United States v. McKinney

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10045

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

OTHNIEL McKINNEY, SR., LONNIE CHARLES SMITH,
DONALD EARL WADE, BRENT LEDEAN ALLEN,
CAROLYN SUE WALKER, and ANTONIO TURNER,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Texas
(May 17, 1995)
Before WISDOM, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellants Othniel McKinney, Sr. (McKinney), Lonnie Charles

Smith (Smith), Donald Earl Wade (Wade), Brent Ledean Allen (Allen),

Carolyn Sue Walker (Walker), and Antonio Turner (Turner) appeal

their criminal convictions and sentences. On July 28, 1993, a

superseding indictment was returned against twelve named defendants

charging that they, along with nine others who had been previously

indicted, conspired to violate various drug laws. All of the

conspirators entered guilty pleas, except the six Appellants who

were tried together in a two and a half week trial. Although the
jury acquitted some of the Appellants on some counts, all six

received convictions and sentences ranging from 235 months to

life.1

I. FACTS

This case involved two overlapping drug operations that sold

cocaine and cocaine base (crack) in Wichita Falls, Texas between

1989 and May 1993. One was run by Appellant McKinney, the other by

J. B. Butler (Butler), who pleaded guilty and did not appeal.

McKinney owned several businesses in Wichita Falls including

a gameroom/food service called Kinney's Playhouse (the Playhouse)

and a used car lot. Cherry Johnson (Johnson), who also pleaded

guilty and did not appeal, managed the Playhouse premises, while

McKinney came by only occasionally. In the summer of 1989, J. B.

Butler moved to Wichita Falls. McKinney was characterized at trial

as a major crack dealer in the area when Butler arrived in town.

Butler began getting cocaine from Dallas/Fort Worth and reselling

it in Wichita Falls. At first, Butler pooled his money with Smith

to purchase crack to resell. Appellants Smith and Wade went to

Dallas with Butler many times to pick up drugs, and Allen made one

Dallas trip with Butler. Butler later began getting cocaine from

Florida. Allen, Smith and Wade each got their own supplies of

crack on the Dallas trips, as well as selling "fronted" cocaine for

Butler.

These three Appellants sold small amounts of drugs directly

1
Appendix A details the charges, dispositions, and punishment
imposed on each Appellant.

2
to users. Johnson sold larger quantities of drugs for both Butler

and McKinney out of the Playhouse. McKinney did not know at first

that Johnson was selling for Butler and when he found out sometime

after November 1991, he complained to Butler that he had not known

about it earlier.

Butler also sold crack to McKinney, and referred customers to

McKinney when he was out of crack. Once, Butler delivered

McKinney's crack to Johnson at the Playhouse, and Johnson paid for

it. Three other times he delivered McKinney's drugs to McKinney at

Appellant Walker's house. Walker, who was McKinney's girlfriend,

was present at two of these transactions and paid Butler for the

drugs.

Odessa Harper (Harper), who pleaded guilty and testified

against the Appellants, also sold crack for McKinney. Harper

testified that she picked up about $700.00 worth of crack from

Walker five times a month. Harper also observed wet, unpackaged

crack at Walker's home in a Pyrex bowl.

The trial testimony established that others who were involved

in selling cocaine in Wichita Falls got most of their crack through

Butler or McKinney.

Appellant Turner traveled from his home in Kansas to Wichita

Falls to buy cocaine from Butler four times in April and May of

1993, who testified that he met Turner in April 1993. Ronald

McDonald (McDonald), a co-conspirator involved with Butler, was

present at one buy. Amelia Dickerson accompanied Turner to two of

the other buys, actually paying Butler for Turner's drug purchases.

3
Dickerson had gotten drugs from Butler previously and sold them in

Kansas and introduced Butler to Turner.

II. THE VENIRE PANEL

a. Proceedings below and standard of review

Each of the Appellants challenge the method used by the

district court for selecting the venire panel, alleging that it

violated the Jury Selection and Service Act, 28 U.S.C. §§ 1861-

1878, and their constitutional rights protected by the Sixth and

Fourteenth Amendments to the United States Constitution.

All of the defendants are African-American. The 73 person

venire panel included no African-Americans. On October 12, 1993,

after Appellants viewed the assembled jury panel, but before they

began voir dire of the venire, Walker moved to stay the trial until

another venire could be drawn for selection of the jury, and her

motion was adopted by her co-defendants. The potential that no

African-Americans would be on the venire panel was discussed at the

pretrial hearing on September 29, 1993, where the district court

advised Appellants to prepare a written motion for filing if it

became appropriate. Notwithstanding Appellants' failure to present

a sworn motion or an affidavit in support of the motion in

compliance with 28 U.S.C. § 1867(d), the district court granted

Appellants a hearing "in the interest of justice." The jury clerk

was made available to Appellants during a break and testified at

the hearing later the same day.

Up until August 1993, the district court drew its venire

panels from the voter registration lists in the counties within the

4
Amarillo Division. Effective August 27, 1993, the plan was changed

to allow for inclusion in jury wheels the names of those persons

who, since 1990, have obtained or renewed a Texas drivers license

or a Texas Department of Public Safety personal identification

card, in addition to voter lists. This case was the first case

tried in the Amarillo Division under the new jury plan.

