United States v. Howell

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5222

DONNIE KEITH HOWELL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5253

DONNIE KEITH GARGANUS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 95-5365
MAURICIO LOPEZ HOWELL, a/k/a
LoBo,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge.
(CR-94-56)

Argued: September 25, 1998

Decided: November 19, 1998
Before HAMILTON and MICHAEL, Circuit Judges, and
MOON, United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Moon wrote the opinion, in
which Judge Hamilton and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Jose W. Hernandez-Cuebas, Assistant Federal Public
Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Raleigh,
North Carolina, for Appellants. Jane J. Jackson, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
William A. Webb, Federal Public Defender, Gordon Widenhouse,
FEDERAL PUBLIC DEFENDER'S OFFICE, Raleigh, North Caro-
lina, for Appellant Donnie Howell; Scott F. Wyatt, WYATT,
EARLY, HARRIS & WHEELER, L.L.P., High Point, North Caro-
lina, for Appellant Garganus; Jesse Ingram, INGRAM & INGRAM,
Washington, D.C., for Appellant Mauricio Howell. Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

MOON, District Judge:

Appellants, Donnie Keith Howell, Donnie Keith Garganus and
Mauricio Lopez Howell, a/k/a Lobo, were convicted in a jury trial of
conspiracy to possess with intent to distribute cocaine base in viola-
tion of 21 U.S.C. § 846. Also, Donnie Keith Howell was convicted of

2
one count and Donnie Keith Garganus was convicted of three counts
of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1),
and Mauricio Howell was convicted of one count of possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).
They seek a new trial based on their claims of trial court error. Find-
ing no reversible error, we affirm.

All three defendants are related, Donnie Keith Howell being the
father of Donnie Keith Garganus and Mauricio Lopez Howell, the lat-
ter two being half brothers. The indictment charged a conspiracy
beginning in or about January, 1992 and continuing to on or about
June 2, 1994.

Jerry Holmes, a drug dealer, testified that in 1992 he had given
Mauricio Howell $6,000 so that Howell could purchase one-fourth
kilogram of crack cocaine. Holmes introduced Mauricio Howell to
Thomas Barnhill and Luther Best who began buying crack cocaine
from Mauricio Howell in the summer of 1992. During some of the
purchases Garganus was also present. On January 20, 1993, Barnhill
and Best were arrested while in possession of 25.5 grams of crack
cocaine which they had just bought from Mauricio Howell. They
agreed to cooperate with the police by purchasing crack cocaine from
Mauricio Howell. They arranged for Mauricio Howell to meet them
in a parking lot where he was arrested in possession of 25.23 grams
of crack cocaine. In 1994, Holmes purchased one-half ounce of crack
cocaine from Donnie Howell. The principal witness against Donnie
Howell and Donnie Garganus was Garganus' uncle by marriage,
Ralph Campbell. Campbell began cooperating with police after he
was stopped with ten pounds of marijuana in his car. Garganus was
a passenger in the car. Thereafter, at the behest of the police and
while wearing a recording device, Campbell made a number of crack
cocaine purchases from Garganus and Donnie Howell. On April 12,
1994, Campbell purchased one-half ounce of crack cocaine from Gar-
ganus at the home of Donnie Howell. On April 21, 1994, also at Don-
nie Howell's home, Campbell discussed buying a "big eight" (4.5
ounces) of crack cocaine from Garganus. He told Campbell that
Mauricio Howell was going to New York for a supply. Garganus
explained that it was a very risky business and that one time he and
the two Howells had pooled their money for a load of crack cocaine
and lost their money. Later Garganus called Campbell and told him

3
the crack cocaine was expected the next day. Campbell went to Don-
nie Howell's home on April 23, 1994 and gave him $4,000 for a "big
eight" (4.5 ounces) of crack cocaine to be delivered later. On April
27, 1994, at Donnie Howell's residence, Garganus delivered 109.1
grams of crack cocaine to Campbell in two plastic bags.

On May 9, 1994, Campbell and Donnie Howell agreed for Camp-
bell to purchase another "big eight" of crack cocaine. Donnie Howell
told Campbell that Garganus would call him. On May 13, 1994, at
Donnie Howell's house, Garganus delivered 108.5 grams of crack
cocaine to Campbell.

Campbell also testified that one Saturday night in 1994, he took a
person to Donnie Howell's house to buy crack cocaine. Donnie How-
ell was not there. Garganus arrived and Campbell dealt with Garganus
whom Campbell saw obtain the crack cocaine from Mauricio Howell.
Campbell paid Garganus who gave the money to Mauricio Howell.
This transaction apparently was not taped or police sponsored.

