United States v. SextonUnited States v. Sexton
Victoria D. Little, Giget C. Johnson-Taylor, Decatur, GA, T. Andrew Dowdy, T. Andrew Dowdy Law Offices, Cornelia, GA, John Allen Brooks, Chattanooga, TN, for Defendants-Appellants.
Before MERRITT, MOORE, and GILMAN, Circuit Judges.
MERRITT, Circuit Judge.
Defendants Norman T. Sexton, James A. Legg, and Richard Romans challenge, on a wide variety of grounds, their convictions and sentences following a 23-day trial. All three defendants were convicted of conspiracy to distribute cocaine in violation of
For the following reasons, we affirm the judgment of the district court.
I. Background
Defendants Roman and Legg lived on a large tract of rural land in East Tennessee owned by Legg. Several cabins on the property served as the personal residences of Legg, Romans, coconspirator Sarah Moss and several others involved in the conspiracy. Defendant Sexton lived nearby and owned a local bar named “The Rhode House.” The cabins on Legg‘s property and the Rhode House bar served as primary locations from which most of the drug dealing of the conspiracy was conducted. The conspiracy involved a large number of individuals over a four-to-five-year period. Sexton was the primary
Police started surveillance and undercover operations of the conspiracy in 1995. Confidential informants, as well as undercover officers, were used to purchase cocaine from Legg and Romans on several occasions. Defendants were arrested in 1999 and stood trial together in late 2000. Coconspirator Sarah Moss was also named in the indictment with these three defendants, but she pled guilty and did not stand trial. We will incorporate the relevant facts into our review of individual issues.
II. Evidentiary Issues
The trial lasted 23 days. At trial, 47 witnesses were called to testify, including indicted and unindicted coconspirators and various law enforcement officers. The government also used tape recordings of controlled cocaine buys to present evidence proving the existence of a conspiracy involving defendants.
A. Admission of Testimony of Coconspirators
The district court admitted at trial the testimony of several indicted and unindicted coconspirators, including Robert Thompson, Tony Phillips, Elizabeth Sexton, Roger Pilgrim, Eugene Jones, Darlene Estill and Karen Slutton, ruling that the statements were made during and in furtherance of the conspiracy and are therefore exceptions to the hearsay rules.
Defendants argue both that the government failed to show that a conspiracy ex-
The evidence of a conspiracy relied upon by the district court to conditionally admit the statements includes Officer Bryant‘s undercover activities and controlled buys from Legg, recorded conversations between and among informants, coconspirators and Legg and Romans, observations by officers of meetings between and among coconspirators during and after drug transactions and the actual seizure of drugs on Legg‘s property. For example, the court cited the testimony of Darlene Estill, who was Legg‘s girlfriend and lived with him off and on for four years, including during the existence of the conspiracy. She was involved in Legg‘s drug activities and testified that he supplied cocaine to Romans and Sarah Moss. Estill testified that Legg told her that defendant Tim Sexton was Legg‘s supplier. While she lived with Legg she knew of more than a dozen customers of Legg‘s, including Romans and Moss, who then resold cocaine to others. She testified that Legg would take money from drug transactions to Sexton‘s house and would sometimes return from those visits with more drugs to sell. Estill recorded a conversation with Sarah Moss that indicated that Sexton sometimes provided drugs to Romans, Legg and Moss for resale and Moss joked about competition between Romans and her for cocaine customers. The court cited numerous other items of testimony to indicate that Legg, Romans, Sexton and Moss, along with others, engaged in a drug conspiracy during the time in question. Trial Trans. at 3060-66, J.A. at 3395-3401.
In addition to challenging the existence of a conspiracy, defendants also challenge whether the admitted coconspirator statements were made “in furtherance of the conspiracy.” A statement is “in furtherance” of a conspiracy if it is intended to promote the objectives of the conspiracy—here to sell cocaine. United States v. Clark, 18 F.3d 1337, 1342 (6th Cir.1994). Many of the admitted statements were made by coconspirators during the course of an actual drug transaction. Some of the statements informed other conspiracy members or customers about the source of the cocaine, and the hierarchy or the roles of various persons in the conspiracy. Trial Trans. at 3070-72; J.A. at 3405-07.
