United States v. Frazier

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 97-40636 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANTONIO DEWAYNE FRAZIER,

Defendant-Appellant. _________________________

Appeal from the United States District Court for the Southern District of Texas (G-95-CR-10-3) _________________________

July 16, 1998 Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Antonio Frazier appeals his conviction of, and sentencing for,

one count of conspiracy to possess with intent to distribute five

kilograms or more of cocaine and fifty grams or more of cocaine

base, or “crack.” Finding no reversible error, we affirm.

I.

While incarcerated in the Galveston County, Texas, jail for a

violation of the terms of parole for a state drug offense, Frazier

was visited by two Drug Enforcement Agency (“DEA”) agents who were

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. investigating a drug ring in League City, Texas. Special Agents

Michael Moser and Hugh Hawkins solicited Frazier's cooperation in

learning about the drug operations of Michael Raven, who the DEA

believed was a major distributor of crack in the League City area.

Before visiting Frazier in the county jail, however, the DEA

contacted the Galveston County District Attorney's office to

inquire whether Frazier was represented by counsel. The D.A.'s

office told the DEA agents that Kevin Rekoff had represented

Frazier in the state proceeding for which he was then incarcerated.

The U.S. Attorney's Office thereafter contacted Rekoff to ask his

permission for the agents to speak with Frazier about the federal

investigation.

Rekoff told the Assistant U.S. Attorney that he could not give

or deny permission because he no longer represented Frazier. The

Agents subsequently contacted Rekoff and scheduled a meeting later

that day so that they could discuss the agents' impending

interview. Rekoff testified that, at the meeting, he again

reiterated to the agents that he could not give them permission to

meet with Frazier because he no longer represented him. Apparently

knowing of no other attorney representing Frazier, Rekoff gave the

agents his business card with his cellular phone number written on

the back. Rekoff told the agents to give the card to Frazier and

tell him that Rekoff was available should Frazier wish to consult

with him.

When the agents arrived at the county jail, they informed

2 Frazier that they had spoken with Rekoff and produced his business

card. The agents told Frazier that Rekoff “gave them permission”

to speak with him. Frazier and the agents contest whether the

agents then told Frazier that Rekoff “told him to cooperate” with

the agents. In any case, thereafter, Frazier agreed to give a

written statement and did so after receiving his Miranda warnings

both orally and in writing. He subsequently signed a waiver of his

rights and proceeded to disclose the extent of his drug dealing

with Raven. Frazier did, however, requestSSand the officers

agreedSSnot to include the other persons with whom he dealt in his

confession.

After Frazier was released from the county jail, he

voluntarily traveled to the DEA's Galveston office for a

debriefing. He again was read his Miranda rights, and he again

provided information without requesting an attorney. Agent Moser

prepared a summary of these oral statements.

Frazier, Raven, and others associated with the Raven's drug

ring were subsequently indicted. Although Frazier had signed a

waiver of his rights and made self-incriminatory statements, he

recanted and pleaded not guilty.

Frazier moved to suppress his self-incriminatory statements as

involuntarily given. He argued that Agents Moser and Hawkins told

him that his former lawyer, Rekoff, encouraged him to cooperate

with the police, when, in fact, Rekoff denied ever making such a

3 statement.

A magistrate judge held a hearing and heard the testimony of

Frazier, Rekoff, and the agents. Frazier testified that the agents

told him that Rekoff encouraged his cooperation with the agents.

On cross-examination, Frazier admitted that, at the time, Rekoff

was not his attorney and he did not seek hisSSor otherSScounsel.

Rekoff testified that when the agents arrived at his office,

he reiterated what he had told the Assistant U.S. AttorneySSthat he

could neither grant nor deny permission for the agents to speak

with Frazier, as Rekoff was no longer his attorney. Rekoff also

denied that he had ever told the agents to tell Frazier that he

thought Frazier should cooperate.

The agents testified that Rekoff did give them permission to

meet with Frazier. They also stated under oath that they had

showed Frazier Rekoff's business card and told him that Rekoff had

given them permission to speak with him. They denied, however,

that they ever told the defendant that Rekoff encouraged him to

cooperate. On the stand, they stated that they had informed

Frazier that he was likely to be indicted; that they had talked to

Rekoff, and Rekoff offered to speak with Frazier if Frazier wished;

and that Frazier thereafter had decided to waive his rights and

tell the agents some, but not all, of what he knew of Raven's

operations.

The magistrate judge was troubled by the agents' display of

4 Rekoff's business card, noting that the agents were using the

business card for the “psychological advantage” of putting Frazier

at ease. Ultimately, however, the magistrate judge found that the

agents never explicitly told Frazier that Rekoff wanted him to

cooperate with them. Given this fact-finding, the magistrate judge

concluded that the use of the business card did not amount to the

“official overreaching” necessary to suppress the confession as

involuntarily made. The district court, after a de novo review of

the transcript of the hearing before the magistrate judge, adopted

the report and recommendation over Frazier's objections.

