UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-10185
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
RAY CHARLES FIELDS, a/k/a "RC", "Big Daddy", TIMOTHY
FIELDS, TED ROSS, DARRON FIELDS, CLYDE MCDONALD, a/k/a "Polo",
and TERRY RICHARDSON, a/k/a "Freeze",
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas,
January 9, 1996
Before REYNALDO G. GARZA, JOLLY & DUHÉ, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
I.
BACKGROUND
Appellants were convicted of multiple offenses arising out a
conspiracy that operated a crack cocaine distribution ring in
Dallas, Texas. According to the evidence most favorable to the
government, the ring, known as the Fields organization, was headed
by Ray Charles Fields ("Ray Fields"). His Brothers, Timothy and
Darron Fields, helped him run the operation. The Fields
organization would buy large amounts of powder cocaine, turn it
into crack cocaine, distribute it to salespersons at various sites,
and then pick up the money from the salespersons.
Defendant Ted Ross ("Ross") ran two of the Fields
organization's crack cocaine distribution sites. One was located
on Rupert Street and the other at a car wash. Clyde McDonald ran
drugs to various locations. Terry Richardson ("Richardson")
delivered money from the distribution sites to a game room, where
the money was collected and employees were paid.
The Fields organization distributed more than 1,000 kilograms
of crack cocaine before it was broken up by law enforcement. The
defendants were then tried and convicted of various offenses
arising out of their involvement in Fields organization. They now
appeal from those convictions on various grounds.
II.
THE DEFENDANTS' BATSON CLAIM
The prosecution exercised four of its preemptory strikes
against minority venirepersons. Three were exercised against
blacks, and the fourth against a hispanic. The defendants concede
that the prosecution gave race-neutral reasons for excusing three
of the minority venirepersons. But all the defendants, except for
Richardson, claim that the prosecution exercised its preemptory
strike against the fourth, a black female, on the basis of race.
2
The prosecution contends that it had race-neutral reasons for
striking that venireperson. Specifically, she was young, which
made her more likely to identify with the defendants, she avoided
eye contact with the prosecutor, and she looked at the defendants
in a flirtatious manner.
The Supreme Court has set up a three-step process for
examining objections to preemptory challenges on the grounds of
race.1 First, a defendant must make a prima facie showing that the
prosecutor has exercised a preemptory challenge on the basis of
race.2 Second, if the defendant makes such a prima facie showing,
the burden shifts to the prosecutor to articulate a race-neutral
reason for excusing the juror in question.3 Third, the trial court
must determine whether the defendant has carried his burden of
proving purposeful discrimination.4
The Supreme Court stated that a race-neutral explanation is an
explanation based upon something other than the race of the juror.5
Such an inquiry should focus upon the facial validity of the
prosecutor's explanation.6 Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reason given by the
1
Such challenges are known as Batson challenges. See Batson
v. Kentucky, 476 U.S. 79 (1986).
2
Hernandez v. New York, 111 S. Ct. 1859 (1991).
3
Id.
4
Id.
5
Id.
6
Id.
3
prosecution will be deemed race-neutral.7 Further, this circuit
has recognized that "a prosecutor's explanation for a peremptory
strike need not rise to the level of a challenge for cause; it
merely must contain a clear and reasonably specific articulation of
legitimate reasons for change."8 We review the district court's
determination that the prosecution gave a race-neutral explanation
for clear error.9
Two of the reasons given by the prosecution, the juror's
avoidance of eye contact and the juror's age, have been upheld as
valid race-neutral reasons by this circuit.10 The third reason,
looking flirtatiously at the defendants, has not previously been
passed upon by this circuit. However, we find it to be equally
race-neutral. Therefore, we hold that the district court did not
err in finding that the prosecution gave race-neutral explanations
for excluding the juror.
III.
REFERRAL TO COMMUNITY EXPECTATIONS DURING CLOSING ARGUMENT
All of the defendants, except Richardson, argue that the
following portion of the prosecution's closing argument was
7
Id.
8
United States v. Clemons, 941 U.S. 321, 325 (5th Cir. 1991).
9
United States v. Seals, 987 F.2d 1102, 1109 (5th Cir.), cert.
denied, 114 S. Ct. 115 (1993); Polk v. Dixie Ins. Co., 972 F.2d 83,
85 (5th Cir. 1992), cert. denied, 113 S. Ct. 982 (1993).
10
Polk, 972 F.2d at 86 (eye contact); United States v.
Terrazas-Carrasco, 861 F.2d 93, 94-95 (5th Cir. 1988)(age, eye
contact and body language); Clemons, 941 F.2d at 325 (age);
4
improper:
Now, when you convict these defendants, and I think
you will because the evidence supports it, all of them,
you are not going to stop that problem out there. I
don't expect that and you don't expect that. But you
know who is going to be glad about that? The neighbors,
the high school down the street from Gabriel Gardens
Apartments, the business around the corner —
[Defense Counsel] Your honor, I object to reference to
community expectations on a particular verdict.
