U.S. v. Sylvester

• Decision Date: 11 June 1998
• Docket Number: No. 96-60796,96-60796
• Citation: 143 F.3d 923
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark SYLVESTER, Leon Brown, and Willie Earl Culley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

143 F.3d 923

UNITED STATES of America, Plaintiff-Appellee, v. Mark SYLVESTER, Leon Brown, and Willie Earl Culley Defendants-Appellants.

No. 96-60796.

United States Court of Appeals Fifth Circuit.

June 11, 1998.

Victoria May, Asst. U.S. Atty., Billups S. Allen, Jackson, MS, for Plaintiff-Appellee.

John Mark Colette, Jackson, MS, for Willie Earl Culley.

Merrida P. Coxwell, Charles Richard Mullins, Keyes, Danks & Coxwell, Jackson, MS, for Leon Brown.

Orbie Stanley Craft, Brandon, MS, for Mark Sylvester.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mark Sylvester, Leon Brown, and Willie Culley appeal their convictions and, in Brown's case, the sentence, for assorted drug-related crimes. We remand for a hearing on their jury tampering claim and reject the remainder of their challenges.

I.

A.

Culley ran an automotive shop in Jackson, Mississippi. Following a lengthy investigation the government concluded that he also presided over a cocaine distribution network that bought the drug in Houston and sold it in Jackson. Brown, the government charged, was one of Culley's couriers who often accompanied Culley on his trips to Houston to purchase cocaine. Sylvester worked at Culley Automotive and allegedly supplemented his income by dealing cocaine on the side.

B.

The three appellants and eleven others were charged in a thirty-eight-count indictment with sundry drug-related offenses. ¹ Count 1 charged all three with conspiracy to possess with intent to distribute, conspiracy to distribute, and conspiracy to use a communications facility (the telephone) in furtherance of a drug trafficking crime, in violation of 21 U.S.C. § 846. ² Count 2 charged Culley with engaging in a continuing criminal enterprise under 21 U.S.C. § 848. Counts 3 through 38 alleged specific dates and times that the appellants used a telephone to facilitate the conspiracy to possess with intent to distribute, in violation of 21 U.S.C. § 843(b).

Culley, Brown and Sylvester were tried together. The government's evidence fell into two main categories. First was the testimony of six fact witnesses, some of whom were plea-bargaining co-conspirators. Second was a series of taped phone conversations intercepted from the phone at Culley Automotive and from Culley's personal cellular phone; in all, the government taped nearly two hundred calls over a month-long period. During the recorded conversations, the appellants never used the words "cocaine" or "crack," but spoke, the government claimed, in code. The appellants did not testify, and only Culley chose to call witnesses.

The jury found Culley guilty of conspiracy to distribute cocaine and to use a communications facility in furtherance of a drug trafficking crime (count 1); of participating in a continuing criminal enterprise (count 2); and of seventeen of the remaining thirty-six counts for using the phone in furtherance of the conspiracy. The jury found Brown guilty of conspiracy to distribute crack cocaine (count 1) and Sylvester guilty of two uses of the phone in furtherance of the conspiracy.

II.

Five issues are before us. First, all three appellants claim that the district court erred in issuing supplemental instructions to the jury during deliberations. Second, Culley and Brown argue that a witness's remark constituted an impermissible comment on their failure to testify. Third, Culley and Brown contend that their convictions were not supported by the evidence. Fourth, Brown claims that the district court erred in sentencing him. And fifth, Culley and Brown argue that the district court erred in meeting ex parte with individual jurors to discuss possible jury tampering.

A.

The appellants claim that the district court erred in issuing supplemental instructions to the jury. They lodge two specific complaints: that the court should have, but did not, notify and consult with them in advance; and that the content of the instructions was faulty. "When evaluating the adequacy of supplemental jury instructions, we ask whether the court's answer was reasonably responsive to the jury's question and whether the original and supplemental instructions as a whole allowed the jury to understand the issue presented to it." United States v. Stevens, 38 F.3d 167, 170 (5th Cir.1994).

