UNITED STATES COURT OF APPEALS For the Fifth Circuit ___________________________________
No. 98-20782 ___________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DUNCAN BURTON; LELAND EARL WILLIAMS, also known as Robert Randle, also known as Tee Lee, also known as Timothy Houston, Defendants-Appellants. ___________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS (H-95-CR-303) ___________________________________ July 14, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM1:
BACKGROUND
A. Procedural History
On December 4, 1995, the government filed a 25-count indictment charging Burton,
Williams, and ten others with conspiracy to possess with intent to distribute crack cocaine in
violation of 21 U.S.C. § 846 (count one); and aiding and abetting the underlying substantive
1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2
offense in violation of 21 U.S.C. §§ 841(a)(1), and (b)(1)(B) and 18 U.S.C. § 2 (counts 2-25).
Burton was named in counts 1, 13-17, 19-20 and 23, and Williams was named in counts 1 and 10-
14.2 After a jury trial that began on March 24, 1998, the jury convicted Burton of counts 1, 14-
17, and 19-20 and acquitted him of count 13.3 The jury convicted Williams of counts 1, and 10-
13 and acquitted him of count 14.
On August 13, 1998, the district court sentenced Burton to concurrent terms of 216
months imprisonment on all counts, to be followed by concurrent terms of five-years supervised
release on counts 1, 17, 19-20, and four years on counts 14-16. The court imposed a $5,000 fine
and $350 special assessment. On September 1, 1998, the court sentenced Williams to concurrent
terms of life imprisonment as to counts 1 and 12 and to concurrent terms of 40 years
imprisonment as to counts 10-11 and 13; followed by concurrent terms of five years supervised
release on counts 1 and 12 and four years on counts 10-11 and 13. The court imposed a $2,000
fine and $250 special assessment.
B. Facts
1. Government Evidence
a. Introduction
In April-May of 1995, the Drug Enforcement Administration (“DEA”) began an
2 Williams, Burton, Bernard Anthony Dale, Dyas Kirkpatrick Evans, Kerry Jackson, Otis Williams, Sammy Cole, Ricky L. Kay, George C. Morgan, Willie Evans, and Virgilio Florez Mezu were charged in count one charging conspiracy. Various individuals were charged in the remaining counts charging aiding and abetting possession with intent to distribute powder and crack cocaine in counts 2-25. The co-defendants all pled guilty either before or during the trial. Williams had aliases of “Tee Lee,” “Robert Randle” and “Timothy Houston.” 3 Before trial, the district court dismissed count 23 as to Burton upon request of the government. 3
investigation of an alleged crack cocaine distribution network headed by Bernard Dale in
Galveston County. The DEA gathered information from three primary sources: informants,
cooperating defendants, and police officers. According to the government, Dale purchased large
amounts of powder cocaine, manufactured it into crack, and distributed crack from his
automotive repair business in Galveston and various residences in Houston and Galveston to
smaller distributors, including Williams, Leon McGrew, Dyas Evans, Willie Evans, Kerry Jackson,
George Morgan, Sammy Cole, and Revester Murphy. Tyrone Cooper served as Dale’s supplier
between 1992 and 1993, but after Cooper was arrested on drug charges, Ricky Kay and Virgilio
Mezu, replaced Cooper as suppliers.
In 1994 and 1995, Dale distributed cocaine to Williams and through Williams expanded
his cocaine business to Knoxville, Tennessee. According to the government, between November,
1994 and February 1995, Burton transported to Knoxville from Galveston several multi-kilogram
loads of cocaine for Williams, Dale and McGrew, Dale’s right-hand man. Several co-defendants
and cooperating witnesses testified at trial.4
b. Dale’s Organization
Between the Summer of 1992 and May of 1993, Tyrone Cooper often fronted kilograms
of cocaine to Dale and Dale paid Cooper from his proceeds. When Cooper went to prison in May
1993, his girlfriend Regina Booker and Ricky Kay continued Cooper’s business. Thereafter,
4 Co-defendants Dale, Willie Evans, Dyas Evans, Sammy Cole and Kerry Jackson testified at trial. Cole and Jackson pled guilty prior to trial and the other defendants pled guilty during the trial. Leon McGrew, Steven Timms, Tracy Russell, Tyrone Cooper, Kevin Cooper, Regina Booker, Chuck Olson Jones, and David Merchant testified as cooperating witnesses at trial. All of the witnesses testified concerning their prior felony convictions and any special cooperation agreements involving leniency. 4
Ricky Kay became Dale’s supplier.
Between 1992 and early 1995, Kerry Jackson distributed crack cocaine for Dale to
individuals in Galveston County and Hammond, Louisiana, and brought the money back to Dale.
Jackson was arrested on three separate occasions while working for Dale; and money, cocaine
and a .38 caliber handgun were confiscated.
Between 1992 and 1994, McGrew’s purchases of cocaine began to grow until McGrew
stopped buying from Dyas Evans at Dale’s auto shop and started to buy directly from Dale. By
April of 1994, McGrew and Dale regularly went to Ricky Kay’s house to buy cocaine and cooked
it together. Between May and September 1994, they used Virgilio Mezu as an additional powder
cocaine source. McGrew recalled on one occasion that Dale purchased 20 kilograms of cocaine
from Mezu for $340,000.
