UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________
No. 91-2638 _______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH CHARLES FRAGOSO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
(November 23, 1992)
Before JONES, BARKSDALE, Circuit Judges and JUSTICE,1 District Judge.
EDITH H. JONES, Circuit Judge:
Kenneth Charles Fragoso was convicted of conspiracy to
possess with intent to distribute more than 5 kilograms of cocaine.
Because of his two prior felony convictions, he has been sentenced
to life imprisonment. He appeals his conviction on numerous
grounds. For the reasons stated below, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 6, 1990, Larry Carlton contacted U Daya Chand
Thakur, who at that time was working as a paid informant for the
Drug Enforcement Administration (DEA), to inform him that he was in
possession of some cocaine and that he wanted Thakur to meet him
1 District Judge of the Eastern District of Texas, sitting by designation. immediately. The following morning, Carlton paged Thakur on his
beeper, and Thakur returned the call from the DEA office. During
the conversation, which was taped by DEA agents, Carlton stated
that he had ten kilos of cocaine to show Thakur and instructed him
to wait by the phone for directions to a meeting location. The
second call was also recorded.
That afternoon, Thakur and Carlton met at Champs
restaurant in Houston. Thakur was "wired" during this meeting, but
the recording of the conversation was unintelligible. Thakur
testified that Carlton told him that he had the cocaine in his
duplex and that his Mexican partner, Charlie, was back at the
duplex with the cocaine. Thakur also testified that Carlton told
him that if he moved the ten kilos of cocaine quickly, his partner
Charlie could supply another twenty to thirty kilos of cocaine the
next day.
After leaving the restaurant, Thakur followed Carlton to
the duplex, where Fragoso was waiting. Thakur expressed concern
about the presence of Fragoso, whom Carlton introduced as Charlie,
because Carlton had told him on the phone that they would be alone
during the deal. Carlton told Thakur not to worry about Fragoso's
presence, because Fragoso was his partner and because he had spent
time "in the joint."
Shortly after Thakur arrived at the duplex, Fragoso left
the room and returned with a garment bag, which he threw on the
floor, and instructed Thakur to "check it out." Carlton opened the
bag, which contained ten brown packages, and Thakur tested the
2 contents of one of the packages. While Thakur tested it, Fragoso
made representations about the quality of the cocaine, noting that
it was "good stuff" and that it was "from Colombia." Upon being
told by Fragoso that he could supply Thakur with another ten to
twenty kilos by the next evening, Thakur explained that his buyers
were in New York and that he would have to call them. Thakur then
left the duplex. DEA agents entered the duplex shortly thereafter2
and seized Carlton and the cocaine. Fragoso was arrested after
climbing out a window and attempting to climb over a fence.
On September 5, 1990, Fragoso was charged in a three-
count indictment with (1) conspiracy to possess with intent to
distribute in excess of 5 kilograms of cocaine, (2) aiding and
abetting the possession with intent to distribute in excess of 5
kilograms of cocaine, and (3) possession with intent to distribute
in excess of 5 kilograms of cocaine. After finding that the
seizure of the cocaine violated the Fourth Amendment, the district
court suppressed the cocaine, and the government moved to dismiss
Counts 2 and 3 of the indictment. Fragoso went to trial only on
Count 1, the conspiracy count. He was found guilty after a trial
by jury. Fragoso had two prior felony drug convictions, and he was
sentenced to life imprisonment.
2 It is not clear just how long Thakur had been gone when the agents entered the duplex. According to the trial testimony, it could have been as much as twenty minutes later.
3 THE JENCKS ACT
During the trial, Fragoso's attorney requested all Jencks
Act materials with respect to a particular DEA agent. Upon a
defendant's motion, the Jencks Act provides that the court shall:
order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.
18 U.S.C. § 3500(b) (emphasis added). Access under the Jencks Act
is limited to materials that fall under "the Act's definition of
'statements' which relate to the subject matter as to which the
witness has testified." Campbell v. United States, 365 U.S. 85,
92, 81 S. Ct. 421, 425, 5 L.Ed.2d 428 (1961) (citing Palermo v.
United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L.Ed.2d 1287
(1959)).
If the defense makes a timely request and there is some
indication in the record that the materials meet the Jencks Act's
definition of a statement, the district court has a duty to inspect
the documents in camera. United States v. Pierce, 893 F.2d 669,
675 (5th Cir. 1990); United States v. Hogan, 763 F.2d 697, 704 (5th
Cir. 1985). This procedure was followed here, and the district
court found that the submitted materials were not Jencks Act
materials and need not be produced to the defendant.