Frazier was tried before a jury. The confession and Moser's

summary of Frazier's oral statements were read to the jury, but all

references to the other defendants were redacted. Several

witnesses also testified that they had seen Frazier dealing cocaine

and crack with Raven and Raven's associates.

When the government rested, the defense moved for judgment of

acquittal, which the court denied. The defense rested without

introducing testimony. The jury returned a verdict of guilty, and

the judge sentenced Frazier to 402 months' imprisonment.

II.

Frazier contends that the court erred by failing to suppress

his written and oral self-incriminatory statements, which he claims

were involuntarily made. We review factual determinations made in

the course of a suppression hearing for clear error. See, e.g.,

5 United States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir. 1992)

(citation omitted). Yet, we make “an independent review of the

legal conclusion of voluntariness.” Id.

“Voluntariness [of a confession] depends upon the totality of

the circumstances and must be evaluated on a case-by-case basis.”

Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

“[A] confession is voluntary in the absence of official

overreaching, in the form either of direct coercion or subtle forms

of psychological persuasion.” Id. (citations omitted). The

government bears the burden of proving by a preponderance of the

evidence that a defendant has waived his rights voluntarily. See

id. at 417.

At the hearing on the motion to suppress, the main factual

dispute concerned whether the agents affirmatively told Frazier

that Rekoff, his former attorney, said that he should talk to the

agents, or whether, instead, the agents merely related that Rekoff

said that the agents could talk with Frazier if Frazier so wished.

Predictably, Frazier testified that the former representation was

made, and the officers denied it. The court credited the officers'

testimony over Frazier's.

Frazier bases his challenge to the factual finding on the

cross-examination testimony of Agent Moser, which contains what

Frazier characterizes as an admission that Moser told Frazier that

the agents had contacted Rekoff and that Rekoff had told them to

6 tell Frazier that it was “O.K.” for Frazier to talk to them. The

record, however, belies Frazier's characterization of Moser's

cross-examination testimony. Although Frazier attempted to get

Moser to make such an admission on cross-examination, Moser stated

that Frazier's version of the events was “not even close to a fair

interpretation” of the conversation that the agents had with

Frazier. Moser testified that Rekoff “gave [the agents] permission

to talk to” the defendant and that they gave Frazier Rekoff's

business card and told him to feel free to contact Rekoff. The

factual finding on this issue was not clearly erroneous.

Accordingly, we must decide whether the agents'

representations to Frazier that the defendant's former attorney

“gave the agents permission to speak with the defendant,” and the

agents' showing Frazier Rekoff's business card and telling him that

his former attorney had stated that he should “feel free” to

contact him, constitutes the coercion necessary to make his

subsequent confession involuntary. We conclude that these actions

do not constitute “official overreaching” and thus did not give

rise to an involuntary confession.

“[T]here is nothing inherently wrong with efforts to create a

climate for confession. Neither 'mere emotionalism and confusion,'

nor mere 'trickery' will alone necessarily invalidate a

confession.” Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.

1988) (citations omitted). When a self-incriminatory statement is

7 given in the absence of an attorney, however, the government bears

a “heavy burden” of showing a knowing and intelligent waiver. Self

v. Collins, 973 F.2d 1198, 1206 (5th Cir. 1992) (quoting Miranda v.

Arizona, 384 U.S. 436, 475 (1966)).

It follows that “[t]he waiver inquiry has 'two distinct

dimensions': First, the relinquishment of the right must have been

voluntary, in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception.

Second, the waiver must have been made with a full awareness of

both the nature of the right being abandoned and the consequences

of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412,

421 (1986). Both parts of this test are met in this case.

Frazier made a free and deliberate choice to relinquish his

rights. Although, as the magistrate judge found, the agents may

have been using the business card for “psychological advantage,”

Frazier, by his own account, knew that Rekoff, at that point, no

longer represented him. Frazier also chose not to exercise his

rights to call Rekoff, or another attorney, to ask his advice.

Most importantly, Frazier chose to exercise his rights partially,

even in the absence of an attorney, while at the same time

partially relinquishing themSSthat is, he refused to name anyone

other than Raven in the confession that he gave. Because Frazier

does not claim that the agents related a qualified directive from

Rekoff (such as “tell only part of the story”), it is not apparent

8 why their use of the business card was able to overcome only part

of Frazier's will.

Frazier also knew the consequences of waiving his rights. He

received the Miranda warnings both orally and in written form

before deciding to speak while in jail; he also received the

Miranda warnings again at the DEA office before he offered more

self-incriminatory statements. He was an adult with at least a

high-school education. And perhaps most of all, he was no tyro in

the criminal justice system.

III.

