UNITED STATES of America, Plaintiff-Appellee,
v.
Jesse Woodrow SHOTTS,
"Before the grand jury, Shotts was advised he was a target, and asked
the following questions:
Q: Do you own a bail bonds business?
A: No, sir.
Q: Have you been associated in some fashion with a bail bonds business?
A: I would at this time invoke my right of self-incrimination, Your
Honor.
Q: All right.
A: I have a client that is a bail bonds company.
Q: Well, have you in the past either been an officer in or had an interest
in a bail bonds company, any time prior to today?
A: I would respectfully decline to answer the question on the ground
it might tend to incriminate me.
Shotts contends that the question regarding his "ownership" of the bail bonds business was "fundamentally ambiguous" and that, even so, his answer was "literally true." If so, Shotts' conviction for perjury is due to be reversed.
The Supreme Court has held that a perjury conviction under > 18 U.S.C. S 1621 cannot be based upon a statement, however misleading or incomplete, that is the "literal truth." > Bronston v. United States, 409 U.S. 352, 360, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). An answer to a question may be non-responsive, or may be subject to conflicting interpretations, or may even be false by implication. Nevertheless, if the answer is literally true, it is not perjury. > Id. at 362.
Bronston has been extended to > Section 1623, under which Shotts was convicted. > United States v. Abrams, 568 F.2d 411, 421 (5th Cir.1978). In > Abrams, the defendant was convicted of violating > Section 1623 based upon her testimony before the grand jury in response to questions about what she "would do" rather than what she had actually done. Her answers to the poorly phrased questions were literally true. The Fifth Circuit reversed her conviction. [FN18]
Many other courts have reversed convictions based upon "literally true"
answers. > United States v. Boone, 951 F.2d 1526, 1536 (9th Cir.1991);
> United States v. Lighte, 782 F.2d 367, 372 (2d Cir.1986); > United States
v. Eddy, 737 F.2d 564, 567 (6th Cir.1984); > United States v. Niemiec,
611 F.2d 1207, 1210 (7th Cir.1980); > United States v. Tonelli, 577 F.2d
194, 198 n. 3 (3d Cir.1978); > United States v. Paolicelli, 505 F.2d 971,
973 (4th Cir.1974). For example, in > Eddy, the Sixth Circuit reversed
a > Section 1623 conviction where the defendant denied submitting an "official"
college transcript and diploma to a government agency. The denial was "literally
true" because the defendant had submitted falsified, not official, documents.
> 737 F.2d at 567-69. In > Boone, the defendant denied going through certain
company
files and taking out documents. His conviction was reversed because
the denial was literally true since the discarded documents were kept in
different files. > 951 F.2d at 1536. Finally, in > Tonelli, the government
qualified its question by defining a particular term. The defendant's answer
to the question so defined was literally true, and the prosecutor made
no further reference to any "other concepts" that he might have intended
to be included within the question. In reversing the perjury conviction,
the Third Circuit observed that "[T]he defendant could be said to have
evaded the broad 'other concepts' which the prosecutor wished to probe.
A charge of perjury, however, is not a substitute for careful questioning
on the part of the prosecutor...." > 577 F.2d at 198.
Shotts maintains that his answer, like those above, was literally true. Under Alabama law, a corporation is "owned" by its shareholders. See > American Cast Iron Pipe Co. v. Commerce & Industry In. Co., 481 So.2d 892, 896 (Ala.1985) ("In Alabama, the shareholders are the equitable owners of corporate assets, including real property."); > Williams v. North Alabama Exp., 263 Ala. 581, 83 So.2d 330, 333 (1955) ("stockholders owing all the shares of stock of a corporation are the equitable owners of its assets"). See generally H. Henn & J. Alexander, Laws of Corporations at 491 (Practicing Law Institute, 1991) ("shareholders 'own' the corporation ...").
It is undisputed that Shotts never owned any of the shares of stock of the JC Bail Bonds business. His answer to the question whether he "owned" the company was literally true as a matter of both Alabama and general law. [FN19]
Furthermore, Shotts was not asked whether he had "nominees" own the bail bond business for him. When asked whether he was "associated with" or had "an interest in" a bail bonds company, he invoked his Fifth Amendment privilege not to answer. These responses indicate that Shotts was unwilling to perjure himself regarding his association with JC Bail Bonds, and permit an inference that his willingness to answer the "ownership" question was because he knew that under the law he was not the "owner" of the corporation. [FN20] See > United States v. Marchisio, 344 F.2d 653, 661 (2d Cir.1965) (we may consider extrinsic evidence that demonstrates how a declarant interpreted a question).
The government's argument is that Shotts ignores the "context" of his testimony. He was, "in fact," the owner even if he didn't own the stock. He had told others he "owned" the business. When asked before the grand jury if he owned a bail bond business, "he knew ... what was meant by the question." No authority is cited.
A perjury conviction must rest on the utterance by the accused of a false statement; it may not stand on a particular interpretation that the questioner places upon an answer. > Lighte, 782 F.2d at 374 (citing > Bronston, 409 U.S. at 360, 93 S.Ct. 595). The government cannot require Shotts to interpret its question in a way that is contrary to the law of Alabama, and he may not be convicted of perjury if he does not. > Bronston expressly places on the questioner the burden of pinning the witness down to the specific object of the inquiry. > Id. As then Chief Justice Burger wrote, "Precise questioning is imperative as a predicate for the offense of perjury." > 409 U.S. at 362, 93 S.Ct. 595. "If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination." > Id. Any "special problems arising from the literally true but unresponsive answer are to be remedied through the 'questioner's acuity' and not by a federal perjury prosecution." > Bronston, 409 U.S. at 362, 93 S.Ct. 595.
Furthermore, the prosecutor's purpose must be to obtain the truth. Perjury, of course, thwarts that proper purpose. It must not be the prosecutor's purpose, however, to obtain perjury, thus avoiding more precise questions which might rectify the apparent perjury.
