United States v. Johnny Winters, Jr.United States v. Johnny Winters, Jr.
Jose Chavez-Valencia, Eden, TX, pro se.
PER CURIAM: *
The Federal Public Defender appointed to represent Jose Chavez-Valencia (Chavez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir.2011). Chavez has filed a response. We have reviewed counsel‘s brief and the relevant portions of the record reflected therein, as wеll as Chavez‘s response. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel‘s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
Scott F. Leary, Esq., Assistant U.S. Attorney, Susan Spears Bradley, Esq., Assistant U.S. Attorney, Robert Willie Coleman, II, U.S. Attorney‘s Office, Oxford, MS, for Plaintiff-Appellee.
John H. Daniels, III, Esq., Dyer, Dyer, Jones & Daniels, Greenville, MS, for Defendant-Appellant.
Before STEWART, Chief Judge, SMITH and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge: *
I.
About 1999, government agents began investigating a drug-trafficking ring run by Quincy Terry. Drug Enforcement Administration (“DEA“) wiretaps revealed DiCarlos Henderson‘s role as a supplier to several individuals, including Winters. Officials reviewed intercepted calls and electronic communications between Winters and Henderson, who attempted to contact each other thirty-four times in early 2010. The communications included inquiries as to purchase, pricing, and the status of Henderson‘s supply.
In March 2010, officials arrested Terry and Henderson while they were cooking crack-cocaine. They were found in possession of 3,030.90 grams of powder cocaine, 547.91 grams of crack, and various drug paraphernalia, including scales, cooking supplies, and razor blades. Officials also seized a drug ledger containing names of previously indicted conspiracy members and corresponding information on past sales, including quantity, price, and payment dates. Agents attributed one entry to Winters, who went by the street name “Slugga“: “Slug-32,000 Pd Thur 24,000 owe 1,800.” Henderson explained that entry to mean that Winters had purchased a kilogram of cocaine for $32,000, made an initial $24,000 payment, later paid the remaining balance for the kilogram, and carried a balance of $1,800 due to Henderson.1
In June 2010, agents obtained a search warrant for the residence of Timothy Bankston, a suspected member of the conspiracy. When agеnts entered, they found Winters and his girlfriend, Lanekia Brown, who was renting the house from Bankston. Winters had spent the night there, and he and Brown were sleeping on the couch when the agents arrived. Immediately, the agents saw a pistol two inches from Winters‘s leg and partially shoved between the couch cushions. Agent Price, the lead investigator, asked Winters to move toward him, and Winters placed his hands in the air and left the couch. Brown later told the agents that the gun did not belong to her, nor did she keep guns in her house. Winters denied knowledge of the gun.
At a meeting later that day between Winters and Price, Winters admitted that he knew Terry, although he denied involvement with Terry‘s conspiracy. Winters acknowledged that he purchased cocaine from Terry approximately six times between 2005 and 2007 in amounts ranging from 2 to 4.5 ounces.2 Winters stated that he purchased the cocaine in powder form and had someone else cook it into crack-cocaine. In addition, hе admitted to selling about one ounce of crack per month between 2005 and 2007. Winters ended the meeting after refusing to give the agents permission to search his house and music studio.
Agents obtained a warrant to search the house for weapons. They discovered, in plain sight, a surveillance system, digital scales with residue, razor blades, zipper storage bags, measuring cups, baking soda, and marijuana debris but no drugs or weapons.
Winters was arrested about June 2010 and indicted in October. The Friday before trial, Price discovered web pages for Winters on the social networking websites Facebook and MySpace.3 On Winters‘s Facebook page, Price found several pictures of Winters and a photograph of what appeared to be firearms stacked on hundreds of thousands of dollars. On Winters‘s MySpace page, along with pictures of Winters, there was a picture of wrapped packages that resembled many kilograms of cocaine packaged for sale. Winters‘s counsel was not aware of the photographs until the first day of trial—the day before the government intended to introduce them.4 At trial, although neither of the parties was able conclusively to identify the photos, they were admitted.
II.
We review evidentiary rulings for abuse of discretion. United States v. Valencia, 600 F.3d 389, 416 (5th Cir.2010). We affirm if any error is harmless or did not substantially prejudice the rights of the defendant. Id. at 416-17. “In a harmless error examination, we view the error in relation to the entire proceeding, not merely in isolation. Reversal is not required unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.”
A.
Winters disputes the admission of the Facebook and MySpace photographs.5 We find merit in Winters‘s argument that it was an abuse of discretion to admit them, because the government failed to lay a proper foundation and they were unfairly prejudicial.
Federal Rule of Evidence 901 requires that “the proponent must prоduce evidence sufficient to support a finding that the item is what the proponent claims it is.” 6 A photograph can be authenticated by someone other than the photographer “if he recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it.” United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. Unit B 1981).