[The Court] Overrule the objection.
[The Prosecutor] The businesses down the street from
other Oak Cliff areas, the church down the block from the
Metropolitan Apartments. Those are the people that are
going to be happy, they will be satisfied, they will know
that what's going on down here is the right thing.
It's a neighborhood problem. If we take
neighborhoods back by putting these people in jail, we
can eventually work our way to solving this problem. But
it's got to start right here.
The defendants claim that this argument was an impermissible appeal
to the passion and prejudice of the jury. They claim that the
prosecution urged the jury to lay the blame for the drug problem on
the feet of the defendants, and to end a societal problem by
convicting the defendants. They further argue that the argument
pressured the jurors to convict by suggesting that the communities
most affected by the defendants' actions were expecting a guilty
verdict.
In reviewing a claim of prosecutorial misconduct, this Court
first determines whether the prosecutor's remarks were improper
and, second, whether they prejudicially affected the substantive
5
rights of the defendant.11 Consideration is given to 1) the
magnitude of the prejudicial effect of the statements; 2) the
efficacy of any cautionary instruction given; and 3) the strength
of the evidence of the defendant's guilt.12 The magnitude of the
prejudicial effect is tested by looking at the prosecutor's remarks
in the context of the trial in which they were made and attempting
to elucidate their intended effect.13 At the same time, the
district court's on-the-scene assessment of the prejudicial effect,
if any, is entitled to considerable weight.14
The defendants cite no Fifth Circuit cases in which this court
found a similar argument to be impermissible, but they do cite
several cases from other circuits. First, they cite United States
v. Beasley,15 a case in which the Eleventh Circuit held that the
prosecutor's references to the "war on drugs" and to the jury as
participants in that war were improper.16 The court held that those
11
United States v. Lokey, 945 F.2d 825 (5th Cir. 1991); United
States v. Carter, 953 F.2d 1449 (5th Cir.), cert. denied, 504 U.S.
990 (1992).
12
Id.
13
United States v. Palmer, 37 F.2d 1080, 1085 (5th Cir. 1994),
cert. denied, 115 S. Ct. 1804 (1995).
14
Lokey, 945 F.2d at 839.
15
2 F.3d 1551 (11th Cir. 1993), cert. denied, 114 S. Ct. 2751
(1994).
16
The prosecutor made the following improper argument:
I want to say a few words about—and I know you've heard
about it and I've heard about it—war on drugs, war on
drugs. You've heard it. You hear it all the time. And
this is a war. This is just—this is just another battle
in that war. It's a battle to save folks from being
6
comments were calculated to inflame the jury. However, the
Eleventh Circuit refused to reverse the conviction, finding that
the comments were not prejudicial to a substantial right of the
defendants.
The defendants next cite United States v. Solivan,17 a case
involving a prosecutor's argument that the jury should tell the
defendant and other drug dealers like her that the people of that
community did not want drugs in their area.18 Those comments
suggested that, because of the defendant's participation in the
drug trade in northern Kentucky, the drug problem facing the
community would continue if the jury did not convict her. The
Sixth Circuit reversed, holding that it was improper to urge jurors
to convict defendants in order to strike a blow against the drug
problem faced by society or within their communities.
The defendants also cite Unites States v. Johnson,19 a case in
enslave[d] by crack cocaine. That's what, that's what this
battle's about. Now, I've got a place in that war. The judge has
got a place. Those defendants over there all have a place in it.
. . .
And for profiteers like [the defendant] to do that to—not
just his—not just Esau Street. It's not just Esau
Street. It's all over the country. And people, there's
another John Christopher out there somewhere. . . .
17
937 F.2d 1146 (6th Cir. 1991).
18
The offensive part of the prosecutor's argument was as
follows:
I'm asking you to tell her and all the other drug dealers
like her that we don't want that stuff in Northern
Kentucky, and that anyone who brings that stuff in
Northern Kentucky. . . .
19
968 F.2d 768 (8th Cir. 1992).
7
which the Eighth Circuit held that a prosecutorial argument that
encumbered the defendant with responsibility for the larger
societal problem of drugs in addition to his own misdeeds was
improper and inflammatory.20 Finally, they cite United States v.
Monaghan,21 a case in which the D.C. Circuit stated that "[a]
prosecutor may not convict a criminal defendant in order to protect
community values, preserve civil order, or deter future
lawbreaking."
This circuit has held that appeals to the jury to act as the
conscience of the community are permissible, so long as they are
not intended to inflame.22 This Court upheld as proper the
following prosecutor's argument: "You are the arbiters or truth.
