908 F.2d 752 (11th Cir. 1990), 89-8181, United States v. Teague

Docket Nº:89-8181.
Citation:908 F.2d 752
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald TEAGUE, Defendant-Appellant.
Case Date:August 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 752

908 F.2d 752 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Donald TEAGUE, Defendant-Appellant.

No. 89-8181.

United States Court of Appeals, Eleventh Circuit

August 8, 1990

Page 753

William A. Morrison, Jones, Morrison & Womack, P.C., Atlanta, Ga., for defendant-appellant.

Gerrilyn Brill, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before CLARK, Circuit Judge, RONEY [*], Senior Circuit Judge, and ATKINS [**], Senior District Judge.

CLARK, Circuit Judge:

Defendant Donald Teague appeals the district court's denial of his motion for a new trial. Teague was convicted by a jury of one count of attempt to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and one count of using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). Teague contends that the district court erred in holding that he was not denied his Sixth Amendment right to testify in his own behalf at trial and, alternatively, that his counsel was not ineffective for advising him not to testify. Teague also argues on appeal that the district court erred in denying his motion for acquittal, arguing that the evidence presented at trial was insufficient to convict him. We reverse.

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The evidence presented at trial shows that the criminal charges against Teague arose from the following occurrence. On August 15, 1988, an undercover Drug Enforcement Administration (DEA) agent received a page on his digital beeper from Kenneth Patterson. During several subsequent phone conversations with the agent, Patterson communicated his desire to buy a large quantity of marijuana, and the two men reached an agreement whereby the agent would sell 75 pounds of marijuana to Patterson for $700 per pound. The agent agreed to deliver the 75 pounds in exchange for an initial payment from Patterson of $35,000 and a final payment a few days later of $17,500. The two men eventually agreed to complete the deal on August 17, 1988.

Prior to August 15, 1988, Kenneth Patterson had hired Donald Teague to assist him in completing renovation work on Patterson's mother's home in Atlanta, Georgia. On the morning of August 17, Patterson and Teague made two trips away from the house. On the first trip they went to the hardware store, and then to a bait shop to buy beer. On the second trip they returned to the bait shop to buy ice. Patterson testified that at one of the stops at the bait shop before he got out of the truck he removed a handgun from a brown bag that was sitting in between himself and Teague. He testified that he placed the handgun on the bench seat, and removed some money from the bag. Shortly after their return from the second trip, Patterson called out to Teague to get in the truck with him, and the two men drove off. Patterson testified at trial that, either before they got in the truck, before they started out of the driveway, or soon after they left the driveway, Teague asked him where they were going. Patterson testified that he told Teague that he was going to "check out some herbal." The two men then drove to the parking lot of a restaurant, where Patterson had previously arranged to meet with the DEA agent.

Once in the parking lot, Patterson got out of the truck and talked with the agent at the back of the truck. Teague remained seated in the truck during this conversation. The agent asked Patterson who Teague was, and Patterson told him he was his partner. The two men walked back toward the cab of the truck, Patterson got in the driver's seat, and the agent remained outside. The agent then talked to the two men through the driver's side window. The agent testified that he asked Teague if he was Patterson's partner, and that Teague responded affirmatively. The agent testified that he then reviewed the terms of the deal, expressing some concern about Patterson's ability to come up with the additional $17,500 in a few days. The agent testified that Teague told him not to worry, that Patterson was trustworthy. The agent then asked to see the $35,000 Patterson had agreed to bring.

The agent testified that it was not until this point that he saw Patterson remove the handgun from the bag and place it on the seat. The agent then leaned into the cab and flipped through the bundles of money, giving the appearance that he was checking to see that it was all there. The agent then suggested that Patterson accompany him on foot to his car to see the marijuana. The agent also testified that he overheard Patterson and Teague discussing how they would accomplish the transfer of the marijuana from the agent's car to theirs. Patterson got out of the truck, leaving the handgun on the seat, and followed the agent across the parking lot. At this point the agent gave a pre-arranged arrest signal, and Patterson and Teague were arrested.

A federal grand jury returned a three-count indictment against both men for conspiring to possess marijuana with intent to distribute, attempt to possess marijuana with intent to distribute, and aiding and abetting each other in possession of a firearm in connection with a drug trafficking offense. Patterson entered into a plea agreement with the government, but Teague maintained his innocence. The Director of the Federal Defender Program for the Northern District of Georgia was appointed to defend Teague. She met with him three

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times prior to trial, in addition to talking with him numerous times by telephone. At the hearing held on Teague's motion for a new trial, she testified that Teague made it known to her from the very beginning that he wanted to tell the jury his side of the story. During their second meeting, she conducted a mock direct and cross-examination with him. She testified that during this practice he became very emotional, blurted out answers before she completed the questions, and cried throughout most of it. Based on this experience, she decided that Teague would not be a good witness. She testified that although she felt the jury would perceive him as "truthful, open, and very sincere," R3-19, she was afraid that he would not listen to the questions, and would let himself get twisted around by the prosecutor under cross-examination.

She also testified that she told him that he had the right to testify, and that she was not ruling it out entirely, but thought they should wait to see how the evidence developed at trial before making a final decision. During this meeting, she did not know whether Patterson would testify for the prosecution or for Teague, and she felt that they should wait to see whether Teague's testimony was necessary before making a final decision as to whether he would testify.

At the trial, it turned out that Patterson elected to testify for Teague and in many respects his testimony was favorable to Teague. Patterson testified that he did not tell Teague about the quantity of "herbal" or the amount of money involved, that Teague was not in on the deal in any way, and that, although Teague did not realize it at the time, he had asked Teague to ride along for his own protection because he had never dealt with the agent before. He testified that when he told the agent that Teague was his partner he was lying because he thought the agent would back out on the deal if he thought that someone was present who wasn't "in on" the deal. According to Patterson, other than stating that Patterson was good for the money, Teague did not say anything to the agent. Patterson also testified that the gun was his, and that he often rode with it in the truck. R3-77-112.

However, he did state that Teague saw the gun on the seat when they were at the bait shop, well before they arrived at the restaurant parking lot. During the trial, Teague indicated to his attorney in hushed conversations at the defense table that this testimony, and other testimony by the DEA agent, was false and persisted in wanting to know when he would have his turn to tell his side of the story. Nevertheless, after presenting several character witnesses, and the testimony of Patterson, his attorney announced that the defense rested and court recessed for the day. R2-112. The record shows that it was not until they were leaving that day that his attorney again discussed with him his desire to testify. R3-19-21, R2-112. When he explained that the gun had not been taken out of the bag until the agent asked to see the money, she told him that his testimony wasn't important because the agent had already testified to that version of events, and not to worry about it. R2-17-18. The next day closing arguments were made, and the jury retired to deliberate. R2-112-119. The jury acquitted Teague of the conspiracy charge, but found him guilty of attempt to possess marijuana with intent to distribute, and use of a firearm in relation to a drug trafficking offense.

Teague testified at his motion for a new trial that he would have testified at trial that he thought that when Patterson called to him to get into the truck that they were going to the hardware store to get a drill bit he had told Patterson he needed. Additionally, although he knew Patterson smoked marijuana, he did not know what Patterson meant when he said they were going to check out some "herbal". He also would have testified that he merely nodded at the agent when he asked whether Teague was Patterson's partner, and that he did not say anything else to the agent. He would have testified that the agent and Patterson talked "figures", but that he did not know from their conversation that they were talking about marijuana. R3-33-35.

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  1. Sufficiency of the Evidence

    We turn first to Teague's...

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