Defendants further contend that the court is required to review each offering by the government separately to determine if a particular statement is one in furtherance of the conspiracy. Before making a determination as to whether the statement was admissible under
B. Tape Recordings Made by Informant Eddie Goins
Tapes were made by confidential informant Eddie Goins during several controlled buys from coconspirator Sarah
Defendants challenge the court‘s admission of the tapes on the following grounds: (1) that Goins’ testimony was necessary to introduce the tapes into evidence and to allow them to cross-examine and impeach Goins; (2) the tapes were not properly authenticated and the voices on the tapes were not properly identified; (3) the tapes were inadmissible without the admission of the two fabricated Goins tapes; (4) the admission of the tapes violated their
1. Authentication and Voice Identification under the Federal Rules of Evidence
Romans also argues that the voices on the tape recording of Goins’ conversations with coconspirators have not been properly identified.
2. Hearsay Rules and the Confrontation Clause
The district court did not admit Goins’ statements on the tape under
Romans and Sexton further erroneously contend that the admission of Goins’ tape-recorded statement violated their
The statements were clearly admissible under the Supreme Court‘s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Mar. 8, 2004). Because Goins’ statements were not offered for their truth, they are not hearsay, and the other statements fall within well-established exceptions to the hearsay rule—either as admissions or statements of coconspirators.
3. Error to Allow Use of Transcript
Romans asserts that the court erred when it permitted the jury to use transcripts as an aid while listening to the tape recordings of Goins and various coconspirators. Police witnesses testified that they had listened to the tapes and that the transcripts accurately reflected the content of the conversations and the identity of the speakers. See
4. Exclusion of the Two Fabricated Tape Recordings
Defendant Romans also contends that the district court erred in excluding the two fabricated tape recordings made by informant Eddie Goins because they would have demonstrated Goins’ lack of trustworthiness and impeached his credibility pertaining to the tapes of the controlled buys that were admitted. Romans asserts both error in the evidentiary ruling excluding the tapes, as well as Confrontation Clause problems arising from the lack of opportunity to cross-examine and impeach Goins on the fabricated tapes.
The government stipulated to the fabrication, and the jury was told of the stipulation and fabrication. The jury was well aware of the existence of the fabricated tapes. Defense counsel reminded the jury on numerous occasions throughout the trial proceedings about Goins’ deception, driving home the point of his untrustworthiness. We fail to see how the failure to allow the playing of fabricated tapes could have affected the outcome of the trial or prejudiced the defendants.
C. Cross-Examination and Impeachment of Witnesses
Defendant Sexton challenges a large number of evidentiary rulings concerning cross-examination of defense and government witnesses. First, Sexton argues that the district court impermissibly limited the scope of cross-examination of government witnesses by Sexton‘s counsel, particularly those serving as informants or coconspirators who provided testimony in exchange for more favorable sentences, grants of immunity, or, in the case of Eddie Goins, received payment for his informant role. Sexton claims that he was not allowed to expose the “quid pro quos” and inconsistent statements of various witnesses, nor was he able to cross-examine Sally Moss or Eddie Goins at all.
A balance must be struck between permitting a trial court to exercise its sound discretion and affording a criminal defendant the opportunity to expose bias and prejudice. Clearly, cross-examination concerning the partiality of a witness is always relevant. United States v. Touchstone, 726 F.2d 1116, 1122 (6th Cir.1984). Therefore, a trial court may not prevent a criminal defendant from exploring a witness’ bias, prejudice, or motive for testifying, or curtail cross-examination concerning whether testimony is given with the expectation of immunity or out of fear or coercion.
In determining whether a trial court erred in allowing only limited cross-examination as to motive, bias, or prejudice, a reviewing court must decide “whether the jury was otherwise in possession of sufficient information concerning formative events to make a ‘discriminating appraisal’ of a witness’ motives and bias.” Touchstone, 726 F.2d at 1123 (quoting United States v. Campbell, 426 F.2d 547, 550 (2d Cir.1970)); United States v. Baker, 494 F.2d 1262, 1267 (6th Cir.1974). When a cross-examiner is not permitted reasonable latitude to develop facts that tend to demonstrate that the testimony in chief is biased and sufficient independent evidence of bias is not available to the jury, the trial court has abused its discretion.