You are the ones who stand between the citizens of this country and
an injustice, crimes that were committed against the nation in
which we live."23 That argument was held to be a mere plea to the
jury to do its duty, not an attempt to inflame the jurors.
Similarly, this circuit upheld the following argument as proper:
20
The offensive argument went as follows:
[The defendant's attorney] says your decision to uphold
the law is very important to his client. Your decision
to uphold the law is very important to society. You're
the people that stand as a bulwark against the
continuation of what Mr. Johnson is doing on the street,
putting poison on the street.
21
741 F.2d 1434 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085
(1985).
22
United States v. Ruiz, 987 F.2d 243, 249 (5th Cir.), cert.
denied, 114 S. Ct. 163 (1993).
23
Id.
8
"Drugs are a terrible thing and they are ruining the society. . .
. And it's up to you to do something about it and that is returning
a verdict of guilty on these charges."24
The cases cited by defendants are distinguishable. In this
case, the prosecution's argument focused on the neighborhood drug
problem caused by Ray Fields and his co-defendants. It did not ask
the jury to hold the defendants responsible for the national drug
problem, but merely to hold the defendants responsible for the drug
problem in the neighborhoods in which they sold drugs. Because the
prosecution was merely reminding the jurors of the adverse affect
that the defendants' activities had upon the particular community
in which they sold crack cocaine, rather than encouraging the
jurors to convict the defendants because the community expected a
conviction, we hold that it was proper.
Further, even if the prosecutor's argument was improper, it
would not cast serious doubt upon the verdict. The evidence of the
defendants' guilt was overwhelming, so any error would be harmless.
III.
DOUBLE JEOPARDY ISSUES
A.
THE PRIOR CIVIL FORFEITURES
The government seized approximately $500,000 from the
defendants in civil forfeiture actions. Defendants Ray and Timothy
Fields, Richardson and Ross moved to dismiss the indictments
24
United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989).
9
against them on the ground that these forfeitures constituted
punishment, and that the instant prosecution therefore violates the
Double Jeopardy Clause. We review this double jeopardy claim de
novo,25 although the district court's factual findings are accepted
unless clearly erroneous.26
In United States v. Halper,27 the Supreme Court held that a
defendant punished in a criminal prosecution cannot be subjected to
an additional civil sanction that can fairly be characterized as
punishment without violating the Double Jeopardy Clause.
Conversely, the logic of Halper indicates that a defendant that has
been subjected to punishment in the form of a civil forfeiture
cannot be subjected to a subsequent criminal prosecution arising
out of the same offense. In Austin v. United States,28 the Court
held that forfeitures of instrumentalities used in the drug trade,
which occur under 21 U.S.C. §§ 881(a)(4) & (a)(7), are per se
punishments. However, this Circuit has since held that the
forfeiture of proceeds from illegal drug sales pursuant to 21
U.S.C. § 881(a)(6) does not constitute punishment.29 Thus, a
prosecution after such forfeitures does not violate the double
jeopardy clause.
25
United States v. Whittie, 25 F.3d 250, 255 (5th Cir. 1994).
26
United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).
27
490 U.S. 435 (1989). See also United States v. Perez, No.
94-60788, 1995 WL 689385 (5th Cir. Nov. 21, 1995).
28
113 S. Ct. 2801, 2911-12 (1993).
29
United States v. Tilley, 18 F.3d 295 (5th Cir.), cert.
denied, 115 S. Ct. 574 (1994).
10
The district court found that the civil forfeitures in
question involved proceeds from illegal drug sales. Because the
record does not indicate under which subsection of 21 U.S.C. § 881
the forfeitures were conducted, the district court was forced to
determine from the affidavit in support of the forfeitures and from
the representations of the parties whether the forfeited property
consisted of proceeds or instrumentalities. We review this factual
finding for clear error.30 Our review convinces us that the
district court did not err in determining that the forfeited assets
consisted of drug proceeds. The affidavit filed in support of the
forfeitures alleges that the assets seized were drug proceeds.
Further, at the hearing on the motion to dismiss defendants'
counsel did not challenge the prosecutor's assertion that the
forfeited assets were proceeds. Thus, we accept the district
court's findings, and hold that the prior forfeitures do not bar
the instant prosecution.
B.
THE CONTINUING CRIMINAL ENTERPRISE CONVICTION
Ray Fields argues that his conviction for conspiracy is barred
by double jeopardy because of his conviction for a continuing
criminal enterprise. We review this double jeopardy claim de
novo.31
Count one of the indictment alleged that Ray Fields engaged in
30
United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).
31
Whittie, 25 F.3d at 255.
