United States v. Thomas Clifford Whitmore, AKA Lil Tommy, AKA Young Tommy

rеmaining severed try the jurisdiction America, STATES UNITED count. firearm Plaintiff-Appellee, one com- least “[a]t claims Powell also may not be that there has observed mentator of an indict- all counts until judgment a final WHITMORE, aka Lil Thomas Clifford resolved,” Wright, citing 15B ment have been Tommy, Young Tommy, aka and Pro- Practice Cooper, Federal &Miller Dеfendant-Appellant. cited at 536-37. § 3918.7 cedure judgment final is no that there section states No. 91-50240. counts, but on some imposed is “if sentence Appeals, imposition of sen- expressly the court defers Ninth Circuit. 3918.7, at 536- counts.” the other tence on added). present- The situation (emphasis 4, 1993. Oct. Argued and Submitted distinguishable from is Wright & Miller ed in This case in this cаse. presented May the one Decided imposing the district involve does not impo- deferring counts sentence some Rather, it other counts. of sentence sition sentences separate of two imposition

involves separately counts, of which each on severed As Smith appealed. separately triеd final, here are concluded, judgments “[t]he not affect appeal did notice of the first remain- jurisdiction over the trial court’s P.2d at 1082. charges.” 785 Grouping C. Offenses reply brief suggests Powell sentencing under offenses grouping of disadvantage might Sentencing Guidelines separately on sentenced him if he were be may possibil- be counts. Whilе several ‍‌‌‌‌‌​​‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​​​‌​‌​​‌​‌‌‌‌​‌​‌​​‌‌‍keep in mind should ity courts the district severance, clearly a moot it following a Powell, of his given the reversal issue counts.3 first three on the convictions IV CONCLUSION court had the district We conclude firearm count. try the severed jurisdiction to AFFIRMED. other of the reversal argument reach in view responded oral 3. The Government groupable with charge charges. was not that the firearms we need charges. an issue also is the other This SKOPIL, HALL, RYMER, Before: and Judges. Curiam; by Judge Per Concurrence RYMER.

PER CURIAM: appeals Thomas Clifford Whitmore variety convictions for a of narcotics-related offenses. and 15 co-defendants charged in a 44-count indictment with drug-related gov- numerous offenses. The theory placed ernment’s the case Whit- ongoing more the center of an narcotics conspiracy, began early which 1986 and August continued until arrest in Whitmore’s jury 1990. A found counts. reject challenges most of Whitmore’s Here, unpublished disposition.

in an we con- appeal sider Whitmore’s of his two convic- faсility tions for a communication engage trafficking. U.S.C. 843(b). appeal requires This us to decide whether the district court’s failure to instruct element of the offenses is

I appeal opinion

This considers Whitmore’s of his convictions on Counts 25 and 30. that, charged Count 25 of the indictment July Rodney Hair- Whitmore and (the tele- ston used a communication device committing causing fаcili- phone) “in of’ 21 tating the commission of a violation 841(a)(1), posses- distribution and intent to distribute cocaine. The sion with presented evidence Whit- underlying placed telephone call more Count 25.- that, charged Count 26 of the indictment 19, 1990, Whitmore, date, ‍‌‌‌‌‌​​‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​​​‌​‌​​‌​‌‌‌‌​‌​‌​​‌‌‍July on the same Hairston, and two other co-defendants violat- distributing in by ed 21 U.S.C. Kallins, Francisсo, CA, R. Maureen San grams In other excess of 500 cocaine. defendant-appellant. for words, the two counts concerned same transaction; pertains to the under- Count Lench, Atty., Ange- Los Lisa B. Asst. U.S. by use of lying offense which was facilitated les, CA, plaintiff-appellee. subject of Count 25. that is on Count convicted Whitmore chаllenge the suffi-

