UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 91-1472 ___________________________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN SENNETT WHITE and JOHN MICHAEL WILSON,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court For the Northern District of Texas ____________________________________________________
(September 4, 1992)
Before HILL1, KING and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
John Sennett White and John Michael Wilson appeal their
convictions on charges of possession with intent to distribute
cocaine and conspiracy to commit the same offense on several
grounds. Both challenge their convictions and Wilson contests his
sentence under the Guidelines. For both defendants, we reverse in
part, affirm in part and remand for entry of a new judgment and for
resentencing.
I.
In the fall of 1989, a federal grand jury in the Southern
District of Texas returned an indictment against Mark Monroe
1 Senior Circuit Judge of the Eleventh Circuit, sitting by designation. Northcutt (Northcutt) charging him with possession of cocaine with
intent to distribute and conspiring to commit the same offense in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Northcutt was also
facing state felony drug charges in San Marcos, Texas, as well as
state forfeiture proceedings against his property. In January of
1990, Northcutt agreed to cooperate with the Drug Enforcement
Administration (DEA) and identified several targets for federal
prosecution. One of those targets is a defendant in this case,
John Michael Wilson (Wilson). Wilson was a criminal defense
attorney practicing in Dallas who handled mostly drug cases.
At an initial unrecorded meeting, Northcutt met with Wilson at
Wilson's office in Dallas. Northcutt asked Wilson to defend him in
the cases described above. According to Northcutt, Wilson quizzed
him about the extent and profitability of his drug distribution
business. Northcutt met a second time with Wilson in Houston on
February 27, 1990. In this meeting, which was tape recorded,
Northcutt told Wilson that he wanted to hire him but didn't have
any cash. Northcutt told Wilson that he had twenty-one kilograms
of cocaine stored in a mini-warehouse and asked Wilson for an
introduction to one of his clients who might be interested in
purchasing the cocaine. Wilson responded that if he furnished such
an introduction, he would be implicated in the conspiracy which he
did not want to do. Wilson agreed, however, to consider the
proposal. John Sennett White (White), who was both Wilson's client
and personal cocaine supplier, left at least nine telephone
messages for Wilson during the week following this meeting.
The next contact with Wilson occurred when Wilson called
2 Northcutt on March 8, 1990. Wilson told Northcutt that he had
"somebody in Dallas that might be interested" in the cocaine.
Later the same day, Wilson and Northcutt discussed over the phone
whether the cocaine transfer should be made in Dallas, Houston
(where Northcutt was) or somewhere between the two cities. Wilson
mentioned "his man" in relation to the transaction. Wilson was
agreed to travel to Houston on Saturday, March 10, 1990 to make the
exchange, but did not show up.
Over the next seven days, Wilson and Northcutt had numerous
tape-recorded phone conversations which culminated in Wilson's
agreement to represent Northcutt in exchange for the cocaine.
According to Northcutt, Wilson agreed to represent him in return
for the twenty-one kilos of cocaine. Wilson testified that he
thought he had agreed to represent Northcutt in return for one kilo
of cocaine and $100,000. Wilson had several more telephone
conversations with Northcutt attempting to arrange a time and place
to transfer the cocaine.
On March 18, Wilson and Northcutt met for about one hour in
Wilson's office in Dallas. No tape recording was made of this
meeting. Northcutt testified that they discussed the amount of
cocaine Wilson's "man" could move a week and the price they
expected to obtain for it. According to Northcutt, Wilson told him
that ten kilos would pay Wilson for his services in defending
Northcutt in the federal charges and the remainder would compensate
Wilson for defending the state charges. Northcutt agreed to go to
Houston, pick up the cocaine and deliver it to Dallas in a single
suitcase as soon as possible. During the days immediately before
3 this meeting, White left several messages with Wilson's message
service.
On Tuesday, March 20, 1990, Northcutt returned to Dallas with
the cocaine. He went to Wilson's office around 7 p.m. and gave
Wilson the key to Room 909 of the Holiday Inn on Central
Expressway. In a recorded conversation, Northcutt told Wilson that
the cocaine was stored in an expensive Halliburton case that he
wanted back. Northcutt also told Wilson that Wilson and "his man"
would be impressed with the quality and purity of the drug. Wilson
said that he would go right over to complete the pick up. After
Northcutt left, Wilson called White and arranged to meet him at the
Holiday Inn.
Shortly thereafter, White and Wilson arrived at the Holiday
Inn in separate cars. The two spoke briefly and entered the hotel.
The DEA, which had already set up a surveillance of Room 909,
videotaped the activity in the room. White and Wilson entered the
room, turned off the lights and turned up the volume on the
television. They explored the room, Wilson peered behind a picture
and White covered the smoke detector with a towel. These actions
were taken in an obvious attempt to avoid surveillance. They paced
the room and then each walked over to the suitcase and lifted it as
if to check its weight.
Finally, after about ten minutes, White placed the suitcase on
the bed and opened it. He counted the kilos as Wilson observed.
White then rearranged the cocaine, closed the suitcase and returned
it to the corner of the room. Both men then immediately left the
room, placing a do-not-disturb sign on the door. They talked
4 briefly by their vehicles and left the Holiday Inn. At
approximately 11 p.m. that night, an unidentified female drove
White's car very slowly through the parking lot of the Holiday Inn
several times. White was in the car and appeared to be inspecting
the lot.
