United States v. Davis

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 93-7769
___________________________

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.

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 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).

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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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