11
a continuing criminal enterprise ("C.C.E.") in violation of 21
U.S.C. § 848(a). It alleged that he violated 21 U.S.C. §§
841(a)(1), 843(b) and 846 as part of a continuing series of crimes
undertaken in concert with at least five other persons. Count two
of the indictment charged him with the offense of conspiracy. The
evidence at trial showed that the C.C.E. alleged in count one was
the same enterprise as the conspiracy alleged in count two. Under
these circumstances, the conspiracy offense is a lesser included
offense of the C.C.E. offense, and the Double Jeopardy Clause
prohibits convictions for both offenses.32 Therefore, we vacate Ray
Fields' conviction and sentence under count two.
Although we vacate Ray Fields' conviction on count two, we see
no reason to remand this case for resentencing. Where it is clear
that the conviction for a lesser included offense did not lead the
trial court to impose a harsher sentence on the greater offense
than it would have in the absence of the lesser conviction, there
is no need to remand for resentencing.33 Here, the conspiracy
conviction clearly did not affect the district court's sentencing
on the other offenses. The district court sentenced Ross and
Timothy Fields to life imprisonment for their conspiracy offenses.
Clearly, it would have sentenced Ray Fields, who was the head of
the conspiracy for which Ross and Tim Fields were sentenced, to
life in prison for the C.C.E. offense even in the absence of the
32
United States v. Boldin, 772 F.2d 719 (11th Cir. 1985), cert.
denied, 475 U.S. 1986).
33
See United States v. Michel, 588 F.2d 986, 1001 (5th Cir.),
cert. denied, 444 U.S. 825 (1979).
12
conspiracy conviction.
IV.
SUFFICIENCY OF THE EVIDENCE
A.
ROSS & McDONALD'S CONVICTIONS FOR CONSPIRACY
Ross and McDonald claim that the evidence is insufficient to
prove beyond a reasonable doubt that one conspiracy—rather than
multiple conspiracies—existed, and that they were members of that
conspiracy. In reviewing their insufficient evidence claim, we
will affirm if, "after viewing the evidence in the light most
favorable to the prosecution, [we] find that any reasonable trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt."34
Whether a single conspiracy or multiple conspiracies existed
is a question of fact for the jury to determine.35 In counting the
number of conspiracies, the principal factors are: 1) the
existence of a common goal; 2) the nature of the scheme; and 3)
overlapping of participants in the various dealings.36
As to the first factor, a common goal, a single conspiracy
exists where the evidence demonstrates that all of the alleged co-
conspirators directed their efforts toward the accomplishment of a
34
Jackson v. Virginia, 443 U.S. 307 (1974).
35
United States v. Elam, 678 F.2d 1234, 1245 (5th Cir. 1982).
36
United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.
1987).
13
single goal.37 This factor is satisfied by the common goal of
deriving personal gain from the illicit buying and selling of
cocaine.38 Although Ross contends that he did not have a common
goal with the Fields organization, neither Ross nor McDonald argue
that they did not share the Fields organization's goal of making
money through buying and selling crack cocaine. Additionally,
there is evidence that both McDonald and Ross were involved in the
crack cocaine business, which is sufficient to establish this
common goal.
The second factor, the nature of the scheme, is also
satisfied. Where the activities of one aspect of the scheme are
necessary or advantageous to the success of another aspect of the
scheme or the overall success of the venture—that is, where there
are several parts inherent in a larger common plan—the existence of
a single conspiracy will be inferred.39 The evidence showed that
the activities of one aspect of the scheme were necessary and
advantageous to the other aspects of the scheme or to the overall
success of the venture, and that there were several parts inherent
in a larger common plan. Specifically, the evidence showed that
Ray and Timothy Fields acquired powder cocaine from various sources
and converted it into crack cocaine. Then, through runners the
crack cocaine was delivered to distribution "spots" and the money
37
Id.
38
United States v. Morris, 46 F.3d 410, 415 (5th Cir.), cert.
denied, 115 S. Ct. 2595 (1995).
39
Richerson, 833 F.2d at 1154.
14
was returned to the Fields brothers. Ray Fields hired and fired
personnel and supervised the overall operation. The supply system
was necessary to Ross, who was in charge of the "spot" at the car
wash on Second Street. McDonald, as one of the runners delivering
drugs and money for Ray Fields, also played a necessary role in the
venture. Thus, the nature of the scheme showed a single
conspiracy.
The "overlapping of participants" factor also indicates that
a single conspiracy existed. There is circumstantial evidence that
Ross worked for Ray Fields, the pivotal figure in the conspiracy.
The evidence also showed that Ray Fields also worked with other
members of the conspiracy, and that McDonald delivered drugs to
members of the conspiracy. All in all, the evidence is sufficient
to support the jury's finding of a single conspiracy with
overlapping participants, which revolved around Ray Fields.
B.
