Revised July 21, 1999
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 98-30484 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
versus
PAUL RICHARD GREEN,
Defendant-Appellant/Cross-Appellee. _________________________________________________________________
Appeals from the United States District Court for the Western District of Louisiana _________________________________________________________________ June 30, 1999
Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Paul Richard Green having been convicted for, while a
policeman, harboring a fugitive and a concomitant drug trafficking
conspiracy involving that fugitive, the principal issue is
presented by the Government’s cross-appeal: error vel non in the
sentencing court concluding that the jury’s general guilty verdict
for the conspiracy count (charging cocaine and preludes
distribution) was “ambiguous” ipso facto and that, therefore,
Green’s sentence could not exceed the five-year statutory maximum
for a conspiracy involving only preludes (statutory mandatory
minimum for the cocaine charge is ten years). Green contests the sufficiency of the evidence and the admission of co-conspirator
statements and rebuttal reputation testimony. We AFFIRM the
convictions, but VACATE the sentence and REMAND for resentencing.
I.
Green, a Lafayette, Louisiana, police officer from 1973 until
arrested in 1996 (he had attained the rank of captain), was charged
with conspiracy to distribute cocaine and phenmetrazine tablets
(preludes), in violation of 21 U.S.C. § 846 (Count I), and with
harboring a fugitive, in violation of 18 U.S.C. § 1071 (Count II).
A jury was unable to reach a verdict at Green’s first trial in
1997.
But, at his second trial that year, a jury found him guilty on
both counts. The Government presented evidence that Colomb, a drug
dealer, paid Green monthly for information to help Colomb and
others in his organization avoid arrest, including after Colomb
became a fugitive in 1988. Colomb testified that he avoided arrest
from 1981 until 1995 through information Green provided.
Claiming that, instead, Colomb was a confidential informant,
Green denied taking money from him. Green admitted, however, that,
while Colomb was a fugitive, they spoke by telephone, but claimed
that he was attempting to persuade Colomb to surrender; denied
assisting Colomb in avoiding apprehension; and stated that he last
spoke with Colomb in 1991, five years before Green was arrested.
- 2 - Post-verdict, the court denied judgment as a matter of law or
a new trial. Green was sentenced inter alia, to five years
imprisonment on each of the two counts, to run consecutively.
II.
Green contests the sufficiency of evidence for his
convictions, and the admission of a co-conspirator’s statements and
rebuttal testimony regarding his reputation for trustworthiness.
The Government challenges the court imposing, on the basis that the
conspiracy verdict was “ambiguous”, only a five-year sentence
(statutory maximum for conspiracy based solely on preludes) on that
count. (Alternatively, it contends that, even if the verdict was
ambiguous, drug type and quantity are not elements of the
conspiracy offense, but instead are sentencing factors. Concluding
that the verdict is not ambiguous, we need not address this
contention.)
A.
In reviewing Green’s properly-preserved sufficiency of the
evidence challenge, we must determine whether “a rational trier of
fact could have found that the evidence, viewed in the light most
favorable to the government, established guilt beyond a reasonable
doubt”. United States v. Truesdale, 152 F.3d 443, 446 (5th Cir.
1998); FED. R. CRIM. P. 29. Along this line, authority hardly need
be cited for the rule that “[i]t is the sole province of the jury,
and not within the power of this Court, to weigh conflicting
- 3 - evidence and evaluate the credibility of witnesses”. United States
v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998) (internal quotation
marks and citation omitted). In the light of the conflicting
testimony, especially by Green and Colomb, and the proper
credibility choices for the jury, this was indeed a classic case
for a jury. Green fails to hurdle these almost insurmountable
obstacles.
1.
The harboring statute provides, in pertinent part:
Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined....
