UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JEFFREY MATTHEWS, MICHAEL COOK,
Defendants - Appellants.
Appeals from the United States District Court
for the Western District of Texas
June 4, 1999
Before JONES, DUHÉ, BARKSDALE, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
A jury convicted Jeffrey Matthews (“Matthews”) and Michael
Cook (“Cook”) of carjacking pursuant to 18 U.S.C.A. § 2119 (West
Supp. 1999), conspiracy to commit carjacking pursuant to 18
U.S.C.A. § 371 (West Supp. 1999), and using or carrying a firearm
during a carjacking pursuant to 18 U.S.C.A. § 924(c) (West Supp.
1999). The Defendants make the following six arguments on appeal:
(1) their antagonistic defenses and the introduction of the
redacted statement of the other required a severance; (2) 18
U.S.C.A. § 2119(2) is an element of carjacking rather than a
sentence enhancement statute; (3) 18 U.S.C.A. § 521 is a separate
offense rather than a sentence enhancement statute; (4) the
testimony of F.B.I. Agent Walter Henry during the sentencing phase
was inadmissible hearsay; (5) the testimony of a gang expert was
not based on reliable methodology in violation of Daubert; and (6)
the government presented insufficient evidence of gang activity to
support Matthews’ sentence enhancement under § 521. We vacate in
part, remand in part for re-sentencing and affirm the Defendants’
convictions.
BACKGROUND
On March 2, 1995, Matthews, Cook, and two others followed
Terrie Dittman (“Dittman”) driving home in her new van. After she
pulled into her driveway, Matthews pointed a gun at Dittman through
the driver’s side window and demanded her car. When Dittman
attempted to flee by backing out of the driveway, Matthews shot the
gun into her car five times hitting her several times and wounding
her. Upon hearing the shots, Cook drove away leaving Matthews at
the scene. Matthews stole another car from the neighborhood to
escape.
Later that evening, the group reunited at the apartment of Pam
Douglas and Teana Williams. Douglas and Williams testified
Matthews bragged to the others that he shot a woman in an attempt
to steal her van. The police apprehended Cook the next day while
he and Matthews were driving the car Matthews had stolen the
previous night. The police recovered the gun used in the shooting.
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Ultimately, the police apprehended Matthews as well.
The Defendants were tried jointly. Each Defendant accused the
other of shooting Dittman. Matthews claimed he was innocently
driving the car when the shooting occurred, while Cook claimed he
innocently sat in the back seat when the shooting occurred. Neither
Defendant testified at trial. The government offered the
Defendants’ redacted post-arrest written statements containing
these accusations at trial. In Matthews’ statement, all references
to Cook were stricken, and in Cook’s statement, all references to
Matthews were stricken as well. The officers who took their
statements read them aloud at trial substituting the word “blank”
for any stricken name or pronoun. Each Defendant’s lawyer elicited
the stricken name of the non-speaking Defendant when cross
examining the officer reading the statement. The Defendants moved
unsuccessfully for severance and for a mistrial.
A jury convicted both of carjacking pursuant to 18 U.S.C.A. §
2119 (West Supp. 1999), pursuant to conspiracy to commit carjacking
18 U.S.C.A. § 371 (West Supp. 1999), and using or carrying a
firearm during a carjacking pursuant to 18 U.S.C.A. § 924(c) (West
Supp. 1999). The district court enhanced Matthews’ carjacking
sentence pursuant to 18 U.S.C.A. § 2119(2) (West Supp. 1999)
because he inflicted serious bodily injury upon Dittman, and
enhanced his conspiracy to commit carjacking sentence under the
criminal street gangs statute, 18 U.S.C.A. § 521 (West Supp. 1999).
The Defendants appeal.
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DISCUSSION
I. Severance
Appellants argue the district court abused its discretion in
denying their motions for severance. They contend the admission of
the other’s statement violated their Sixth Amendment right to
confront witnesses. See Gray v. Maryland, 118 S. Ct. 1151, 1155
(1998); Bruton v. United States, 391 U.S. 123, 126 (1968). Cook
also contends their antagonistic defenses required a severance.
