UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FLOYD MCLEAN, Defendant-Appellant.
No. 96-4061
United States Court of Appeals, Eleventh Circuit
April 16, 1998
[PUBLISH]
D. C. Docket No. 94-6114-CR-HIGHSMITH
Appeal from the United States District Court for the Southern District of Florida
Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.
A grand jury charged Floyd McLean in a four-count indictment with one count of conspiracy to possess with intent to distribute crack cocaine, two counts of possession with intent to distribute crack cocaine, and one count of doing so while carrying a firearm. A jury convicted him on all counts, and he was sentenced to 405 months on the conspiracy and possession charges and 60 months, to be served consecutively, on the firearm charge. He appeals both the conviction and the sentence, and we affirm.
The Gucci Hole is the street name for a location in Fort Lauderdale, Florida infamous for the sale of cocaine and marijuana. There, it is alleged, interested buyers can purchase cocaine of unrivaled purity and popularity, earning it “Gucci” label. This location, and the organization that sold narcotics therein, was the subject of an investigation by federal and state law enforcement officers. The appellant was a high-ranking member of the Gucci Hole organization and a target of the investigation. McLean received powder cocaine from the leader of the organization, “Tux” a/k/a Terrance Mohamed, “cooked” it into crack cocaine, and distributed it to street peddlers. McLean then collected the sales proceeds and returned them to Terrance Mohamed.
In order to facilitate the investigation of the Gucci Hole, law enforcement officers set up an apartment in Fort Lauderdale from which they conducted undercover operations. They equipped the apartment with video and audio monitoring devices. Two confidential informants, “Barbara” and “Richard,” contacted McLean in order to set up a controlled sale of a quantity of crack cocaine and an AK-47 assault rifle at the undercover apartment. Richard pretended to be a drug dealer who wanted to buy “Gucci” crack cocaine for distribution in Georgia, and Barbara pretended to be Richard‘s cousin. McLean had several recorded telephone conversations with the informants and agreed to deliver 550 rocks of crack in return for $5,500.
On October 28, 1993, McLean arrived at the undercover apartment accompanied by his wife and co-defendant Anthea Harris. In view of the informants and the video camera surreptitiously taping the encounter, McLean retrieved a bag containing 600 rocks of crack
On March 23, 1994, in connection with undercover law enforcement directed at implicating Terrance Mohamed, Barbara and Richard set up a meeting at which McLean and Lionel Mohamed, Terrance‘s brother, were present. McLean and Lionel Mohamed left the meeting together. Police officers stopped the car that McLean was driving and arrested Lionel Mohamed pursuant to a warrant. A nine millimeter Glock semi-automatic handgun belonging to McLean was seized from the glove compartment, but McLean was not arrested or charged with the firearm‘s possession at that time.
On May 18, 1994, McLean and Harris were arrested outside of their marital residence in Miramar, Florida. Harris consented in writing to the police‘s request to search the residence. Agents found 590.6 grams of crack cocaine in a cabinet under the kitchen sink, a ledger used for recording drug sales, and other drug paraphernalia used in “cooking” powder into crack cocaine. After being advised of their rights, both McLean and Harris gave statements to investigators. When asked if she knew where McLean obtained the drugs, Harris replied, “He gets it from ‘Tux‘.”
A grand jury returned a four-count indictment against McLean and his wife. They both were charged with conspiracy to possess with intent to distribute crack cocaine in violation of
The case against McLean and his wife proceeded to trial on September 20, 1994. During its case-in-chief, the government offered the testimony of law enforcement officers and of the confidential informants Barbara and Richard to describe the October 1993 controlled sale, the March 1994 traffic stop and handgun seizure, and the May 1994 arrest and search. To corroborate this testimony, the government presented audio tapes of telephone conversations between McLean and the informants and both video and audio recordings of the controlled sale. Harris testified in her own behalf and explained that she did not know that, on October 28, 1993, she was accompanying her husband on a drug deal. She also testified that she was unaware of the presence in her house of the crack cocaine and other drug paraphernalia. McLean did not testify at trial, but in his closing argument McLean‘s counsel argued that there was no conspiracy between McLean and his wife and that McLean was unaware of the cocaine slab found under his kitchen sink.
In addition to the evidentiary issues and prosecutorial conduct discussed at length below, the trial was marked by McLean‘s counsel‘s repeated requests for a severance of the trials of McLean and his wife. Upon Harris‘s counsel‘s opening statement, it was clear that Harris‘s theory of the case was that while she suspected her husband‘s participation in the drug trade, she had neither direct knowledge of nor participation in those illicit activities. Therefore, she did not
The jury returned verdicts of guilty against McLean on all four counts charged in the indictment. The jury convicted Harris on two counts, but acquitted her on the charge of possession with intent to distribute the 590 grams of crack found under her sink. McLean filed a timely motion for new trial on the grounds that the district court should have granted his motion to sever his wife‘s trial. This motion was amended to add one additional ground - that McLean‘s trial counsel was ineffective because he did not urge Harris‘s counsel to inform Harris that she retained a spousal privilege not to testify against her husband. The motion was denied.
