USA vs. Eckerson, (5th Cir. 1997)
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-11098 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS TIMOTHY ECKERSON, also known as Baby, also known as Tommy Lee Irons; TYRON DOUGLAS HENTON; JOHNNY WILLIAM IRONS, also known as Cube; WILLIAM ERIC RICHARDSON, also known as Big E, Defendants-Appellants.
Appeal from the United States District Court For the Northern District of Texas (4:95-CR-36-Y) January 21, 1997 Before JOLLY, JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge: * Tyrone Henton (“Henton”), Johnny William Irons (“Irons”), and Timothy Wayne Eckerson (“Eckerson”) appeal their convictions and sentences related to a drug conspiracy. Finding no reversible error, we affirm.
I. FACTS AND PROCEDURAL HISTORY Henton, Irons and E ckerson were among seventeen individuals named in a thirty-two count indictment. From at least January 1991 through March 8, 1995, the indictment alleged that the appellants were part of a large network of individuals that distributed crack cocaine, primarily in the Fort Worth, Texas area. Eckerson is IronsÂ’ younger brother and the two lived together and were both employed at what were described as tedious jobs at Bunge Foods, a rendering plant.
Henton, Irons and Eckerson were charged in Count 1 with conspiracy to distribute f ifty grams or more of cocaine base.
Additionally, Henton was charged in Cou nt 7 with distribution of 12.81 grams of cocaine base; Irons and Eckerson were charged in Count 13 with distributing 62.12 grams of cocaine base and in Count 26 with possession with intent to distribute 35.8 grams of cocaine base.
The three were t ried before a jury in June 1995. 1 The jury found Henton guilty of the conspira cy count and the distribution count. Likewise, Eckerson was found guilty of the conspiracy count, th e distribution count and the possession with intent to distribute count. Irons was found guilty of the conspiracy count and not guilty of the counts of distribution and possession with intent to distribute.
Henton was sentenc ed to 121 months imprisonment on both counts, to run concurrently, a five-year term of supervised release and a special assessment of $100. Eckerson was sentenced to 121 months imprisonment on all three counts, to run concurrently, a five-year term of supervised release, and was ordered to pay a special assessment of $150. Irons was sentenced to 324 months on the conspiracy count, a five-year t erm of supervised release and was ordered to pay a special assessment of $50. All three timely filed notices of appeal with this court.
II. DISCUSSION a. Sufficiency of evidence All three appellants argue that their convictions should be overturned because the evid ence was insufficient. We must determine whether, viewing the evidence and the inferences that can be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the challenged offenses be yond a reasonable doubt. U nited States v. Sneed , 63 F.3d 381, 385 (5th Cir. 1995), cert. deni ed , U.S., 116 S. Ct. 712 (1996).
The appellants each attack their conspiracy convictions for insufficiency of evidence. In order to prove a drug conspiracy, the government must show, beyond a reasonable doubt that (1) there existed an agreement to violate narcotics laws; (2) the defendant knew of the conspiracy and intentionally joined in it; and (3) the defendant’s participation in the conspiracy was voluntary. U nited States v. Castillo , 77 F.3d 1480, 1492 (5th Cir.), cert. denied , U.S., 117 S. Ct. 180 (1996). A conspiracy conviction may be upheld even if the alleged conspirator did not have knowledge of the exact details of the conspiracy or the precise identities of all c o-conspirators, so long as he knowingly participated in the overall conspiracy. United States v. Alix , 86 F.3d 429, 436 (5th Cir. 1996). “[A] defendant need only have had a minor role in the conspiracy, onc e it is shown that he voluntarily agreed to participate.” Castillo , 77 F.3d at 1493.
Irons contends that the only evidence upon which the jury could have premised its guilty verdict as it related to him was the testimony of an accomplice, Gary Willie, who had entered a guilty plea. It is clearly established that a conviction may rest solely on the “uncorroborated testimony of an accomplice if the testimony is not incredible or otherwise insubstantial on its face.” U nited St ates v. Moreno , 649 F.2d 309, 312 (5th Cir. 1981). Willie’s testimony was not incredible or otherwise insubstantial on its face and was sufficient to bring Irons within the scope of the conspiracy. There is no basis for reversing Irons’ conviction on the conspiracy charge.