18 U.S.C. § 1071. “Section 1071 requires some affirmative action
to support a conviction. Failure to disclose a fugitive’s location
and giving financial assistance do not constitute harboring, but
any physical act of providing assistance ... to aid the prisoner in
avoiding detection and apprehension will make out a violation of
section 1071”. United States v. Stacey, 896 F.2d 75, 77 (5th Cir.
1990) (internal quotation marks and citation omitted).
Conviction under § 1071 requires proof beyond a reasonable
doubt that the defendant: (1) knew that a federal arrest warrant
had been issued; (2) engaged in physical acts that aided the
fugitive in avoiding detection and apprehension; and (3) intended
- 4 - to prevent the fugitive’s discovery. United States v. Zerba, 21
F.3d 250, 252 (8th Cir. 1994). Green maintains that the Government
failed to prove either his knowledge of Colomb’s federal arrest
warrant or, after learning of its existence, his providing
assistance to him.
Regarding his November 1991 federal warrant for unlawful
flight to avoid prosecution, Colomb testified that, in late 1991,
he received a copy of a confidential Lafayette Police Department
report from his brother, Harold Colomb. Another brother, Paul
Colomb, a Lafayette attorney, testified that the report, in a
sealed envelope, was delivered by an unknown person to his
residence; and that he took the report to Harold Colomb, who lived
in Texas, and might have contact with Colomb. The report stated,
inter alia, that Colomb’s federal warrant was in effect as of 18
November 1991. Colomb testified that he discussed the report with
Green.
Green admitted knowing that Colomb was a fugitive from a 1988
state drug racketeering indictment, but asserts that, nevertheless,
he was not aware until trial of the federal warrant. In this
regard, he denied seeing the confidential report before the
Government revealed it then. But, of course, the jury was entitled
to discredit Green’s testimony and to find instead that he was
- 5 - aware of the report’s contents, including concerning the federal
warrant.
And, there was other circumstantial evidence from which the
jury could have concluded that Green was aware of the warrant. An
FBI Agent testified that police agencies are advised of federal
fugitive warrants, and that they are put into a computer database
to which all police agencies, including the Lafayette Police
Department, have access.
b.
Concerning Green acting after November 1991 to aid Colomb in
avoiding detection and apprehension, the Government presented
evidence that: Colomb applied for employment in Houston, Texas, on
23 May 1994, using the name “Ronald Prince” (Colomb’s deceased
cousin); Colomb asked Green to ensure that this alias did not have
any outstanding warrants; on 26 May, three days after Colomb
applied for employment, a Lafayette Police Department computer was
used to inquire about Ronald Prince, revealing a valid Louisiana
driver’s license and no record of traffic violations; telephone
toll records reflected that a telephone call was made that same day
from Green’s residence to a pay telephone in Houston; Colomb was
living in the Houston area; and Colomb was hired on 6 June, 11 days
after the computer check and telephone call.
In addition, Colomb testified that Green provided him with
information that enabled him to avoid arrest during the entire time
- 6 - he was a fugitive; and that Green brought money to him on many
occasions during that period.
2.
A 21 U.S.C. § 846 drug trafficking conspiracy conviction
requires proof beyond a reasonable doubt that: (1) there was an
agreement between two or more persons to violate the narcotics
laws; (2) the defendant knew of the conspiracy and intended to join
it; and (3) he voluntarily participated in it. E.g., United States
v. Medina, 161 F.3d 867, 872 (5th Cir. 1998), cert. denied, ___
U.S. ___, 119 S. Ct. 1344 (1999).
Green’s sufficiency challenge for the conspiracy is premised
almost entirely on attacking Colomb’s credibility. But, again,
credibility choices are for the jury.
Colomb testified that: in January 1981, while at the Lafayette
Airport to pick up preludes, he was arrested by Green and three
other officers; from inside Colomb’s vehicle, Green removed a small
bag containing $5,000 and concealed it under his arm; when he asked
Green’s plans for the bag, Green responded “don’t worry about it”;
no one was standing next to Colomb when he made the inquiry; the
next day, he went to Green’s home, and Green gave him the $5,000;
Colomb gave $500 of it to Green; and, thereafter, he paid Green
monthly for protection and information needed to avoid
apprehension.
