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United States v. Casel

decided: July 13, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT LYNN CASEL, A/K/A "POLO", BENNIE JAY JACKSON, GLORIA REED, A/K/A LULA MAE REED, HERBERT D. JOHNSON, JR., AND SHARON WILLIAMS, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CR-2-91-00022(4). JUDGE MARY LOU ROBINSON

Before Goldberg, Garwood, and Wiener, Circuit Judges.

Author: Goldberg

GOLDBERG, Circuit Judge:

This appeal arises in the aftermath of a month-long trial involving eight defendants charged with twenty-nine counts of drug-related offenses. Five of the eight defendants appeal their convictions, raising myriad issues. Although we have considered all of the contested issues, we find that only five merit Discussion. Finding no error, we affirm the convictions and sentences of the appealing defendants. We dismiss appellants' claims of ineffective assistance of counsel, without prejudice to those claims later being raised in a habeas corpus proceeding.

FACTS

All five appellants were convicted of possession and distribution of cocaine. Only Reed and Williams were convicted of conspiracy. Williams allegedly was the supplier of the cocaine, selling it to Reed who, with the help of the other appellants, resold it. The government presented documentary evidence and nine witnesses to support its case against appellants. The government relied most heavily on the testimony of a man named Sammy Scott, Jr. ("Scott"), a member of the drug ring who received a lenient plea agreement in exchange for his testimony. Scott's testimony was internally inconsistent and, it now appears, inaccurate in certain respects, though not necessarily mendacious. Scott's testimony was the sole evidence used to convict Casel on count twenty-eight (distribution of cocaine), and Reed on count four (sale of cocaine to a minor). We will address the facts pertaining to each individual appellant in turn, beginning with appellant Williams.

Scott testified that Williams was one of the primary suppliers of the drug ring, selling Reed between one-quarter kilogram and two kilograms of the drug on four occasions. Scott testified that on one or two occasions, he did not actually see Williams in possession of the cocaine Reed allegedly obtained from Williams. However, Scott testified that on other occasions (including one occasion when two kilograms were obtained by Reed), Williams made a point of showing Scott the cocaine. Scott also testified that Williams was aware of the drug ring's operations.

Scott testified that during his involvement with Reed, the leader of the drug ring, he bought cocaine from Reed, saw Reed cooking and refining cocaine, helped Reed sell cocaine to adults and to at least one minor, shared the profits from their cocaine sales, and traveled with Reed to destinations at which Reed obtained cocaine from suppliers like Williams.

Scott testified that Reed went to California to buy a kilogram of cocaine for defendant Johnson, and that when she returned she announced her intention to sell it to Johnson. Later she gave Scott $2,000 as his share of the sale. This transaction formed the basis for count seven. Scott's mother corroborated Scott's testimony that when Reed arrived back in Amarillo from her trip to California, Reed stated she had a kilogram of cocaine in her girdle. The government also introduced documentary evidence showing that Reed had made a trip to California on or around the date which Scott and his mother claimed she had. There was additional evidence that Reed had participated in a "controlled buy."

Scott testified that he was present when Reed and Johnson negotiated the sale of five ounces of cocaine to a minor. Scott watched Reed, Johnson and the minor go to Johnson's home. When Reed returned, Reed told Scott she had just taken care of some business and gave him $2,500, which he presumed was his share of the sale. This sale formed the basis of count four of the indictment.

The government introduced documentary evidence establishing that telephone calls were made to Scott's mother and to appellant Williams from pay phones near the hotel at which Scott claimed that he and Reed stayed during one of their trips to Houston to buy drugs from Williams. Scott's mother corroborated his testimony when she stated that she had personal knowledge of the fact that her son and Reed were involved in drug dealing. Other witnesses testified that Reed had sold cocaine to them or to people they knew. Still others testified that Reed had borrowed money from them in order to purchase cocaine from her sources.

Scott agreed to cooperate with the government prior to the time at which Reed was indicted. During this period, some of Scott's conversations with Reed were audiotaped, including some in which Reed discussed the drug ring's operations and her ability to recognize cocaine of various qualities. These audiotapes were later played for the jury.

Scott also testified against Johnson. As noted above, Scott testified that Johnson assisted Reed in the sale of cocaine to a minor, and on at least one occasion delivered cocaine to Scott's mother's store. The government introduced evidence of many purchases and sales of cocaine by Johnson during the period 1986-90,*fn1 evidence of Johnson's state court conviction for possession of cocaine in 1987, and cocaine seized from Johnson's home with a search warrant.

Several witnesses testified to Jackson's role in buying and selling drugs for the drug ring. Evidence was produced to show that Jackson had sold cocaine to an undercover government agent. A witness named Teresa Watts testified that she sold cocaine for Jackson. Watts claimed that Jackson tried to cajole (if not coerce) her into testifying that she did not sell drugs for him. While she admitted Jackson did not harm her or explicitly threaten her physically, she testified that he doggedly pursued her to various places she frequented in order to encourage her to lie to the police.

Scott claimed that Casel sold cocaine to a group of five people in January, 1991. Then he changed his story and said the date of the sale was January, 1990. Scott named the five alleged buyers; when two of the alleged buyers were called as defense witnesses, they denied purchasing cocaine from Casel. The other three alleged buyers were not called as witnesses by either the government or the defense. It was later discovered that one of these alleged buyers had been incarcerated at the time of the alleged sale. Additional testimony regarding Casel's involvement in the drug ring included two witnesses' testimony that they had purchased cocaine from Casel on numerous occasions, and Mrs. Scott's testimony that one of the cocaine orders she placed with Johnson was actually filled by Casel, who brought the cocaine to the liquor store operated by Mrs. Scott.

After a month-long jury trial, Casel was acquitted of one count of conspiracy, but was found guilty of one count of distribution of cocaine. Johnson was acquitted on one count of conspiracy, and found guilty on two counts of possession of cocaine with intent to distribute, two counts of distribution of cocaine (including one count for distribution of cocaine to a minor), one count of continuing criminal enterprise (drug trafficking), and five counts of money laundering. Jackson was acquitted on one count of conspiracy and one count of using a firearm during a drug trafficking crime, but was found guilty of three counts involving distribution of cocaine, one count of continuing criminal enterprise (drug trafficking), and one count involving obstruction of Justice. Reed was acquitted on one count of distribution of cocaine and another count of possession of cocaine with intent to distribute, but was found guilty of one count of conspiracy to distribute and conspiracy to possess cocaine with intent to distribute, one count of distribution of cocaine to a minor, one count of distribution of cocaine (to an adult), and four counts of distribution and possession of cocaine with intent to distribute. Williams was convicted on one count of conspiracy and two counts of distribution and possession with intent to distribute cocaine.

ANALYSIS

1.

Whether the evidence was sufficient to support the convictions of Casel, Reed, ...


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