The government gave McLean notice before trial that it would seek to enhance his sentence because of his prior conviction in the Florida courts for delivery of cocaine. At his sentencing hearing, McLean argued that the government could not do so because of its failure to comply with
II
McLean‘s main contention on appeal is that the district court abused its discretion when it denied his trial counsel‘s repeated requests for a mistrial on the grounds of erroneously admitted prejudicial evidence and prosecutorial misconduct. He argues that the district court erroneously admitted a large amount of prejudicial evidence related to McLean‘s involvement in the Gucci Hole organization, overruling his attorney‘s objections and denying his motion for mistrial. In addition, McLean argues that evidence of his previous arrest and punishment by a Florida court for cocaine delivery was improperly admitted in the government‘s case-in-chief. Finally, McLean cites the prosecutors‘s improper reference to “crack-addicted babies” in his closing argument. The cumulative effect of improperly admitted evidence and prosecutorial misconduct, McLean argues, resulted in an unfair trial and required a mistrial. We are convinced that the evidence concerning the Gucci Hole and describing McLean‘s involvement in that organization was “inextricably intertwined” with the evidence presented on the charges in the
A
Beginning with the government‘s opening statement in which the prosecutor described a “longstanding investigation [of] a rather extensive crack cocaine and marijuana distribution organization in Dade and Broward Count[ies],” McLean‘s counsel consistently objected to the introduction of evidence relating to the Gucci Hole organization, to McLean‘s participation in the organization, and to the government‘s investigation of the organization. On several occasions he moved for a mistrial. Each objection was overruled and each motion for mistrial was denied.
The contested evidenced was adduced mainly during the testimony of Detective Stack and the confidential informant Barbara. Detective Stack described, over objection, the Gucci Hole and the quality of the narcotics sold at that location. He identified other members of the Gucci Hole organization by their nicknames and described their roles in the organization. He also explained the recruitment of the confidential informants Richard and Barbara. Barbara testified extensively about the Gucci Hole and McLean‘s involvement with the organization. She testified that she worked at the Gucci Hole in 1992 and possibly in 1993. She testified that
Following Barbara‘s testimony, McLean‘s counsel again moved for a mistrial, arguing that the Gucci Hole evidence related by Detective Stack and Barbara concerned incidents that occurred prior to the conspiracy alleged in the indictment, and was therefore irrelevant and prejudicial. McLean‘s counsel argued that he had not received any notice from the government of its intention to introduce extrinsic evidence of prior bad acts under
The district court has broad discretion to determine the admissibility of evidence, and we will not disturb the court‘s judgment absent a clear abuse of discretion. See United States v. Ross, 131 F.3d 970, 987 (11th Cir. 1997).
We are convinced that the Gucci Hole evidence was properly admitted. The record does not clearly demonstrate either the government‘s initial theory of admissibility or the court‘s rationale for admitting the Gucci Hole evidence. What the record makes clear is that the Gucci Hole evidence was vital to an understanding of the context of the government‘s case against McLean and, therefore, can be said to be “inextricably intertwined” with the government‘s proof of the charged offenses. For example, the evidence explained why McLean was the target of the government‘s investigation. It explained the relationship between McLean and the confidential informant Barbara and was vital to establishing her credibility. It explained the use of nicknames by members of the organization, such knowledge being necessary for the understanding of other pieces of evidence. It explained what the government alleged to be the goal of the conspiracy between McLean and Harris - the sale of “Gucci” crack cocaine to dealers in Georgia. The Gucci Hole evidence was a necessary part of the evidence relating to the charged offenses and was properly admitted by the district court.
A trial becomes unfair if testimony thus accepted may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected. Such at all events is the result when the purpose in reserve is so obscure and artificial that it would be unlikely to occur to the minds of uninstructed jurors, and even if it did, would be swallowed up and lost in the one that was disclosed.
Id. at 103 (citation omitted).
This is not a case in which the Shepard rule would apply. First, as we have stated, the record is not clear as to the prosecutor‘s initial theory of admissibility or as to the district court‘s reasons for admitting the Gucci Hole evidence. There was, in fact, only very abbreviated argument on the issue. Second, the “theory in reserve” was raised in the district court, and defense counsel had the opportunity to request an instruction that would have prevented the
B
McLean also assigns as error the admission of evidence concerning his previous arrest and punishment for cocaine delivery. Alcohol, Tobacco and Firearms Agent Pamela Bradley testified for the government about the nine millimeter handgun seized at the March 23, 1994 traffic stop. Over McLean‘s counsel‘s relevancy objection, the court permitted her to testify about her interrogation of the defendant at the time of the seizure.
