United States v. Brown

REVISED, JUNE 29, 2000

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-20219

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES BROWN; TYRONE BONNER;
SYLVESTER LEWIS; ALFRED LEWIS;
MYREON PEARSON; KEVIN RANDLE;
JOE LEWIS RANDLE, A/K/A JODY;
GRACIE RANDLE; AND TRAVIS RANDLE,

Defendant-Appellant.

Appeals from the United States District Court for the
Southern District of Texas, Houston Division

June 26, 2000

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.

EDITH H. JONES, Circuit Judge:

Appellants Charles Brown (“Charles”), Tyrone Bonner

(“Bonner”), Sylvester Lewis (“Sylvester”), Alfred Lewis (“Alfred”),

Myreon Pearson (“Pearson”), Kevin Randle (“Kevin”), Joe Lewis

Randle (“Joe”), Gracie Randle (“Gracie”), and Travis Randle

(“Travis”) were convicted by a jury of various federal offenses

related to their participation in a drug trafficking conspiracy in
Richmond, Texas. They variously appeal their convictions and

sentences. We affirm the district court in all respects.1

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 1995, the Richmond Police Department (“RPD”)

requested assistance from the Drug Enforcement Administration

(“DEA”) in investigating local drug trafficking activities,

including an area known as Mud Alley. DEA met several times with

the RPD to determine the nature and extent of the local problem.

Ultimately, DEA Agent Rogers received permission from his

supervisors to assist the RPD in a joint investigation. No RPD

officer was to be used to make undercover buys, however, and Agent

Rogers would determine whom to target in the investigation.

Mud Alley, a two to three block area located near

downtown Richmond, is a small, close-knit community. Surveillance

of the area was thus difficult, forcing RPD officers and DEA agents

to use a variety of techniques to investigate suspected drug

trafficking. Paid confidential informants introduced agents to

suspects and assisted agents in making undercover crack cocaine

purchases. Agents also conducted video surveillance of the area,

where they observed a typical transaction called a “car run.” In

1
The government suggested in a Rule 28(j) letter that we may lack
jurisdiction over the appeals of Kevin, Joe and Sylvester because the trial court
allegedly failed to rule on their post-verdict motions for judgments of
acquittal. We do not read the district court record in the same way and hence
find no jurisdictional defect.

2
a car run, a prospective buyer would stop his or her vehicle on a

Mud Alley street and wait for prospective sellers to approach.

When the crack sale was completed, the suppliers would retire to

nearby buildings and the buyer would drive on. After agents video

recorded car runs, RPD patrol officers would conduct traffic stops

of the buyers. Some of these buyers cooperated with law

enforcement by permitting video cameras to be installed in their

vehicles during later Mud Alley purchases.

Agents installed a video camera in a residence near Mud

Alley with the help of a cooperating defendant. The video

recordings showed people smoking crack cocaine and dealing in

marijuana and crack cocaine.

On August 29, 1996, a grand jury issued a thirteen count

superseding indictment against eighteen defendants for federal drug

trafficking offenses. Each defendant, including the nine

appellants here, was charged with conspiring, from March 1989 to

June 28, 1996, to possess with intent to distribute crack cocaine.

Alfred, Gracie, Joe, and Charles were charged with distribution of

crack cocaine, and Travis, Alfred and Sylvester were charged with

aiding and abetting its distribution. See 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii), (b)(1)(c), and 846 and 18 U.S.C. § 2.

During trial, several cooperating defendants testified

pursuant to plea agreements that they supplied cocaine to the

3
Richmond area or sold crack to individual street level dealers in

Mud Alley.2 This testimony, in conjunction with the evidence

provided by the joint DEA and RPD investigation, established that

Travis, Sherman Elder (“Elder”), and Darin Boone (“Darin”) were Mud

Alley’s main suppliers of crack cocaine. Travis supplied Darin and

Andre Johnson (“Andre”) with crack. Darin, Travis, and Elder

supplied crack to Kevin Starks and Harris and appellants Pearson,

Charles, Kevin, Joe, Sylvester, Alfred, and Bonner, who in turn

sold it via street sales or car runs. Travis stored crack at his

grandmother Gracie’s house, and Gracie sold crack supplied by

Travis. The appellants were convicted.

