44 F.3d 1271 (5th Cir. 1995), 94-40016, United States v. Washington

Docket Nº:94-40016.
Citation:44 F.3d 1271
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jerry WASHINGTON and Herbert Edward James, Defendants-Appellants.
Case Date:February 02, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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44 F.3d 1271 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Jerry WASHINGTON and Herbert Edward James, Defendants-Appellants.

No. 94-40016.

United States Court of Appeals, Fifth Circuit

February 2, 1995

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[Copyrighted Material Omitted]

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Rife Kimler (Court-appointed), Beaumont, TX, for appellant Washington.

Keith E. Jagmin, Dallas, TX, for appellant James.

John M. Bales, Melissa Baldo, Asst. U.S. Attys., Bob Wortham, U.S. Atty., Beaumont, TX, for appellee.

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Appeals from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this direct criminal appeal, Defendants-Appellants Herbert James and Jerry Washington complain that the district court committed several errors, some during their trial and others during their sentencing on numerous counts arising from their involvement in a drug distribution ring. Finding no error, we affirm their convictions and sentences in all respects.



James ran a drug distribution ring (the "Ring") from his home in Port Arthur, Texas. To assist in administering various aspects of his business, James retained several "employees," including Washington, Leonard Provost, and Michael Jones. Although the Ring primarily sold small quantities of cocaine base ("crack") to users in that area, over the years it developed a relatively large clientele.

The Ring was finally "busted" as the result of a sting operation orchestrated by the Jefferson County Narcotics Task Force (the "Task Force") which comprised both local and federal enforcement authorities, including the Drug Enforcement Agency ("DEA"). During several months of surveillance and undercover work, the Task Force was able to gather evidence sufficient to constitute probable cause to conclude that James, Washington, and Provost were involved in a conspiracy to possess and distribute crack.

Although the Task Force had long suspected that the Ring sold crack from James' home, authorities had been unable to obtain sufficient evidence to arrest James and his cohorts. The Task Force's luck began to change in May 1992, when a confidential informant ("CI") who used to traffick in narcotics herself contacted a Task Force member, Detective Robert Cartwright, offering information regarding the Ring. But even after obtaining this information, the Task Force still lacked sufficient evidence to arrest and prosecute members of the Ring.

In July 1992, the Task Force obtained another tip from an informant, 1 reporting that the informant had recently observed James selling cocaine from his residence. Based on this information, the police obtained a warrant and searched James' residence, recovering several weapons, ammunition for those weapons, and a clear plastic baggie containing a powdery residue that subsequent tests revealed to be cocaine. Although the police seized the weapons and the baggie, they made no arrests at that time.

In September 1992, the CI again called the Task Force and offered additional information regarding the Ring. This time, Cartwright put the CI in contact with DEA Special Agent Maurice King, another member of the Task Force. After speaking with Agent King, the CI agreed to participate in an undercover sting operation designed to infiltrate the Ring.

The CI knew James and believed that she could convince him to sell crack directly to Agent King. The CI's husband had a nephew living in Louisiana who was roughly the same age as Agent King and who was on probation following his conviction for trafficking in narcotics. The plan was to have Agent King pose as the nephew, with the CI explaining to James that her husband's nephew had recently moved from Louisiana and was going to help her sell crack in Port Arthur.

In late October 1992, the plan was set in motion when the CI and Agent King went to James' house to purchase crack. As planned, the CI approached James and offered to purchase a quarter ounce of crack. Posing as the nephew, Agent King waited in a car in front of James' residence until the CI summoned him to come inside so that she could introduce him to James and his associates, Washington and Provost. After presenting Agent King as her husband's nephew, the CI explained that in the future he

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would be the person who would purchase and pick up crack for her.

Over the next month or so, the CI and Agent King returned to James' residence several times to order and pick up crack from the Ring. All told, they paid for more than 100 grams of crack, actually taking delivery of over half of that amount. In every instance, the order for or the delivery of the crack, or both, took place in either the garage or the kitchen of James' home.