In the Summer/Fall of 1993, Willie Evans transported kilograms of crack cocaine to
George Morgan, one of Dale’s distributors in Dallas, receiving $500 per trip. Willie ultimately
moved to Irving, Texas to assist Morgan in distributing cocaine in Dallas. In December of 1993,
Willie and Morgan had a “falling out,” and Willie approached McGrew about supplying him
cocaine to sell in Dallas, which McGrew and Dyas Evans eventually did. Morgan was arrested
following a cocaine seizure at his Irving residence. Irving police seized two and a half kilograms
of crack cocaine, seven guns and a rifle, five pounds of marijuana, a safe containing $18,000 and
“drug notes.”
c. Williams’ Participation in Dale’s Organization
In August/October of 1994, Dale began transporting cocaine to Leland Williams, Darrell
Parks (“Floopie”) and Willie Evans in the Dallas area. Williams was responsible for about 15% of 5
the business. When McGrew and Dale traveled to the Dallas area to transport the cocaine and
retrieve the money that was owed Dale, they would conceal the cocaine in the bed liner of a rental
truck, or transport it in their own vehicle. Often, Duncan Burton would drive the load for them
or with them, and they would stay at Williams’ ranch in DeSoto, Texas.
A few weeks after first meeting McGrew at Dale’s shop, Williams delivered $115,000 to
Dale’s apartment for 5-6 kilograms of cocaine supplied to him to sell in Knoxville, Tennessee, for
$27,000 per kilogram. Dale reported that he made a $40,000 profit from Williams’s Tennessee
trip. McGrew testified that after this trip, he accompanied Dale and Dyas Evans to Williams’s
DeSoto ranch, which had a main and guest house with a swimming pool. The next weekend,
Dale brought powder cocaine to Williams at the ranch and later told McGrew that he and
Williams cooked to cocaine and that Williams gave it to others, including Darrell Parks.
Dyas Evans testified that Dale introduced Williams as a potential cocaine purchaser in
August or September of 1994. Dale wanted Evens to get to know Williams better, so Evans went
with Dale to Williams’s ranch, where he saw one and a half kilograms of cocaine, which Williams
told Evans he was selling to two other men at the ranch.
Willie testified to meeting Williams in July of 1994 at Dale’s shop. In August of 1994,
Willie accompanied Dale to Williams’s ranch, bringing with them detergent boxes containing two
kilograms of powder cocaine and nine ounces of crack, some of which was put in paper bags to
be placed in the van. One was Willie’s and the other was “Floopie”’s (Darrell Parks). Willie
delivered powder cocaine to Williams’s ranch on two subsequent occasions.
Steven Timms (Williams’s cousin) testified that he went to Galveston with Williams to
meet Dale in August of 1994. As a result of this meeting, Timms and Williams transported five 6
kilograms of cocaine to Knoxville and delivered it to a man named “Murphy.” Timms and
Williams stayed at the Red Roof Inn in Knoxville and then returned the money to Dale in
Galveston. Records reflect that “Leland E. Williams” rented two rooms at the Red Roof Inn in
Knoxville on August 10, 1994. Timms further testified that they transported three more
kilograms of cocaine to Knoxville for Dale a few weeks later, and Timms recalled meeting
Duncan Burton at Murphy’s house during the trip.
McGrew testified to seeing Williams at least 25 times between August and November of
1994 in the Galveston and Dallas areas to discuss their cocaine business. He also claimed that
Dale, who would later complain of having to post bond in the amount of $100,000 for Williams
when he was arrested in Corsicana, delivered five kilograms of cocaine on October 5, 1994 to
Williams and Timms at Dale’s house.
Timms testified that in early October of 1994, he and Williams picked up five kilograms of
cocaine from Dale’s house. They wrapped the bundles in fabric softener, put them in a bag, and
headed back to Dallas. As they drove through Corsicana they were stopped, arrested, and the
cocaine was seized. When officials later learned Timms’s true identity, he notified Williams that
officials had discovered Williams’s real identity as well. Telephone records reflect that 60 collect
calls were placed from the Navarro County Jail to Williams’s residence between October 6, 1994
and November 8, 1994.
Department of Public Safety (“DPS”) sergeant Michael Turner testified that he arrested
Williams and Timms in Corsicana on October 5, 1994, after stopping Williams for speeding.
Williams and Timms both provided false names, gave conflicting stories, and appeared nervous.
Sergeant Turner searched the car pursuant to Williams’s verbal consent, finding five large bundles 7
of cocaine, weighing five kilograms and wrapped in fabric softener inside an overnight bag in the
trunk. He also found marijuana beneath the driver’s floorboard and documents (e.g. a piece of
paper exhibiting a phone number that was traced to Dale’s address at 626 Buttonwood Drive and
another regarding a car rental agreement).
Williams was booked in Navarro County Jail under the name “Robert Randle” and
released two days after his arrest on October 6, 1994 on a $100,000 bond. He was placed back in
jail on November 9, 1994 on a bond revocation. Williams gave the following written statement at
the jail: “The bag that Trooper Turner found in the trunk of the car that I was driving was my bag
with my clothes in the bag.” He did not admit to possessing the cocaine, however, or signing the
statement as “Robert Randle.”
Dyas Evans testified that after Williams bonded out of jail, he went back to Galveston with
Angie Ballard and asked Dale for more cocaine because he wanted to “work off” the debt owed
for the seized cocaine. Dale gave Williams three more kilograms of cocaine. Otis Williams told
Evans that Williams was going to put the cocaine in a spare tire and that Ballard was going to
carry it to Tennessee. Evans later learned from Dale that this cocaine was also seized.
Louisiana State Trooper Travis Savoy testified that on October 15, 1994, he arrested
Angela Ballard, Tracy Russell and Johnny Dobbins (later identified as Edward Woolrich) in Lake
Charles, Louisiana, following a traffic violation. After Russell refused consent to search the
vehicle, narcotics-sniffing canines inspected the car, alerting police to 3.3 kilograms of cocaine
concealed inside the spare tire from the trunk, a marijuana cigarette from Russell’s purse, and
various documents, including a receipt from Tire Lubing Express in the name of “Robert Randle”
at 828 Parkerville, DeSoto. 8
Tracy Russell testified prior to her arrest that she had seen 1-4 kilograms of cocaine at
Williams’s ranch 8-10 times, and Williams and others cooking the cocaine. On October 14, 1994,
Williams arranged for Russell, Ballard and Woolrich to travel to Houston and onto Knoxville the
next day. Williams, who had given Ballard money, and Dale met the trio in Houston. Russell
recalled overhearing Williams tell Woolrich not to drink or smoke marijuana on their trip. Before
departing for Knoxville, Williams gave Ballard more money, and he and Dale provided directions.
