UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-11145 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL FITZGERALD WILSON,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas February 22, 1996
Before KING, STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER:
Appellant Michael Fitzgerald Wilson ("Michael Wilson") was
convicted of conspiracy to possess with intent to distribute and
distribution of more than 50 grams of crack cocaine, aiding and
abetting the use or carrying of a firearm during a drug trafficking
crime, three counts of use of a telephone to facilitate a drug
trafficking crime, and three counts of aiding and abetting money
laundering. The trial court sentenced him to life for the
conspiracy conviction, plus four years on the telephone counts and
twenty years on the money laundering counts, all to run concurrent with the life sentence. He was also sentenced to sixty months on
the gun count to run consecutive to all other sentences. The trial
court imposed five years of supervised release and a $25,000 fine.
Michael Wilson appeals. We affirm in part and reverse in part.
FACTS AND PROCEEDINGS BELOW
Michael Wilson was charged with conspiring with Wayland
Wilson, Koda Cook, Terry Dwayne Levels, Deann Coffman and Donel
Clark to manufacture and distribute crack cocaine, as well as
related substantive offenses.1 Michael Wilson's trial was severed
from his co-defendants' trial due to the illness of his first
attorney. Following a jury trial, Michael Wilson was convicted on
8 of 12 Counts.
Michael Wilson and his brother, Wayland Wilson, owned a
Dallas car dealership called Motor Market. Cook, who began buying
cocaine from Michael Wilson in 1989, was hired as a handyman at
Motor Market in the Spring of 1990. By the middle of 1991, he was
also involved in Michael Wilson's drug business. The co-defendants
cooked powder cocaine into crack cocaine, packaged it and
distributed it.
In May 1992, law enforcement officers obtained and executed
search warrants for Motor Market and various residences, seizing
drugs, guns, cars, currency, records of drug transactions and
various drug production paraphernalia.
1 We affirmed the convictions of Michael Wilson's co- defendants, Clark, Wilson, Levels and Coffman in United States v. Clark, 67 F.3d 1154 (5th Cir. 1995).
2 SUFFICIENCY OF THE EVIDENCE
Michael Wilson challenges the sufficiency of the evidence to
support his convictions on the money laundering counts, the
telephone counts and the firearm count.
a. Standard of Review
We must affirm the jury verdicts if a reasonable trier of fact
could conclude from the evidence that all the elements of the
offenses were established beyond a reasonable doubt, viewing all
evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence to support the verdict.
United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert.
denied, 506 U.S. 918, 113 S. Ct. 330, 121 L. Ed. 2d 248 (1992).
b. Money Laundering Counts
Michael Wilson contends that the evidence was insufficient to
support his convictions on three money laundering counts, which
charge Wilson with violating 18 U.S.C. § 1956(a)(1)(B)(i). In
order to convict under (B)(i) the government must prove that Wilson
(1) conducted or attempted to conduct a financial transaction, (2)
which the defendant knew involved the proceeds of unlawful
activity, and (3) with the intent to conceal or disguise the
nature, location, source, ownership, or control of the proceeds of
unlawful activity. United States v. Garza, 42 F.3d 251, 253 (5th
Cir. 1994), cert. denied, 115 S. Ct. 2263 (1995). The jury
returned guilty verdicts on Count 9, which involved the purchase of
3 a Jaguar automobile, Count 10, a house2 and Count 11, a boat.
Wilson first contends that there was no evidence that the
funds used to purchase these three items were proceeds of unlawful
activity or that Wilson knew they were the proceeds of unlawful
activity. Wilson characterizes the evidence at trial as
establishing only that Wilson used cash for these transactions and
that Wilson had income both from legitimate business and from drug
transactions.
Second, Wilson contends that the government did not establish
the third "concealment" element -- in this case, Wilson's intent to
conceal or disguise the nature, location, source, ownership or
control of the proceeds of unlawful activity. He relies on
language from United States v. Sanders, 929 F.2d 1466 (10th Cir.)
cert. denied, 502 U.S. 846, 112 S. Ct. 143 (1991), which this Court
cited with approval in United States v. Gonzalez-Rodriguez, 966
F.2d 918, 925 (5th Cir. 1992):
[B]y the express terms of the [money laundering] statute, a design to conceal or disguise the source or nature of the proceeds is a necessary element for a money laundering conviction.
