UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 91-7284 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH WILLIAMS, ROBERT KITCHENS, and JACKY GREEN,
Defendants-Appellants.
______________________________________________________
Appeals from the United States District Court for the Northern District of Mississippi ______________________________________________________ (February 24, 1993)
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Kenneth Williams, Robert Kitchens, and Jacky Green appeal
their convictions for aiding and abetting the possession with
intent to distribute cocaine and crack cocaine and aiding and
abetting the use of a firearm in relation to a drug trafficking
crime. Defendants argue that the evidence is insufficient to
support their convictions, that the jury instructions were flawed,
and that newly-discovered evidence entitles them to a new trial.
We affirm their convictions on the drug charges but reverse their
convictions on the weapons offense because we conclude that the
court's jury charge on this count was defective. I.
On September 5, 1990, police officers executed a "no knock"
search warrant on a house at 1009 Holmes Street in Greenville,
Mississippi. In August, before obtaining the warrant, officers
placed the house under surveillance. During the surveillance,
police officers observed activity which they concluded was
consistent with drug trafficking.
On the night of the search the officers surrounded the house
quietly. Two officers stood at the locked back door of the house.
Officer Blackley was dispatched under the house to break out the
sewer line when the execution of the search warrant began. Five
officers waited at the front door with a hydraulic device to get
through a steel security door and then enter the house.
With all the officers in place, Officer Hart and Major Ballard
used the hydraulic device to open the front steel security door.
After quickly opening the metal door, Officers Hart, Morgan, and
Zelaya then attempted to break down the inner wood door. They
opened the door only a few inches before it was slammed shut.
At the same time, Officer Blackley began breaking open the
sewer line under the house. As he broke the pipe, Blackley heard
a commotion upstairs and heard someone running through the house.
Then he heard the toilet flush. He held a pan underneath the line
and caught one package of a white substance wrapped in clear
plastic bags. He saw another similar package lodge in the line.
He pulled this package out and placed it in the pan as well.
2 Upstairs, the officers were still attempting to enter the
front door. Someone in the house shouted, "Who is it?" The
officers responded, "Police officers, open the door." After one to
two minutes, the opposition stopped. The officers forced the door
open, pushed away a love seat that had been moved against the inner
door, and entered the house. The officers found Williams,
Kitchens, and Green in the front room of the house. No one else
was in the house. No one entered or exited through the back door
during the raid.
As the first officer entered the room, he saw Williams move
backward and sit on a couch that was across from the door.
Kitchens was also moving backward and sat on the opposite end of
the same couch. Green was approximately four feet away, standing
near a doorway that led to the rest of the house and to the
bathroom.
Once the three defendants were secured, the police searched
the house. Under a cushion on the couch where Williams was seated,
officers found a loaded .25 caliber semi-automatic pistol. This
weapon was under the front edge of the cushion, with the handle
facing out. The gun was situated so that a person sitting where
Williams was found could reach under the cushion and retrieve it.
During the search the officers found several items: a radio
scanner with the frequency set on the police band; in the bathroom,
a package of single edge safety razor blades and a box of sandwich
bags similar to those used in the package recovered from the sewer
line; small plastic bags scattered around the floor of the house;
3 and in the kitchen, a bag of white substance that was later
determined to be starch, a common cutting agent.
The officers concluded that no one permanently resided in the
house. The officers found two stoves in the kitchen, one of which
was turned upside down. The other stove was hooked up and had a
single pan with food remnants on it. The refrigerator did not
function. One bedroom had a bed, dresser, and some clothes on the
floor, but no bed linens. The living room had a television, VCR,
and some videos. The windows were covered with metal security
screens, and both the front and back entrances had metal security
doors.
The two packages that were recovered from the sewer line
enclosed inner bags which in turn held smaller packages containing
individual rocks of crack cocaine and portions of cocaine powder.
The sandwich bags used to package the smaller portions were similar
to the sandwich bags found in the bathroom and scattered around the
house.