- 7 - Green contends that, as a matter of law, Colomb’s testimony
regarding the 1981 arrest is incredible, claiming that it is
factually impossible for him to have searched Colomb’s car, seized
the money, and then discussed it with Colomb, who was under arrest
and handcuffed, without alerting other arresting officers. And,
based on Colomb’s claimed lack of credibility on that point and
motivation to lie, Green maintains that Colomb’s testimony is
insufficient to support the conspiracy verdict.
“Testimony is incredible as a matter of law only if it relates
to facts that the witness could not possibly have observed or to
events which could not have occurred under the laws of nature.”
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert.
denied, 514 U.S. 1097 (1995); see also United States v. Casteneda,
951 F.2d 44, 48 (5th Cir. 1992) (internal quotation marks and
citation omitted) (testimony is incredible as a matter of law only
when it “is so unbelievable on its face that it defies physical
laws”). Green relies on the testimony of other participating
officers in Colomb’s 1981 arrest. But, none testified that Green
could not have removed a bag from Colomb’s vehicle; instead, they
testified that they did not see him do so and did not clearly
recollect the details of the 16-year-old arrest. Needless to say,
Colomb’s testimony is far from being incredible.
Moreover, notwithstanding Colomb’s motivation to lie, the
Government presented substantial evidence corroborating much of his
- 8 - testimony, including: the date of his 1981 arrest; while a
fugitive, he telephoned Green; while a fugitive in 1991, he
received the confidential report; Alton Miller (discussed infra)
worked for him as a drug courier; Green met with Colomb in Addison,
Texas, in 1990; and, as discussed, Colomb used the alias “Ronald
Prince” while a fugitive, in conjunction with the computer check at
the Lafayette Police Department.
For two types of evidentiary rulings, Green seeks a new trial.
Such rulings are reviewed for abuse of discretion. E.g., United
States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.), cert. denied, ___
U.S. ___, 118 S. Ct. 254 (1997); see also United States v. Flores,
63 F.3d 1342, 1377 (5th Cir. 1995), cert. denied, 519 U.S. 825,
1022 (1996). “If an abuse of discretion is found, the harmless
error doctrine is applied”; therefore, “we will affirm evidentiary
rulings unless they affect a substantial right of the complaining
party”. Asibor, 109 F.3d at 1032; FED. R. EVID. 103.
Green claims reversible error in the admission of testimony by
two women linked to Alton Miller, Colomb’s drug courier, concerning
Miller’s statements about the protection Green provided him and the
Colomb drug organization. Green claims that the statements were
not made in furtherance of the conspiracy and therefore, pursuant
to FED. R. EVID. 801(d)(2)(E), were not admissible.
- 9 - Rule 801(d)(2)(E) provides, in pertinent part: “A statement
is not hearsay if ... offered against a party and is ... by a
coconspirator of a party during the course and in furtherance of
the conspiracy”. Accordingly, “[b]efore admitting a co-
conspirator’s statement under this Rule, the court must determine
by a preponderance of the evidence (1) that there was a conspiracy
involving the declarant and the non-offering party, and (2) that
the statement was made ‘during the course and in furtherance of the
conspiracy’”. United States v. Burton, 126 F.3d 666, 671 (5th Cir.
1997). Ruling that a statement was made in furtherance of a
conspiracy is a factual finding, reversible only if clearly
erroneous. United States v. Stephens, 964 F.2d 424, 434 (5th Cir.
1992).
