UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 94-30196
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FERNELL WILWRIGHT, ERSKIN DUSKIN and MICHAEL TURNER,
Defendants-Appellants.
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Appeals from the United States District Court
for the Eastern District of Louisiana
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(June 15, 1995)
Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.
LAY, Circuit Judge:
Fernell Wilwright, Erskin Duskin, and Michael Turner appeal
their judgments of conviction for conspiracy to distribute more
than fifty grams cocaine base (crack) under 21 U.S.C. §§ 841(a)(1)
and 846. Wilwright was sentenced to 102 months imprisonment,
Duskin to 140 months, and Turner to 135 months. The defendants
raise separate arguments on appeal. Finding no prejudicial errors
occurred during the trial, we affirm.
FACTS
The primary evidence at trial related to multiple sales of
crack cocaine by Michael Turner to an undercover officer, Blaine
1
Honorable Donald P. Lay, Senior Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Hebert, in Kenner, Louisiana. These sales occurred from November
1992 through January 1993. Many of Hebert's conversations with
Turner were recorded and admitted into evidence.
Erskin Duskin and Fernell Wilwright were primarily connected
to Turner's drug sales through a sale to Hebert on November 18,
1992. That evening, Turner met Hebert in a parking lot at 7:15
p.m. Turner explained he did not have the crack with him and he
was going to meet someone to get it. At Turner's direction, Hebert
drove through the lot to where a white Buick Skylark was parked.
According to government witnesses, both Wilwright and Duskin then
approached Hebert's car. Turner told Hebert that Wilwright and
Duskin were his "hook" and "guide." Testimony revealed these terms
meant that one man was a "go between" and the other man had "the
dope." Hebert paid Turner $1,200 and Turner then got into the
Skylark where both Wilwright and Duskin were sitting. In a few
minutes Turner returned and gave Hebert four large rocks of crack.
On Hebert's scale, the rocks weighed about an ounce altogether.
Hebert and Turner drove back to where Turner's car was parked.
Hebert saw Duskin standing by the car and also saw Turner and
Duskin leave together in Turner's car. Other officers testified to
seeing these events and also identified Duskin and Wilwright as
Turner's associates on that occasion.
Testimony revealed other purchases of crack by Hebert from
Turner on November 4, 1992, and January 14, 1993. One officer
testified that Erskin Duskin's cellular phone was called from the
number 467-3189 some sixty-two times from November 1992 to January
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1993. This was the number Turner had given Officer Hebert to call.
In addition, a phone belonging to Wilwright's girlfriend received
calls from Duskin's cellular phone, Duskin's mother's phone, and
Turner's phone.
Fernell Wilwright
On appeal, Wilwright contends the only evidence associating
him with Turner was his mere presence at the scene where Hebert
purchased crack from Turner on November 18th. This claim overlooks
Turner's designation of Duskin and Wilwright as being his "hook"
and "guide." It also disregards the strong inference of
conspiratorial conduct flowing from the fact that before Turner
gave Hebert the crack on November 18th, he met with Duskin and
Wilwright in the Buick Skylark. We find sufficient evidence to
convict Wilwright as a member of the conspiracy.
Wilwright also complains of the court's admission of evidence
that he was involved in a prior crack sale during the period in
which the conspiracy was alleged to exist. Wilwright contends the
evidence should not have been admissible under Fed. R. Evid. 404(b)
because its prejudicial effects substantially outweighed its
probative value under Fed. R. Evid. 403. We find the evidence was
relevant to establishing Wilwright intended to sell crack with
Turner and Duskin. It is settled in this Circuit that Rule 404(b)
permits the admission of other crime evidence when a defendant
places his intent at issue in a drug conspiracy case by pleading
not guilty. United States v. Gadison, 8 F.3d 186, 191-92 (5th Cir.
1993); United States v. Prati, 861 F.2d 82, 86 (5th Cir. 1988);
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United States v. Moye, 951 F.2d 59, 61-62 (5th Cir. 1992). This is
especially true when the defendant contends he was merely present
at the scene of the crime. See United States v. Martino, 759 F.2d
998, 1004-05 (2d Cir. 1985). The extrinsic evidence however,
although admissible under Rule 404(b), is still subject to Rule
403. See United States v. Beechum, 582 F.2d 898, 910-11 (5th Cir.
1978) (en banc) (explaining that Fed. R. Evid. 404(b) requires
first, a determination that the extrinsic offense evidence is
relevant to an issue other than character, and second, that the
evidence pass the requirements of rule 403), cert. denied, 440 U.S.
920 (1979). We do not find the probative value of this evidence
was substantially outweighed by it prejudicial effect. The trial
court could properly admit the evidence.
Michael Turner
Turner contends he received ineffective assistance of counsel.
Although he did not object at trial, Turner now argues the
ineffective assistance of counsel he received amounts to plain
error under Fed. R. Crim. P. 52(b).