A few hours later, Northcutt called Wilson and reminded Wilson
that he wanted to retrieve the bag. Wilson told Northcutt he could
retrieve the bag after 10:30 a.m. the next morning. At
approximately 10 a.m., Wilson arrived at the Holiday Inn. He
proceeded directly to Room 909, entered the room, opened the
suitcase and transferred eleven kilograms of cocaine to a green
canvas bag he was carrying. Wilson closed the suitcase, containing
the remaining ten kilos and returned the suitcase to the corner of
the room. Dallas DEA agents arrested Wilson as he left the room.
A few minutes later, White arrived at the Holiday Inn and
parked next to Wilson's vehicle. White carried a briefcase
containing a canvas bag, similar to Wilson's. As White stepped off
the elevator and proceeded towards Room 909, the DEA arrested him.
At the time of his arrest White did not have a key to the room.
White and Wilson pled not guilty and were tried together
before a jury in January 1991. The court, in its instructions,
gave the jury the option of finding the defendants guilty of the
lesser included offense of simple possession on Count 1, rather
than the charged offense, possession with intent to distribute.
But on Count 2, the court did not give the jury the option of
finding the defendants guilty on the lesser included offense -
conspiracy to possess (rather than the charged offense conspiracy
5 to possess with intent to distribute.)
During their deliberations, the jury sent out a note to the
court which read as follows:
Please clarify if Defendant is found guilty of lesser offense - Count 1 - (possession) is he automatically not guilty on Count 2.
The Court responded:
Members of the jury, in response to your third question, if you have a reasonable doubt about a Defendant's intent to distribute cocaine, you must find the Defendant not guilty of the offense charged in Count 2 of the indictment.
Later that day, the jury sent a message to the court that it
had reached a verdict. The verdict form reflected that the jury
had found both defendants guilty of the lesser included offense of
simple possession on Count 1. The jury made no finding on Count 2.
The verdict was read in open court as to both defendants and a poll
reflected a unanimous verdict. When questioned about the absence
of a verdict on Count 2, the jury foreperson explained that the
jury thought that if they could not reach a verdict on Count 1 as
charged they could not reach a verdict on Count 2.
The jury was excused for the weekend. Wilson and White argued
that the guilty verdict on the lesser included offense on Count 1
precluded a guilty verdict on Count 2 as charged. Alternatively,
they argued that if the court intended to require the jury to
deliberate further on Count 2, it should authorize the jury to
return a verdict on the lesser included offense of conspiracy to
possess cocaine (without intent to distribute). The court denied
both requests. On Tuesday, the jury was instructed to continue
their deliberations on Count 2. After further deliberating, the
jury asked whether they could reconsider their verdict on Count 1.
6 Over the defendants' objections the court told them they could.
The jury then found the defendants guilty on both counts as
charged. White and Wilson appeal. Additional facts necessary to
the discussion of particular issues will be presented in the
discussion that follows.
II.
White and Wilson first raise several interrelated issues
pertaining to the jury verdict. First they argue that the jury's
initial verdict finding them both guilty of simple possession on
Count 1 was final at the time announced and could not be
reconsidered. They also argue that the verdict on the lesser
included offense on Count 1 precluded a guilty verdict on Count 2
-conspiracy to possess with intent to distribute. Finally they
argue that in any event, the subsequent verdict on Count 2 was
flawed because the district court refused to give a lesser included
instruction on that count.
A.
Federal Rule of Criminal Procedure 31(d) allows further
deliberation on an announced verdict if the verdict is not
unanimous. Further deliberation is also allowed if the jury
expresses uncertainty, contingency or ambiguity in its announced
verdict. United States v. Rastelli, 870 F.2d 822, 835 (2d Cir.
1989). When the jury initially returned its verdict of guilty to
the lesser included offense of conspiracy to possess on Count 1, a
poll of the jury revealed that the verdict was unanimous.
We agree with the defendants that the court should not have
allowed the jury to reconsider its verdict on Count 1. A verdict
7 is final if (1) the deliberations are over, (2) the result is
announced in open court, and (3) the jury is polled and no dissent
is registered. United States v. Taylor, 507 F.2d 166 (5th Cir.
1975); Fed.R.Crim.P. 31. All of these steps were satisfied in this
case when the jury announced its verdict as to Count 1 on Friday,
January 18, 1991.
The jury told the court that it had reached a verdict and
thought its task was complete. The foreperson stated that they
could not agree on a verdict on Count 1 as charged but they had
agreed on a guilty verdict on the lesser included offense of
possession. The jury was unable to return a verdict on Count 2
because of their inability to agree on whether the defendants
intended to distribute the cocaine. The court did not encourage or
discourage the jury from returning a partial verdict. It simply
accepted the verdict. See United States v. Di Lapi, 651 F.2d 140,
146-47 (2d Cir. 1981).
That no verdict was returned on Count 2 does not affect the
finality of the partial verdict on Count 1. A trial court may
accept a partial verdict on less than all counts of an indictment.
United States v. Ross, 626 F.2d 77 (9th Cir. 1980). The trial
court was free, after accepting the verdict on Count 1, to return
the jury for further deliberations on Count 2. United States v. De
Laughter, 453 F.2d 908, 910 (5th Cir.), cert. denied, 406 U.S. 932,
32 L.Ed.2d 135 (1972); United States v. Wheeler, 802 F.2d 778 (5th
Cir. 1986).
In sum, the district court erred in allowing the jury to
further deliberate on Count 1 after it accepted the jury's verdict
8 on that count. We therefore vacate the judgment of conviction on
Count 1 so the district court, on remand, can reinstate the jury's
original verdict on that count and enter judgment on that verdict.
B.
