United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20177
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD NORMAN; GLENN EDWARD SCOTT,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Ronald Norman (Norman)1 and Glenn Edward Scott (Scott) appeal
their convictions for conspiracy to possess with intent to
distribute a controlled substance and possession with intent to
distribute of a controlled substance. We affirm the convictions.
1
Norman told the probation officer preparing his presentence report that
his true name is Ronnie Ray Norman.
Facts and Proceedings Below
The Drug Enforcement Administration (DEA) began an
investigation of Scott after a confidential informant identified
him as a possible drug dealer. At the behest of his controlling
DEA agent, the informant set up a meeting with Scott for the
evening of September 25, 2002, at a gas station on Interstate
Highway 10 in Houston. The informant was wired with an audio
transmitter which was monitored by one of the team of DEA agents
assigned to the investigation, who then relayed by radio to the
other agents information obtained from the transmission. The scene
at the gas station was periodically observed by an agent who drove
past every few minutes.
After the informant, whom the agents had ascertained had no
drugs on his person or in his car, arrived at the gas station in
his vehicle, two other cars arrived. A person later identified as
Scott got out of one of the cars and into the informant’s vehicle.
Scott and the informant decided to move to a McDonald’s restaurant
on the other side of the interstate to complete the deal, whereupon
Scott opened the door of the vehicle and instructed someone he
called “Randy” to “go by my apartment and pick up that stuff,” and
to come meet them at the McDonald’s. All of the vehicles were
observed leaving the gas station, with the informant’s vehicle and
one of the cars heading over to the McDonald’s, while the other car
went in a different direction.
2
A DEA agent with binoculars was in a car parked next door to
the McDonald’s when the informant’s vehicle arrived there. After
a few minutes, the agent saw the person he later identified as
Scott get out of the informant’s vehicle and walk up to the hood of
the informant’s vehicle. A person the agent later identified as
Norman walked up and met Scott at the hood of the informant’s
vehicle. Both men walked over near the front passenger side
window. Id. at 389. The surveillance agent later testified that
the men appeared to be conversing, and the audio transmission
included an exchange between the informant, Scott, and a person
Scott called “Ronnie,” later identified as Norman. In this
exchange, “Ronnie” tells Scott that he left Scott’s car “at the
house,” and that he ran over to the McDonald’s. There is a
footbridge over the interstate with one end near the McDonald’s and
the other end near an apartment complex on the other side of the
interstate. The surveillance agent did not see an actual handoff
of anything from Norman to Scott; the mens’ lower bodies were
generally blocked from view by the vehicle.
After the meeting broke up, the DEA agents recovered a paper
bag from the informant. The bag was subsequently determined to
contain 212.8 grams of cocaine base (crack cocaine). Scott was not
apprehended after this deal because the agents hoped to orchestrate
a larger drug sale on October 8, 2002. Scott was arrested on
October 8 after the larger sale fell through, and voluntarily told
3
agents that he was involved in the September 25 sale to the
informant. The agents got Ronnie Norman’s name from Scott’s
confession and through registration records of the cars present for
the September 25 deal.2 Norman spoke with the agents in an
unrecorded interview on October 25, 2002, where he admitted going
to the gas station to provide protection for Scott. According to
the agents’ testimony, he further admitted that he went to an
apartment where he was handed a paper bag, and that he delivered
the bag to the McDonald’s. Norman told the agents that he thought
the bag had contained either money, “weed,” or cocaine. Based on
their discussions with Scott and Norman, two agents identified
Scott’s and Norman’s voices on the taped audio transmission from
the September 25 transaction.
Norman was subsequently arrested, and he and Scott were
charged with (1) conspiring to possess with intent to distribute 50
grams or more of cocaine base, and (2) aiding and abetting one
another in possessing with intent to distribute 50 grams or more of
cocaine base, under 21 U.S.C. §§ 841, 846. At trial, both Norman
and Scott objected to the admission into evidence of the agents’
identification of their voices on the tape recording of the
September 25 audio transmission, but their objections were
overruled. Scott attempted to use a Justice Department manual on
2
Since neither Norman nor Scott testified at trial, the jury was not told
of any mention of his co-defendant in either defendant’s confession. See Bruton
v. United States, 88 S.Ct. 1620, 1622–23 (1968).
4
eyewitness identification in cross-examining some of the DEA
agents. Such use of the manual was precluded for not meeting the
requirements of Rule 803(18) of the Federal Rules of Evidence. The
jury found both Scott and Norman guilty of both counts. Scott was
sentenced to 235 months’ imprisonment, and Norman to 120 months.3
Discussion
Norman argues that his confession to the DEA agents was not
corroborated and was therefore inadmissible, that there was
insufficient evidence that he knew he was transporting a controlled
substance, and that the identification of his voice on the tape
recording should have been excluded. Scott appeals the district
court’s denial of his use in cross-examination of the Justice
Department identification guide.