Turner first contends counsel should have requested a hearing
to explore more fully a conflict of interest involving attorney
Arthur Harris. See United States v. Garcia, 517 F.2d 272, 277 (5th
Cir. 1975) (stressing the need for judicial involvement in a
defendant's decision to waive his right to conflict-free
representation). Harris represented Erskin Duskin at trial, but
also represented Turner in a pending criminal case in state court.
For this reason, the government sought to disqualify Harris
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from representing Duskin. The trial court denied the motion
because both Duskin and Turner told the court they did not object
to the representation, and because Harris stated that he did not
discuss Turner's case with Duskin, or Duskin's case with Turner.
Turner now argues his counsel was ineffective in failing to request
a more in-depth hearing for Harris's disqualification. Turner
claims he was prejudiced by the dual representation when Harris
asked an officer whether he was aware Mr. Turner had said that
Erskin Duskin was not with him on November 18. Turner contends the
question presumed his presence at the drug sale, indicates Harris
used information obtained from Turner against him, and undermined
his right to remain silent.
From our review of the record, we do not believe a Garcia
hearing was necessary in these circumstances. First, the court did
thoroughly inquire about the conflict and question both Turner and
Duskin as to whether they had any concerns.2 The Garcia court
2
The record indicates the following exchange, with counsel
present, between the court and defendants Turner and Duskin:
THE COURT: Let me ask again, Mr. Turner, do you have any
objection whatsoever to Mr. Harris going forward in
this matter?
THE DEFENDANT, MR. TURNER: No, sir.
THE COURT: In your behalf and at least in one instance, in
behalf of Mr. Duskin?
THE DEFENDANT, MR. TURNER: No, sir.
THE COURT: How about you, Mr. Duskin?
THE DEFENDANT, MR. DUSKIN: No, sir.
THE COURT: Is it fair to say that your preference, addressing
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acknowledged that defendants can knowingly and intelligently waive
any disqualification of their attorney. Id. at 276. Second, the
information on which Harris's question was based could equally have
come from the Duskin witnesses previously discussed. Third, the
question was never answered and the witnesses were twice instructed
that the only evidence in the case would come from the witnesses,
not the attorneys.
Turner's second complaint of ineffective assistance is that
although counsel had located two women who were willing to impeach
a confidential informant who introduced Turner to Hebert,3 they
this to both Mr. Duskin and Turner, would it be fair
to say your preference would be to continue with the
relationship that exists where each of you, in
different cases is represented by Mr. Harris?
THE DEFENDANT, MR. DUSKIN: I have no problems with that.
THE DEFENDANT, MR. TURNER: The same thing, no problem.
* * *
THE COURT: Let me put the question directly to Duskin and
Turner. You all have heard this collogue [sic], this
discussion between the U.S. Attorney and myself. Do
you have any reservations at all whether it be
because of the expense or because of any of the
things that we discussed up to now, do either of you
have any reservations at all or any concern at all or
any fear at all or any unsatisfactory feelings at all
with respect to Mr. Harris continuing in his capacity
as it has to do with each of you?
THE DEFENDANT, MR. DUSKIN: No, your Honor. I am fine with the
attorney I have.
THE DEFENDANT, MR. TURNER: I am happy with the way the thing is
going.
3
Counsel for Turner told the court he planned to present two
witnesses who would testify the confidential informant who had
told Hebert about Turner lived in the building where one of the
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were not available to testify. Turner indicates the witnesses may
have left as a result of their misunderstanding of the trial
court's sequestration of the witnesses.4 The court refused
counsel's request for time to locate the witnesses. The record
does not indicate counsel subpoenaed the two women to ensure their
presence at trial. Accordingly, Turner argues his counsel
infringed on his right to compulsory process. See Taylor v.
Illinois, 484 U.S. 400, 409 (1988).
We find no merit to this complaint.5 The witnesses did make
an appearance at trial. Counsel committed no error when they
failed to remain nearby after having been ordered from the
courtroom. Counsel might well have decided as a tactical matter
not to request subpoenas for witnesses who would give favorable
testimony. Moreover, the informant did not testify and was only
telephones mentioned in testimony was located. The witnesses
would state the informant frequently received and made calls from
that phone. They would further testify the informant had a drug
problem and a vendetta against Turner.
4
Earlier that day, the court had announced, in response to
an objection by the prosecutor to the presence of witnesses in
the courtroom in violation of the court's sequestration order,
that witnesses present during testimony would not be allowed to
testify. Although the court later withdrew from that position
and indicated the issue of sequestration would be dealt with as
it came up, both Turner and Duskin, see infra, believe their
witnesses may have left the courthouse in the belief they would
not be allowed to testify.