The district court sentenced the appellants as follows:

Charles received 188 months imprisonment; Alfred 262 months;

Sylvester 45 months; Pearson 188 months; Gracie 5 months; Kevin 240

months; Joe 120 months; Bonner 240 months; and Travis 304 months,

as well as one year on Count 13. In addition, the district court

levied fines, special assessments and terms of supervised release.

This appeal followed.3

2
The testifying codefendants were Darin Boone; Sherman Elder; Andre
Johnson; Henry Harris; Kevin Starks; and Angie Brown.
3
In addition to appealing specifically the counts for which they were
individually convicted, appellants Alfred, Charles, Joe, and Sylvester have
adopted and incorporated by reference the grounds of error contained in the
briefs of their co-appellants pursuant to Federal Rule of Appellate Procedure
28(i).

4
 II. ANALYSIS

A. Challenges to Sufficiency of the Evidence

All of the appellants contend that there was insufficient

evidence to support their convictions. This court reviews the

evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979).4

1. Evidence of Conspiracy to Possess with Intent to Distribute

In challenging their convictions for conspiracy to

possess with intent to distribute crack cocaine, appellants assert

either that they were only buyers and sellers or that if there

existed any conspiracy at all, there existed multiple conspiracies.

To establish a drug conspiracy under 21 U.S.C. § 846, the

government had to prove that an agreement existed between two or

more persons to violate the narcotics laws, that each alleged

conspirator knew of and intended to join the conspiracy, and that

each one voluntarily participated. United States v. Inocencio, 40

F.3d 716, 725 (5th Cir. 1994). A conspiratorial agreement may be

4
This court does not weigh the evidence or assess the credibility of
witnesses. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86
L.Ed.680 (1942). The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence.
United States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995).

5
tacit and may be proved by circumstantial evidence, including

evidence of concerted action among co-conspirators. Id. Although

mere presence at the scene of the crime is not sufficient by itself

to authorize a conviction, the jury may consider that fact together

with other evidence of guilt in reaching its verdict. United

States v. Parrish, 736 F.2d 152, 157 (5th Cir. 1984).

The evidence to support the verdict of a single

conspiracy is plentiful and painstakingly documented. As has been

stated, Travis, Darin, and Elder were the main crack cocaine

suppliers in Mud Alley during the conspiracy’s time frame of March

1989 to June 1996. They supplied crack to appellants Pearson,

Charles, Kevin, Joe, Sylvester, Alfred and Bonner, who in turn sold

it via street sales or car runs. Travis retrieved crack from

Gracie’s business, and Gracie sold crack supplied by Travis.

Appellants shared the same motive -- distribution of crack cocaine

for financial gain -- and were dependent upon one another for the

success of the venture -- warning each other of police activity and

referring customers to each other when unable to supply customers

themselves. Interconnecting family relationships also support the

inference of a conspiracy. We will not burden this opinion with

sale-by-sale recitation of appellants’ involvement. In sum, the

appellants’ concerted action to run an open-air market for crack

cocaine in Mud Alley belies their claim of individual buyer-seller

6
relationships. Further, the district court instructed the jury on

appellants’ claim of multiple conspiracies, enabling the jury to

choose which theory better suited the facts. There is no basis to

disturb the jury’s choice.

2. Evidence of Distribution

Alfred, Gracie, Joe, and Charles argue that there was

insufficient evidence to support their convictions for distribution

of crack cocaine. Illegal distribution requires proof that the

defendant (1) knowingly (2) distributed (3) the controlled

substance. See United States v. Sotelo, 97 F.3d 782, 789 (5th Cir.

1996); see also 21 U.S.C. § 841(a)(1). The statutory definition of

“distribute” is to deliver, other than by administering or

dispensing, a controlled substance. 21 U.S.C. § 802(11). The

term “distribute” is broader in scope than the term “sale”, see

United States v. Workopich, 479 F.2d 1142, 1147 n. 6 (5th Cir.

1973), and is defined broadly enough "to include acts which perhaps

traditionally would have been defined as mere aiding and abetting."

United States v. Oquendo, 505 F.2d 1307, 1310 n. 1 (5th Cir. 1975).