Whether written materials constitute a statement under
the Jencks Act is normally a question of fact to be determined by
the trial judge, and the court's determination may not be disturbed
unless clearly erroneous. Campbell v. United States, 373 U.S. 487,
4 493, 83 S. Ct. 1356, 1360, 10 L.Ed.2d 501 (1963); Hogan, 763 F.2d
at 704. Our examination of the material at issue reveals no error
in the district court's determination. Neither report "relates to
the subject matter as to which the witness has testified."
Consequently, Fragoso's Jencks Act claim must fail.
COCONSPIRATOR STATEMENTS
Fragoso claims that the court improperly permitted Thakur
to testify about "hearsay" statements made by Carlton.
Coconspirator statements are not, however, hearsay under the
Federal Rules of Evidence:
A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . (E) a statement by a conspirator of a party during the course and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2)(E). For a statement to be admissible under
this rule, "[t]here must be evidence that there was a conspiracy
involving the declarant and the nonoffering party, and that the
statement was made 'during the course and in furtherance of the
conspiracy.'" Bourjaily v. United States, 483 U.S. 171, 175, 107
S. Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). Whether statements are
admissible under this rule is a preliminary question that "shall be
determined by the court." Fed. R. Evid. 104(a); See Bourjaily, 483
U.S. at 175, 107 S. Ct. at 2778.
At the start of Thakur's testimony, Fragoso objected to
the admission of hearsay statements by Carlton because no
conspiracy had yet been established. Fragoso requested a James
5 hearing3 in order to determine the existence of a conspiracy. The
district court denied Fragoso's request for a James hearing, and
Fragoso now argues that this was error. Interestingly, Fragoso's
trial counsel conceded that under Bourjaily the court need not hold
a James hearing outside the jury's presence. But even before
Bourjaily, this court had so held. United States v. Gonzales, 700
F.2d 196, 203 (5th Cir. 1983); United States v. Whitley, 670 F.2d
617, 620 (5th Cir. 1982); United States v. Ricks, 639 F.2d 1305,
1310 (5th Cir. 1981). James has never required a hearing outside
the presence of the jury.
Alternatively, Fragoso asserts that the district court
erred procedurally in not making express findings of fact before
allowing Thakur to testify concerning statements made by Carlton.
Substantively, he argues that Thakur's testimony as a paid
informant was so lacking in credibility that there was insufficient
evidence independent of Carlton's coconspirator statements to
support either the introduction of those statements or the
conviction itself. Each of these arguments requires brief
discussion.
When preliminary facts to admissibility of coconspirator
testimony under Rule 801(d)(2)(E) are disputed, the offering party
must prove them by a preponderance of the evidence. Bourjaily, 483
U.S. at 181, 107 S. Ct. at 2781; Triplett, 922 F.2d at 1181.
Fragoso argues that Bourjaily requires the trial court to make
3 See United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S. Ct. 2836, 61 L.Ed.2d 283 (1979).
6 findings of admissibility before permitting introduction of
coconspirator testimony:
Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy."
Bourjaily, 483 U.S. at 175, 107 S. Ct. at 2778. We think this
argument erroneously transforms a descriptive portion of the
Court's opinion in Bourjaily into a mandatory procedure. Bourjaily
did not purport to address the procedure for proving the
admissibility of coconspirator statements. The opinion was
concerned with the substantive question whether the statements
themselves could be considered in conjunction with other evidence
of conspiracy to satisfy the predicate for admission. Bourjaily,
483 U.S. at 181, 107 S. Ct. at 2781. In holding that they could be
so used, Bourjaily "swept" away a major portion of our James
decision. United States v. Perez, 823 F.2d 854, 855 (5th Cir.
1987).
Bourjaily is, however, consistent with that portion of
James which emphasizes the trial court's procedural duty to make
findings "upon appropriate motion" before admitting coconspirator
statements. James, 590 F.2d at 582; see United States v.
Ascarrunz, 838 F.2d 759, 762 (5th Cir. 1988). And it is true that
James advised that "[t]he district court should, whenever
reasonably practicable, require the showing of a conspiracy and of
7 the connection of the defendant with it before admitting
declarations of a coconspirator." James, 590 F.2d at 582. But the
court also recognized that it is sometimes not reasonably
practicable "to require the showing to be made before admitting the
evidence." Id. As a result, both before and after
Bourjaily this court has approved district courts' practice of
carrying a James motion through trial or at least through
presentation of the government's case until a determination of the
existence of the Rule 801(d)(2)(E) predicate facts4 can be
appropriately made. See, e.g., United States v. Lechuga, 888 F.2d
1472, 1479 (5th Cir. 1989) (denying motion to exclude "at the close
of the government's evidence"); Perez, 823 F.2d at 855 (motion
carried with the case); Ricks, 639 F.2d at 1310. In some cases, of
course, judicial economy suggests that express findings on
admissibility should be made before the coconspirator statements
are introduced. See, e.g., Ascarrunz, 838 F.2d at 762; Gonzales,
700 F.2d at 203; Whitley, 670 F.2d at 620. This is a matter
committed to the broad discretion of the trial court. United
States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. 1977), cert. denied,