Ballard, Russell and Woolrich were subsequently stopped and arrested in Lake Charles. Williams
offered to pay for a lawyer for Russell, but she declined his offer.
After the seizure, McGrew testified that he told Dale he should not continue supplying
cocaine to Williams. Nonetheless, Dale arranged for Williams to make another trip in early
November of 1994. Williams put 3-4 kilograms of cocaine inside his van’s tires and loaded the
van on a trailer. Williams arranged for his driver, Burton, to haul the van in a rental truck to
Tennessee. Records reflect that Burton checked into the Pelican Inn in La Marque on October
30, 1994, checked out on November 1, 1994, and rented a Ryder Rental moving van on October
31, 1994.
While in Tennessee, Williams was apprehended by his bondsman. On November 11,
1994, Dale and McGrew traveled to Williams’s hotel in Knoxville to recover Dale’s van and the
cocaine. They found nothing, and later met with Revester Murphy, the person Williams identified
as the purchaser. McGrew and Dale told Murphy they would be taking over the Knoxville
dealings, asking how much Murphy could distribute. They had the same conversation with
Sammy Cole, who recalled meeting Williams and Burton for the first time when he went to
Murphy’s house in Knoxville in 1994 to purchase cocaine. 9
d. Burton’s Participation in Dale’s Organization
After Williams’s apprehension, McGrew testified that he looked for someone else to
transport the cocaine to Knoxville. Dale stated that Burton was from Knoxville and had
transported cocaine to Tennessee for Williams. For one shipment of cocaine to Knoxville, Dale
did not want to use Otis Williams as the driver because Williams did not have a driver’s license
and Henry did not want to drive that far. Dale testified that he had found another driver, Duncan
Burton. McGrew and Dale preferred to use Burton because he had no criminal record and was
less likely to be stopped. Dyas Evans testified that Dale stated that Burton was going to drive the
cocaine to Tennessee for Williams.
In early December of 1994, government evidence shows that McGrew and Dale employed
Burton to transport 4-5 kilograms of cocaine in a moving van from the Galveston area to
Knoxville. Dale paid Burton $3,000 plus $500 expenses for making the trip. McGrew went with
Burton to rent a moving van and provided the cash for the rental, which was loaded with old
furniture and clothes to conceal the cocaine. Burton notified McGrew when he arrived in
Knoxville. Once the cocaine was distributed, McGrew brought the money back to Galveston.
Records reflect that in early December of 1994, McGrew rented cars in Alcoa, purchased a flight
with American Airlines, and charged rooms at the Holiday Inn and Quality Inn in Knoxville. On
December 1, 1994, Burton rented a moving van until December 6, 1994 for $928. He paid with
cash and dropped the vehicle off at the dealer in Knoxville. He stayed at a hotel in Texas City on
December 8, 1994.
In mid-December of 1994, McGrew hired Burton to transport another load of cocaine
from the Galveston area to Knoxville. Records reflect that on December 13, 1994, McGrew flew 10
to Nashville, rented a car in Alcoa, and arrived at the Holiday Inn in Knoxville on December 18.
A Western Union receipt reflects “Pete Morgan” (McGrew) wired $1,000 to Burton at Murphy’s
address in Knoxville on December 19, 1994. Burton rented a Ryder Rental truck on December
19, 1994, and stayed at the Holiday Inn in La Marque, Texas, on December 21, 1994.
In January of 1994, McGrew employed Burton to transport 6-8 kilograms of cocaine to
Tennessee. Like before, Burton rented a truck and McGrew concealed the cocaine in a box of
Tide soap. McGrew met Burton in Knoxville and delivered the cocaine to Cole. Cole paid him
$220,000 and Burton transported the money back to Galveston. Records reflect that Burton
stayed at a hotel near Hobby Airport in Houston on January 12, 1995 and January 16, 1995, and
McGrew purchased a round-trip flight from Houston to Knoxville and back on January 13, 1995.
In early February of 1995, McGrew hired Burton to transport 6 kilograms of cocaine to
Knoxville. McGrew picked up Burton from the airport. Burton rented a U-Haul truck and they
purchased some old furniture and clothes and placed them in the back of the truck. They placed
two Tide boxes containing 6 kilograms of cocaine in the truck. They placed two Tide boxes
containing 6 kilograms of cocaine in the truck. McGrew met Burton in Knoxville and delivered
the cocaine to Cole. Cole paid McGrew all but $5000 that was due. Burton transported
$150,000-$170,000 back to the Galveston area. Records show that McGrew traveled to
Knoxville on February 1, 1995, rented a car, and stayed at the Holiday Inn in Knoxville.
McGrew flew to Knoxville again on February 21, 1995. He contacted Burton at his home
in Charlotte, North Carolina, and asked Burton to transport another cocaine load from Galveston
to Knoxville. He wired money to Burton. Burton subsequently flew from Knoxville to Houston.
Dale assisted Burton in renting and preparing the truck. When Burton did not page McGrew in 11
Knoxville during his travel, McGrew called Dale and asked if Burton had left with the cocaine.
Dale confirmed that he had. Later that evening, Burton notified McGrew from Houston that he
had been apprehended and that he had told the police everything. McGrew answered that he did
not know what Burton had gotten into but that he did not appreciate Burton bringing him into it
and hung up. Burton called McGrew again from a Wal-Mart in Knoxville, warning that McGrew
was going to be arrested. McGrew asked to meet with Burton in Knoxville but Burton refused.
