P U B L I S H
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40538
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE LEE COOKS,
Defendant-Appellant.
CONSOLIDATED WITH
_______________________
No. 94-40685
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ARTIS CLEMMONS,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Louisiana
(April 27, 1995)
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
Complaining of an improper limitation of the cross-examination
of a government witness, Eddie Lee Cooks appeals the denial of a
new trial following his convictions of conspiracy to distribute
over 50 grams of cocaine base1 and three substantive counts.2 The
codefendant, Artis Clemmons, was convicted of the same conspiracy
and one substantive count but was granted a new trial for the cited
challenge and the government appeals. Finding neither error nor
abuse of discretion, we affirm.
Background
In January 1992, Clay Murray was arrested in Texas for state
drug offenses arising out of his possession of over 80 grams of
cocaine. Desirous of lenient treatment on these state charges and
on any possible federal charges, he agreed to cooperate with state
and federal law enforcement agencies in their investigations of
illegal drug activities in California and in his native Louisiana,
particularly in the Monroe area.
Upon being informed that Cooks, a longtime acquaintance, was
under investigation, Murray contacted him and began negotiations to
buy quantities of cocaine base. On January 15, 1992, Murray was
given money and a device to make an audio record of a purchase of
approximately two ounces of "crack" from Cooks. Murray immediately
delivered the audio tape and drugs to the authorities and continued
to assist in their investigation of Cooks.
A few days later Murray and Kendrick Van Buren, an undercover
officer, went to Cooks' business place where Murray, out of the
1
21 U.S.C. §§ 841(a)(1), 846.
2
21 U.S.C. § 841(a)(1).
2
presence of Van Buren but recorded on audiotape, purchased from
Cooks 1.5 ounces of crack. Two weeks later, in the presence of
Van Buren but not "on wire," Murray and Cooks agreed to the sale of
two additional ounces. On February 14, 1992, a "wired" Van Buren
and Murray met with Cooks and Clemmons. Murray and Clemmons
repaired to a bathroom and Murray returned with crack. The
Clemmons/Murray meeting was neither recorded nor personally viewed
by Van Buren.
Several months later Cooks and Clemmons were indicted, as
aforestated. The government sought in limine to limit
cross-examination of Murray regarding his prior arrests and drug
use. The court ultimately ruled that Murray could be
cross-examined about the circumstances and motivations surrounding
his cooperation with the authorities as related to the Texas
charges but the court declined to allow questioning on a subsequent
Louisiana arrest for purse-snatching or on the stiff penalties
Murray faced if convicted on either the Texas or Louisiana charges.
Following conviction by a jury on all counts Cooks and
Clemmons both sought a new trial, contending that the court's
limitation of their cross-examination of Murray about his prior
problems with the law and the potential effect that record might
have on his testimony impaired their right to a fair trial. The
district court agreed, noting that a full airing of Murray's reason
for cooperating with the authorities would have disclosed his
motivation for self-preservation which, in turn, may have furnished
a bias for his testimony. Having so ruled, the court then found
3
that the extensive evidence dehors Murray's testimony about Cooks'
involvement made the restriction of Murray's cross-examination
harmless as to Cooks. Cooks' motion for new trial was denied and
the mandatory life sentence was imposed. Clemmons, however, was
granted a new trial. Cooks and the government both timely appealed
and we consolidated the cases for disposition.
Analysis
Cooks maintains that there was insufficient evidence, aside
from Murray's testimony, to secure his conviction and, as a
consequence, he also should have received a new trial. The
government counters that the district court properly limited
cross-examination of Murray and that neither Cooks nor Clemmons
should receive a new trial.
The ruling on a new trial motion is reviewed for abuse of
discretion;3 new trials are granted only upon demonstration of
adverse effects on substantial rights of a defendant.4 In the case
at bar, the right involved was Cooks' and Clemmons'
well-established5 sixth amendment right to confront Murray to
elicit any relevant information bearing on his bias, prejudice, or
motive for testifying.6
Although a district court possesses "wide latitude . . . to
3
United States v. Dula, 989 F.2d 772 (5th Cir.), cert. denied,
_____ U.S. _____, 114 S.Ct. 172 (1993).
4
United States v. Logan, 861 F.2d 859 (5th Cir. 1988).
5
See Davis v. Alaska, 415 U.S. 308 (1974); United States v.
Tansley, 986 F.2d 880 (5th Cir. 1993).
6
Delaware v. Van Arsdall, 475 U.S. 673 (1986).