Under these circumstances, we reverse Shotts' conviction for making a false statement to the grand jury. Even if Shotts' answer was evasive, nonresponsive, intentionally misleading and arguably false, it was literally true and cannot support a conviction under > Section 1623.
IV.
Shotts claims that Counts 1-17 must be reversed because the allegations
of mail fraud are insufficient as a matter of law. The mail fraud statute
prohibits the use of the mails in furtherance of "a scheme to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises." > 18 U.S.C. S 1341. In > McNally v. United
States, 483 U.S. 350, 360, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme
Court rejected the government's argument that the statute protects intangible
rights, and held that the government must allege and prove that the victim
was deprived of money or property. Shortly thereafter, the Court further
explained that the statute extends to intangible property, but reiterated
that > Section 1341 is "limited in scope to the protection of property
rights." > Carpenter v. United States, 484 U.S. 19, 26-27, 108 S.Ct. 316,
98 L.Ed.2d 275 (1987) (citing > McNally, 483 U.S. at 360, 107 S.Ct. 2875).
Shotts was charged in Count 1 with conspiracy to commit mail fraud.
The indictment alleges that "[i]t was a part of the conspiracy that the
defendant and his co-conspirators would ... cause to be delivered by mail
... business licenses, license renewal notices, [and] payments for licenses...."
Counts 2-17 allege substantive violations of mail fraud and charge that
"[i]t was a part of
the scheme that the business and the defendant's nominees and agents
would then obtain and renew licenses from various municipalities to do
business as professional bondsmen." All of the substantive mail fraud counts
allege either the mailing of a bail bond license renewal notice with a
check or the receipt back in the mail of the license itself.
The government's theory was that these business licenses were
property as contemplated by > McNally and > Carpenter. During the trial,
the government argued that the business licenses were property. The government
requested and the court instructed the jury that "[a] business license
may be considered property." Therefore, Shotts' convictions for mail fraud
and conspiracy to commit mail fraud may be affirmed only if the licenses
he obtained were "property" under > Section 1341. [FN3] We review de novo
a challenge to the legal sufficiency of the indictment. > United States
v. Shenberg, 89 F.3d 1461, 1478 (11th Cir.1996).
This is an issue of first impression in this circuit and one
on which the other circuits are divided. The majority of the circuits have
held that a business license is not property and cannot support a > Section
1341 mail fraud conviction.
By prohibiting only that persuasion which has an improper purpose,
> Section 1512(b) does not impermissibly limit protected speech, and provides
adequate notice that such persuasion is proscribed. Therefore, we hold
that the term "corruptly" as used in > 18 U.S.C. S 1512(b) is neither unconstitutionally
broad nor vague. [FN24]
[9] Having upheld > Section 1512 against Shotts' constitutional
attack, we turn now to Shotts' contention that the government did not present
sufficient evidence that he corruptly persuaded his secretary, Kandy Kennedy,
not to talk to law enforcement agents investigating Montgomery. The evidence
offered by the government in support of this charge was the following testimony
by Kennedy:
Q: Were there any conversations in the office about the FBI after Mr.
Montgomery's house was searched?
A: Yes.
Q: Was Mr. Shotts present?
A: Yes
Q: Did he say anything about the FBI to you?
A: I asked him about it. I asked him.
Q: What did he say?
A: He said just not say anything and I wasn't going to be bothered.
Shotts asserts that this testimony proves only that Kennedy asked
Shotts about talking to the FBI and that he observed that if she did
not talk to the FBI, she would not be bothered. He maintains that the testimony
is insufficient to prove that he threatened or intimidated her, offered
her any inducement, or persuaded her in any way not to talk to the FBI.
The government argues that Shotts' use of the term "bother" could have included the possibility of Kennedy's being prosecuted and jailed for her involvement with the bail bond business. In this context, the government contends that Shotts' comment was an attempt to frighten Kennedy into not talking to the FBI.
The jury was correctly charged that they must find that Shotts acted
"knowingly and dishonestly with the specific intent to subvert or undermine
the integrity or truth-seeking ability of an investigation by a federal
law enforcement officer." The jury heard Kennedy's testimony. While not
overwhelming, the jury could reasonably have inferred from this testimony
that Shotts was attempting with an improper motive to persuade Kennedy
not to talk to the FBI. There was sufficient evidence from which the jury
has determined the facts. Therefore, we affirm Shotts' conviction on this
count.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Huguster MELLERSON,
Mellerson's first sentencing argument, that the district court abused
its discretion by departing upward because of his criminal history, is
foreclosed by our decision in > United States v. Santos, 93 F.3d 761, 763
(11th Cir.1996), cert. denied, > --- U.S. ----, 117 S.Ct. 1437, 137 L.Ed.2d
544 (1997). In that case, we upheld a district court's two-level upward
departure where the defendant's 21 criminal history points "far exceeded
the [thirteen] points needed for a Criminal History Category VI" determination.
See > id. We see no basis to distinguish > Santos from this case in which
the district court gave Mellerson a three-level upward departure because
he had 40 criminal history points. As the district court said:
[Mellerson] has proved over time that he is incorrigible. He
had 26 arrests during three years as a juvenile, and even after all of
his convictions for firearms, he had three firearms for which he was prosecuted
in this case.
He was on parole at the time from a previous firearms conviction at the time this was committed. He was in a stolen auto when this offense was committed.
While he's been in jail, he possessed a steel shank which is a dangerous
weapon. He has committed residential burglaries where the people, the victims,
were in the homes. This Court considers that to be a crime of violence,
[a violation of] the homes of individuals.
It just appears that you're incorrigible, Mr. Mellerson.... This man has 27 points more than the 13 necessary for a category of VI. That would give him .... a criminal history category of 15, if there were such a thing under the guidelines. There is not.