In Sanders, a man and wife purchased automobiles with drug
2 The house was titled in the names Michael Wilson, Wayland Wilson and Bonnie Gill. In United States v. Clark, 67 F.3d 1154 (5th Cir. 1995), we considered whether Wayland Wilson's conviction under 18 U.S.C. § 1956(a)(1)(A)(i) was supported by sufficient evidence. There, the question was whether the house was purchased with the intent to promote further drug trafficking and we found that the evidence was sufficient to support the conclusion that it was. Clark, 67 F.3d at 1160-1161. Here we consider a separate question: whether the evidence presented during Michael Wilson's trial was sufficient to support a conviction under (B)(i), rather than (A)(i).
4 proceeds. One of the vehicles was titled in their daughter's name.
However, because they readily identified themselves to the sales
person and conspicuously used the automobiles "making the
association of these vehicles with the [defendants] obvious to law
enforcement," the Tenth Circuit reversed their money laundering
convictions for failure to prove the concealment element.
Similarly, Wilson readily identified himself and his ownership of
Motor Market to the sellers of the car, house and boat. The
paperwork prepared in connection with those transactions showed
Wilson's name on the house title, while title to the car and boat
were taken in the name of Motor Market.
The government responds that the jury could reasonably infer
that the funds used for the purchases were drug proceeds, based on
the evidence that (1) the purchase money was bundled in the same
way that the drug organization bundled their cash, (2) Wilson was
a principal in large-scale drug trafficking activities, which
yielded large quantities of cash, and (3) Cook, a co-defendant,
testified that Michael Wilson was selling cocaine for a living when
he went to work for Motor Market in the Spring of 1990.
As to the concealment element, there was evidence that Michael
Wilson purchased the Jaguar through a broker and asked the seller
to tell the IRS that the car was damaged and sold for less than
half the actual price. When the house was purchased, Wilson said
the cash was from an inheritance, which he told Cook was his
"cover" for the cash purchase. Finally, the boat was titled
jointly in the names Motor Market and Cook, and Cook testified that
5 he and Michael Wilson discussed the fact that Cook had received a
settlement from his job that could explain the cash purchase.
Having reviewed the record, we conclude that a reasonable jury
could have found every element of 18 U.S.C. § 1956(a)(1)(B)(i) on
each of these purchases beyond a reasonable doubt.
c. The telephone counts.
Michael Wilson was charged in Counts 4 and 5 with using a
telephone to facilitate a drug transaction. The conversations were
recorded by means of a wiretap, and the recordings and
transcriptions of the conversations were admitted into evidence.
The conversation in Count 4 was between Coffman and Michael Wilson.
Michael Wilson argues that, assuming the conversation concerned
drug dealing, it was a status report about a bookkeeping
discrepancy, and thus under United States v. Gonzalez-Rodriguez,
966 F.2d at 922, it was insufficient to sustain a conviction. In
United States v. Clark we rejected this argument. Coffman was
convicted for participating in the same conversation which we held
was "more than the mere conveyance of information" and "constituted
the actual conducting of the drug operation." Clark, 67 F.3d at
1162.
The conversation in Count 5 is between Michael Wilson and an
unidentified male. Count 5 alleged that Wilson used a telephone to
facilitate a felony by discussing with the unknown individual
acquisition of a narcotic controlled substance. Wilson asked if
another person "still got that thang" and says "call him, let's
hear from him." The conversation can reasonably be construed to
6 concern negotiations for the purchase of "that thang." Cook
testified that the conversation was between Wilson and David "Dink"
Richardson. Cook's testimony ties the conversation to a cocaine
delivery that Richardson had previously made for Wilson, which
allowed the jury to infer that the "thang" being discussed was
cocaine.
We therefore find that Michael Wilson's telephone count
convictions were supported by sufficient evidence.
d. The firearm count.
Michael Wilson was convicted in Count 2 of using and carrying
a firearm in connection with a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1), based on the seizure of several firearms
from a residence owned by Michael Wilson located on Etta Drive.
Wilson was not present at the location where the guns were seized,
and his fingerprints were not recovered from any of the weapons.
No witness testified to seeing Wilson use or carry any of the
specific weapons named in Count 2. No drugs were recovered from
the location where the weapons were seized, although Cook testified
that drug money was counted and stored at the Etta Drive house.
Section 924(c) requires the imposition of criminal penalties
if the defendant, "[d]uring and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a
firearm." The government argues that conviction under § 924(c)(1)
does not depend on proof that the defendant had actual possession
of the weapon or used it in any affirmative manner, but only
requires that the firearm was available to provide protection to
7 the defendant in connection with his engagement in drug
trafficking, citing United States v. Willis, 6 F.3d 257, 264 (5th
Cir. 1993).