Cassandra Bradley testified that she was sexually involved
with Miller in 1988-89 and that: on one occasion, she had helped
him count large sums of money; on another, she had seen him with
four or five kilograms of cocaine; on other occasions, he had
cocaine while with her; he told her he had taken over Colomb’s
cocaine business; in 1989, Miller told her he had just had dinner
with Green, Green had given him the “green light” to conduct that
business, and Green had told him he (Miller) was protected; he had
paid Green $20,000-$30,000 that year for protection; and on one
occasion, when a police car pulled up next to Bradley and Miller’s
vehicle at a traffic light, Miller was initially concerned, but his
- 10 - concern was alleviated when he recognized the officer as someone
who worked for Green, because Miller said he was protected.
When asked, outside the presence of the jury, why Miller had
told her about being protected by Green, Bradley testified that
Miller had told her that he had not responded to her pages because
he was having dinner with Green. She testified further that she
was not worried about being arrested because she was not part of
Miller’s drug-dealing business.
Cheryl Wiltz testified that: she was sexually involved with
Miller from 1974-1989, including having two children by him; and
she accompanied Miller to Miami once to pick up cocaine for Colomb
and was with him on another occasion to purchase a very substantial
wedding gift for Green’s child, so Miller could show his
appreciation for what Green had done for him. Outside the presence
of the jury, Wiltz testified that Miller told her about showing his
appreciation to Green because she and Miller were very close, but
she did not believe that he expected her to do anything with the
information.
This testimony by Bradley and Wiltz is claimed inadmissible on
the basis that, instead of the statements being made in furtherance
of the conspiracy, they were in furtherance of Miller’s
relationships with the women; and the evidence is claimed
prejudicial on the basis that, inter alia, Green was forced to call
convicted drug dealer Miller to deny making the statements.
- 11 - “The requirement that a co-conspirator’s statement be ‘in
furtherance of’ the conspiracy ‘is not to be construed too strictly
lest the purpose of the exception be defeated’”. Burton, 126 F.3d
at 674 (quoting United States v. Broussard, 80 F.3d 1025, 1039 (5th
Cir.), cert. denied, 519 U.S. 906 (1996)). Our court has “shunned
an overly literal interpretation of this [phrase]”; but on the
other hand, “[m]ere idle conversation ... is not considered in
furtherance of a conspiracy”. Id. (internal quotation marks and
citation omitted).
Along this line, the following have been found to be “in
furtherance of” a conspiracy:
[A] statement that identifies the role of one co-conspirator to another (United States v. Magee, 821 F.2d 234, 244 (5th Cir. 1987)); statements conveying information that could have been intended to affect future dealings between the parties (United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979)); puffing, boasts, and other conversation when used by the declarant to obtain the confidence of one involved in the conspiracy ([United States v.] Miller, 664 F.2d [94,] 98 [(5th Cir. 1981)]); statements which are puffing or boasts, but which are used to obtain the confidence of the person toward whom the statement is directed (United States v. Johnson, 872 F.2d 612, 623 (5th Cir. 1989)).
Burton, 126 F.3d at 675 (internal quotation marks, brackets, and
ellipses omitted). See also United States v. Flores, 63 F.3d at
1377 (statements made to inform conspirators of progress of
- 12 - conspiracy or made “in order to encourage loyalty and obedience
among the conspirators” are in furtherance of the conspiracy).
The court did not clearly err in finding that Miller’s
statements furthered the conspiracy. He reassured the women (they
accompanied him when he had drugs and drug money) that, through his
involvement with Green, they were protected. Accordingly, there
was no abuse of discretion.
Green maintains that rebuttal testimony about his reputation
for trustworthiness was inadmissible, founded on his claim that he
did not present evidence permitting such rebuttal. See FED. R.
EVID. 404(a)(1) (“[e]vidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same”, is
admissible).
Green called as witnesses several Lafayette police officers he
had supervised in the narcotics unit. They testified that: he was
their mentor; he had a unique, neighborhood-oriented policing
style; he never instructed them to not enforce the law regarding
Colomb or members of his organization; and they had no information
to indicate that he was anything other than a “good cop” and had no
knowledge of his having taken money from, or providing protection
to, Colomb.