We find no abuse of discretion in the district court's departure where
Mellerson's criminal history points nearly double those of the defendant
in > Santos (and triples the number necessary for a Criminal History Category
VI).
Whether or not a person must actually be convicted of a crime of violence
to warrant the base offense level set by S> 4B1.4(b)(3)(A) is a question
of first impression in this Circuit. However, in > United States v. Rutledge,
33 F.3d 671, 673-74 (6th Cir.1994), and > United States v. Gary, 74 F.3d
304, 316 (1st Cir.1996), the Sixth and First Circuits both held that as
long as the government proves by a preponderance of the evidence that a
crime of violence was committed in connection with the firearms possession,
S> 4B1.4(b)(3)(A) applies regardless of whether the connected crimes
led to a conviction. We agree.
Section 4B1.4(b)(3)(A) states that 34 is the proper offense level "if
the defendant used or possessed the firearm ... in connection with a crime
of violence." The language includes no mention of a conviction. By contrast,
the language of S 4B1.1, the section that defines a career offender, specifically
requires that a defendant have "at least two prior felony convictions of
either a crime of violence or a controlled substance offense." (emphasis
added). The difference between the two sections indicates that the Sentencing
Commission knew how to make a conviction the prerequisite for application
of a provision. See > Russello v. United States, 464 U.S. 16, 23, 104 S.Ct.
296, 300, 78 L.Ed.2d 17 (1983)("[W]here Congress includes particular language
in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposefully
in the disparate inclusion or exclusion."); see also > Field v. Mans, 516
U.S. 59, 67-75, 116 S.Ct. 437, 442-46, 133 L.Ed.2d 351 (1995)(discussing
the "negative pregnant" rule of statutory construction, that the inclusion
of a term in one section of a statute implies its intentional exclusion
from another section). That is the same reasoning the Sixth Circuit used.
See > Rutledge, 33 F.3d at 674. Therefore, we hold that S> 4B1.4(b)(3)(A)
applies even if the defendant was not actually convicted of the crime of
violence in connection with which he possessed the firearm. Instead, the
government need only prove that a crime of violence was committed in connection
with the firearm possession, and that proof can be by a preponderance of
the evidence. See, e.g., > United States v. Shenberg, 89 F.3d 1461, 1476
(11th Cir.1996)(holding that the government must prove the facts used in
sentencing by a preponderance of the evidence). In this case, the government
met its burden. As the district court found from the evidence it heard
at trial: "he was involved in a crime of violence, he threatened his wife,
he abducted his child, he was in possession of a stolen automobile when
he fired shots in the neighborhood." That being so, the
district court appropriately used S> 4B1.4(b)(3)(A) to set the
base offense level at 34.
****
UNITED STATES of America, Plaintiff-Appellee.
v.
Horace FLENNORY,
Flennory was charged in a five-count indictment. He pled guilty to violating S> 922(g), being a felon in possession of a firearm in violation of > 18 U.S.C. S 922(g), and S> 924(c), carrying a firearm during and in relation to the drug trafficking offense set forth in Count Four. The remaining offenses were dismissed as part of the plea agreement. The probation officer who prepared the pre-sentencing investigation report ("PSR") pointed out that a consecutive 60 months is mandated for a violation of S> 924(c) by the statute and > USSG S 2K2.4(a).
The probation officer recommended an offense level of 23 for the S> 922(g) offense, which would result in a guideline sentence of 46-57 months. > USSG S 2K2.1(a)(6) imposes a base offense level of 14 for a S> 922(g) violation when the defendant is a felon. The probation officer determined that the specific offense characteristic in S> 2K2.1(b)(5) would apply to enhance the sentence by 4 levels to level 18. [FN3] The probation officer then concluded that > USSG S 2K2.1(c)(1)(A) would apply if its application resulted in a greater sentence than the subsection (b)(5) enhancement. [FN4]
Section 2K2.1(c)(1)(A) refers to > USSG S 2X1.1. > Section 2X1.1(c)(1) provides that if an offense is expressly covered by another offense guideline, that guideline should be applied. [FN5] The probation officer determined that the relevant offense was possession of narcotics with intent to distribute, an offense expressly covered by > USSG S 2D1.1. Application of > USSG S 2D1.1 directs one to a drug quantity table to calculate the offense level based on the amount of drugs involved. The probation officer applied the drug table in S> 2D1.1(c) based on the entire amount of crack cocaine recovered from Flennory, including the amount in the small container recovered from the vacant lot. This led to an offense level of 26. See > USSG S 2D1.1(c)(7) (applying an offense level of 26 for "At least 5 G but less than 20 G of Cocaine Base"). This offense level was then reduced to 23 because Flennory timely accepted responsibility and informed authorities early of his intent to enter a plea.
Flennory filed objections to the recommendations contained in the PSR. He objected to the computation of the offense level arguing that 1) the .9 grams of crack cocaine found in the car is the proper amount to use in calculating the offense level under > USSG S 2D1.1(c), not the entire amount of drugs recovered, and 2) application of > USSG S 2K2.1(c)(1)(A) resulted in impermissible double counting because possession of a firearm in connection with a drug offense is addressed by the mandatory sentence required by S> 924(c). The district court imposed a sentence of 46 months for Count One and 60 months for Count Five. Flennory filed a timely appeal.
***
UNITED STATES of America, Plaintiff-Appellee,
v.
Willie WILLIAMS,
In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level.... If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.