The plan requires that a computer randomly select a certain

number of names, weighted by county population, to whom

questionnaires will be sent. When questionnaires are filled out

and returned, court clerks decide which people are statutorily

unqualified or are entitled to some legal exemption from jury

service. The questionnaires ask the respondents to identify their

race. If that answer is filled out by the respondent, which is not

always the case, the court clerk will know the race of the

respondent. However, race is not a factor used in the weeding out

process. The resulting group of qualified people is the source

from which venire members are summoned. The district court tells

the clerk how many people to summon, which is done by random

selection, choosing for example, every seventeenth name until the

required number is reached.

For the venire at issue, about six thousand questionnaires

were sent out. After exclusions of those who were not qualified,

those who were exempt, and those who did not return the

questionnaire2, there were about 2,700 names in the qualified jury

2
There was no breakdown among these three categories in the
record. The percentage of people failing to respond to the
questionnaire was not established.

5
wheel. Out of that list, 150 people were selected at random and

summoned for this venire panel.

Appellants made the following factual allegations in support

of their challenge to the venire panel: First, African-Americans

comprise about 2.28% of the population in the Amarillo Division of

the Northern District of Texas. Second, there is a higher

concentration of African-Americans in Potter and Randall Counties

than in the other counties in the Northern District of Texas. Even

though 60% of the population base for the division resides in

Potter and Randall Counties, less than 50% of this venire came from

those counties, decreasing the chances of proportional

representation for African-Americans. Third, the crimes charged

occurred in a different division of the district with a higher

percentage of African-American population. By denying Appellants'

motion to change venue, the district court diminished the chances

of African-Americans serving on the jury. Fourth, the clerk's

office had the opportunity to discriminate because the juror

information questionnaire gave the jurors' race, and there was no

protection against a clerk failing to include respondents in the

qualified pool on the basis of race, although the clerk denied

under oath that that happened.

The district court concluded that the evidence adduced at the

hearing showed that there was no systematic exclusion of minority

members from the venire, and denied Appellants' motion to stay. We

review this factual determination for clear error.

b. The Jury Selection and Service Act

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 The Jury Selection and Service Act, 28 U.S.C. §§ 1861-1878

(the Act) was enacted to provide a statutory remedy to realize the

policy that all litigants in Federal Courts entitled to trial by

jury have the right to grand and petit juries selected at random

from a fair cross section of the community in the district or

division wherein the court convenes. 28 U.S.C. § 1861. No citizen

can be excluded from federal jury service on the basis of race,

color, religion, sex, national origin, or economic status. 28

U.S.C. § 1862. Each United States district court is required to

devise and put into operation a plan for achieving these

objectives, while complying with the strict parameters set out in

the Act. 28 U.S.C. § 1863 A defendant must allege and prove a

substantial failure to comply with the provisions of the Act to

gain relief. 28 U.S.C. § 1867(a).

The Appellants tacitly acknowledge that the Northern District

of Texas has such a plan in place. However, they have identified

three areas in which they claim that the Act affords them relief.

First, they allege that the plan provided no protection against the

possibility that a clerk's office employee could weed out

prospective jurors on the basis of race. Second, a low response

rate to the original questionnaires resulted in a self-selected

non-random venire. They argue that the Act should be read to

compel the clerk's office to pursue the non-responders to preserve

the randomness of the original group of 6000. Third, where

African-Americans make up 2.28% of the potential jurors, and no

African-Americans are on a 73 person venire panel, a prima facie

7
violation of the Act has been established and if the Government

fails to rebut that presumption, they are entitled to relief under

the Act.

We need not reach the merits of the legal theories under-

pinning the first two arguments, because the record does not

support the factual allegations made by the Appellants. The only

evidence offered on the elicit-weeding-out theory was sworn

testimony that no such weeding out occurred. Second, there was no

evidence at all of a low response rate. Finally, if we accept that

African-Americans made up 2.28% of the community, a 73 person panel

which included 1.66 African-American individuals would have been

perfectly representative. In a truly random system, African-

Americans will be over-represented in some 73 person panels (which

include two or more) and under-represented in others (which include

one or none). Under the circumstances of this case, the evidence

that no African-Americans were on the panel does not establish a

prima facie case of substantial failure to comply with the

provisions of the Act.

b. Sixth Amendment

Appellants claim that their right under the Sixth Amendment to

a jury drawn from a fair cross-section of the community was

violated. In order to establish a prima facie violation of the

fair cross-section requirement, Appellants must show (1) that the

group alleged to be excluded is a "distinctive" group in the

community; (2) the representation of this group in the venire panel

is not reasonable in relation to the number of such persons in the

8
community; (3) that this under-representation is due to systematic

exclusion in the jury selection process. Duren v. Missouri, 439

U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

The district court noted, and Appellee does not contest, that

African-Americans are a distinctive group within the Amarillo

Division of the Northern District of Texas. However, the record

supports the district court's finding that there was no systematic

exclusion of African Americans in the jury selection process. We

therefore conclude that Appellants failed to make out a prima facie

claim under the Sixth Amendment.

c. Equal Protection

Appellants claim that they made out a prima facie case of

equal protection violation by establishing that there was an under-

representation of African-Americans on the venire and that the

opportunity for discrimination existed in the operation of the jury

selection system, citing Alexander v. Louisiana, 405 U.S. 625, 92

S.Ct. 1221, 31 L.Ed.2d 536 (1972).