The government counters that the district court did not abuse its
discretion because it was guided by the law in effect at the time
of trial, and Gray was not decided until after the Defendants were
tried. Alternatively, the government argues any error in denying
a severance was harmless or invited error. Finally, the government
contends that a severance is not automatically required when co-
defendants present antagonistic defenses, and that, on closer
examination, the Defendants’ defenses are not mutually exclusive.
District court may grant a severance “[i]f 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.” Fed. R. Crim. P. 14. We review the denial of
severance for an abuse of discretion. See United States v. Pofahl,
990 F.2d 1456, 1483 (5th Cir. 1993). To prevail, "a defendant must
show that he suffered specific and compelling prejudice against
which the district court could not provide adequate protection, and
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that this prejudice resulted in an unfair trial." United States v.
Mitchell, 31 F.3d 271, 276 (5th Cir. 1994). However, we must also
balance the possibility of prejudice against the interest of
judicial economy. See United States v. Posada-Rios, 158 F.3d 832,
863 (5th Cir. 1998).
A. Antagonistic Defenses
Because each Defendant’s defense strategy was to implicate the
other, Cook argues he was prejudiced by Matthews’ attorney’s
efforts to convict Cook in defending Matthews. Cook contends he
was “facing an extra prosecutor” in Matthews’ attorney which
resulted in severe prejudice requiring a severance. United States
v. Romanello, 726 F.2d 173, 179 (5th Cir. 1984). Considering the
interest of judicial economy, Cook also argues that trying only two
defendants separately would not have been very time consuming. See
Schaffer v. United States, 221 F.2d 17, 19 (5th Cir. 1955).
Severance is not automatically required when co-defendants
present mutually antagonistic defenses. See United States v.
Zafiro, 506 U.S. 534, 538-39 (1993) (holding Rule 14 does not
require severance even if prejudice is shown leaving the tailoring
of relief granted to the district court's discretion); United
States v. Mann, 161 F.3d 840, 863 (5th Cir. 1998). The government
argues the district court’s limiting instructions were sufficient
to cure any prejudice caused by the Defendants’ mutual accusations.
The government also asserts the Defendants’ defenses are not truly
mutually exclusive and that, assuming their accusations are true,
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the Defendants would still have been subject to criminal liability
as aiders or abetters.
Assuming without deciding that the Defendants’ defenses were
mutually antagonistic, the court’s limiting instructions were
sufficient to cure any prejudice. See Mann, 161 F.3d at 863
(holding where defendants present antagonistic defenses,
instructions to consider the evidence as to each defendant
separately and individually, and not to consider comments made by
counsel as substantive evidence, cure any prejudice caused when co-
defendants accuse each other of the crime) (quoting United States
v. Stouffer, 986 F.2d 916, 924 (5th Cir. 1993)); United States v.
Castillo, 77 F.3d 1480, 1491 (5th Cir. 1993) (stating
determinations concerning risk of prejudice resulting from
antagonistic defenses must be left to discretion of district court
to give weight to rule that persons indicted together be tried
together in conspiracy cases). The district court instructed the
jury:
A separate crime is charged against one or more of the
defendants in each count of the indictment. Each count,
and the evidence pertaining to it, should be considered
separately. Also, the case of each defendant should be
considered separately and individually. The fact that
you may find one or more of the accused guilty or not
guilty of any crime charged should not control your
verdict as to any other crime or defendant. You must
give separate consideration to the evidence as to each
defendant.
Of course, any such statement [claimed to have been made
by a defendant outside of the court] should not be
considered in any way whatsoever as evidence with respect
to any other defendant on trial. With respect to answers
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to questions posed by counsel for Defendants, you are to
disregard the mention in any out-of-court statement
allegedly made by one defendant in the name of another
defendant in this case.