and Whitmore does then returned to bag; supports the out evidence cieney of the fanning himself with apartment, instructed Rivers’s The district jury’s verdict. money. knowledge required Daniels appeared to be regarding the what later, violation,1 time away, and Whitmore and a short Hayes § drove for a violation; in- adequacy of those pulled for a traffic not contest over does car, intention- they The defendant “First: discovered structions: searched the officers [sic] control substance ally cocaine. bag containing delivered rock plastic black the indict- count of particular charged in the touch and was cold to bag The wаs defen- person. Second: The ment to another found The with condensation. covered was controlled substance what the dant knew guilty on 31. Count Whitmore indictment, or particular count in the drug.” prohibited some other II are similar. relating to Count 30 facts The for argues that his convictions Whitmore and charged that Whitmore The indictment facility engage in to of communication use Rivers, a tele- July used on Tara 21 trafficking in violation of of 21 U.S.C. a violation phone to facilitate 843(b),2 because the dis- must be reversed 841(a)(1), intent to dis- possession with the left out a improperly trict instruction court’s pre- tribute cocaine base. knowl- of the offense —his material element Whitmore evidence that sented object to the did edge.3 As Whitmore well. underlying this count as phone call trial, for instruction review at the of that time shows The evidence Garcia, 965, 969 v. 988 F.2d States United to conversation, attempting was Whitmore Cir.1993). (9th rock give to him Daniels with John meet conversation, cocaine, during the and that recеntly out Supreme fleshed Court bags to take two Rivers directed Whitmore obtaining a reversal requirements for place and them refrigerator 52(b) from the plain error. United Rule upon based board. drain -, 113 S.Ct. (1993). First, 1770, there 508 123 L.Ed.2d charged indictment 31 of the Count from a an ‘error.’ Deviation must “indeed be 1990, 25, later, July days two rule has been legal is ‘error’ unless the rulе grams of a substance contain- delivered 480.5 -, at 1777. Id. at waived.” The evidence reveals ing cocaine base. “ Second, ‘Plain’ ‘plain.’ the error must be and 25, met with Daniels July or, equivalently, ‘ob- synonymous with ‘clear’ Jr., individual, Hayes, near Kisa another “ ” Third, ‘affec[t] must the error vious.’ Id. apartment; Whitmore of car outside Rivers’s ” at-, rights.’ 113 S.Ct. at Id. substantial plastic pants a black pulled from sweat is, (alteration That “the car, original). 1777-78 got into the Daniels bag; It must prejudicial: later, have been with- error must Whitmore left a few minutes 21 of the Section of Title of Knowledge element of offense violation is a 1. material Code, government must with intent to distribute. States possession of cocаine of Arambula-Ruiz, 599, 987 beyond v. the de- prove United States doubt that reasonable bring 603 help telephone to about used a fendant charged conspiracy to cocaine distribute part: pertinent provides 2. 21 U.S.C. indictment, bring about or to One of the Count any person knowingly for It shall be unlawful of, possession with for distribution intentionally any fa- use communication or substance. to distribute a controlled intent causing committing or facilitat- cility or in revised since the Instruction has been The Model any acts ing of act or constitut- the commission trial, now includes time Whitmore’s of any provision sub- felony of this under prove government must requirement that “the chapter. chapter subchapter II of this or doubt that the defendant a reasonable added.) (Emphasis knowingly [a communica- or used Circuit a version of Ninth 3. The instruction was underlying help device] [the about tion longer in is no 9.04E Model Instruction Model Crimi- offense].” Manual substantive force. It read: 9.04E, Jury nal Instructions Ninth defendant to be found In order for the at 278 facility in illegal usе a communication (9th denied, Cir.1983), cert. 465 U.S. the District the outcome of have affected 1593, (1984); 80 L.Ed.2d proceedings.” Turner, noted, inquiry under As the Court denied, Cir.), “harmless er- is identical to prong third 52(a), “with one analysis under Rule ror” and cert. It is the defendant difference: important 105, 50 L.Ed.2d 103 bears the who rather than the Government (1976).6 is essential is that defen What preju- rеspect to persuasion with burden or the com dant knows that he she eases, Appeals the Court In most dice. drug trans munication device to facilitate the unless the error correct the forfeited cannot respect to each of the action. With prejudi- error was shows the defendant case, therefore, prosecu charges in this the Id. cial.”4 proving the burden of that Whit- tion had telephone to he was more knew these if meets Even a defendant drugs. the distribution of further however, appel an requirements, threshold obligated to reverse is not late court in “plain,” also the sense The error was Appeals of should “The Court convictiоn. at the it “clear under current law” that was affecting sub plain a forfeited error correct jury. district court instructed time the ‘seriously affectfs] rights if the error stantial —Olano, at-, at 1777. 