UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-9081
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONEL MARCUS CLARK, WAYLAND THOMAS WILSON, TERRY DEWAYNE LEVELS,
and LORETA DE-ANN COFFMAN,
Defendants-Appellants.
Appeal from the United States District Court
For the Northern District of Texas
(October 18, 1995)
Before Garwood, Duhé, and Parker, Circuit Judges.
ROBERT M. PARKER:
I. FACTS AND PROCEEDINGS BELOW
Appellants Clark, Wayland Wilson, Levels, and Coffman were
charged in a superseding 31-count indictment filed September 22,
1992, with committing various drug offenses and conspiring along
with Michael Wilson (Wayland Wilson's brother), Bonnie Gill, and
Linda Lane to distribute cocaine, crack cocaine, and marijuana.
Specifically, in addition to the conspiracy allegation, various
Appellants were charged with (1) possession with intent to
distribute cocaine, crack cocaine, and marijuana; (2) using
firearms during a drug trafficking crime; (3) using a telephone to
facilitate drug trafficking; (4) using a residence located within
1000 feet of a secondary school for the distribution of cocaine and
crack cocaine; and (5) money laundering.
A jury trial began on May 17, 1993, concluding on June 10,
1993. After the jury convicted the defendants, the district court
held a sentencing hearing on November 12, 1993, issuing the
following sentences: (1) Clark- 420 months imprisonment; (2)
Wayland Wilson- 444 months imprisonment; (3) Levels- 348 months
imprisonment; and (4) Coffman- life plus 60 months imprisonment.
The four Appellants raise a total of 39 points of error on
appeal. We affirm.
II. DISCUSSION AND ANALYSIS
A. Sufficiency of the Evidence
1. Appellant Clark:
Clark claims the evidence was insufficient to support his
convictions on Count 1 (conspiracy), Count 25 (telephone count),
and Count 26 (school-yard count). On the conspiracy count, the
evidence against Clark included: (1) his weighing and packaging
crack cocaine; (2) marijuana sales to Clark; and (3) Clark’s
“cooking” of crack cocaine with Wayland Wilson.
On the telephone count, Clark contends that the entire
conversation on which this count is based is about staples which
can relate to and be used for any purpose. The government counters
that the jury could have reasonably concluded that the staples to
be purchased and the packaging discussed related to crack cocaine
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even though the conversation did not expressly refer to the
controlled substance.
On the school-yard count, Clark contends that there was no
evidence that he was present at any time at Levels’ house, a
residence within 1000 feet of a school. The government responds
that (1) in a telephone conversation between Clark and Levels,
Clark agreed to go to Level’s house to effect a drug transaction;
and (2) Clark aided and abetted the commission of drug offenses at
Levels’ residence.
After viewing the evidence presented and all inferences that
may reasonably be drawn from it in the light most favorable to the
government, we hold that a reasonably-minded jury could have found
Clark guilty of these offenses beyond a reasonable doubt. See
United States v. Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert.
denied, 500 U.S. 945 (1991).
2. Appellant Wayland Wilson:
Wayland Wilson challenges the sufficiency of the evidence
on Count 1 (conspiracy), Count 29 (money laundering), and §
2D1.1(b)(1) of the sentencing guidelines (addition of two points to
the offense level for possession of a dangerous weapon in
connection with a drug offense). On the conspiracy count, Wayland
Wilson contends that there were actually two conspiracies, one for
cocaine and one for marijuana, and that he was involved only with
the marijuana conspiracy. The evidence showed, among other things,
that Wilson (1) was a part owner of Motor Market Unlimited where
drug money was invested; (2) arranged marijuana transactions; (3)
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put marijuana proceeds into Motor Market; (4) taught Lane how to
weigh marijuana; (5) participated with Clark in making crack
cocaine at Lane’s house; and (6) owned a briefcase which was found
at Motor Market to contain crack cocaine and marijuana.
We have held that if there is only one agreement to carry out
the overall objective, even though various parties are engaged in
different functions, there is only one conspiracy. United States
v. Rena, 981 F.2d 765, 770 (5th Cir. 1993). Moreover, a single
agreement may have as its objective the selling of two different
drugs. See United States v. Vasquez-Rodriguez, 978 F.2d 867, 871
n.1 (5th Cir. 1992). The evidence need not exclude every
reasonable hypothesis of innocence. Triplett, 922 F.2d at 1177.
Therefore, a reasonably-minded jury could have found Wayland Wilson
guilty of conspiracy beyond a reasonable doubt. Id.