Evidence of specific transactions supports these

appellants’ convictions for the distribution of crack cocaine. For

instance, Agent McDonough testified that Charles distributed crack

to her in a hand-to-hand sale on May 31, 1995 (Count 8). Agent

McDonough and Informant Mendez testified that on May 31, 1995 they

7
went to Mercy Randle’s house where they asked to buy crack from

Joe, Mercy’s son. Joe did not have any but, accompanied by Mendez

and Agent McDonough, he obtained the crack cocaine from a Mud Alley

location and provided it to McDonough, who paid Joe about $100

(Count 7). Agent McDonough testified that on May 31, 1995 she and

an informant bought $100 worth of crack cocaine from Gracie at “The

Freeze,” Gracie’s place of business (Count 6). Agent Johnson

testified that Alfred sold him crack cocaine. (Count 5).

Notwithstanding appellants’ protestations, the jury could easily

have credited the government’s witnesses in these dealings.

3. Evidence of Aiding and Abetting Distribution

Travis, Alfred, and Sylvester contend that there was

insufficient evidence to support their convictions for aiding and

abetting in the distribution of crack cocaine. To support aiding

and abetting convictions, the government had to prove that the

appellants associated with a criminal venture, participated in it,

and sought by their actions to make the venture succeed. United

States v. Holley, 23 F.3d 902, 908 (5th Cir. 1994). On May 9,

1995, according to cooperating codefendant Andre Johnson and Agent

Porter, Travis aided and abetted Andre in selling $500 of crack

cocaine to DEA Agent Porter and informant K-9; among other things,

he and Andre discussed whether Porter was a police officer. (Count

4). And on July 13, 1995, Agent Porter and a confidential

8
informant purchased cocaine at Sylvester’s house near Mud Alley.

Sylvester received the informant’s money but, because he was unable

to deliver the full agreed amount of crack, Sylvester dispatched

Alfred on two trips to obtain the rest of the crack. The

government’s theory, supported by the evidence, was that Sylvester

and Alfred aided and abetted each other. (Count 10).

B. Witness Harassment under 18 U.S.C. § 1512(c)(1)

Count 13 of the superseding indictment charges Travis

with violating 18 U.S.C. § 1512(c)(1) by sending a harassing letter

to witness Darin Boone. Travis contends that the indictment fails

to charge an offense5 and that the evidence was insufficient to

show that he violated Section 1512(c)(1).

Section 1512(c)(1) provides in relevant part as follows:

“Whoever intentionally harasses another person and thereby hinders,

delays, prevents, or dissuades any person from -- (1) attending or

testifying in an official proceeding” shall commit an offense.

Count 13 of the indictment charged that Travis “did knowingly and

intentionally harass Darin Boone by writing him a letter . . . with

5
The sufficiency of an indictment is jurisdictional and may be raised
for the first time on appeal. United States v. Cabrera-Teran, 168 F.3d 141, 143
(5th Cir. 1999). If an objection is raised for the first time on appeal, as
here, and the appellant does not assert prejudice, then the indictment is to be
read with maximum liberality finding it sufficient unless it is so defective that
by any reasonable construction, it fails to charge the offense for which the
defendant is convicted. United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir.
1996).

9
the intent to hinder, delay, prevent or dissuade Darin Boone from

testifying . . . .” (emphasis added).

According to Travis, it is not sufficient under Section

1512(c)(1) that the defendant merely intended to hinder Darin’s

testimony; rather, this provision requires that the defendant

actually hinder, delay, prevent or dissuade a witness from

testifying. For support, he points to subsections (a) and (b) of

the statute that, in contrast, permit conviction for conduct

undertaken with the intent of influencing or preventing a witness’s

testimony; these provisions, he asserts, apply whether or not the

defendant successfully interfered with the testimony.6

6
18 U.S.C. §1512(b)(1) provides:
Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or attempts to do
so, or engages in misleading conduct toward another person, with
intent to--
(1) influence, delay, or prevent the testimony of any person in an
official proceeding;
(2) cause or induce any person to--
(A) withhold testimony, or withhold a record, document, or other
object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to
impair the object's integrity or availability for use in an official
proceeding;
(C) evade legal process summoning that person to appear as a
witness, or to produce a record, document, or other object, in an
official proceeding; or
(D) be absent from an official proceeding to which such person
has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal
offense or a violation of conditions of probation, parole, or
release pending judicial proceedings; shall be fined under this
title or imprisoned not more than ten years, or both.

10
 The government concedes that the indictment was

“inartfully drafted;” but it observes that all three crimes defined

in § 1512 expressly include attempt crimes as a lesser offense.

