United States v. Wright

United States Court of Appeals,

Eleventh Circuit.

No. 94-4375.

UNITED STATES of America, Plaintiff-Appellee,

v.

Norman N. WRIGHT, Defendant-Appellant.

Sept. 12, 1995.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-8087-CR-EBD, Edward B. Davis, Judge.
*
Before COX, Circuit Judge, HILL and REYNALDO G. GARZA , Senior
Circuit Judges.

REYNALDO G. GARZA, Senior Circuit Judge:

This appeal presents us with the opportunity to revisit the

rule of consistency. In 1988 this Court, sitting in full,

overruled the rule of consistency in this Circuit.1 However, where

this Court was faced with inconsistent jury verdicts, this panel is

faced with an inconsistency between a judgment of acquittal and a

jury verdict of guilty. Because we find that our prior decision in

United States v. Andrews, controls this situation, we affirm.

Factual Background

Pursuant to a tip, the DEA established surveillance on an

apartment complex in Boynton Beach. Appellant Norman Wright,

driving a red Nissan, along with Temeka Perry, his girlfriend,

arrived at the complex to pick up a confidential informant (CI).

*
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
1
United States v. Andrews, 850 F.2d 1557 (11th Cir.1988) (en
banc ), cert. denied, 488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d
974 (1989).
Appellant drove to a Miami residence and picked up "Tony the

Cuban", the alleged seller of cocaine. The four individuals drove

to an apartment located in a community with security gates. The

car remained there for approximately fifteen minutes.

Tony the Cuban obtained the cocaine and sold it to Appellant

and the CI. After returning Tony the Cuban to his Miami residence,

Appellant drove the CI to a house in Delray Beach and then drove to

a Winn-Dixie with Perry. The couple entered the store and

purchased carpet freshener and fabric softener. Upon returning to

the car, the surveillance team observed movement in the car. Perry

exited the car and threw a plastic bag containing a near empty roll

of duct tape and a steel wool pad into a nearby trash bin.

Appellant placed something in the trunk of the car.

Appellant and Perry were ultimately stopped. Responding to

questions, Appellant first told the officers that he was going to

Delray Beach and then told them he was heading to Tallahassee. The

officers utilized a narcotics detector K-9 dog. The dog alerted

the officers to the driver's door and the trunk. In the trunk they

found one-quarter of a kilogram of cocaine wrapped in duct tape and

sheets of fabric softener.

While seated in the police car, Appellant and Perry spoke to

each other. Their conversation, which was recorded, was later

introduced at trial. After Appellant was read his rights, he

admitted he knew of the cocaine in the car, and that he had

obtained it from Tony the Cuban for the purpose of converting it

into crack and reselling it.

Appellant and Perry were indicted for conspiracy to possess
cocaine with intent to distribute in violation of 21 U.S.C. §

841(a)(1), and possession of cocaine with intent to distribute in

violation of 21 U.S.C. § 846. The grand jury also charged Tony the

Cuban, who was never arrested. At the close of the government's

case, the district court granted Perry's motion for acquittal, and

denied Appellant's motion for acquittal. At this time there was

some discussion about a defense witness who was not served with a

subpoena because he was in state custody. Appellant, however did

not proffer the testimony of this witness. Because there was no

evidence that the witness could be obtained within a reasonable

time, and Appellant conceded that his testimony would be the same

as the absent witness, the district court did not grant a

continuance or a writ of habeas corpus ad testificandum. Appellant

then took the stand in his own defense. After Appellant testified,

the defense rested. Appellant failed to renew his motion for an

acquittal at the close of all the evidence.

The jury returned a verdict of guilty. The district court

denied Appellant's motion for a new trial and sentenced Appellant

to 120 months of imprisonment, three years of supervised release,

and a special assessment of $100. This appeal ensued.

Discussion

Appellant attacks his conviction on two grounds. First,

Appellant contends the district court erred by failing to grant a

continuance that would enable Appellant to secure the presence of

a defense witness. Appellant argues this error operated to deny

him his right to present witnesses on his behalf. Second,

Appellant contends the evidence was insufficient to support his
conviction. Appellant argues a conviction of conspiracy requires

evidence that two or more individuals conspired; because

Appellant's co-conspirator was acquitted, Appellant asserts the

evidence is insufficient to support the conviction.