In Alexander, "Negroes" constituted 21% of the population

presumptively eligible for grand jury service, but the grand jury

selected included no "Negroes." Although there was no evidence

that the commissioners consciously selected by race, the racial

designation on the jury questionnaires and information cards

provided the opportunity for racial discrimination. This

opportunity, in combination with the substantial disparity between

the proportion of African-Americans chosen and the proportion in

the eligible population, established a prima facie case of

9
discrimination.

We hold that Appellants have not made out a prima facie case

of equal protection violation. The disparity between 2.28%

eligible African-American population, and no African Americans on

the venire panel does not raise the inference that racial

discrimination rather than chance produced the result. See

Alexander, 405 U.S. at 630, 92 S.Ct. at 1225. The opportunity for

racial discrimination, without more, is not enough to shift the

burden of proof to the Government on an equal protection claim.

We therefore affirm the district court's denial of Appellants'

motion to stay.

III. SUFFICIENCY OF THE EVIDENCE

a. Standard of review

Appellants Turner, Smith, Allen and McKinney challenge their

conspiracy convictions claiming that the evidence was insufficient

to support the convictions. These convictions must be affirmed if

a rational trier of fact could have found the essential elements of

the charged offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560

(1979). In a conspiracy prosecution pursuant to 21 U.S.C. § 846,

the government must prove beyond a reasonable doubt (1) the

existence of an agreement between two or more persons to violate a

federal drug statute, and that (2) each conspirator knew of the

conspiracy, (3) intended to join it, and (4) did participate in the

conspiracy. United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.

1993), cert. denied, ___U.S.___ 114 S.Ct. 1096 (1994).

10
 The government must prove more than knowledge of a conspiracy

or association with conspirators. United States v. Grassi, 616

F.2d 1295, 1301 (5th Cir.), cert. denied, 449 U.S. 956 (1980).

Knowledge and association, however, may be combined with other

circumstantial evidence to prove an agreement to join a conspiracy.

Id. at 1301-1302.

b. Turner

Turner has not challenged his conviction for possession of

cocaine with intent to distribute. Rather, he contends that

although he bought drugs from Butler, he had no other connection to

the Butler/McKinney conspiracies. Proof of a buyer-seller

agreement, without more, is not sufficient to tie a buyer to a

conspiracy. United States v. Thomas, 12 F.3d 1350, 1365 (5th

Cir.), cert. denied, 114 S.Ct. 2119 (1994).

The evidence established that Turner lived in a different

state, did not buy cocaine from the conspirators on credit, or

introduce others into the conspiracy. Turner made four purchases,

ranging from 18 ounces to a half-kilogram of crack cocaine, over a

six week period. While McDonald was present at one of the buys, at

the behest on Butler, the record does not support the inference

that Turner knew McDonald. On the other hand, Dickerson was

present at two of the buys, went in with Turner on the purchases

and paid for them.

Viewed in the light most favorable to the verdict, the

evidence supports the conclusion that Dickerson served as the

Kansas connection for Butler's drug distribution organization and

11
that Dickerson recruited Turner by enlisting him into the

enterprise in order to expand the Kansas marketing scheme. As

Turner's involvment increased, he accompanied Dickerson to Wichita

Falls, met Butler, and began to purchase cocaine directly from

Butler for resale in Kansas.

This evidence persuades us that a jury could reasonably

conclude that Turner's role was more than a mere purchaser and that

he joined the conspiracy as part of its marketing organization.

c. Smith and Allen

Smith and Allen take the position that they did not know the

total reach of the conspiracy. A defendant need only have had a

minor role in the conspiracy, once it is shown that he voluntarily

agreed to participate. United States v. Gonzales, 866 F.2d 781,

788 (5th Cir.), cert. denied, 490 U.S. 1093 (1989). Although they

were smaller players, the record supports their conspiracy

convictions.

d. McKinney

The Government alleged two overlapping conspiracies, one

headed by McKinney and one by Butler. The question presented by

McKinney is whether there was a variance between the indictment and

the proof. A conviction will not be reversed for such a variance

unless,

(1) the defendant establishes that the evidence the
government offered at trial varied from what the
government alleged in the indictment, and (2) the
variance prejudiced the defendant's substantial rights.