U.S.S.G. S 2D1.1, comment. (n.12) (1997). Rue argues that the amended
guideline clarifies that the defendant need only show that she lacked either
intent or ability to provide the negotiated quantity of drugs. The government
argues that the amended guideline shifts the burden of proof from the government
to the defendant. Although it is true that we apply clarifying amendments
retroactively in this circuit, see > United States v. Scroggins, 880 F.2d
1204, 1215 (11th Cir.1989) (stating that amendments that "do not effect
a substantive change, but rather are intended only to clarify the rule
adopted by a particular guideline ... constitute strongly persuasive evidence
of how the Sentencing Commission originally envisioned that the courts
would apply the affected guideline," and therefore apply retroactively),
cert. denied, > 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990),
it is not at all clear that this amendment is merely clarifying and should
be applied to
defendants, such as Rue, sentenced before the amendment's effective
date. Compare > United States v. Ynfante, 78 F.3d 677, 682 n. 4 (D.C.Cir.1996)
(noting that the amendment to Note 12 was not described as clarifying by
the Sentencing Commission, nor listed in > U.S.S.G. S 1B1.10 (1995), among
the amendments that could be applied retroactively), and > United States
v. Conway, 86 F.3d 1158, No. 95-2261, slip op. at 3-4 (7th Cir. May 15,
1996) (unpublished table opinion) (noting that burden now is on the defendant
to prove lack of intent and ability but applying pre-amendment version
in effect at time of sentencing), with > United States v. Marmolejos, 140
F.3d 488, 491-93 (3rd Cir.1998) (discussing arguments for and against retroactive
application of the amendment to Note 12 and applying a different clause
of the amendment retroactively in context of a completed drug sale because
it resolved ambiguity), and > United States v. Felix, 87 F.3d 1057, 1060
(9th Cir.1996) (applying amendment retroactively but again in context of
completed transaction); see also > United States v. Hazut, 140 F.3d 187,
191- 92 (2nd Cir.1998) (interpreting current version of Application Note
12 as placing burden on government to prove intent and ability and placing
burden on defendant to respond to prosecution's evidence). In any case,
we need not decide here whether the 1995 amendment to Application Note
12 applies retroactively, nor whether the amendment changes the required
evidentiary showing or shifts the burden of proof. Even assuming the interpretation
of Application Note 12 most favorable to Rue--that the Note requires the
government to prove, by a preponderance of the evidence, that Rue possessed
both the intent and ability to provide the negotiated amount of crack--Rue
still cannot demonstrate that affirming the district court's sentence would
be "manifestly unjust."
The statements Rue made in her recorded conversations with Spates--
especially her quotation of the market price for the half-kilo, her inquiry
about how Spates preferred to have the crack packaged, and her statement
that she needed an extra hour to cook the rest of the crack--coupled with
the evidence of Rue's prior successful drug transactions, totaling over
175 grams of crack, sufficiently demonstrated that Rue had the ability
to deliver on her promise to produce 500 grams of crack cocaine. When prodded
by the district court as to whether or not Rue could produce any witnesses
to support her claim that she was incapable of delivering the negotiated
amount, Rue's counsel flatly stated that "she doesn't have any witnesses
because there just aren't any witnesses." On this evidence, it is impossible
for us to find that attributing the entire half-kilo of crack to Rue would
be "manifestly unjust" such that we would be required to remand her case
for resentencing.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Irma Estella Calderon ALRED,
2. Enhancement for Possession of Firearms
[30][31][32][33] Roy Alred contests his enhancement for possession
of firearms and argues that the trial evidence does not support a finding
that he possessed or reasonably could have foreseen possession of firearms
by others in furtherance of the marijuana distribution conspiracy. The
Sentencing Guidelines require that a two-level enhancement be applied to
the base offense level for a convicted defendant for a drug crime "[i]f
a dangerous weapon (including a firearm) was possessed." > U.S.S.G. S 2D1.1(b)(1).
The weapon possession enhancement reflects the increased likelihood of
violence associated with the possession of firearms by drug traffickers.
Id. comment. (n.3). A sentence enhancement based on a coconspirator's firearm
possession is permitted if "(1) the firearm possessor was charged as a
coconspirator; (2) the coconspirator possessed the firearm in furtherance
of the conspiracy; and (3) the coconspirator who is to receive the sentence
enhancement was a member of the conspiracy at the time that his conconspirator
possessed the firearm." > United States v. Gates, 967 F.2d 497, 500 (11th
Cir.1992) (per curiam). The government has the burden of establishing the
appropriateness of the enhancement by a preponderance of the evidence.
> Id. at 500-01. Actual knowledge of the coconspirator's firearm possession
by the convicted defendant is not required for the enhancement to apply,
but possession must be reasonably foreseeable. See > United States v. Martinez,
924 F.2d 209, 210-11 & n. 1 (11th Cir.1991) (per curiam). Additionally,
we have held that "the enhancement is to be applied whenever a firearm
is possessed during conduct relevant to the offense of conviction." > United
States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (per curiam). We review
a district judge's factual findings used to determine the applicability
of a > section 2D1.1(b)(1) enhancement for clear error. See > United States
v. Pessefall, 27 F.3d 511, 515 (11th Cir.1994).
At trial, Charles Douglas Mixon, who pled guilty to being a marijuana trafficker, testified that guns were prevalent during a 600 to 700- pound marijuana transaction:
Roy had a--if we had went off, it would've blew up half of that field.
Like I say, it wasn't only Roy. I had guns, you know, laying everywhere.
And Alan, he had an automatic weapon. It was more or less just all in our
head 'cause we was doing cocaine and everything else, and we just thought
everybody was after us. And Roy stood in the pouring rain and watched the
road like the National Guard was going to come in there on us. But, like
I say, there was guns everywhere, everywhere.
R17-29. In addition to Roy Alred's possessing firearms when he
participated in the marijuana distribution conspiracy during the relevant
time period, [FN16] the district judge correctly determined that possession
of firearms by Roy Alred's coconspirators also made this enhancement applicable
to him. [FN17] We conclude that the facts that the district judge used
as the basis for the > section 2D1.1(b)(1) enhancement were not clearly
erroneous. Thus, Roy Alred's enhancement for possession of firearms was
appropriate.