Sergeant Elizabeth Hanners, the evidence custodian, collected
the evidence. The wet outer packages of the crack and cocaine were
discarded, leaving the inner packages and the individually wrapped
crack and cocaine. The crack cocaine, including the packaging,
weighed approximately 13 grams and included twenty individually
wrapped rocks. The cocaine powder, including the six small bags
holding the cocaine, weighed approximately 7 grams. Sergeant
Hanners field-tested the substances from the sewer line and found
4 that they contained cocaine. The starch found in the kitchen
tested negative for the presence of controlled substances.
Hanners sealed the seized items, including the starch, in
Greenville Police Department bags and turned them over to the
custodian of the Police Department vault. The packages were
processed and delivered to the Mississippi Crime Laboratory by
certified mail. Pursuant to Crime Lab policy, the drugs were
assigned to lab chemist Jon Maddox for analysis. He determined
that the substances were cocaine and crack. The starch was tested
and found not to contain controlled substances. Maddox removed the
packaging and weighed the substances. The cocaine powder weighed
5 grams and the crack cocaine weighed 9.5 grams.
Maddox took a medical leave of absence approximately ten days
before trial. During this leave Crime Lab officers investigated
complaints that Maddox had pilfered drugs from the lab's disposal
pile for his personal use. After this investigation began, drugs
that Maddox had previously tested in preparation for his testimony
were retested. The state notified defense counsel that the drugs
seized in the case would be retested. Crime Lab chemist Ted
Chapman reanalyzed the substances and again found that they
contained cocaine and crack cocaine. The weight of the drugs before
Chapman's analysis, but after Maddox analyzed the drugs and removed
the packaging, was 4.2 grams of powder cocaine and 7.8 grams of
crack. Neither Maddox nor Chapman tested the purity of the
cocaine.
5 Chapman determined that the third substance, found in the
kitchen of 1009 Holmes, was starch. This is commonly used as a
cutting agent for cocaine and an ingredient in the cooking process
used to convert cocaine powder to crack.
The defendants did not testify at trial. Charles Williams,
defendant Kenneth Williams's father, testified that his other son
Danny owned the house at 1009 Holmes, but did not live there. The
defendants also called Kendall Gibbs, who testified that he rented
the house from Danny Williams. Gibbs further testified that he had
invited the three appellants to the house for a fish fry and to
watch videos on September 5, 1990, and that he left to buy beer,
fish, and cigarettes. He left through the back door and did not
lock the back metal security door. He stopped at a nearby lounge,
where he was informed that police were at his house. Gibbs
returned to the house without having purchased the supplies, and
police arrested him on an unrelated outstanding misdemeanor
warrant.
A jury convicted Williams, Kitchens, and Green of aiding and
abetting possession with intent to distribute crack cocaine (Count
I) and cocaine (Count II) and aiding and abetting the use and
carrying of a firearm during the commission of a drug trafficking
crime (Count III). The court sentenced Williams to 144 months of
imprisonment and five years of supervised release; the court
sentenced both Kitchens and Green to 123 months of imprisonment and
five years of supervised release.
6 Defendants filed motions for a new trial based on newly-
discovered evidence about Maddox's removal from his job as a Crime
Lab chemist. After a hearing, the district court denied those
motions and these appeals followed. The appellants raise three
issues on appeal: 1) the evidence was insufficient to support the
verdict; 2) the court's jury instructions on the weapon offense was
inadequate; 3) the court erred in denying their motion for new
trial. We consider these arguments below.
II.
A.
Defendants first argue that the evidence is insufficient to
support their convictions on all three counts. We consider first
their attack on the drug offenses, aiding and abetting each other
in possessing with intent to distribute crack cocaine (Count I) and
cocaine (Count II).
Possession with intent to distribute cocaine and crack cocaine
requires proof that each defendant (l) knowingly (2) possessed
cocaine and crack (3) with the intent to distribute it. 21 U.S.C.
§ 841(a)(1); United States v. Gallo, 927 F.2d 815, 821-22 (5th Cir.
