UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50120
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES CLAYTON DUKES,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
April 16, 1998
Before KING, BARKSDALE and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant James Clayton Dukes (“Dukes”) appeals his
conviction after jury trial on a three count indictment for 1)
aiding and abetting distribution of cocaine base within one
thousand feet of a school (a violation of 21 U.S.C. §§ 841(a)(1) &
860), 2) possessing with intent to distribute cocaine base (a
violation of 21 U.S.C. § 841(a)(1)), and 3) conspiring to
distribute and possess with intent to distribute cocaine base
within one thousand feet of a school (a violation of 21 U.S.C. §§
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846 & 860). Dukes was sentenced to three concurrent 168 month
prison terms, supervised release and $650 in monetary sanctions.
We affirm.
FACTS
In February 1994, undercover law enforcement authorities were
investigating the drug distribution activities of Robert Long.
Long was not cooperating, but was the target of the investigation.
Long accompanied an undercover agent to Camelot Apartments and
purchased some drugs. The undercover officers did not observe from
which apartment Long procured the drugs, but concluded that it was
apartment number 1107 (or perhaps one in that vicinity). Dukes
leased apartment 1107 at that time. Long was later arrested and
agreed to cooperate with authorities. He identified Dukes as his
supplier. Agents set up two controlled buys between Long and
Dukes. In the first one, on September 22, 1994, a third party
brought the drugs to sell to Long, and Dukes kept a $50 cut out of
the transaction. Long had been fitted with a transmitting device
that allowed agents to listen to and record the transaction. On
the second attempt, on October 7, 1994, no drug sale was
consummated. After that sale fell through, there was a high speed
chase, during which Dukes threw a package of cocaine base out of
the passenger window of a car. His arrest followed, after which
Dukes made a statement that he knew there was crack in the car,
that the crack belonged to the driver, and that Dukes threw it out
on instructions from the driver.
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MOTION TO SUPPRESS
Dukes challenges the trial court’s denial of his motion to
suppress the tape recording of the controlled drug buy. We must
affirm a trial court’s ruling on a motion to suppress unless,
viewing the evidence in the light most favorable to the prevailing
party, we determine that it is clearly erroneous or influenced by
an incorrect view of the law. See United States v. Muniz-Melchor,
894 F.2d 1430, 1433-1434 (5th Cir. 1990).
Dukes moved to suppress the tapes and transcripts of the
conversations picked up over the wire Long wore during the
September 22, 1994 controlled buy. He argued, inter alia, that
Long’s chronic abuse of cocaine had rendered him incompetent to
voluntarily consent to the monitoring of his conversations, and
that the tapes were of such poor quality that they were almost
entirely unintelligible. The trial court initially announced that
it could not understand what was said on the recording, and would
not admit the recording into evidence. Later, the trial court held
a second hearing on the motion, took the question under advisement
and just prior to trial, denied the motion to suppress finding that
the recording was sufficiently intelligible and that it constituted
probative evidence. Further, the trial court found that Long gave
knowing and voluntary consent. The trial court rejected Dukes’s
allegation that Long was so addicted to drugs that he lacked
capacity to consent based on documents and testimony that indicated
that Long was drug free prior to, during and after the September
22, 1994 buy.
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a. Consent
In order to give valid consent, the person consenting to the
recording of his conversations must be mentally competent to
understand the nature of his act. See United States v. Elrod, 441
F.2d 353, 355 (5th Cir. 1971)(examining consent in the context of
a warrantless search). Further, the act of consent must be “the
consensual act of one who knew what he was doing and had a
reasonable appreciation of the nature and significance of his
actions.” Id. Dukes contends that the district court clearly
erred in denying Dukes the opportunity to prove Long’s incompetence
through a court ordered psychiatric evaluation and that the
Government failed to carry its burden of proving that the consent
was valid.
There is no precedent for allowing or requiring the district
court to order a third party witness to submit to a psychiatric
evaluation. United States v. Napier, 451 F.2d 552 (5th Cir. 1971),
relied on by Dukes, concerns an examination of an informant-
witness, but does not address the issue of whether the district
court had the legal authority to order such an examination.
Further, there is sufficient evidence in the record to support the
trial court’s finding that Long was competent to consent to the
recording. Dukes calls our attention to instances of Long’s lack
of recall under cross examination. These isolated instances, when
viewed in the context of the entire record, do not call the
district court’s finding of competency into question. We therefore
cannot say that the district court’s decision regarding Long’s
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competence was clearly erroneous or influenced by an incorrect view
of the law.
b. Reliability of recordings and transcript
The tape recordings of the wire transmissions during the
September 22, 1994 controlled buy were transcribed by a company
under contract with the Drug Enforcement Administration (“DEA”).