The district court allowed some cross-examination of all the witnesses that testified. In those circumstances where the trial judge did restrict cross-examination, it was generally because it was going beyond the scope of the
With regard to Elizabeth Sexton, Tim Sexton‘s cousin, defense counsel objected when the court relied on
Sexton contends that certain defense witnesses were improperly cross-examined by the government. One witness was asked about his invocation of the
Finally, Sexton challenges the impeachment of his character witnesses, the fact that he was limited to introducing three character witnesses and the district court‘s refusal to give the jury instruction he requested concerning character witnesses. The character witnesses testified as to Sexton‘s reputation as a law-abiding citizen. The government cross-examined these witnesses about Sexton‘s friendship with known cocaine dealers and users, which Sexton challenged as “guilt by association.” The questioning was permissible impeachment testimony to counter the testimony that Sexton was a law-abiding citizen. As to the number of character witnesses and the jury instruction, the court has discretion to limit the number of character witnesses, particularly where there are no extraordinary circumstances, such as here. The three witnesses testified as to Sexton‘s law-abiding reputation in the community and the fact that he was a law-abiding citizen. Further witnesses testifying to these matters would have been redundant. Sexton requested that the court
D. Chain of Custody of Drug Evidence
Romans also contests the admission of the cocaine obtained through the controlled buys with Goins, arguing that the government failed to establish a proper chain of custody. Physical evidence is admissible when the possibility of misidentification or alteration is “eliminated, not absolutely, but as a matter of reasonable probability.” See United States v. Allen, 106 F.3d 695, 700 (6th Cir.1997) (citations omitted); United States v. McFadden, 458 F.2d 440, 441 (6th Cir.1972). Merely raising the possibility of tampering or misidentification, without more, is insufficient to render evidence inadmissible. United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir.1994). Furthermore, “challenges to the chain of custody go to the weight of the evidence, not its admissibility.” United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990); see also United States. v. Combs, 369 F.3d 925, 938 (6th Cir.2004). Given the consistent testimony of witnesses with knowledge about the events, the district court did not err where ample evidence supported a finding that the cocaine was obtained in the manner described by the government. Romans merely raises the unsupported claim that someone may have tampered with the evidence; he points to no evidence supporting such a claim. The challenge to the authenticity of the drugs seized during the controlled buys is pure conjecture, based on nothing more than the fact that Goins fabricated two tapes.
E. Sarah (aka Sally) Moss Guilty Plea
Sarah Moss was an original codefendant who pleaded guilty prior to trial. The government then called her to testify after requesting immunity for her pursuant to
Once on the witness stand, Moss admitted to pleading guilty to the conspiracy but denied she had engaged in any drug trafficking with defendants and testified that she did not know anything about their involvement in a conspiracy. After being pressed by the government on direct examination, she acknowledged the existence of her recorded statements purporting to sell cocaine to Eddie Goins. She eventually refused to testify further. Because the court had granted the request for immunity, it informed Moss she could no longer rely on her
The government attempted to impeach Moss by entering her guilty plea into evidence, which established Moss’ involvement with the conspiracy. Generally, the guilty plea or conviction of a codefendant or coconspirator is not admissible at trial, and such guilty pleas and convictions are never admissible as substantive evidence of another defendant‘s guilt. United States v. Blandford, 33 F.3d 685, 709 (6th Cir.1994). Evidence that a coconspirator has been convicted of conspiring with a criminal defendant is generally inadmissible because it might lead the jury to “regard the issue of the remaining defendant‘s guilt as settled and [conclude that]
Nevertheless, guilty pleas and convictions may be introduced into evidence if the coconspirator or codefendant testifies at trial, so that the factfinder will have appropriate facts to assess the witness’ credibility. When a guilty plea or conviction is introduced into evidence, the district court is required to give a cautionary instruction to the effect that the jury may use the conviction or guilty plea only to determine the testifying witness’ credibility.
To address this turn of events, the court prepared, sua sponte, a jury instruction based on the Sixth Circuit Pattern Jury Instructions § 7.08:
You have heard the testimony of Sarah Moss. You have also heard that this individual was indicted for the same crime that the Defendants are charged with committing. You should consider the testimony of this witness with more caution than the testimony of other witnesses.
Do not convict the Defendants based on the unsupported testimony of such a witness, standing alone, unless you believe her testimony beyond a reasonable doubt.
You are also instructed that the fact that Sarah Moss has pleaded guilty to a crime is not evidence that the Defendants are guilty, and you cannot consider this against the Defendants in any way.
Defense counsel objected to this instruction. Moss persisted in her refusal to testify, even after the judge brought her back to the courtroom before the close of the evidence. The judge indicated to counsel that he was inclined to strike her testimony; but because it was partially exculpatory to defendants, he would let defense counsel decide the issue. At defense counsels’ request, the court struck all of Moss’ testimony and instructed the jury to disregard it.