Because “mutually antagonistic defenses are not prejudicial pre se”
and “Rule 14 leaves the determination of risk of prejudice and any
remedy that may be necessary to the discretion of the district
courts”, we hold the district court did not abuse its discretion in
denying Matthews a severance. Zafiro, 506 U.S. at 541.
B. Redacted Statements
Each Defendant argues the introduction of the other’s redacted
statement prejudiced him severely therefore requiring a severance.
They rely on Bruton v. United States, 391 U.S. 123 (1968) (holding
that the confession of a non-testifying co-defendant is admissible
only against himself and only if it does not implicate the other
defendant) and Gray v. Maryland, 118 S. Ct. 1151, 1155 (1998)
(holding that a redaction that replaces a defendant’s name with an
obvious indication of deletion, such as a blank space, still falls
within Bruton’s protective rule), arguing that the introduction of
their statements violated their Sixth Amendment right to confront
witnesses.
The government responds that the district court did not abuse
its discretion in allowing the redacted statements, because it is
guided by the law in force at the time the Defendants were tried.
Additionally, the government argues even if the district court
erred, it was either harmless or invited error.
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New constitutional rules of law always apply retroactively to
criminal cases pending on direct review. See Brecht v. Abrhamson,
507 U.S. 619, 634 (1993) (citing Griffith v. Kentucky, 479 U.S.
314, 320-328(1987)). The government cites cases that clearly do
not support its position. Gray represents an extension in the law
from Bruton, requiring that the trial court either grant a
severance or exclude the redacted statements from evidence. Gray,
118 S. Ct. 1151, 1155.1 Because the introduction of the
Defendants’ redacted statements are now error under Gray, the
remaining issues are whether this error was invited or harmless.
The government argues the district court’s error was invited
because both of the Defendants’ attorneys elicited testimony from
the officers reading the statements identifying the non-testifying
co-defendant. See United States v. Reyes-Alvarado, 963 F.2d 1184,
1187 (9th Cir. 1992) (“a defendant who elicits a statement that may
be violative of Bruton may not later claim error based on the
admission of that statement.”); United States v. Raymer, 876 F.2d
383, 388 (5th Cir. 1989) (“when injection of inadmissible evidence
is attributable to the actions of the defense, the defense cannot
1
Although we recently held, post-Gray, that a redacted statement
does not violate Bruton if certain precautionary measures are
taken, that holding is inapposite because in the instant case the
statement did not meet those criteria. See United States v. Vejar-
Urias, 165 F.3d 337, 340 (5th Cir. 1999) (holding there is no
Bruton violation where the defendant’s name is replaced with a
neutral pronoun, the identification of the defendant is obvious
only by reference to evidence other than the redacted statement,
and the court gives limiting instructions).
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later object to such ‘invited error’.”) However, the doctrine of
invited error does not resolve this issue. The error was not that
officers’ testimony revealed the identity of the non-speaking
Defendant in the redacted statements, but that the statements were
introduced at all, thus violating Gray.
The government also contends that the introduction of the
redacted statements was harmless error because there was
overwhelming evidence of the Defendants’ guilt excluding the
redacted statements. See United States v. Vejar-Urias, 165 F.3d
337, 340 (5th Cir. 1999) (“a Bruton error may be considered
harmless when, disregarding the co-defendant's confession, there is
otherwise ample evidence against a defendant.")
The record reveals the following evidence in support of
Matthews’ conviction: (1) Nicholson2, Williams, and Douglas
testified that Matthews bragged about shooting Dittman and
attempting to steal her van; (2) Nicholson testified that Matthews
rode in the front seat of the Chevette while they followed the van,
and that Matthews took Cook’s gun and exited the vehicle; (3)
Williams and Douglas testified that Matthews said he escaped from
the scene by stealing a red car; (4) Douglas testified that
Matthews told her he would not be caught for the shooting because
Cook was arrested with the gun Matthews used; and (5) Matthews told
police he was involved in a carjacking, and told Williams several
2
Nicholson also rode in the Chevette during the carjacking.