ROSS' CONVICTION FOR MONEY LAUNDERING
Ross also argues that the evidence is insufficient to support
his conviction for money laundering in violation of 18 U.S.C. §
1956(a)(1)(B)(i). Ross was convicted of money laundering based on
his purchase of a pickup truck with $20,000 in drug proceeds in a
transaction that was designed to conceal the nature of his unlawful
activity. To convict a defendant under 18 U.S.C. §
1956(a)(1)(B)(i), the government must show that the defendant: (1)
conducted a financial transaction; (2) which he knew involved the
15
proceeds of an unlawful activity; (3) with the intent to conceal or
disguise the nature, location, source, ownership or control of the
proceeds of the unlawful activity.
Our review of the evidence leaves us satisfied that the
evidence is sufficient to affirm Ross' money laundering conviction.
Ross does not dispute the first element; he admits that he
purchased a truck, which constituted a financial transaction. As
for the second element, there is circumstantial evidence that
supports the jury's finding that he knowingly purchased the truck
with drug money. Specifically, Ross paid for the truck with a
paper sack full of cash, and the payment took place at the game
room, a location where cash from crack cocaine sales was brought in
and turned over to Ross. Finally, Ross' registration of the truck
in his brother's name is sufficient to show an intent to conceal.
C.
ROSS' FELON IN POSSESSION OF A FIREARM CONVICTION
Ross contends that the evidence was insufficient to support
his conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Two firearms were found
during a search of a house located at 1347 Glencliff Circle.
During that search, officers found a handgun underneath a mattress
and a shotgun leaning against a wall next to a safe.40 To convict
40
The parties dispute whether the gun was in or next to the
safe. However, Government's Exhibit 16.4 clearly shows that the
shotgun was too long to fit in the safe. Therefore, it must have
been next to the safe.
16
Ross under Section 922(g)(1), the government must prove: (1) that
Ross was a convicted felon; (2) who possessed a firearm; and (3)
that the firearm was in or affected commerce. While Ross admits to
being a felon, he contends that the government failed to prove that
he possessed a firearm, or that the firearm was in interstate
commerce. Our review of the evidence, however, leads us to
conclude that the evidence is sufficient to affirm the conviction.
The expert testimony of Agent Frost established the interstate
commerce element. Frost testified that the firearms were
manufactured outside of Texas and traveled in interstate commerce
to reach Texas. This testimony is sufficient to satisfy the
commerce element of Section 922(g)(1).
There is also sufficient evidence to support the jury's
finding that Ross possessed a firearm. Although the evidence seems
insufficient to show that Ross possessed the handgun, it is
sufficient to show that he constructively possessed the shotgun.
Constructive possession is defined as "ownership, dominion or
control over the [shotgun] itself or dominion or control over the
premises in which the [shotgun] is concealed."41 However, where two
or more persons jointly occupy the place where a firearm is found,
mere control or dominion of that place is, by itself, insufficient
to establish constructive possession.42 Evidence showing at least
a plausible inference that the defendant had knowledge of and
41
United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993),
cert. denied, 114 S. Ct. 1310 (1994).
42
Id.
17
access to the weapon is necessary to establish constructive
possession.43 Because Ross jointly occupied the house with his
wife,44 the prosecution must show that Ross had access to and
knowledge of the weapons. While there does not seem to be any
evidence which shows that Ross had access to or knowledge of the
handgun, the fact that the shotgun was found in plain view, leaning
against a wall, is sufficient to establish that he had knowledge of
and access to the shotgun. Therefore, we affirm his Section
922(g)(1) conviction.
V.
ROSS AND RAY FIELDS' MOTIONS TO SUPPRESS
A.
ROSS' MOTION TO SUPPRESS
Ross moved to suppress evidence that was seized at the time of
his arrest; namely, $28,000 and a pistol. He was arrested during
a routine traffic stop. On February 27, 1991, officer Steve
Oulliber observed Ross driving a red Mustang. Ross, who was
stopped at a traffic light, saw the officer and put on his
seatbelt. The officer then stopped Ross for a seatbelt violation.
The officer then discovered that Ross' driver's license was invalid
because he had not updated the address on the license, and that
Ross did not have proof of insurance. The officer then arrested
43
Id.
44
Although Ross presented evidence that he did not live at the
home at the time of the search because he was having problems with
his wife, the jury was free to disbelieve such evidence.
18
Ross and had the Mustang impounded. He then conducted an inventory
search of the vehicle, and discovered the pistol and the $28,000.
In our review of the district court's denial of the motion to
suppress, the district court's factual findings are accepted unless
clearly erroneous or influenced by an incorrect view of the law,
while questions of law are reviewed de novo.45 Although he concedes
that inventory searches are valid when conducted pursuant to
standard procedures, Ross contends that the inventory search was an
unlawful pretext search. That is, he claims that the officer
stopped Ross simply to find an excuse to search his car. However,
this circuit has held that pretext searches do not violate the
Fourth Amendment.46 "[S]o long as the police do no more than they
are objectively authorized and permitted to do, their motives in
doing so are irrelevant and hence not subject to inquiry."47 Thus,
Ross' pretext search argument is without merit.