WITNESS: I asked Mr. McLean where he got the firearm and he told me that he had purchased it from an Army Navy surplus store around I-95 and Biscayne in the Miami area. He told me he had purchased the weapon back in early 1993, prior to being picked up by INS and later at a later date he was arrested by Ft. Lauderdale and received an adjudication withheld for which his probation expired in 1994.
MR. ROBBINS: I object to this and move for mistrial.
THE COURT: Overruled.
BY MR. BOMA:
Q. You may continue.
A. He told me his probation had expired in 1994.
Q. When did he purchase that weapon according to what he told you?
A. He told me that he believed he had purchased it in early 1993 but he remembered that it was prior to his being picked up by INS.
McLean argues that Agent Bradley‘s reference to his arrest and probation was improper character evidence. It is clear that the purpose of this evidence was not to attack McLean‘s character but to corroborate the confidential informants’ testimony about McLean‘s October 28, 1993 possession of a nine-millimeter handgun at the controlled sale. McLean‘s reference to his arrest and subsequent adjudication put his ownership of the handgun into a chronological context and established that he did, in fact, own a nine-millimeter handgun at the time that the informants testified to seeing it. Therefore, the evidence was relevant to a charged offense and was properly admitted over objection.
C
McLean argues that in addition to sustaining an objection to the following excerpt from the prosecutor‘s closing argument, the district court should have granted McLean‘s request for a mistrial and the failure to do so requires reversal.
The Government would submit to you that based upon the testimony of the witnesses, there is something unique and distinctive about crack cocaine. And we speak here today not only on behalf of the Government of the United States and it‘s [sic] people but also upon the people, on behalf of the people who have no
voice. Those are the crack addicted babies languishing in hospitals around the country.
We agree that nothing about this excerpt from the prosecutor‘s closing statement has anything to do with “the testimony of witnesses” or with McLean‘s guilt or innocence. It is a blatant appeal to the fears and prejudices of jurors and is obviously improper. Nonetheless, the government is saved from constitutional error by the overwhelming evidence against McLean.
While we appreciate zealous advocacy, argument pertaining to the emotions and not to the evidence is not to be tolerated. We recognize that serving as a prosecutor is one of the most difficult roles within the legal profession. Those attorneys who are clothed with the authority of the United States of America should not bear the responsibility lightly - they are charged not only with the enforcement of federal law but also with the maintenance of the highest ethical standards. We encourage trial judges, primarily responsible for safeguarding the integrity of our courts, to punish all lawyers whose arguments violate the high standards we should all demand.
III
McLean argues that the evidence was insufficient to support his conviction on count three of the indictment, the possession with intent to distribute the nearly 600 grams of crack cocaine seized from beneath his kitchen sink on May 18, 1994. The sufficiency of the evidence produced at trial is a question of law that we review do novo. See United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990). We will affirm the jury‘s verdict if, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in the
Law enforcement officers discovered the cocaine under McLean‘s kitchen sink after receiving Harris‘s consent to search their residence. In addition to the cocaine, they found items used to cook and measure cocaine and ledgers used, according to witnesses, to keep track of the amount of drugs bought and sold. The jury also heard evidence from Detective Stack and from Barbara that McLean was a drug dealer, highly ranked in the Gucci Hole organization. There was ample evidence from which the jury could have concluded beyond a reasonable doubt that McLean possessed the crack cocaine with intent to distribute.
IV
McLean raises what we believe to be a novel ineffective assistance of counsel claim. He argues that his trial counsel should have set in motion events that would have resulted in Harris‘s exercise of her spousal privilege not to testify against McLean and required the severance of their trials. See Zafiro v. United States, 506 U.S. 534 (1993). The failure to advise McLean to tell his wife to exercise her privilege, or the failure to urge Harris‘s counsel to so advise his client, the argument goes, rendered the representation constitutionally ineffective. We generally do not hear claims of ineffective assistance counsel on direct appeal because there seldom has been sufficient opportunity to develop the record with regard to the merits of these claims. See United States v. Camacho, 40 F.3d 349, 355 (11th Cir. 1994). Such it is in this case. McLean can save his argument for a
McLean raises two issues with regard to his sentencing, both concerning the government‘s alleged failure to comply with the requirements for proving a prior conviction for enhancement purposes found at
Section 851(a)(1) states as follows:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon.
McLean asserts that the “Notice of Intent to Rely Upon Sentencing Enhancement under
Section 851(a)(2) adds another requirement if the sentencing enhancement sought by the government exceeds three years.
An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.
In United States v. Harden, 37 F.3d 595, 601 (11th Cir. 1994), we held that this ambiguous subsection requires the government to do what the Fifth Amendment already requires, prosecute by indictment every offense for which the government seeks an enhancement of more than three years. In so holding, we considered and rejected Harden‘s argument that we must avoid an interpretation that rendered the statute superfluous. Id. McLean, in effect, asks us to revisit Harden in order to find an interpretation of
For the foregoing reasons, McLean‘s conviction and sentence are AFFIRMED.