U.S. v. Webber

• Decision Date: 16 December 1999
• Docket Number: No. 98-1708,V,PLAINTIFF-APPELLE,DEFENDANT-APPELLANT,98-1708
• Citation: 208 F.3d 545
• Parties: (6th Cir. 2000) UNITED STATES OF AMERICA,VINCENT WEBBER, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 545

208 F.3d 545 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

VINCENT WEBBER, DEFENDANT-APPELLANT.

No. 98-1708

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 16, 1999

Decided and Filed: March 31, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 95-80116--Gerald E. Rosen, District Judge. [Copyrighted Material Omitted] Michael R. Mueller (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Gerald L. Gulley, Jr. (briefed), Baker, McReynolds, Byrne, O'Kane & Shea, Knoxville, TN, Otis H. Stephens (argued), University of Tennessee, Knoxville, Tennessee, for Defendant-Appellant.

Vincent Webber, Pro se.

Before: Ryan and Norris, Circuit Judges; Nugent,^* District Judge.

OPINION

Nugent, District Judge.

Defendant Vincent Webber appeals his convictions and sentence on count one for conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846, counts two and three for distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), and count four for aiding and abetting distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant claims his right to testify on his own behalf was unconstitutionally denied. Defendant also alleges that there was insufficient evidence for the jury to convict him on count four of the indictment. For the reasons that follow, we AFFIRM the convictions and sentence.

Factual and Procedural Background

On November 22, 1994, Defendant Vincent Webber met with Drug Enforcement Administration undercover agent Robert Strickland and a cooperating informant at Starters Lounge in Detroit, Michigan. Agent Strickland and the cooperating informant were there to purchase one ounce of crack cocaine (cocaine base) from Defendant. This transaction had been arranged through several telephone conversations between the cooperating informant and Defendant. After meeting Agent Strickland and the cooperating informant, Defendant paged his source, Tujuan Johnson. Shortly thereafter, Mr. Johnson entered the lounge and proceeded to the restroom, followed by Defendant and Agent Strickland. Agent Strickland purchased 20 grams (about two-thirds of an ounce) of crack cocaine from Mr. Johnson for $1,100 dollars. Mr. Johnson paid Defendant $50 dollars as a "transaction" or referral fee. Agent Strickland and Defendant agreed to talk later in order to set up another transaction.

On December 5, 1994, Agent Strickland called Defendant in order to purchase another ounce of crack cocaine. Defendant told him that the price would be $1,100 dollars and said that he wanted to make more than $50 dollars for this transaction. Agent Strickland agreed to pay him an additional $50 dollars, over and above the $50 dollars that he would receive from Mr. Johnson. Defendant, Agent Strickland, and Mr. Johnson met later that day at the back of Starters Lounge, where Agent Strickland purchased 21.4 grams of crack cocaine from Mr. Johnson for $1,100 dollars. Mr. Johnson paid Defendant his $50 dollar transaction fee. Agent Strickland then spoke to Mr. Johnson about purchasing larger quantities of crack cocaine from him directly. Mr. Johnson told Agent Strickland to get his pager number from Defendant and use Defendant's code. Before leaving the bar, Agent Strickland paid Defendant the extra $50 dollars as promised. In sum, Defendant made $100 dollars for his part in the transaction.

On December 8, 1994, Agent Strickland spoke to Defendant and his sister, Mary Ann Webber, several times in order to get Mr. Johnson's pager number from Defendant. Agent Strickland visited Defendant on December 12, 1994, while Defendant was hospitalized at a Trenton, Michigan, hospital, in a further attempt to get the pager number and code. Defendant provided Agent Strickland with Mr. Johnson's pager number in exchange for $100 dollars. Agent Strickland then called Mr. Johnson from the hospital, arranging to purchase two ounces of crack cocaine the next day. After completing the call, Agent Strickland paid Defendant the agreed-upon $100 dollars for the pager number and code. On December 13, 1994, Agent Strickland met Mr. Johnson at Starters Lounge and purchased 41.6 grams of crack cocaine for $1,940 dollars.