To satisfy the rule of authentication, the government relied on Price‘s testimony that he had found the photos on Winters‘s website and Winters‘s concession that the websites were his. That was insufficient. A photograph‘s appearance on a personal webpage does not by itself establish that the owner of the page possessed or controlled the items pictured. Because Price was not able to recognize and identify the objects in the photos or show that Winters, let alone any member of the Terry conspiracy, had possession or control of the pictured items, a proper foundаtion was not laid.
Nor can we ignore the failure of the court to exercise its discretion under Federal Rule of Evidence 403 to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice ... [or] misleading the jury[.]” We recognize that “we must afford an especially high level of deference to district courts in such circumstances.” United States v. Fields, 483 F.3d 313, 354 (5th Cir.2007). Despite this high bar, the district court erred. Because the content depicted in the photographs cannot be tied to Winters or the Terry conspiracy, the photos have little probative value as to Winters‘s involvement in the conspiracy. Even more significantly, the pictures, depicting overwhelming amounts of cash, several weapons with silencers, and substantial amounts of cocaine packaged for distribution, are highly prejudicial.
Although the photographs were erroneously admitted, we must affirm “unless the ruling affected substantial rights of the complaining party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003);
We examine each of the convictions separately for harmlessness. Any error did not affect the verdict as to the charge of felon in possession of a firearm. Even the photograph of weapons had no reasonable possibility of contributing to the verdiсt, because the specific gun underlying the conviction was found next to Winters, so the evidence of his guilt on that count was overwhelming, “and the error would not have substantially influenced the jury‘s verdict[.]” Hawley, 516 F.3d at 268.
On the conspiracy conviction, though the admission of the photos was error, independent evidence of Winters‘s involvement in the conspiracy was so overwhelming that the error was harmless. See United States v. Setser, 568 F.3d 482, 495 (5th Cir.2009). Winters admitted to buying cocaine from Terry multiple times between 2005 and 2007. He confessed that he had someone cook it into crack and sold about an ounce per month during that period. Henderson testified that he sold Winters cocaine three times between 2009 and 2010, including a sale of one kilogram. The drug ledger corroborated Winters‘s purchases, suggesting that he had paid several thousand dollars to the conspiracy and also carried an outstanding balance. Phone records demonstrated that Winters continued to contact Hendеrson about purchasing additional cocaine in early 2010. In addition, when agents searched Winters‘s house, they found a four-camera surveillance system, digital scales with residue, and razor blades.
Winters does not dispute that he bought cocaine from Terry and Henderson, but he contends he had no intent to join their conspiracy. Although a conspiracy conviction requires more than a mere buyer-seller relationship, United States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir.1998), “[t]he rule shields mere acquirers and street-level users” from conspiracy penalties.7 Considering Winters‘s admitted sales between 2005 and 2007, his purchase of a kilogram of cocaine, and his prolonged cooperation with Henderson and Terry, this was not a “single buy-sell agreement.” Delgado, 672 F.3d at 333.
Similarly, although mere association with conspiracy members is insufficient, United States v. Robertson, 110 F.3d 1113, 1119 (5th Cir.1997), “[t]he jury can ‘infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others.‘” 8 Furthermore, the drug ledger is significant: “Receiving fronted money in a drug deal is ‘strong evidence of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.‘” Delgado, 672 F.3d at 334 (quoting Posada-Rios, 158 F.3d at 860) (internal quotations omitted). Considering the entire proceeding, there was overwhelming evidence of Winters‘s guilt on the charges of conspiracy to distribute; thus, any error “would not have substantially influenced the jury‘s verdict,” and the admission of the photographs was
B.
Winters maintains that the district court erred in admitting photographs and physical items from Henderson and Terry‘s arrest. Winters avers, without citing evidence rules or caselaw, that the government failed to tie him to the Henderson-Terry drug bust, and it was thus prejudicial to admit that evidence.10 The court did not abuse its discretion.
The evidence from the arrest was relevant under
III.
Winters disputes the sufficiency of the evidence on both counts.11 This court reviews sufficiency of the evidence under a highly deferential standard of review, United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002), determining not whether the outcome was correct but merely whether the verdict was reasonable. United States v. Williams, 264 F.3d 561, 576 (5th Cir.2001). Because we already decided that the evidence, apart from the disputed photographs, was overwhelming, we incorporate that analysis and conclude that “viewing the evidence in the light most favorable to the prosecution, 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, 61 L.Ed.2d 560 (1979); accord United States v. Vargas-Ocampo, 711 F.3d 508, 511 (5th Cir. 2013) (citing Jackson, 443 U.S. at 319).