Wilson and White argue next that the jury's verdict on Count
2 - guilty of conspiracy to possess with intent to distribute - is
inconsistent with the jury's verdict of simple possession on Count
1 and must be set aside. One problem with the defendants'
arguments is that the jury did not find in count 1 that defendants
had no intent to distribute the cocaine. The jury simply could not
agree. In this sense, therefore, the verdicts are not
inconsistent.
Even if the verdicts on Counts 1 and 2 were "truly
inconsistent," they would still stand. United States v. Powell,
469 U.S. 57, 83 L.Ed.2d 461 (1984). In Powell, the jury found the
defendant guilty of using the telephone to facilitate a felony, yet
found him innocent of the predicate felony. The Court stated that
"[t]he most that can be said . . . is that the verdict shows that
either in the acquittal or the conviction the jury did not speak
their real conclusions, but that does not show that they were not
convinced of the defendant's guilt." Id. at 64-65 "It is . . .
possible that the jury, convinced of the guilt, properly reached
its verdict on the compound offense, and then through mistake,
compromise, or lenity, arrived at an inconsistent conclusion on the
lesser offense." Id. at 65.
Thus, even if the verdict on Count 2 is considered
inconsistent, it is not subject to attack on that ground.
9 Appellants' contrary argument is without merit. See also United
States v. Zuniga-Salinas, 952 F.2d 876 (5th Cir. 1992) (en banc).
C.
Appellants argue finally that the district court erred in
refusing to give the jury the option of returning a verdict on
Count 2 on the lesser included offense - conspiracy to possess
cocaine (without intent to distribute it.) Under Federal Rule of
Criminal Procedure 31(c), a defendant is entitled to a jury
instruction on a lesser included offense if: (1) the elements of
the lesser offense are a subset of the elements of the charged
offense; and (2) the evidence at trial permits a jury to rationally
find the defendant guilty of the lesser offense, yet acquit him of
the greater. United States v. Browner, 889 F.2d 549, 550-51 (5th
Cir. 1989) (citing Schmuck v. United States, 489 U.S. 705 (1989)).
The parties agree that the elements of the lesser included offense
(conspiracy to possess) are a subset of the charged offense
(conspiracy to possess with intent to distribute). Given the
quantity of drugs involved in this case, we must decide whether a
rational jury could have found that the defendants possessed the
drugs but had no intent to distribute them.
White and Wilson argue that Wilson's testimony supports a
verdict for simple conspiracy to possess. Wilson relies first on
his testimony that he agreed to accept only one kilogram of cocaine
for his personal use plus $100,000 from Northcutt as payment for
his legal services. Wilson testified that when he and White
initially went to the hotel room and saw that Northcutt's suitcase
contained 21 kilos of cocaine, they left. He explained that he
10 returned to the hotel and picked up eleven kilos of the cocaine
because of his acute need to satisfy his addictive craving. He
denied having any intent to distribute any portion of the cocaine.
White did not testify and Wilson offered no explanation for the
intended disposition of White's share of the cocaine.
Even if we accept Wilson's version of his original agreement
with Northcutt to provide a defense in exchange for one kilo plus
$l00,000, that deal had obviously changed when Wilson picked up
eleven kilos of cocaine from the Holiday Inn. The question
therefore narrows to whether the district court abused its
discretion in declining to instruct on the lesser included verdict
in the face of undisputed evidence that these defendants possessed
twenty-one kilos of cocaine.
Other circuits have found that lesser quantities of drugs
negate the possibility of personal use. For example, in United
States v. Zapata-Tamallo, 833 F.2d 25 (2d Cir. 1987), the Second
Circuit found no error in the trial court's refusal to instruct on
the lesser included offense. The defendant's possession of seven
and one-half kilograms of cocaine was found to be too great an
amount to be possessed solely for personal use. In United States
v. Johnson, 734 F.2d 503 (10th Cir. 1984), where only 26.33 grams
of cocaine were involved, the court found no error in refusing to
offer the lesser included offense instruction.
In those and other cases cited by the government, there were
additional facts relevant to distribution, i.e., presence of
distribution paraphernalia or the use of an exculpatory defense by
the defendant which negates simple possession. Facts indicating an
11 ability or intent to distribute are also present in this case.
Wilson testified that White was his cocaine supplier. Although the
extent of White's distribution network was not presented, the most
rational explanation for White's presence in the scheme was that he
would sell the cocaine. We conclude that where the defendants are
found with twenty-one kilograms of cocaine, no rational jury could
find that they did not intend to distribute the cocaine. The sheer
quantity of the drugs involved negates an inference of personal
use.
The fact that the district court gave the lesser included
instruction on Count 1 does not change our opinion. The defendants
were not entitled to that instruction. The defendants therefore
got a more generous instruction than they were entitled to on the
first Count of the indictment. That did not require the trial
court to grant them an overly generous instruction on Count 2.
Admittedly, the inconsistency in instructing on the lesser included
verdict on Count One and declining that instruction on Count 2
created some confusion. But if that confusion had any effect on
the verdict it was beneficial to the defendants. We conclude
therefore that the trial court committed no reversible error in
declining to give a lesser included verdict charge on Count 2.
III.
The defendants also argue that the evidence was insufficient
to convict them. The standard for reviewing the sufficiency of the
evidence on appeal is whether, viewing the evidence in the light
most favorable to the verdict, any rational trier of fact could
have found the essential elements beyond a reasonable doubt.
12 United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991); United
States v. Nixon, 816 F.2d 1022, 1029 (5th Cir. 1987), cert.denied,
484 U.S. 1026 (1988).
Both defendants argue that the evidence was insufficient to
establish a conspiracy. They contend that the government
introduced no evidence of an agreement between the two defendants.