One objective of the investigation was to have Agent King deal directly with James and other members of the Ring rather than having all transactions funnelled through the CI. Early in the investigation Agent King had completed a deal with James' assistant, Provost; it was not until several transactions later (the one that turned out to be the last successful transaction) that Agent King was able to obtain crack directly from James.

Once Agent King was able to deal directly with James, the focus of the Task Force investigation shifted to determining whether the Ring could supply a larger quantity of crack. Up to that point, neither the CI nor Agent King had placed an individual order for more than one-half ounce of crack, so Agent King and the CI set out to determine whether James could supply at least two ounces of crack. The CI offered James $1200 for that amount, and James accepted the offer.

At this point, however, the undercover plan went awry. Agent King stopped by James' house to pay for the two ounces of crack, but mistakenly gave James $1600 rather than the $1200 negotiated by the CI. As a result, James became suspicious and confronted the CI, telling her that he thought Agent King was a policeman. Concerned that Agent King's cover had been blown, the Task Force decided to end its undercover operation and arrest the members of the Ring on the strength of evidence accumulated to date.

The Task Force obtained warrants to arrest James and to search his home; and, on December 7, the police entered and searched James' residence. Even though the search yielded no narcotics, the Task Force did recover numerous weapons and abundant evidence of drug trafficking activity including a portable scale, several radio scanners capable of monitoring police frequencies, and a soda can containing a secret compartment in which narcotics could be hidden. James returned to his home while the search was in progress, whereupon he was taken into custody and advised of his rights. Washington and Provost were arrested later.

In January 1993, a grand jury returned a sixteen-count indictment (subsequently superseded by an eighteen-count indictment) that charged James, Washington, and Provost as codefendants in a conspiracy to distribute and possess crack. 2 Additionally, James was charged with (a) four counts of possession with intent to distribute crack, 3 (b) one count of attempting to possess with intent to distribute crack, 4 (c) five counts of use of or carrying a firearm during and in relation to a drug trafficking crime, 5 and (d) three counts of possession of a firearm by a convicted felon. 6 In addition to the conspiracy count, Washington was charged with use of or carrying a firearm during and in relation to a drug trafficking crime, 7 and Provost was named in one count of possession with intent to distribute crack. 8

Provost began to cooperate with the Task Force almost immediately after he was taken into custody. He agreed to plead guilty to one count of possession with intent to distribute crack and to cooperate with the government,

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in exchange for which the government agreed to dismiss his conspiracy charge.

At trial, the government introduced an overwhelming amount of evidence establishing James' and Washington's guilt. In addition to substantial physical evidence, the government proffered numerous witnesses, two of whom--Provost and Michael Jones--were former members of the Ring. The CI and Agent King also testified regarding the crack purchases they had made from the Ring at James' residence.

Based on this and all other evidence, the jury found James and Washington guilty on all counts. The district court sentenced James to a total of life imprisonment plus twenty-five years (followed by a period of supervised release), and Washington was sentenced to a total of 295 months imprisonment (followed by a period of supervised release). After sentencing, Washington moved for a new trial charging that the government did not produce certain evidence that would have tended to impeach the credibility of two government witnesses--the CI and Cartwright. The court considered arguments from each counsel as to the importance of this newly discovered information, then denied Washington's motion for a new trial. This appeal followed, with Washington proceeding in forma pauperis.



On appeal, both James and Washington raise numerous points of error. We address seriatim those having facial merit. 9

  1. JAMES

    1. Right of Allocution

    James contends that the district court failed to afford him the right of allocution: He insists that the judge did not ascertain directly from James whether he wished to exercise his right personally to address the court. This omission, contends James, mandates that we remand for resentencing so that he can exercise this "absolute" right.

    Federal Rule of Criminal Procedure 32(a)(1)(C) requires that a...

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