Ross also contends that the search was illegal because the
prosecution failed to present evidence that the Dallas Police
Department had a standard inventory search procedure. However,
Ross did not present this argument before the district court in his
motion to suppress. In fact, during the hearing on the motion to
suppress, his counsel admitted, "If [the police officer] makes a
45
United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.
1991), cert. denied, 504 U.S. 942 (1992).
46
United States v. Shabazz, 993 F.2d 431, 435 n. 3 (5th Cir.
1993); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.
1987)(en banc).
47
Causey, 834 F.2d at 1184.
19
valid arrest, he has the ability to conduct an inventory search."48
Thus, our review is limited to plain error.49 Because the police
officer's testimony implied that the Dallas Police Department had
a policy of conducting inventory searches when it impounded cars,50
we find no such error.
B.
ROSS' MOTION TO SUPPRESS EVIDENCE OF
STATEMENT MADE WHILE IN POLICE CUSTODY
Ross contends that the district court erred in refusing to
suppress a statement that he made during police custody. He claims
that the statement should have been suppressed because he did not
intelligently waive his right to an attorney before making it. The
district court's determination that Ross' waiver was knowing and
intelligent is a finding of fact, which we review only for clear
error.51
After Ross was arrested on April 22, 1993, he was taken to a
DEA office. At the DEA office, he was given Miranda warnings.
After he was given the warnings, IRS agent De Los Santos advised
him why he had been arrested. Ross responded by saying, "I'm
48
R. 25:161.
49
United States v. Caverly, 37 F.3d 160, 162 (5th Cir. 1994)(en
banc), cert. denied, 115 S. Ct. 1266 (1995).
50
Officer Oulliber testified that "99 out of 100 times [the
inventory search is] done right on the street." This testimony
implied that the Dallas Police Department had a policy of
conducting inventory searches on impounded cars.
51
United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990),
cert. denied, 115 S. Ct. 346 (1994).
20
guilty of whatever you say." He then said that he would not tell
the officers anything about Ray Fields. A few minutes later, he
mentioned that he had spoken to an attorney regarding the matter.
At that point, the officers stopped the interrogation.
Ross claims that his waiver of his right to an attorney was
not knowing and intelligent because a person who intelligently
waived his right to counsel would not request counsel a few minutes
later. Ross cites no cases in which a request for counsel made
subsequent to making an incriminating statement was held to
constitute an unknowing and unintelligent waiver. We hold that
Ross' waiver was intelligent and knowing. Although Ross' waiver
may have been unwise, assuming that he planned to plead not guilty,
he simply fails to show that he did not understand that he had a
right to counsel. Because there was evidence that Ross understood
his Miranda rights, the district court did not err in finding that
he waived them. Therefore, we affirm the district court's denial
of Ross' motion to suppress.
C.
RAY FIELDS' MOTION TO SUPPRESS
Ray Fields seeks to suppress evidence seized during a search
of a home at 4829 Cedardale. This search was conducted pursuant to
a search warrant. Ray Fields contends that the evidence seized
during that search—weapons and $245,000 in small bills—should be
excluded because the affidavit upon which the search warrant was
granted did not provide adequate probable cause.
21
In reviewing the denial of a motion to suppress evidence
obtained pursuant to a warrant, this Court engages in a two-step
review. First, it determines whether the good-faith reliance on a
warrant exception to the exclusionary rule applies.52 Evidence
obtained by officers in objectively reasonable good-faith reliance
upon a defective search warrant is admissible unless the affidavit
upon which the warrant was issued is so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.53 Second, if the good-faith reliance
exception does not apply, this Court determines whether probable
cause supported the warrant.54
The reasonableness of an officer's reliance on a warrant
issued by a magistrate is reviewed de novo.55 When a warrant is
supported by more than a "bare bones" affidavit, officers may rely
in good faith on the warrant's validity.56 Bare bones affidavits
contain wholly conclusory statements, which lack the facts and
circumstances from which a magistrate can independently determine
probable cause.57 Ray Fields argues that the affidavit merely
contained conclusory statements, and was thus a bare bones
52
United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.
1992).
53
Id.
54
Id.
55
Id. at 321.
56
Id.
57
Id.
22
affidavit. Further, he argues that the officers' reliance on the
affidavit was unreasonable because the affidavit is based on
information provided by confidential informants, and did not
establish the credibility of those informants.