I. Defense Witness

During the first day of trial, Appellant informed the court

below that one of his prospective witnesses, Albert Wright, was in

state custody on a traffic charge in Marion County. The witness

was allegedly present in the apartment when the CI persuaded

Appellant to participate in the events leading up to his

indictment. The witness was incarcerated for a traffic offense two

weeks prior to trial. As a result of the incarceration and a mixup

concerning service of a subpoena, the witness was never served.

Appellant was not aware of this situation until the day of trial.

Appellant asked the court "to permit me to make the necessary

arrangements to have him transported down here." After a recess,

Appellant acknowledged that he needed a court order to secure the

presence of the witness. The district court did not think that it

could obtain the witness from the state authorities within a

reasonable amount of time.2 In fact, Appellant conceded that even

with a court order it would take a day or two to obtain the

witness. The court asked Appellant if there was any other way to

get the testimony. Appellant stated, "Well, I'm most likely to

have my client testify which would, in essence, be the same

testimony. Would say the same thing." Because Appellant would

2
The district court stated that it took about one to two
weeks to obtain a prisoner from the state system.
supply the same testimony as the absent witness, and the court

would not be able to obtain the witness within a reasonable amount

of time, the court "denied" Appellant's motion.3

Appellant insists he is entitled to a reversal as a result of

the district's failure to order the production of the witness and

the district court's failure to continue the trial until production

of the witness was possible. Appellant never formally requested a

continuance, nor formally petitioned the court for a writ of habeas

corpus ad testificandum. However, because the court below

understood the requests made by Appellant, we will construe the

discourse between the court and Appellant as a request for a

continuance and a petition for a writ of habeas corpus ad

testificandum. For purposes of clarity we will address each

separately.

A. Writ of habeas corpus ad testificandum

"The proper method for securing a prisoner's presence at

trial is a petition for a writ of habeas corpus ad testificandum."4

The denial of a petition for a writ of habeas corpus ad

testificandum is committed to the sound discretion of the district

court; the district court's ruling is subject to reversal on
5
appeal only upon a showing of abuse of that discretion. A

district court should consider several factors in determining

3
The district court did not formally deny the request.
Instead the court concluded the matter by stating, "I'm not aware
of a way that we can [obtain the witness]. If you can think of
anything that we can do, I'll make an effort."
4
United States v. Rinchack, 820 F.2d 1557, 1567 (11th
Cir.1987).
5
Id.
whether to issue the writ. After the defendant shows that the

presence of the witness is necessary for an adequate defense, the

district court should consider

whether the prisoner's presence will substantially further the
resolution of the case, the security risks presented by the
prisoner's presence, the expense of the prisoner's
transportation and safekeeping, and whether the suit can be
stayed until the prisoner is released without prejudice to the
cause asserted.6

We affirm the district courts denial of the writ because Appellant

failed to show that the defense witness was necessary for an

adequate defense; Appellant failed to show whether the prisoner's

presence would substantially further the resolution of the case.

Appellant contends Albert was a critical witness that would

have substantiated Appellant's defense of entrapment. However,

Appellant failed to proffer the witness's testimony to the district

court. In Rinchack this Court found the lack of a proffer

sufficient grounds to deny a writ of habeas corpus ad

testificandum.

The trial transcript from the trial reflects that [the
defendant's] request for the presence of his two codefendants
was not accompanied by any offer of proof as to the testimony
they might be expected to offer ... [T]he burden of showing
necessity and relevance is on the defendant ... [T]he failure
to carry this burden is a legitimate basis to deny a request
to procure the presence of a witness.7

The only indication of what might be expected of the witness was

the statement that Appellant would testify, and the witness's

testimony would, "in essence, be the same testimony, that they

would say the same thing." This does not constitute a proffer. A

6
Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.1977).
7
Rinchack, 820 F.2d at 1568.
proffer details the facts to which the witness is expected to

testify.8 The mere statement that the absent witness "would say

the same thing," without detailing what Appellant planned to state,

is not sufficient to show that the witness is necessary to an

adequate defense of Appellant's case.