On the money laundering count, Wayland Wilson contends that
the fact that his brother Michael spent $53,000 in cash on a house
titled in the name of Michael Wilson, Wayland Wilson, and Bonnie
Gill does not support a conviction for money laundering. To
support a conviction under 18 U.S.C. § 1956(a)(1)(A)(I), the
government must show that (1) drug money was used to buy the house,
and (2) the house was purchased with the intent to promote further
drug trafficking. Bonnie Gill testified that the $53,000 was drug
money. She also testified that Koda Cook was “working” at that
house. When asked to elaborate, Gill testified that Cook would
“run errands,” including drug trafficking, from that location. The
evidence was thus sufficient to support the conviction.
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On the offense level issue, Wayland Wilson argues that there
was no nexus between any firearms and the drug offenses. However,
a loaded shotgun was found at Motor Market, and the district court
found that the weapons were used to protect the drugs and drug
proceeds at that location. The district court’s finding is
“essentially a factual determination reviewable under the clearly
erroneous standard. If the weapon was present at the scene of the
transaction, the adjustment should be applied unless it is clearly
improbable that the weapon was connected to the offense.” United
States v. Rodriguez, 62 F.3d 723 (5th Cir. 1995). The district
court’s finding was not clearly erroneous.
3. Appellant Levels:
Levels challenges the sufficiency of the evidence on
Count 1 (conspiracy), Count 7 (gun count), and Count 26 (school-
yard count). On the conspiracy count, Levels summarily argues that
the record does not establish a multiple conspiracy as alleged.
The evidence showed, among other things, that Levels (1) “cooked”
crack cocaine with Michael Wilson; (2) assisted in counting drug
money; and (3) admitted his participation in the drug operation to
an IRS special agent. Again, a single agreement may have as its
objective the selling of two different drugs. See Vasquez-
Rodriguez, 978 F.2d at 871 n.1. The evidence thus supported the
conviction.
On the gun count, Levels argues that there was no evidence
that he used any firearms in any phase of drug trafficking. He
claims that he lived in a rough neighborhood and that it is
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consistent with the evidence that the three firearms seized from
his house could have been needed for protection. However, “use”
does not require proof of actual use but simply that the weapons
could have facilitated the drug offense. United States v. Pace, 10
F.3d 1106, 1117 (5th Cir. 1993), cert. denied, 114 S. Ct. 2180
(1994). Furthermore, once again, the evidence need not exclude
every reasonable hypothesis of innocence. Triplett, 922 F.2d at
1177. The evidence was therefore sufficient to support the
conviction.
On the school-yard count, Levels argues that the statute
refers to “secondary” schools and that the school at issue is a
“middle” school. Therefore, he argues, the statute does not apply
to the given facts. The statute reads “public or private
elementary, vocational, or secondary school, or a public or private
college, junior college or university, or a playground. . .” 21
U.S.C. § 860(a). In this context, it is evident that Congress
intended to give the statute wide breadth. The term “secondary
school” comes after “elementary” school and therefore indicates
schools above the elementary level, including middle schools.
Therefore, the statute does apply to the middle school in this
case.
4. Appellant Coffman:
Coffman challenges the sufficiency of the evidence on
Count 2 (possession), Count 8 (gun count), and Counts 12, 13, and
15 (telephone counts). The evidence supporting the possession
count included a styrofoam cooler containing drugs that was placed
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outside the back door of Coffman’s apartment by Michael Wilson.
Because there was no proof that Coffman ever had actual possession
of the drugs, the government sought to prove constructive
possession. Coffman argues that there was insufficient evidence to
support a finding of constructive possession because “mere joint
occupancy” is not enough. United States v. Mergerson, 4 F.3d 337,
349 (5th Cir. 1993), cert. denied, 114 S. Ct. 1310 (1994).
However, in addition to the drugs in the cooler, drug paraphernalia
(including a scale with Coffman’s fingerprints on it) and drug
ledgers also were seized from the apartment. Therefore, the
evidence showed more than mere joint occupancy and was sufficient
to support the conviction.
Coffman’s challenge to the conviction on the gun count is also
without merit. The verdict was supported by the seizure from
Coffman’s apartment of an automatic pistol. Again, following Fifth
Circuit precedent, this count does not require proof of actual use
but simply that the weapon could have facilitated the drug offense.
Pace, 10 F.3d at 1117. Therefore, the evidence was sufficient.
Coffman argues that the conversations which form the bases for
the telephone counts were merely “status reports” and were
therefore insufficient to support a conviction. United States v.