United States v. Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.),

cert. denied, 115 S.Ct. 180 (1994). To determine if there was a

12
variance, the court considers (1) whether there was a common goal,

(2) the nature of the scheme, (3) whether the participants in the

various dealing overlap. Id., at 936. In analyzing the nature of

the scheme, we ask whether the activities of one aspect of the

scheme are necessary or advantageous to the success of another

aspect of the scheme or to the overall success of the venture,

whether there are several parts inherent in a larger common plan,

or whether the nature of the activity is such that knowledge on the

part of one member concerning the existence and function of other

members of the same scheme is necessarily implied due to the

overlapping nature of the various roles of the participants.

United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982).

McKinney contends that the evidence proved he headed a

separate conspiracy and that isolated drug buys from Butler were

not sufficient to prove his agreement to join Butler's conspiracy.

We reject this claim. The record affords sufficient evidence for

a rational fact finder to conclude that there was a common goal --

the distribution of crack, extensive overlap of participants, and

that McKinney's purchases from Butler and their mutual referrals

contributed to the success of the overall venture.

IV. INTRA-DISTRICT CHANGE OF VENUE

The district court denied motions by Smith and McKinney for

intra-district change of venue from the Amarillo Division to the

Wichita Falls Division, finding that the prompt administration of

justice outweighed the relative inconvenience of an Amarillo trial.

We review this decision for abuse of discretion. United States v.

13
Dickie, 775 F.2d 607, 609 (5th Cir. 1985), abrogated in part on

other grounds, 37 F.3d 160 (5th Cir. 1994).

The Sixth Amendment requires that a criminal trial be held in

the district in which the alleged crime occurred. United States v.

Duncan, 919 F.2d 981, 985 (5th Cir. 1990), cert. denied, 500 U.S.

926 (1991). There is no constitutional right to be tried in a

particular division within a district. United States v. Anderson,

328 U.S. 699, 704-705, 66 S.Ct. 1213, 1216-1217, 90 L.Ed. 1529

(1946); Duncan, 919 F.2d at 985. Rule 18 of the Federal Rules of

Criminal Procedure provides that "[e]xcept as otherwise permitted

by statute or by these rules, the prosecution shall be had in a

district in which the offense was committed. The Court shall fix

the place of trial within the district with due regard to the

convenience of the defendant and the witnesses and the prompt

administration of justice."

Appellants contended that because most of the defendants and

witnesses lived in Wichita Falls, and because most of the acts

alleged in the indictment occurred there, the case should be tried

there. They also alleged that the convenience of the defendants

and the witnesses, and the prompt administration of justice would

be best served by transferring the trial to the Wichita Falls

Division. In their briefs, they also allege that the Wichita Falls

Division has more African-American residents than does the Amarillo

Division, although that was not urged as a reason for the transfer

in the original motions.

The court considered the availability of suitable facilities

14
for trial, the lack of availability of jail space in Wichita Falls

to hold the four incarcerated defendants, and the incarcerated

trial witnesses, the fact that six of the remaining defendants were

represented by Amarillo attorneys, while one attorney was from

Wichita Falls, and one from Oklahoma City, Oklahoma, the relative

accessibility to the place of trial for all persons involved, and

the expense of transporting witnesses and the availability of

witnesses at potential places of trial, as well as the effect on

the court's docket of the requested transfer. The district court

considered the appropriate factors and the denial of the motion to

transfer was not an abuse of discretion.

An attempt to influence the racial balance of the jury by

setting a case in a particular division would not have been

appropriate or acceptable, and we note that there is no indication

that the district court considered the racial composition of the

various divisions in reaching her conclusion.

V. MOTION TO SEVER

The district court denied Smith's pretrial motion to sever.

Smith contends that this was error because he was denied

exculpatory testimony from co-defendant Allen, and thereby

prejudiced. We review the decision to deny the motion to sever for

abuse of discretion. United States v. Stotts, 792 F.2d 1318, 1321

(5th Cir. 1986).

Smith contends that his case should have been severed so that

Allen could testify that it was not Smith's voice on one of two

taped conversations attributed to him by Butler. The basis of his

15
written motion in the district court was his concern that he would

suffer prejudice as a result of spill-over from the guilt of his

more culpable co-defendants. The need for Allen's testimony was

brought up during the hearing on the motion, but there is no

testimony or affidavit from Allen in the record that he could or

would have provided the testimony Smith describes.

Rule 8(b) of the Federal Rules of Criminal Procedure provides

that two or more defendants may be charged in the same indictment

if they are alleged to have participated in the same series of acts

or transactions constituting an offense. As a rule, parties

jointly indicted should be tried together, especially in conspiracy

cases. See United States v. Rocha, 916 F.2d 219, 227-228 (5th Cir.

1990), cert. denied, 500 U.S. 934 (1991). Rule 14 provides the

exception to Rule 8(b): "If it appears that a defendant...is

prejudiced by a joinder of...defendants...for trial together, the

court may...grant a severance of defendants or provide whatever

relief justice requires." FED.R.CRIM.P. 14.