McGrew later told Dale he believed Burton had stolen the cocaine.
On February 21, 1995, Burton called the DEA office in Charlotte and requested an
interview, during which Burton provided information about a drug organization based in Houston
that supplied cocaine in the Knoxville area. He named T-Lee (Williams), Anthony Morgan, and
Pete Morgan, as some of the individuals in the organization. Burton explained that Williams first
approached him about making trips. His role was to transport cocaine from Houston to Knoxville
and then take the money back to Houston. Burton had transported cocaine from Houston to
Knoxville 6-8 times and “wanted to talk to [DEA] about getting out from under this activity.”
On February 22, 1995, agents went to Burton’s residence in Charlotte and paged Pete and
Anthony Morgan (McGrew and Dale). McGrew called back and said he would wire Burton $200
to fly to Houston to pick up a load. Charlotte agents coordinated this information with agents in
Knoxville and Houston. Burton drove to Knoxville and caught a plane to Houston. That same
day, surveillance agents observed Burton arrive at Houston Hobby Airport to meet with Dale.
That evening, Burton contacted DEA Agent William Owen, reporting that he had checked into
the Holiday Inn. The plan was he would go with Dale the next morning to rent a truck.
Later that evening, Burton called Agent Owen a number of times expressing concern 12
about his family’s safety if he cooperated with the DEA. As the night progressed, Burton tried to
change the operational plan for the next morning. It became obvious to Agent Owen that Burton
would not cooperate and follow agents’ instructions. Consequently, Owen directed Burton to
discontinue any further contact with Anthony Morgan, and advised that the DEA would not
participate in the cocaine transaction the next morning. Nonetheless, around 6:00 a.m. the next
morning, Burton notified Agent Owen that Morgan was coming to pick him up to rent the truck.
Agent Owen ordered Burton to leave his room immediately and get to safety. Agent Owen
repeated that under no circumstances was Burton to follow through with the cocaine transaction.
Around 10:30 a.m. that same day, Burton notified Agent Owen that he was in possession
of a rental truck which had been loaded with furniture by Anthony Morgan. In the cargo area of
the truck was a detergent box containing 5 kilograms of cocaine. Agent Owen instructed Burton
to remain where he was until agents could arrive. He then arranged for DEA agents and local law
enforcement to locate Burton. Pasadena Police Officer Larry Candelari located Burton and
obtained consent to search the truck. Burton produced a detergent box containing over 5
kilograms of crack cocaine. Dyas Evans testified that Burton had told him that he was
enthusiastic about his drug trafficking and that he frequently wore t-shirts with religious messages
and placed a Bible on the dashboard on his vehicle to avoid looking suspicious.
On March 8, 1995, McGrew attempted to transport 4 kilograms of cocaine to Knoxville
by himself. He was stopped by law enforcement in Louisiana for speeding. Four kilograms of
crack cocaine were seized from his truck. Receipts were recovered showing McGrew (aka Pete
Morgan) wired money from Knoxville to Dale and Veronica and that McGrew stayed at Ramada
Inn in Knoxville from February 21- 24, 1995. 13
e. Williams’s Jail Escape and Attempt to Leave the United States
On August 5, 1995, Williams escaped from the Navarro County Jail while waxing the
floors in the main lobby area of the jail. A woman came to the front door announcing she was
there to drop off some “whites” (i.e. underwear). Deputy Gasaway pushed a button to let her in
the lobby area. She delivered the laundry and produced her driver’s license. On her way out,
Williams exited behind her. Deputy Jim Carroll searched for Williams with no success. On
September 22, 1995, Williams applied for a U.S. passport using fraudulent documents, requesting
that the passport be expedited for travel to Cartagena, Colombia. He was arrested when he
returned to pick up the passport.
The government provides a detailed summary of telephone records relating to individuals
involved in the investigation.
2. Defense Evidence
Burton testified that he first met his co-defendants in October of 1994. Murphy
introduced Williams as a “potential” investor in a retail computer store. Burton and Williams met
a few weeks later to discuss Burton’s business plan. Williams offered to pay Burton’s expenses to
meet his business partner “Anthony Morgan” in Houston if Burton would agree to drive
Williams’s van back to Knoxville. Burton and Williams flew to Houston and Williams introduced
Burton to Dale (“Anthony Morgan”). Following the meeting, at the end of October of 1994,
Burton rented a Ryder truck and hauled Williams’s van on a car carrier from the Pelican Inn in La
Marque to Murphy’s house in Knoxville. He helped unload the van. This was the only dealing he
had with Williams.
About a month later, Burton testified that he flew to Houston and checked into the Pelican 14
Inn where he met Dale and McGrew (aka Pete Morgan) to discuss his business plan again.
During this trip, Dale and McGrew told him William had been arrested on a bond revocation in
Knoxville and in anticipation of his release they planned to set up a residence in Knoxville. At
Dale’s request, Burton drove a Ryder rental truck loaded with Dale’s furniture from La Marque
to Knoxville. Burton could not recall if he stayed in Knoxville. He traveled back and forth
between Knoxville and Charlotte where his wife lived.
According to Burton, at McGrew’s request, in mid-December, Burton drove a rental truck
from Charlotte to La Marque to bring back some damaged furniture. Then, in January of 1995,
he transported some furniture and clothing to Knoxville for a lady whose house had burnt down.
He brought the furniture to Murphy’s house in Knoxville. Although he sensed something was
wrong when he saw a large sum of money at Murphy’s house in Knoxville, he still transported
some of the money back to Houston. Burton flew back to Charlotte with the hope of never
seeing Dale and McGrew again. When McGrew contacted Burton about making another trip,
Burton met with DEA agents in Charlotte and told them that he suspected illegal activity because
of the large sum of cash he saw.