The government has the better of this argument, though only because

of the precise factual circumstances presented. From the charge

colloquy, it appears that the indictment’s ambiguity was well known

to the parties and the court, yet no one saw the need to suggest

its inadequacy. This suggests that the parties understood the

nature of the violation charged. And the most that can be said is

either of two things. First, that the indictment charged Travis

with specific intent to hinder Darin’s testimony -- a higher mental

state than § 1512(c)(1) actually requires -- in which case the

indictment is more stringent than the law. Or, Travis was charged

with “merely” intending but not consummating this witness

harassment crime. Since an attempt to commit the crime is also

proscribed by § 1512(c)(1), this criticism avails Travis not at

all. The challenge to the indictment fails, although a clear

indictment is always preferable.

As litigated here, the § 1512(c)(1) offense amounted to

an attempt crime. The government did not prove that Travis’s

letter prevented, hindered, dissuaded, or even delayed Darin from

testifying; Darin testified at trial. At most, the government

established that Darin felt “harassed” by the letter. And the jury

11
could conclude from the wording of the letter that Travis meant a

not-so-veiled threat against Darin. The totality of the evidence

must also be considered in light of Fed. R. Crim. Proc. 31(c),

which provides that a defendant may be found guilty of an attempt

to commit an offense if the attempt is, as here, itself an offense.

Thus, we conclude that Travis’s conviction under Section 1512(c)(1)

may not be vacated. On the peculiar facts of this case, Travis had

to be and was convicted of attempted hindrance of Darin’s

testimony.

C. Motion to Dismiss the Indictment Based on Claim of Vindictive
Prosecution

Travis contends that the indictment should have been

dismissed because he was vindictively prosecuted in retaliation for

a civil rights lawsuit he filed against the city of Richmond, its

police chief, and certain police officers.

This claim is meritless. After an evidentiary hearing,

the district court rejected Travis’s claim in a well-reasoned and

comprehensive opinion.7 Contrary to Travis’s assertions, the Mud

Alley investigation was primarily federal in nature, controlled by

the DEA. The DEA submitted the results of its investigation to the

United States Attorney’s office. No Fort Bend County or Richmond

officials were involved in deciding whom to prosecute. On these

7
The district court’s factual findings are reviewed for clear error
and its legal conclusions de novo. United States v. Spears, 159 F.3d 1081, 1086
(5th Cir. 1998).

12
facts, Travis failed to show “some kind of genuine prosecutorial

animus,” a requirement for establishing a defense of vindictive

prosecution. See United States v. Heidecke, 900 F.2d 1155, 1159

(7th Cir. 1990).

D. Restriction of Travis’s Defense and Cross-Examination

Travis contends that the district court violated the

Sixth Amendment by improperly refusing to allow his defense counsel

to cross-examine witnesses about Travis’s lawsuit against Richmond

and the Fifth Amendment by improperly limiting direct testimony on

the lawsuit.

The district court has “wide latitude to impose

reasonable limits on cross-examination subject to the Sixth

Amendment requirement that sufficient cross-examination be

permitted to expose to jurors facts from which they can draw

inferences relating to the reliability of witnesses.” United

States v. Martinez, 151 F.3d 384, 390 (5th Cir.), cert. denied, 525

U.S. 1031, 119 S.Ct. 572 (1998). There is no constitutional

violation here, however. Travis was allowed to cross-examine

witnesses about his longstanding, mutual antagonism with the RPD.

This was sufficient evidence with which the jury could assess the

reliability of the prosecution’s witnesses.

In the absence of any constitutional violation, district

court rulings on the scope and length of cross-examination are

13
reviewed for abuse of discretion. See United States v. Gray, 105

F.3d 956, 964 (5th Cir. 1997). To obtain relief, the defendant

must show that the trial court’s restrictions on questioning

witnesses were “clearly prejudicial” based on the overall strength

of the prosecution’s case, the circumstances surrounding the

challenged testimony, the importance of that testimony, and its

corroboration or contradiction elsewhere at trial. See id. at 965.