The transcriber noted that the tapes were flawed by “heavy
static/background noise throughout.” Further, at various places
the notations “U.I.” [for unintelligible] and “voices overlap”
indicate that it was hard to understand the content of the tape
recorded conversations. “[P]oor quality and partial
unintelligibility do not render tapes inadmissible unless the
unintelligible portions are so substantial as to render the
recording as a whole untrustworthy.” United States v. Stone, 960
F.2d 426, 436 (5th Cir. 1992). The determination of
trustworthiness of a tape recording is left to the sound discretion
of the trial judge. Id.
On reviewing the record, we have determined that the district
court’s finding that the tape recording was sufficiently
intelligible to be probative was not clearly erroneous.
AMBIGUITY OF 21 U.S.C. § 841 AND THE SENTENCING GUIDELINES
The indictment charged Dukes with violating 21 U.S.C. § 841,
which defines separate offenses for conduct involving cocaine and
cocaine base, prescribing more severe punishment for offenses
involving cocaine base. Dukes moved to dismiss the indictment
alleging that the two substances are the same, the statute is
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ambiguous and under the rule of lenity, he should be charged with
the less severe offense, citing Busic v. United States, 446 U.S.
398, 406 (1980). The district court overruled the motion without
a hearing, holding that this issue had been resolved against Dukes
by other appellate courts.
In United States v. Flanagan, 87 F.3d 121 (5th Cir. 1996),
this Court considered an argument similar to the one raised by
Dukes and rejected it. Flanagan pleaded guilty to a cocaine
distribution offense. At sentencing, he argued that he “should be
sentenced based on the penalty for powder cocaine, rather than the
penalty for crack cocaine.” Id. at 122. In support of that
position, he alleged that because the chemicals are
indistinguishable, the penalty provisions for cocaine base and
powder cocaine are ambiguous. Id. at 124. This court in Flanagan
rejected that argument, citing previous unpublished opinions and
United States v. Thomas, 932 F.2d 1085, 1090 & n.1 (5th Cir.
1991)(stating “when cocaine is changed into cocaine base, it
becomes a different chemical substance.”) Id. Dukes attempts to
distinguish his position from that rejected in Flanagan arguing
that, unlike Flanagan, he did not plead guilty to the cocaine base
offense, and his challenge attacks § 841 rather than the sentencing
guidelines. Although we have never addressed the issue in the
context of an ambiguity challenge to § 841, Flanagan’s rejection of
the ambiguity challenge in the context of sentencing guidelines
controls the issue. We therefore hold that the distinction between
powder cocaine and cocaine base made for purposes of a § 841
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conviction is not flawed by ambiguity.
Dukes also contends that the district court erred in applying
the sentencing guidelines for “cocaine base” rather than the
guidelines for “cocaine” because cocaine base and cocaine are
chemically the same substance. This argument is likewise
foreclosed by United States v. Flanagan, 87 F.3d 121 (5th Cir.
1996).
SELECTIVE PROSECUTION
Dukes moved to dismiss the indictment based on his claim that
“selective” prosecution of African-Americans for crack cocaine (as
opposed to prosecution of Anglo-Americans for “powder” cocaine
offenses) is improper. The district court rejected his request
because he failed to establish a prima facie violation.
In order to prevail on a selective prosecution claim, Dukes
must show that other similarly-situated offenders were not
prosecuted, and that the government chose to prosecute him in a
particular manner merely because he is an African-American. See
United States v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995). Dukes
argues on appeal that he was prevented from satisfying this two-
part test because the district court denied his request to hire an
expert. Again, Dukes’s argument, based on the premise that there
is no chemical difference between cocaine and cocaine base, is
foreclosed by United States v. Flanagan, 87 F.3d 121, 123-24 (5th
Cir. 1996). The inability to make even a colorable claim of
selective prosecution bars his related requests for discovery and
funds for an expert. See United States v. Cooks, 52 F.3d at 105.
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SUFFICIENCY OF THE EVIDENCE
In the face of Dukes’s challenges to the sufficiency of the
evidence, this Court must examine the evidence in the light most
favorable to the verdict and decide whether a rational trier of
fact could have found all the essential elements of the offenses
beyond a reasonable doubt. See United States v. Ayala, 887 F.2d
62, 67 (5th Cir. 1989).
a. Cocaine v. Cocaine base
Dukes contends that the evidence was insufficient to convict
him for drug offenses involving cocaine base (as opposed to powder
cocaine). Two government chemists testified that the substances
they tested were cocaine base. Other witnesses testified that the
substances were “crack” cocaine, as well. Dukes’s parsing of the
record to find instances where the evidence referred to “cocaine”
instead of “cocaine base” at best creates a fact question for the
jury. The evidence was sufficient to support the cocaine base
versus cocaine element of the guilty verdict.