To obtain a severance based on his desire to call a co-

defendant as a witness on his behalf, the defendant must prove a

bona fide need for the testimony, the substance of the desired

testimony, the exculpatory effect of the desired testimony, and

that the co-defendant would indeed have testified at a separate

trial. United States v. Kane, 887 F.2d 568, 573 (5th Cir. 1989),

cert. denied 493 U.S. 1090 (1990). Smith did not sustain his

burden under Kane, particularly with respect to the availability

and willingness of Allen to testify at a separate trial and thus

16
the district court did not abuse it's discretion in denying the

motion to sever on this ground.

As for Smith's claims of prejudicial spillover because of the

disparity of evidence against the defendants, limiting instructions

can generally cure any prejudice caused by joint trials. See

United States v. Castro, 15 F.3d 417, 422 (5th Cir.), cert. denied,

115 S.Ct. 127 (1994). Smith makes no complaint that the district

court failed to give adequate limiting instructions. Furthermore,

the fact that the jury acquitted some defendants on some counts

supports the conclusion that the jury sorted through the evidence

and considered each count separately. United States v. Lindell,

881 F.2d 1313, 1319 (5th Cir. 1989), cert. denied, 496 U.S. 926

(1990). We therefore conclude that the district court did not

abuse its discretion in denying Smith's motion to sever.

VI. BILL OF PARTICULARS

McKinney moved for a bill of particulars to "identify his

place in the tangle of defendants so that he could avoid surprise

at trial and assist his lawyer in preparing his defense." The

magistrate judge denied the motion, reasoning that:

in view of the discovery ordered, the particularity of
the indictment, and the government's representations to
the Court that it will aid defendant in locating relevant
material within the discovery being made available to
defendant, and in view of the government's further
representations to the Court that on all indicted
substantive counts it will disclose the dates and times
of such substantive offenses and where they took place,
at least as closely as witnesses will testify, and will
also provide such information as to unindicted acts which
involve specific acts of possession and/or distributions
of controlled substances.

The denial of a motion for a bill of particulars is reviewable

17
on appeal from a judgment of conviction, but the judgment will be

reversed only if the ruling was a clear abuse of discretion.

United States v. Vasquez, 867 F.2d 872, 874 (5th Cir. 1989).

McKinney alleges that he did not receive certain evidence prior to

trial, particularly "the testimony of Mayberry about an alleged

transaction in 1993, and...the testimony of Odessa Harper[.]"

However, McKinney does not allege, let alone establish, surprise

and prejudice, without which his claim fails. See United States v.

Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989), cert. denied, 496

U.S. 926 (1990).

VII. SUSPENSION OF COUNSEL FROM PRACTICE OF LAW

Wade's trial lawyer informed the district court on October 18,

1993, the fifth day of trial, that he had learned that morning of

his suspension by the State Bar of Texas from the practice of law

in Texas on September 20, 1993 due to his failure to complete the

mandatory continuing legal education (MCLE) requirement. The

district court communicated with the Texas Supreme Court, which

agreed to hold the suspension in abeyance pending the conclusion of

the trial. Wade, joined by Smith and McKinney, moved for mistrial,

which the district court denied. We review the order denying a

motion for mistrial for abuse of discretion. United States v.

Willis, 6 F.3d 257, 263 (5th Cir. 1993).

The suspension of an attorney by the state in which he is

authorized to practice law does not automatically result in his

suspension from practice in the federal courts, even when the state

bar membership was the predicate upon which the attorney was

18
admitted to the federal court. United States v. Carpenter, 776

F.2d 1291, 1297 (5th Cir. 1985), citing Theard v. United States,

354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957). The local

rules for the courts of the Northern District of Texas provide that

in a case where a lawyer loses the right to practice in his home

state because of failure to meet CLE requirements, any suspension

in federal court is not automatic. LOCAL RULE 13.2, U. S. DIST. COURT,

NORTHERN DIST. OF TEXAS. Wade's attorney was never suspended from

practicing before the district court in this trial. It was

therefore not an abuse of discretion to deny the motion for

mistrial.

Wade goes on to raise an ineffective assistance of counsel

claim. A claim of ineffective assistance of counsel generally

cannot be addressed on direct appeal unless the claim has been

presented to the district court; otherwise there is no opportunity

for the development of an adequate record on the merits of the

allegation. United States v. Navejar, 963 F.2d 732, 735 (5th Cir.

1992). The issues Wade raises here were not raised before the

district court in the context of an ineffective assistance of

counsel claim and are not sufficiently developed for review by this

Court.

Wade argues that where defendant's attorney was not duly

licensed to practice law because of a failure to meet the

substantive requirements for the practice of law, there is a per se

violation of the Sixth Amendment right to effective assistance of

counsel, relying on Bellamy v. Cogdell, 974 F.2d 302 (2nd Cir.

19
1992), cert. denied, 113 S.Ct. 1383 (1993). In certain Sixth

Amendment contexts involving the "[a]ctual or constructive denial

of the assistance of counsel," prejudice is presumed. Strickland

v. Washington, 466 U.S. 668, at 692, 104 S.Ct. 2052, at 2067, 80

L.Ed.2d 674 (1984). The Second Circuit has fashioned a "per se

rule" by which it will find a per se violation of the Sixth

Amendment where, unknown to the defendant, his counsel was, at the

time of trial not licensed to practice law because of a "failure

ever to meet the substantive requirements for the practice of law,"

or (2) was implicated in the defendant's crimes. Bellamy, 974 F.2d

at 306. Bellamy's lawyer was disbarred by the state licensing

committee after the trial in question was over and his suspension

was prospective, so the Second Circuit determined that there was no

per se violation. It is also important to note that he represented

Bellamy in a state criminal proceeding, not a federal proceeding.

