U.S. v. Bethley

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 14, 1992
• Docket: 91-3639
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 91-3639 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANK H. BETHLEY,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court For the Middle District of Louisiana ____________________________________________________

(September 14, 1992)

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

DAVIS, Circuit Judge:

Frank H. Bethley was charged with possession of cocaine with

intent to distribute, in violation of 21 U.S.C. 841(a)(1). After

a jury trial, he was convicted and sentenced to 120 months

imprisonment, to be followed by three years of supervised release.

We find no error and affirm.

I.

As part of an investigation into the criminal activities of

Betty Chube, the Drug Enforcement Administration obtained the

assistance of Detective Willie Turner, Livingston Parish Sheriff's

Office, to act in an undercover capacity as a cocaine purchaser.

On January 18, 1991, the undercover agent negotiated with Betty

Chube by phone to purchase five ounces of cocaine. After Chube agreed to make the sale she telephoned Frank Bethley, and asked him

to come to her residence and help complete the transaction.

When Turner arrived at Chube's residence, Bethley walked out

of the residence and approached Turner, indicating that he had the

cocaine. Before Bethley delivered the cocaine, Bethley noticed

other agents approaching the residence. He immediately went back

into the residence, pulled a bag from his jacket, and threw it into

the lap of Bertell Roddy, who lived with Chube. The agents secured

this bag, which contained 139.9 grams of cocaine.

Bethley's trial revealed that, for six months prior to this

offense, Bethley had purchased cocaine from Chube five to six times

a month, in quantities ranging from one to three ounces.

Bethley challenges his conviction on two grounds. First, he

argues that he was denied due process because Bertell Roddy, a

government witness, failed to disclose a federal felony conviction.

Second, he argues that the evidence is insufficient to support his

conviction. Bethley also contends that the district court erred in

calculating his sentence under the Guidelines. We consider all of

these arguments below.

II.

A.

Bethley argues first that his conviction resulted from the

perjured testimony of Bertell Roddy, which the government knowingly

failed to correct. During Bethley's trial, the following exchange

occurred between counsel for Bethley and Bertell Roddy:

Q. Within the last ten years, how many crimes have you been convicted of, felony?

A. One.

2 Q. One, in state court?

A. That I know of.

Despite the fact that Roddy disclosed his state felony conviction,

he did not disclose that, just months earlier, he had pleaded

guilty to a federal felony charge as well.

The government must not withhold potentially exculpatory

evidence from the accused. Giglio v. United States, 405 U.S. 150,

154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Moreover, the government

must not deliberately use perjured testimony or encourage the use

of perjured testimony. Napue v. Illinois, 360 U.S. 264, 269-70, 79

S.Ct. 1173, 1177-8, 3 L.Ed.2d 1217 (1959); United States v.

Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).

The record shows that the United States gave Bethley a copy of

Roddy's state and federal rap sheets, as well as a copy of Roddy's

plea agreement for the federal offense. Moreover, the district

court told the jury that Roddy had entered a plea of guilty to a

federal offense. It is not clear whether Roddy understood that a

conviction following a plea agreement is just that--a conviction.

However, counsel for Bethley did not follow up on Roddy's response

about his convictions by directing Roddy's attention to the plea

agreement. The record belies Bethley's argument that the

government withheld material evidence from Bethley, or that

Bethley's conviction resulted from perjured testimony.

B.

Bethley argues next that the evidence is insufficient to

support his conviction under 18 U.S.C. § 841(a)(1). In reviewing

this challenge, our task is to determine whether any reasonable

3 jury could have found Bethley guilty on the evidence presented. In

considering the permissible inference we must view the evidence in

a light most favorable to the verdict. United States v. Black, 644

F.2d 445 (5th Cir. 1981).

Betty Chube testified that she told Bethley that she had five

ounces of cocaine inside a paper sack. She told him that her new

customer to whom the cocaine was to be delivered was a relative of

one of their mutual acquaintances. After Willie Turner, the

undercover officer, arrived, Chube reminded Bethley of the amount

of cocaine in the sack and the price per ounce of cocaine that he

was to obtain from Turner. The defendant took the sack containing

the cocaine to meet Turner.

Turner testified that when he arrived at Chube's house,

Bethley came out, approached him, and told him that he had the

merchandise and was ready to deal with him. Bethley pointed to a

bulge in his jacket as he spoke to Turner. Bethley then tried to

enter Turner's car to complete this transaction, repeating his

earlier statement to Turner. Turner, however, replied that he

preferred to deal with Betty Chube. During this exchange, unmarked

cars, which Bethley suspected were occupied by police, slowly

approached Chube's house. Seeing these unmarked vehicles, Bethley

turned around and quickly returned to the residence where he threw

the bag to Bertell Roddy. Before doing so, he told Chube that

"they" were coming.

