892 F.2d 1494 (10th Cir. 1990), 87-2461, United States v. Bowie

Docket Nº:87-2461, 88-2374.
Citation:892 F.2d 1494
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Millard BOWIE, Defendant-Appellant.
Case Date:January 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1494

892 F.2d 1494 (10th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Millard BOWIE, Defendant-Appellant.

Nos. 87-2461, 88-2374.

United States Court of Appeals, Tenth Circuit

January 8, 1990

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[Copyrighted Material Omitted]

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Clyde Kirk (Gene Stipe, with him on the brief) of Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Oklahoma City, Okl., for defendant-appellant.

Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before LOGAN, SETH, and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Millard Bowie was convicted by a jury on one count of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and five counts of using a telephone to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b). On appeal, defendant challenges his conviction on the following grounds: (1) the trial court erred in denying defendant's motion for judgment of acquittal at the close of the government's case; (2) the government improperly vouched for and bolstered the credibility of its witnesses; and (3) defendant was denied his Sixth Amendment right to effective assistance of counsel because of his trial counsel's conflicts of interest.

I

At the close of the government's case-in-chief, defendant demurred to the evidence, which we construe as a motion for judgment of acquittal under Fed.R.Crim.P. 29(a). See Corbin v. United States, 253 F.2d 646, 647 (10th Cir.1958). After the district court denied the motion, defendant presented evidence but failed to renew his motion at the close of all evidence. Defendant now contends that the district court erred in denying his motion.

This circuit follows the waiver rule, whereby

"a defendant who moved for a judgment of acquittal at the close of the government's case must move again for a judgment of acquittal at the close of the entire case if he thereafter introduces evidence in his defense because, by presenting such evidence, the defendant is deemed to have withdrawn his motion and thereby to have waived any objection to its denial."

United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978); see also United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). This is of little moment, however, because even if the acquittal motion is renewed at the close of all evidence, we have held that by presenting evidence a defendant waives the right to have the sufficiency of the evidence tested by the government's case alone. E.g., United States v. Alfonso, 738 F.2d 369, 372 (10th Cir.1984); United States v. Guerrero, 517 F.2d 528, 530 (10th Cir.1975). And if no motion for acquittal is made at the close of all evidence, we nevertheless review for plain error under Fed.R.Crim.P. 52(b). See United States v. Parrott, 434 F.2d 294, 295 (10th Cir.1970) (review for plain error despite waiver), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971). When considering the

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sufficiency of the evidence to support the verdict, we have stated the plain error standard in different words, see Gretter v. United States, 422 F.2d 315, 318 (10th Cir.1970) (verdict that is palpably wrong); Maxfield v. United States, 360 F.2d 97, 102 (10th Cir.) (same), cert. denied, 385 U.S. 830, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966); Hughes v. United States, 320 F.2d 459, 460 (10th Cir.1963) (miscarriage of justice), cert. denied, 374 U.S. 966, 84 S.Ct. 483, 11 L.Ed.2d 415 (1964); Corbin, 253 F.2d at 648 (manifest error necessary to prevent a miscarriage of justice), but the standard actually applied is essentially the same as if there had been a timely motion for acquittal. See, e.g., Corbin, 253 F.2d at 648-49 (applying normal substantial evidence standard, although ostensibly reviewing for only manifest error); see also 2 S. Childress & M. Davis, Standards of Review § 9.11, at 65 & § 9.12 (1986) ("[W]aiver of objection to the denial of the motion [for judgment of acquittal] does not alter the appellate standard of review, which remains an independent review of the legal question of sufficiency."); 2 C. Wright, Federal Practice and Procedure § 469, at 675 (2d ed. 1982). The test is this: on the basis of the whole record, "[t]he evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986); cf. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (same standard applicable to habeas cases).