434 U.S. 1063 (1973).
This case strayed off the procedural track in that the
court never made any findings as to the predicate facts under Rule
801(d)(2)(E). Although we caution district judges against such
4 The predicate facts are the existence of the conspiracy and that the statements sought to be introduced were made during and in furtherance of the conspiracy. See, e.g., United States v. Lechuga, 882 F.2d 1472, 1479-80 (5th Cir. 1989).
8 oversights, the error here was harmless. In denying the
defendant's motion for directed verdict of acquittal at the close
of trial, the court implicitly found the evidence sufficient to
establish a conspiracy. See United States v. Ammar, 714 F.2d 238
(3d Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L.Ed.2d
311 (1983); United States v. Lutz, 621 F.2d 940, 947 (9th Cir.),
cert. denied, 449 U.S. 859, 101 S. Ct. 160, 66 L.Ed.2d 75 (1980).
Fragoso also asserts substantively that there was not
sufficient evidence independent of Carlton's statements to support
the existence of a conspiracy and hence the admission of the
statements under Rule 801(d)(2)(E). Bourjaily declined to decide
whether there must be any evidence independent of coconspirator
statements to determine that a conspiracy has been established by
a preponderance of the evidence. Bourjaily, 483 U.S. at 179, 181,
107 S. Ct. at 2781. That question is of no moment in this case,
for independent evidence of a conspiracy between Fragoso and
Carlton existed, and, together with coconspirator statements, that
evidence was sufficient to show the existence of a conspiracy by a
preponderance of the evidence.
When Thakur arrived at Carlton's duplex, Carlton and
Fragoso communicated through the door using code language that
Thakur did not understand. After being escorted around to the back
door, Thakur was introduced to Fragoso. They shook hands, and
Fragoso said, "Let's go in." While they were walking in, Fragoso
said to Thakur, "Don't worry, everything is cool." Once in the
duplex, Fragoso went to the back room, brought out a brown garment
9 bag, and threw it on the floor. Fragoso then told Thakur to check
it out. The garment bag contained ten brown packages. On one of
the packages, Thakur saw the letters, "YGA," and asked if somebody
had just flown in from Hong Kong. Fragoso replied, "No, this is
from Colombia." He then told Thakur that one of the packages was
open. Thakur found the package, opened it, and tested the cocaine.
Fragoso stated that it was "good stuff." Fragoso also told Thakur
that if he could get rid of that ten by the next morning, then he
could get Thakur another ten or twenty more by that evening.
This evidence all tends to support the conclusion that a
conspiracy existed between Fragoso and Carlton. If one considers
the coconspirator statements and the lack of contrary evidence,
there was certainly sufficient evidence to support the existence of
a conspiracy between Fragoso and Carlton. Fragoso makes much of
the inherent untrustworthiness of testimony by a paid informant
such as Thakur. Carlton did not testify, so Thakur's testimony
stood virtually alone to incriminate Fragoso. Fragoso considers it
malevolently significant that the "wire" Thakur carried to
memorialize the conspiracy malfunctioned consistently. To
infiltrate and expose the most sophisticated drug traffickers the
government must deal with, and must surely sometimes be fooled by,
unsavory characters. There is little this appellate court can
properly do to prevent overreaching but to implore that prosecutors
exercise sound moral and legal judgment and to insist that juries
be fully informed of the conditions under which a paid informant
10 worked. The credibility of Thakur's testimony was for the jury to
assess.
EVIDENCE OF PRIOR CONVICTIONS
Fragoso next asserts that fundamental, incurable error
occurred when Thakur testified that Carlton assuaged his
nervousness about Fragoso by telling him not to worry because
Fragoso had spent time "in the joint." Evidence of prior
convictions is admissible only for limited purposes. See Fed. R.
Evid. 404(b); Fed. R. Evid. 609. The district court ruled that
Thakur's statement was inadmissible and sustained Fragoso's
objection. We assume without deciding that the statement was not
properly admissible.5 When the district court sustained the
objection, he asked Fragoso's counsel if she wanted an instruction
and was told that she did. The court then instructed the jury that
he had sustained the objection and that they were to disregard the
witness's last response. At no point during the trial did Fragoso
suggest that the court's instruction was inadequate, nor did he
ever request a mistrial. Fragoso's assertion that the district
court's alleged error is incurable is incorrect. The district
court's instruction to disregard the comment cured the error, if
any. See United States v. Fields, 923 F.2d 358, 360 (5th Cir.),
cert. denied, ____ U.S. ____, 111 S. Ct. 2066, 114 L.Ed.2d 470
5 The government argues on appeal that Thakur's statement was admissible because it was part of the puffery used to obtain Thakur's confidence. See Lechuga, 888 F.2d at 1480; United States v. Miller, 664 F.2d 94, 98 (5th Cir. 1981), cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L.Ed.2d 106 (1982).
