919 F.2d 969 (5th Cir. 1990), 89-6105, United States v. Wylie

Docket Nº:89-6105.
Citation:919 F.2d 969
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vickie J. WYLIE, Defendant-Appellant.
Case Date:December 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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919 F.2d 969 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Vickie J. WYLIE, Defendant-Appellant.

No. 89-6105.

United States Court of Appeals, Fifth Circuit

December 13, 1990

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Paul Naman, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

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

Before POLITZ, WILLIAMS, and SMITH, Circuit Judges.

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JERRY E. SMITH, Circuit Judge:

Vickie J. Wylie was convicted after a jury trial of conspiracy in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(C) and possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. She received a sentence of 63 months consecutively on each of the charges and a fine of $250,000.

On appeal, Wylie challenges both her conviction and sentence, arguing (1) that the court's acceptance of a co-conspirator's altered indictment, which no longer mentioned Wylie, constituted a de facto dismissal of her from the indictment; (2) that the affidavit in support of the search warrant lacked probable cause; (3) that the district court made several erroneous evidentiary rulings at trial; (4) that Wylie was denied her sixth amendment right to a fair and impartial jury because of the court's use of overlapping juries; and (5) that the upward departure in her sentence was impermissible. Finding no error, we affirm.


On March 11, 1988, Benjamin Williamson mailed a package from a pharmacy in Buna, Texas, that acted as a pickup service for United Parcel Service (UPS). It was addressed to Ricky Alexander in Minnesota. While Williamson claimed that the package contained coffee, the UPS became suspicious and later opened it to find several packets of cocaine. The UPS supervisor turned the package and its contents over to the Beaumont, Texas, Police Department, which in turn gave the items to the Drug Enforcement Administration's (DEA) office there.

The DEA then sent the package to its office in Minnesota. An agent from the Minnesota office received the package and called the Minnesota forwarding address, a motel, in order to arrange a controlled delivery to Alexander. The agent learned that Alexander had checked out but had left instructions and money for shipment of the package, when it arrived, to Route 1, Box 460, Buna, Texas, which was Wylie's home address. The agent also called a telephone number Alexander had left and spoke with a female who claimed to be Alexander's wife and who confirmed the address in Buna and said someone would be there to receive the package.

The agent returned the package to the DEA's office in Beaumont, which attempted a controlled delivery. Once the package was delivered to Wylie's residence, a search warrant was obtained; a search of the house was conducted, and various items such as cocaine, drug paraphernalia, books, ledgers, and weapons were seized. As the search was in progress, Wylie drove up; her car was then searched, and $20,900 in cash and a significant quantity of cocaine were found in the trunk.

The defendant owned and operated a horse ranch in Buna. Her live-in boyfriend, John Hamilton, was a jockey and a horse trainer who worked full-time for Wylie. Williamson also worked at the ranch as an employee under Hamilton. At trial, the government introduced evidence demonstrating that Hamilton and Williamson were constant drug users. Although Wylie did not use drugs herself, the prosecutor implied that she was the chief financial supplier for the purchase of the cocaine that was found in her car and house. 1 The prosecutor further claimed that Wylie kept detailed records of her drug sales and attempted to conceal her role in the affair through threats, intimidation, and bribery.

The main testimony presented by the government during its case-in-chief was received from two narcotics agents and Williamson. Significant rebuttal witnesses for the government were Jeri Jackson, who was Hamilton's former wife and an acquaintance of Wylie's, and Kenneth Williams, a Louisiana police officer who testified and presented a tape of Hamilton's statement implicating Wylie in past drug purchases. Wylie challenged the bulk of the government's evidence and testimony presented at trial.

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Wylie, along with Hamilton and Williamson, was charged in a two count indictment with conspiracy and possession with intent to distribute cocaine. The conspiracy count recited five overt acts, only the last of which involved Wylie.

Hamilton pleaded guilty to both counts, without a plea bargain. He agreed to plead guilty on the condition that Wylie's name be stricken in every instance from the indictment. Her name was stricken by the court as "surplusage," and Hamilton's guilty plea was accepted. Nevertheless, Wylie was convicted by a jury on both counts. Williamson cooperated with the government's investigation and received a lesser sentence of 33 months.