Travis fails to make any showing that he was prejudiced

by the district court’s restrictions. The district court allowed

Travis to question witnesses at length outside the presence of the

jury about their knowledge of the lawsuit, and in each case the

court concluded that reasonable jurors could not have inferred bias

from the witnesses’ knowledge. The court concluded that specific

references to the lawsuit were of marginal probative value and

could only be confusing, misleading and prejudicial. In lieu of

references to the lawsuit, Travis was allowed to show witness bias

with questions about animosity between Travis and the RPD. Because

questions on the lawsuit were validly excluded under Rule 403, and

because Travis was given every other opportunity to question

witnesses’ credibility, the district court did not abuse its

discretion in restricting the scope of Travis’s cross-examination.8

8
For similar reasons, the district court did not deny Travis due
process or abuse its discretion in limiting Travis’s direct testimony concerning
his lawsuit. In his defense case, as in his cross-examination, Travis was
allowed to develop evidence of his feud with the RPD.

14
E. Travis’s Right to Testify

Travis next argues that the district court denied his

right to testify, in violation of the Fifth, Sixth, and Fourteenth

Amendments. He contends that despite repeated attempts to testify,

he was never allowed to take the stand. The record demonstrates,

however, that the district court did not interfere with Travis’s

right to testify. When Travis began insisting on testifying,

against his attorney’s wishes, the court recessed trial for the

evening so that Travis could confer with his attorney and family,

and the next morning the court granted counsel’s request for a

competency examination of Travis. None of these actions suggests

undue interference.

The right of a criminal defendant to testify in his own

behalf is well established. See United States v. Martinez, 181

F.3d 627,(5th Cir. 1999). Only the defendant may waive this right.

Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). Contrary to

Travis’s selective review of the record, the district court never

ordered Travis to follow his counsel’s recommendation not to

testify. The district court insisted only that Travis decide the

issue after further private consultation with his counsel. This

exhibited the court’s concern that Travis be fully informed about

the consequences of testifying.

15
 Travis further argues that he never made a knowing and

voluntary waiver of his right to testify, and that after his

competency hearing, the court should have allowed him another

opportunity to assert his right or waive it on the record. An

overwhelming majority of the circuits have held that a district

court generally has no duty to explain to the defendant that he or

she has a right to testify or to verify that the defendant who is

not testifying has waived the right voluntarily. See United States

v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998)(citing cases from nine

courts of appeals supporting this proposition). The courts’

rationale is that the defendant’s right to testify is “an important

part of trial strategy best left to the defendant and counsel

without the intrusion of the trial court, as that intrusion may

have the unintended effect of swaying the defendant one way or the

other.” Leggett, 162 F.3d at 246. We endorse this position on

the facts before us.9 When Travis returned from the overnight

recess and did not later reassert his right to testify, the

district court had no duty to ascertain Travis’s decision.

We also reject Travis’s argument that his trial counsel

interfered with his right to testify. The appropriate vehicle for

9
In a different context, this court has declined to articulate the
degree of specificity required for a petitioner to seek habeas corpus based on
denial of the right to testify, see United States v. Martinez, 181 F.3d 627 (5th
Cir. 1999); Jordan v. Hargett, 53 F.3d 94 (5th Cir. 1995) (opinion following
order to remand).

16
such claims is a claim of ineffective assistance of counsel under

Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052 (1984). See

Leggett, 162 F.3d at 249 n. 12; United States v. Teague, 953 F.2d

1525, 1534 (11th Cir. 1992); Sexton v. French, 163 F.3d 874, 882

(4th Cir. 1998); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).

To satisfy the Strickland standard, the defendant must show that

counsel’s performance fell below an objective standard of

reasonableness and that such deficient performance was prejudicial.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As a general rule,

Sixth Amendment claims of ineffective assistance of counsel cannot

be litigated on direct appeal, unless they were adequately raised

in the district court. United States v. Gibson, 55 F.3d 173, 179

(5th Cir.1995). Nevertheless, this court may consider a claim

regarding competency of trial counsel if the record provides

sufficient detail about the attorney's conduct to allow the court

to make a determination of the merits of the claim. United States

v. Saenz-Forero, 27 F.3d 1016, 1019 (5th Cir.1994)(record

sufficiently detailed to allow review). The record is sufficient

here, even though Travis did not specifically raise this claim in

the trial court.