Id., 974 F.2d at 307. We need not decide whether, in the

circumstances described by the Bellamy court, we would find per se

ineffective assistance of counsel. Ward's attorney was adequately

credentialed at all times relevant to this case to practice law in

the Federal District Court for the Northern District of Texas, and

we find no Sixth Amendment violation in the record before us.

DOUBLE JEOPARDY

Allen was convicted by the State of Texas on a plea of guilty

for violating an organized crime statute. He was subsequently

convicted in federal court based on the same conduct. There is no

double jeopardy prohibition against an individual being prosecuted

20
by dual sovereigns for the an act that violates the laws of both

sovereigns. United States v. Moore, 958 F.2d 646, 650 (5th Cir.

1992), cert. denied, 114 S.Ct. 647 (1993).

The Supreme Court has suggested that an exception to the dual

sovereign doctrine exists when prosecution by one sovereign is used

as a tool for successive prosecution by another sovereign. Bartkus

v. Illinois, 359 U.S. 121, 123-124, 79 S.Ct. 676, 677-678, 3

L.Ed.2d 684 (1959). When a defendant claims collusion between

federal and state law enforcement officials, the defendant has the

burden of producing evidence to show a prima facie double jeopardy

claim. Once a prima facie case is shown, the burden of persuasion

shifts to the government. United States v. Cooper, 949 F.2d 737,

750-751 (5th Cir. 1991), cert. denied, 112 S.Ct. 2945 (1992).

Allen alleged that investigating officers failed to report

some of Allen's alleged crimes to state prosecuting officers in

time to incorporate them into the state plea bargaining process,

but later reported them to federal officials, in an effort to

"resurrect" them, thus unconstitutionally manipulating the system.

After hearing the testimony of the federal prosecutor detailing the

decision making process which preceded the federal indictment and

denying these allegations, the district court determined that Allen

had not established a prima facie case of collusion between the

federal and state government implicating double jeopardy concerns.

The district court's finding is a factual determination which we

review for clear error. United States v. Weeks, 870 F.2d 267, 269

(5th Cir.), cert. denied 493 U.S. 827 (1989). We find that the

21
district court's determination was not clearly erroneous.

DELIBERATE IGNORANCE INSTRUCTION

Over McKinney's objection, the district court charged the jury

that "knowledge can be inferred if the defendant deliberately

blinded himself to the existence of a fact." McKinney contends

that the evidence showed that either he knew or he had no knowledge

at all of the drug activities at the Playhouse, but there was no

evidence of deliberate ignorance that would have supported the

deliberate ignorance instruction.

The government argues that testimony that McKinney did not

visit the Playhouse very often, although he was the owner and lived

and worked in the same city, raised the inference of deliberate

ignorance, so that the instruction was properly given. The

government argues, in the alternative, that evidence of his

knowledge of the drug activities at the Playhouse was overwhelming,

making any error in the instruction harmless. United States v.

Cartwright, 6 F.3d 294, 301 (5th Cir. 1993), cert. denied, 115

S.Ct. 671 (1994) (Error in giving the deliberate ignorance

instruction is harmless where there is substantial evidence of

actual knowledge.)

We review challenges to jury instructions by determining

"whether the court's charge, as a whole, is a correct statement of

the law and whether it clearly instructs jurors as to the

principles of law applicable to the factual issues confronting

them." United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990).

A district court has broad discretion in framing the instructions

22
to the jury and this Court will not reverse unless the instructions

taken as a whole do not correctly reflect the issues and law.

United States v. Arditti, 955 F.2d 331, 339 (5th Cir.), cert.

denied, 113 S.Ct. 597 (1992).

"The purpose of the deliberate ignorance instruction is to

inform the jury that it may consider evidence of the defendant's

charade of ignorance as circumstantial proof of guilty knowledge."

United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990).

It should only be given when a defendant claims a lack of guilty

knowledge and the proof at trial supports an inference of

deliberate indifference. United States v. Wisenbaker, 14 F.3d

1022, 1027 (5th Cir. 1994). McKinney claimed during opening

statements lack of guilty knowledge, and the proof at trial that he

failed to visit his own local business except occasionally properly

supported the district court's deliberate indifference charge.

SENTENCING ISSUES

"A sentence imposed under the Federal Sentencing Guidelines

will be upheld unless a defendant can demonstrate that it was

imposed in violation of the law, was imposed because of an

incorrect application of the guidelines, or was outside the range

of applicable guidelines, and is unreasonable." United States v.

