UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 93-7769
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FLOYD DAVIS, RODNEY DAVENPORT, a/k/a "Fella",
PERRY WILLIAMS, a/k/a "Tic," JAMES EDWARD JEFFERSON,
a/k/a "Peanut," and MARY McBRIDE,
a/k/a "Mary Jefferson,"
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
____________________________________________________
August 2, 1995
Before WISDOM, GARWOOD and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Appellants Floyd Davis ("Davis"), Rodney Davenport
("Davenport"), Perry Williams ("Williams"), James Edward
Jefferson ("Jefferson") and Mary McBride ("McBride") were jointly
tried before a jury and convicted of various drug trafficking
offenses stemming from a conspiracy to distribute cocaine and
cocaine base. All five appeal their convictions. Finding no
reversible error, we affirm.
I. FACTS
From 1989 to 1992, appellant Jefferson ran a large narcotics
distribution organization in Greenville, Mississippi. The
organization consisted of over twenty members who worked under
Jefferson's direction to distribute cocaine, cocaine base and
marijuana. Jefferson owned and operated a bar called "The Side
Effect," which served as a front for his organization. From The
Side Effect, Jefferson directed a phalanx of street dealers who
sold drugs around the clock. Jefferson also supervised the
cooking of the cocaine into cocaine base at the house of his
mother, appellant Mary McBride. Additionally, he arranged and
directed several trips to pick up drugs from various source
cities around the country.
In June 1991, McBride was arrested in Miami on one of these
trips while obtaining thirty kilograms of cocaine. In August
1991, another member of the Jefferson organization was
apprehended while attempting to transport two kilograms of
cocaine from California to Greenville. Additionally, appellant
Davis, who supplied narcotics to the Jefferson organization, was
apprehended in Nevada en route from his home in California to
Greenville with over three ounces of cocaine and some marijuana.
On March 19, 1992, a reverse sting operation was initiated
in Greenville by undercover agents posing as drug dealers.
Jefferson sent Jerry and Edward Kyser to meet with agents at the
Alamatt Motel to purchase cocaine. Prior to the meeting,
Jefferson directed Edward Kyser to withdraw nearly $7000 from The
Side Effect checking account. Jefferson gave Kyser additional
money in a paper bag. Jefferson also gave Jerry Kyser a nine-
millimeter pistol to take with him to the meeting. When the
Kysers arrived at the Alamatt Motel and tendered the purchase
money, the agents arrested them. Following their arrest, the
2
Kysers agreed to cooperate with the government and consented to
tape-record three telephone conversations with Jefferson.
The investigation led to a seven-count indictment against
twenty defendants for various drug and firearms violations.
Count One charged all five appellants and fifteen other
defendants with conspiracy to possess with intent to distribute
and distribution of in excess of five kilograms of cocaine and
cocaine base, in violation of 21 U.S.C. § § 841 and 846. Count
Two charged Jefferson with unlawfully engaging in a continuing
criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848.
Count Three charged Jefferson with attempted distribution of
cocaine and marijuana, in violation of 21 U.S.C. § 846. Counts
Four through Seven charged Jefferson with the use of a firearm
during and in relation to a drug trafficking offense and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § § 924(c) and 922(g).
After fifteen co-conspirators pleaded guilty, the government
proceeded to trial against the five appellants. The jury
returned verdicts of guilty against the appellants on all counts
charged. The district court then sentenced Jefferson to life
plus five years imprisonment;1 Davis, McBride and Williams to
life imprisonment; and Davenport to 292 months imprisonment. The
appellants raise numerous issues on appeal, which we consider
1
The court sentenced Jefferson to life on both the CCE
and possession with intent to distribute cocaine and marijuana
charges (Counts 2 and 3); to a concurrent ten-year sentence on
the three charges of unlawful possession of a firearm by a felon
(Counts 5-7); and to a consecutive term of five years for the use
of a firearm during and in relation to a drug trafficking crime
(Count 4).
3
below.
II. SUFFICIENCY OF THE EVIDENCE
Jefferson and Davenport complain that the evidence is
insufficient to support their convictions.2 In reviewing a claim
for insufficiency, we determine whether, based on the totality of
the evidence at trial, any rational trier of fact could have
found that the government proved the essential elements of the
crimes charged beyond a reasonable doubt. United States v.
Nguyen, 28 F.3d 477, 480 (5th Cir. 1994). In doing so, we view
the evidence in the light most favorable to the verdict. Id.
A. Davenport
Davenport argues that the evidence was insufficient to show
his knowledge and participation in the conspiracy. He contends
that the government portrayed him as a mere "street dealer" and
failed to present any evidence establishing his ability to exercise
dominion or control over other members of the conspiracy, his
participation in the management of the conspiracy, or his knowledge
of the details of the conspiracy.