4
impose reasonable limits on cross examination,"7 this "discretion
is limited, however, by the requirements of the Sixth Amendment."8
Cross-examination to expose a witness' motive for testifying is
"always relevant as discrediting the witness and affecting the
weight of his testimony,"9 and "is especially important with
respect to . . . witnesses who may have substantial reason to
cooperate with the government."10 The importance of and need to
safeguard this right is enhanced when, as here, the witness is
crucial to the prosecution.11 The constitutional right is not
violated, however, if "the jury ha[s] sufficient information to
appraise the bias and motives of the witness."12
In the case at bar, although the jury was informed of Murray's
status as a paid career criminal informant, and of his hopes for
leniency on the Texas charges in exchange for his assistance in
this investigation, the court's ruling prevented the airing of
other important information pertinent to Murray's reliability,
namely his effort to avoid the consequences of his own crimes,
which, given their seriousness and his recidivism, might have been
7
Tansley, 986 F.2d at 886.
8
United States v. Garcia, 13 F.3d 1464, 1468 (11th Cir.),
cert. denied, _____ U.S. _____, 114 S.Ct. 2723 (1994).
9
Davis, 415 U.S. at 316.
10
United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976).
11
See Gordon v. United States, 344 U.S. 414 (1953).
12
Tansley, 986 F.2d at 886.
5
very severe in this case.13 Given the obvious pressure on Murray
that his cooperation be of value to the prosecution, there was
considerable incentive for him to "slant, unconsciously or
otherwise, his testimony in favor of or against a party."14 The
jury should have been informed of all of the pertinent facts
surrounding this motivation, and the district court correctly
recognized that its earlier ruling limiting this line of
questioning was error.
It is axiomatic, however, that such an error is actionable
only if clearly prejudicial.15 The presence of harmful error in
this context is determined based on a reviewing court's examination
of both the overall strength of the prosecution's case and the
circumstances surrounding the testimony, such as the extent of
allowed cross-examination, the importance of the testimony to the
government's case, and its corroboration or contradiction at
trial.16
Although Murray's direct testimony was important to the
government's case against Cooks, there was an abundance of other
evidence to support the verdict. The government introduced the
13
If convicted of the Texas drug charges, Murray faced a
possible 99-year sentence. Tex. Health & Safety Code Ann.
§ 481.112(c) and (d). If convicted on the Louisiana charge, as
this was Murray's third offense he faced a possible 40-year
sentence. La. R.S. 14:65.1; 15:529.1.
14
United States v. Abel, 469 U.S. 45, 52 (1984).
15
United States v. Restivo, 8 F.3d 274 (5th Cir. 1993), cert.
denied, _____ U.S. _____, 115 S.Ct. 54 (1994).
16
Van Arsdall.
6
testimony of several FBI agents and state police officers who saw
Murray enter Cooks' home and business and emerge with
newly-acquired drugs. Officer Van Buren testified that he heard
Cooks plan drug sales to Murray. The government introduced the
audio recordings of Murray and Cooks that clearly supported
Murray's testimony that he had purchased the drugs from Cooks, and
that Cooks' main source of revenue was the distribution of illegal
drugs. Thus, any error in limiting Cooks' cross-examination of
Murray was harmless, and the district court did not abuse its
discretion in denying his motion for new trial.
The record also demonstrates that the district court was
correct in noting that absent Murray's testimony, there was no
direct evidence linking Clemmons to any of the drug transactions
alleged in the indictment. The recordings made of Clemmons fail to
make even an inferential reference to the business of drug
distribution, and no state or federal officer actually saw Clemmons
engage in any drug transaction. Given the absence of any direct
evidence beyond Murray's testimony, and our "extreme[] reluctan[ce]
to second guess, on the basis of a paper record, the decision of a
trial judge that insufficient cumulative evidence exists to cure a
trial error,"17 we find no abuse of discretion in the district
court's efforts to correct, by a new trial, its error which it
found prejudicial.
Cooks, an African-American, next claims that unlike white
defendants, he was selectively prosecuted in federal court instead
17
United States v. Arroyo, 805 F.2d 589, 599 (5th Cir. 1986).
7
of in state court because of a desire to inflict the stiffer
federal penalty for distribution of cocaine base, and that the
district court erred in denying his motion for dismissal on this
basis. Cooks also contends that the court should have granted his
motions for discovery of government records relating to similar
prosecutions, for funds to secure a criminologist to assist in
proving the above claim, and for an evidentiary hearing.