Appellant's own testimony did not support his entrapment

defense. Appellant's underlying reason for the initial rejection
9
of the CI's offer was based on his lack of money. Once the CI

told Appellant that he would make a profit from the cocaine when it

was resold, Appellant agreed. Appellant's own testimony reveals

that it took only ten minutes for Appellant to agree to front the

money. Furthermore, Appellant admitted he had been convicted in

state court for possession of marijuana with intent to sell

approximately two years prior to the drug transaction involved in

the appeal sub judice. Appellant's own testimony does not support

a defense of entrapment.10 Even considering Appellant's statement,

8
See, e.g., United States v. Valenzuela—Bernal, 458 U.S.
858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (In
finding no violation of the defendant's Sixth Amendment right to
compulsory process, the Supreme Court stated "[the defendant]
must at least make some plausible showing of how their testimony
would have been both material and favorable to his defense.");
United States v. Conder, 423 F.2d 904 (6th Cir.) (holding that
the mere allegation that witnesses would be necessary for "alibi
as well as impeachment purposes" was too general a statement),
cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970).
9
In response to the CI's offer Appellant testified, "I
rejected it. I didn't want to deal in that kind of thing. I
didn't know too much about it. I didn't exactly cut him off. I
just let him know I just really didn't have enough money to waste
on something like that." Recapping, Appellant testified, "I only
have so much money. I only got part of my lawsuit. I don't want
to spend it on that kind of stuff...."
10
See generally Jacobson v. United States, 503 U.S. 540,
549-51, 112 S.Ct. 1535, 1541, 118 L.Ed.2d 174 (1992) (stating
"he would say the same thing" as a proffer does not support his

defense of entrapment, and therefore does not satisfy Appellant's

burden to show that the witness was necessary for an adequate

defense.

B. Continuance

The decision whether to continue a trial is committed to the

sound discretion of the district court. 11 To determine whether a

denial of a continuance is arbitrary or unreasonable, we consider:

(1) the diligence of the defense in interviewing the witness
and procuring his testimony; (2) the probability of obtaining
the testimony within a reasonable time; (3) the specificity
with which the defense was able to describe the witness's
expected knowledge or testimony; and (4) the degree to which
such testimony was expected to be favorable to the accused,
and the unique or cumulative nature of the testimony.12

Appellant's claim fails several of these criteria. First,

Appellant did not describe the witness's expected knowledge or

testimony at all. As discussed above, Appellant merely stated the

witness's testimony would be the same as his, without detailing

what his testimony would be. Second, Appellant's testimony was not

favorable to his defense of entrapment. Therefore, even had

Appellant provided the substance of the absent witness's testimony

by providing what he, the Appellant, would have said on the stand,

it would likewise be unfavorable to his entrapment defense, as well

"where the defendant is simply provided with the opportunity to
commit a crime, the entrapment defense is of little use because
the ready commission of the criminal act amply demonstrates the
defendant's predisposition").
11
United States v. Cross, 928 F.2d 1030, 1048 (11th Cir.),
cert. denied, 502 U.S. 985, 1060, 112 S.Ct. 594, 941, 116 L.Ed.2d
618 and 117 L.Ed.2d 112 (1991).
12
Id.
as cumulative of Appellant's own testimony. Third, Appellant

presented no evidence that the procurement of the witness could be

handled in a reasonable amount of time. Because Appellant failed

to show the district court abused its discretion, we affirm the

court's ruling.

II. Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support a

conviction of conspiracy to possess with the intent to distribute

cocaine, as there was no one with which to conspire. His argument

is summarized as follows: The confidential informant cannot be

considered for purposes of establishing a conspiracy because he is

an informant; Tony the Cuban, the seller, merely sold cocaine to

Appellant in a one-time, buy-sell transaction; finally, Temeka

Perry, Appellant's girlfriend, was acquitted by the district court

of participation in the conspiracy upon a finding that there was

insufficient evidence to support her role in the conspiracy.

Appellant failed to move for a judgment of acquittal at the

close of his case. Accordingly, we restrict our review of his

claims to whether his conviction resulted in a manifest miscarriage

of justice.13 "Such a miscarriage would exist only if the record

is devoid of evidence pointing to guilt,"14 or if "the evidence on

a key element of the offense was so tenuous that a conviction would

13
United States v. Jones, 32 F.3d 1512, 1516 (11th
Cir.1994).
14
United States v. Wright, 427 F.2d 1179, 1180 (5th
Cir.1970).
be shocking."15

We agree with Appellant that it takes at least two to

conspire neither of which may be government agents or informers.16

Any agreement between the CI and Appellant to buy and sell cocaine

can not form the basis of the conspiracy. The government contends,

under the narrower "manifest miscarriage of justice" standard, the

conspiracy may stand nevertheless because there is evidence that

Tony the Cuban conspired with Appellant. The record, however, is

devoid of any evidence that, beyond a single buy-sell transaction,

Tony the Cuban and Appellant conspired to distribute cocaine.