Gonzales-Rodriguez, 966 F.2d 918, 922 (5th Cir. 1992). The
conversations consisted of (1) an attempt to reconcile drug ledger
entries and amount discrepancies, (2) instructions on how to page
Michael Wilson, and (3) the need to move the drugs because of
police surveillance. These conversations facilitated the aims of
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the conspiracy. Id. More than the mere conveyance of information,
they constituted the actual conducting of the drug operation. The
evidence was therefore sufficient to support the convictions.
B. Searches and Seizures
1. The Cooler and Its Contents:
While Coffman was being detained in the parking lot of
her apartment complex, a police detective saw Michael Wilson place
a styrofoam cooler on the breezeway outside the rear exit of the
upstairs apartment. Without a warrant, the detective retrieved the
cooler, which was found to contain cocaine. Coffman argues that
the evidence should have been suppressed.
Coffman claims that she had a reasonable expectation of
privacy in the walkway. The property representative for the
apartment complex testified that the walkways were not for the
general public’s use. However, Coffman did not have control over
who came on the walkway but was limited to controlling who came in
her apartment. Coffman relies on United States v. Carriger, 541
F.2d 545 (6th Cir. 1976). In Carriger, a tenant was held to have
a reasonable expectation of privacy in the hallway of his locked
apartment building. However, the breezeway and stairs in the
present case were neither enclosed nor locked. We hold that based
on these facts Coffman did not have a reasonable expectation of
privacy in the walkway. Thus, Coffman relinquished her interest in
the property. United States v. Colbert, 474 F.2d 174, 176 (5th
Cir. 1973). The cooler and its contents were therefore abandoned
property and were properly admitted into evidence. Id.
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2. Wiretapped Conversations:
Coffman and Wayland Wilson complain that their motions to
suppress tape recordings of wiretapped telephone conversations
should have been granted. They argue that the conversations were
not “minimized” as required by law. 18 U.S.C. § 2518(5) and Tex.
Code Crim. Proc. art. 18.20. The district court found that,
considering the drug jargon used, multiple objects discussed, and
close monitoring by the required interim reports to a state
district judge, there had been reasonable compliance with the
minimization requirement. A district court’s determination of
whether a certain practice, under the circumstances, is reasonable
is a factual determination subject to the clearly erroneous
standard of review. United States v. Moody, 977 F.2d 1425, 1433
(11th Cir. 1992), cert. denied, 113 S. Ct. 1948 (1993). The
district court’s finding of reasonableness in this case is not
clearly erroneous.
3. Illegal Detention:
Police officers went to Motor Market because a wiretap
revealed that Michael Wilson was informing members of the
conspiracy to destroy evidence. Wayland Wilson complains that he
was illegally detained at Motor Market and that therefore the
district court should have granted his motion to suppress evidence
and statements gathered. However, the detention of Wayland Wilson
was necessary to prevent the destruction of evidence while a search
warrant for Motor Market was obtained. Sufficient probable cause
and exigent circumstances existed to justify the detention. See
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United States v. Hultgren, 713 F.2d 79, 87-88 (5th Cir. 1983).
Furthermore, once he was detained, Wayland Wilson consented to the
search and made voluntary statements concerning his involvement
with drug trafficking. Because the initial detention was not
illegal, the consented-to search and voluntary statements were also
valid. See id.
4. Continued Questioning After Request to End Interview:
Wayland Wilson complains that officers continued to
question him after he requested to terminate the interview. After
Wayland Wilson stated that he wanted to go home, an IRS agent asked
Wayland Wilson if he could ask a few more questions. Wayland
Wilson responded that he could. The district court concluded that
the statements were voluntary and not the result of coercion. We
agree. Wayland Wilson was given the Miranda warnings, he stated
that he understood them, and he never asked for an attorney. At
one point he did ask to go home, but he then consented to further
questioning. There was no evidence of any coercion whatsoever.
Moreover, even if the continued questioning were improper, the
initial portion of the statement would not be affected by the later
indication of a desire to stop the interview. Additionally,
Wayland Wilson’s extensive involvement in the conspiracy was
established by other evidence, and any error in this regard was
harmless. See United States v. Arce, 997 F.2d 1123 (5th Cir.
1993).
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B. Double Jeopardy
1. Lesser-Included Offenses:
Levels argues that possession with intent to distribute
is a lesser-included offense of the school-yard statute. Clark
contends that conspiracy is a lesser-included offense of the
school-yard statute. Clark and Wayland Wilson claim that the
telephone counts are lesser-included offenses of the conspiracy
charge. Therefore, they argue, the convictions on these charges
resulted in multiple punishments for the same conduct in violation
of the double jeopardy clause.