In rebuttal, the Government called retired Lafayette Police
Officer Dartez, who testified that: Green’s reputation as a police
- 13 - officer was not trustworthy; and he knew of specific corroborating
instances. But, the court did not allow him to describe them.
Green contends that he did not present evidence of his
reputation for being honest, trustworthy, or law-abiding; he
claims, instead, to have presented only factual testimony regarding
observations of his conduct as a policeman, not knowledge of his
reputation in the police community. Green contends that he was
prejudiced by the admission of such damaging evidence, because,
inter alia, he had no subsequent opportunity to present his own
reputation evidence.
In the light of Green’s witnesses’ testimony that he was their
mentor, a “good cop”, and that they looked up to him for his style
of policing, the court did not abuse its discretion in ruling that
the Government was entitled to rebut that testimony with evidence
that others in the law enforcement community disagreed.
C.
The indictment charged conspiracy to distribute cocaine and
phenmetrazine (preludes), in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and (D). Pursuant to subpart (A) of § 841(b)(1), ten
years is the mandatory minimum sentence for the charged
distribution of over 50 kilograms of cocaine; but, pursuant to
subpart (D), the maximum sentence for the charged distribution of
over 50,000 phenmetrazine tablets is far less — five years.
- 14 - The jury returned a general verdict, finding Green guilty
“[o]n Count I” (conspiracy) and “[o]n Count II” (harboring). For
sentencing, the court concluded that the conspiracy verdict was
ambiguous, because the jury was not asked, and thus did not
specify, whether Green conspired to distribute preludes, or
cocaine, or both. Accordingly, over the Government’s objection,
and although the sentencing court found that, in addition to the
preludes, at least 50 kilograms of cocaine were also involved in
the conspiracy, it imposed a five-year sentence, the statutory
maximum for the preludes. In so doing, as discussed below, it
relied on United States v. Bounds, 985 F.2d 188 (5th Cir.) (if
general jury verdict for conspiracy to manufacture amphetamine and
phenylacetone is ambiguous, defendant must be sentenced based on
drug which produces lowest Guidelines offense level), cert. denied,
510 U.S. 845 (1993); United States v. Cooper, 966 F.2d 936, 940-41
(5th Cir.) (recognizing general rule that, for multiple-object
conspiracy with general verdict (“the jury failed to specify the
violation found”), sentence cannot exceed statutory maximum for
offense with least severe penalty), cert. denied, 506 U.S. 980
(1992); and United States v. Fisher, 22 F.3d 574, 576-77 (5th Cir.)
(same), cert. denied, 513 U.S. 1008 (1994).
Shortly before sentencing, however, the Supreme Court decided
Edwards v. United States, 523 U.S. 511, ___, 118 S. Ct. 1475, 1477
(1998), which concerned a charged conspiracy to distribute cocaine
- 15 - and crack. The jury returned a general guilty verdict, after being
instructed that defendants could be found guilty if the conspiracy
involved either cocaine or crack. Accordingly, defendants claimed
that their sentences should have been based on the Guidelines for
cocaine, rather than for crack (greater possible Guidelines’
sentence than for cocaine). Noting “a potential conflict among the
circuits on this question” (citing Bounds, among other cases), id.,
the Court held that the sentencing court was authorized by the
Guidelines (indeed, required) to determine whether crack, or
cocaine, or both were involved. It noted, however, that
defendants’ “statutory and constitutional claims would make a
difference if it were possible to argue, say, that the sentences
imposed exceeded the maximum that the statutes permit for a
cocaine-only conspiracy. That is because a maximum sentence set by
statute trumps a higher sentence set forth in the Guidelines”. Id.
(emphasis added).
Although Edwards was cited to it pre-sentencing, the district
court concluded, as noted, that Bounds, Cooper, and Fisher
controlled; but, in so doing, it recognized “it [was] in a gray
area” and hoped we would “address this with specificity”. Then,
subsequent to Green’s sentencing, our court held in Medina, 161
F.3d at 874, that our Bounds-rule (concerning Guidelines offense
levels) was “rejected” by Edwards.