Winters contends that his trial counsel‘s performance was constitutionally deficient based on alleged failures (1) to make a reasonable effort to determine the source of the Facebook and MySpace pictures; (2) to continue to object to the evidence seized at Terry and Henderson‘s arrest; and (3) to object when the government mis-spoke during closing argument.12 To succeed on an ineffective-assistаnce-of-counsel (“IAC“) claim, a defendant must satisfy both prongs of a two-part test: that performance was deficient, whereby “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and that the defendant was prejudiced, i.e., “that counsel‘s errors were so serious as to deprive the defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). All of Winters‘s claims fail on the first prong.
“To determine whether counsel‘s performance was deficient, we must measure it against an objective standard of reasonable performance based on accepted professional norms.” Sonnier v. Quarterman, 476 F.3d 349, 357 (5th Cir.2007). In failing to determine the origin of the photograph, counsel did not violate professional norms and thus did not perform deficiently. Although an advocate has “a duty to make reasonable investigations [, ] a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.” Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Washington, 466 U.S. at 691). Counsel‘s course of action was reasonable, considering that he did not receive the photos until the first day of trial.
Nor was counsel deficient in his objection to the introduction of the evidence from the Henderson and Terry arrest. Despite Winters‘s claim on appeal, counsel actively participated and fought the government‘s attempt to enter the evidence. Furthermore, the cоurt, after hearing arguments, correctly determined that the drugs from the arrest were relevant and admissible; “trial counsel did not render deficient performance by failing to make a futile objection.” 13
Because of Washington‘s “high bar,” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011), we also decline to second-guess Winters‘s attorney‘s decision not to object to the prosecutor‘s mis-statement at closing argument. Whether to raise objections during closing argument is a strategic decision. Walker v. United States, 433 F.2d 306, 307 (5th Cir.1970). For example, because “an objection may tend to emphasize a particular remark to an otherwise oblivious jury, the effect of objection may be more prejudicial than the original remarks of opposing counsel.” Id.
V.
Winters urges that the government‘s continued reference to the Terry
Allegations of prosecutorial misconduct are reviewed by deciding first whether an improper remark was made and then whether it affected substantial rights. United States v. McCann, 613 F.3d 486, 494 (5th Cir.2010). “[W]e review the propriety of the prosecution‘s arguments de novo, [and] we review the question of whether or not the defendant‘s substantial rights were affected under the abuse of discretion standard.” Id. Whether a statement was improper is considered in light of the entire case.14 Even an improper comment, “standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.” 15 On the second step, whether the remarks affected substantial rights, this court considers “(1) the magnitude of the statement‘s prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant‘s guilt.” 16
Even assuming arguendo that the prosecution‘s characterization was improper, Winters‘s substantial rights were not affected. First, the court‘s proper and undisputed instructions on the required elements of conspiracy, including that the jury must find Winters‘s intent and voluntary participation, served to reduce any risk that the jury might find Winters guilty based on the actions of others.17 Second, as we have already repeatedly noted, the government presented a strong case with evidence specifically relating to Winters‘s role in the cоnspiracy. See id. at 497. Finally, the magnitude of any unfair prejudice resulting from jury confusion does not outweigh the other factors. See Gallardo-Trapero, 185 F.3d at 320-21.
VI.
The presentence report (“PSR“) calculated the amount of cocaine attributable to Winters, concluding that he should be assigned a base offense level of 28 for a conspiracy involving at least two but not more than 3.5 kilograms, plus an increase of one for the offense of felon in possession of a firearm, resulting in a base offense level of 29. See
At the sentencing hearing and in the filed objections to the PSR, Winters objected to the base offense level, arguing that the government “greatly, grossly overstated the amount of drugs for which Mr. Winters should be assessed.” Win-
Although we review underlying factual findings in sentencing for clear error, United States v. Snell, 152 F.3d 345, 346 (5th Cir.1998), we “normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court‘s attention,” Henderson v. United States, 568 U.S. 266, 133 S.Ct. 1121, 1124, 185 L.Ed.2d 85 (2013). This rule exists to encourage parties to raise their objections in the trial court, which is “in the best position to determine the relevant facts and adjudicate the dispute.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Because Winters failed to raise his objections to the use of 4.5 ounces instead of four, and seven versus six sales—so that the trial court would be alerted to the pоtential error, we must review for plain error. To find reversible error under this difficult standard of review, there must be an error, which is clear or obvious, and that affects the defendant‘s substantial rights. Id. at 135. “Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
We can assume that there were errors that were plain in the calculation of cocaine attributable to Winters; the government concedes as much on appeal. We turn then to the third prong, or whether the error affected the outcome of the trial. United States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir.2012) (en banc). In light of the amount of cocaine Winters purchased, the parties agree that the total offense level should have been 27 instead of 29, resulting in a corrected guideline range of 100-125 months. Though Winters was sentenced at the bottom of the incorrect range, he is subject to an enhanced penalty for a prior felony drug conviction with a statutory minimum of 120 months.
The judgments of conviction and sentence are AFFIRMED.