Eckerson argues that the evidence presented failed to demonstrate that he knowingly joined in any agreement with the other alleged co-conspirators. However, there was clear evidence that Eckerson actually completed a transaction with an undercover officer while Irons was prese nt, arguably providing countersurveillance. Additionally, Eckerson worked with many of the coconspirators and lived with Irons, providing evidence from which it might be inferred that Eckerson was aware of the conspiracy and knowingly joined in it to advance its purpose. Although a conspiracy conviction may not be based solely on familial relationships or mere knowing presence, i nferences may be drawn from the evidence of the relationships in this case that, in combination with other circumstantial evidence, adequately supports EckersonÂ’s conviction. S ee United States v. Br oussard , 80 F.3d 1025, 1031 (5th Cir.), cert. denied , U.S., 117 S. Ct. 264 (1996). Henton alleges that the government charged a single conspiracy in the indictment then attempted to convict him based on multiple conspiracies, but introduced insufficient evidence of the single conspiracy. We disagree. When a single conspiracy is alleged in the indictment but multiple conspiracies are demonstrated at trial and the defendantÂ’s participation in at least one of the conspiracies is proved, there is no basis for reversal. U nited States v. Richerson, 833 F.2d 1147, 1155 (5th Cir. 1987). There is sufficient evidence in this record to allow the jury to conclude that Henton knowingly and voluntarily joined a conspiracy with at least some of the alleged co-conspirators. We therefore affirm HentonÂ’s conspiracy conviction.
Henton next argues that the evidence was insufficient to support his convictio n for possession with intent to distribute cocaine. However, Henton was convicted of distribution of cocaine, rather than for possession. Testimony of an informant concerning HentonÂ’s involvement in a drug transaction was clearly sufficient to sustain the distribution conviction. This ground of error has no merit.
Eckerson also appeals his conviction for possession with intent to distribute cocaine. 2 A conviction for possession with intent to distribute requires the government to show th at the defendant knowingly possessed a control l ed substance with the intent to dis tribute the substance. U nited States v. AnchondoSadoval , 910 F.2d 1234, 1236 (5th Cir. 1990). Possession may be shown by circumstantial ev idence. U nited States v. HernandezPalacios , 838 F.2d 1346, 1349 (5th Cir. 1988). Knowing possession may be inferred from control over the concea led contraband in connection with other evidence that is suspicious in nature or demonstrates guilty knowledge. A nchondo-Sadoval , 910 F.2d at 1236.
Here, EckersonÂ’s fingerprints w ere found on the false bottom shaving cream can seized from the apartment he shared with Irons.
The can contained the cocaine that formed the basis of the possession with intent to distribute count, and the presence of the fingerprint, in connection with the previous drug transaction and other evidence, is sufficient to support the conviction. b. IronsÂ’ motion for severance Irons asserts that he was denied a fair trial by virtue of being joined in the indictment and at trial with other, allegedly more culpable, co-defendants. He contends that the refusal of the district court to sever him from the other defendants was an abuse of discretion. U nited States v. Box , 50 F.3d 345, 357 (5th Cir.), cert. denied , U.S., 116 S. Ct. 309 (1995)(Decision whether to grant a defendant a severance under Federal Rule of Criminal Procedure 14 is reviewed for abuse of discretion.) Generally, parties joined in an indictment alleging conspiracy should be tried together. U nited States v. McKinney , 53 F.3d 664, 674 (5th Cir.), cert. denied , U. S., 116 S. Ct. 261 (1995). An appellant must show more than the mere fact that a severance would have provided him a better chance of acquittal. B o x , 50 F.3d at 357.