- 16 - The Bounds-obstacle having been removed, the Government
contends, inter alia, that the general rule about statutory
maximums recognized in Fisher and Cooper is inapplicable,
maintaining that, even though a general verdict was used, Green’s
verdict was not ambiguous; therefore, his sentence should not have
been limited to the statutory maximum for preludes.
Accordingly, we must determine whether the general verdict is
“ambiguous” ipso facto. The obvious starting point is that, for a
conspiracy with more than one object-offense, a sentence set by
statute for one of those offenses should not be imposed if the jury
did not find the defendant guilty of that object-offense.
Restated, different considerations are in play than for Guidelines’
sentencing, such as where relevant conduct is considered.
The general rule recognized by Cooper, 966 F.2d at 940, and
Fisher, 22 F.3d at 576, serves this salutary purpose. We take care
in limiting Cooper and Fisher to simply “recognizing” the general
rule. This is the term employed by Fisher in citing Cooper for the
rule. Fisher, 22 F.3d at 576. For the sentencing issue in each
case, where the rule was recognized, the sentence imposed did not
exceed the statutory maximum for the object-offense with the least
severe penalty. See Cooper, 966 F.2d at 941; Fisher, 22 F.3d at
576. But, in each case, defendants asserted that the “least severe
principle” also applied to Guidelines calculations. Cooper, 966
- 17 - F.2d at 942; Fisher, 22 F.3d at 577. Each rejected this transfer.
Cooper, 966 F.2d at 941-42; Fisher, 22 F.3d at 576-77. But, in so
doing, after discussing relevant Guidelines provisions, Fisher
again noted the general rule, stating that defendants’ Guidelines
“argument overlooks the limitation of the sentence to the statutory
maximum for the least severe object offense alleged in the count of
conviction”. Fisher, 22 F.3d at 577. At best, this is dicta; as
discussed, the sentences did not exceed the statutory maximum for
the object-offenses.
Moreover, the procedural scenario for the case at hand is far
different. For example, Green’s jury was not instructed, as was
the Cooper jury, that it could convict for conspiracy if the
Government proved an agreement to distribute only one of the
controlled substances alleged in the indictment and that, if so, it
must agree unanimously as to which controlled substance was
distributed. See Cooper, 966 F.2d at 939. Fisher does not discuss
such underlying procedural matters employed in that case.
In sum, we do not read Cooper or Fisher, which simply and
summarily recognized the general rule, to hold that a general
verdict for a conspiracy with more than one object-offense is
“ambiguous” ipso facto. Nor do we understand the earlier-quoted
language from Edwards, 523 U.S. at ___, 118 S. Ct. at 1477, about
a “possible” contention regarding the statutory maximum to mandate
ambiguity in a general verdict. Again, the jury was instructed in
- 18 - Edwards that it could find guilt for the charged conspiracy if it
found “the conspiracy involved either cocaine or crack”. Id.
(emphasis added). As noted earlier, and as discussed infra, that
is not the situation here.
Instead, especially in the light of Edwards and Medina, even
where there is a conspiracy general verdict, the sentencing court
can still conclude that the jury found, beyond a reasonable doubt,
guilt for more than just one object-offense. See United States v.
Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (where indictment
charged conspiracy to distribute heroin, cocaine, and cocaine base,
and evidence of all three drugs introduced, verdict not ambiguous),
cert. denied, 503 U.S. 911 (1992).
The indictment charged conspiracy to distribute “over fifty
(50) kilograms of cocaine, ... and over fifty thousand (50,000)
tablets of phenmetrazine or ‘preludes’”; described the object of
the conspiracy as a “scheme for profit involving transportation and
distribution of cocaine and phenmetrazine or ‘preludes’”; alleged
that the preludes distribution began in 1979 and was discontinued
in 1984, when the enterprise began distributing cocaine; and
alleged that Green and his co-conspirators used vehicles to
transport and deliver “cocaine and phenmetrazine or ‘preludes’”.