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weeks before the incident that he was interested in getting a van.
The record reveals the following evidence in support of Cook’s
conviction: (1) Nicholson testified that Cook drove the Chevette
following the van, gave Matthews the gun he used to shoot Dittman,
and tried to locate and aid Matthews after the shooting; (2)
Douglas and Williams testified that Cook carried the Chevette keys
that night and asked where Matthews was; (3) the police recovered
the gun from the shooting when they apprehended Cook; (4) Cook told
police that he owned the gun used in the shooting; and (5) Cook
defied two court orders requiring him to be photographed and
measured. Because this evidence is more than sufficient to render
the district court’s error harmless, the Defendants’ arguments
fail.
II. Sentencing
The district court enhanced Matthews’ sentence for carjacking
pursuant to 18 U.S.C.A. § 2119(2) (West 1999) because he inflicted
serious bodily injury upon his victim. The district court also
enhanced his conspiracy conviction pursuant to 18 U.S.C.A. § 521
(West 1999) because of his involvement with and promotion of
criminal street gangs. Matthews argues that § 2119(2)’s “serious
bodily injury” requirement is an element of the offense of
carjacking and that § 521 is a separate offense rather than a
sentence enhancement statute. He asserts the government’s failure
to allege and prove these elements beyond a reasonable doubt
violated his Fifth Amendment Due Process rights and his Sixth
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Amendment right to trial by jury and to receive notice of the
nature of the charges against him. He also argues the district
court erred in finding the evidence sufficient to support his
sentence enhancement for gang involvement pursuant to § 521.
A. Section 2119(2)
Section 2119(2)provides
[w]hoever, with the intent to cause death or serious
bodily harm takes a motor vehicle . . . from the person
or presence of another by force and violence or by
intimidation, or attempts to do so shall . . . (2) if
serious bodily injury . . . results, be fined under this
title or imprisoned not more than 25 years.
18 U.S.C.A. § 2119(2) (West Supp. 1999).3 This section allows an
increased penalty for an offender who, in the course of carjacking,
causes serious bodily injury. The district court construed §
2119(2) as a sentence enhancing provision rather than an element of
the crime, allowing the government to prove serious bodily injury
only by a preponderance of the evidence rather than beyond a
reasonable doubt. Additionally, this subsection was not included
in Matthews’ indictment or the jury charges.
The Supreme Court has resolved this issue since Matthews was
tried and the parties submitted their briefs. In Jones v. United
States, 119 S. Ct. 1215, 1228 (1999), the Court construed §
2119(1), (2) & (3) “as establishing three separate offenses by the
specification of distinct elements, each of which must be charged
3
Section 2119(1) imposes only a 15 year maximum for carjacking
without serious bodily injury.
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by indictment, proven beyond a reasonable doubt, and submitted to
a jury for its verdict.” Because the serious bodily injury aspect
of § 2119(2) was not included in the indictment or presented to the
jury, we vacate Matthews’ sentence for carjacking and remand to the
district court for re-sentencing consistent with Jones and the
lower maximum imprisonment of § 2119(1).
B. Section 521
Section 521(b) provides that “[t]he sentence of a person
convicted of an offense described in subsection (c) shall be
increased by up to 10 years if the offense is committed under the
circumstances described in subsection (d).” 18 U.S.C.A. §
521(b)(West Supp. 1999). Section 521 allows a district court to
enhance the sentence of a defendant who:
(1) participates in a criminal street gang with knowledge
that its members engage in or have engaged in a
continuing series of offenses described in subsection
(c); (2) intends to promote or further the felonious
activities of the criminal street gang or maintain or
increase his or her position in the gang; and (3) has
been convicted within the last 5 years [of a crime within
several categories listed in the statute.]