3. Enhancement for Leadership Role
Roy Alred argues that the district judge should not have enhanced his base offense level by four levels under > U.S.S.G. S 3B1.1(a) for a leadership role in the marijuana distribution conspiracy in Holmes County. He contends that he had only a buyer/seller relationship with his coconspirators in marijuana transactions for which a > section 3B1.1(a) enhancement is inapplicable. We agree.
A sentencing judge is authorized to apply a four-level enhancement to the base offense level of a convicted defendant who "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." > U.S.S.G. S 3B1.1(a). We have determined that the plain language of > section 3B1.1(a) "requires both a leadership role and an extensive operation. Without proof of the defendant's leadership role, evidence of the operation's extensiveness is insufficient as a matter of law to warrant the adjustment." > United States v. Yates, 990 F.2d 1179, 1181-82 (11th Cir.1993) (per curiam). The factors that the district judge should consider "[i]n distinguishing a leadership and organizational role from one of mere management or supervision" are the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.... This adjustment does not apply to a defendant who merely suggests committing the offense.
U.S.S.G. S 3B1.1, comment. (n.4). The government must prove the existence of an aggravating role by a preponderance of the evidence. See > Yates, 990 F.2d at 1182. The district judge's determination of a convicted defendant's role in the offense is a factual finding subject to clearly erroneous review, but the application of a guideline to a particular factual situation is a question of law that we review de novo. See > id.
Although the government presented evidence at trial that Roy Alred sold marijuana to a number of individuals, there was little indication that he actively recruited buyers or directed their activities. For example, Collis Hobby and Dale Sconiers testified that they initiated contact with Roy Alred. Hobby testified that a relatively small portion of his marijuana transactions were with Roy Alred, whom he considered to be an individual buyer/seller.
Similarly, Shirley and Willard Womble as well as Robert Earl Tucker testified that they purchased marijuana from Roy Alred only after he had purchased marijuana from them. Like Hobby, the Wombles bought most of their marijuana from another source and were in business for themselves. Tucker also had other sources of supply and was in a partnership with a third individual, both of whom operated independently of Roy Alred, who did not know Tucker's partner and generally did not know to whom Tucker resold marijuana that he had purchased.
The trial evidence further showed that Jesus Galaviz and Antonio Martinez delivered and/or attempted to deliver large loads of marijuana to Roy Alred in 1993. They were hired and paid, however, by the seller, an individual from Houston, Texas. Likewise, Jose Cuellar delivered marijuana to Roy Alred but worked under the direction of others.
Only slight evidence indicates that Roy Alred may have recruited or directed the actions of his coconspirators. In 1990, a Louisiana State Trooper stopped Roy Alred as he and his nephew traveled to Houston with $21,000 in cash. Additionally, Sconiers testified that Roy Alred and his cousin Jim Alred used Sconiers's property to off-load four or five truck loads of marijuana in the early 1990's. Although Willard Womble initially recruited Roy Alred to purchase marijuana from him, Womble testified that, nine to twelve months after that transaction, Roy Alred came to his home and "[w]e got to talking. The next thing, I agreed to buy marijuana." R18-169.
Three witnesses to whom Roy Alred sold marijuana testified that he "fronted" the marijuana to them. Hobby testified that at least one of his purchases from Roy Alred was fronted. On that occasion, he received the marijuana on credit and paid for it a few days later after he resold it. Shirley Womble also testified that once she delivered money to Roy Alred with the implication that it was in payment for marijuana previously received. Like Hobby, Sconiers testified that his purchases were fronted or made on credit.
Over objection from Roy Alred's counsel, the district judge determined
that "the four level increase is appropriate under the evidence presented
in this case." R25-27. We have held that a convicted defendant's status
as a middleman or distributor is insufficient for a > section 3B1.1 enhancement,
which requires authority in the organization that perpetrates the criminal
conduct, the exertion of control, or leadership. See > Yates, 990 F.2d
at 1182; accord > Maxwell, 34 F.3d at 1012 (determining that a seller/buyer
relationship is inappropriate for a > section 3B1.1(a) enhancement). We
further have concluded that arrangements between buyers and sellers, such
as negotiating deliveries, are "simply incidental to the buyer-seller relationship."
> United States v. Witek, 61 F.3d 819, 823 (11th Cir.1995), cert. denied,
> 516 U.S. 1060, 116 S.Ct. 738, 133 L.Ed.2d 688 (1996). In a continuing
criminal enterprise, we have held that "evidence of fronting, without more,
is insufficient to satisfy the management requirement." [FN18] > Id. at
824.
*13 We conclude that the evidence presented by the government
in this case of Roy Alred's buyer/seller and fronting relationships is
insufficient to support his four-level enhancement under > section 3B1.1(a)
for having a leadership role in the marijuana distribution conspiracy in
Holmes County. The district judge improperly applied this four-level adjustment
to Roy Alred's base offense level. On remand, the district judge will resentence
him without the > section 3B1.1(a) enhancement.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Jeffery Jerome TOLER,
(J. Barkett for the majority; J. Black dissenting)
The government's case against Mathis, then, depends entirely upon her demand that Savage pay her $500 for the "thing" she took from the refrigerator. Viewing the evidence in the light most favorable to the government, we assume that the "thing" she took was cocaine. The government took the position at trial that Mathis' act of ransoming the cocaine evidenced, "in and of itself," a prior agreement by which Savage would pay Mathis for the use of her apartment. R19:3261, 3265.