To prove a conspiracy in a drug trafficking case, the government
must establish: (1) a common agreement to violate drug trafficking
laws, (2) known to the defendants, (3) that the defendants, with
knowledge, voluntarily joined. United States v. Elam, 678 F.2d
1234, 1245 (5th Cir. 1982). Specifically here, the government was
required to prove an agreement to possess cocaine with the intent
to distribute it. The government, of course, can prove a
conspiracy with circumstantial evidence. United States v.
Bankston, 603 F.2d 528, 531 (5th Cir. 1979).
The evidence at trial demonstrated that the defendants knew
each other well. White was Wilson's cocaine supplier and Wilson
had represented White. When Northcutt offered the cocaine to
Wilson for his legal services, the jury was entitled to find that
Wilson turned to White for assistance in disposing of the cocaine.
Wilson and White were in constant contact during the critical
stages of the negotiations about the transfer of the cocaine.
They arranged to meet and did meet at the Holiday Inn after
Northcutt gave Wilson the key to Room 909. They entered the room
together and both took precautions to avoid surveillance. White
opened the suitcase containing the cocaine and together with Wilson
counted it and returned it to its original position. They left the
13 room together and conversed in the parking lot before separating
for the remainder of the evening. The next morning, they arrived
at the motel within minutes of each other -- each carrying a canvas
bag capable of holding half of the twenty-one kilos of cocaine.
Also, as discussed previously, the sheer volume of the cocaine
involved is clearly sufficient to support the inference that the
defendants intended to distribute the drugs. United States v.
Dreyfus-de Campos, 698 F.2d 227, 230 (5th Cir.), cert. denied, 461
U.S. 947, 103 S.Ct. 2128 (1983). This evidence is sufficient to
support the jury's verdict finding that White and Wilson conspired
to possess cocaine with intent to distribute it.
White alone challenges the sufficiency of the evidence to
convict him on Count 1 - possession with intent to distribute. The
bulk of his argument goes to the absence of evidence to support an
inference that he intended to distribute the cocaine. We need not
consider this argument. Our conclusion that the jury's initial
verdict on the lesser included charge of simple possession must be
reinstated makes the distribution element of the offense
irrelevant.
IV.
Next, Wilson argues that the court's jury instruction
regarding intent to distribute was incorrect because it created a
presumption that impermissibly shifted the burden of proof on this
issue to the defendants. The court instructed the jury:
You may infer that an individual possessed a controlled substance with the intent to distribute it if it is inconceivable that the amount possessed was intended for personal consumption.
Because Wilson did not object to the instruction at trial, we
14 "will uphold even an inaccurate jury instruction provided no `plain
error' has resulted from the inaccuracy." United States v.
Birdsell, 775 F.2d 645, 654 (5th Cir. 1985), cert. denied, 476 U.S.
1119 (1986), quoting United States v. Reeves, 752 F.2d 995, 1000
(5th Cir. 1985). "Plain error is error which, when examined in the
context of the entire case, is so obvious and substantial that
failure to notice and correct it would affect the fairness,
integrity or public reputation of judicial proceedings." United
States v. Vonsteen, 950 F.2d 1086, 1092 (5th Cir. 1991)(en banc).
(internal quotations and citations omitted)
Wilson relies on a number of cases that criticize instructions
directing the jury to presume the existence of an element of the
crime, if it believes certain evidence. See Francis v. Franklin,
471 U.S. 307, 317 (1985); Carella v. California, 491 U.S. 263, 109
S.Ct. 2419, 2420 (1989); Sandstrom v. Montana, 442 U.S. 510 (1979).
The challenged jury instruction in this case simply does not fall
in the category of instruction prohibited by the above cases. The
district court told the jury "you may infer" intent to distribute
based on the quantity of drugs. It did not require the jury to
presume defendant's intent to distribute based on the quantity of
drugs involved. Thus, if the challenged instruction was erroneous
at all, which is doubtful, it certainly did not rise to the level
of plain error.
V.
The defendants next contest two of the district court's
evidentiary rulings. First, they contend that the district court
should not have admitted testimony concerning two extrinsic
15 offenses -- money laundering and possession of steroids --
allegedly committed by Wilson.2 Second, they argue that the
district court should have permitted Northcutt's previous attorney
to testify regarding Northcutt's expressed intent to fabricate
evidence in another case to gain favorable consideration from the
government. We review the district court's evidentiary rulings for
abuse of discretion. United States v. Rocha, 916 F.2d 219, 241
(5th Cir. 1990).
John Hoffman, one of Wilson's former clients, testified for
the government. After Hoffman had been charged with importing
anabolic steroids, he consulted Wilson, who agreed to represent
him. During the pendency of these charges, Hoffman asked Wilson to
help protect proceeds of his sales from government seizure. Wilson
set up a trust account in Wilson's name and Hoffman directed his
debtors to send the money to that account. The funds were used to
pay attorneys fees due Wilson as well as for Hoffman's living
expenses. Hoffman testified that some of the money in the account
was from the sale of illegal steroids and some from the sale of
2 This argument is raised by both defendants even though the testimony regarding extrinsic offenses related only to defendant Wilson. The government argues that this point of error does not apply to White because the court admonished the jury several times that the Rule 404(b) evidence introduced against Wilson should not be considered against White. However, the court recognized in discussions outside the presence of the jury that White's culpability was "largely vicarious; that is, either as an aider and abettor of the Defendant Wilson on Count 1 which is alleged in Count 1, or as a conspirator in Count 2." The jury instructions contained those theories on which White could have been convicted. Given our disposition of this issue, we need not decide whether White could use this alleged error to challenge his own conviction.