113 S.Ct. U.S. fairness, integrity public reputation of or establish that and Turner both Whitten ” at-, 113 S.Ct. judicial Id. proceedings.’ of the knowledge is an essential element (alteration original) (quoting Unit- in at 1779 843(b) prosecution. § government’s case 157, 160, Atkinson, 56 297 U.S. ed States v. (1936)).5 391, 392, 555 80 S.Ct. L.Ed. believe, however, that do not requirement of Rule error meets the third Ill error, 52(b), in the circumstances of since the case, did “affect substantial Whitmore’s stan apply plain error nowWe rights.” 113 S.Ct. 1777-78. dards, to Whitmore’s as articulated Rather, ‍‌‌‌‌‌​​‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​​​‌​‌​​‌​‌‌‌‌​‌​‌​​‌‌‍the error was harmless 843(b) in challenge to the district court’s of an “The harmfulness reasonable doubt. question the district There is no struction. necessarily in or be considered error must instruction basing court erred its plain error if the error is der to determine of Model exclusively version older reversal, if an justifying error because 9.04E, including in an without Instruction harmless, error.” United plain it cannot be knowledge or in struction as to Whitmore’s (9th Gaudin, 1267, 1271 997 F.2d v. States knowledge element of tent. The Hoac, Cir.) Hien Hai (citing v. United States prove that the requires to (9th Cir.1993), 1099, cert. de F.2d 1109 990 knowingly used or defendant - 1075, nied, -, 114 127 S.Ct. U.S. to aid or device order the communication (1994)),reh’g granted, 5 en banc L.Ed.2d 392 underlying criminal violation. facilitate the Cir.1993). (9th 1000, Whitten, F.3d 374 706 F.2d States v. United - U.S.-, denied, omitted), judgment tion marks cert. specifically reserved (1993). category special “a of for- 333 whether there exists 114 S.Ct. regardless corrected of errors that can be feited outcome_” - their effect on the -, 1318, Dotson, 871 F.2d States v. 6.Accord United 113 S.Ct. at 1778. (6th Cir.1989), grounds, on other amended 1321 denied, (6th Cir.), 498 U.S. cert. 895 F.2d 263 Olano, decision in 5. Prior to the Court’s 94, (1990); 831, 66 S.Ct. Bаrnes, 112 L.Ed.2d 111 discretionary-relief component phrased of Cir.), 717, (11th 723 681 plain terms: "Reversal of test in similar error grounds, 233 694 F.2d on other amended error is conviction on the basis criminal 1046, denied, 1982), S.Ct. 103 cert. 460 Cir. only remedy, exceptional which we invoke an 1447, (1983); v. United States 75 necessary prevent appears to a miscar- it (5th Cir. Unit A Rey, n. 6 641 F.2d 224 integrity justice preserve riage or to Mar.), 454 U.S. judicial process.” reputation Williams, (9th Cir.) (quota- 70 L.Ed.2d 990 F.2d v. Where a trial court -, (Fifth fails to instruct at 2080-82 the jury as to the or intent that is require Sixth Amendments an actual crime, material element of finding the error is beyond a reasonable doubt in nature. Borg, constitutional Martinez v. on all elements of charged). the offense We rеview Gaudin, Unlike in this case the district most constitutional errors to determine court did not “completely remove from the whether, “beyond doubt[,] a reasonable consideration of jury” issue Whit- complained error of did not contribute to the knowledge. more’s properly was verdict Chapman California, obtained.” v. instructed that Whitmore had to act know- 824, 828, 17 386 U.S. L.Ed.2d ingly in connection with the transaction (1967); Fulminante, see also Arizona v. that underlies the violation. The 279, 306-10, 1246, 1263-65, jury was also instructed that Whitmore had (1991) (opinion Rehnquist, to use a bring conspir- about the C.J.). analysis Harmless error Chap under acy to distribute or cocaine about man “looks ... to the basis on which ‘the possession distribution of or the with the ” jury actually rested its verdict.’ Sullivan intent to distribute a controlled substance. Louisiana, U.S.-,-, In circumstances, these we can be certain 2078, 2081, (1993) 124 L.Ed.2d 182 (quoting that jury actually evidence the consid- Evatt, 391, 404, ‍‌‌‌‌‌​​‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​​​‌​‌​​‌​‌‌‌‌​‌​‌​​‌‌‍Yates v. ered in accordance with the instructions the (1991)). 114 L.Ed.2d 432 “The actually gave district court is so overwhelm- inquiry whether, ... is not in a trial that ing as tо leave it reasonable doubt error, occurred without guilty a verdict jury that the would have convicted Whitmore surely rendered, would have been but wheth- if counts even the district er the guilty actually verdict rendered in this court given had instruction on surely trial was unattributable to the error.” those counts. jury found that Whitmore knew the Yates directs us to ask “whether the force predicate being transactions by facilitated us- presumably the evidence by considered telephone prohibited were drug jury accordance with the instructions transactions and that he did indeed use the is overwhelming so as to it beyond leave telephone. Failing to instruct that he had to reasоnable doubt that the resting verdict on knowingly intentionally use the tele- that evidence would have been the same in phone about those transactions the absence of the” constitutional error. 