We cannot conclude that the government's inferential leap suffices to cross the chasm of proof beyond a reasonable doubt that Mathis agreed to join the conspiracy. Although Mathis' action might support a conviction for criminal blackmail, unlawful possession of drugs, or another criminal act, it could hardly be termed to be an act in furtherance of Savage's conspiracy. In fact, it would be directly at odds with Savage's conspiracy. Indeed, even where the act in question appears to further the objective of a conspiracy, not every such act provides a sufficient basis to demonstrate the actor's concurrence in the agreement. As the Supreme Court explained in a case involving the illegal sale of prescription drugs, "one does not become a party to a conspiracy by aiding and abetting it, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally." > Direct Sales Co. v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943). The same holds true where the goods sold are illegal narcotics; " 'the existence of a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement.' " > United States v. Brown, 872 F.2d 385, 391 (11th Cir.1989) (quoting > United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir.1984)); > United States v. Solomon, 686 F.2d 863, 877 (11th Cir.1982).
Assuming for the purpose of discussion that Mathis knew of the essence of Savage's conspiracy to distribute drugs, the government would still have had to show that Mathis affirmatively agreed to participate in that scheme. See > Direct Sales Co., 319 U.S. at 713, 63 S.Ct. at 1270 (permitting the inferential "step from knowledge to intent and agreement" where the government had proven "more than knowledge"). This the government has not done in this case.
Although the evidence need not exclude every reasonable hypothesis of innocence in order to sustain a guilty verdict, as we have noted, we cannot sanction a conspiracy conviction predicated on "conjecture." See > United States v. Hardy, 895 F.2d 1331, 1335 (11th Cir.1990); > United States v. Kelly, 888 F.2d 732, 741 (11th Cir.1989). Accordingly, Mathis' conviction must be reversed.
II. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and sentences of Reuben Averhart, Keith Coleman, Melody Fontenot, Christopher Gulley, Victor Moorer, Duane Roshell, Ursula Strong, Jeffery Jerome Toler, and John Williams, and we REVERSE and VACATE the conviction of Traci Mathis.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Theodore S. TOMENY,
Appellants' sole argument on appeal is that > 16 U.S.C. S 1857(1)(I)
preempts > 18 U.S.C. S 1001. The government argues that appellants
waived this issue by entering a guilty plea not conditioned upon the right
to appeal the district court's adverse rulings on pre-trial motions.
Although an unconditional guilty plea does waive non- jurisdictional
defects in the proceedings against a defendant, see > United States v.
Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986), it does not waive jurisdictional
defects, see > United States v. Meacham, 626 F.2d 503, 510 (5th Cir.1980).
Whether a claim is "jurisdictional" depends on "whether the claim can be
resolved by examining the face of the indictment or the record at the time
of the plea without requiring further proceedings." > United States v.
Caperell, 938 F.2d 975, 977-78 (9th Cir.1991). Accordingly, this court
has held that a claim that the indictment failed to charge an offense is
a jurisdictional claim not waived by the entry of a guilty plea. See >
Meacham, 626 F.2d at 510.
In arguing that > 16 U.S.C. S 1857(1)(I) preempts > 18 U.S.C.
S 1001 as applied to the facts of this case, appellants effectively claim
that the indictment failed to charge a legitimate offense. We hold that
this claim is jurisdictional and that appellants did not waive it upon
pleading guilty.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Wayne Thomas Charles VAUTIER,
After defendant pleaded guilty to conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants, and other charges, the United States District Court for the Middle District of Florida, No. 91-68- CR-FTM-25D, Elizabeth A. Kovachevich, J., denied defendant's motion to reduce his sentence, based on subsequent change in applicable guideline range, and defendant appealed. On petition for rehearing, the Court of Appeals, Hull, Circuit Judge, held that: (1) sentencing court's power to reduce sentence based on subsequent guideline change is discretionary; (2) sentencing court was not bound by prior discretionary departure in determining sentence it would have imposed under amended guideline; and (3) district court adequately considered factors relevant to imposition of sentence in denying defendant's motion.
Affirmed.
****
UNITED STATES of America, Plaintiff-Appellee,
v.
Randy JONES,
On this appeal from a denial of a motion to withdraw a guilty plea,
we follow the harmless error provisions of > Rule 11(h) of the Federal
Rules of Criminal Procedure, reject a per se rule for reversal, and hold
that when a court accepting a guilty plea fails to verbally inform the
defendant of a mandatory minimum sentence, that error may be harmless when
a written plea agreement referred to during the plea colloquy properly
describes the statutory mandatory minimum sentence.
*****
UNITED STATES of America, Plaintiff-Appellee,
v.
Roy Mack WEST,
142 F.3d 1408
This court reviews claims under the Speedy Trial Act (Act) de novo. > United States v. Twitty, 107 F.3d 1482, 1488 (11th Cir.), cert. denied, > --- U.S. ----, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997). The Act provides that when a defendant enters a plea of not guilty, "the trial ... shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date is later." > 18 U.S.C. S 3161(c)(1). The Act also provides numerous instances of excludable time periods from this seventy-day calculation. See > 18 U.S.C. S 3161(h). West claims that 177 unexcluded days elapsed between his first appearance and his trial and, therefore, the court erred in not dismissing his indictment.
The grand jury in the Northern District of Alabama first indicted West on June 10, 1993, and he did not appear in court concerning this indictment until February 9, 1995. This first appearance triggered the running of his speedy trial clock. See > 18 U.S.C. S 3161(c) (1998). On April 4, 1995, the government moved to dismiss West's indictment, after a drug task force grand jury returned a new, "replacement" indictment against him. The court granted this motion, and the grand jury indicted West again on April 5, 1995. According to the Act and case law in this circuit, the government's dismissal of West's original indictment, and the subsequent ("replacement") indictment, triggered a new seventy-day time period. See > 18 U.S.C. S 3161(d)(1); see also > United States v. Puett, 735 F.2d 1331, 1333-34 (11th Cir.1984) (stating, "[t]he better construction of > section 3161(d)(1) is that after the dismissal of the complaint [by the government], the Act's time limit runs anew from the date of filing of the subsequent complaint or indictment"). The grand jury indicted West one day after the government dismissed the original indictment, and therefore, West's speedy trial clock restarted with the April 5, 1995 indictment.