16 legal vitamins. In addition, Wilson allowed Hoffman to store some
steroids at Wilson's house after Hoffman's arrest. Hoffman stated
that it takes about four weeks to withdraw gradually from steroids
and he didn't want to keep the drugs in his home. About twice a
week, Hoffman would go to Wilson's home and take an injection of
steroids from the cache.
The government introduced Hoffman's testimony at trial under
Rule 404(b)3, as probative of Wilson's intent in this case.
Interpreting this rule, this circuit holds that such evidence is
admissible if (1) it is relevant to an issue other than the
defendant's character, and (2) the probative value of the evidence
substantially outweighs the undue prejudice. United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc). To meet the
first prong of the Beechum test, the jury must have been able to
reasonably find that the extrinsic offense was committed by the
defendant. Id. at 913. In addition, "[w]here the issue addressed
is the defendant's intent, extrinsic offenses that are similar in
nature are admissible because `the relevancy of the extrinsic
offense derives from the defendant's indulging himself in the same
state of mind in the perpetration of both the extrinsic and charged
offenses. The reasoning is that because the defendant had unlawful
3 Rule 404(b) states:
(b) Other crime, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the a character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
17 intent in the extrinsic offense, it is less likely that he had
lawful intent in the present offense.'" United States v. Osum, 943
F.2d 1394, 1404 (5th Cir. 1991). citing Beechum at 911.
Wilson challenges the admission of the evidence first by
arguing that the government did not prove that Wilson's conduct
constituted illegal money laundering. Money laundering requires
proof of knowledge that the funds were derived from an illegal
source. 18 U.S.C. §§ 1956 and 1957. The testimony of Hoffman was
a sufficient basis from which the jury could find that Wilson knew
that at least some of the funds came from Hoffman's sale of illegal
steroids. United States v. Johnson, 872 F.2d 612, 624 (5th Cir.
1989)(Testimony of single witness sufficient to establish extrinsic
offense.) In addition, Wilson's precautions against government
seizure of the proceeds of Hoffman's sales tend to support the
government's position that Wilson knew the funds were not from a
legitimate business.
Wilson also argues that the extrinsic acts are not similar to
the charged offenses in this case and are therefore not relevant to
any issue other than his character. We disagree. Wilson argued
entrapment and diminished capacity to negate an inference that he
intended to distribute the cocaine. These defenses place Wilson's
intent and predisposition to commit a crime directly in issue.
United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976) (defense of
intoxication places intent in issue); United States v. Parrish, 736
F.2d 152 (5th Cir. 1984) (defense of entrapment places
predisposition in issue).
Wilson testified at length about the six day sleepless cocaine
18 binge he was on which ended at the time he was arrested when
picking up the eleven kilos of cocaine. He argued that in this
state of mine he lacked the capacity to form the criminal intent
necessary to be convicted and that Northcutt and the DEA had
entrapped him. Both extrinsic offenses testified to by Hoffman,
while not identical to the offenses charged in this case, were
committed at times when Wilson was using cocaine but was not on a
"binge". They are relevant to establish that Wilson could form the
intent to engage in illegal activity -- storing illicit drugs and
protecting the proceeds of the sale of these drugs -- to assist his
clients and secure his fee. Both occurred when he was not under
the influence of a prolonged cocaine binge. The evidence also
shows Wilson's predisposition to violate drug trafficking and money
laundering laws and tends to negate Wilson's defense of entrapment.
Wilson argues finally that any probative value of the
extrinsic offense evidence is outweighed by its prejudicial impact
on the jury. The jury was carefully instructed about the limited
purpose of this evidence both at the time of the testimony and
before deliberations. We have held that danger of prejudice to the
defendant is minimal so long as it is clear to the jury that the
extrinsic evidence is being introduced for the sole purpose of
showing intent. United States v. Williams, 900 F.2d 823, 827 (5th
Cir. 1990). Given the probative value of the evidence and the
district court's limiting instruction, the court did not abuse its
discretion by permitting the government to introduce this evidence.
White and Wilson sought to invoke Rule 404(b), along with
19 Rules 405(b) and 406, to introduce evidence of extrinsic offenses
committed by Northcutt, the government's star witness. They
proffered testimony by Northcutt's prior attorney that Northcutt
had previously offered to fabricate testimony against an individual
in exchange for government leniency in charges pending against him.
The defendants argue that Northcutt's testimony was admissible
under Rule 404(b) to show Northcutt's intent to fabricate evidence
in order to gain favorable consideration from the government in his
own case. The district court, relying on Rule 608(b)4 ruled that
the defendants could elicit the evidence of Northcutt's credibility
only on cross-examination of Northcutt, not through an extrinsic
source. We agree.
First, except for his credibility, Northcutt's intent was not
an issue in the case. Reeves, 892 F.2d at 1225. Also, unlike the
defendant's evidence in United States v. McClure, the proffered
evidence in this case was not probative of Wilson's intent to
commit the charged offense. 546 F.2d 670 (5th Cir. 1977). This
evidence could have served only one function: to demonstrate that
Northcutt had a proclivity to lie and therefore was probably lying
4 Federal Rules of Evidence 608(b) provides:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (l) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. . . .
20 in this case. Rule 404(b) prohibits the use of extrinsic act
evidence for this purpose. The use of evidence to attack a
witness's credibility is subject to the limitations of Rule 608.
Under that rule, specific instances of misconduct of a witness for
that purpose can not be proved by extrinsic evidence. The trial
court did not abuse its discretion by excluding the proffered
testimony.
VI.
Wilson argues finally that the district court improperly
adjusted his sentence by increasing his offense level two points
for abuse of a position of trust or use of a special skill.