The supplemental instructions were issued after the district court received a note from the jury, which began deliberating at 4:45 p.m. At 7:23 p.m., it sent the following note: " We cannot agree--Some members will never vote guilty because there is no physical evidence and the word cocaine is never used in the conversations." The court called the jury back to the courtroom but did not notify either side that he had received the note, nor did he warn them that he would be issuing supplemental instructions. He re-read portions of the prior charges concerning the elements of each offense and the definitions of key terms, then added this supplemental instruction:

Now, none of the charges, neither Count 1, nor Count 2, nor Count 3 requires the Government to provide physical evidence, although it may be helpful to you in weighing the Government's case. If you are satisfied by proof beyond a reasonable doubt that the alleged conversations, that the alleged conduct of the defendants amount to a conspiracy, that is, an unlawful agreement as charged in Count 1, then--or excuse me--or if you are persuaded by proof beyond a reasonable doubt that the alleged conversations, the alleged conduct of the defendants amount to the violation of the use of a communication facility as charged in Counts 3 through 38, or if you are persuaded by proof beyond a reasonable doubt that the alleged communications and alleged conduct of Defendant Culley of Count 2 persuades you by reasonable doubt that he violated Count 2, then if you are so persuaded by proof beyond a reasonable doubt with respect to the conversations and conduct, then the Government has proved its case. And then you will find the defendants guilty. If you are not persuaded, then you will find the defendants not guilty.

Finally, the Government's evidence need not show that any defendant ever used the word cocaine if you are satisfied by proof beyond a reasonable doubt that the defendants engaged in coded conversations using substitute words for cocaine instead of the expressed word itself. Your inquiry lies further than determining only what the defendants said. You must determine what they meant by using the words they did.

Now, remember, as the triers of the facts, you, the jury, are tasked with determining the facts here. Whether the Government has proved any of the defendants guilty by proof beyond a reasonable doubt. You may now retire and continue your deliberations. All rise.

The jury returned its mixed verdict at 12:15 a.m. Although defense attorneys were present when the court issued the supplemental instructions, they argue that the court should have notified them--and allowed them input--before speaking to the jury.

1.

The appellants argue that the supplemental instruction constituted an Allen charge. We note at the outset that if the instruction was in fact an Allen charge, the court was under no duty to notify counsel of its intention to issue it; ensuring defense counsel's presence when the charge is read is enough. In United States v. Bright, 588 F.2d 504, 510 (5th Cir.1979), we held that "a trial judge is not required to notify defense counsel of his plan to use [an Allen charge]. If a defendant's attorney is present when the instructions are actually read to the jury and is afforded the opportunity to object, that is sufficient."

Emphasizing the first three words of the jury's note--"we cannot agree"--the appellants claim that the judge's response to this supposed deadlock was error because it did not include the content required of Allen charges, namely an instruction that each juror should adhere to his own honest opinion. Allen charges are creatures of nuance that we have approved under limited circumstances. In United States v. Bass, 490 F.2d 846, 854 (5th Cir.1974), overruled on other grounds, United States v. Lyons, 731 F.2d 243 (5th Cir.1984) (en banc), we observed that "[t]his court has tolerated Allen charges so long as the charge makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and so long as the charge avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial."

While we agree with the appellants that the supplemental instruction was deficient as an Allen charge, we do not agree that it was an Allen charge. Although the jury's note opened with "[w]e cannot agree," the instruction focused on the legal issues raised in the second half of the note rather than on the possible deadlock. Allen charges concern the jury's duty to make good faith efforts to reach a verdict; while the note could have been answered by an Allen charge, the court instead responded through a supplemental instruction aimed at dispelling the legal confusion implicit in the jury's message. In sum, the jury's note invited two possible responses: an Allen charge or a clarifying instruction on the law. The court chose the latter.

2.

Our refusal to characterize the supplemental instruction as an Allen charge does not sink the appellants' argument. In fact, it strengthens their claim in one important respect: Whereas we have been unwilling to require notification of defense counsel before an Allen charge is issued, we are less forgiving with regard to the court's answering legal questions submitted by a deliberating jury.

The court's duty to consult with counsel upon receiving questions from the jury was recognized in Gomila v. United States, 146 F.2d 372 (5th Cir.1944), in which the court...