Although McGrew and Dale paid him $1,000-$2,000 for making the trips, he claimed he
drove the trucks as a favor and did not need the money. On cross examination, Burton denied
making several statements reflected in the DEA’s reports. Contrary to the reports, he testified he
never told agents he was transporting drugs and money.
On appeal, Burton argues that, despite his cooperation with the DEA, the government
used this incident as the basis for charging Burton with aiding and abetting, in Count 23 of the
indictment. However, he asserts, the government dismissed Count 23 before trial and offered no 15
evidence that Burton was involved in any drug transactions after this occasion. Furthermore,
Burton challenges the sufficiency of the government’s evidence on all counts, contending that
Burton lacked knowledge that he was transporting narcotics.
Williams attacks the credibility of various witnesses and alleged co-conspirators, including
Tyrone Cooper, Kevin Cooper, Olson Jones, Regina Booker, and Kerry Jackson. Williams
observes that several government witnesses did not identify Williams and did not testify regarding
his direct involvement in the alleged conspiracy. Williams also relies on the testimony of Duncan
Burton, who stated that he had no knowledge of Williams’s involvement in the alleged
conspiracy. He never saw Williams with drugs, and had no direct knowledge that he was
transporting drugs. Burton further testified that Williams was interested in investing in a
computer business that he had planned to open.
ANALYSIS
I Sufficiency of the Evidence
In considering the sufficiency of the evidence to support Burton and Williams’s
convictions for conspiracy and aiding and abetting possession with intent to distribute cocaine, the
reviewing court must view the evidence presented and all inferences that may be drawn therefrom
in a light most favorable to the jury’s verdict, and then decide whether any rational trier of fact
could have found each element of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979). A conviction may rest entirely
upon the uncorroborated testimony of an accomplice who has entered into a leniency agreement
with the government, as long as the testimony is not incredible as a matter of law. See United
States v. Posada-Rios, 158 F.3d 831, 861 (5th Cir. 1998). Review is limited to a “manifest 16
miscarriage of justice” when a defendant fails to renew his motion for judgment of acquittal at the
close of all the evidence, after defense has been presented. See United States v. Johnson, 87 F.3d
133, 136 (5th Cir. 1996). A manifest miscarriage of justice is present if the record is devoid of
evidence pointing to guilt. Id.
To prove conspiracy to possess with intent to distribute drugs under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more persons to violate the narcotics
laws, (2) the defendant knew of the agreement, and (3) that he voluntarily participated in the
agreement. See United States v. Broussard, 80 F.3d 1025, 1031 (5th Cir. 1996). A conspiracy
agreement may be tacit, and can be inferred from circumstantial evidence. See United States v.
Thomas, 12 F.3d 1350, 1356 (5th Cir. 1994). While mere presence at the crime scene, or
association with guilty conspirators is not alone sufficient proof to support a conspiracy
conviction, it may provide sufficient evidence of guilt when combined with other evidence. See
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
To prove possession with intent to distribute narcotics, the government must prove
beyond a reasonable doubt the defendant knowingly possessed a controlled substance with intent
to distribute it. See United States v. Crooks, 83 F.3d 103, 106 (5th Cir. 1996). Possession may be
actual or constructive. “Actual possession is defined as knowingly having direct physical control
over a thing at a given time,” United States v. Ivy, 973 F.2d 1184 (5th Cir. 1992), while
constructive possession includes ownership, dominion or control over the contraband, or over the
place in which it is contained. United States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993).
Knowledge and intent can be established by circumstantial evidence. See United States v.
Ojebode, 957 F.2d 1218, 1226 (5th Cir. 1992). Possession of an amount larger than is necessary 17
for personal consumption supports a finding that the defendant intended to distribute the drug.
See United States v. Inocencio, 40 F.3d 716 at 725 (5th Cir. 1994).
To prove aiding and abetting under 18 U.S.C. § 2(a), the government must prove the
defendant associated and participated with the criminal venture, and sought by his action to make
the venture succeed. See United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). “The
evidence supporting a conspiracy typically supports an aiding and abetting conviction.” United
States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994).
A. Burton
The jury convicted Burton of conspiracy to possess with intent to distribute cocaine
(count 1) and aiding and abetting the underlying substantive offense (counts 14, 15, 16, 17, 19
and 20). The jury acquitted Burton on count 13. As to all of the convictions, under a manifest
miscarriage of justice standard of review, while viewing the government’s evidence and all
inferences that may be drawn therefrom in a light most favorable to the jury’s verdict, we find that
a rational trier of fact could have found each element of the crimes beyond a reasonable doubt.
Thus, we decline to dismiss any of Burton’s convictions.
However, as we will discuss in more detail below, we must vacate Burton’s convictions.
Since the district court denied Burton his right of self-representation, this Court will vacate his
convictions and remand for him to be retried on all counts, excluding count 13, which we shall let
stand.
A. Williams
The evidence sufficiently established Williams’s guilt of conspiracy and aiding and abetting
possession with intent to distribute cocaine. The jury convicted Williams of conspiracy (Count 1) 18
and three counts of aiding and abetting possession with intent to distribute cocaine: in or about
September or October 1994 (Counts 10-11); on or about October 4, 1994 (Count 12); and on or
about October 30, 1994 through November 4, 1994 (Count 13). As to each count for aiding and
abetting possession, viewing the government’s evidence and all inferences that may be drawn
therefrom in a light most favorable to the jury’s verdict, a rational trier of fact could have found
each element of the crime beyond a reasonable doubt. The evidence shows that Williams either
transported, or employed someone else to transport several multi-kilogram loads from the
Galveston or Dallas areas to Knoxville during the dates specified in the indictment.
The evidence also supports the jury’s verdict regarding the conspiracy charge in Count 1
of the indictment. Although Williams contends that the government was required to prove
Williams had actual or constructive possession of the drugs, the government merely had to prove
Williams’s association and participation with the venture were calculated to bring about that
venture’s success. See United States v. Salazar, 948 F.2d 1285, 1292 (5th Cir. 1992).
