IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60563
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE RILEY, also known as “Tyron”; REGINALD FELIPE WARDEN, also known as “Reggie”
Defendants-Appellants.
Appeal from the United States District Court For the Southern District of Mississippi
(3:95-CR-60BN-19) (March 13, 1998
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
I.
Charles Ellis Warden, Jr., known as June Bug, headed a cocaine
distribution organization in Jackson, Mississippi, in the early to
mid 1990s. His brother, Reginald Felipe Warden, known as Reggie,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. and one of the defendants in this case, distributed cocaine for
him. Tyrone Riley, known as Tyron, from Memphis, Tennessee, is the
other defendant, and he was one of the organization’s suppliers.
Warden and Riley were convicted by a jury of conspiring to
distribute cocaine, crack cocaine and marijuana.
II.
On appeal, Warden raises two issues. First, he contends that
the proof at trial varied from the indictment and hence the
indictment was constructively amended. We review this issue de
novo. U.S. v. Farmigoni, 934 F.2d 63, 65 (5th Cir. 1991), cert.
denied, 502 U.S. 1090 (1992). Warden did not present this issue to
the trial court. Therefore, the plain error standard applies.
U.S. v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994), cert.
denied, 513 U.S. 1196 (1995); Fed. R. Crim. P. 52(b). Plain error
is error that is obvious, clear or readily apparent and must affect
the defendant’s substantial rights. Id. at 163-64.
A constructive amendment of the indictment occurs when the
jury is permitted to convict based on facts that effectively modify
an essential element of the offense charged. U.S. v. Young, 730
F.2d 221, 223 (5th Cir. 1984). When the indictment charges a
violation of a statute in general terms, proof of acts of the kind
described, although not specifically mentioned in the indictment,
2 does not constructively amend it. U.S. v. Malatesta, 583 F.2d 748,
756 (5th Cir. 1978), cert. denied, 444 U.S. 846 (1979).
Four government witnesses -- Paul Webb, Michael Westin,
Richard Carroll and Marcus George, who had not testified before the
grand jury, testified at trial against Warden. Warden contends
that the testimony of these four witnesses amounts to unrelated
conduct which was not alleged in the indictment. We find that the
testimony of these witnesses fall within the allegations of the
indictment and overt acts involving Paul Webb are mentioned in the
indictment. Their testimony established the existence of the
conspiracy that Warden was charged with. This case is similar to
U.S. v. Soudan, 812 F.2d 920 (5th Cir. 1986), cert. denied, 481
U.S. 1052 (1987), in which the court’s charge stayed within the
scope of the indictment and allowed the jury to find the defendant
criminally culpable but did not vary the charges in the indictment.
Id. at 929.
Moreover, in U.S. v. McKinney, 53 F.3d 664 (5th Cir.), cert.
denied, 116 S.Ct. 261 (1995), this court held that a conviction
will not be reversed for a variance between the indictment and the
proof unless the evidence offered at trial by the government varied
from that alleged in the indictment and the variance prejudiced the
defendant’s substantial rights. Id. at 672. Assuming that there
was a variance in the indictment, there is no evidence that any
substantial rights of Warden were prejudiced since he was given a
3 full opportunity to interview the government witnesses and prepare
for trial.
Second, Warden contends that the trial court abused its
discretion in allowing the government witnesses to invoke the Fifth
Amendment in response to questions regarding other drug deals. We
review restrictions on the scope of cross-examination and whether
the Fifth Amendment was properly invoked for abuse of discretion.
U.S. v. Payne, 99 F.3d 1273, 1280 (5th Cir. 1996). “The relevant
inquiry is whether the jury had sufficient information to appraise
the bias and motives of the witness.” U.S. v. Tansley, 986 F.2d
880, 886 (5th Cir. 1993) (citations omitted).
Warden contends that government witnesses Richard Carroll and
Paul Webb used their Fifth Amendment privilege to pick and choose
those questions they wanted to answer, avoided answering questions
going to their credibility on cross-examination, and thus curtailed
Warden’s right of confrontation.
The evidence on record shows that the questioning, although
limited to only the drug deals in this case, was sufficient to
allow a jury to appraise Webb and Carroll’s credibility as
witnesses. U.S. v. Rocha, 916 F.2d 219, 242 (5th Cir. 1990), cert.
denied, 500 U.S. 934 (1991) (upholding refusal to permit cross-
examination related to tax evasion). The trial court did not abuse
its discretion in allowing government witnesses to invoke the Fifth
Amendment in response to questions regarding other drug deals.