I

During its deliberations, the jury sent the trial judge a note asking:
"[c]an we convict two of the three on conspiracy charges? Or is it `all
or nothing?'" (J.A. 541). Mauricio Howell's counsel requested that
the court instruct the jury that they could find two persons guilty with-
out finding the third person guilty. The trial judge believed the answer
to the jury's question was clearly within the original jury instructions.
He sent the jury a note stating: "Members of the jury, you must read
the bill of indictment in conjunction with the jury charge. Read my
part on conspiracy; this should clear up the question." (J.A. 398).
Those instructions included in part:

What the evidence in this case must show beyond a rea-
sonable doubt to convict either of the defendants for the
conspiracy charge is: First, that two or more persons in
some way or manner came to a mutual understanding to try
to accomplish a common and unlawful plan, as charged in
the indictment; and second, that the defendant, the individ-
ual then under consideration, be it Mr. Howell or Mr. Gar-
ganus or the other Mr. Howell, the defendant, under

4
 consideration by you, knowingly and willfully became a
member of such conspiracy.

(J.A. 461-62) (emphasis added).

****

If you find that the conspiracy charged in the indictment
existed between any of the defendants, you must then decide
as to each defendant, on an individual basis, whether he
joined the conspiracy with knowledge of its unlawful
purpose.

In that connection, each defendant, is entitled to individ-
ual consideration of the proof respecting him, including but
not limited to, any evidence of his knowledge of a scheme,
his status in the group, the level of his participation in activi-
ties and the key conversations, and his participation in the
design of the unlawful plan or scheme.

(J.A. 466) (emphasis added).

****

Also, the case of each defendant should be considered
separately and individually. The fact that you may find any
one or more of the defendant's [sic] guilty or not guilty of
any of the offenses charged should not affect your verdict as
to any other offense or any other defendant.

(J.A. 469) (emphasis added).

On appeal a trial court's refusal to grant a supplemental jury
instruction is entitled to a high degree of deference and will be
reversed only for an abuse of discretion. See United States v. Horton,
921 F.2d 540, 547 (4th Cir. 1990), cert. denied , 501 U.S. 1234
(1991). When faced with a challenge to a court's answer to a jury's
request for a supplemental jury's instruction, we inquire whether the
answer fairly responded to the jury's question without creating preju-

5
dice. United States v. United Medical and Surgical Supply Corp., 989
F.2d 1390 (4th Cir. 1993).

Here, the answer to the jury's question was unambiguously covered
in the jury instructions. The trial court's answer clearly and fairly
answered the jury's inquiry. Therefore, the trial court did not abuse
its discretion by refusing to give the jury a mere yes or no answer to
its question.

II

Mauricio Howell also claims that when the jury asked whether it
could convict only two of the defendants, the court erred in denying
his request for a multiple conspiracies instruction. He argues that
where the evidence demonstrates the existence of at least one conspir-
acy unrelated to the one charged in the indictment, the district court
must instruct on multiple conspiracies. United States v. Kennedy, 32
F.3d 876, 884 (4th Cir. 1994), cert. denied, 115 S. Ct. 939 (1995).
This issue is mistakenly premised on the district court having failed
to give a multiple conspiracies instruction when it charged the jury.
In its charge to the jury, the court instructed in part as follows:

"Multiple Conspiracies." In this case, the defendants con-
tend that the Government's proof fails to show the existence
of only one conspiracy. Rather, they claim that there were
actually several separate and independent conspiracies with
various groups of members.

Whether there existed a single unlawful agreement, or
many such agreements, or indeed, no agreement at all, is a
question of fact for you, the jury, to determine in accordance
with these instructions.

Now, proof of several separate and independent conspira-
cies is not proof of a single, overall conspiracy charged in
this indictment unless one of the conspiracies proved hap-
pens to be the single conspiracy described....

****

6
 [I]f you find that the conspiracy charged in the indictment
did not exist, you cannot find any defendant guilty of the
single conspiracy charged in this indictment. This is so even
if you find that some conspiracy other than the one charged
existed . . . . By the same token, if you find that a particular
[defendant] was a member of another conspiracy, not the
one charged in this indictment, then you must acquit the
defendant and find him not guilty of the conspiracy charged.

(J.A. 464-466).

This instruction was properly presented to the jury in regard to a
single conspiracy versus multiple conspiracies. United States v.
Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). Therefore the trial court
did not err in refusing to give another multiple conspiracies instruc-
tion during deliberations.