1991). To be guilty of aiding and abetting possession of drugs
with intent to distribute, each defendant must have aided and
abetted both the possession of the drug and the intent to
distribute it. United States v. Lindell, 881 F.2d 1313, 1322 (5th
Cir. 1989), cert. denied, 493 U.S. 1087 (1990), and cert. denied,
496 U.S. 926 (1990). Defendants need not have actual or
constructive possession of the drugs to be guilty of aiding and
7 abetting possession with intent to distribute. A conviction
"merely requires that [defendants'] association and participation
with the venture were in a way calculated to bring about that
venture's success." United States v. Salazar, 958 F.2d 1285, 1292
(5th Cir. 1992), cert. denied, 121 L. Ed. 2d 129 (1992).
The "defendant must share in the intent to commit the offense
as well as participate in some manner to assist its commission."
United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982). A
defendant's mere presence at the scene of the crime does not
constitute aiding and abetting; however, the jury may consider
presence and association as factors in determining whether the
defendant is guilty of aiding and abetting. Lindell, 881 F.2d at
1323.
We review the evidence in the light most favorable to the
verdict. Glasser v. United States, 315 U.S. 60 (1942). We affirm
if a rational trier of fact could have found that the evidence
establishes the essential elements of the offense beyond a
reasonable doubt. United States v. Molinar-Apodaca, 889 F.2d.
1417, 1423 (5th Cir. 1989).
Defendants argue that no reasonable jury could have convicted
them of aiding and abetting possession of drugs because the
evidence at trial established only that the three were present in
a friend's house where drugs were found.
Our review of the record persuades us that the evidence amply
supports a finding that all three defendants aided and abetted each
other in the possession of the cocaine. A reasonable jury could
8 have concluded that blocking the officers' entry until the cocaine
was disposed of required the concerted effort of all three men.
The jury could have inferred that the resistance of two men
(Williams and Kitchens) against the door was required to prevent
the three police officers from entering. This fact, combined with
evidence of their backward motion from the door, permitted the jury
to infer that Williams and Kitchens were holding the love seat
against the door, while Green flushed the drugs down the toilet.
Evidence of the defendants' concerted effort to dispose of the
cocaine supports a reasonable inference that all three men both
associated and participated in possessing the drugs.
Our inquiry does not end with possession; we must also
consider whether the evidence supports a reasonable inference that
the defendants aided and abetted each other in distributing the
cocaine or intending to do so.
The defendants argue first that the evidence may indicate an
intent by them to consume drugs but does not reveal any intent by
them to distribute drugs. We disagree. The jury could have
determined that the three defendants were unlikely to consume
twenty-six individual doses of crack and powder cocaine.
Significantly, no evidence was presented at trial that pipes for
smoking the crack were found in the house or on the defendants. No
hypodermic needles were found. Thus, a reasonable factfinder could
have inferred that the defendants were not in the house to consume
the drugs.
9 We are persuaded that a reasonable jury could infer that 1009
Holmes was a "crack house," an established outlet for the sale of
crack cocaine, and that Williams, Kitchens, and Green were in
charge of the business when they were arrested. Police officers
testified at trial about the activity at the house in August of
1990, days or weeks before the raid, that led them to believe it
was a crack house. Persons visiting the house stopped in front of
the house and left their car engines running. Someone inside the
house would check the area before allowing the visitors to enter.
They stayed inside briefly, and before they left someone surveyed
the area to make sure the area was clear. The jury was entitled to
believe Officer Hart's testimony that this activity was consistent
with drug trafficking.
Viewed most favorably to the verdict, the evidence supports a
reasonable inference that the house was not equipped as a full-time
residence. There were no bed linens or personal effects; there was
no food; the refrigerator did not work. There were only a few
items of furniture. The house was secured with metal doors and
barred windows. Based on the surveillance, the drug paraphernalia,
and the lack of evidence of full-time habitation, the jury was
entitled to infer that this was a crack house. See United States
v. Bennett, 956 F.2d 1476, 1482 (8th Cir. 1992).