The Supreme Court overruled Willis when it recently held that
conviction for use of a firearm under § 924(c) requires evidence
sufficient to show active employment of a firearm by a defendant.
Bailey v. United States, 116 S.Ct. 501 (1995). The Supreme Court
specifically considered and rejected arguments by the government
that § 924(c) criminalized the storing of a weapon near drugs or
drug proceeds and concealing a weapon nearby to be ready for
imminent confrontation during a drug transaction. Id. at 508.
We therefore find the evidence insufficient to support
Wilson's conviction on Count 2.
RECUSAL MOTION
Michael Wilson next challenges his convictions on the basis
that the district court erred in denying his motion to recuse the
trial judge. We review the denial of recusal motions under an
abuse of discretion standard. United States v. Jordan, 49 F.3d 152
(5th Cir. 1995). We must determine whether a reasonable and
objective person, knowing all of the facts, would harbor doubts
concerning the judge's impartiality. Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 860-61, 108 S. Ct. 2194, 2203, 100
L. Ed. 2d 855 (1988).
Michael Wilson's trial was severed from that of his co-
defendants, and the co-defendants were tried first. His recusal
motions were based on the fact that the trial judge ruled on a
8 number of motions, including a motion to suppress evidence, in the
first trial before Michael Wilson presented substantially identical
motions in his trial. The trial court also had access to
information in the co-defendants' presentence reports that
implicated Wilson prior to Wilson's trial. Wilson particularly
focused on a comment made by the district court at the earlier
sentencing hearing that "Mike Wilson's primary responsibility was
in the cocaine and cocaine base end," alleging that the comments
"indicate that the court has predetermined Michael Wilson's guilt
in violation of the Due Process Clause of the Fifth Amendment."
The trial court summarily denied the motion, noting that "these
comments concern Wilson's guilt or innocence, which is a matter
that will be determined by a jury, not by the Court."
Wilson's motion acknowledged that the trial court had no
personal bias or prejudice, and bases his claim on the Due Process
Clause rather than on the recusal statutes, 28 U.S.C. §§ 144 and
455. Although he relies on cases that discuss the recusal
statutes, he makes no argument that those statutes were violated.
Rather, he implies, without explaining why or citing authority,
that his due process right to an impartial tribunal requires
reversal in circumstances that pass muster under the statutes and
their interpretive case law. The government's reply likewise cites
to cases interpreting the recusal statutes and does not respond to
Wilson's contention that the Due Process Clause affords him relief
not available under the statutes.
Opinions formed during the prior proceedings do not constitute
9 a basis for statutory recusal unless the opinion displays a deep-
seated favoritism or antagonism that would make fair judgment
impossible. Liteky v. United States, ___U.S.___, 114 S. Ct. 1147,
127 L. Ed. 2d 474 (1994). This Court has recognized that a trial
judge is not disqualified because he presided over the trial of a
co-defendant or accepted the guilty plea of a co-defendant and
that, absent allegations that the judge harbored a personal bias
that would disqualify him, the denial of a motion to recuse is not
error. United States v. Partin, 552 F.2d 621, 639 (5th Cir.),
cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L.Ed.2d 189 (1977).
We see no basis for holding that the Due Process Clause
extends the necessity for recusal beyond the statutory requirements
in this circumstance. The district court's denial of Wilson's
recusal motion was not an abuse of discretion.
DID FORFEITURE RESULT IN DOUBLE JEOPARDY?
a. Standard of review.
This Court reviews the denial of double jeopardy claims de
novo. United States v. Cruce, 21 F.3d 70, 74 (5th Cir.), cert.
denied, ___U.S.___, 115 S. Ct. 174 (1994).
b. Administrative forfeiture
Wilson did not file a claim or contest the administrative
forfeiture and "a summary forfeiture, by definition, can never
serve as a jeopardy component of a double jeopardy motion." United
States v. Clark, 67 F.3d at 1163, quoting United States v. Arreola-
Ramos, 60 F.3d 188 (5th Cir. 1995). Wilson contends that he could
not afford to post bond. He justifies his failure to file a
10 pauper's affidavit by claiming that it would require him to
disclose information that would incriminate him and he chose to
invoke his right to remain silent. However, his stated reasons for
failing to file a claim are not evident from the record of the
forfeiture proceeding, to which he never became a party. There is
no basis in the record for distinguishing this case from Clark's
holding on administrative forfeiture.
c. Judicial forfeiture.