Two crimes are to be treated as the same offense unless each
crime requires proof of an additional element that the other does
not require. Blockburger v. United States, 284 U.S. 299, 304, 52
S. Ct. 180 (1932). Each of these crimes contains at least one
element not found in the others. Because they require different
elements of proof, there is no double jeopardy violation.
2. Administrative Forfeiture:
Wayland Wilson, Clark, and Coffman argue that their property
was administratively forfeited prior to sentencing, and that
therefore additional punishment violated the double jeopardy
clause. However, the forfeiture was not contested, and we have
recently held that “a summary forfeiture, by definition, can never
serve as a jeopardy component of a double jeopardy motion.” United
States v. Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995). Therefore,
this argument is without merit.
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D. Sentencing Issues
1. Object Specific Verdict Form:
Clark, Levels, and Wayland Wilson argue that the district
court should have granted requests for an object specific jury
charge with respect to the conspiracy count. The conspiracy charge
had three separate objects for cocaine, crack cocaine, and
marijuana. Appellants argue that the general form of “guilty” or
“not guilty” precluded the jury from determining of which specific
object or objects they were guilty.
However, a jury’s verdict is not invalidated by the failure to
submit a special verdict form for a conspiracy count with multiple
objects. United States v. Fisher, 22 F.3d 574 (5th Cir.), cert.
denied, 115 S. Ct. 529 (1994). In other words, a conviction on a
multiple-object conspiracy count may stand if there is sufficient
evidence to support a conviction for conspiracy to accomplish any
of the charged objects. Griffin v. United States, 502 U.S. 46, 112
S. Ct. 466 (1991). Therefore, the use of the general form does not
invalidate the verdicts.1
2. Application of Sentencing Guidelines:
Clark, Levels, and Wayland Wilson argue that the district
court’s application of the sentencing guidelines was an ineffective
means of avoiding error caused by the general verdict form.
1 Appellants attempt to distinguish these cases on the grounds
that an object-specific verdict form was not requested in those
cases, whereas they requested such a form. Even if that were a
valid distinction, the form Appellants requested was erroneous in
that it did not provide the jury the opportunity to convict on more
than one object of the conspiracy.
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Punishment for a conviction of a multiple conspiracy may not exceed
the statutory maximum for the offense carrying the least severe
penalty. United States v. Cooper, 966 F.2d 936 (5th Cir.), cert.
denied, 113 S. Ct. 481 (1992). Thus, if the court sentences the
defendant based upon the object of the conspiracy carrying the
lower sentence, then any error is avoided. United States v. Owens,
904 F.2d 411 (8th Cir. 1990). The district court limited the
sentence on the Count 1 conspiracy to the maximum statutory
sentence for the object offense providing the least severe
punishment (60 months for a marijuana conspiracy conviction).
Thus, under Cooper and Owens, any error was avoided.
3. Determination of Drug Quantity:
Under the sentencing guidelines, a defendant who
participates in a drug conspiracy is accountable for the quantity
of drugs which is attributable to the conspiracy and reasonably
foreseeable to the individual defendant. United States v.
Mitchell, 31 F.3d 271, 277 (5th Cir.), cert. denied, 115 S. Ct. 455
(1994). The commentary to § 1B1.3 of the sentencing guidelines
explains that “a defendant is accountable for the conduct (acts and
omissions) of others that was both: (I) in furtherance of the
jointly undertaken criminal activity; and (ii) reasonably
foreseeable in connection with that criminal activity.” Coffman
and Wayland Wilson argue that the district court failed to make a
finding as to the scope of the jointly undertaken activity.
The district court found that “during the conspiracy the
conspirators manufactured or distributed with possession with
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intent to distribute or distributed in excess of 50 kilograms of
cocaine base.” Furthermore, the addendum to the presentence
report, adopted by the district court, stated that as to each
Appellant “the jury found the defendant knew the purpose of the
conspiracy and willfully joined in it with the specific intent to
further its illegal purpose.” These statements constitute a
sufficient finding of the scope of the jointly undertaken activity
attributable to Wayland Wilson and Coffman. See United States v.
Smith, 13 F.3d 860, 865 (5th Cir.), cert. denied, 114 S. Ct. 2151
(1994).
4. Constitutionality of Sentencing Provisions:
Clark, Levels, and Wayland Wilson argue that the relevant
sentencing provisions are unconstitutional due to the disparity in
sentencing between crack cocaine and powder cocaine, in violation
of the Eighth Amendment’s prohibition against cruel and unusual
punishment. However, this court has rejected such a challenge.
Fisher, 22 F.3d at 579-80 (“The impact of crack cocaine is
devastating; Congress’ decision to punish more severely those who
traffic in it is well warranted.”).