A reasonable jury also could infer that the defendants
willfully participated in the cocaine distribution enterprise. The
three defendants obviously had authority to dispose of the drugs
and to prevent access to the house. "Evidence that an individual
10 is 'solely entrusted with a large portion of the proceeds of the
drug trafficking enterprise establishes [her] familiarity with, or
high level participation in, that enterprise.'" Salazar, 958 F.2d
at 1295 (alteration in original) (quoting United States v. Gallo,
927 F.2d 815, 821 (5th Cir. 1991)).
The paraphernalia found in plain view in the house suggested
that cocaine was being distributed. Of course, sandwich bags,
single-edge razor blades, starch, and a police scanner do have non-
drug-related uses. But the jury was entitled to conclude that none
of those other uses suggested by defendants--such as wrapping
sandwiches or fish, scraping paint, or ironing shirts--likely took
place at 1009 Holmes.
In sum, a reasonable jury could have concluded that 1009
Holmes was a cocaine distribution center under the command and
control of Williams, Kitchens, and Green. A jury could infer that
the three men necessarily acted in concert to attempt to distribute
the drugs. The evidence supports the convictions on Counts I and
B.
Appellants argue next that their convictions for aiding and
abetting the use of a firearm in relation to a drug offense should
be reversed for two reasons. They contend first that the court
failed to instruct the jury properly on the requisite intent for
this offense and second that the evidence is insufficient to
support the verdict. We first consider whether the court properly
instructed the jury on this count.
11 To convict Williams, Kitchens, and Green of aiding and
abetting the use of a firearm in relation to a drug trafficking
crime, the jury had to find that the three men (1) during and in
relation to a drug crime (2) aided and abetted the use of a
firearm. 18 U.S.C. § 924(c)(1); 18 U.S.C. § 2; United States v.
Onick, 889 F.2d 1425, 1431 (5th Cir. 1989). "Possessing illegal
drugs with the intent to distribute constitutes a drug trafficking
crime for the purpose of" § 924(c). Onick, 889 F.2d at 1431
(citing United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.
1988)). A defendant need not use or brandish the weapon to be
guilty under § 924(c), as long as the Government shows that the
weapon was available to facilitate the crime. United States v.
Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989).
Initially, we must determine the appropriate standard of
review for the instructions on the firearms count. If a defendant
fails to object to an instruction, this court reviews only for
plain error. Fed. R. Crim. P. 52(b); United States v. Frady, 456
U.S. 152, 163 (1982). Counsel objected to an earlier version of
instruction G-111 for lack of a statement about the requisite
1 In order to prove that a defendant used or carried a firearm during and in relation to a drug trafficking crime, the Government does not have to prove that the defendant had actual possession of the weapon or that he used it in any affirmative manner. It does require evidence that the firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking.
12 knowledge by the defendants of the presence of the weapon.2 After
the court amended the charge,3 stating "[t]hat will satisf[]y
knowledge," counsel made no further objection.
Ordinarily we do not require repeated objections to an
instruction. Osborne v. Ohio, 495 U.S. 103, 124 (1990). In
determining the sufficiency of objections we apply "the general
principle that an objection which is ample and timely to bring the
alleged . . . error to the attention of the trial court and enable
it to take appropriate corrective action is sufficient to . . .
preserve the claim for review." Id. at 125 (quoting Douglas v.
Alabama, 380 U.S. 415, 422 (1965)). We are persuaded that
counsel's objection was adequate to alert the court of her position
that the defendant's knowledge of the presence of the weapon was an
essential element of the offense. We therefore review the adequacy
of the charge de novo.
Appellants' argument focuses on the state of mind required to
convict them of this offense. They contend that the court's charge
completely failed to instruct the jury on this element. Generally,
2 Counsel stated:
I do have an objection. I think when it talks about it being available, that we need to include within this a statement about knowledge, that in order for it to be available, the defendant had to have knowledge of its presence.
3 Amended Instruction G-11 required "evidence that the firearm was made available by at least one of the defendants to provide protection to the defendant in connection with his engagement in drug trafficking." (emphasis ours).