500 has to be harmless. U.S. 111 S.Ct. at 1893. Our decision in United Hegwood, recently — most considered im- Yates’s Cir.1992), F.2d 492 plications plain in the error context U.S.-, in Gаu- There, din. we Yates, said that “under does compel not contrary conclu an element of the crime that must be found sion. Hegwood, In the district court also by jury jury from removed gave consider- the Model Instruction without ation, that error cannot be element, 997 knowledge harmless.” but added language out F.2d at 1272. The district court in Gaudin of the stаtute require which included the had “materiality” that the held element of an ment that the act knowingly. defendant Al alleged violation, false statements 18 U.S.C. though we Hegwood’s conviction, affirmed we was satisfied aas matter of law. It observed that “[h]ad the district merely therefore did not instruct on materiality, jury instruction, read the model it would such сompletely that issue “was removed plain have committed error.” Id. at 496. In from the consideration jury of the case, however, and ... the defendants had not had opportunity no to deliberate on placed themselves package containing added). Id. at (emphasis issue.” drugs mail, into the but rather had received Since deprived- “was fact- package its which had been sent by another finding duty,” we plain held this was error. individual. Id. at 498-99. chal Defendants — 1273; Id. at Sullivan, see also lenged their conviction contending they opportunity a full to deliberate on package fact had of the contents unaware Gaudin, that issue. knowingly or had not and hence Cf. (9th Cir.), (chаl- reh’g en banc felony. Id. mails to commit used the granted, 5 F.3d 374 to establish sufficiency of evidence lenging mails to facili- intentional use of knowing or beyond a thus be certain reason We can Here, felony). in con- tate commission actually verdict[s] that “the able doubt telephone calls trast, surely trial unattri [were] rendered convic- of his the basis that form in court’s failure to butable to” the district uncertain- may have been there tions. While knowledge requirement clude the Hegwood ty whether the defendants Louisiana, Sullivan v. instruction. to contain package intended for knew or 2078, 2081, 124 -U.S.-,-, cocaine, uncertainty that no there can be such an error Becausе using knew he was doubt, beyond a it is harmless reasonable felony and of a the commission to facilitate “affecting rights” an error substantial allegations to the con- no makes Gaudin, not amount to and does trary. See 1271; States v. Shaba 997 F.2d at cf. (defendant burden bears at 1777-78 (“We (9th Cir.1993) ni, prejudice). respect persuasion with act ele omission of the overt have deemed Therefore, affirm. conspiracy harmless where [in case] ment guilt on another jury’s AFFIRMED. determination of as the functional count served substantive RYMER, concurring: Judge, act.”) finding an overt equivalent of a cases), granted on other (citing district separately I because write - U.S.-, grounds, knowledge on the to instruct court’s ‍‌‌‌‌‌​​‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​​​‌​‌​​‌​‌‌‌‌​‌​‌​​‌‌‍failure com- on the required for conviction element beyond a harmless counts was munication reason: for another

reasonable doubt knowledge correctly on the instructed guilty of required find Whitmore element (Counts offenses underlying substantive 31), knowledge for each elements 26 and 30) (Counts and its 25 and offense identicаl, are underlying substantive offense America, STATES UNITED guilty verdicts jury returned and the Plaintiff-Appellee, substantive offenses. those the sufficien- challenges neither adequacy of cy nor the of the evidence Pancho, COLEMAN, aka L. Oscar knowledge element of instructions Defendant-Appellant. underly- offenses. 21 U.S.C. 91-50299. No. entirely over was done ing drug trаnsaction telephone in the case of Count Appeals, part person phone and part over the Ninth Circuit. It is therefore 31. the case Count 4, 1993. Oct. Argued and Submitted that when jury had to find question that the calls, he May Decided doing so to facilitate that he was knew same This is the of cocaine. distribution of 21 required a violation 843(b). reason, Whit- For purposes of knowledge for

more’s completely removed was not counts consideration; jury in jury’s from the

Case Details

Case Name: United States v. Thomas Clifford Whitmore, AKA Lil Tommy, AKA Young Tommy

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 13, 1994

Citation: 24 F.3d 32

Docket Number: 91-50240

Court Abbreviation: 9th Cir.