I. Standard of Review
A district court’s evidentiary rulings are reviewed for
abuse of discretion, subject to the harmless error rule. United
States v. Valentine, 401 F.3d 609, 616 (5th Cir. 2005). In
reviewing sufficiency of the evidence in a jury trial, we consider
whether a rational jury, viewing the evidence in the light most
3
The district court adopted the probation officer’s assessment that Norman
had a minor role in the conspiracy, resulting in a sentence at the statutory
minimum of 120 months.
5
favorable to the prosecution, could have found the defendant guilty
beyond a reasonable doubt.4 United States v. Miles, 360 F.3d 472,
476–77 (5th Cir. 2004).
II. Norman’s Conviction
A. Corroboration of Confession
With respect to Norman’s argument that his confession was not
corroborated, it is true that a defendant may not be convicted
solely on the basis of his uncorroborated confession. United
States v. Deville, 278 F.3d 500, 506 (5th Cir. 2002); United States
v. Abigando, 439 F.2d 827, 832 (5th Cir. 1971). Instead, “[t]he
government must introduce independent evidence [tending] to
establish the trustworthiness of the confession.” Deville, 278
F.3d at 506 (citing Smith v. United States, 75 S.Ct. 194, 199–200
(1954); Opper v. United States, 75 S.Ct. 158, 164 (1954)). The
government need not introduce independent evidence on every element
of the crime, however. Abigando, 439 F.2d at 832. “If there is
extrinsic evidence tending to corroborate the confession, the
confession as a whole is admissible; and some elements of the
offense may be proven entirely on the basis of a corroborated
confession.” Deville, 278 F.3d at 507 (quoting United States v.
Gravitt, 484 F.2d 375, 381 (5th Cir. 1973)).
4
The defendants properly preserved this issue by moving for a judgment of
acquittal at the close of the government’s evidence. The defense did not present
any evidence.
6
In the case of Norman’s confession, there is sufficient
independent evidence tending to establish its trustworthiness.
This evidence includes testimony that the informant received the
paper bag containing the cocaine base and that Norman was seen
meeting Scott at the McDonald’s, as well as the audio tape in which
a voice identified as Scott’s instructs someone to “pick up that
stuff” and go to the McDonald’s.5 All of this evidence
corroborates aspects of the confession, and tends to establish its
trustworthiness. The confession was therefore sufficiently
corroborated.
B. Sufficiency of the Evidence
Norman further argues that because his confession indicated
that he thought the bag he delivered might have contained money,
there was insufficient evidence to show that he was involved with
the knowing or intentional possession of a controlled substance as
required by 21 U.S.C. § 841.6 “In order to prove conspiracy to
possess and distribute drugs, the Government must prove beyond a
reasonable doubt: (1) the existence of an agreement between two or
5
This instruction on the tape is directed to “Randy,” but the jury was told
that Ronnie Norman has a brother Randy, and that one of the cars at the gas
station was registered to Randy Norman. A rational jury could have inferred that
Scott simply misspoke, referring to Ronnie as Randy.
6
21 U.S.C. § 841(a) provides:
“(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally–
(1) to manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to
distribute or dispense, a counterfeit substance.”
7
more persons; (2) the defendant’s knowledge of the agreement; and
(3) the defendant’s voluntary participation in the conspiracy.”
United States v. Tenorio, 360 F.3d 491, 494 (5th Cir. 2004).
Although mere presence at a crime scene or association with
conspirators is not enough to establish participation in a
conspiracy, United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992), “[t]he agreement, a defendant’s guilty knowledge and a
defendant’s participation in the conspiracy all may be inferred
from the development and collocation of circumstances,” United
States v. Lentz, 823 F.2d 867, 868 (5th Cir. 1987) (internal
quotation omitted). To prove aiding and abetting of a criminal
venture, the government must show that the defendant: “(1)
associated with the criminal enterprise; (2) participated in the
venture; (3) sought by his action to make the venture succeed.”
Tenorio, 360 F.3d at 495. Because “[t]he evidence supporting a
conspiracy conviction typically supports an aiding and abetting
conviction,” id., we consider here the sufficiency of the evidence
for the conspiracy conviction.
“Ordinarily, knowledge of the existence of drugs may be
inferred from control over the location in which they are found.”
United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
However, if the drugs are hidden, such as in a secret compartment
in luggage or a vehicle, “we require ‘additional circumstantial
evidence that is suspicious in nature or demonstrates guilty
8
knowledge.’” Id. (quoting United States v. Ortega Reyna, 148 F.3d
540, 544 (5th Cir. 1998)). It is clear that drugs inside a hand
carried paper bag that Norman had complete control of and
believed to contain drugs or money do not qualify as “hidden” for
this purpose. Even if they are considered hidden, however, there
was ample additional evidence indicating knowledge on the part of
Norman.