11 (1991); United States v. Avarello, 592 F.2d 1339, 1346 (5th Cir.),
cert. denied, 444 U.S. 844, 100 S. Ct. 87, 62 L.Ed.2d 57 (1979).
VARIANCE BETWEEN THE INDICTMENT AND THE JURY CHARGE
The indictment charged Fragoso with conspiracy to possess
with intent to distribute in excess of five kilograms of cocaine.
The district court instructed the jury that it was not required to
show that Fragoso knew the substance was cocaine, only that he
conspired to possess with intent to distribute some controlled
substance. Fragoso asserts that this discrepancy was reversible
error.6 Fragoso was convicted of conspiracy to possess with intent
to distribute under 21 U.S.C. § 846, which adopts as the object of
a conspiracy the crime of possession with intent to distribute, as
defined in 21 U.S.C. § 841(a). Under section 841(a), "the
government is not required to prove that a defendant knew the exact
nature of a substance with which he was dealing; it is sufficient
that he was aware that he possessed some controlled substance."
Gonzales, 700 F.2d at 200. Jury instructions such as that given in
this case were approved by this court long ago. Gonzales, 700 F.2d
at 200 (jury instructed that it could convict Gonzales if he "knew
that there was some controlled substance in the car, whether or not
he knew it was actually heroin or some other drug or narcotic");
6 Fragoso also argues that there was insufficient evidence to prove that cocaine was involved. Here the ten kilos of cocaine seized at the duplex were suppressed by the trial court. Despite the lack of physical evidence in the form of the cocaine itself, Thakur's conversations with Carlton include numerous references to cocaine as the subject of the transaction. In light of these references, there was more than enough evidence for the jury to infer that Fragoso had conspired with Carlton to possess cocaine with intent to distribute it.
12 see United States v. Rada-Solano, 625 F.2d 577, 579 (5th Cir.),
cert. denied, 449 U.S. 1021, 101 S. Ct. 588, 66 L.Ed.2d 482 (1980).
There was no error in the jury charge.
SENTENCING
Fragoso's final contention is that he was improperly
sentenced because the district court did not specifically follow
the procedures set forth in 21 U.S.C. § 851 to prove and base a
sentence enhancement on prior convictions. The government does not
deny the court's oversight, but it notes that Fragoso was well
aware of the likelihood of enhancement from the government's
pretrial information, filed pursuant to § 851(a)(1), alleging two
prior convictions. Although Fragoso objected to the presentence
investigation report and objected to the government's failure to
prove the convictions at trial, he never challenged them.
For two reasons, there is no reversible error. First,
Fragoso could not challenge his 1980 conviction under the
limitations provision of section 851(e), and where that section
prohibits a challenge to a conviction, "[n]either the enhancement
statute nor reason requires a trial court to adhere to the rituals
of § 851(b)." United States v. Nanez, 694 F.2d 405, 413 (5th Cir.
1982), cert. denied, 461 U.S. 909, 103 S. Ct. 1884, 76 L.Ed.2d 813
(1983); see United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir.
1990), cert. denied, ____ U.S. ____, 111 S. Ct. 972, 112 L.Ed.2d
1058 (1991). Second, while Fragoso's ability to challenge the use
of his later conviction is not barred by section 851(e), this court
recently held that a defendant's "failure to comply with the
13 procedures of § 851(c), when coupled with the absence of any
suggestion . . . that the judge's omission precluded him from
presenting a specific challenge to [a prior conviction]," amounts
to harmless error. United States v. Garcia, 954 F.2d 273, 278 (5th
Cir. 1992). Even on appeal, Fragoso does not argue that he would
or could have raised a proper challenge to his prior convictions
had he received the district court's warning under section 851(b).
Consequently, as in Garcia, the district court's error, if any, was
harmless.
Finally, for the first time on appeal, Fragoso argues
that it was cruel and unusual punishment to imprison him for life
without parole. The Supreme Court's decision in Harmelin v.
Michigan, ____ U.S. ____, 111 S. Ct. 2680, 2686, 115 L.Ed.2d 836
(1991), forecloses this contention.
CONCLUSION
For the foregoing reasons, Fragoso's sentence is
AFFIRMED.