To begin with, we must note that the mere fact of the purchase
by a consumer of an amount of an illegal substance does not
make of the seller and buyer conspirators under the federal
statutes. It is well settled that the existence of a simple
buyer-seller relationship alone does not furnish the requisite
evidence of a conspiratorial agreement.17

The CI did not testify; Tony the Cuban was not apprehended. The

record reveals little conversation between Tony the Cuban and the

Appellant, and no evidence that an actual agreement was

consummated. In short, the evidence is insufficient to infer an

agreement, a conspiracy, between Appellant and Tony the Cuban based

upon their one-time transaction.

Reluctantly, we turn to whether the evidence supports a

15
United States v. Tapia, 761 F.2d 1488, 1491-92 (11th
Cir.1985).
16
United States v. Elledge, 723 F.2d 864 (11th Cir.1984);
United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.),
cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291
(1982).
17
United States v. Brown, 872 F.2d 385, 391 (11th Cir.)
(citations omitted), cert. denied, 493 U.S. 898, 110 S.Ct. 253,
107 L.Ed.2d 203 (1989).
conspiracy between Temeka Perry and Appellant. The question

becomes whether the jury can consider Perry as a co-conspirator, in

spite of the fact that the judge dismissed her case, if the jury

found the evidence sufficient to show a conspiracy between

Appellant and Perry. Until recently, this Circuit followed the

rule of consistency in conspiracy cases: "where all but one of the

charged conspirators are acquitted, the verdict against the one

will not stand."18 In 1988 the rule of consistency was overruled

by this Court, sitting en banc, in United States v. Andrews. 19

"Consistent verdicts are unrequired in joint trials for conspiracy:

where all but one of the charged conspirator are acquitted, the

verdict against the one can stand."20 The Andrews Court was faced

with inconsistent jury verdicts of conspiracy. In the appeal sub

judice, we are faced with an acquittal by the district court of one

co-conspirator, and a verdict of guilty by the jury of the other

co-conspirator. Appellant contends that because the district court

found insufficient evidence of Perry's guilt Appellant's conviction

should be overturned as there is no one left with which Appellant

could conspire. The government, on the other hand, urges us to

extend Andrews to this situation.

We feel compelled to take the next logical step on this path

of jurisprudence. The Andrews Court extended the rationale of

18
Herman v. United States, 289 F.2d 362, 368 (5th Cir.),
cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961).
19
850 F.2d 1557 (11th Cir.1988) (en banc ), cert. denied,
488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989).
20
Id. at 1559.
United States v. Powell,21 which re-affirmed the reasoning of Dunn

v. United States,22 to inconsistent conspiracy verdicts rendered by

the same jury. The traditional complaint is that if the jury

acquitted one of the two co-conspirators, the remaining

co-conspirator must also be absolved as there is no one else with

which he or she could have conspired. "There are, however,

explanations for this inconsistency that have nothing to do with

whether [the acquitted co-conspirator] actually conspired with [the

convicted co-conspirator] to commit a crime."23 The inconsistent

verdicts may be " "the result of mistake, or lenity' "24—no reason

to vacate an otherwise valid conviction. " "[T]he best course to

take is simply to insulate the verdicts from review on this

ground.' "25 With few exceptions, " "once the jury has heard the

evidence and the case has been submitted, the litigants must accept

the jury's collective judgment.' " 26 This reasoning is equally

applicable to the situation before us today.27

21
469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
22
284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932).
23
Andrews, 850 F.2d at 1561.
24
Id. at 1562 (quoting Powell, 469 U.S. at 68, 105 S.Ct. at
479).
25
Id. (quoting Powell, 469 U.S. at 69, 105 S.Ct. at 479).
26
Id. at 1561 (quoting Powell 469 U.S. at 67, 105 S.Ct. at
478).
27
We acknowledge that the Andrews Court, in a footnote,
stated, "a not guilty verdict ... is not the same thing as a
finding of insufficient evidence to allow a conviction." Id. at
1562 n. 15. Nevertheless, we see no reason not to apply Andrews
to that situation. The majority in Andrews was merely responding
to the dissent's assertion that Hartzel v. United States, 322
U.S. 680, 681 n. 1, 64 S.Ct. 1233, 1234 n. 1, 88 L.Ed. 1534
 A district court, like a jury, may make a mistake; although

