United States v. Clark

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

14
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

16
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

17
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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