E. Ineffective Assistance of Counsel and Plain Error
Levels argues that his trial counsel made several serious
errors at trial. Specifically, Levels complains that his trial
counsel failed to (1) move to suppress Levels' statement to the
government; (2) object to a government witness being permitted to
testify as to that statement; (3) move to strike this testimony or
move for a mistrial or acquittal; and (4) object to the testimony
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of two witnesses about the distance from Levels' residence to the
school yard. Levels also argues that the district court committed
plain error in admitting hearsay testimony on the distance from
Levels' residence to the school yard, even in the absence of an
objection.
As to the ineffective assistance of counsel claim, these
claims are resolved on direct appeal only in "rare cases" where the
record allows a fair evaluation of the merits. United States v.
Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484
U.S. 1075 (1988). In the present case, the issue was not raised in
the district court, and thus no record has been made. Levels is
entitled to raise the issue only in a proper motion for habeas
corpus relief where the record can be adequately developed.
As to the plain error argument, an appellant who raises an
issue for the first time on appeal has the burden to show that
there is actually an error, that it is plain, and that it affects
substantial rights. United States v. Olano, 113 S. Ct. 1770, 1777-
78 (1993). If these factors are established, the decision to
correct the forfeited error is within our sound discretion, and we
will not exercise that discretion unless the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1778. We find no error in the admission of
this testimony that would have affected the fairness, integrity, or
public reputation of the district court’s proceedings.
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F. Improper Limiting of Cross Examination
Wayland Wilson argues that the district court improperly
limited his cross examination of a government witness concerning
her understanding of the sentencing guidelines. The witness was
Linda Lane, a co-defendant listed on the indictment who had reached
an agreement with the government that allowed her to plead to a
telephone count with a four-year exposure with the promise that the
government would file a downward departure motion under the
sentencing guidelines if she cooperated. During cross examination,
Wayland Wilson attempted to ask Lane about her knowledge of her
potential guideline without cooperation as opposed to her guideline
expectation based on her cooperation with the government. The
district court refused to allow this cross examination. Wayland
Wilson made a proper offer of proof.
The jury was made aware of the lengthy sentences that were
possible under the counts against Lane to be dismissed under the
plea agreement, as well as the fact that her cooperation might
result in the filing of a motion further reducing her exposure.
Therefore, the limitation of the additional information was not a
clear abuse of the district court’s discretion. United States v.
Bryant, 991 F.2d 171, 175 (5th Cir. 1993). Additionally, even if
there were error, it was harmless. United States v. Cooks, 52 F.3d
101 , 104 (5th Cir. 1995).
G. Comment on Failure to Testify
Wayland Wilson complains that the district court improperly
overruled his objection to an FBI agent allegedly commenting on
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Wayland Wilson's failure to testify. During cross examination, the
agent answered a question with, "I think the best evidence rule
would be to have Wayland Wilson answer that question." Wayland
Wilson argues that the jury was left to consider why he did not
take the stand and testify.
The comment did not have a clear effect on the jury and
therefore reversal is not warranted. United States v. Montoya-
Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993). Moreover, the district
court instructed the jury in its charge that Wayland Wilson was not
required to testify and that no inference could be drawn from his
election not to testify. The answer was not manifestly intended as
a comment on Wayland Wilson's failure to testify, and there is no
indication that it had a clear effect on the jury. Id.
Furthermore, the jury instruction and fact that the trial was
lengthy and complex render any error harmless. Id.
H. Constitutionality of School-Yard Statute
Levels argues that the school-yard statute is an
unconstitutional extension of Congress' regulatory powers under the
Commerce Clause. The Ninth Circuit has rejected such an argument
in United States v. Thornton, 901 F.2d 738 (9th Cir. 1990). The
Fifth Circuit has also recognized that "[t]he Congressional intent
of this chapter is clear; drug trafficking affects interstate
commerce." United States v. Gallo, 927 F.2d 815, 823 (5th Cir.
1991). Levels argues that the activities were "purely local," yet
offers no authority to rebut the statement of congressional
findings in Thornton and Gallo. Based on those congressional
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findings, the statute is within Congress' commerce power. See
also, United States v. Lopez, 2 F.3d 1342, 1366-67 n.50 (5th Cir.
1993) (noting that the school-yard statute is based on federal
authority over intrastate as well as interstate narcotics
trafficking), aff’d, 115 S. Ct. 1624 (1995).
Finding no merit in Appellants’ remaining arguments, we do not
address them here.
Therefore, the verdicts and sentences are AFFIRMED.
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