Bertell Roddy testified that after Turner's arrival and before

Bethley left the house to meet him, Chube told Bethley that she had

4 five ounces of cocaine and wanted $1,100 per ounce. Officers found

approximately five ounces of cocaine in the paper sack.

The above evidence is adequate to support the jury's verdict

that Bethley possessed cocaine with the intent to distribute, in

violation of 21 U.S.C. 841(a)(1).

III.

Bethley argues that the district court made three errors in

calculating Bethley's sentence under the Federal Sentencing

Guidelines. First, Bethley contends, the district court improperly

calculated the amount of cocaine for sentencing purposes by

including cocaine that Bethley had purchased in previous

transactions. Second, Bethley argues that the district court

improperly refused to grant Bethley minimal or minor participant

status, which would have resulted in a reduction of the base

offense level by either 4 or 2 points. Third, Bethley argues that

the district court improperly raised Bethley's base offense level

by 2 points for obstruction of justice. We consider these

arguments below.

The district court found that Bethley had distributed a

minimum of 30 ounces of cocaine during the six months prior to the

offense for which Bethley was convicted. Based on this finding,

the district court included 30 ounces of cocaine as relevant

conduct under § 1B1.3(a)(2) of the Guidelines and increased the

base offense level by eight points. Bethley disputes both the

amount calculated and its relevance to the offense of conviction.

Chube testified at trial that she sold Bethley between one and

5 three ounces of cocaine, five or six times a month, for the six

months prior to the incident for which Bethley was convicted. The

evidence also revealed that Bethley possessed a pager from July

1990 to January 18, 1991, and that his only employment for several

years before January 18, 1991 was assisting his mother with her

home day care service, in return for her financial assistance. A

May, 1990 police search of Bethley's bedroom in his residence

revealed $1,200 cash, a .45 caliber automatic pistol, and a small

plastic bag of cocaine.

Bethley objected to the district court's use of the additional

30 ounces of cocaine. He stated that he consumed the cocaine he

purchased from Chube. He told the probation officer that he used

cocaine at least three times per week. However, an officer from

the Drug Enforcement Administration testified at the sentencing

hearing that the amount of cocaine that Bethley purchased from

Chube was not consistent with personal consumption. The district

court was entitled to reject Bethley's statement that he consumed

this relatively large quantity of cocaine. Bethley argues that his

indigence indicated that he did not distribute cocaine. But the

district court was entitled to find that a cocaine distributor who

also has a cocaine habit does not universally enjoy financial

success.

To account for Bethley's likely personal use of the cocaine,

the district court made a conservative estimate of the amount that

Bethley distributed; the court assumed that Bethley distributed

five ounces per month for six months, resulting in a total quantity

6 of 30 ounces. The district court's findings underlying this

calculation are not clearly erroneous.

Bethley argues alternatively that even if we accept the

district court's finding that he distributed 30 ounces of cocaine,

the court nevertheless erred in including this as "relevant

conduct" under the Guidelines.

U.S.S.G. § 1B1.3(a)(2) governs this issue. It mandates that:

[T]he base offense level where the guideline specifies more than one base offense level . . . shall be determined on the basis of the following:

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.1

We must therefore determine whether the district court clearly

erred in finding that Bethley distributed the 30 ounces of cocaine

as part of "the same course of conduct or part of a common scheme

or plan as the count of conviction." United States v. Byrd, 898

F.2d 450, 452 (5th Cir. 1990).

To qualify as relevant conduct, the prior conduct must pass

the test of similarity, regularity and temporal proximity. United

States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992). In other words,

there must be "'sufficient similarity and temporal proximity to

reasonably suggest that repeated instances of criminal behavior

constitute a pattern of criminal conduct.'" United States v.

Santiago, 906 F.2d 867, 872 (2d Cir. 1990) (quoting William W.

1 The term "offenses of a character for which § 3D1.2(d) would require grouping in multiple counts" does not require the defendant, in fact, to have been convicted of multiple counts. U.S.S.G. § 1B1.3, Application Note 2.

7 Wilkins, Jr. and John R. Steer, Relevant Conduct: The Cornerstone

of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 515-16

(1990)). "When one component is absent, . . . courts must look for

a stronger presence of at least one of the other components."

United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992).

Bethley's cocaine distribution activities took place within

six months of the offense for which he was convicted. Moreover,

those activities were of a continuous nature. The quantities

involved were similar--ounce quantities. Finally, the source and

type of drug were the same. The district court's conclusion that

Bethley's distribution of 30 ounces of cocaine was relevant conduct

to his offense of conviction is not clearly erroneous. See United

States v. Moore, 927 F.2d 825 (5th Cir.), cert. denied, ___ U.S.

___, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991).

Bethley argues next that his participation in the offense for

which he was convicted was minimal, or at least minor. He

therefore argues that the district court improperly refused to

downwardly adjust his offense level under U.S.S.G. § 3B1.2.

Section 3B1.2 of the Guidelines tells the sentencing judge to

decrease the defendant's offense level by 4 levels "if the

defendant was a minimal participant in any criminal activity," or

by 2 levels "if the defendant was a minor participant in any

criminal activity." A "minimal participant" is one who is "plainly

among the least culpable of those involved in the conduct of a

group." U.S.S.G. § 3B1.2(a), Application Note 1. A "minor

participant" is a participant who is "less culpable than most other

8 participants, but whose role could not be described as minimal."

U.S.S.G. § 3B1.2(b), Application Note 3.

The introductory commentary to § 3B explains that "[t]he

determination of a defendant's role in the offense is to be made on

the basis of all conduct within the scope of § 1B1.3 (Relevant

Conduct), . . . and not solely on the basis of elements and acts

cited in the count of conviction." See United States v. Rodriguez,

925 F.2d 107, 111 (5th Cir. 1991). We use the "clearly erroneous"

standard when reviewing a district court's findings of a

defendant's status during a criminal offense. United States v.

Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.), cert. denied, 493 U.S.

866, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989).

We have already concluded that the district court did not

clearly err when it counted Bethley's prior cocaine distribution as

related conduct under § 1B1.3 of the Guidelines. Therefore, the

district court properly considered Bethley's prior cocaine

distribution in its determination under § 3B1.2 of the Guidelines

that Bethley was not a minimal or minor participant.

We have held that a "mule" or transporter of drugs may not be

entitled to minor or minimal status. United States v. Buenrostro,

868 F.2d 135, 137-38 (5th Cir. 1989), cert. denied, 495 U.S. 923,

110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). And Bethley's activity was

not limited to a single delivery of drugs. He regularly purchased

cocaine and sold it during the six months preceding his arrest.

The district court did not clearly err in declining downward

adjustment for minor or minimal status.

C.

9 Bethley contends finally that the district court improperly

concluded that he obstructed justice within the meaning of U.S.S.G.

§ 3C1.1. Thus, he argues, the district court should not have

upwardly adjusted his offense level by two points under that

section.

Section 3C1.1 of the Guidelines directs a district court to

increase a defendant's offense level by 2 points "if the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense."

Application Note 3 provides a "non-exhaustive list of

examples" of the type of conduct that this guideline contemplates.

That list includes:

(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;

(b) committing, suborning, or attempting to suborn perjury;

(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding;

(d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding . . ., or attempting to do so.

Effective November 1, 1990, part (d) of Application note 3 has been

amended to include the words:

if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;

10 A district court's determination that a defendant has

obstructed justice within the meaning of U.S.S.G. § 3C1.1 is

subject to the clearly erroneous standard of review. United States

v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990), cert. denied, ___

U.S. ___, 111 S. Ct. 710, 112 L.Ed.2d 699 (1991).

The district court concluded that Bethley ran from the

officer, removed the drugs from his jacket, and put the drugs in

the hands of Bertell Roddy. The court then concluded that these

three actions, taken together, constituted obstruction of justice

within the meaning of § 3C1.1 and Application Note 3(d).

Specifically addressing the "standing alone" language at the end of

Application Note 3(d), the district court said that it did not base

its finding on the removal and the running from the officer

"standing alone," but, in addition, "the placing of the particular

bag which included the cocaine into the hands of another

defendant." This action, the court said, was a "material

consideration," within the meaning of § 3C1.1.

The district court also accepted Ms. Chube's testimony that

Bethley contacted her on at least five occasions attempting to

persuade her to sign an affidavit swearing he was not involved in

the offense, and that, on one occasion, he told her "I would do it

for you." The court then held that this conduct constituted

obstruction of justice within the meaning of § 3C1.1 and

Application Notes 3(b) and 3(a).

We uphold the district court's finding of obstruction of

justice, based on the combination of Bethley's placing the bag of

cocaine into the hands of Bertell Roddy and his attempts to get

11 Chube to sign a false affidavit. Therefore, we need not decide

whether Bethley's actions at the time of his arrest, alone, were

sufficient to constitute obstruction of justice within the meaning

of § 3C1.1.

IV.

For the reasons stated above, we affirm Bethley's conviction

and sentence.

AFFIRMED.