The government presented evidence, beyond mere presence and
association, to support Davenport's conviction. Ten co-
conspirators testified about Davenport's role in the organization.
The testimony established not only that he was a regular street
2
Only Davenport and Jefferson specifically challenge the
sufficiency of the evidence supporting their convictions.
Although all the appellants moved to adopt any issues raised by a
co-appellant, sufficiency arguments are too individualized to be
generally adopted. Although our review of the record persuades
us that the evidence is sufficient to support the convictions of
all appellants, we discuss sufficiency only with respect to
Jefferson and Davenport.
4
dealer for the organization, but also that he collected money from
and distributed packets of cocaine to the other street dealers,
picked up guns for Jefferson, and accompanied a group of co-
conspirators to beat up a man who allegedly stole drugs from
Jefferson. The evidence also showed that Davenport had signatory
privileges at Sunburst Bank for The Side Effect account.
Furthermore, Antoine Gilmore testified that he and Davenport
occasionally ran the business when Jefferson was out of town.
Viewing the evidence in the light most favorable to the verdict, a
rational jury could have concluded that Davenport was guilty on the
conspiracy count.
B. Jefferson
1. The CCE Conviction
Jefferson first challenges the sufficiency of the evidence to
support his CCE conviction. The governing provision, 21 U.S.C. §
848(b), provides that a person engages in a CCE if:
(1) he violates any provision of [title 21] the punishment for
which is a felony, and
(2) such violation is part of a continuing series of
violations of [title 21]--
(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such
person occupies a position of organizer, a supervisory
position, or any other position of management, and
(B) from which such person obtains substantial income or
resources.
The testimony established that Jefferson was the leader of a
large cocaine distribution conspiracy that ran from 1988 to 1992,
employing more than twenty people at any given time and making up
to $6000 daily. Jefferson argues that his conviction should
5
nevertheless be reversed because the evidence against him primarily
consisted of the testimony of ten accomplices, all of whom had
accepted plea bargains from the government in return for
testifying. This argument lacks merit.
It is well-settled that credibility determinations are the
sole province of the jury. See, e.g., United States v. Bailey, 444
U.S. 394, 414-15 (1980) ("It is for [jurors] and not for appellate
courts, to say that a particular witness spoke the truth or
fabricated a cock-and-bull story."). We have held that "[a]
conviction may rest solely on the uncorroborated testimony of one
accomplice if the testimony is not insubstantial on its face."
United States v. Gibson, 55 F.3d 173, 181 (5th Cir. 1995) (citing
United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987)).
Jefferson's role in the enterprise was corroborated by taped
telephone conversations and financial data from The Side Effect,
bank records and Western Union records. The abundant evidence
concerning Jefferson's role in the conspiracy and the income he
derived from it was sufficient to support the CCE conviction.
2. The Firearms Convictions
Jefferson next challenges his four firearms convictions
(Counts 4-7). Count 4 charged Jefferson with aiding and abetting
the carrying and use of a firearm during and in relation to the
March 19, 1993 drug deal at the Alamatt Motel, in violation of 18
U.S.C. § 924(c). To establish an offense under § 924(c), the
government need not prove that the defendant used, handled or
brandished the weapon in an affirmative manner, but rather need
only prove that the firearm was available to provide protection to
6
the defendant in connection with the drug trafficking offense. See
United States v. Rocha, 916 F.2d 219, 237 (5th Cir. 1990), cert.
denied, 500 U.S. 934 (1991). To sustain a conviction of an aiding
and abetting offense, the government must show that the defendant
associated with a criminal venture, participated in the venture and
sought by action to make the venture succeed. United States v.
Stone, 960 F.2d 426, 433 (5th Cir. 1992).
The firearm in question, a Stallard Arms Model JS nine-
millimeter semi-automatic pistol, was taken from co-conspirator
Jerry Kyser after the reverse sting operation at the Alamatt Motel.
The gun was available to Kyser during that transaction to use
should the need arise. Kyser testified that Jefferson had
engineered the Alamatt Motel meeting and had furnished the firearm
to Kyser for protection during that transaction. From this
evidence, a rational jury could have found that the government
proved the elements of the § 924(c) offense beyond a reasonable
doubt.
Counts 5-7 charge Jefferson with violating 18 U.S.C. §
922(g)(1), which makes it unlawful for a convicted felon to
"possess in or affecting commerce, any firearm or ammunition."