U.S.S.G. § 3B1.3. We will "uphold the district court's sentence so
long as it results from a correct application of the guidelines to
factual findings which are not clearly erroneous." Foster (cited
below) citing 18 U.S.C. § 3742(d); United States v. Mejia-Orosco,
867 F.2d 216, 221 (5th Cir. 1989); and United States v. Sarasti,
869 F.2d 805, 806 (5th Cir. 1989).
Section 3B1.3 of the Sentencing Guidelines reads:
If the defendant . . . used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. . . .
Application Note 2 to this section states:
"Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.
The "Background" information indicates that:
This adjustment applies to persons who abuse their . . . special skills to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable.
21 The presentence report recommended the increase because Wilson
was a well-respected lawyer who was able to use his reputation to
conceal his drug-related activity. The district court stated the
following reasons for the increase:
[I]f Mr. Wilson were not a professional person who was in a position to charge substantial amounts of money for personal services, then I can't imagine that sort of trade ever being feasible. Moreover, I think it was facilitated because of his knowledge as an attorney, because of his knowledge of laws in those areas and how to avoid detection and of course communications between clients or would-be clients and attorneys are not as easily detected or apprehended as perhaps would be other communications.
To apply § 3B1.3 to any factual scenario, two factors must be
evaluated. First, whether a position of trust or special skill
existed, and second, whether the defendant used the position or
skill "in a manner that significantly facilitated the commission or
concealment of the offense." United States v. Brown, 941 F.2d
1300, 1304 (5th Cir. 1991). Clearly the skills possessed by
lawyers are "special skills" which the guideline recognizes could
be used to facilitate or conceal a crime. See Application Note 2.
The question for decision therefore narrows to whether the district
court's finding that Wilson used his skills as a lawyer to
"significantly facilitate the commission or concealment" of his
offense is clearly erroneous.
First, Wilson's skills as a defense lawyer specializing in the
defense of drug cases placed him in a unique position to trade
services for drugs. Such services are so valuable to an indicted
drug trafficker that it is easy to understand why he would give up
a fortune in drugs to obtain them. Also, Wilson relied on his
attorney/client relationship to talk confidentially with Northcutt
22 and arrange the drug transfer. In addition, Wilson used knowledge
he had acquired as a prosecutor and defense lawyer to avoid
surveillance in their first visit to Room 909 of the Holiday Inn
and otherwise to avoid detection and apprehension.
These charges followed a sting operation. Thus, the success
of the criminal enterprise was doomed from the outset. But we are
unwilling to say that failure of the objective of the conspiracy
means the defendant's special skills did not "significantly
facilitate" the criminal activity. We look at the use of those
skills through Wilson's eyes. He used those skills to generate the
drugs to be distributed. He later used those skills to facilitate
transfer of the drugs without being caught. The district court's
findings on this issue are not clearly erroneous.
For the foregoing reasons the convictions of defendants White
and Wilson on Count 1 are vacated. Their convictions on Count 2
are affirmed. This case is remanded for entry of a judgment of
conviction on the original verdict in Count 1 and for resentencing.
VACATED in part, AFFIRMED in part and REMANDED.
KING, Circuit Judge, concurring in part and dissenting in part.
Although I concur in the majority's affirmance of Appellant
White's conviction, I find merit in Appellant Wilson's claim that
he was entitled to a jury instruction on the lesser-included
offense of conspiracy to possess cocaine. Accordingly, I
respectfully dissent from the decision to affirm his conviction.
23 I. The Evidence Supporting Wilson's Theory of the Case
As an initial matter, I believe it is necessary to set out in
some detail the extensive trial testimony offered by the defense
that supports Wilson's claim that he conspired only to possess, and
never harbored any intent to distribute, the cocaine. Waiving his
Fifth Amendment right, Wilson took the witness stand and testified
at great length about a number of matters that are directly
relevant to his claim of entitlement to a lesser-included offense
instruction. First, he told of his extensive history of substance
abuse which he inherited from his father's side of the family. He
testified about his bouts with alcoholism as early as his high
school years, his addiction to various prescription medications,
and finally his severe cocaine abuse that led to the conviction
which is the subject of this appeal.
Specifically, with respect to his cocaine addition, Wilson
stated that within a short time after his first exposure to the
drug he was intensely addicted. He testified that had snorted so
much cocaine within the first eight months of use that the drug had
eaten away most of the septum inside his nose. Wilson's preferred
method was to drink cocaine powder stirred into ice water. He
claimed that he ingested massive doses of the drug in this manner.
He recounted periods in which he was so affected by the drug that
he could not eat or sleep for over a week. During these periods
Wilson described his mind as "ra[c]ing literally a hundred and
fifty miles an hour." He further discussed how his tolerance to
cocaine dramatically increased over time, requiring increasing
doses to acquire the same physical effect. Wilson explained to the
24 jury how excruciating his withdrawals were -- "the most
unimaginable torture" -- and that his chief concern at any given
moment was to possess an adequate stash of cocaine. "I had a
horror of running out of it. I didn't want that to ever, ever
happen. I wanted to get enough so I didn't run out," he told
jurors.
Wilson also discussed his relationship with White and
Northcutt. Wilson denied having bargained for twenty-one kilograms
of cocaine; he testified that he had agreed with Northcutt to
exchange legal services for $100,000 and one kilogram of cocaine.