Id. § 521(d). The district court construed § 521 as a sentence
enhancing statute rather than a separate offense enhancing
Matthews’ sentence for conspiracy by two years. We review the
district court’s interpretation of a statute de novo. See United
States v. Hebert, 131 F.3d 514, 525 (5th Cir. 1997), cert. denied
118 S. Ct. 1271 (1998).
1. Separate Offense or Sentence Enhancement?
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Matthews argues that § 521 is a separate offense that must be
charged by indictment, proven beyond a reasonable doubt, and
submitted to a jury for its verdict as required by the Fifth and
Sixth Amendments. He offers no support for his construction of the
statute. The government contends that § 521's text and structure,
legislative history, and interpretation by the Sentencing
Commission establish that it is a sentence enhancement statute and
not a separate offense.
In determining whether a statute is a separate offense or
merely a sentencing factor, “we look to the statute's language,
structure, subject matter, context, and history--factors that
typically help courts determine a statute's objectives and thereby
illuminate its text.” Almendarez-Torres v. United States, 118 S.
Ct. 1219, 1223 (1998). The government argues the text of § 521
demonstrates it is a sentence enhancement because § 521 does not
contain any substantive crimes and explicitly refers to the crimes
a person must be convicted of to suffer a penalty enhancement under
this section. The government also asserts that § 521's heading,
“Penalty”, denotes it as a penalty enhancing statute rather than a
separate substantive crime.
The government argues that § 521's legislative history and
treatment by the Sentencing Commission removes any doubt on the
issue. A House Conference Report described legislation proposing
§ 521 as “an amendment to provide increased penalties for Federal
gang crimes.” H.R. Conf. Rep. No. 103-711, 103d Cong., 2d Sess.
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394 (1994). Legislators drafting the Violent and Repeat Juvenile
Offender Act of 1997 and attempting to amend § 521 by changing it
into a separate offense recognized that the current version of §
521 is merely a penalty enhancement statute.
Currently, 18 U.S.C. 521 provides an additional sentence
of up to 10 years for a gang member who [violates § 521].
Section 203 [of the bill] amends this section to address
what the Committee believes is the evolving, broader
nature of gang crime. In place of the sentence
enhancement in current law, section 203 creates a
separate criminal offense for the serial commission of
various predicate gang crimes.
S. Rep. No. 105-108, 105th Cong., 1st Sess. 82 (1997).
Additionally, the Sentencing Commission’s classification of § 521
as a sentence enhancement provision rather than a criminal offense
supports the government’s position. We are persuaded by the
overwhelming evidence of Congress’ intent regarding § 521. For the
above reasons, we hold that § 521 is a sentence enhancement statute
rather than a separate offense.
2. Sufficiency
Matthews argues that the district court erred in finding his
conduct furthered criminal gang activity and maintained his
position within the gang supporting its two year enhancement
pursuant to § 521. We review the factual findings of a district
court regarding sentencing for clear error. See United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1133 (5th Cir. 1993).
Matthews contends this was a crime of opportunity rather than
a crime contemplated by § 521. He relies solely on Nicholson’s
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testimony that there was no agreement to commit a carjacking.
The government presented the following evidence during the
sentencing phase of the trial: (1) Matthews was a member of the
Crips gang; (2) the other three occupants of the Chevette were also
gang members or gang affiliated; (3) Matthews previously stole the
gun used in the carjacking and gave it to Cook, a gang leader, who
loaned it to Matthews during the carjacking; (4) Cook was
apprehended in the car Matthews stole to escape from the scene of
the carjacking; and (5) Matthews bragged about the carjacking to
gang affiliates. Based on the above evidence, we cannot hold the
district court clearly erred in finding Matthews’ activities
furthered gang activity and maintained or increased his status in
the gang.
III. Evidence
Matthews contends that the district court abused its
discretion in allowing hearsay testimony concerning his gang
affiliation in violation of his Sixth Amendment confrontation
rights and testimony of a “gang expert” at his sentencing hearing
in violation of Daubert.