Our review of the affidavit convinces us that, while the
affidavit did contain some conclusory statements, taken as a whole
it established probable cause. It set forth the background and
experience of the affiant in law enforcement. Further, the
credibility of the confidential informants was established by other
information in the affidavit. The information given by the
informants was detailed, including names, address, amounts of money
and the roles of various persons. The confidential informants also
implicated themselves in illegal drug activities and made
admissions against penal interest. Each informant gave information
to the police independent of the other informants, and each one's
information corroborate the others'. Further, a police
investigation corroborated some of the evidence provided by the
informants. Thus, we hold that the affidavit was more than a bare
bones affidavit, and that the officers reasonably relied upon it in
searching the house.
Ray Fields also claims that the affidavit fails to establish
a nexus between the illegal activity and the home that was
searched. Ray Fields claims that all the affidavit stated in this
regard was that, in the affiant's experience in law enforcement,
criminals keep evidence of crime in their home. The government
notes that the affidavits stated that Ray Fields would stay at the
23
home when things "got hot for him," that law enforcement
surveillance confirmed that the Fields drug organization held
meetings at the home, and that members of the organization called
the home on several occasions. While this does not constitute
conclusive evidence that evidence was in the home, it does seem to
be enough evidence to be reasonably relied upon by the police in
executing a search warrant. Thus, we affirm the district court's
denial of Ray Fields' motion to suppress.
VI.
McDONALD'S MOTION FOR SEVERANCE
McDonald contends that he was entitled to severance under
Federal Rule of Criminal Procedure 14, which allows severance when
a defendant is prejudiced by joinder of offenses or defendants.58
We review the district court's denial of his motion for severance
due to prejudicial joinder for abuse of discretion.59
McDonald contends that he was entitled to severance because
there was a qualitative disparity between the evidence against him
and the evidence against the other defendants. Specifically, the
evidence showed that Ray Fields and Ross had been major players in
58
FED. R. CRIM. P. 14 provides—
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in
an indictment or information or by such joinder for trial
together, the court may order an election or separate
trials of the counts, grant a severance of defendants or
provide whatever other relief justice requires. . . .
59
Capote-Capote, 946 F.2d at 1104.
24
the drug business for years, while McDonald was only a runner who
recently joined the Fields organization. He also argues that the
evidence against Ray Fields and Ross was so pervasive that it must
have prejudiced him, notwithstanding the instructions given by the
district court.
In conspiracy cases, the general rule is that persons indicted
together should be tried together.60 A defendant can only obtain
a reversal for failure to sever if he can demonstrate "compelling
prejudice against which the trial court was unable to afford
protection."61 McDonald has not demonstrated such compelling
prejudice. This Court has held that neither a disparity in the
amount of evidence against each defendant nor a supposition that
the evidence against other defendants "spilled over" and prejudiced
the defendant constitute compelling prejudice.62 The fact that
McDonald was only a minimal participant in the Fields organization
likewise does not mandate reversal.63 Further, the district court
seems to have remedied any prejudicial effect by instructing the
jury to limit its consideration of the evidence to the appropriate
defendant.
VII.
60
United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993).
61
Id.
62
Id.; United States v. Harrelson, 754 F.2d 1153, 1175 (5th
Cir. 1985), cert. denied, 474 U.S. 908 (1985).
63
United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990),
cert. denied, 500 U.S. 934 (1991).
25
SENTENCING ISSUES
McDonald, Richardson and Ross argue that the district court
did not properly apply the Sentencing Guidelines. In reviewing
sentencings, we review findings of fact made by the district court
for clear error.64 We review the district court's application of
the Sentencing Guidelines de novo.65
A.
McDONALD'S CLAIMS
McDonald claims that the district court did not determine the
drug quantity that was within the scope of his conspiratorial
agreement with the Fields organization, or what part of that
quantity was reasonably foreseeable by McDonald. In United States
v. Correon,66 this Court held that, in sentencing a defendant for
participation in a drug conspiracy, a trial court must make three
findings: 1) when the defendant joined the conspiracy; 2) what
drug quantities were within the conspiracy; and 3) of these drug
quantities, which were reasonably foreseeable by the defendant.
McDonald claims that, in finding that he was responsible for 120
kilograms of crack cocaine, the district court failed to make the
second and third findings. Therefore, he argues, he may have been
sentenced for drug sales outside of the scope of the conspiracy
64
United States v. Barbontin, 917 F.2d 1494, 1497 (5th Cir.
1990).
65
Id.
66
11 F.3d 1225, 1236 (5th Cir. 1994).
26
into which he entered.
However, these findings can either be found in the presentence
report (which was adopted by the district court at sentencing), or
can be implied from the district court's findings.67 The
presentence report states that McDonald was personally involved in
the redistribution of approximately 120 kilograms of crack cocaine
in the course of making payroll deliveries and distributing drugs
to approximately three locations. If McDonald was personally
involved in the redistribution of approximately 120 kilograms of
crack cocaine, then that amount was clearly within the scope of the
conspiracy into which he entered, and was clearly foreseeable to
him. Accordingly, McDonald's sentence is affirmed.