Nonetheless, viewed in the light most favorable to the government, the evidence establishes
Williams’s actual and constructive possession of the cocaine in each instance. See Shabazz, 993
F.2d at 441 (constructive possession includes ownership, dominion or control over the
contraband). Williams either personally transported the cocaine or dictated how it would be
transported, sold it to Murphy and Cole in Knoxville, and either directly or through someone else
delivered the cocaine proceeds to Dale. Thus, Williams knowingly participated and effectuated
the goals of the conspiracy to distribute cocaine for profit.
II Jencks Act
The Jencks Act requires the prosecution to disclose a prior statement of a witness in its 19
possession relating to the subject matter of that witness’s testimony. Williams contends that the
district court erred in failing to order the government to disclose DEA reports made after
debriefings of Tyrone and Kevin Cooper. The district court ordered government investigators to
produce the DEA reports generated as a direct result of their investigation of Tyrone and Kevin
Cooper. Upon obtaining and inspecting this information, the court ruled that it was irrelevant and
did not order disclosure to the defense counsel.
Williams does not cite to any portion of the record indicating that he made an objection
under the Jencks Act. Review is limited to plain error where no objection is made. A district
court’s determination whether evidence is producible under the Jencks Act (18 U.S.C. § 3500) is
reviewed for clear error. See United States v. Martinez, 87 F.3d 731, 734 (5th Cir. 1996). The
burden is on the defense “to initiate the proper inquiry into the right to claim production of a
statement under the Jencks Act.” United States v. Edwards, 720 F.2d 529, 531 (5th Cir. 1983);
see also United States v. Pierce, 893 F.2d 669 (5th Cir. 1990) (where defendant made no showing
that a document qualified as Jencks Act material, the court was not obligated to even inspect the
document in camera).
The agents’ reports made after the debriefings do not constitute Jencks Act materials. A
statement under the Act must either be the written statement of the witness, or a recording that is
substantially verbatim recital of an oral statement made by the witness and contemporaneously
recorded. See Martinez, 87 F.3d at 734-37 (district court’s order to produce agents’ report
reversed since it did not qualify as a Jencks Act statement). The government and the court
apparently agreed that the statements at issue were neither written by the witnesses nor were
recordings of substantially verbatim recitals of an oral statement made by the witness and 20
contemporaneously recorded. Thus, the district court did not violate the Jencks Act or commit
reversible error in failing to order the disclosure of the material.
III Burton’s Right of Self-representation.
The government concedes that there is no evidence to refute Burton’s contention that the
Court erroneously rejected his unequivocal request for self-representation, without any inquiry, in
violation of the Sixth Amendment. The record shows as follows. Burton was appointed counsel,
Ms. Elizabeth Mends, on December 20, 1995. On February 29, 1996, he filed a letter
complaining about counsel and requesting that the court assign counsel who would work in his
best interest. On March 18, 1996, the court held a hearing on Burton’s request for appointment
of new counsel. It advised that another attorney would be appointed and if Burton did not like
the second attorney, he would have to hire his own. Burton replied he planned to try and
represent himself. The court recommended that he cooperate with his new attorney. When
Burton stated that he had the right to represent himself, the court responded: “[t]hat might be just
too bad, because I am appointing a lawyer to represent you.” Burton answered: “I would like
counsel appointed to assist me, but I still would like to represent myself during the trial.”
On March 20, 1996, Mr. Lee Van Richardson was appointed to represent Burton. On
March 3, 1997, Burton began filing various motions. He asked to represent himself pro se: “I
have a right to defend myself and I insist that you allow me to have my constitutional right to
defend myself . . . .” Burton also filed numerous handwritten motions to this effect.
On March 18, 1997, Burton filed another request to represent himself pro se, which was
followed by a serious of more pro se motions. He stated that he understood and evaluated the 21
advantages and disadvantages of self-representation and voluntarily and unequivocally asserted his
right to self-representation. The Court entered an order that Burton’s motions were not filed
pursuant to any orders of the Court and denied his pro se motions.
On June 2, 1997, Burton made a third written request for self-representation, stating he
was entitled to such a right under the Sixth Amendment as provided in Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He stated he was competent and his decision
was made knowingly and voluntarily. He requested a hearing to determine if his request for self-
representation would be granted. On July 10, 1997, the court entered a one-line order stating:
“the defendant, Duncan E. Burton’s motion for self-representation is denied.” Burton filed a
fourth request for self-representation on August 4, 1997, reiterating that he made the choice
knowingly and voluntarily.
During a pretrial hearing on November 25, 1997, Mr. Richardson reminded the court that
Burton had filed a motion to represent himself pro se “which he has maintained a desire to do I
think throughout his involvement in this case.” The court stated it had previously denied his
request and would “continue denying it.” During the trial on April 6, 1998, after the court
admonished Burton and Williams about the effect of their co-defendants’ decision to plead guilty
during trial, Burton again stated that he wished to represent himself.
It is well-established that a defendant has a constitutional right to represent himself.
Faretta, 95 S.Ct. at 2530-39. Such right is codified in 28 U.S.C. § 1654. Denial of self-
representation at trial is automatically reversible error. See Neder v. United States, 527 U.S. 1,
119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). A defendant’s assertion of his right to counsel must be
“clear and unequivocal.” United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998). This Court 22
indulges every reasonable presumption against waiver of counsel because defending pro se may
jeopardize the defendant’s chance of receiving an effective defense, and the presumption prevents
the defendant from arguing denial of effective assistance of counsel on appeal. Burton v. Collins,
937 F.2d 131, 133 (5th Cir. 1991); Chapman v. United States, 553 F.2d 886, 892-93 (5th Cir.
1977). While repetition of the request to represent oneself is unnecessary under Faretta, the
number of times a defendant repeats a request may make his intent to waive counsel clearer.