13 failure to instruct the jury on every essential element of the
offense is error. United States v. Winship, 724 F.2d 1116, 1124
(5th Cir. 1984).
The defendants were charged with aiding and abetting the use
of a firearm. An aider and abettor must share in the criminal
intent of the principal. See United States v. Triplett, 922 F.2d
1174, 1178 (5th Cir.), cert. denied, 114 L.Ed.2d 486 (1991)
(quoting United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir.
1985)). To support a § 924(c) conviction, the government must
prove that a defendant knowingly used a firearm. United States v.
Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989) (citing United States
v. Nelson, 733 F.2d 364, 370-71 (5th Cir.), cert. denied, 469 U.S.
937 (1984)). To convict, the jury was required to find, therefore,
that each defendant as an aider and abettor knew that the gun was
at least available to one of the defendants. See Nelson, 733 F.2d
at 371; see also United States v. Hamblin, 911 F.2d 551, 557-58
(11th Cir. 1990), cert. denied, 114 L.Ed.2d 482 (1991) (government
has burden of proving that aider and abettor shared criminal intent
of codefendant with respect to § 924(c) firearms charge).
Unfortunately, the court's instruction does not address the state
of mind element of the offense, except to suggest that if one of
the defendants used the weapon (and therefore knew of it) then all
defendants were guilty of the offense.4 An instruction under
4 Instruction G-9 reads as follows:
Two elements are required to be proved beyond a reasonable doubt in order to establish the offense charged in Count Three of the indictment, as follows:
14 Pinkerton v. United States, 66 S.Ct. 1180 (1946), may have been
appropriate, at least if the defendants had been charged with some
conspiracy. See United States v. Raborn, 872 F.2d 589, 596 (5th
Cir. 1989). But as no conspiracy whatever was charged or
instructed on, the instruction is deficient for the charged offense
of aiding and abetting the use of a firearm because knowledge of
the use of the firearm is an essential element of the offense.
Also, we cannot say that this erroneous instruction was harmless--
all of the defendants argued that they did not know the weapon was
in the room and the government's proof on this point was meager.
Thus we find it conceivable if not likely that the jury would have
First. That while the defendants were engaged in aiding and abetting each other to possess cocaine and cocaine base with intent to distribute the same, either one or all three of them carried or used a firearm; and
Second. That either one or all three of them did so during and in relation to a drug trafficking crime.
The term "drug trafficking crime" means any felony punishable under the Controlled Substances Act, and includes the offense charged in Count One of the Indictment, that is, aid and abet to possess coke with intent to distribute the same.
If one of the defendants carried or used a firearm during and in relation to a drug trafficking crime at a time when all defendants were mutually engaged int he drug crimes alleged, then all defendants are equally guilty of using or carrying a firearm during and in relation to a drug trafficking crime.
15 acquitted the defendants, or some of them, had the jurors
understood that knowledge of the presence of the weapon was an
essential element of the offense.
Because of double jeopardy considerations, we next consider
appellants' sufficiency arguments on this count.
They contend primarily that the evidence failed to establish
that they knew the weapon was in the room.5 In determining whether
the government established that the defendants formed the necessary
intent to commit the charged offense, the question narrows to
whether the record supports an inference that Williams, Green, and
Kitchens knew that one of them had a firearm available for use.
See Nelson, 733 F.2d at 371.
The evidence is sufficient to uphold Williams's conviction on
Count III. Williams was sitting on the sofa cushion under which
the .25 caliber pistol was found. The jury could infer that
Williams knew the gun was under the cushion on which he was seated.
The gun was situated with the butt facing out, was readily
accessible, and was loaded. In United States v. Morris, 977 F.2d
617 (D.C. Cir. 1992), the court found that guns concealed under the
cushions of a couch were "used" in relation to a drug trafficking
offense because the loaded guns were readily accessible and were
near the door, through which an intruder might be expected to
enter. Thus, a reasonable jury could infer that Williams willfully
5 We have already rejected appellants' argument that the evidence did not establish that they were engaged in drug trafficking at 1009 Holmes.