On May 4, 1995, the government filed a motion to continue West's trial,
anticipating that the June 1995 session of the drug task force grand jury
would return a superseding indictment against West. On May 26, 1995, West,
and his lawyer, executed a waiver of his speedy trial rights, through August
7, 1995.
The court granted the government's motion to continue on June 1, 1995,
basing its decision in part on the waivers that the defendants filed and
their lack of objections to the continuance. At trial, 124 days after
the grand jury issued its "replacement indictment," West moved to adopt
several motions of codefendant Wofford, including a motion to dismiss the
indictment based on speedy trial violations. The court granted West's
motion to adopt, but denied all of the underlying motions.
West attacks his waiver, claiming it could not have been "knowing and intelligent" because he and his lawyer executed it beyond his speedy trial limits, and the potential punishment of life incarceration. West and his lawyer, however, executed this waiver well within the limits of the Act (50 days had elapsed since the April 5, 1995 "replacement" indictment), and he has not presented any other evidence demonstrating that this was not a "knowing and intelligent" waiver.
West also claims that the court erred in granting the government's motion to continue, because it failed to make a specific "ends of justice" finding pursuant to > 18 *1413 U.S.C. S 3161(h)(8). [FN4] We review a court's decision to grant or deny a continuance under the Act for abuse of discretion. > United States v. Goetz, 826 F.2d 1025, 1027 (11th Cir.1987).
FN4. Title 18 U.S.C. S 3161(h)(8) reads:
Any period of delay resulting from a continuance granted by any judge
on his own motion or at the request of the defendant or his counsel or
at the request of the attorney for the government, if the judge granted
such continuance on the basis of his findings that the ends of justice
served by taking such action outweigh the best interest of the public and
the defendant in a speedy trial. No such period of delay resulting
from a continuance granted by the court in accordance with this paragraph
shall be excludable under this subsection unless the court sets forth,
in the record of the case, either orally or in writing, its reasons for
finding that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a speedy
trial.
The court granted the continuance based in part on the waivers that
the defendants filed and their failure to object to the continuance.
Further, the grounds listed in the government's motion to continue included:
(1) that the grand jury was prepared to issue a superseding indictment;
(2) that the government needed more time to compile discovery material;
and (3) that the defendants would need additional time to file any necessary
motions when they received the discovery materials. While the court's
order did not specifically state that the decision was based on the "ends
of justice," we find, after a review of the record and the findings enunciated
in its order, that the court did not abuse its discretion and that the
continuance served the "ends of justice." See > Twitty, 107 F.3d
at 1489-90; > United States v. McKay, 30 F.3d 1418, 1420 (11th Cir.1994),
cert. denied, > 516 U.S. 924, 116 S.Ct. 323, 133 L.Ed.2d 224 (1995);
> United States v. Vasser, 916 F.2d 624, 627 (11th Cir.1990), cert. denied,
> 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d 82 (1991).
We therefore find that West validly waived his speedy trial rights, and the court relied on it and other factors in rescheduling a trial to a date beyond the expiration of the seventy-day period.
*****
UNITED STATES of America, Plaintiff-Appellee,
v.
Tony RILEY,
There is no plain error here, because there is no error. See > Olano, 507 U.S. at 732, 113 S.Ct. at 1776. In a case that is virtually identical to this one, the Supreme Court has rejected the same contention. > Edwards v. United States, --- U.S. ----, ----, 118 S.Ct. 1475, 1477, 140 L.Ed.2d 703, ---- (1998). The Court noted that a sentencing judge is not limited to considering the offense of conviction. > Id. Rather, the judge may sentence for both offense conduct and any other "relevant conduct." > Id. (citing > U.S.S.G. S 1B1.3(a)). Thus, whether the jury found that Riley and Cleveland engaged only in a crack conspiracy, or only in a powder conspiracy, or both, the judge was free to impose a sentence based on both drugs.
The Court stated only two exceptions to this rule. First, if the
amount of one substance involved leads to a lower statutory maximum sentence
than would apply to the amount of the other substance, compare > 21 U.S.C.
S 841(b)(1)(A) with id. S> 841(b)(1)(B), then the district court
must stay below the lower statutory maximum. See > Edwards, --- U.S.
at ----, 118 S.Ct. at 1477. But here, both Riley and Cleveland generously
exceeded the amounts required to
make them eligible for life sentences under S> 841(a)(1)(A),
whether they are sentenced solely for crack or solely for powder.
Second, *1257 a lower sentence may be warranted if the conduct involving
one of the drugs is not "relevant conduct" under the Guidelines--that is,
not part of the same "course of conduct or common scheme or plan as the
offense of conviction." > U.S.S.G. S 1B1.3(a)(2); > Edwards, ---
U.S. at ----, 118 S.Ct. at 1478. In this case, neither Riley nor Cleveland
contends that either crack or powder was absent from their course of conduct.
Indeed, the record shows that such a contention would be inconsistent with
the overwhelming evidence of a scheme to process powder into crack for
retail sale. Cf. > id. (making similar observation on facts of that
case).
[5] Riley and Cleveland's second attack on their sentences rests
on the Guidelines commentary to > U.S.S.G. S 1B1.2(d). That commentary
addresses the circumstance in which an indictment charges a multiple-object
conspiracy, but the jury's verdict does not establish what object or objects
of the conspiracy the jury found to be present. In that situation,
this court has interpreted the Guidelines commentary to require the sentencing
judge to find beyond a reasonable doubt which alleged objects were in fact
objects of the conspiracy. See > United States v. McKinley, 995 F.2d
1020, 1026 (11th Cir.1993). Based on > McKinley, Riley and Cleveland
assert that the district court was required to find beyond a reasonable
doubt whether the conspiracy involved powder, crack, or both.