Count 5 refers to the same pistol discussed above, which was seized
from Jerry Kyser at the Alamatt Motel. Count 6 refers to a Smith
& Wesson Model 1006 ten-millimeter semi-automatic pistol seized by
agents from under Jefferson's mattress during a search of his
residence. Count 7 refers to a Ruger Model P-85 Mark II nine-
millimeter semi-automatic weapon with laser sight seized from
Antoine Gilmore during a search of The Side Effect.
7
Jerry Kyser testified that Jefferson gave him the Stallard to
take to the Alamatt Motel and that he had seen Jefferson on prior
occasions with the Smith & Wesson. Antoine Gilmore testified that
Jefferson gave him the Ruger to protect the business from other
drug dealers. Again, Jefferson's only challenge is that these
witnesses are not credible. This argument was for the jury, which
obviously did not accept Jefferson's argument. The evidence was
sufficient to support the firearms convictions.
III. MOTION FOR CONTINUANCE
All five appellants challenge the district court's denial of
their eleventh-hour motion for a continuance, arguing that they
were prejudiced by their counsel's inadequate time to prepare.
Specifically, they argue that they lacked time to investigate more
than eighty potential witnesses included on a list of unindicted
co-conspirators furnished to them by the government four days prior
to trial.
In determining whether to grant a continuance, the district
court "examine[s] the totality of the circumstances," including the
amount of time available for preparation, the defendant's role in
shortening the time needed, the complexity of the case, the
availability of discovery from the prosecution, the adequacy of the
defense actually provided at trial, and the likelihood of prejudice
from the denial. United States v. Webster, 734 F.2d 1048, 1056
(5th Cir.), cert. denied, 469 U.S. 1073 (1984). We review the
denial of a motion for continuance for an abuse of discretion. Id.
On April 12, 1993, the magistrate judge assigned to the case
granted defendant Davis' Motion for a Bill of Particulars,
8
requiring the government to furnish Davis the names and addresses
of any unindicted co-conspirators. The government filed a motion
to stay the order pending a ruling on its motion to disqualify
Davis' counsel. On May 21, 1993, the district court disqualified
Davis' original counsel, and on May 25, the magistrate granted the
government's motion to stay but directed the government to furnish
the Bill of Particulars within five days after an appearance by
Davis' new counsel. On July 26, after Davis had acquired new
counsel, the government urged the magistrate to reconsider the
previous order granting the Bill of Particulars in light of his
July 21 order denying a similar motion for a Bill of Particulars
filed by McBride. On September 7, six days before the trial was
scheduled to begin, the magistrate denied the government's motion
to reconsider.
The following day, the government filed a list of all
individuals who could conceivably be characterized as unindicted
co-conspirators.3 It simultaneously filed an application for
review of the magistrate's order with the district court. On
September 14, 1993, after the trial had commenced, the district
court overruled the magistrate's order granting the Bill of
Particulars and denied the defendants' request for a continuance.
The appellants do not challenge the district court's order
overruling the magistrate's ruling. Rather, they argue that even
if they were not entitled to the list of co-conspirators in the
first place, once they received it, they were obliged to talk to
3
The government asserts that it provided an expansive
list to avoid exclusion motions during the trial based on alleged
violations of the magistrate's order.
9
these potential witnesses. As an initial matter, we doubt that the
appellants can complain about lack of time to talk to witnesses
whose names were provided in a list that they were not entitled to
in the first place. Moreover, even if the appellants can make this
argument, they have failed to show any prejudice resulting from
their inability to investigate the list. The government assured
the district court and defense counsel that none of the unindicted
co-conspirators named on the list would provide direct evidence
against the defendants at trial. The appellants point to no
instance in which the government violated this promise. At most,
two people on the list, Falicia Gray and Ronnie Gilmore, were
called as witnesses, but the defense was previously aware of both
of these witnesses. In sum, the district court did not abuse its
discretion in denying the motion for continuance. Also, appellants
point to no prejudice from the court's refusal to continue the
trial.
IV. PROSECUTORIAL MISCONDUCT
Jefferson next challenges certain statements made by the
prosecution during closing argument. Jefferson's counsel in
closing argued that no evidence was presented against Jefferson
except the testimony of "crackhead copouts." In rebuttal, the
prosecution responded that drug notes found in Jefferson's home
corroborated the accomplices' testimony. Jefferson argues that
this argument was improper.
The notes referred to in the prosecution's closing argument
were admitted into evidence without objection as part of a bag of
assorted papers found in Jefferson's bedroom during a search of his
10
home. The hand-written notes contained instructions on how to run
the drug operation and avoid problems with the police. The
prosecutor argued that because the notes were found in Jefferson's
bedroom, one could reasonably conclude that they were Jefferson's
notes instructing his subordinates on the finer points of evading
police detection. The defense objected on the basis that no
evidence had been presented at trial to prove that Jefferson was
the author of the notes. The court twice cautioned the jury that
no direct evidence of authorship was presented, and the jury could
not consider the notes unless it concluded from the totality of the
evidence that Jefferson wrote them.
