U.S. v. Short, 98-30495

• Decision Date: 15 July 1999
• Docket Number: No. 98-30495,98-30495
• Citation: 181 F.3d 620
• Parties: (5th Cir. 1999) UNITED STATES, Plaintiff-Appellee, v. MICHAEL SHORT, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 620

181 F.3d 620 (5th Cir. 1999)

UNITED STATES, Plaintiff-Appellee, v. MICHAEL SHORT, Defendant-Appellant.

No. 98-30495

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 15, 1999

Order Denying Rehearing Aug. 11, 1999.

Appeal from the United States District Court for the Eastern District of Louisiana

Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Michael Short appeals his conviction on a number of counts arising out of his leadership of a drug-distribution ring. For the reasons that follow, we vacate Short's conviction on Count 1 and affirm the remaining counts of his conviction.

I.

Michael Short was the leader of a substantial drug-dealing organization named after its principal distribution point in New Orleans, the intersection of Phillip Street and Clara Street. Numerous witnesses testified about Short's management of the Phillip and Clara drug ring in 1995 and 1996. For example, Lloyd Locke testified that he sold heroin for Short; Gregory Cooks testified that he sold heroin for Short and acted as Short's enforcer.

Law enforcement officers also testified as to Short's involvement in the drug trade. For example, Officer Tim Bayard of the New Orleans Police Department testified that on September 15, 1995, he observed Short leaving 4507 S. Prieur Street carrying a bag. When Short noticed Bayard, he threw the bag away. The police retrieved the bag and found that it contained $15,000 cash. The police seized the money after drug dogs alerted to the presence of illegal substances on it. Officer Jake Schnapp testified that on May 14, 1995, he and his partner observed Short give a brown paper bag to Cooks. When Cooks saw the police, he threw the bag to the ground. The police detained both men. While they did so, Yvonne Cooks picked up the bag and began walking into a house at 903 Fourth Street. The police apprehended Ms. Cooks and searched the bag. The bag contained $5,000 cash. Morever, a search of the 903 Fourth Street residence found five clear plastic bags of off-white powder (later determined to be heroin) and a loaded pistol. The prosecution also presented numerous recordings of phone conversations between Short and others directly implicating Short in the drug trade.

For the purposes of this appeal, two additional events are important: the search of the car driven by Lerman Robinson and the murder of Derrick Hubbard.

On June 25, 1996, Lerman Robinson was driving his mother-in-law's Pontiac. Short, who had been riding in a Jeep Cherokee with Cooks and John Bryant, waved Robinson down. Robinson stopped the Pontiac in an intersection so that Short could enter the car. Officer Raymond Veit of the New Orleans Police Department saw Robinson's Pontiac blocking the intersection and pulled the car over. Officer Veit asked the occupants to step out of the car and conducted routine pat downs. He felt a large bulge in Short's pocket, which turned out to be $891 cash. Veit had previously arrested Short on a narcotics-related offense, so he called a canine officer to determine whether the money contained traces of narcotics. The drug dog alerted to the money. Office William Kingman, an ATF agent assigned to a local drug task force, assisted Veit. When Kingman looked inside the Pontiac, he saw three cellular phones. He picked up the phones, removed their backs, and followed the instructions on how to retrieve the number assigned to the phones. One of the numbers Kingman obtained was (404) 694-7126, which he passed on to a DEA agent. The drug task force later obtained a warrant to tap this phone. This wire tap was the source of much of the evidence that led to Short's conviction.

The second important event was the murder of Derrick Hubbard, who was acting as an informant for the DEA. The Government presented evidence that Hubbard had been a drug dealer and an enforcer for Short's organization. Short and Hubbard had a falling out because Hubbard had been stealing drugs and money from Short. On the day that Hubbard was murdered, Short threatened to kill Hubbard after seeing him at the Phillip and Clara intersection. After making this threat, Short had a conversation with Troyel Ross and Kevin Brown. Ross then shot and killed Hubbard in front of a number of eyewitnesses. Ross left the scene with Cooks. Cooks went to a pay phone at the corner of Phillip and Clara. Short called Cooks at that pay phone and exclaimed, "We got that bitch. That bitch dead. We got that bitch." A little while later, Short gave Ross $2,500, stating, "This is a little something for handling that."