III

Next, the defendants claim that the trial judge committed reversible
error in limiting cross examination and refusing to admit proffered
evidence that would have impeached Ralph Campbell. Whether to
admit such evidence is usually left to the sound discretion of the trial
judge. United States v. Ham, 198 F.2d 1244, 1252 (4th Cir. 1993). If
the error violates constitutional rights, it must be harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967).

A.

First, Garganus' attorney asked Campbell whether he had any fel-
ony convictions to which Campbell answered "no." (J.A. 252). Next
Garganus' attorney asked whether Campbell had ever"been stopped,"
to which Campbell also answered "no." Id. The government objected
to the question, the court sustained the objection, and counsel with-
drew the questions. Then Donnie Howell's attorney asked Campbell
if he was trying to suggest to the jury that he had never been stopped
by the police prior to February 15, 1994. The government objected,
asserting that Campbell could only be questioned about prior felony
convictions. Campbell's misdemeanor conviction was for communi-

7
cating a threat. Fed. R. Evid. 609 limits impeachment through a wit-
ness' prior convictions to felony convictions or to convictions bearing
on truth and veracity. Campbell's conviction of communicating
threats was thus inadmissible.

However, evidence of a conviction offered to contradict specific
statements made by a witness rather than solely for Rule 609 purposes
may be allowed. See United States v. Leavis, 853 F.2d 215, 220 (4th
Cir. 1988). The defendants allege on appeal that they were not offer-
ing to show the fact of the prior conviction to impeach Campbell, but
rather pursuing the line of questioning to demonstrate that Campbell
had misled the jury regarding his criminal involvement. The trial
judge ruled that Garganus' attorney's earlier question to Campbell
about being stopped did not open the door to questioning about
Campbell's prior misdemeanor conviction.

Although the Sixth Amendment's Confrontation Clause grants a
defendant the right to cross examine a government witness bearing on
his credibility or bias, Davis v. Alaska, 415 U.S. 308, 316-17 (1974),
the trial judge may impose reasonable limits on cross-examination to
avoid harassment, prejudice, confusion of the issues, impairing the
witness' safety, or interrogation that is repetitive or only marginally
relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United
States v. Crockett, 813 F.2d 1310, 1312 (4th Cir.), cert. denied, 484
U.S. 834 (1987). Garganus' counsel's question on cross-examination
about whether Campbell had "been stopped," to which Campbell
answered "no," did not sufficiently mislead the jury to justify bringing
up his otherwise inadmissible misdemeanor conviction. In the first
place, the trial judge sustained an objection to the question and the
question was withdrawn by Garganus' counsel. Furthermore, there is
no reason to believe that Campbell misled the jury regarding his crim-
inal involvement in answering "no" to Garganus counsel's question
about being stopped. Even though Campbell answered the question
"no," he had already testified on direct that he had been stopped by
the police on February 15, 1994, while in possession of 10 pounds of
marijuana. Donnie Howell's counsel asked Campbell about this after
the judge sustained the objection to her first question. Thus, the trial
judge did not abuse his discretion in limiting cross-examination on
this issue, which was only marginally relevant. Van Arsdall, 475 U.S.
at 679.

8
B.

On cross-examination, Donnie Howell's counsel asked:"Mr.
Campbell, when you were in the drug business didn't you try to get
your son to help you with that?" to which Campbell answered "no."
(J.A. 260). Counsel called Campbell's son, Curtis Campbell, to testify
that his father had asked him to sell drugs. The government objected
to the question as being extrinsic evidence and inadmissible under
Fed. R. Evid. 608. Defendants contend that Campbell had testified on
direct that he had cooperated against Donnie Howell because Donnie
Howell involved Donnie Howell's own son in drug activities. The
trial court ruled that the evidence was too remote to prove motive and
was inadmissible pursuant to Rule 608. Rule 608 provides:

Specific Instances of Conduct. Special instances of the con-
duct of a witness, for the purpose of attacking or supporting
the witness' credibility, other than conviction of crime as
provided in rule 609, may not be proved by extrinsic evi-
dence. They may however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into
on cross-examination of the witness

(1) concerning the witness' character for truthful-
ness or untruthfulness, or (2) concerning the char-
acter for truthfulness or untruthfulness of another
witness as to which character the witness being
cross-examined has testified.

The purpose of this rule is to "prohibit things from getting too far
afield--to prevent the proverbial trial within a trial." United States v.
Bynum, 3 F.3d 769, 772 (4th Cir. 1993), cert. denied, 510 U.S. 1143
(1994). See also United States v. Moore, 27 F.3d 969, 974 (4th Cir.),
cert. denied, 513 U.S. 979 (1994). The trial court did not abuse its dis-
cretion in holding the evidence to be too remote concerning Camp-
bell's truthfulness.