Frazier next challenges the sufficiency of the evidence to

support his conspiracy conviction. The district court denied his

motion for judgment of acquittal on this ground, and we review that

decision de novo. See United States v. Sanchez, 961 F.2d 1169,

1179 (5th Cir. 1992). We affirm if a reasonable trier of fact

could conclude from the evidence that the elements of the offense

were established beyond a reasonable doubt, viewing the evidence in

the light most favorable to the verdict and drawing all reasonable

inferences from the evidence to support the verdict. The evidence

presented at trial need not exclude every reasonable possibility of

innocence. See United States v. Faulkner, 17 F.3d 745, 768 (5th

Cir. 1994).

In a prosecution for a drug conspiracy, the government must

prove (1) the existence of an agreement between two or more persons

9 to violate the narcotics laws; (2) that the defendant knew of the

agreement; and (3) that he voluntarily participated in the

agreement. See United States v. Gonzalez, 76 F.3d 1339, 1346 (5th

Cir. 1996). “Proof of any element may be by circumstantial

evidence, and circumstances altogether inconclusive, if separately

considered, may, by their number and joint operation, . . . be

sufficient to constitute conclusive proof.” United States v.

Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995) (internal quotations

and citations omitted). “[A]ssent to a conspiracy may be inferred

from acts which furthered the purpose of the conspiracy.” Id. at

162 (internal quotations and citations omitted).

Frazier was identified by several witnesses who testified that

he had sold crack to them. Two of these witnesses further

testified that Frazier had obtained his crack from Raven. A

government agent stated on the stand that Frazier and a co-

defendant had met with a confidential informant in a motel room to

discuss a crack deal on Raven's behalf. The meeting was taped by

authorities, and the tape and transcript were introduced at trial.

Frazier also admitted to being a crack cocaine dealer. This

evidence is more than sufficient to allow a jury to conclude beyond

a reasonable doubt that Frazier and Raven agreed to violate the

drug laws; that Frazier knew of the agreement; and that he

participated in the agreement voluntarily.

IV.

10 Frazier argues that the district court erred in failing to

grant him a reduction in sentence for “acceptance of

responsibility.” His argument is based on his apology at

sentencing that he had “no one to blame except [him]self.”

Because Frazier did not object at sentencing, we review for

plain error. “Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of

the court.” FED. R. CRIM. P. 52(b). This requires (1) that there

be error; (2) that the error be plain; and (3) that the error must

affect substantial rights. See United States v. Calverley, 37 F.3d

160, 162 (5th Cir. 1994) (en banc). The burden of showing

prejudice lies with the defendant. See id. at 164. Even if an

error meets this criteria, we have the discretion not to reverse if

the error does not “seriously affect the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)).

Section 3E1.1(a) of the Sentencing Guidelines permits a two-

level reduction for acceptance of responsibility “[i]f the

defendant clearly demonstrates a recognition and affirmative

acceptance of personal responsibility for his criminal conduct.”

United States v. Allibhai, 939 F.2d 244, 253 (5th Cir. 1991)

(quoting U.S.S.G. § 3E1.1). “The defendant bears the burden of

demonstrating to the sentencing court that he is entitled to a

downward adjustment for acceptance of responsibility, and we review

11 the sentencing court's acceptance of responsibility determination

with even more deference than under the pure clearly erroneous

standard.” United States v. Bermea, 30 F.3d 1539, 1577 (5th Cir.

1994) (citations omitted).

Frazier has not met his burden on this prong: “This

adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential

factual elements of guilt, is convicted, and only then admits guilt

and expresses remorse.” U.S.S.G. § 3E1.1 cmt. 2. The district

court therefore was well within its discretion.

V.

Frazier contests his base offense level. He argues that the

district court erred in the amount of drugs it attributed to him

and in determining that the cocaine at issue was “crack.”

Frazier failed to object to the finding in the presentence

report that the drug involved was crack cocaine. We thus review

for plain error and find none. In addition to other evidence

introduced at trial, the record reflects that Frazier admitted in

his confession that the drug involved was crack.

Frazier also challenges the drug amount used in calculating

his base offense level.2 The PSR used the figure of 8.883

2 Because of the sketchy record on this point, we assume arguendo that Frazier properly raised this argument in the district court. This assumption does not affect the outcome of our analysis.

12 kilograms.3

Unless a defendant submits relevant affidavits or other

evidence to rebut the information in the presentence report, the

district court is free to adopt the report's findings without

further inquiry or explanation. See United States v. Mir, 919 F.2d

940, 943 (5th Cir. 1990). Here, the probation office calculated

the figure primarily from Frazier's own statements admitting that

he distributed as much as nine ounces of crack every three weeks.

In addition, the probation office found that Frazier had

participated in two transactions in July and August 1995 in which

approximately 283 grams of cocaine were involved. Frazier put on

no evidence to challenge these findings, which were included in the

presentence report. We therefore find that the court's use of the

8.883 kilogram number in the calculation of the base offense level

was not error.

AFFIRMED.

3 Frazier also contends that the PSR improperly attributed Raven's crack to him, and that such amounts were not foreseeable. It appears that these contentions were not made in the district court, and we find no plain error in this regard.