The alleged conspiracy to distribute illegal drugs, primarily cocaine, centered around the activities of three brothers, Benito, Lee Juan, and Claude Bowie, Jr. The defendant is a first cousin of the Bowie brothers. The primary means of distribution was through various "dope houses," which acted as retail outlets. Customers could obtain drugs either by paying cash or exchanging property, usually stolen, for the drugs. The property then would be resold and the proceeds reinvested into the operation.

To obtain a conviction for conspiracy under 21 U.S.C. § 846, the government must establish by direct or circumstantial evidence that (1) a conspiracy existed, (2) the defendant knew at least the essential objectives of the conspiracy, and (3) the defendant knowingly and voluntarily participated in the conspiracy. United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 99, 102 L.Ed.2d 74 (1988). The government need not show that the defendant knew all the details of the conspiracy or all the conspirators, and proof of an overt act in furtherance of the conspiracy is not a necessary element of a § 846 conspiracy. Id. In addition, the defendant's participation in, or connection to, the conspiracy "need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt." Id. (quoting United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980)).

Here, the government proved the existence of the conspiracy beyond peradventure. Several admitted coconspirators testified about the above-described distribution operation and the structure of the organization. Defendant's knowledge of the conspiracy to distribute cocaine was established by reasonable inference from taped telephone conversations, testimony of alleged coconspirators, and testimony of the defendant himself. The government established defendant's participation in the conspiracy in at least three respects. First, there was evidence that defendant distributed cocaine obtained from Claude Bowie or his associates. See, e.g., III R. 32-33, 35-37, 112-13, 131-33; IV R. 63-64, 74-75. Second, there was evidence that defendant dealt in stolen property in connection with the conspiracy, both as a wholesaler and as a procurer. See, e.g., Addendum to Brief of Plaintiff-Appellee, apps. B-E [hereinafter Addendum] (transcript of 10-28-85, 10-30-85, and 11-1-85 telephone conversations); III R. 37-40, 133-37, 157-58; IV R. 90-92. Reasonable inferences from taped

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telephone conversations involving defendant show that defendant discussed the payment for, and distribution of, cocaine with an admitted member of the conspiracy and discussed the acquisition and disposition of stolen property with Claude Bowie. Addendum, apps. A-E (transcript of 10-27-85, 10-28-85, 10-30-85, and 11-1-85 telephone conversations). Third, there was evidence that, in order to avoid suspicion, defendant took title to houses Claude Bowie purchased with proceeds from drug sales, because defendant also had legitimate employment but Claude did not. See, e.g., II R. 19-23; III R. 20-22, 25-26; IV R. 120-22, 138. This evidence was more than sufficient to sustain the conviction on the conspiracy count.

Defendant also alleges that the government failed to produce evidence sufficient to convict him on the five facilitation counts, but does not direct our attention to any deficiency. We have carefully reviewed the record and find it sufficient to support the facilitation convictions.

II

Defendant contends that the government improperly vouched for and bolstered the credibility of certain of its witnesses. The government's first witness, FBI agent John Lanata, testified to the terms of cooperation agreements between the government and several witnesses it used at trial. The defendant objects to those portions of agent Lanata's testimony that refer to the standard provision of all plea or cooperation agreements requiring the individual to provide truthful information. At trial, defense counsel posed no objections to this testimony; therefore, we can disturb defendant's conviction only if we find plain error. See United States v. Young, 470 U.S. 1, 14-20, 105 S.Ct. 1038, 1045-49, 84 L.Ed.2d 1 (1985); Fed.R.Crim.P. 52(b).

A

It is error for the prosecution to personally vouch for the credibility of its witnesses. United States v. Carleo, 576 F.2d 846, 852 (10th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 153, 58 L.Ed.2d 152 (1978); United States v. Ludwig, 508 F.2d 140, 143 (10th Cir.1974); see Young, 470 U.S. at 18, 105 S.Ct. at 1047. Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony. United States v. Dennis, 786 F.2d 1029, 1046 (11th Cir.), modified on reh'g on other grounds, 804 F.2d 1208 (1986), cert. denied, 481 U.S. 1037, 107...

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