Although the government has great discretion in the
prosecutorial decision, the exercise of this discretion cannot
violate the Constitution's equal protection guarantee.18 In order
to prevail on his selective prosecution claim, Cooks must show that
other similarly situated offenders were not prosecuted in federal
court19 and that he was prosecuted there because he was an
African-American.20
In support of his claim Cooks invites our attention to a
report noting that, nationally, minority arrests for drug offenses
have increased tenfold in recent years. He also notes the
existence of statistics reflecting that the overwhelming majority
of those arrested for possession of crack are African-American. We
agree with the district court that this data fails to satisfy the
first prong of the selective prosecution inquiry; it does not
18
Wayte v. United States, 470 U.S. 598 (1985); United States
v. Johnson, 577 F.2d 1304 (5th Cir. 1978).
19
United States v. Ramirez, 765 F.2d 438 (5th Cir. 1985), cert.
denied, 474 U.S. 1063 (1986).
20
United States v. Sparks, 2 F.3d 574 (5th Cir. 1993), cert.
denied, _____ U.S. _____, 114 S.Ct. 899 (1994).
8
establish that white defendants committing this offense were
prosecuted in state rather than federal court. Further, Cooks
offers no evidence to indicate any discriminatory animus present in
this prosecution; consequently, Cooks fails to carry the "heavy
burden"21 of establishing invidious selective prosecution. Cooks'
inability to make even a colorable claim of selective prosecution
accordingly bars his related requests for discovery,22 funds for a
criminologist,23 and an evidentiary hearing.24
Cooks next claims that as the majority of prosecutions for
possession of cocaine base involve African-Americans, the stiffer
penalties for offenses involving cocaine base violate the equal
protection provision. We need not tarry long here; we have ruled
to the contrary.25
Next, Cooks argues that his sentence is constitutionally
excessive and thereby violative of the eighth amendment bar to
cruel and unusual punishment. Given the absence of any eighth
21
Sparks, 2 F.3d at 580.
22
See United States v. Hintzman, 806 F.2d 840 (8th Cir. 1986)
(no abuse of discretion by denial of discovery in absence of prima
facie case of selective prosecution).
23
See United States v. Williams, 998 F.2d 258 (5th Cir. 1993),
cert. denied, _____ U.S. _____, 114 S.Ct. 940 (1994) (no abuse of
discretion in refusal to fund expert pursuant to 18 U.S.C. § 3006A
in absence of some factual basis in support of claim).
24
See United States v. Jennings, 724 F.2d 436 (5th Cir.), cert.
denied, 467 U.S. 1227 (1984) (no abuse of discretion in denying
evidentiary hearing on selective prosecution in absence of prima
facie case of selective prosecution).
25
See United States v. Watson, 953 F.2d 895 (5th Cir.), cert.
denied, _____ U.S. _____, 112 S.Ct. 1989 (1992); United States v.
Galloway, 951 F.2d 64 (5th Cir. 1992).
9
amendment proportionality requirement,26 Cooks' reliance thereon is
misplacaed. We do not question the wisdom of Congress in its
determination that the protection of society warrants the imposing
of a sentence of life imprisonment on career narcotics distribution
offenders.
Finally, Cooks posits that the stiff sentence he received as
a career narcotics offender stems from a vindictive exercise of the
government's discretionary authority to seek a sentence
enhancement. Following Cooks' withdrawal of a previous guilty plea
that would have waived any enhancement the government, under
21 U.S.C. §§ 841(b)(1)(A) and 851, gave notice of two prior
narcotics convictions which subjected Cooks to the mandatory term
of life imprisonment. As there is no presumption of prosecutorial
vindictiveness attendant in the exercise of admittedly
discretionary actions,27 Cooks' failure to offer any tangible
evidence in support of his vindictiveness claim dooms it to
failure.28
Cooks' remaining claims are without merit. The rulings of the
district court are AFFIRMED in all respects as relates to both
Cooks and Clemmons.
26
See Harmelin v. Michigan, 501 U.S. 957 (1991). See also
United States v. Willis, 956 F.2d 248 (11th Cir. 1992).
27
United States v. Goodwin, 457 U.S. 368 (1982); Bordenkircher
v. Hayes, 434 U.S. 357 (1978).
28
See United States v. Molina-Iguado, 894 F.2d 1452 (5th Cir.),
cert. denied, 498 U.S. 831 (1990).
10