Norman admitted that he had gone to the gas station to
provide protection, from which the jury could infer that Norman
knew an illicit deal was taking place. Furthermore, the
audiotape, coupled with Norman’s admitted actions and his
appearance at the McDonald’s, indicates that Scott told Norman to
“go get that stuff,” a wording that implies prior knowledge by
Norman of the deal and his role in it. The jury was also aware
of an earlier incident in which a police officer saw a plastic
bag thrown out of the passenger-side window of a car that Norman
was a passenger in, and the bag turned out to contain nine grams
of crack cocaine. This incident suggests that Norman had some
familiarity with drug sales and would likely know that he was
being asked to carry drugs in the September 25 sale.7 In
addition, this court has found participation in tasks vital to a
conspiracy where the tasks are undertaken within a narrow time
7
The jury was instructed to consider this earlier incident only for the
purposes of determining state of mind or intent necessary for the crime, or
whether the defendant acted out of accident or mistake.
9
frame to be indicative of “knowledge of, and intentional
participation in, crimes in progress.” United States v. Pruneda-
Gonzalez, 953 F.2d 190, 197 (5th Cir. 1992). A rational jury
could easily discount Norman’s claim that he thought the bag
might contain money in view of this other evidence. There is
therefore sufficient evidence supporting the jury’s finding that
Norman was involved in the knowing or intentional possession of a
controlled substance.
C. Identification of Norman’s Voice
Norman argues that testimony by DEA agents identifying
Norman’s voice on the audio tape of the drug transaction (and
identification of his voice on a transcript of the tape) should
have been excluded. Rule 901(b)(5) of the Federal Rules of
Evidence indicates that a voice may be properly identified “by
opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.”8 The DEA
agents’ hour-long discussion with Norman in October 2002 was
8
Rule 901 of the Federal Rules of Evidence provides in relevant part:
“Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or identification
conforming with the requirements of this rule:
. . . .
(5) Voice identification. Identification of a voice, whether
heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
. . . .”
10
clearly a circumstance connecting Norman’s voice with Norman, and
therefore is permissible under Rule 901(b)(5). The government
must additionally lay a foundation of reliability and accuracy
when introducing a sound recording, however. United States v.
Cuesta, 597 F.2d 903, 914 (5th Cir. 1979). Norman argues that
the voice identified as his on the tape is too short in duration
and too accompanied by background noise for a reliable
identification to be made, and that the agents’ identification
was actually based on statements of the confidential informant
and Scott, neither of whom testified. At trial, one of the two
agents identifying Norman’s voice testified that it would have
been very hard to identify Norman based on his discussions with
Norman and the tape-recorded voice alone, and indicated that
corroboration by the facts in Norman’s confession played a role
in his voice identification. The other agent identifying Norman,
on the other hand, testified that he could identify Norman solely
by comparing his voice heard during the interview to that on the
tape.
At a preliminary hearing on the voice identifications, the
district court concluded that any inaudible portions of the tape
were insufficient to make the tape as a whole inadmissible, and
that the government’s proffer included sufficient indicia of
reliability for the tape to be admissible. The court stated that
the question of whether there was enough of Norman’s voice on the
11
tape to make an identification went to weight rather than
admissibility. This conclusion was not an abuse of discretion.
Not only are the requirements of Rule 901(b)(5) met, but there
was other evidence, such as the visual identification of Norman
and Scott’s voice on the tape calling him by name, supporting the
reliability of the identification. See Cuesta, 597 F.2d at 915;
United States v. Vento, 533 F.2d 838, 864 (3d Cir. 1976).
We conclude that evidence identifying a voice on the tape as
Norman’s was properly admitted.9
III. Scott’s Conviction
Scott argues that he should have been allowed to cross-
examine testifying DEA agents using a Justice Department manual
on eyewitness identification. In particular, Scott wanted to
establish that proper procedure according to the manual is to use
a photo lineup in soliciting an eyewitness identification, rather
than using a single photo of the suspect. Learned treatises are
exempt from the hearsay rule to the extent they are used by an
expert witness or in cross-examination of an expert witness, if
they are established as reliable authority. The treatise can be
established as reliable authority by expert testimony, by
admission of an expert being cross-examined, or by judicial
9
In any event, there is sufficient evidence supporting Norman’s
conviction, as discussed above, even if the identification of his voice had been
excluded. And, considering the record as a whole, we conclude there is no
reasonable possibility that the jury would have acquitted had the identification
of Norman’s voice on the tape been excluded.
12
notice. FEDERAL RULES OF EVIDENCE 803(18).10 The treatise was not
established as a reliable authority because Norman did not offer
an expert in this area, the testifying agents did not recognize
the manual, and the court did not take judicial notice of its
reliability. Moreover, as stated by the district court, the
manual was not being used in cross-examination of expert
testimony. The agents’ identification testimony was merely the
testimony of lay witnesses. They simply described how they had
made the identification from a photograph of Scott. When asked
on cross-examination whether they believed that adequate, they
merely said they did. None of the testifying agents claimed any
special expertise in preferred methods of photo identification by
witnesses or the like.
Conclusion
For the foregoing reasons, both Norman’s and Scott’s
convictions are
AFFIRMED.
10
Federal Rules of Evidence 803 provides in relevant part:
“Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
. . . .
(18) Learned treatises. To the extent called to the attention of
an expert witness upon cross-examination or relied upon by the expert
witness in direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history, medicine,
or other science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by
judicial notice. If admitted, the statements may be read into evidence
but may not be received as exhibits.
. . . .”
13
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