16 associated and participated in the use of the gun to protect the
drug operation.
The validity of Green's and Kitchens's convictions on this
count depends on whether the record supports an inference that they
knew the gun was available to Williams. Our review of the record
reveals no evidence that Green or Kitchens ever saw the gun or knew
of its presence. The record does not reveal that the gun which was
under the couch cushion was visible to Green or Kitchens. The
government established no other connection between Green and
Kitchens and the weapon. Because the evidence does not support an
inference that Green and Kitchens knew the gun was available to
Williams, the evidence is insufficient to support Green's and
Kitchens's convictions on this count.
III.
The defendants argue finally that they are entitled to a new
trial based on the evidence they discovered after the trial that
the Mississippi Crime Lab chemist, Jon Maddox, was caught pilfering
drugs from the lab. Defendants argue that if they had been allowed
to present this evidence the jury could have concluded that Maddox
tampered with the seized substances. Before denying appellants'
motions for new trial, the district court held a post-trial
evidentiary hearing, at which Maddox and others testified.
Defendants argue that evidence of Maddox's malfeasance
entitles them to a new trial on three grounds: (1) the prosecution
withheld the evidence of Maddox's misconduct in violation of Brady
v. Maryland, 373 U.S. 83 (1963); (2) the newly-discovered evidence
17 entitles them to a new trial under United States v. Nixon, 881 F.2d
1305 (5th Cir. 1989); and (3) Maddox's possible tampering with the
drugs is a break in the chain of custody of the evidence. We
consider each of these arguments in turn.
Brady v. Maryland holds "that the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment." 373 U.S. at 87. A Brady violation entitles a
defendant to a new trial "only when the court determines that there
is a reasonable probability that the trial result would have been
different." United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir.
1989).
Under United States v. Nixon, newly discovered evidence may
justify a new trial if: (1) the evidence was discovered after
trial; (2) the failure to discover the evidence was not due to
defendants' lack of diligence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) a
new trial probably would produce a new result. Nixon, 881 F.2d at
1311. We review the denial of a motion for a new trial based on
newly discovered evidence for abuse of discretion. United States
v. Alvarado, 898 F.2d 987, 994 (5th Cir. 1990).
We conclude that it is extremely unlikely that a jury
presented with evidence of Maddox's misconduct would find that the
substance the defendants flushed down the toilet was not cocaine or
crack. The circumstances surrounding the disposition of the drugs
reveal the defendants' belief that the drugs were illicit.
18 Sergeant Hanners's field test identified the drugs as cocaine. No
evidence was discovered that Maddox pilfered or used cocaine in any
form. He was addicted to prescription drugs such as Dilaudid,
Demerol, Tylox, and Percodan. No evidence suggests that he
pilfered any other drugs from the state lab. At trial another
chemist, Ted Chapman, testified that his analysis showed that the
substances were cocaine and crack. The district court did not
abuse its discretion in rejecting appellants' motion for new trial
predicated on Brady and Nixon.
Finally, we consider appellants' argument that Maddox's
potential tampering with the evidence broke the chain of custody of
the cocaine. Our review of the record gives us no reason to
believe that Maddox tampered with the evidence in this case. Thus,
the district court did not abuse its discretion in denying
appellants' motion for new trial on grounds that the government's
chain of custody predicate for the drugs was flawed. See United
States v. Whitley, 905 F.2d 163 (7th Cir. 1990).
IV.
For the reasons stated above, we affirm the defendants'
convictions on Counts I and II. Because the court's instruction
was deficient on Count III, however, we reverse the defendants'
convictions on that count. The government may, however, if it
elects to do so within a reasonable time, retry Williams on Count
III. Because the evidence was insufficient to convict Green and
Kitchens on this count, double jeopardy considerations preclude the
government from retrying these defendants on Count III. United
19 States v. Miller, 952 F.2d 866, 870-71 (5th Cir.), cert. denied,
112 S.Ct. 3029 (1992). Accordingly, we affirm in part, reverse in
part and remand to the district court for resentencing and further
proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.