Where the court strikes evidence and instructs the jury to disregard it, the normal rule is that the error is cured unless the testimony is “so prejudicial that the jury could not be trusted to disregard it.” United States v. Stines, 313 F.3d 912, 919 (6th Cir.2002). Here, the testimony was not “so prejudicial that the jury could not be trusted to disregard it.” Moss’ testimony was at least partially exculpatory. She claimed to have no knowledge of a conspiracy or of defendants’ participation in one. The jury did know, however, that she pleaded guilty to a conspiracy with the defendants and defendants never had an opportunity to cross-examine her. Given the mixed nature of Moss’ testimony, and the instruction by the court to disregard all of her testimony, any error was harmless.
III. Other Claimed Trial Errors
A. Legg‘s Motion to Suppress
Legg moved to suppress evidence seized during execution of a search warrant issued by a Tennessee state court magistrate judge. The items seized were narcotics, guns and money. The motion was denied, but the suppression hearing was reopened during the trial after it was determined that the officer who swore out the affidavit supporting the search warrant had lied about certain facts in the affidavit. Applying Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),2 the district court struck the false parts of the affidavit, but found that the remaining portions provided probable cause to believe evidence of drug trafficking would be found on Legg‘s property. The court also found that the “open fields” doctrine applied to the search, denying Legg any reasonable expectation of privacy in the evidence hidden in the wooded area around his home.
The warrant had been obtained the day before the search was executed based on an affidavit sworn to by Officer Cherilyn Bryant, an undercover officer with the Chattanooga Police Department. In her sworn affidavit, Bryant stated that she had purchased cocaine from Legg and a man named William Burnette, also known as “Computer,” on numerous occasions and had observed others purchasing cocaine from Burnette. The property to be searched had several cabins and was identified as belonging to Legg.
The evidence seized included narcotics, guns and money from various locations around Legg‘s property. At issue in the suppression hearing was $4100 in cash and a coffee creamer jar wrapped in black electrical tape containing 6 ounces of cocaine found hidden in two separate places in a wooded area behind Legg‘s residence. A federal magistrate judge issued a report and recommendation in March 2000 recommending that the motion to suppress be denied. No objections were filed by either side at that time to the report and recommendation.
During the trial in November 2000, Officer Bryant admitted that she had fabricated part of her affidavit and that she had never purchased cocaine from Legg, and she had only witnessed one occasion of someone purchasing cocaine from Burnette. Based on this admission by Officer Bryant, Legg renewed his motion to suppress. The court found that Officer Bryant did fabricate parts of her affidavit and struck those parts of her affidavit. After striking those parts, the court found that sufficient probable cause remained to support issuance of the warrant in and around Legg‘s property. The court relied on those portions of the affidavit that stated that Officer Bryant had witnessed Legg preparing and consuming crack cocaine at his residence, directing an unknown person to purchase cocaine from Burnette and observing Burnette retrieving cocaine hidden in or near the garage on the property. Legg has not disputed the veracity of these statements in the affidavit.
At the suppression hearing during the trial in November 2000, Officer Narramore, a member of the surveillance team, testified that he positioned himself on a ridge about 80-100 feet above the cabins. He saw Legg walk by him about 20 feet away on a logging road carrying a container wrapped in black tape, which he hid under a rock. He walked 20 more feet and placed another container under another rock. The officers investigated after Legg left and found the 6 ounces of cocaine in one container and the $4100 in the other.
The search warrant, even with the discredited portions removed in accordance with Franks, gave the officers ample probable cause to be on or near the property preparing to execute the search warrant. The officer then witnessed the sus-
B. Ex Parte Communication between Judge and Juror
Sexton contends that a brief ex parte communication concerning personal matters between the court and three jurors was error. When it became evident that the trial was going to take longer than anticipated, the court entertained requests by the jurors to be excused for personal reasons. Ultimately one juror was excused. “There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.” Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). The court told the parties he planned to hear from the jurors about personal hardships relating to the lengthy trial. No party objected, so we review for plain error and find none.
C. Sufficiency of the Evidence
Defendant Sexton argues that the evidence is insufficient to convict him of conspiracy. We have held that:
In determining whether the evidence supporting [the defendant‘s] conviction is sufficient, we must ask “whether, after 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.”