Severance of properly joined defendants is proper only if there exist s a serious risk that a single trial would interfere with a specific trial right of a defendant or would interfere with the juryÂ’s ability to reach a reliable verdict. Z afiro v. United States ,
Irons argues that he was less culpable than the other defendants and was harmed by “spill-over” evidence. However, the trial judge instructed the jury to consider each charge and each defendant separately. The fact that the jury acquitted Irons of the two substantive charges further supports the conclusion that he was not prejudiced by the joint trial. Irons has not made the requisite showing of abuse of discretion, particularly in light of the district court’s instructions to the jury. c. The Government’s failure to disclose documents Both Eckerson and Henton contend that their convictions should be reversed because of the government’s failure to disclose material exculpatory evidence in accordance with Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). The government must disclose material evidence favorable to the defense or beneficial to the defense for purposes of impeaching a witness testifying against the defense. United States v. Holley , 23 F.3d 902, 914 (5th Cir.), cert. denied , U.S., 115 S. Ct. 635 (1994). Failure to disclose such material evidence requires reversal. I d. E vidence is material only if there is a reasonable probability that, had the defendant known of the evidence, the outcome of the trial would have differed. Id. During trial, Payton, a paid informant fo r the government, testified regarding various transactions with the defendants.
After direct examination of P ayton was concluded, the government revealed that Payton had signed agreements with the Fort Worth Police Department and the Alcohol Tobacco and Firearms agency that constituted the terms and conditions of his work as an informant. 3 The district court took a break to allow the defendants to review the documents and prepare cross-examination on them. Eckerson and Henton claim that the failure of the government to reveal the existence of these documents earl ier constitutes a violation of Brady and requires reversal. They argue that the agreements could have been uti lized to impeach the credibility of Payton.
Additionally, they assert that since Payton breached the terms of the agreements by engaging in unauthorized illegal drug transactions the importance of the documents increased.
The prosecutor was initially unaware of the agreements, and disclosed them when they came to her attention, at the beginning of defendantsÂ’ cross-examination of Payton. During direct examination, the government elicited the information that Payton was paid for his informant work and tha t he had engaged in unauthorized drug transactions. The defendants were then able to fully cro ss-examine Payton concerning the agreements. Neither defendant asked for a continuance in order to review the agreements or prepare for the remainder of the trial. We are not convinced that Brady was violated in this case.
However, even assuming that it was, the failure to timely disclose the documents is not an omission that calls into question the reliability of the outcome of the trial. S ee Holly , 23 F.3d at 914. We therefore find no merit in appellants’ B rady issue. However, we are concerned, as a matter of policy, that the prosecutor’s lack of communication with law enforcement personnel resulted in the government’s failure to timely comply with the district court’s discovery order. The price of such violations may, within the discretion of the district court, include mistrial or exclusion of the evidence. In this case, because the jury’s truth-finding function was not impaired, we f ind no abuse of discretion in the district court’s handling of the matter. d. Evidence of extrinsic acts The district court allowed a government informant to testify regarding three drug transactions with Henton in ad dition to the transaction that was included as Count 7 in the indictment. Henton contends that this was error because the testimony amounted to testimony of extrinsic acts and, therefore required advance notice under Federal Rule of Criminal Procedure 404(b). We review the district court’s decision to admit testimony for abuse of d iscretion. U nited States v. Hooker , 997 F.2d 67, 76 (5th Cir. 1993). In addition to the distribution count, Henton was on trial for conspiracy. The evidence of the other drug transactions goes to the proof of the conspiracy. As this court has held, [e]vidence that is “inextricably intertwined” with the evidence used to prove a crime charged is not “extrinsic” evidence under Rule 404( b). U nited States v. Randall , 887 F.2d 1262, 1268 (5th Cir. 1989). Such evidence is con sidered “intrinsic” and is admissible “so that the jury may evaluate all the circumstances under which the defendant acted.” I d. See also United States v. Williams , 900 F.2d 823, 825 (5th Cir. 1990) (“‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the ev idence of the crime charged are ‘inextric ably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were necessary preliminaries to the crime charged.”) United States v. Royal , 972 F.2d 643, 647 (5th Cir. 1992), c ert. denied ,
United States v. Carrillo , 20 F.3d 617, 621 (5th Cir.), cert. denied , U.S., 115 S. Ct. 261 (1994). On cross-examination, Irons asked Willie whether a particular individual, Hawkins, was involved in selling cocaine. On redirect, the attorney for the United States asked the witness a series of questions regarding whether that same individual was involved in storing cocaine. The allowance of this question, arguably related to the question asked on cross-examination, was not an abuse of discretion. f. Motion for mistrial after guilty plea During the course of the trial, co-defendant Mitchell entered a guilty plea. Irons contends that the district court erred when it overruled his objection to the entry of the plea during trial and when it subsequentl y denied his motion for a mistrial.