The property forfeited pursuant to judicial forfeiture was
stipulated to be proceeds of illegal activity under 21 U.S.C. §
881(a)(6), rather than property used to facilitate unlawful
activity. Wilson's contention that the forfeiture of property
derived from drug proceeds should be considered prior punishment
was rejected by this Circuit in United States v. Tilley, 18 F.3d
295, 300 (5th Cir.), cert. denied, 115 S. Ct. 574 (1994).
AVAILABILITY OF INFORMANTS
The grant or denial of disclosure of an informant is reviewed
under an abuse of discretion standard. United States v. Evans, 941
F.2d 267, 272 (5th Cir.), cert. denied, 502 U.S. 972 (1991).
b. Was the court's order an abuse of discretion?
The three informants who were the subject of Wilson's motion gave
information that was included in affidavits supporting applications
for wiretaps in this case. Wilson sought to interview them in
connection with his motion to suppress evidence obtained by use of
wiretaps, or alternatively, moved that the informants be produced
11 for pretrial interviews. Wilson alleged that the informants had
extensive knowledge of the conspiracy. Wilson concedes that he
knew the identity of all of the informants and the location of one
of them.
When granting or denying disclosure of the identity or
location of an informant, the court's discretion is guided by three
factors: (1) the level of involvement in the alleged criminal
activity, (2) the helpfulness of disclosure to any asserted
defense, and (3) the government's interest in non-disclosure. Id.
The order denying Wilson's motion noted that Wilson failed to
present evidence that makes a substantial preliminary showing of
falsifications or misrepresentations in the affidavit, as he must
to establish his entitlement to go behind the affidavits. United
States v. Mueller, 902 F.2d 336, 341 (5th Cir. 1990). Next the
trial court found that the government's reasons for withholding the
information were substantial -- the informants' fear for their
personal safety, Wilson's pending indictment for witness tampering,
and the informants' statements that they did not wish to meet with
Wilson or his representative. Finally, the trial court noted that
Wilson failed to produce any evidence or specific allegations of
how these informants' testimony might bear on his guilt or
innocence.
Finding no abuse of discretion, we affirm.
WIRETAPPED TELEPHONE CONVERSATIONS
Wilson argues that his motion to suppress tape recordings of
wiretapped telephone conversations should have been granted because
12 the conversations were not "minimized" as required by law. 18
U.S.C. § 2518(5) and TEX. CODE CRIM. PROC. art. 18.20. At the
hearing, the parties adopted the transcript of the hearing on this
issue which the trial court held in the Clark case. The trial
court found that the "Government's conduct in minimization was both
objectively and subjectively reasonable." This Court affirmed a
similar ruling from the district court in Clark. This is a factual
determination subject to the clearly erroneous standard of review.
Clark, 67 F.3d at 1162. There is no basis for distinguishing this
case from the holding in Clark.
COCAINE BASE/POWDER COCAINE GUIDELINES
Wilson contends that the district court erred in denying his
motion to declare unconstitutional 28 U.S.C. § 991-98, 21 U.S.C. §
841, and U.S.S.G. § 2D1.1 insofar as they establish different
sentencing ranges for the distribution of the same amounts of
cocaine and cocaine base.
This argument has been foreclosed by Fifth Circuit precedent.
See United States v. Watson, 953 F.2d 895 (5th Cir.), cert. denied,
112 S. Ct. 1989 (1992) (no violation of due process or equal
protection); United States v. Butler, 988 F.2d 537 (5th Cir.),
cert. denied, 114 S. Ct. 413 (1993) (not unconstitutionally vague);
and United States v. Fisher, 22 F.3d 574, 579 (5th Cir.), cert.
denied, 115 S. Ct. 529 (1994) (not grossly disproportionate under
the Eighth Amendment).
Wilson's reliance on a proposed amendment to the Guidelines is
likewise without persuasive force. Amendment 505, adopted by the
13 Sentencing Commission, bringing sentencing provisions for crack in
line with provisions for powder cocaine, was rejected by Congress
and the president. Pub. L. No. 104-38, 109 Stat. 334, Oct. 30,
1995.
CONCLUSION
For the foregoing reasons, we reverse Michael Wilson's
conviction and sentence under § 924(c) and affirm all other counts
of conviction. Having reviewed the record of Wilson's sentencing,
we have concluded that § 924(c) conviction did not impact the
calculation of the guideline range or the sentence imposed on the
remaining counts of conviciton. We therefore affirm the remaining
sentence.
REVERSED in part and AFFIRMED in part.