Short and a number of coconspirators were charged in a multicount indictment. Short was charged in ten counts. ¹ He was found guilty on all counts. The district court imposed four concurrent life sentences on Counts 1-4, plus a mandatory additional five-year prison sentence on Count 5, the firearm offense. The district court imposed additional prison terms on the remaining counts, but these terms all run concurrently with the life sentences. Short now appeals.

II.

Short argues eleven points of error on appeal. We address these points in turn.

A.

Short argues first that Agent Kingman violated rights secured by the Fourth Amendment when the agent obtained the telephone numbers assigned to the cellular phones found in the Pontiac being driven by Lerman Robinson. Short argues that because this search was improper, the wire tap of one of the phone numbers discovered in that search was illegal and therefore all the fruits of that wire tap should have been suppressed.

Preliminarily, however, we address the Government's contention that Short does not have standing to assert this argument. Under the precedent of the Supreme Court and this Court, a passenger in an automobile generally lacks standing to challenge a search of that automobile, especially when there is no indication that the items being searched belong to the passenger. See Rakas v. Illinois, 439 U.S. 128, 132-45, 99 S. Ct. 421, 424-30, 58 L. Ed. 2d 387 (1978); United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993); United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992). Short points to no evidence from the search or any legal theory that supports an argument that this general rule does not apply to the search of Robinson's Pontiac and the cellular phones found in that vehicle. Short did not have the phones on his person, nor were the phones in a location that indicated that the phones were his, nor did he indicate to the police that the phones were his. Under the cases cited above, Short does not have standing to challenge the search of Robinson's Pontiac or the cellular phones found in the vehicle. We therefore reject his Fourth Amendment challenge.

B.

Short next argues that the district court erred by refusing to instruct the jury that, in order to find Short guilty of being an organizer, supervisor, or manager of the continuing criminal enterprise, the jurors must agree unanimously as to the identities of at least five of the people being organized, supervised, or managed.

This Court previously rejected this exact argument in United States v. Linn, 889 F.2d 1369, 1374 (5th Cir. 1989). The Supreme Court, however, recently held that a jury must agree unanimously on the three criminal acts forming a series of criminal acts for the purposes of the continuing criminal enterprise statute. Richardson v. United States, 119 S. Ct. 1707, 1712-13 (1999). This holding raises the question of whether this Circuit's precedent that does not require jury unanimity as to the identities of supervisees still stands. In Richardson, the Supreme Court gave us guidance on this issue. Although the Court did not decide whether unanimity is required as to supervisees, the Court distinguished the "supervisor" provision from the "series" provision it found to require unanimity. The Court stated: "Assuming without deciding, that there is no unanimity requirement [as to supervisees], we [] find [that provision] significantly different from the provision before us. They differ in respect tolanguage, breadth, tradition, and the other factors we have discussed." Id. at 1713. Thus, although the Supreme Court in Richardson did not decide the issue, it gave no indication that a jury finding of unanimity as to supervisees is required. In other words, Richardson did not suggest that our precedent is no longer valid. Indeed, the Richardson opinion implied just the opposite. Because this panel is bound by the precedent of previous panels absent an intervening Supreme Court case explicitly or implicitly overruling that prior precedent, we are bound by our decision in Linn. For that reason, we reject Short's contention that the district court erred by refusing his proposed jury instruction requiring unanimity as to the identities of the five people being organized, supervised, or managed.

C.

Short next argues that his counsel made improper statements during closing argument and therefore the district court should have granted him a new trial.

During closing argument, Short's counsel stated,

If you listen to the tapes, if you hear between the lines and read between the lines of the several people who testified out there, you know that bunches of people were selling drugs and they were distributing drugs to numbers of people. Michael Short[] was involved; you've heard that evidence; it can't be denied. But the idea that he was a kingpin relies on the testimony of these men. There was money to be made; they made money. There was money that was earned illegally through the drug trade, but that doesn't make a continuing criminal enterprise.

. . .

Ladies and gentlemen of the jury, the bottom level of this case is the conspiracy charge. And that is, for me, the most difficult thing to argue because the evidence is so strong; . . . but they were basically independent operators who, from time to time, came in contact with and worked with some other pe...