We conclude that the prosecution's remarks were not
improper. The fact that the notes were found in Jefferson's
bedroom creates a reasonable inference that they belonged to
Jefferson and that he knew their contents. The district court's
cautionary instructions gave proper directions to the jury to first
decide whether the notes belonged to Jefferson before they
considered them as evidence against him.
V. MOTION TO SUPPRESS
Davis challenges the district court's denial of his motion to
suppress three ounces of cocaine seized during a traffic stop in
Nevada from a truck in which Davis was a passenger. Prior to
trial, Davis moved to suppress the evidence as fruit of an illegal
search. Following a hearing, the district court denied the motion
to suppress, finding that the arrest was lawful and that Davis had
consented to the search.
We review the district court's findings of facts for clear
11
error and questions of law de novo. United States v. Shabazz, 993
F.2d 431, 434 (1993). "[W]here the judge bases a finding of
consent on the oral testimony at a suppression hearing, the clearly
erroneous standard is particularly strong since the judge had the
opportunity to observe the demeanor of the witnesses." United
States v. Kelley, 981 F.2d 1464 (5th Cir.) (citations omitted),
cert. denied, 113 S. Ct. 2427 (1993).
Nevada State Trooper Rozell Owens testified at the suppression
hearing that he stopped the red Mitsubishi truck in which Davis was
travelling for speeding. He also testified that he had received
information that a truck matching that vehicle's description and
bearing the same license number might be transporting narcotics
along Interstate 15. According to Trooper Owens, Davis, who was a
passenger in the vehicle, told the officers that the truck belonged
to his wife. Trooper Owens testified that Davis was sweating and
could not stand still. Owens further testified that upon asking
Davis whether there was a drug problem in his community, Davis
became highly emotional, yelling at the Officer. Owens then asked
Davis for permission to search the car. According to Owens, Davis
replied that he had "no problem" with Owens searching the car.
Owens testified that under the passenger's seat, he found a grey
woman's purse that contained two bags of cocaine. In the cab, he
also found an address book that contained a few entries for
"Peanut." Davis corroborated the Officer's testimony up until the
moment of consent. However, he denied consenting to the search and
insisted that Owens planted the purse with the cocaine in the truck
after ordering Davis to look away.
12
The stopping of a vehicle and the detention of its occupants
is a "seizure" under the Fourth Amendment and therefore must be
reasonable. Shabazz, 993 F.2d at 434. Where, as here, the
defendants are stopped for violating the traffic laws, the courts
have analyzed the case under Terry v Ohio, 392 U.S. 1 (1968). Id.
at 435.
Davis cannot argue that the initial stop of the truck for
speeding was improper. See id. at 435. Thus, his argument as to
the illegality of the stop must be predicated on the further
detention and questioning, including the request for consent to
search the truck. See id. This court has rejected the notion that
mere questioning during a traffic violation stop, even on a subject
unrelated to the initial purpose of the stop itself, is a violation
of the Fourth Amendment. Id. at 436. Such questioning is
reasonable if the detention continues to be supported by the facts
justifying the initial stop. Id. at 437 (finding no constitutional
violation where officer asked for consent to search vehicle while
waiting for results of routine computer check after stopping car
for speeding).
Davis does not argue that he was detained any longer than the
usual time needed to issue a citation for speeding. Thus, the
detention was not illegal. See Kelley, 981 F.2d at 1470.
Moreover, Davis does not argue that the consent was not voluntary
but rather contends that he never gave consent. The district
court, however, credited Owens' testimony (which was corroborated
by fellow trooper, Jack Snyder) and found that Davis consented to
the search. This finding is not clearly erroneous. The district
13
court properly denied Davis' motion to suppress the search.
VI. PROCEEDING WITH THE TRIAL IN McBRIDE'S ABSENCE
McBride argues that her conviction should be reversed because
the district court improperly proceeded with the trial in her
absence. The trial commenced on September 13, 1993. McBride
attended the first week of trial, in which a great deal of evidence
was presented against her and her co-defendants. When court
reconvened on Monday, September 20, 1993, McBride was not present.
McBride's counsel, Mr. Lanigan, stated that McBride's family had
called him Sunday night to tell him that McBride had checked into
the emergency room of Delta Regional Medical Center in Greenville.
Counsel, however, had not been able to contact her physician, Dr.
Estess. The government reported that it had learned that McBride
had checked into the hospital on Sunday evening after allegedly
ingesting fifty antidepressant pills in an apparent suicide
attempt. The government then moved that the court find McBride
voluntarily absent under Fed. R. Crim. P. 43(b).