Castaneda-Cantu, 20 F.3d 1325, 1335 (5th Cir. 1994). This Court

reviews the application of the sentencing guidelines de novo and

the district court's findings of fact for clear error. United

States v. Hill, 42 F.3d 914 (5th Cir. 1995). In making fact

findings pursuant to the sentencing guidelines, a district court

23
need only be convinced by a preponderance of the evidence. United

States v. Casto, 889 F.2d 562, 570 (5th Cir. 1989), cert. denied,

493 U.S. 1092 (1990).

a. Walker

Walker raises four points of error with regard to her

sentence. First, Walker contends that the district court erred

when it found that more than five kilograms of cocaine base were

attributable to her. Walker's contention is based on attacks on

the credibility of witnesses who testified about the amount of

cocaine she sold or participated in selling. The district court's

findings are not clearly erroneous. The evidence at trial

established that approximately 54.4 grams of crack cocaine were

seized from Walker's home in two separate searches. Johnson

testified that she picked up various amounts totaling at least

eight kilograms of crack from Walker's home, and Harper testified

that she picked up 12-50 ounces from Walker. Butler testified that

Walker was present for and counted out the payment for two

transactions involving at least 5 ounces of crack which Butler sold

to McKinney. Their combined testimony supports the district

court's attributing to Walker responsibility for in excess of five

kilograms of crack cocaine.

Second, Walker complains that the court failed to make

specific findings of fact regarding the amount of crack which she

should have known or foreseen would be involved in the conspiracy.

See United States v. Quiroz-Hernandez, 48 F.3d 858 (5th Cir. 1995).

Because she was sentenced based on personal involvement only, there

24
was no need for the district court to make a "should have known or

foreseen" finding.

Third, Walker argues that the district court refused to depart

downward based on the erroneous understanding that the guidelines

do not permit downward departure on the basis of her health

problems and family responsibility. She relies on the comments

made by the district court during the sentencing hearing:

Now your lawyer has said that the penalty is
excessive. I can say to you the Court probably would not
in the absence of guidelines have set this penalty. The
Court agrees that the penalties, particularly with regard
to cocaine base are greater than I would have set, and in
my opinion are greater than should be imposed, these are
simply the penalties that have been imposed by Congress
and by the United States Sentencing Commission under the
authority of Congress, and the Court has no discretion in
it except to give you the bottom of the guidelines, and
I have done that.

These comments indicate that the district court believed that the

penalty for cocaine base is too harsh, but does not support the

contention that the district court believed downward departure for

health and family reasons was warranted but precluded by the

guidelines. Further, the specifics of her claim (52 years of age,

heart problems, high blood pressure and responsibility for her

elderly mother) do not warrant downward departure. See United

States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991), cert.

denied, 112 S.Ct. 1773 (1992); U.S.S.G. §§ 5H1.1, 5H1.4, 5H1.6.

Fourth, Walker contends that the district court erred in

failing to make a downward adjustment for her role in the offense.

She points out that three other conspirators, McKinney, Butler and

Johnson played a larger role in the conspiracy than she did, and

25
claims that she should be considered a "minor participant" by

comparison. Minor participant means one who is less culpable than

most other participants. U.S.S.G. § 3B1.2(b), comment n. 3. The

district court found that she did not prove minor participant

status by a preponderance of the evidence. This factual

determination was not clearly erroneous, given the number of street

dealers involved in the conspiracy who handled smaller quantities

of drugs and were less involved than Walker.

b. Smith and Allen: Disproportionality

This case presents the now all too familiar situation where

some of the leaders pleaded guilty, testified against less culpable

participants in the conspiracies, and received shorter sentences

than some of those defendants. Smith and Allen complain that their

comparatively harsher sentences amount to retaliation for the

exercise of their constitutional right to stand trial and a

violation of the Eighth Amendment's prohibition against cruel and

unusual punishment. Their arguments are predicated on pre-

guideline cases that do not inform our decision in this instance.

See, e.g., United States v. Deaton, 477 F.2d 65 (5th Cir. 1973)

cert. denied, 414 U.S. 840 (1973), and Rodriquez v. United States,

394 F.2d 825 (5th Cir. 1968).

Smith and Allen both received sentences within the guideline

range, and they do not argue that the guidelines were incorrectly

applied. It is well settled that an appellant cannot challenge his

sentence based solely on the lesser sentence given to his co-

defendants. United States v. Pierce, 893 F.2d 669, 678 (5th Cir.

26
1990) cert. denied, 113 S.Ct. 621 (1992). This disproportionality

argument is without merit.

c. Turner and Smith: Guideline Treatment of Crack Cocaine

Turner and Smith contend that the sentencing guidelines

relating to crack violate their equal protection rights because

statistics indicate African-American are convicted more often of

drug crimes involving crack, while Caucasians statistically prefer

powder cocaine, which exposes them to less serious punishment.