Wilson claimed that Northcutt had never stated that he was going to
leave twenty-one kilograms in the hotel room where Wilson agreed to
pick up what he expected would be $100,000 and one kilogram of
cocaine.5
Wilson testified that his friend White's role in the
transaction was limited to serving as a bodyguard on the night of
November 20, 1990, when the two men went to the Holiday Inn to pick
up what Wilson believed would be cash and a single kilogram of
cocaine. Wilson claimed that he told White that Wilson was going
to pick up a large amount of cash and that White had no knowledge
of any cocaine being exchanged until the two men opened up the
suitcase and discovered twenty-one kilograms.6
5 The only evidence that the Government offered regarding the alleged agreement to exchange twenty-one kilograms was Northcutt's uncorroborated testimony. Unlike numerous other conversations between Northcutt and Wilson, that alleged conversation was not taped-recorded. 6 The recording of the events in the hotel room was only on videotape. The Government did not offer any audiotape into evidence, so there is no way to determine what the two men said
25 Wilson testified that after the two men left the hotel room
without taking any of the cocaine, Wilson stayed up that entire
night exhausting his own supply of cocaine. Wilson claimed that at
this point he was on a severe cocaine binge, which had been
exacerbated by the prospect of possessing the tremendous amount of
cocaine that he had seen at the hotel. He stated that the next
morning he drove to White's house, hoping White would offer him
cocaine, which White did not. Wilson denied that the two made any
arrangements about Northcutt's cocaine. Wilson, who claimed he had
that morning degenerated into a state of diminished capacity,
testified that he was so addicted to the drug that he was unable to
resist the siren song of the abundance of cocaine in the hotel
room. Wilson then testified about going to the hotel for the
second time:
I can't really explain what my intent was at that time. I don't know if I had any intent. I was being pulled toward the cocaine . . . . When I got to the hotel I went back upstairs. I went up to the 9th floor. . . . I walked in. I put whatever I put in the green bag. I didn't even count them. There was no need for me to count them. It was a lot of cocaine. I put it in the bag, and I bolted out the door. . . . I was going to go take the cocaine that I had, I was going to go . . . somewhere and do that stuff until I ran out of it again which would have been several years admittedly, but I wouldn't have lived that long. I was going to do it and do it, and I was going to see this thing through to the end of me. . . . I was going to do cocaine until I couldn't do anything else.
When police arrested Wilson as he exited from the hotel, they found
on his person a small amount of cocaine and a straw -- a snorting
device -- containing a residue of cocaine.
A second defense witness, psychiatrist James Grigson,
to each other.
26 testified that he had known Wilson for some time, in both a
professional and personal capacity. Grigson corroborated Wilson's
testimony about his long history of severe substance abuse.
Grigson opined that in Wilson's case his "propensity" was
congenital. Grigson was specifically questioned in the
hypothetical about whether someone in Wilson's state of severe
addiction might have been able to form an intent only to possess an
inordinately large quantity of cocaine, such as that involved in
the instant case, rather that to possess with the intent to
distribute. The following colloquy with defense counsel merits
full quotation:
Q. As I described specific intent -- that is intent to distribute as opposed to general intent that is an intent to possess for one's self -- what happens to [a seriously addicted] individual's capacity to form specific intent as opposed to general intent?
A. It would become less and less because they would not see beyond simply obtaining, getting. So they will not be thinking in terms of goal-oriented achievement, future acts. It would be here and now.
Q. . . . [I]f such an individual were given an opportunity to obtain more cocaine, even at great potential personal risk or cost, absent some intervening circumstances beyond an individual's control, could this person's behavior be predicted?
A. Yes, sir, it could be.
Q. What would it be?
A. They would try to obtain at any expense. . . .
II. Wilson's Entitlement to a Lesser-Included Offense Instruction
Turning to the legal significance of this testimony, I believe
that under the established standards regarding the propriety of
lesser-included offense instructions, Wilson was entitled to an
27 instruction on conspiracy to possess. I agree that in reviewing a
district court's refusal to submit a lesser-included offense
instruction, we must apply the two-pronged standard which the
majority applies. See Schmuck v. United States, 489 U.S. 705
(1989). With deference, I disagree with the majority's application
of the second prong -- whether "a jury could rationally find the
defendant guilty on the lesser offense, yet acquit him of the
greater." Id. at 716 n.8.
The majority errs by accepting the Government's argument that
Wilson cannot possibly satisfy the second prong in view of the
large amount of cocaine involved in this case. The Government
argues that the extensive quantity precludes a jury from rationally
finding that Wilson did not conspire to possess with the intent to
distribute, as opposed to conspiring with the intent only to
possess. The Government and the majority cite cases from other
circuits in which courts have rejected a defendant's claim of
entitlement to a lesser-included offense charge when a defendant
possessed an amount of cocaine so large that it belied any
suggestion of personal use. See, e.g., United States v. Zapata-
Tamallo, 833 F.2d 25 (2d Cir. 1987) (jury could not rationally find
that defendant possessed seven-and-a-half kilos of cocaine for
personal use).
Such cases are not precisely on point in the present case. To
my knowledge, in no case in which a court has denied a defendant a
lesser-included offense instruction on simple possession because he
possessed a large amount of narcotics, see generally, David E.
Rigney, Annotation, Propriety of Lesser-Included-Offense Charge in
28 Federal Prosecution of Narcotics Defendant, 106 A.L.R. Fed. 236
(1992) (collecting cases), did the defendant take the stand and
offer the same type of defense as Wilson. Wilson claimed that he
was so addicted that his only intent was to possess enough cocaine
to enable him to ingest the drug for the remainder of his life,
even if he died in the process of attempting to consume it all. He
testified that he was so mentally and physically affected by his
addiction that his exclusive desire was to ingest the drug. Dr.