federal judges, they are not infallible. The Supreme Court

recognized this fact in Harris v. Rivera.28 Addressing the

constitutionality of inconsistent verdicts in a criminal bench

trial, the Court considered different possibilities for the

inconsistent rulings. For example, in a larceny case the judge may

make an error of law and conclude that a defendant should not be

found guilty without evidence that he was to share in the proceeds

of the larceny. "Even the unlikely possibility that the acquittal

is the product of lenity that judges are free to exercise at the

time of sentencing but generally forbidden to exercise when ruling

on guilt or innocence," would cause inconsistent results without

creating a constitutional violation.29 While the Harris court found

this later possibility unlikely, we find it more likely now, as

judges are not as free to exercise lenity under the Sentencing

Guidelines. In short, judges may grant a judgment of acquittal for

reasons having nothing to do with guilt or innocence—for example,

based on a mistake of law or lenity—just as juries may. "There is

no reason—and surely no constitutional requirement—that such an

(1944) controlled. Hartzel, a pre-Powell case, in a footnote,
applied the rule of consistency to a scenario similar to the one
before us. Because we find Powell and our Circuit's application
in Andrews to have effectively abolished the rule of consistency,
we attach little substance to the footnote in Andrews. Several
courts addressing the rule of consistency, however, distinguished
pre-Powell cases on this ground. See, e.g., United States v.
Hughes Aircraft Co., Inc., 20 F.3d 974, 977 n. 4 (9th Cir.),
cert. denied, --- U.S. ----, 115 S.Ct. 482, 130 L.Ed.2d 395
(1994); United States v. Bucuvalas, 909 F.2d 593, 597 (1st
Cir.1990).
28
454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981).
29
Id. at 348, 102 S.Ct. at 465.
error pertaining to the case against [Perry] should rebound to the

benefit of [Appellant]."30 Accordingly, inconsistent verdicts,

whether provided by juries or judges, are not subject to reversal

merely because they are inconsistent.

Was the evidence sufficient to support a conspiracy between

Perry and Appellant? We think yes. Appellant has not convinced us

that his conviction should be reversed. Under the manifest

miscarriage of justice standard, reversal is required only if the

record is devoid of evidence pointing to his guilt or the evidence

of a key element is so tenuous that a conviction would be shocking.

A review of the record reveals sufficient evidence to support

Appellant's conviction. Perry was in the front seat of the Nissan

with Appellant from the moment surveillance was established. The

package of cocaine was placed in the front seat with Appellant and

Perry. Perry and Appellant entered the Winn-Dixie together to

purchase carpet freshener and fabric softener; materials known to

be used to mask the odor of cocaine. Perry and Appellant returned

to the car, whereupon the surveillance team witnessed some

upper-body movement in the front seat. The jury could have

reasonably inferred that Perry and Appellant wrapped the cocaine

with these materials. Perry then disposed of the near empty roll

of duct tape, and Appellant placed something in the trunk. When

stopped by the officers and asked where they were going, they gave

inconsistent destinations. The officers ultimately found a package

of cocaine surrounded by fabric softeners and wrapped in duct tape

in the trunk of the car. Most telling, however, was the recorded

30
Id. at 347, 102 S.Ct. at 465.
conversation between Appellant and Perry as they sat in the

officer's car. When the narcotics dog was taken to the trunk, she

exclaimed: "They know." "That's it." "Just say I don't know

anything, Norman." Appellant responded, "I'll tell them you don't

know." Appellant then told Perry to tell the officers that the

package containing the cocaine belonged to someone else. Based on

this evidence a jury could have reasonably found that Perry and

Appellant willingly conspired to possess cocaine with the intent to

distribute.

Accordingly, we AFFIRM Appellant's conviction.