The defendants also argue that Curtis Campbell's testimony was
relevant to impeach Ralph Campbell concerning his motive for coop-
erating and testifying. The defendants argue that Campbell's prior tes-
timony had indicated that his cooperation and testimony against

9
Donnie Howell stemmed in part from Donnie Howell involving his
own son in the drug business. This is an inaccurate representation of
the record. In the first transcript page to which the defendants cite
(J.A. 253), counsel for Donnie Howell asked Campbell whether he
told his nephew, Garganus, about his decision to cooperate with
authorities and why he had not done so. Campbell responded,
"[b]ecause he looked up to his father more than he did me and I knew
he wouldn't go against his father. The reason why he was the way he
was was because of his father." Id.

In the other pages to which the defendants cite, counsel for Gar-
ganus questioned Campbell about whether he loved his nephew. (J.A.
255). Upon receiving an affirmative answer, defense counsel asked
whether testifying against Garganus was how he showed his love for
Garganus. Campbell justified his testimony by responding that he
wanted to see Garganus get out of the drug business. Defense counsel
then elicited an admission from Campbell that he had placed Gar-
ganus in danger when he cooperated against him. In connection with
this line of questioning, Campbell stated that Garganus also "was in
danger when he was staying with his dad." (J.A. 256). Contrary to the
defendant's suggestion, this testimony does not establish that Camp-
bell claimed that his motivation to cooperate and testify arose because
Donnie Howell involved his son in the drug business. The District
Court did not err in ruling that the evidence was too remote to have
probative value.

C.

Finally, Campbell was asked on cross-examination whether he had
been hospitalized for a drug problem and whether he had ever been
to a psychiatric ward. Campbell answered "no." (J.A. 259-260). Don-
nie Howell proffered the testimony of Mary Lewitsky, an employee
of Dorothea Dix hospital, who was prepared to testify that the hospi-
tal's medical records showed that Campbell had a substance abuse
problem that hindered his ability to recall events. After reviewing the
records, the trial judge found that, following an event in which Camp-
bell had kicked a police officer more than twelve years prior to this
trial, he was evaluated by the hospital for approximately eight days.
The records demonstrated that there was no indication of any drug use
or abuse, even though Campbell admitted that he abused alcohol at

10
one time. In addition, the report indicated that Campbell was in a
depressed mood at the time of the evaluation. The trial court excluded
this evidence.

Although a party may be entitled to access a witness's psychiatric
records where probative of a witness's perception, credibility, and
motivation, United States v. Lindstrom, 698 F.2d 1154 (11th Cir.
1983), the testimony concerning those records is not admissible if
there is no showing of a correlation between the witness' condition
at the time of his treatment and the time of the trial. United States v.
Cecil, 836 F.2d 1431 (4th Cir.1988), cert. denied, 487 U.S. 1205
(1988). Because the hospitalization was remote in time and the cir-
cumstances were not probative of Campbell's perception, credibility,
or motive at this trial, the trial court did not err in refusing to admit
the evidence.

IV

Garganus contends that the trial judge erred in refusing to instruct
the jury to consider an entrapment defense in his case. A defendant
who seeks to raise the affirmative defense of entrapment has the bur-
den of producing evidence that the government "induced" him to
commit the charged offense. United States v. Blevins, 960 F.2d 1252,
1257 (4th Cir. 1992). There must be a showing of (1) government
inducement of the crime and (2) lack of predisposition on the part of
the defendant to engage in the criminal conduct. Matthews v. United
States, 485 U.S. 58, 63 (1988); United States v. Daniel, 3 F.3d 775,
778 (4th Cir. 1993), cert. denied, 510 U.S. 1130 (1994).

To prove inducement, the defendant must introduce evidence of
"excessive behavior on the part of the government that could be said
to be so inducive to a reasonably firm person that is likely to displace
mens rea." United States v. DeVore, 423 F.2d 1069, 1072 (4th Cir.
1970), cert. denied, 402 U.S. 950 (1971). Evidence that government
agents provided only the opportunity to commit the crime and that the
defendant availed himself of the opportunity does not demonstrate
inducement. Matthews, 485 U.S. at 66; United States v. Velasquez,
802 F.2d 104, 106 (4th Cir. 1986).

Garganus argues that the mere relationship between him and his
uncle, Campbell, constituted government inducement. He argues that

11
Campbell coached him into selling drugs. Other than the relationship,
he offers no evidence that the government encouraged him to sell
crack cocaine or that he was reluctant to become involved in the crack
cocaine sales. On the contrary, Garganus was selling crack cocaine
before Campbell approached him as a government informant and Gar-
ganus never refused to participate in sales.

