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
6
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