Travis contends that his counsel was ineffective because

he refused to accept Travis’s decision to testify. Based on the

events just recited, though, it is evident that Travis was aware of

17
his right to testify and that, after the overnight recess, the

opportunity to consult with his family, and his competency exam,

he did not invoke that right. Travis’s comments at trial indicate

that he was a vocal defendant who did not hesitate to express his

opinions. Given Travis’s character, his failure to reassert his

right to testify after the overnight recess was more than likely a

product of his counsel’s persuasion, not his coercion. See, e.g.,

Emery, 191 F.3d at 199 (finding that because the defendant was

“strong-willed and unlikely to allow his decisions to be controlled

by pressure from others,” his decision not to testify indicated the

operation of counsel’s persuasion, not his coercion). Travis has

not proved that his attorney’s performance was constitutionally

deficient.

F. Conflict of Interest on the part of Travis’s Defense Counsel

Travis next contends that the district court ignored his

claim that his defense counsel had a conflict of interest.

According to Travis, the court’s failure to investigate this claim

deprived him of his Sixth Amendment right to effective assistance

of counsel.

This claim is completely without merit. While a district

court must hold a hearing when it knows an actual conflict exists,

United States v. Corona, 108 F.3d 565, 575 (5th Cir. 1997),

Travis’s accusations that his attorney was trying to “railroad” him

18
were vague, conclusional and insufficient to alert a trial court to

an actual conflict of interest. When a trial court has no notice

of a potential conflict of interest and the issue, as here, is

raised for the first time on appeal, the defendant must show that

the defense counsel was actively representing conflicting interests

and that the conflict had an adverse effect on specific instances

of counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348,

100 S.Ct. 1708 (1980). Travis makes no effort to satisfy this

test, and we accordingly reject his claim.

G. Motions to Suppress Identification Evidence

Joe and Charles appeal the district court’s denial of

their motions to suppress Agent McDonough’s identification

testimony. The admissibility of identification evidence and the

fruits therefrom raises a mixed question of law and fact on appeal.

See United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir. 1993).

We review the district court's underlying factual findings for

clear error. See United States v. Diecidue, 603 F.2d 535, 565 (5th

Cir. 1979).

The Fifth Amendment affords accused individuals due

process protection against evidence derived from unreliable

identifications which are based upon impermissibly suggestive

photographic lineups. Moore v. Illinois, 434 U.S. 220, 227, 98

S.Ct. 458, 464, 54 L.Ed.2d 424 (1977). Determining whether an

19
eyewitness identification at trial following a pretrial

photographic identification must be excluded requires an

examination of two elements. See Sanchez, 988 F.2d at 1389.

First, the court must determine whether the photographic array was

impermissibly suggestive. Id. If it was, then the court must

consider whether, based upon the totality of the circumstances,

"the display posed a 'very substantial likelihood of irreparable

misidentification.'" Id., quoting Simmons, 390 U.S. at 384, 88

S.Ct. at 971; see also Manson v. Brathwaite, 432 U.S. 98, 114, 97

S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977) (stating that the gravamen

of this determination is reliability). In examining the totality

of the circumstances regarding reliability, the court should

specifically consider “the opportunity of the witness to view the

criminal at the time of the crime, the witness' degree of

attention, the accuracy of the witness' prior description of the

criminal, the level of certainty demonstrated by the witness at the

confrontation, and the length of time between the crime and the

confrontation.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375,

382, 34 L.Ed.2d 401 (1972).

Agent McDonough’s identification of Joe was based on a

crack cocaine purchase she and informant Mendez made from an

unknown black male. At the time of the purchase, Mendez told her

that the unknown male was Joe. Following the purchase, she was

20
shown a photograph with Joe’s name written on it. She then

identified Joe as the unknown male who sold her crack cocaine. Joe

contends that this procedure violated the Fifth Amendment because

it was impermissibly suggestive and inherently unreliable.

Assuming without deciding that the photographic

identification procedure used to identify Joe was impermissibly

suggestive, an examination of the Biggers factors reveals that

there was no substantial likelihood of misidentification by Agent

McDonough. She viewed the suspect during daylight hours for 10 to

20 minutes while in close proximity to him. As a law enforcement

officer, she knew she would be required to identify the suspect

after the transaction. Finally, little time elapsed between the

transaction and her identification of Joe’s photograph. Her

explanation that she did not notice Joe’s gold tooth because his

mouth was not open wide enough was reasonable. Based on these

factors, Joe’s motion to suppress Agent McDonough’s identification

testimony was properly denied.10

We reject Charles’ challenge to the denial of his motion

to suppress because, in his case, Agent McDonough’s identification

testimony was not tainted by an impermissibly suggestive procedure.