No error--let alone plain error--occurred. Unlike in > McKinley, the conspiracy charged here is not a multi-object one. The > McKinley defendants were charged with conspiring to commit two offenses prohibited by two different statutes. See > id. at 1022. In this case, by contrast, the conspiracy alleged was one to violate > 21 U.S.C. S 841(a) by possessing with intent to distribute a controlled substance. Thus, the conspiracy had only one object. As the Seventh Circuit has put it, the conspiracy was to "commit one crime in two ways." > United States v. Edwards, 105 F.3d 1179, 1181 (7th Cir.1997) (emphasis in original), aff'd, > --- U.S. ----, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). Thus, the beyond-a-reasonable-doubt finding required by > U.S.S.G. S 1B1.2(d) for multi-object conspiracies was not required here.
Rather, under the law of this circuit, the court had to find simply by a preponderance of the evidence that Cleveland conspired, and Riley aided and abetted a conspiracy, to possess both powder and crack with intent to distribute. Cf. > United States v. Ramsdale, 61 F.3d 825, 832 (11th Cir.1995) (plain error for judge to omit finding whether conspiracy involved D- or L-methamphetamine, when indictment simply charged conspiracy involving methamphetamine); > United States v. Patrick, 983 F.2d 206, 208 (11th Cir.1993) (same methamphetamine problem; required finding need only be by a preponderance-of-the-evidence standard). Nothing in the record suggests that the district court failed to make such a finding in this case; the judge adopted the presentence report for both Riley and Cleveland, finding its conclusions to be supported by a preponderance of the evidence.
We accordingly conclude that none of the asserted plain error occurred in Riley's or Cleveland's sentencing.
*****
UNITED STATES of America, Plaintiff-Appellee,
v.
Jeffrey D. VAN DE WALKER,
Appellant Jeffrey D. Van De Walker was convicted by a jury of theft of government property in violation of > 18 U.S.C. S 641. Van De Walker argues on appeal that his trial was fundamentally unfair because the district court did not conduct a sua sponte, on-the-record inquiry into whether he knowingly, voluntarily, and intelligently waived his right to testify at trial. Van De Walker did not testify at his trial and did not assert his right to testify in the district court. He does not contend that his attorney failed to advise him of his right to testify or prevented him from testifying on his own behalf, and thus Van De Walker concedes that he is unable to raise an ineffective assistance of counsel claim. Instead, Van De Walker contends that in order to safeguard a criminal defendant's fundamental constitutional right to testify at trial, [FN1] a trial court is constitutionally required to conduct a sua sponte, on-the-record inquiry into whether a criminal defendant's waiver of the right to testify was knowing, voluntary, and intelligent.
FN1. A criminal defendant's constitutional right to testify at trial was recognized by the Supreme Court in > Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987).
Purely legal questions relating to a defendant's claim of a constitutional violation are reviewed de novo. > Agan v. Vaughn, 119 F.3d 1538, 1541 (11th Cir.1997), cert. denied, > --- U.S. ----, 118 S.Ct. 1305, 140 L.Ed.2d 470 (1998). In > United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.1992) (en banc), we recognized that a criminal defendant has a fundamental constitutional right to testify on his own behalf at trial, but we concluded that "[b]ecause it is primarily the responsibility of defense counsel to advise the defendant of his right to testify and thereby to ensure that the right is protected," an ineffective assistance of counsel claim is the appropriate vehicle for a criminal defendant to raise an alleged violation of his right to testify. In reaching this conclusion, we noted that "it would be inappropriate to require the trial court to discuss this choice with the defendant. Such a requirement would unnecessarily intrude into the attorney-client relationship and could unintentionally influence the defendant in his or her choice." > Id. at 1533 n. 8 (citing > United States v. Wagner, 834 F.2d 1474, 1483 (9th Cir.1987)). Other federal circuit courts consistently have held that a trial court has no sua sponte duty to explain to a criminal defendant that he has a right to testify or to conduct an on-the-record inquiry into whether a defendant that is not testifying has waived the right knowingly, voluntarily, and intelligently. See > Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997), cert. denied, > --- U.S. ----, 118 S.Ct. 1077, 140 L.Ed.2d 135 (1998); > United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996); > United States v. Pennycooke, 65 F.3d 9, 11 (3rd Cir.1995); > United States v. Brimberry, 961 F.2d 1286, 1289-90 (7th Cir.1992); > United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); > United States v. Edwards, 897 F.2d 445, 446-47 (9th Cir.1990); > Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); > United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.1983). We conclude that > United States v. Teague controls the instant case and we join the other circuit courts in rejecting Van De Walker's argument that whenever a criminal defendant does not testify at trial there is a per se requirement that the district court advise the defendant of his right to testify and conduct an on- the-record inquiry into whether a non-testifying defendant knowingly, voluntarily, and intelligently waived the right to testify. [FN2]
FN2. We note that other circuit courts have held that although a trial judge generally is not required to advise a criminal defendant of the right to testify or to obtain an on-the-record waiver of such right, " 'judicial interjection through a direct colloquy with the defendant may be required' in 'exceptional, narrowly defined circumstances.' " > Artuz, 124 F.3d at 79 n. 2 (quoting > Pennycooke, 65 F.3d at 12) (noting that this duty might arise if the trial judge has reason to believe that defense counsel is frustrating the defendant's desire to testify, where the defendant has expressed his desire to testify to the court, or where there appears to be no rational explanation for the defendant's decision not to testify). We have no occasion in the instant case to address that issue because Van De Walker did not allege any exceptional circumstances warranting a departure from the general rule that a trial judge has no duty to conduct a sua sponte inquiry into the voluntariness of a defendant's decision not to testify at trial.
For the foregoing reasons, we conclude that the judgment of the district court should be affirmed.