b. Aiding and abetting
Dukes argues that the evidence was insufficient to prove that
he aided and abetted a person other than the government’s
informant. He claims the evidence is not sufficient to support a
finding that he intended to help the other participants in the
subject drug deals. In a related issue, Dukes contends that the
evidence supports only a finding that he intended to assist the
informant to receive the crack cocaine, not that he intended to
help someone else deliver it. The elements of aiding and abetting
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are: a person must have (1) associated with the criminal venture,
(2) participated in the venture, and (3) sought by his action to
make the venture succeed. See United States v. Stone, 960 F.2d
426, 433 (5th Cir. 1992). Dukes’s defense at trial, as well as his
position on appeal, is that he intended to help Long purchase
drugs, that Long did not have the requisite mens rea to commit a
crime because he was working as a government informant at the time
of the transaction, and that there is insufficient evidence that
Dukes intended to help the unidentified male who was the source for
the drugs. However, the evidence showed that Long did not know the
drug source, and but for Dukes’s participation, that source would
not have sold the drugs to Long. The evidence is therefore
sufficient to support a guilty verdict on the issue of aiding and
abetting the drug source, rather than Long.
Next Dukes contends that “distribution” means to deliver, but
excludes “receipt” of drugs and that the evidence only supports a
conclusion that Dukes intended to help Long receive cocaine. This
argument fails as well because the evidence is sufficient to
support a jury’s conclusion that Dukes aided and abetted the drug
source as well as Long.
c. Conspiracy
Count three of the indictment charged that from January 1,
1994 through October 7, 1994 and within 1000 feet of a public
school, Dukes conspired with persons known and unknown to violate
drug laws. Evidence was presented of specific drug transactions
involving Dukes on February 11, 1994, September 22, 1994 and
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October 7, 1994, which is sufficient to support a conspiracy within
the time parameters set out in the indictment. Further, evidence
was presented that the September 22 and October 7 transactions
occurred at Dukes’s apartment, which was within 1000 feet of a
public school. Dukes’s insufficiency argument is based on the
premise that he did not conspire with anyone other than Long at his
apartment. However, evidence was sufficient for a rational jury to
conclude that Dukes conspired with his unidentified source of
supply on September 22 and October 7. A person can be convicted
for conspiring with unknown persons, if the indictment charges
conspiracy with unknown persons and the evidence supports their
existence and their complicity in the conspiracy. See United
States v. Price, 869 F.2d 801, 804 (5th Cir 1989).
We therefore find no merit to any of Dukes’s sufficiency
arguments.
JURY INSTRUCTIONS
A district court’s refusal to give a requested jury
instruction is reviewed under the abuse of discretion standard.
See United States v. Sellers, 926 F.2d 410, 414 (5th Cir. 1991).
When an instruction is challenged on appeal, this court determines
whether “the court’s charge, as a whole, is a correct statement of
the law and whether it clearly instructs jurors as to the
principles of law applicable to the factual issues confronting
them.” United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990).
a. Aiding and abetting instruction
Dukes submitted to the district court a proposed jury
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instruction which included the following language:
The fact that the defendant may have done something
to help Robert Long acquire cocaine base does not mean he
helped another person distribute cocaine base. The
government must prove beyond a reasonable doubt that
apart from any help or encouragement the defendant may
have given Robert Long, he intentionally helped or
encouraged another person to distribute cocaine base.
Dukes also requested, and was denied, an instruction that the
jury consider only evidence of transfer, and not evidence of
distribution because evidence of helping a person receive a
controlled substance will not support a conviction for aiding a
person to distribute that substance. See United States v. Harold,
531 F.2d 704 (5th Cir. 1976). In order for a defendant to be
entitled to an instruction, “any evidence in support of a defensive
theory must be sufficient for a reasonable jury to rule in favor of
the defendant on that theory.” United States v. Stone, 960 F.2d
426, 432 (5th Cir. 1992). In Stone, this Court held that a
defendant was not entitled to a requested jury instruction where
his “theory” of defense suggested the nonexistence of one element
of the offense. Id. The Government argues that Dukes’s theory of
defense is that he did not aid the transfer of cocaine, which
theory Dukes’s counsel stressed in his final jury argument.
The refusal to give a requested jury instruction is reversible
error if the instruction (1) was substantially correct, (2) was not
substantially covered in the charge given to the jury, and (3)
concerned an important issue so that the failure to give it
seriously impaired the defendant’s ability to present a given
defense. See Stone, 960 F.2d at 432. Dukes’s jury was instructed
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that the government had the burden of proving each element,
including “that the Defendant knowingly transferred or delivered a
controlled substance,” and that “distribute” is defined as “to
deliver or transfer possession of a controlled substance to another
person, with or without any financial interest in the transaction.”