She identified Charles from a photograph that she viewed before her

10
Joe has not challenged on appeal his identification by informant
Mendez in connection with the same transaction, rendering any error on this issue
harmless.

21
crack purchase from Charles and not after, as in Joe’s case. See

United States v. Rodriguez, 859 F.2d 1321, 1325-26 (8th Cir. 1988)

(approving an undercover drug officer’s viewing of suspects’

photographs before conducting surveillance).11

H. Firearm Enhancement

Travis challenges the district court’s two-level

enhancement under U.S.S.G. § 2D1.1(b)(1) for possession or use of

a dangerous weapon. This finding is a factual determination

reviewed for clear error, see United States v. Brown, 985 F.2d 766,

769 (5th Cir. 1993), and may be supported by "any relevant evidence

that has sufficient indicia of reliability to support its probable

accuracy." United States v. Buchanan, 70 F.3d 818, 828 (5th Cir.

1995) (quotations and citations omitted).

The Section 2D1.1(b)(1) enhancement is appropriate if a

firearm "was possessed during the course of manufacturing,

importing, exporting, or trafficking in narcotics, including

attempting or conspiring to do so." United States v. Gaytan, 74

F.3d 545, 559 (5th Cir. 1996). This court has further specified

that “where a temporal and spatial relationship exists between the

weapon, the drug-trafficking activity, and the defendant,” the

11
To the extent that Gracie and Sylvester have adopted Joe’s and
Charles’s arguments for suppression of identification testimony, we reject their
claims as well. Agent McDonough viewed Gracie’s photo before conducting her
transaction with Gracie, and Agent Porter viewed Sylvester’s photo before
conducting his transaction with Sylvester.

22
enhancement applies. United States v. Marmolejo, 106 F.3d 1213,

1216 (5th Cir. 1997).

Authorities found a shotgun in the trunk of Travis’s

Camry in the course of their investigation, and witness testimony

established that Travis used the vehicle to transport crack

cocaine. Travis argued the gun was used for self-protection, but

as the district court noted, this claim is not inconsistent with

the gun’s use in drug trafficking. Accordingly, there was no clear

error in the finding that Travis failed to show that a connection

between the gun in the trunk of the Camry and his drug trafficking

was “clearly improbable.” See U.S.S.G. § D.1.1(b)(1) Application

Note 3.

I. Amounts of Crack Cocaine Attributed to Travis and Charles

Travis and Charles contend that the district court erred

regarding the amount of crack cocaine for which they were held

responsible at sentencing. The determination of drug quantity is

a factual determination entitled to considerable deference. United

States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998). The district

court can consider estimates of the drug quantity for purposes of

sentencing. See id. at 832, citing United States v. Sherrod, 964

F.2d 1501, 1508 (5th Cir.1992). It may also consider any

sentencing information so long as it had “sufficient indicia of

23
reliability to support its probable accuracy.” United States v.

Windham, 991 F.2d 181, 182 (5th Cir. 1993).

Travis disputes the district court’s determination that

more than 10 kilograms of crack were attributable to him.12 This

figure was based on amounts estimated by co-conspirator Andre

Johnson, who was debriefed by the government before trial, and on

the court’s assessment of other conspirators’ evidence and the

evidence at trial. Travis only attacks the reliability of

Johnson’s evidence, which does not appear in the PSR and was not

elicited at trial. Such bare and incomplete assertions of

unreliability, without evidentiary or legal support, are

insufficient to outweigh the district court’s finding.

Charles contends that the district court erred in finding

him responsible for 1410 grams of crack cocaine based on

information contained in the PSR. Generally, a PSR bears

sufficient indicia of reliability to be considered as evidence by

the trial judge, see Alford, 142 F.3d at 831-32, and the defendant

bears the burden of showing that its information is materially

untrue. See id. at 832. Charles challenges the PSR’s reliability

but fails to carry this burden. His claim fails accordingly.

III. CONCLUSION

12
In arriving at this amount, the district court first rejected the
conclusion of the presentence report (“PSR”) that held Travis responsible for 390
kilograms of crack cocaine.

24
 For the foregoing reasons, the convictions and sentences

are AFFIRMED.

25