The court granted a recess to allow Mr. Lanigan to talk to his
client and Dr. Estess. Following the recess, Mr. Lanigan stated
that he had reached Dr. Estess, who had informed him that McBride
would receive a routine mental evaluation on Tuesday and be
released by Wednesday. Apparently, the court also talked to Dr.
Estess and confirmed the report.
The district court found that McBride's ingestion of the fifty
pills was voluntary under Fed. R. Crim. P. 43 and that she had
therefore waived her right to be present at trial. The court
further found that the public interest in proceeding with the trial
14
outweighed McBride's interest in being present. In making this
determination, the court considered the multi-defendant nature of
the case; that witnesses had been subpoenaed from Florida and
Nevada; that twenty-five witnesses had already testified; and that
the jury was district-wide, with some jurors travelling over 100
miles a day.
However, in an abundance of caution, the court ruled that it
would not hear any evidence implicating McBride for the remainder
of the day and that after Monday's testimony, it would grant a
continuance until Wednesday to give defense counsel time to resolve
the situation. The Miami evidence, which implicated McBride, was
slated for Wednesday. The district court also strongly advised
counsel to visit McBride and inform her that she needed to be
present at trial, that she had a right to be present, and that the
evidence against her would proceed in her absence if she did not
return by Wednesday.
When the court reconvened on Wednesday, McBride's counsel
filed a motion to reconsider the court's finding that McBride was
voluntarily absent. Counsel informed the court that McBride had
not yet been released from the hospital because of "additional
complications." He stated that he understood from Dr. Estess that
she would be released Wednesday afternoon or Thursday morning.
Counsel further stated that he had visited McBride and that she was
"in relatively good spirits." McBride had told him she would come
to the trial if she was "mentally and physically able."
The parties then suggested that the court contact Dr. Estess,
as no one was certain as to McBride's exact condition. The court
15
agreed and spoke to Dr. Estess. The district judge reported to
counsel that Dr. Estess told him that McBride was still
hospitalized and that she had "a lot of vague complaints . . . that
he was having trouble verifying, but he needed to attempt to
verify." The doctor informed the court that McBride would probably
be discharged the next day, though he could not be certain.
The court then reconfirmed its finding that McBride's absence
was voluntary. In light of the complicating factors caused by the
multi-defendant trial and the uncertainty as to McBride's release,
he also reconfirmed his decision to proceed with the trial in her
absence. The trial proceeded and was completed on Wednesday,
September 23, when the jury returned a verdict. On September 24,
the court ordered that McBride be taken into custody and be
transferred to the federal medical facility in Lexington, Kentucky
for a full physical and mental evaluation.
On December 29, 1993, the court held a hearing on McBride's
motion for new trial. The court made it clear that the hearing
would address the issue of whether McBride's absence was voluntary.
However, McBride elected not to testify at the hearing. At the
hearing the government called Harold Duke, counsel for Davenport.
Mr. Duke testified that he and Davenport were standing in the
hallway outside the courtroom at the conclusion of the first week
of the trial, discussing whether Davenport planned to stay in
Oxford, where the trial was, or return to Greenville for the
weekend.4 McBride, who was also standing in the hallway, indicated
4
Davenport and McBride were the only defendants released
on bail.
16
that she was going to Greenville. When Davenport asked McBride if
she were coming back to Oxford on Monday, McBride replied, "Naw,
I'm not coming back." Mr. Duke testified that at the time he
understood her remark to be humorous. After hearing this evidence,
the district court denied McBride's motion for a new trial,
reiterating his reasons for proceeding in McBride's absence.
McBride challenges the district court's decision to proceed
with the trial in her absence on two grounds: (1) that the court
erred in determining that she was voluntarily absent under Fed. R.
Crim. P. 43(b); and (2) that the court erred in failing to hold,
sua sponte, a competency hearing before determining that she had
waived her right to be present. We conclude that both arguments
fail.
A. VOLUNTARY ABSENCE
The right of a criminal defendant to be present at her trial
is preserved by both the Sixth Amendment and the common law.
Illinois v. Allen, 397 U.S. 337, 338 (1970). The right to be
present is also implicated by the fair trial concerns of the Due
Process clauses of the Fifth and Fourteenth Amendments. Kentucky
v. Stincer, 482 U.S. 730, 745 (1987). This right is codified in
Fed. R. Crim. P. 43(a).