B.
RICHARDSON'S CLAIMS
Richardson challenges his sentence on several grounds. First,
he notes that the guidelines changed the base level for his offense
from forty-two to thirty-eight by an amendment that went into
effect eight months after he was sentenced. He claims that the
failure to apply the reduced level to him imposed an "ex post facto
type" result on him. A defendant's sentence is normally based on
the Guidelines "that are in effect on the date that the defendant
67
See United States v. Puig-Infante, 19 F.3d 929, 943 (5th
Cir.), cert. denied, 115 S. Ct. 180 (1994)(a court can make
implicit findings as to contested facts so long as the reviewing
court is not left to second-guess the basis for the sentencing
decision).
27
is sentenced."68 However, amendments that are enacted after a
defendant's offense but before sentencing are not applied when
doing so would increase the sentence, because applying them in such
a situation would violate the Ex Post Facto Clause of the
Constitution.69 Richardson tries to turn the Ex Post Facto Clause
on its head by arguing that it requires this Court to apply
amendments taking effect subsequent to sentencing when those
amendments would decrease a defendant's sentence. Richardson does
not cite any authority in support of this argument. This lack of
authority is hardly surprising, because his argument is without
merit. The Ex Post Facto clause prohibits Congress from imposing
a harsher penalty upon someone after he commits a crime; it does
not require Congress to retroactively reduce penalties.
Richardson next argues that the guidelines are inconsistent
with 18 U.S.C. §§ 3553(a) and 3661. These statutes govern the
factors that a district court should consider in sentencing a
defendant. This is an issue of first impression in our circuit,
but has been addressed by the Sixth and Ninth Circuits.70 Those
circuits found that Sections 3553(a) and 3661 are not inconsistent
with the guidelines, but rather set out factors that courts should
consider when sentencing within the guidelines. We find the
68
18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a).
69
United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.
1990).
70
See United States v. Davern, 970 F.2d 1490, 1492 (6th Cir.
1992)(en banc), cert. denied, 113 S. Ct. 1289 (1993); United States
v. Boshell, 952 F.2d 1101 (9th Cir. 1991).
28
position of the Sixth and Ninth circuits to be well-reasoned, and
hold that the guidelines are not inconsistent with Sections 3553(a)
and 3661.
Richardson next argues that there is insufficient evidence to
support the district court's finding that he was responsible for
100 kilograms for crack cocaine and 125 kilograms of powder
cocaine. He also claims that the district court held him
responsible for drugs distributed by the conspiracy prior to his
joining. Our review of the record, however, convinces us that the
evidence supports the district court's findings. The district
court found that Richardson joined the conspiracy in the summer of
1989, and was responsible for 100 kilograms of crack cocaine. The
district court also attributed half of the crack cocaine sold at
the car wash—a total of 84 kilograms—to Richardson. It was
apparent that these quantities were based on Richardson's sales
while a part of the conspiracy. For example, there was testimony
that Richardson delivered money from the car wash to the game room
for the Fields organization. This testimony is sufficient to
support a finding that the crack cocaine sold at the car wash was
within the scope of the conspiracy into which Richardson entered.
Further, the fact that the district court only attributed half of
the cocaine sold at the car wash to Richardson indicates that only
the amount of drugs sold subsequent to his entering into the
conspiracy was considered for sentencing purposes.
Finally, Richardson argues that the 1994 amendment to U.S.S.G.
§ 2D1.1, which reduced the maximum level for the offenses committed
29
by Richardson to thirty-eight, should be applied retroactively.
However, the amendment did not go into effect until after
Richardson was sentenced, and was not included as subject to
retroactive application under U.S.S.G. § 1B1.10. Therefore, it is
not retroactive.
Finding no error in Richardson's sentencing, we affirm his
sentence.
C.
ROSS' CLAIMS
Ross argues that the district court erred in setting his base
offense level at forty-two. The district court imposed the base
offense level at forty-two because it found that Ross' offense
involved more than fifteen kilograms of crack cocaine.71 This
finding was a factual one, which we review only for clear error.
Our review of the record convinces us that the district court did
not err. Ross was involved as a high-level, supervisory member of
the Ray Fields conspiracy for several years. This conspiracy
resulted in the sale of more than 1,000 kilograms of crack cocaine.
Thus, the district court was justified in finding that Ross'
offense involved more that fifteen kilograms.
Finding no error in Ross' sentencing, we affirm Ross'
sentence.
IX.
71
See U.S.S.G. § 2D1.1(c)(1).
30
CONCLUSION
We VACATE Ray Fields' conviction on count two (conspiracy),
and AFFIRM the district court in all other respects.
VACATED IN PART AND AFFIRMED IN PART.
31