United States v. Fischer, 22 F.3d 574, 579-580 (5th Cir.), cert.

denied, 115 S.Ct. 529 (1994), rejected an equal protection claim

with respect to the different treatment accorded cocaine powder and

cocaine base under the sentencing guidelines. Turner relies on a

vote by the House of Representatives in March 1994 to ask the

Sentencing Commission to propose a way to equalize the penalties

for cocaine powder and cocaine base as a basis for overruling the

previous decision by this Court rejecting his argument. Fischer

was decided in May 1994, after the House vote, thus foreclosing

Turner's argument.

d. Amount of Cocaine Attributed to Allen

The district court found that Allen knew or should have

reasonably anticipated that the conspiracy in which he was involved

would traffic in excess of 5 kilograms of crack cocaine. Allen

challenges this factual finding.

A defendant convicted of a drug trafficking offense is

sentenced based on both the drugs with which he was directly

involved and the drugs that can be attributed to him in a

27
conspiracy as part of his "relevant conduct." U.S.S.G. §

2D1.1(a)(3); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.

1994). Relevant conduct for conspiratorial activity is defined in

§ 1B1.3(a)(1)(B) as "all reasonably foreseeable acts and omissions

of others in furtherance of jointly undertaken criminal activity";

it must be both reasonably foreseeable to the defendant and within

the scope of the defendant's conspiratorial agreement to be counted

against him. Carreon, 11 F.3d at 1230.

The evidence at trial established that Allen, in addition to

selling drugs he obtained through other sources, sold crack fronted

by Butler -- either directly or through McDonald -- for

approximately four years. The Presentence Investigation Report

(PSI) and the trial testimony supported a finding that Allen

personally distributed well over five kilograms of crack. The

district court's finding attributing over five kilograms of crack

to Allen was not clearly erroneous.

e. McKinney's Role as Manager

McKinney contends that the district court erred when it added

four levels to his base offense level predicated on his leadership

role pursuant to U.S.S.G. § 3B1.1(a). He argues that the jury's

verdict acquitting him of the charge of continuing criminal

enterprise foreclosed the role adjustment.

At sentencing, McKinney objected to the role adjustment

because of an alleged insufficiency of the evidence. McKinney did

not object on the basis he now raises to this Court; therefore, we

review for plain error. United States v. Cabral-Castillo, 35 F.3d

28
182, 188-189 (5th Cir. 1994) FED. R. CRIM. P. 52(b). This Court has

held that because the Government need only establish facts for use

in sentencing by a mere preponderance of the evidence, a sentencing

court may rely on facts underlying an acquitted count if the

preponderance standard is satisfied. United States v. Carreon, 11

F.3d 1225, 1241 (5th Cir. 1994).

The record supports a finding that Walker, Johnson, Harper,

Harper's husband Cedric Freney, and Wade all worked for McKinney

distributing crack cocaine. With McKinney as the fifth

participant, the evidence was sufficient to support the district

court's finding or organizer or leader status. U.S.S.G. §3B1.1(a).

We find no plain error.

CONCLUSION

For the foregoing reasons, we AFFIRM Appellants' convictions

and sentences.

29
 APPENDIX A
Name Charge Count Disposition Punishment

Allen * distributing cocaine base - 5 dismissed 324 months, 5 years
* distributing cocaine base - 8 guilty supervised release,
* attempt to possess cocaine - 30 not guilty $200.00 special
base w/ intent to distribute assessment
* use of telephone to - 34 & 40 guilty
facilitate drug offense
* conspiracy3 - 1 guilty

____________________________________________________________________________________________

McKinney * continuing crim. enterprise - 2 not guilty life, 5 years
* possessing cocaine base - 13 not guilty supervised release,
* possessing cocaine base w/ $50.00 special
intent to distribute - 14 not guilty assessment
* possessing cocaine base w/
intent to distribute - 16 not guilty
* possessing cocaine base w/
intent to distribute - 18 not guilty
* conspiracy - 1 guilty
_____________________________________________________________________________________________

Smith *distributing cocaine base - 5 dismissed 235 months, 5 years
* distributing cocaine base - 7 dismissed supervised release
* conspiracy - 1 guilty $50. special assess
_____________________________________________________________________________________________

3
Count 1 of the indictment charged all appellants with conspiring with each other and
with other persons known and unknown to the grand jury, to distribute and to possess with the
intent to distribute more than five kilograms of cocaine and more than 50 grams of cocaine
base, a violation of 21 U.S.C. § 841(a)(1).

30
Name Charge Count Disposition Punishment
Turner * possessing cocaine base w/ - 20-22 not guilty 295 months, 5 years
intent to distribute - 27 guilty supervised release
* interstate travel to $300. special
facilitate drug offense - 32 guilty assessment
* using firearm in relation
to drug offense - 33 guilty
* use of telephone to
facilitate drug offense - 35 not guilty
38 & 41 guilty
* conspiracy - 1 guilty

__________________________________________________________________________________________

Wade * possessing cocaine base w/ 360 months, 10
years
intent to distribute - 15 not guilty supervised release,
* possessing cocaine base w/ $50.00 special
intent to distribute - 17 dismissed assessment
* conspiracy - 1 guilty

___________________________________________________________________________________________
Walker * possessing cocaine base w/ 292 months, 5 years
intent to distribute - 16 not guilty supervised release
* conspiracy - 1 guilty $50.00 special
assessment

31