For example, the evidence showed that Garganus was with Mauri-
cio Howell during transactions in which Mauricio Howell was selling
crack cocaine to two non-defendants. This was approximately two
years before undercover agents began buying drugs from Campbell.
Also, when Garganus was working with Campbell on drug deals, he
commented that Campbell had a "lot to learn" and did not understand
the drug business like he did because Campbell had not been around.
Garganus even told Campbell about the time that Garganus, Donnie
Howell and Mauricio Howell pooled their money for a load of crack
cocaine. In addition, before Campbell began working with the police,
Garganus was in the car with Campbell when Campbell was stopped
by the police for possession of a load of marijuana. While Garganus
may not have been involved in that particular transaction, he was sell-
ing crack cocaine during that period. Garganus also had bragged to
Campbell that Donnie Howell had told him that he had a good head
for the drug business. (J.A. 518).

Evidence of past drug offenses or reputation evidence is admissible
to show predisposition. United States v. Dickens , 524 F.2d 441, 445
(5th Cir. 1975), cert. denied, 425 U.S. 994 (1976). There was no evi-
dence that a reasonable finder of fact could have believed that Gar-
ganus was not predisposed to sell crack cocaine without the
government inducing him through the agency of Campbell. Therefore,
the trial court did not err in refusing to grant an entrapment instruc-
tion.

V

On appeal for the first time, the defendants claim that the govern-
ment did not prove that the substances possessed and sold in the
instant case were crack cocaine. Therefore the defendants argue that
the government failed to meet its burden to justify the enhanced pen-
alties under the guidelines and the sentences must be vacated.

12
USSG § 2D1.1(c), note (D) provides the following definition of
"cocaine base:"

"Cocaine base," for the purposes of this guideline, means
"crack." "Crack" is the street name for a form of cocaine
base, usually prepared by processing cocaine hydrochloride
and sodium bicarbonate, and usually appearing in a lumpy,
rocklike form.

Therefore, § 2D1.1 differentiates between crack cocaine and all
other forms of cocaine. The note was adopted as an amendment to the
Guidelines that became effective in November 1993. The "express
purpose of the 1993 amendment was to reject the interpretation of
cases which had ruled that cocaine base included more than crack."
United States v. Canales, 91 F.3d 363 (2d Cir. 1996). Therefore, it is
clear that "cocaine base," as that term is used in § 2D1.1(c), refers
only to crack cocaine. As a result, the government must prove by a
preponderance of the evidence that the controlled substance is crack
cocaine in order for the defendant to be eligible for an enhanced sen-
tence. United States v. Adams, 125 F.3d 586 (7th Cir. 1997).

The defendants argue that the chemist failed to determine if the
cocaine had been combined with sodium bicarbonate in order to sat-
isfy the guidelines' definition of crack. The chemist can only say
whether a substance contains cocaine base or cocaine hydrochloride.
Canales, 91 F.3d at 363. In Canales, the court found that crack
cocaine has a common and ordinary meaning in the drug trade and
that the guideline definition describes crack cocaine by its tell-tale
appearance and by the common method of its manufacturer. Id. Dur-
ing his testimony, the chemist testified that the controlled substance
was cocaine base. His testimony shows that he considers cocaine base
to be "crack cocaine."

The defendants claim that crack cocaine must contain sodium
bicarbonate. That is not correct. USSG § 2D1.1(c), note (D) says that
crack cocaine "usually" possesses sodium bicarbonate. The defen-
dants argue that pursuant to United States v. James, 78 F.3d 851 (3rd
Cir.), cert. denied, 117 S. Ct. 128 (1996), their sentences must be
vacated. James does not provide persuasive authority. In James, the
court found the government failed to prove by a preponderance of the

13
evidence that the form of cocaine base James actually sold was crack
cocaine. In the instant case, there was substantial trial testimony that
the cocaine base sold and possessed was in fact crack cocaine. Mauri-
cio Howell admitted to being a crack cocaine dealer prior to January
20, 1993, and that what he sold to Barnhill and Best on that date was
crack cocaine. Campbell testified that he bought crack cocaine on
April 24 and May 13, 1994.

This Court finds that the trial court possessed substantial evidence
that the defendants engaged in dealing with crack cocaine as defined
by the guidelines. Therefore, this part of defendants' appeal is without
merit.

Finding no reversible error, the convictions are affirmed.

AFFIRMED

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