4 III.
Riley raises two other issues on appeal. First, Riley
contends that the evidence was insufficient to support his
conviction for conspiracy to possess with intent to distribute
cocaine. In judging challenges to the sufficiency of the evidence,
we must interpret the evidence in light most favorable to the
government. U.S. v. Stephens, 779 F.2d 232, 235 (5th Cir. 1985).
To sustain a conviction for a drug conspiracy, the government
must show the following: (a) the existence of an agreement with
intent to distribute; (b) defendant’s knowledge of the agreement;
and (c) defendant’s voluntary participation in the agreement. U.S.
v. Alvarado, 898 F.2d 987, 992 (5th Cir. 1990).
Riley contends that he was merely in a buyer-seller
relationship with June Bug, and he did not believe he was supplying
a conspirator -- all he knew was that he was selling cocaine to
June Bug.
The principal evidence against Riley was the testimony of
Kimberly Logan, a banker/treasurer for June Bug’s organization.
Logan testified that Riley dealt with June Bug and his cohorts over
an extended period of time and discussed prices and availability of
cocaine. Her testimony was corroborated by tapes that were
introduced into evidence. Issues related to her credibility, the
weight of the evidence and conflicts in evidence are matters for
the jury. U.S. v.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60563
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE RILEY, also known as “Tyron”; REGINALD FELIPE WARDEN, also known as “Reggie”
Defendants-Appellants.
Appeal from the United States District Court For the Southern District of Mississippi
(3:95-CR-60BN-19) (March 13, 1998
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
I.
Charles Ellis Warden, Jr., known as June Bug, headed a cocaine
distribution organization in Jackson, Mississippi, in the early to
mid 1990s. His brother, Reginald Felipe Warden, known as Reggie,
* Pursuant to 5TH CIR. R. 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 5TH CIR. R. 47.5.4. and one of the defendants in this case, distributed cocaine for
him. Tyrone Riley, known as Tyron, from Memphis, Tennessee, is the
other defendant, and he was one of the organization’s suppliers.
Warden and Riley were convicted by a jury of conspiring to
distribute cocaine, crack cocaine and marijuana.
II.
On appeal, Warden raises two issues. First, he contends that
the proof at trial varied from the indictment and hence the
indictment was constructively amended. We review this issue de
novo. U.S. v. Farmigoni, 934 F.2d 63, 65 (5th Cir. 1991), cert.
denied, 502 U.S. 1090 (1992). Warden did not present this issue to
the trial court. Therefore, the plain error standard applies.
U.S. v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994), cert.
denied, 513 U.S. 1196 (1995); Fed. R. Crim. P. 52(b). Plain error
is error that is obvious, clear or readily apparent and must affect
the defendant’s substantial rights. Id. at 163-64.
A constructive amendment of the indictment occurs when the
jury is permitted to convict based on facts that effectively modify
an essential element of the offense charged. U.S. v. Young, 730
F.2d 221, 223 (5th Cir. 1984). When the indictment charges a
violation of a statute in general terms, proof of acts of the kind
described, although not specifically mentioned in the indictment,
2 does not constructively amend it. U.S. v. Malatesta, 583 F.2d 748,
756 (5th Cir. 1978), cert. denied, 444 U.S. 846 (1979).
Four government witnesses -- Paul Webb, Michael Westin,
Richard Carroll and Marcus George, who had not testified before the
grand jury, testified at trial against Warden. Warden contends
that the testimony of these four witnesses amounts to unrelated
conduct which was not alleged in the indictment. We find that the
testimony of these witnesses fall within the allegations of the
indictment and overt acts involving Paul Webb are mentioned in the
indictment. Their testimony established the existence of the
conspiracy that Warden was charged with. This case is similar to
U.S. v. Soudan, 812 F.2d 920 (5th Cir. 1986), cert. denied, 481
U.S. 1052 (1987), in which the court’s charge stayed within the
scope of the indictment and allowed the jury to find the defendant
criminally culpable but did not vary the charges in the indictment.
Id. at 929.
Moreover, in U.S. v. McKinney, 53 F.3d 664 (5th Cir.), cert.
denied, 116 S.Ct. 261 (1995), this court held that a conviction
will not be reversed for a variance between the indictment and the
proof unless the evidence offered at trial by the government varied
from that alleged in the indictment and the variance prejudiced the
defendant’s substantial rights. Id. at 672. Assuming that there
was a variance in the indictment, there is no evidence that any
substantial rights of Warden were prejudiced since he was given a
3 full opportunity to interview the government witnesses and prepare
for trial.
Second, Warden contends that the trial court abused its
discretion in allowing the government witnesses to invoke the Fifth
Amendment in response to questions regarding other drug deals. We
review restrictions on the scope of cross-examination and whether
the Fifth Amendment was properly invoked for abuse of discretion.