Grigson's testimony supported this claim. Moreover, as the
majority notes, in cases like Zapata-Tamallo, the Government
offered other evidence that indicated that a defendant who
possessed a substantial amount of a controlled substance also
intended to distribute it. In the instant case, the Government was
unable to offer against Wilson the usual evidence of an intent to
distribute, such as paraphernalia commonly associated with
distribution or a prior criminal record of distribution. Indeed,
as the majority points out, the Government's only evidence of
Wilson's intent to distribute, other than the sheer quantity of
cocaine involved, was evidence that White had in the past
distributed cocaine to Wilson.
A well-established line of authority holds that a lesser-
included offense instruction is required if any evidence is offered
that permits jurors rationally to acquit of the greater offense and
convict of the lesser -- irrespective of how tenuous or
unbelievable a judge may consider the testimony or evidence to be.
See, e.g., United States v. LaMorte, 950 F.2d 80, 84 (2d Cir. 1991)
("It is well settled that 'a criminal defendant is entitled to have
29 instructions presented relating to any theory of defense for which
there is any foundation in the evidence, no matter how weak or
incredible that evidence may be'" (citation omitted).); United
States v. Soleto-Murillo, 887 F.2d 176, 178 (9th Cir. 1989) ("[The]
evidence may be weak, insufficient, inconsistent, or of doubtful
credibility" (citation omitted).); United States v. Thorton, 746
F.2d 39, 47 (D.C. Cir. 1984) ("Under settled principles, . . . a
defendant is entitled to an instruction on a lesser included
offense if there is any evidence fairly tending to bear upon the
lesser included offense, `however weak' that evidence may be.");
United States v. Chapman, 615 F.2d 1294, 1301 (10th Cir. 1980),
cert. denied, 446 U.S. 467 (1980).7 The Supreme Court has long
espoused similar views, at least in the context of murder trials.
See, e.g., Beck v. Alabama, 447 U.S. 625, 635 & n.11 (1980);
Stevenson v. United States, 162 U.S. 313, 314-15, 323 (1896). In
Stevenson, the trial judge denied the capital defendant's request
for a lesser-included offense instruction on manslaughter. The
Court reversed the conviction. The Court held that a judge's
opinion that the evidence against a defendant was not credible or
otherwise had no probative value was irrelevant to determining
whether a defendant was entitled to a lesser-included offense
instruction on manslaughter. As the Court stated, weighing evidence is the exclusive province of the
jury:
7 The majority of state courts likewise adhere to this extremely permissive standard. See, e.g., State v. Belle, 576 A.2d 139, 148 (Conn. 1990); Williams v. State, 665 P.2d 260, 261 (Nev. 1983) People v. Farmer, 365 N.E.2d 177, 180 (Ill. App. 1977).
30 [A]s long a there is some evidence upon the subject [of manslaughter] the proper weight to be given it is for the jury to determine. . . . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the act of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be [a] matter of law for the decision of the court.
Id. at 314 (emphasis added); see also Sparf & Hansen v. United States, 156 U.S. 51 (1895).
Therefore, when a defendant seeks a lesser-included offense
instruction, a judge must look at the evidence supporting the
defendant's theory of the case, in the light most favorable to the
defendant, and ask only whether the evidence proffered is minimally
sufficient to support an acquittal on the greater offense and a
conviction on the lesser-included offense. Cf. Jackson v.
Virginia, 443 U.S. 307 (1979) (discussing similar approach in
context of appellate review of constitutional sufficiency of the
evidence to support a conviction).8 Because Wilson undoubtedly
presented some evidence upon which a jury could rationally acquit
of conspiracy to possess with the intent to distribute and instead
convict of conspiracy to possess, a lesser-included offense
8 Jackson concerns appellate review of the sufficiency of evidence to convict, while the instant case involves appellate review of the sufficiency of evidence to acquit. While Jackson's "deferential standard of review," United States v. Nusraty, 867 F.2d 759, 765 (2d Cir. 1989), is analogous, it is not exactly the converse of the review in this type of case. Although appellate courts assess the sufficiency to convict by considering the evidence in a light most favorable to the prosecution, Jackson still establishes a rather high evidentiary floor: a rational jury must find beyond a reasonable doubt. The standard for a rational acquittal is much more permissive. A rational jury obviously need not find a fact beyond a reasonable doubt to rationally acquit. There must only be some evidence, however slight, to acquit.
31 instruction should have been granted.
There is one exception to the rule that once the defense
offers any evidence supporting its theory it is entitled to a
lesser-included offense instruction. That exception, allowing a
judge as a matter of law to foreclose a jury's consideration of
such evidence for purposes of convicting of a lesser-included
offense, is when the defense's testimony or other evidence is
"incredible or otherwise insubstantial on its face" -- such as if
the defendant's claim "could not have occurred under the laws of
nature." United States v. Osum, 943 F.2d 1394, 1405 (5th Cir.
1991).
While it may raise eyebrows, Wilson's theory of personal use
is not facially incredible or insubstantial. Wilson's most
compelling testimony, which was supported by Dr. Grigson's expert
opinion, was that Wilson entered into the conspiracy because he saw
it as an opportunity to possess all the cocaine that he could
possibly ever consume, even if it killed him in the process.
Wilson portrayed himself as a proverbial Midas with respect to
cocaine. The substantial amount of cocaine involved is, thus,
consistent with Wilson's theory of defense. Jurors would not have
been irrational in crediting the defense's claim, supported by
voluminous testimony from Wilson and Grigson, that Wilson never
intended to distribute and conspired only to possess the cocaine
for personal use.
Accordingly, I believe that Wilson should be granted a new
trial. I respectfully dissent from the decision to affirm his
conviction.