Following the plea, the district court ins tructed the jury as follows: ladies and gentlemen, you may notice that Dwayne Mitchell is no longer present in the courtroom. There are any number of explanations for that that could be given, but itÂ’s not important to you to know why. So IÂ’m instructing you that you should put that out of your mind and not consider that for any purpose, nor should you speculate as to why he might not be continuing in this case. Having said that, I think thatÂ’s the last thing that needs to be said or thought about it, and we will move on with the case. Irons asserts that MitchellÂ’s absence from the courtroom allowed the jury to speculate that co-defendant Mitchell was persuaded that he would be found guilty and he therefore availed himself of such benefit as he might by entering a guilty plea.
Denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Merida , 765 F.2d 1205, 1220-21 (5th Cir. 1985). In U nited States v. Ramirez , 963 F.2d 693, 700-01 (5th Cir.), cert. denied ,
Eckerson co ntends that the refusal of the district court to depart downward to the sentencing guidelines for powder cocaine on the basis of “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission” was error. Eckerson asserts that the Sentencing Commission’s study that concluded that the ratio reflected by the guidelines is not supported by the difference in harms caused by the drugs is a factor not taken into account by the Commission under th e guidelines. Subsequent to the Eckerson’s sentencing, this court considered this qu estion and rejected it. We held that a dist rict court may not downwardly depart based on the sentencing disparity between crack cocaine and powder cocaine because that disparity was specifically considered by Congress and it would be inappropriate for a district court to second guess the judgment of Congress expressed in sentencing legislation. United States v. Fonts ,
Irons contends this is an unreliable source and that, the refore, the increase was erroneous.
Irons asserts that the fact that the jury acquitted him of the two substantive charges weighs against his role as a manager or supervisor. While that is true, the district court§ 3B1.2(b), which allows for a decrease based upon a finding t hat the defendant was a minor participant. The district courtÂ’s refusal to grant a decrease is reviewed for clear error. U nited States v. Majia-Orosco , 867 F.2d 216, 221 (5th Cir.), cert. denied ,
Additionally, § 3B1.2 does not require a reduction in the base offense level even though the defendantÂ’s activity in a larger conspiracy may have been minor or minimal.
United States v. Atanda , 60 F.3d 196, 199 (5th Cir. 1995).
Henton was convicted of distribution of cocaine and his offense level was calculated based on the actual amount of cocaine he distributed, not on the reasonably foreseeable amount of cocaine distributed during his time in the conspira cy. Therefore, under Atanda , Henton was not entitled to a decrease in his offense level, and the district court was not clearly erroneous in his refusal.
III. CONCLUSION Based on the foregoing, the AppellantsÂ’ convictions and sentences are affirmed.
AFFIRMED.
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4
1 In addition to the three appellants, th e defendants at trial included Dwayne Mitchell, who entered a guilty plea during the proceeding, and William Eric Richardson, whose pro se appeal in this matter was dismissed for want of prosecution on August 12, 1996
2 Eckerson does not appeal his conviction for distribution of cocaine on the basis of the sufficiency of the evidence
3 Eckerson also objects to the failure of the government to disclose an internal FBI doc ument that demonstrated that the federal agent s were not in compliance with their own regulations when they used Payton as an informant. The district court concluded that the FBI document was not relevant to the questions before the jury and was not material under Brady . We agree
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- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff-Appellee, v. Ricky Ramirez, Jose Garcia, and Jose Cantu-Cantu, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Alfredo Garcia, Defendant-Appellant., 963 F.2d 693 (5th Cir. 1992)
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