However, the right to be present is not absolute and can be
waived by the defendant. United States v. Diaz, 223 U.S. 442, 445
(1912). Federal Rule of Criminal Procedure 43(b) provides that a
district court may proceed with trial when a defendant who is
initially present "voluntarily absents himself after the trial has
commenced." The Second Circuit has explained the policy behind the
17
"voluntary absence" rule as follows:
The deliberate absence of a defendant who knows that he stands
accused in a criminal case and that the trial will begin on a
day certain indicates nothing less than an intention to
obstruct the orderly processes of justice. No defendant has
a unilateral right to set the time or circumstances under
which cases will be tried. . . .
Without this obligation on the accused the disposition of
criminal cases would be subject to the whims of defendants who
could frustrate the speedy satisfaction of justice by
absenting themselves from their trials.
United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir.), cert.
denied, 409 U.S. 1063 (1972).
This court has held that in deciding whether to proceed with
trial despite the defendants' absence the district court must
determine (1) whether the defendant's absence is knowing and
voluntary, and (2) if so, whether the public interest in the need
to proceed clearly outweighs that of the voluntarily absent
defendant in attending the trial. United States v. Benavides, 596
F.2d 137, 139 (5th Cir. 1979). We review the district court's
finding that the defendant's absence is voluntary for clear error.
Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991); Fed.
R. Crim. P. 52. The decision to proceed without a voluntarily
absent defendant is reviewed for an abuse of discretion. See
United States v. Hernandez, 842 F.2d 82, 85 (5th Cir. 1988).
McBride primarily challenges the district court's finding
that her absence was voluntary. This court has noted that "the
right of a criminally accused to be present at [her] trial cannot
cursorily, and without inquiry, be deemed by the trial court to
have been waived simply because the accused is not present when
[she] should have been." United States v. Beltran-Nunez, 716 F.2d
18
287, 291 (5th Cir. 1983). The trial judge must inquire into the
reason for the defendant's absence and determine whether it
constitutes a voluntary waiver of the right to be present. Id.
Although not expressly decided by this court, other courts have
held that voluntariness can be implied from the actions of the
defendant. See United States v. Watkins, 983 F.2d 1413, 1419-20
(7th Cir. 1993). Courts have also held that when an accused does
not appear at a time when she knows she should, the absence will be
found voluntary under Rule 43 "in the absence of some compelling
excuse." Tortora, 464 F.2d at 1210; see also United States v.
Wright, 932 F.2d 868, 879 (10th Cir. 1991) ("Absence without
compelling justification constitutes a waiver of the right to be
present at trial."); United States v. Rogers, 853 F.2d 249, 252
(4th Cir.) ("[Defendant's] voluntary absence without compelling
justification . . . constitutes a waiver of the right to be
present."), cert. denied, 488 U.S. 946 (1988); cf. Cureton v.
United States, 396 F.2d 671, 676 (D.C. Cir. 1968) ("[Defendant]
must have no sound reason for remaining away.").
With these legal principles as a backdrop, we turn now to an
analysis of the evidence. The records from the federal medical
facility in Lexington, Kentucky, together with the Greenville
hospital records (which the defense did not enter into the record
until after the motion for new trial hearing), show that at most
McBride suffered from depression and certain physical
manifestations of depression--such as headaches and drowsiness.
According to the Greenville Hospital records, when McBride checked
herself into the hospital, she was drowsy but conscious. Although
19
she complained of headaches, sore throat, and shortness of breath,
she showed no indicia of a serious drug overdose. McBride's
stomach was pumped, and tests were conducted on the contents. The
tests revealed no signs of narcotics, although there was some
indication that she had vomited earlier. The mental health report
prepared at Delta Regional Medical Center, dated September 20,
1993, indicated that McBride took the pills because of her concern
over the trial. According to the report, McBride showed no more
suicidal tendencies and indicated that she would return to court.
The exhaustive report prepared by the federal medical facility in
Lexington, dated November 9, 1993, found that McBride suffered from
a form of depression, but that she denied any further suicidal
inclinations. The report notes that her "typical functioning
appears to be adequate" and that her physical health was fine,
aside from hypertension and moderate obesity.
We conclude therefore that the district court did not err in
finding that McBride voluntarily absented herself from the trial.
Despite several opportunities to do so, McBride presented no
evidence that she was physically or mentally incapable of attending
the trial. The record evidence reveals that McBride was depressed
and did not wish to face trial and the prospect of a conviction.
A defendant cannot disrupt a trial for these reasons. McBride's
refusal to attend the trial was knowing and voluntary and
constitutes a waiver of her right to be present.
McBride contends that this conclusion directly contradicts the
First Circuit's decision in United States v. Latham, 874 F.2d 852
(1st Cir. 1989). In Latham, the defendant had ingested a large
20
amount of cocaine in an apparent suicide attempt. After only an
hour and a half delay, the trial court, who was initially told that
Latham had bought a plane ticket and had absconded, ruled that the
absence was voluntary and ordered that the trial proceed in
Latham's absence. Although new evidence subsequently showed that
Latham's absence was due to a cocaine overdose, the trial court
denied all requests for an evidentiary hearing as well as Latham's
post-trial motions.