5
The government contends we should not address Turner's
ineffective assistance claims because they were not brought up to
the trial court. While this is generally the rule, the record
before us is sufficient to evaluate Turner's claims. See United
States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991), cert.
denied, 114 S. Ct. 135 (1993); United States v. Kinsey, 917 F.2d
181, 182 (5th Cir. 1990).
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mentioned as the person who introduced Hebert to Turner. Most
importantly, we do not find any prejudice because it is apparent
the testimony of the witnesses would have had no effect on the
trial.6
Erskin Duskin
Duskin claims the court erred in denying his motion for
severance and his motion for a continuance. Duskin sought to sever
his trial from Turner's on the ground that Turner would testify
that he (Duskin) had nothing to do with the crack sales. At a pre-
trial hearing, the court heard one witness state that Turner had
told her he was willing to testify to Duskin's non-involvement.
Two other witnesses were also available to testify that Turner made
similar statements to them. However, when the hearing continued
the following day, Turner's counsel told the court Turner was not
willing to testify.
Generally, "[p]ersons indicted together should ordinarily be
tried together." United States v. Romanello, 726 F.2d 173, 177
(5th Cir. 1984); see United States v. Stotts, 792 F.2d 1318, 1321
6
In a footnote in his brief, Turner alleges another instance
of ineffective assistance. He contends his counsel failed to
object to the presentence report's addition of three points as a
result of his criminal history. One point was added for Turner's
plea of guilty on February 4, 1991 to the reduced charge of
possession of cocaine. Turner was sentenced to two years
inactive probation. Two points were added because Turner's
instant conspiracy conviction occurred during his two year
inactive probation term. Turner wrote the court claiming the
presentence report was inaccurate because he was not on probation
at the time the instant offense occurred. We find the
presentence investigation states explicitly that Turner was on
inactive probation at the time of the offense and counsel
therefore committed no error.
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(5th Cir. 1986). Fed. R. Crim. P. 14 provides that severance may
be granted if a defendant will be prejudiced by a joint trial.
Given Turner's unwillingness to testify, the court did not abuse
its discretion in denying Duskin's motion for severance. See
Stotts, 792 F.2d at 1322.
When given the opportunity to present a defense, counsel for
Duskin informed the court he had listed several witnesses and made
subpoena requests for them, but they were not present. Counsel
requested a recess until the next day so that he could try to
locate the witnesses. The court refused the request and announced
the trial would continue until 4:50 p.m. Counsel then requested a
five-minute recess to determine whether his witnesses had been
located. The court announced a recess until 4:15.
When the trial reconvened, counsel for Duskin rested, subject
to a proffer he made later, in the absence of the jury. In his
proffer, counsel stated he had seven alibi witnesses who would
testify that on the evening of November 18th Duskin was at Charlie
Nickerson's residence, and from there went with others to see an
8:00 p.m. showing of "Malcolm X." The government proffered that
its rebuttal to this testimony was that the theater was close to
where the drug transaction occurred and the only showings of the
film were at 7:30 p.m. and at 8:00 p.m., making it possible for
Duskin to have participated in the drug transaction at
approximately 7:15 p.m. because the transaction lasted only a few
minutes.
Duskin argues the court did not have a good reason to refuse
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his counsel's request for a continuance to give him time to locate
his witnesses. The witnesses had previously been in court and had
heard the court say they would not be allowed to testify.
Naturally, they left. Further, excusing the jury at 4:15 instead
of 4:50 would not have been a hardship for them because the jury
still had to return the next day for closing arguments and
instructions. Duskin argues he was prejudiced by this deprivation
of his Sixth Amendment right to have witnesses testify on his
behalf, citing Taylor v. Illinois, 484 U.S. 400, 408-09 (1988).
We believe the trial court should have granted a continuance
to Duskin's counsel until the following morning. The court's
sequestration statement that no witness present during testimony
would be permitted to testify, despite the court's later
qualification, may very well have been a factor in causing the
witnesses to leave the courthouse. Neither the jury nor the
government would have suffered any significant consequences as a
result of a continuance.
Despite this, we have held that a court's decision to deny "a
continuance does not constitute an abuse of discretion unless the
movant shows that he was seriously prejudiced by the denial."
United States v. Khan, 728 F.2d 676, 681 (5th Cir. 1984). Duskin
has failed to establish prejudice. Hebert and another officer who
observed the drug sale testified they knew Duskin very well and saw
him clearly that evening. Another officer who observed Duskin and
Turner driving away from the scene also saw Duskin clearly and knew
him well, having attended high school and played on the football
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team with him. Cross examination did not challenge these
identifications. As for Duskin's alibi, the transaction took only
a few minutes and he could easily have been at the scene and then
made the 8:00 o'clock show. Without more specific proof of what
the alibi witnesses would say, we hold there was no prejudice in
the denial of the continuance.
Duskin, Turner, and Wilwright all adopt each other's arguments
by reference. We find none of the appellants' arguments have
merit.
We AFFIRM the judgments of conviction.
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