We find that the instruction given substantially covered the law,
and failure to give Dukes’s requested instruction did not seriously
impair his ability to present his chosen defense.
b. Conspiracy instruction
The district court also denied Dukes’s requested jury
instruction emphasizing that he could not conspire with Long after
Long became a government informant. The trial court noted that the
evidence established that persons other than Long and Dukes
participated in the conspiracy, including the unidentified seller
in the September 22, 1994 transaction and the source in the October
7, 1994 transaction. Dukes’s defense, that he did not conspire
with anyone, was substantially covered by the instructions on the
elements of a conspiracy offense and could have been adequately
developed under the instructions given.
c. Weight of informant’s testimony1
Dukes did not request a jury instruction regarding the fact
that Long was a paid informant. Therefore, we employ the plain
error standard of review. See United States v. Lopez, 923 F.2d 47,
1
Dukes cites only one case to support his position -- United
States v. Bradfield, 103 F.3d 1207 (5th Cir. 1997). That opinion
has been withdrawn and replaced with an opinion that specifically
declines to reach the paid informant issue. See United States v.
Bradfield, 113 F.3d 525 (5th Cir. 1997).
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49 (5th Cir. 1991).
The Government paid Long $50 on one occasion and $150 on
another occasion. The trial court’s instruction, unchallenged by
Dukes, told the jury to consider Long’s relationship with the
Government and any other factor that could influence his testimony,
but did not advise the jury that Long had received money for his
services. Dukes takes the position that it was plain error for the
trial court to fail to go further and instruct the jury to use
caution in evaluating the credibility of a paid informant.
The Government takes the position that such an instruction was
not necessary because the money paid to Long was reimbursement for
his expenses incurred as a result of his cooperation and not
payment for his services. Further, the instruction given was
adequate to caution the jury concerning Long’s possible bias.
The Fifth Circuit, sitting en banc in 1987, eliminated the
longstanding per se rule (and its myriad exceptions) that an
informant who was paid a contingency fee for the conviction of a
pretargeted individual was not competent to testify. See United
States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). That
case imposed restrictions on the admissibility of such testimony,
including a requirement that the district court instruct the jury
specifically on the suspect credibility of a compensated witness.
See id. at 316.
There is no evidence in the record that would support the
conclusion that Long was compensated on a contingent basis.
However, even if Long was a compensated witness, this court need
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not correct forfeited errors that do not affect the fairness,
integrity and public reputation of the judicial process. See
United States v. Olano, 507 U.S. 725, 732 (1993). The cautionary
instructions given by the district court concerning Long’s
credibility are adequate to protect the truth seeking function of
the jury. Therefore, even if the district court erred in failing
to instruct the jury concerning the Government’s payments to Long,
we elect not to correct such error, because it did not affect
Duke’s substantial rights.
DISCOVERY
Dukes argues that he was denied the opportunity to examine and
test the cocaine base. The district court overruled Dukes’s motion
for an order requiring the Government to produce the drugs for
inspection and testing, holding that the record established that
the Government had fulfilled all of its discovery obligations to
Dukes. We review alleged discovery violations under the abuse of
discretion standard. See United States v. Bullock, 551 F.2d 1377,
1384 (5th Cir. 1977). An error in administering the discovery
rules is not reversible absent a showing that the error was
prejudicial to the substantial rights of the defendant. Id.
In its order denying Dukes’s motion for new trial the trial
court stated:
[T]he Government unambiguously agreed to permit Dukes to
test the cocaine base subject only to his compliance with
Drug Enforcement Agency safekeeping procedures and
offered to discuss with his counsel “the mechanics of how
to do it.” There is no record that Dukes ever attempted
to comply with these relatively straightforward
procedures or that he otherwise contested their
applicability. Nor did he bring any issue in this regard
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to the Court’s attention during the following nine months
preceding trial, other than to make generalized, non-
specific requests for discovery. In these circumstances,
any prejudice Dukes suffered was of his own making.
The Government does not dispute Dukes’s right to inspect and
test the evidence pursuant to Fed. R. Crim. P. 16(a)(1)(C).
Rather, it contends that Dukes could have had the cocaine base
tested had he complied with the DEA procedures for doing so. The
record contains letters from the prosecutor to Dukes’s counsel
dated November 20, 1995 and January 31, 1996 advising him of the
DEA’s procedural requirements for having a chemist of defendant’s
choice independently test the controlled substance. There is no
indication in the record that Dukes made any attempt to comply with
the stated procedures. Therefore, the district court did not abuse
its discretion regarding Dukes’s right to inspect and test the
cocaine base. Further, Dukes has not shown that the denial
prejudiced his defense.
CONCLUSION
For the foregoing reasons, we affirm Dukes’s convictions and
sentences.
AFFIRMED.
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