U.S. v. Payne, 99 F.3d 1273, 1280 (5th Cir. 1996). “The relevant
inquiry is whether the jury had sufficient information to appraise
the bias and motives of the witness.” U.S. v. Tansley, 986 F.2d
880, 886 (5th Cir. 1993) (citations omitted).
Warden contends that government witnesses Richard Carroll and
Paul Webb used their Fifth Amendment privilege to pick and choose
those questions they wanted to answer, avoided answering questions
going to their credibility on cross-examination, and thus curtailed
Warden’s right of confrontation.
The evidence on record shows that the questioning, although
limited to only the drug deals in this case, was sufficient to
allow a jury to appraise Webb and Carroll’s credibility as
witnesses. U.S. v. Rocha, 916 F.2d 219, 242 (5th Cir. 1990), cert.
denied, 500 U.S. 934 (1991) (upholding refusal to permit cross-
examination related to tax evasion). The trial court did not abuse
its discretion in allowing government witnesses to invoke the Fifth
Amendment in response to questions regarding other drug deals.
4 III.
Riley raises two other issues on appeal. First, Riley
contends that the evidence was insufficient to support his
conviction for conspiracy to possess with intent to distribute
cocaine. In judging challenges to the sufficiency of the evidence,
we must interpret the evidence in light most favorable to the
government. U.S. v. Stephens, 779 F.2d 232, 235 (5th Cir. 1985).
To sustain a conviction for a drug conspiracy, the government
must show the following: (a) the existence of an agreement with
intent to distribute; (b) defendant’s knowledge of the agreement;
and (c) defendant’s voluntary participation in the agreement. U.S.
v. Alvarado, 898 F.2d 987, 992 (5th Cir. 1990).
Riley contends that he was merely in a buyer-seller
relationship with June Bug, and he did not believe he was supplying
a conspirator -- all he knew was that he was selling cocaine to
June Bug.
The principal evidence against Riley was the testimony of
Kimberly Logan, a banker/treasurer for June Bug’s organization.
Logan testified that Riley dealt with June Bug and his cohorts over
an extended period of time and discussed prices and availability of
cocaine. Her testimony was corroborated by tapes that were
introduced into evidence. Issues related to her credibility, the
weight of the evidence and conflicts in evidence are matters for
the jury. U.S. v. Ortega-Chavez, 682 F.2d 1086, 1091 (5th Cir.
1982). We have previously held that a buyer-seller relationship
5 exists where there is no proof that the purchaser intended anything
more than personal use. U.S. v. Thomas, 12 F.3d 1350, 1365 (5th
Cir.), cert. denied, 511 U.S. 1095 (1994). On the contrary, here
the evidence sufficiently establishes extensive drug dealing
involving substantial amounts of cocaine over a period of time thus
proving a conspiracy involving Riley and others, and not mere
personal use.
Second, Riley contends that the trial court erred in
sentencing Riley by assessing him responsibility for nine kilograms
of cocaine and in denying him a reduction for acceptance of
responsibility.
The district court’s findings about the quantity of drugs
involved are factual findings reviewed under the clearly erroneous
standard. U.S. v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989).
Kimberly Logan testified that she made around 12 trips to
Memphis and came back with one-half kilo to three kilos of cocaine
on each trip. On cross-examination she said she may have made 5 to
12 trips to Memphis. The sentencing judge calculated 5 kilos of
cocaine based on this testimony. The court then attributed another
4 kilos to Riley based on a conversation with Warden caught on tape
in which he discusses possessing that amount of cocaine in
negotiating a sale. The sentencing guidelines permit counting
amounts under negotiation as relevant conduct. See U.S. Sentencing
Guidelines Manual §2D1.4, Appl. Note 1 (1991). Thus, the district
court’s findings limited its calculation to amounts of cocaine
6 directly attributable to Riley and its findings are not clearly
erroneous.
Riley also contends that the district court erred in denying
him an acceptance of responsibility adjustment. He maintains that
he went to trial not because he denied selling cocaine but because
he denied the amount that he allegedly sold.
After finding that Riley was personally responsible for
selling 9 kilos of cocaine and that he was a major player in the
conspiracy, the trial judge noted that Riley wanted an acceptance
of responsibility adjustment because he had accepted responsibility
for selling “two quarters of a kilogram” of cocaine. The trial
judge noted that Riley contested his guilt all the way through and
went to trial. It may be difficult for a defendant to receive an
acceptance of responsibility reduction when he refuses to plead
guilty and puts the government to its proof by going to trial.
U.S. v. Gordon, 876 F.2d 1121, 1127 (5th Cir. 1989). We are
persuaded that the trial court’s refusal to give Riley a two-level
reduction is adequately supported by the record.
AFFIRMED.