Burton, 937 F.2d at 133 n. 3. Once an unequivocal request for self-representation is made, the
district court is duty-bound to honor it. Faretta, 95 S.Ct. at 2540.
Since a defendant who represents himself relinquishes rights associated with the right to
counsel, the district court must assure that the defendant’s decision to waive counsel is made
competently, knowingly and voluntarily, by advising him about the disadvantages of self-
representation. Faretta, 95 S.Ct. at 2541. See Martin, 790 F.2d at 1217 (relevant factors for
determining voluntary waiver are whether defendant understands the nature of the charge,
consequences of proceedings and right to counsel, and defendant’s background, i.e. age,
education, criminal experience). Here, there was no inquiry or determination whether Burton’s
waiver of counsel was made knowingly and voluntarily. See United States v. Hernandez, WL
145969 (9th Cir. 2000) (where defendant made unequivocal request for self-representation and the
court failed to provide defendant with information to allow him to make a voluntary and
intelligent waiver of counsel, it denied the defendant the right of self-representation). Burton’s
request for self-representation was unequivocal. He was 40 years old, completed high school,
attended Chicago State University, and worked at different jobs as an information systems analyst.
Based on the above, the government has no evidence to refute Burton’s argument. A denial of 23
the right of self-representation is part of a limited class of fundamental constitutional errors that
defy analysis by harmless error. See Neder, 527 U.S. at 1 (1999). Consequently, Burton’s
conviction is vacated and remanded for new trial on all counts, except count 13 for which he was
acquitted. See Faretta v. California, 95 S.Ct. at 2525 (vacating and remanded the case for
proceedings not inconsistent with the Court’s opinion).
IV Speedy Trial Act.
Factual findings pertaining to the Speedy Trial Act are reviewed for clear error, but the
district court’s legal conclusions are reviewed de novo. See United States v. Franklin, 148 F.3d
451, 454 (5th Cir. 1998).
Burton argues that the more than two year delay between the date of the last appearance
by one of his codefendants and the actual start of the combined trial violated the Speedy Trial Act.
This is the most complicated issue in this appeal because an accurate assessment of Burton’s claim
involves tedious calculations of the exact number of non-excludable days between the last
appearance of a codefendant and the actual start of trial. After counting the number of non-
excludable days, we find that no Speedy Trial Act violation occurred.
Burton was indicted on December 4, 1995, in a 25-count indictment brought against 12
defendants. He appeared in court on December 20, 1995, but codefendant Cole did not appear in
court until January 22, 1996, which is the date on which the Speedy Trial clock would begin to
run.
Under the Speedy Trial Act, the trial of a defendant must commence within 70 non-
excludable days from the latest date of the indictment or initial appearance of the last codefendant.
See United States v. Franklin, 148 F.3d 451, 454-55 (5th Cir. 1998). Excludable days include the 24
time between the filing of a pretrial motion and the conclusion of the hearing on that motion,
delays resulting from interlocutory appeals, and the reasonable time during which a motion is
under advisement by the court which does not exceed 30 days. See 18 U.S.C. § 3161(h) (1) (E),
(F), (J).
In a multi-defendant case, excludable delays applicable to one codefendant may be
attributable to all codefendants, but the amount of delay may only be “a reasonable period of
delay when the defendant is joined for trial with a codefendant as to whom the time for trial has
not run and no motion for severance has been granted.” 18 U.S.C. §§ 3161 (h) (1) (F), 3161 (h)
(7).5 On the one hand, there is a need for efficient use of judicial and prosecutorial resources
when trying multi-defendants; on the other hand, delay may cause prejudice to a minor participant
in a large conspiracy. See, e.g., United States v. Blackwell, 12 F.3d 44, 47 (5th Cir. 1994).
In this case, the trial began on March 24, 1998, approximately two years and two months
after the initial appearance of the last codefendant on January 22, 1996. The government claims
that the entire period from January 22, 1996 until October 13, 1997 is excludable under § 3161
(h) (1) (E), (F) and § 3161 (h) (7).
These exclusions resulted from the numerous pretrial motions filed by Burton and the
other codefendants, as well as an appeal resulting from Dale’s motion to suppress filed on
February 24, 1996. That motion was heard on May 23, 1996, ruled upon June 10, 1996, and then
appealed. The appeal remained pending until October 13, 1997.
5 When there is only one defendant, all of the time between the filing of a pretrial motion and the conclusion of the hearing on that motion is allowable delay, regardless of whether the delay in holding the hearing is reasonably necessary. See Henderson v. United States, 476 U.S. 321 (1986), cited in Franklin, 148 F.3d at 455 n.10. 25
Because the delay caused by Dale’s motion to suppress is attributable to Burton, then all
of the time between January 22, 1996 and October 13, 1997 is excludable, since Burton or other
codefendants had various pretrial motions pending from January 22, 1996 until Dale filed his
motion to suppress on February 24, 1996.6
The government claims that the time between October 16, 1997 and March 24, 1998 was
also excludable because of pending motions in limine. These motions, which dated back to June
of 1996 were not discussed until March 8, 1998 and March 23, 1998. At these pretrial hearings,
the court decided to defer ruling on these motions as motions in limine, but instead would rule on
them as the evidence arose at trial.
Generally, the time between the filing of a motion in limine and a hearing on that motion
(or actual trial) is excludable. See United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir. 1996);
Franklin, 148 F.3d at 455; cf. United States v. Santonyo, 890 F.2d 726, 728 (5th Cir. 1989)
(excluding eight-month period between defendant’s filing of motion in limine and the hearing on
that motion). Burton argues that the motions in limine may not be used to exclude time because
the court did not defer them until trial, but essentially denied them, stating that the court would
entertain evidentiary objections only as they came up at trial.