(Emphasis added.)
In five instances, the jury instructions refer to the two
controlled substances. In four of those five, “and” separates
- 19 - “cocaine” from “phenmetrazine or preludes”: the first, that Green
“is charged, in Count I of the indictment with conspiring to
distribute cocaine and phenmetrazine or preludes, controlled
substances”; the second, in listing the elements of the offense,
that, to find Green guilty, the jury must be convinced beyond a
reasonable doubt “[t]hat two or more persons made an agreement to
commit the crime of distribution of cocaine, phenmetrazine or
preludes as charged in the indictment”; the third and fourth, in
the same sentence, that “[t]o distribute cocaine and phenmetrazine
or preludes means for one person to intentionally transfer cocaine
and phenmetrazine or preludes to another”; and the fifth, and
final, that “at the time of the transfer the person making the
transfer knew that cocaine and phenmetrazine or preludes were
controlled substances”. (Emphasis added.)
As noted, in its general verdict, the jury found Green guilty
“[o]n Count I” (conspiracy) and “[o]n Count II” (harboring). Any
chance of ambiguity arising from the one instance in the
instructions where a comma, rather than a conjunction, separated
“cocaine” from “phenmetrazine or preludes” was removed by the
phrase that immediately followed — “as charged in the indictment”.
In other words, we agree with the Eleventh Circuit that this
possible ambiguity in the instruction cannot be resolved without
examining the evidence. Green
may not prevail on [his] claim simply by showing that [he was] convicted under
- 20 - conspiracy instructions which, on their face, might permit the jury to return a guilty verdict if the conspiracy found did not involve [cocaine]. It must also appear that the evidence would support such a construction of the verdict actually obtained. In the absence of the latter, there can be no genuine ambiguity in the jury’s verdict, as any purported ambiguity would only have been created by a reading of the verdict that was not supported by the evidence in the case.
United States v. Dennis, 786 F.2d 1029, 1038-39 (11th Cir.)
(emphasis added), reh’g granted in part on other grounds, 804 F.2d
1208 (11th Cir. 1986), cert. denied, 481 U.S. 1037 (1987).
The evidence is overwhelming that the conspiracy, charged and
proved, had as its objectives the distribution of cocaine and
preludes. Colomb testified that: he began selling preludes in the
1970s and became involved in distributing cocaine in 1983,
continuing until 1994; he began paying Green for information and
protection in 1981, initially $500, but later approximately $10,000
per month; Green was his “partner”, from 1981 to 1988, seeing him
once a month; and, after he (Colomb) became a fugitive in 1988, he
continued to be involved in cocaine distribution and to receive
information and protection from Green.
There is no evidence to support concluding that the jury found
the conspiracy involved preludes, but not cocaine. Accordingly, it
is inconceivable that the verdict was based solely on finding that
Green participated in a conspiracy involving only preludes.
Instead, we are more than confident that the jury was convinced
- 21 - beyond a reasonable doubt that both cocaine and preludes were
involved.
Considering the conjunctive language used in the indictment to
describe the controlled substances that were the objects of the
conspiracy; the jury instructions, which also used conjunctive
language and referred to the indictment; and the overwhelming
evidence that the conspiracy involved cocaine and preludes, we
conclude that the jury found guilt beyond a reasonable doubt for
each of the object-offenses. Accordingly, the verdict was not
ambiguous. Therefore, it was error to limit Green’s sentence to
the statutory maximum for preludes.
III.
For the foregoing reasons, the convictions are AFFIRMED; the
sentence is VACATED; and the case is REMANDED for resentencing.
AFFIRMED in part, VACATED in part, and REMANDED
- 22 -