The First Circuit reversed Latham's conviction, holding that
voluntary ingestion of a large amount of cocaine in an apparent
suicide attempt is not ipso facto a voluntary absence.5 Id. at
858. However, the facts in Latham are readily distinguishable from
the instant case. Latham ingested a lethal amount of cocaine and
was given only a 25% chance of survival. As the trial proceeded,
he was in critical condition in the hospital. In contrast, if
McBride injected drugs at all, no evidence suggested that her life
was threatened, or even that she was seriously ill. Thus even if
we accept Latham's premise that a suicide attempt is not a
"voluntary" act, McBride's failure to appear after the court
delayed the trial a day and a half was a knowing and voluntary
waiver of her right to be present.
As to the second prong of the Benavides test, we conclude that
the district court did not abuse its discretion in proceeding in
McBride's voluntary absence. The burden of having to indefinitely
postpone or possibly retry this multi-defendant trial with numerous
5
Although there was evidence suggesting that Latham had
been forced to ingest the cocaine, the court analyzed the facts
as if the ingestion was voluntary.
21
out-of-state witnesses and a district-wide jury clearly outweighed
McBride's non-existent or feeble excuse for declining to attend the
trial.6
B. MCBRIDE'S COMPETENCY
McBride argues next that the district court erred by failing
to hold a competency hearing after her alleged suicide attempt.
She contends that the court could not have found her voluntarily
absent without first determining her competence. Because McBride's
attorney never filed a motion requesting a competency hearing,7 we
must determine whether the district court abused its discretion in
failing sua sponte to order one.
18 U.S.C. § 4241 provides that the court
shall order such a hearing on its own motion, if there is
reasonable cause to believe that the defendant may presently
be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.
6
On appeal, Davis argues that the court erred in not
granting him a severance after McBride failed to return for
trial. But Davis did not move for a severance nor bring any
supposed prejudice to the district court's attention when McBride
failed to appear for the second week of trial. Also, the trial
court gave a cautionary instruction after consulting with counsel
for all parties advising the jury that no inference from
McBride's absence should be made and no adverse conclusions
affecting the remaining defendant should be drawn. This argument
is meritless.
7
McBride argues that her counsel's statement to the
court that he thought it would be a good idea to wait for the
results of her mental evaluation by the Greenville hospital
before making the Rule 43 finding constitutes such a request.
This vague reference to McBride's mental health is not sufficient
to place competency at issue. See Davis v. Alabama, 545 F.2d
460, 464 (5th Cir.) (holding that defendant's pre-trial motion
for mental examination pursuant to Ala. Code tit. 15 § 425 was
not sufficient to put competency at issue), cert. denied, 431
U.S. 957 (1977).
22
18 U.S.C. § 4241; see also Flugence v. Butler, 848 F.2d 77, 79 (5th
Cir. 1988). Whether "reasonable cause" exists to put the court on
notice that the defendant might be mentally incompetent is left to
the sound discretion of the district court. United States v.
Williams, 468 F.2d 819, 820 (5th Cir. 1972). In determining
whether there is a "bona fide doubt" as to the defendant's
competence, the court considers three factors: (1) any history of
irrational behavior, (2) the defendant's demeanor at trial, and (3)
any prior medical opinion on competency. Davis, 545 F.2d at 464
(citing Missouri v. Drope, 420 U.S. 162 (1975)).
McBride argues that the ingestion of fifty antidepressants in
an apparent suicide attempt was sufficient to constitute reasonable
cause to hold a competency hearing. In Drope, the defendant shot
himself in the stomach prior to the second day of trial. The
district court failed sua sponte to order a competency hearing
before finding the defendant voluntarily absent. The Supreme Court
reversed, holding that the failure to hold a competency hearing
denied the defendant's right to a fair trial. 420 U.S. at 180.
However, in Drope, the Supreme Court expressly refused to
decide whether an attempted suicide itself creates "reasonable
cause" for a competency hearing. Rather, it held that the suicide
attempt together with the information about defendant's mental
instability prior to trial and the defendant's wife's testimony
regarding his instability "created a sufficient doubt of his
competence to stand trial to require further inquiry on the
question." Id.
In this case, the evidence of incompetence was not
23
"sufficiently manifest" that the district court abused its
discretion in failing on its own motion to order a competency
hearing. See Zapata v. Estelle, 588 F.2d 1017, 1021 (5th Cir.
1979). There was no hint of incompetence before McBride's absence.