Burton’s argument makes some sense: if the court stated it would not decide the motions
in limine as a pretrial matter, they should not toll the speedy trial clock past the time when the
court issued that statement. However, such statements were not issued until March 8, 1998 and
March 23, 1998. Even assuming that the March 8, 1998 ruling stopped any Speedy Trial Clock
6 In fact, Burton specifically filed a motion on January 22, 1996 to adopt his codefendants’ pretrial motions. 26
tolling, only 16 days elapsed between March 8, 1998 and the start of trial on March 24, 1998.
Assuming that the only other days that elapsed were the days between October 13, 1997 and
October 16, 1997,7 there would still only be a total of 19 elapsed days, which would not create a
violation.
Burton argues that delays attributable to other codefendants’ motions cannot be
reasonably attributed to him in their entirety, especially given that he was a relatively minor player
in this saga. To determine whether a delay caused by one codefendant may be attributable to
others in its entirety, we may examine either the totality of the circumstances prior to trial or the
actual prejudice to the defendant. See Franklin, 148 F.3d at 457.
The government argues that the entirety of the delays caused by Burton’s codefendants
was reasonable to attribute to Burton in light of the circumstances prior to trial: (1) numerous
defendants; (2) voluminous evidence, discovery, and witnesses; (3) extensive investigation and
trial preparation; and (4) numerous notions and legal issues. Moreover, Burton, and his
codefendants were charged together in only one conspiracy and Burton was involved in
transactions with coconspirators Williams, Dale, McGrew, Murphy, Cole and others. Thus, there
was strong reason to accommodate the efficient use of government and judicial resources to avoid
several trials. See Franklin, 148 F.3d at 457-58 (finding that a single joint trial has compelling
utility when the defendants were charged with a single conspiracy, thus allowing the government
to put forward a single, cohesive factual history and group of witnesses).
7 There seems to be no reason to even say that the Speedy Trial Clock was running on those three days, because the motions in limine were pending at that time. However, the government does not specifically argue that those days are excludable, Regardless, those three days should not be determinative under any line of analysis. 27
Burton claims, however, that he was prejudiced from the trial delay because he was
incarcerated. It is not altogether clear how much weight we must give the prejudice argument if
we find that the totality of circumstances prior to trial warrants charging Burton with his
codefendants’ delay. Cf. Franklin, 148 F.3d at 457-58 (examining both factors). Even if we
were to afford the prejudice factor significant weight, however, the prejudice Burton complains of
is either nonexistent or not attributable to the delay before trial.
The district court let Burton out on bond pending trial despite testing positive for cocaine
use. The court revoked the bond only after Burton was charged with sexual assault against
children and other offenses in North Carolina. Thus Burton’s subsequent conduct caused his
incarceration before trial, not the delay before trial. Additionally, Burton has failed to explain why
the delay impaired his ability to defend himself, especially when it gave him more time to file pro
se motions.
The reality of the matter is that this was a complex case, Burton was a minor but not
insignificant participant, and Burton suffered no prejudice attributable to the delay. Courts
routinely exclude lengthy time periods in such multi-defendant cases against all codefendants.
See, e.g., U.S. v. Mendoza-Cecelia, 963 F.2d 1467, 1476 (11th Cir. 1992), abrogation on
unrelated grounds recognized by Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994) (finding
that 18-month delay was reasonable under Speedy Trial Act because delays caused by
codefendants did not prejudice defendant); cf. U.S. v. Dillenia, 763 F.2d 897, 922 (8th Cir. 1985)
(finding that 18-month delay caused by codefendants was reasonable under the Sixth Amendment
because any prejudice was outweighed by public interest in bringing complex case).
Thus, it appears that delays caused by motions of Burton and the other codefendants can 28
safely be attributed to Burton.8 Furthermore, we conclude that at most only 19 days of Speedy
Trial Clock time elapsed, given our findings regarding the motions in limine. Therefore, we hold
that no violation of the Speedy Trial Act occurred.
V Ineffective Assistance of Counsel.
A criminal defendant has a fundamental right to be represented by counsel at sentencing.
See United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991), cert. denied, 502 U.S. 883. The
proper standard for attorney performance is that of reasonably effective assistance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Burton contends that trial counsel rendered ineffective assistance for failing to object to
his criminal history calculation in the PSR. This Court generally declines to review Sixth
Amendment claims of ineffective assistance of counsel on direct appeal. Kizzee, 150 F.3d at 502.
However, an appellate court may consider a claim regarding trial counsel’s ineffectiveness if the
record provides sufficient detail about the attorney’s conduct to allow the court to make a
determination on the merits. United States v. Chavez-Valencia, 116 F.3d 127, 133 (5th cir. 1997),
cert. denied, 118 S.Ct. 325 (1997). As the issue was not raised in the district court, the record is
insufficient to enable direct review.
CONCLUSION
As to Williams, we hold that the evidence was sufficient on all counts to support
Williams’s convictions for conspiracy and aiding and abetting possession with intent to distribute
cocaine. We conclude that Williams has failed to establish a Jencks Act violation. Accordingly,
8 That is, except for the time after the court decided not to consider the motions in limine. 29
we AFFIRM Williams’s convictions on all counts.
As to Burton, we let stand his acquittal on count 13 and decline to dismiss his convictions
on counts 1, 14, 15, 16, 17, 19 and 20. Since the district court denied Burton his right of self-
representation, this Court must vacate and remand for Burton to have a new trial on all counts,
excluding count 13. We uphold the district court’s decision to deny Burton’s motion to dismiss
indictment for violation of the Speedy Trial Act. Furthermore, we find that the record is
insufficiently developed to review Burton’s claim that counsel rendered ineffective assistance of
counsel at sentencing. Therefore, letting stand Burton’s acquittal on count 13, we VACATE
Burton’s convictions on counts 1, 14, 15, 16, 17, 19 and 20, and REMAND for a new trial.