United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In order for a criminal defendant to be found guilty of conspiracy under
Evidence from coconspirators, law enforcement, informants and the recorded controlled purchases demonstrate Sexton‘s role as the main supplier for the conspiracy. The evidence demonstrates that Sexton was the main supplier for Moss, Legg and Romans; other witnesses also stated that Sexton was their main supplier. At least five witnesses (Estill, Jones, Elizabeth Sexton, Thompson and Phillips) identified Sexton as their drug supplier. Robert Thompson testified that he purchased cocaine directly from Sexton, but Sexton told him to purchase from someone else in the future. In tape recordings made between Sarah Moss and Eddie Goins during controlled buys Goins made from Moss, Moss identifies Sexton as her supplier. Law enforcement officials who monitored the controlled buys between Goins and Romans observed Romans meeting with Sexton immediately following drug sales by Romans. Drugs were frequently sold from Sexton‘s Rhode House bar, including the controlled buys. Viewing the evidence in a light most favorable to the government, there is no question that the government offered sufficient evidence during trial from which a reasonable jury could find Sexton to be guilty beyond a reasonable doubt of conspiracy to possess with the intent to distribute cocaine in violation of
D. Jury Instructions
Defendant Romans claims that the court failed to instruct the jury on his defense theory—a theory based solely on the fact that because Goins lied on two fabricated tapes, any evidence connected to him should be disregarded. No specific instruction was submitted on Romans’ defense theory, but Romans did request a specific instruction that Goins had fabricated evidence and therefore all the tapes between Goins and Romans should be disregarded. The district court decision not to give this specific instruction was not error. The jury had been told about the fabricated tapes, and the defense had told them repeatedly that Goins was untrustworthy. A separate jury instruction about this untrustworthiness was not required.
E. Remaining Issues Concerning Sexton
The remaining issues deal with Sexton‘s complaint that there was prosecutorial misconduct in connection with the cross-examination of his witnesses, both fact witnesses and character witnesses, and that the judge was biased against his counsel and therefore “chilled” his defense, resulting in ineffective assistance of counsel. He also claims the court erred in limiting his character witnesses to three.
As to the prosecutorial misconduct in connection with the cross-examination of his witnesses, Sexton charges that the government made impermissible inquiries to these witnesses to establish “guilt by association.” As discussed supra, the cross-examination was generally proper and any evidentiary error was harmless. To rise to the level of prosecutorial misconduct, Sexton must demonstrate intentional misconduct or reckless disregard for the truth by the prosecution in its cross-examination. Sexton presents no evidence that any errors during cross-examination rise to that level.
The “judicial bias” claim is meritless. This was a 23-day trial and the district court was called upon to make difficult rulings. A review of the testimony and rulings provide no evidence of bias against defendant Sexton or any other defendant.
IV. Sentencing Issues
A. Drug Quantities
The district court sentenced defendants under
The defendants claim that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was violated by the district court when, in determining base offense levels under the Guidelines, it held the defendants responsible for a quantity of drugs not determined by the jury. The fact that the district judge computed the defendants’ sentences under the Guidelines using a quantity of drugs not found by the jury is irrelevant under Apprendi so long as the resulting sentence is below the prescribed statutory maximum for the conviction. See United States v. Solorio, 337 F.3d 580, 596-97 (6th Cir.), cert. denied, 540 U.S. 1063, 124 S.Ct. 850, 157 L.Ed.2d 723 (2003); United States v. Lawrence, 308 F.3d 623, 634 (6th Cir. 2002) (”Apprendi by its terms applies only where the finding ‘increases the penalty for a crime beyond the prescribed statutory maximum,’ and we have squarely held that Apprendi does not apply to the Guidelines.“); United States v. Garcia, 252 F.3d 838, 843 (6th Cir.2001) (”Apprendi does not purport to apply to penalties in excess of any particular range or based on any particular offense level under the Sentencing Guidelines.“). As the sentences did not exceed the standard range applicable to their convictions, these arguments are without merit.
B. Role in the Offense
Sexton and Legg contend that their roles in the conspiracy did not warrant an enhancement pursuant to U.S.S.G. § 3B1.1(b). U.S.S.G. § 3B1.1(b) calls for an increase in defendant‘s base offense level if he occupied a position of leadership or supervision. The comment to § 3B1.1(b) lists relevant factors to be considered.
The evidence established that Sexton was the organizer or leader of a large group of people, including Legg, Romans and Moss. Sexton dictated who would receive cocaine to sell and the price to be charged. The evidence also clearly showed that Legg distributed cocaine through several individuals, including Randal Trevino, Herbie Payne, Darlene Estill, Sarah Moss and defendant Romans. The conspiracy involved more than the five people necessary for an adjustment under the guideline. The four-level enhancement for Sexton and the three-level enhancement for Legg were not error.
For the foregoing reasons, the judgment of the district court is affirmed.