A federal grand jury returned a four-count indictment against Defendant, Mary Ann Webber, and Tujuan Johnson on December 19, 1995. Count one charged all three with conspiracy to possess with intent to distribute cocaine base from November 21, 1994, to December 13, 1994, in violation of 21 U.S.C. § 846. Count two charged Defendant and Mr. Johnson with distribution of cocaine base on November 22, 1994, in violation of 21 U.S.C. § 841(a)(1). Count three charged Defendant and Mr. Johnson with distribution of cocaine base on December 5, 1994, in violation of 21 U.S.C. § 841(a)(1). Count four charged Defendant and Mr. Johnson with the distribution, and aiding and abetting the distribution, of cocaine base on December 13, 1994, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Defendant was arrested on February 14, 1995. He pled not guilty. Prior to trial, the trial court granted Defendant's Motion to Sever his trial from that of the other defendants¹. Defendant's jury trial began on November 14, 1997. Prior to the conclusion of the government's case, in a discussion regarding jury instructions that took place after the jury had been excused for lunch, Defendant's counsel, Mr. Curtis Williams, stated that the defense wanted an instruction on entrapment. Defendant's counsel also indicated that Defendant was going to testify. The following colloquy took place in open court and on the record:

THE COURT:... [T]here's an instruction on entrapment. I haven't heard the defense raise the issue of entrapment.

MR. WILLIAMS: We will, your Honor.

THE COURT: You're going to raise entrapment?

MR. WILLIAMS: Yes.

THE COURT: Okay. Well then, we'll leave that in. And you indicated the defendant is still intending to testify?

MR. WILLIAMS: Yes, he is, your Honor.

THE COURT: Okay. Have you apprised the defendant - I ask this not to try to chill his or in any way inhibit him from testifying, if he wants to, but have you informed him that if he testifies and if he's convicted and the government moves for an enhancement based on perjury, that I'll have to make a decision about that and that would have the effect of enhancing his sentence?

MR. WILLIAMS: We have not talked specifically about that. We will.

THE COURT: You should tell him about the ramifications about that. I wouldn't want him to be surprised -

I can tell you. Mr. Weber [sic], let me just tell you. Under fairly recent Supreme Court law and under the guidelines, if a defendant takes the stand and testifies and is subsequently convicted, and if the government moves for an enhancement, meaning an increase in the sentence based on perjury by the defendant during his testimony at trial, I have to make a judgment as to whether or not the defendant's testimony was in fact perjurious and if it was, then I have to enhance. I don't tell you this to try to inhibit you from testifying. If you want to testify, obviously that's your prerogative. I tell you this only so that you understand that if you testify, and you're subsequently convicted and if the government moves for an enhancement based on perjury, then I'll have to make a judgment about that, and then if I find you perjured yourself, then your sentence would be enhanced. Do you understand that?

THE DEFENDANT: Yes, I do, your honor.

THE COURT: All right.

At the close of the government's case, Defendant's counsel, at a sidebar discussion, moved to dismiss count four of the indictment pursuant to Federal Rule of Civil Procedure 29, alleging there was insufficient proof to sustain a guilty verdict regarding the December 13, 1994, purchase of crack cocaine. The trial court denied the motion. The following dialogue took place at that sidebar and on the record:

MR. WILLIAMS: Your Honor, first thing I wanted to mention was that we've changed our approach. We no longer want the entrapment instruction given. Also [Defendant] is not going to testify.

THE COURT:... All right. He's not going to testify?

MR. WILLIAMS: No, he's not going to testify.

THE COURT:... What do you want to do? It's only 2:30.

MR. WILLIAMS: We're going to rest.

THE COURT: Do you want to go right into closing?

MR. WILLIAMS: Can you give us about fifteen minutes to get organized a little bit? I didn't expect to get there this fast.

THE COURT: You may want to have Mr. Weber [sic] put on the record that he's decided not to testify, after we send the jury out.

MR. WILLIAMS: Okay. Very well.

THE COURT: You may want to do that. It would probably be a good idea.

MR. WILLIAMS: I think so. (Sidebar concluded.)

Immediately after the sidebar concluded, the following took place in open court, on the record, and in the presence of Defendant.

THE COURT: All right, the government rests, Mr. Williams.

MR. WILLIAMS: The defense rests, your Honor.

(Jury exited at 2:32 p.m.)

THE COURT: Okay, about 15, 20 minutes?

Okay, in that case since Mr. Weber [sic] is not testifying, I'm going to take out the instructions on the defendant's testimony as well as the impeachment of defendant by prior convictions. And I should probably take out, as well, the entrapment instruction.

MR. WILLIAMS: Yes, your honor.

THE COURT: Have you had a chance to review the instructions, Mr. Williams?

MR. WILLIAMS: Yes, I've had an opportunity to review the instructions and I have discussed them with Mr. Weber [sic], your Honor.

THE COURT: Are they satisfactory now with these changes that we discussed before lunch break and now with the changes that I'm making now, to take out the entrapment instruction, the instruction on the defendant's testimony and the impeachment by defendant by prior convictions.

MR. WILLIAMS:...