After her absence, the district court stayed in close contact with
McBride's physician, and the record reflects no information (except
McBride's possible suicide attempt) that reflected adversely on her
competency. The mental evaluation conducted at the hospital in
Greenville does not indicate any severe mental problems or
remaining suicidal thoughts.8 Nor does the report from the federal
medical facility in Lexington contain any information suggesting
incompetency. The detailed report merely indicates that McBride
was depressed but alert and that she had similar episodes in the
past when confronted with stress. Thus, we conclude that the
district court did not abuse its discretion in failing on its own
motion to order a competency hearing.
VII. OTHER POINTS OF ERROR
A.
Appellant Jefferson makes three objections to the court's
charge, none of which has merit. He objects first to the court's
boiler plate instruction on note-taking by the jurors. Jefferson
did not object to the instruction and the court's charge is
certainly not plain error.
He argues next that his proposed charge on the CCE count, D-J-
8
McBride argues that Dr. Estess' decision to subject her
to a mental evaluation indicated his concern about her
competence. However, the record indicates that such evaluations
were performed for every patient admitted after a suicide
attempt.
24
23 "was a perfectly legitimate instruction that should have been
granted." Jefferson does not argue that the court's instruction
failed to correctly state the elements of the crime and the
definitions of the terms used in the statute. Because Jefferson
has not demonstrated that the court's charge is erroneous, his
contention that he was entitled to the particular language in his
proffered charge is meritless.
Finally, Jefferson argues that the court should have granted
his charge D-J-22 regarding limitations on the jurors' use of
transcripts of taped conversations admitted into evidence. Again,
he points to no error in the instruction given by the court. The
court's instruction correctly stated the law, and Jefferson's
argument that the court should have given his proffered instruction
is meritless.
B.
Appellant Williams complains that his right to a fair trial
was violated by various incidents in which the trial court
questioned witnesses in the presence of the jury. He also points
to comments made by the trial court in the course of ruling on
objections.
"A federal district judge may comment on the evidence,
question witnesses, bring out facts not yet adduced, and maintain
the pace of the trial by interrupting or setting time limits on
counsel." United States v. Wallace, 32 F.3d 921, 928 (5th Cir.
1994). We have carefully reviewed the portions of the record
Williams complains of and conclude that none of the comments or
questions to which Williams refers was improper or went beyond the
25
proper role of the trial judge.
C.
Williams argues next that his life sentence without parole for
his conviction of conspiracy to possess with intent to distribute
in excess of five kilograms of cocaine amounted to cruel and
unusual punishment in violation of the Eighth Amendment. In
addition to the amount of crack cocaine proved at trial, the
district court accepted the presentence report finding that the
conspiracy involved seventy-five kilograms of cocaine base.
Williams' constitutional attack is clearly without merit. The
Supreme Court recently upheld a life sentence without parole for
possession of 650 grams of cocaine by a defendant with no prior
convictions. See Harmelin v. Michigan, 501 U.S. 957 (1991).
D.
Appellant Davis challenges the district court's order
disqualifying Davis' original attorney, Johnny Walls. Following
the government's disqualification motion, the court held a hearing
and learned that attorney Walls had earlier represented Jefferson
as a co-defendant in this case, as well as defendant Randy Williams
in a related prosecution involving Williams' alleged purchase of
narcotics from The Side Effect, Jefferson's night club. Randy
Williams entered a guilty plea and was expected to testify against
Davis and his fellow defendants. Thus, attorney Walls faced the
prospect of cross-examining his client Williams, who had a 5K1
motion pending before the court. It is also possible that he would
have been required to cross-examine his previous client, Jefferson.
Following an evidentiary hearing, the court disqualified Walls and
26
made detailed findings in support of its ruling. Our review of the
record reveals that the district court's findings are fully
supported by the record, and we find no error in this ruling.
E.
Appellant Davenport argues that the district court erred in
determining that he was responsible for twenty-five kilograms of
cocaine. The evidence revealed that Davenport was a participant in
the conspiracy from 1989 or 1990 until the organization was
dismantled in 1992. Jefferson gave Davenport a number of
responsible jobs in the conspiracy. Davenport was a street dealer.
From time to time, he distributed crack cocaine packages to the
street dealers and collected money from them. He occasionally
handled the entire business in Jefferson's absence. He also was
authorized to draw on The Side Effect bank account. Given this
evidence, the district court made specific findings that Davenport
knew or should have reasonably foreseen that the conspiracy
distributed at least twenty-five kilograms of crack cocaine after
he joined it. Davenport offered no evidence to refute this
finding. The district court did not err in determining the amount
of cocaine attributable to Davenport.
VIII. CONCLUSION
For the reasons stated above, we affirm the judgment of the
district court.
AFFIRMED.
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