A. Hearsay
F.B.I. Agent Walter Henry testified at Matthews’ sentencing
hearing essentially summarizing testimony or statements of Cook,
Douglas, Williams and Nicholson concerning Matthews’ gang ties.
Matthews argues that Henry’s testimony violates his Sixth Amendment
confrontation right because he was denied the opportunity to cross-
15
examine the declarants of these statements.
The government argues that Henry’s testimony was proper
relying on United States v. Goldfaden, 959 F.2d 1324 (5th Cir.
1992). There we held:
[g]enerally, sentencing proceedings do not offer
criminal defendants the same procedural safeguards as
trials. Accordingly, sentencing courts may rely on
reliable information, including hearsay, in imposing
sentences. Indeed, the Federal Rules of Evidence
expressly exclude sentencing hearings from the hearsay
rules.
Id. at 1330 (citing McMillan v. Pennsylvania, 477 U.S. 79, 91,
(1986) and Fed. R. Evid. 1101(d)(3)) (other internal citations
omitted).
The district court’s decision was within its discretion
because the Agent’s testimony was sufficiently reliable and was
duplicative of other evidence presented at trial and in the
sentencing phase.
B. Daubert
Matthews argues the district court abused its discretion in
allowing a “gang expert” to testify regarding Matthews’ gang
affiliation at his sentencing hearing in violation of Daubert.v.
Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 (1993). Detective
Dyer, an officer of San Antonio Police Department’s gang
investigation unit, testified at Matthews’ sentencing hearing
concerning the Crip gang’s influence, gang leadership, gang
terminology and tatoos, and a gang database kept by the department.
He identified Matthews as a gang member and testified Matthews was
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documented as a gang member in the database about six times.
Matthews argues that Dyer’s methodology was unreliable, not subject
to peer review, and not generally accepted within the scientific
community as Daubert requires.
The government argues that Dyer’s testimony was clearly
admissible because he previously testified as an expert in local
gangs at least twenty times. Additionally, the government argues
his testimony was proper because Daubert interpreted Fed. R. Evid.
702, and the Federal Rules of Evidence do not apply to sentencing
hearings. See United States v. Paden, 908 F.2d 1229, 1235 n.3 (5th
Cir. 1990); Fed. R. Evid. 1101(d)(3). Finally, the government
argues Daubert is inapplicable to Dyer’s testimony because Daubert
only applies to “scientific” experts rather than an expert in
criminal activity. See United States v. Williams, 81 F.3d 1434,
1441-42 (7th Cir. 1996).
We review a district court’s decision to admit or exclude
expert testimony for abuse of discretion. See Moore v. Ashland
Chemical, 151 F.3d 269, 274 (5th Cir. 1998) (en banc) (citing
General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139
L.Ed.2d 508 (1997)). Even assuming that an abuse of discretion
occurred, the erroneous admission of expert testimony is subject to
harmless error analysis. See United States v. Griffith, 118 F.3d
318, 323 (5th Cir. 1997). We need not determine the effects of
Daubert on non-scientific expert testimony at sentencing in light
of the Supreme Court’s recent decision in Kumho Tore Co., Ltd. v.
17
Carmichael, 119 S Ct. 1167 (1999) (holding Daubert’s “gatekeeping”
obligation applies to not only scientific testimony, but to all
expert testimony), because the remaining non-expert evidence of
Matthews’ gang related activities at sentencing is sufficient to
support the enhancement under § 521. Agent Henry, Nicholson,
Williams, and Douglas supplied the factual testimony presented by
the government supporting the enhancement. For the above reasons,
we affirm the district court’s enhancement of Matthews’ sentence
pursuant to § 521.
CONCLUSION
For the above reasons, we vacate Matthew’s carjacking sentence
and remand to the district court for re-sentencing in light of
Jones v. United States, 119 S. Ct. 1215, 1228 (1999). In all other
respects the district court is affirmed.
AFFIRMED in part; VACATED and REMANDED in part.
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