (“The details of the drug trafficking crime . . .,
most of which were independently corroborated with extrinsic evidence at trial,
6
No. 07-30001
corroborate the firearm offense.”). Instead, this court looks to the statement as
a whole—pleading guilty to crimes confessed to in some portion of the statement,
and speaking consistently about other crimes on two occasions, tends to
establish the trustworthiness of the statement as a whole.
Finally, although Sterling’s confession does not “demonstrate [ ] knowledge
of the time, place, or method of the offense,” Abigando, 439 F.2d at 832, because
the Government did not independently establish a time, place, or method for the
offenses, the detailed nature of the confession provides an additional degree of
corroboration. United States v. Gresham, 585 F.2d 103, 106 (5th Cir. 1978).
Sterling described when and how he would meet with Wild Bill, how much he
paid for the guns, the specific location where he would retrieve the pistols, and
the appearance of Wild Bill and his vehicle. This contrasts with United States
v. Reynolds, 367 F.3d 294 (5th Cir. 2004), where the defendant simply told the
police that he “always” carried a gun, and did not confess that he used or carried
the gun during bank robberies.
Sterling may well have lied to the police in his confession. A jury would
not have acted irrationally by believing his recantation and finding him not
guilty. But the criminal justice system does not generally protect defendants
from themselves. Sterling told the police that he committed particular crimes,
but he later recanted this confession. A jury heard both confession and
recantation and concluded beyond a reasonable doubt that Sterling committed
the crimes to which he confessed. Sufficient independent evidence corroborating
the confession existed to allow the jury to fulfill this function.
III. FURTHERANCE OF A DRUG CRIME
Sterling argues that, even if his confession is sufficiently corroborated, his
trading crack for firearms did not violate § 924(c) because the exchange was not
contemporaneous. Sterling did not raise this argument before the district
court—he objected only to evidentiary sufficiency based on the failure to
7
No. 07-30001
corroborate his confession. This assertion of specific other grounds waives the
objection, United States v. Herrera, 313 F.3d 882, 884–85 (5th Cir. 2002)
(en banc) (per curiam), and the conviction will be reviewed for manifest
miscarriage of justice and sustained unless the record is devoid of evidence
pointing to guilt. United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004).
Although the Supreme Court has not directly addressed the issue,3 two
circuits have issued published opinions holding that bartering drugs for guns
constitutes “possession in furtherance” under § 924(c)(1)(A). See United States
v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007); United States v. Frederick,
406 F.3d 754, 764 (6th Cir. 2005). Sterling does not challenge the general
principle that bartering drugs for guns can constitute “possession in furtherance”
but instead argues that because he did not receive the guns until after he
provided the crack, the guns could not have furthered the drug trafficking
offense. We thus assume, without deciding, that bartering drugs for guns
constitutes “possession in furtherance” of a drug trafficking offense and examine
whether the transfer of weapons need be contemporaneous.
The Tenth Circuit in Luke-Sanchez explained the rationale for holding
that the purchase of weapons with drugs constitutes possession in furtherance:
[T]he pistols were akin to any other form of currency used to pay for
illegal drugs, all of which further and promote drug trafficking by
sustaining the drug market. Accordingly, the nexus between the
drugs and the guns used to pay for them is sufficient, as a matter of
law, to meet the “in furtherance” prong of § 924(c).
483 F.3d at 706. Thus, the handguns furnished by Wild Bill functioned as the
currency used to purchase illegal drugs from Sterling. Assuming that trading
drugs for weapons constitutes possession in furtherance, drug traffickers cannot
escape liability simply by structuring their transactions to arrange for later
3
The Supreme Court expressly left this question open in Watson v. United States, 128 S.
Ct. 579, 585–86 (2007).
8
No. 07-30001
delivery of the firearms. Based on his confession, the record is not devoid of
evidence that Sterling possessed firearms in furtherance of a drug trafficking
offense under § 924(c).
IV. SENTENCING
Sterling additionally argues that the 25-year minimum consecutive
sentence applicable to a “second or subsequent conviction” is a recidivism
provision that requires an intervening conviction between the commission of the
earlier and later offenses. He acknowledges that this argument is foreclosed by
Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993 (1993), and seeks only to
preserve it for further appeal.
V. CONCLUSION
Independent corroboration of Sterling’s confession, although minimal,
tended to establish its truthfulness and is sufficient to allow the jury’s verdict
to stand. If trading drugs for guns constitutes possession of a firearm in
furtherance of a drug trafficking crime, then it is irrelevant whether the guns
were delivered contemporaneously with or following the drug transfer. The
record is not devoid of evidence that Sterling possessed firearms in furtherance
of drug trafficking crimes.
The judgment is AFFIRMED.
9