Wylie contends that the district court's acceptance of Hamilton's altered indictment, which then no longer mentioned Wylie, was a de facto dismissal of her from the indictment. When dealing with questions of law governing the sufficiency of such an indictment, we utilize a de novo standard of review. United States v. Mann, 517 F.2d 259, 266-67 (5th Cir.1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976).

According to Fed.R.Crim.P. 12(b)(2), Wylie can raise objections based upon defects in her indictment only prior to trial. United States v. Smith, 890 F.2d 711, 715 (5th Cir.1989); United States v. Kimberlin, 805 F.2d 210, 226 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987). Failure to make such a motion timely results in a waiver of such rights. Fed.R.Crim.P. 12(f); see Smith, 890 F.2d at 715. The trial court, however, has discretion to grant relief from the waiver for good cause. Rule 12(f). It does not appear from the record that Wylie made objections to her indictment prior to trial, nor does it appear that she had good reason for failing to do so. See United States v. Munoz, 894 F.2d 292, 295 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1934, 109 L.Ed.2d 297 (1990).

If the deletion of Wylie's name can be considered a failure of the indictment to state an essential element of the crime, see United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989), she might have a valid claim under rule 12(b)(2). See United States v. Campos-Ascencio, 822 F.2d 506, 508 (5th Cir.1987). Such a failure to specify the nature of an offense may be raised at any time. The theory underlying this exception to rule 12(b)(2) is that failure to inform a defendant of the full nature of the charges against her may result in a deprivation of her fifth and sixth amendment rights. Wilson, 884 F.2d at 179 n. 8; see Russell v. United States, 369 U.S. 749, 763-65, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962). The sixth amendment requires that the defendant "be informed of the nature and cause of an accusation" in order to prepare her defense and possibly invoke the protections against double jeopardy, and the fifth amendment requires that a person charged with a serious crime receive a grand jury indictment. Wilson, 884 F.2d at 179 n. 8.

Nevertheless, the exception is less readily available to defendants at the appellate level. Where "the defendant demonstrates no prejudice and waits for appeal to assert his challenge, an appellate court will read the indictment liberally." Id. at 179 (quoting Campos-Ascencio, 822 F.2d at 508). Under such circumstances, an indictment will be "sufficient unless it is so defective that by any reasonable construction, [it fails to] charge an offense for which the defendant is convicted." United States v. Trollinger, 415 F.2d 527, 528 (5th Cir.1969) (per curiam).

We have not considered heretofore whether the deletion of a defendant's name from an amended indictment is considered an "essential element" of a crime. However, a case from the Ninth Circuit supports the proposition that a defendant's name is an essential component of an indictment. In Chow Bing Kew v. United States, 248 F.2d 466, 468-69 (9th Cir.), cert. denied, 355 U.S. 889, 78 S.Ct. 259, 2 L.Ed.2d 188 (1957), the court dismissed one of the two counts against the defendant because the indictment failed to include either his name or a reference to him, in

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violation of Fed.R.Crim.P. 7(c). 2

Utilizing the requirements of rule 7(c)(3) (which governs harmless error in an indictment's citations or statutes), a similar standard can be developed for determining whether deletion of a defendant's name from an indictment is an "essential element." Such a standard requires that the error not prejudicially mislead the defendant. United States v. Quintero, 872 F.2d 107, 117 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990).

While the district court questioned the government's removal of Wylie's name from the indictment as mere surplusage to Hamilton's plea, we conclude that this rather awkward prosecutorial device does not jeopardize the conviction in this limited instance. Wylie points out that the use of the term "surplusage" normally implies "irrelevant allegations which call for inadmissible evidence stricken on the motion of the defendant." 1 L. Orfield, Criminal Procedure Rules Sec. 7:124 (2d ed. 1985); see Fed.R.Crim.P. 7(d).

The government cannot utilize the surplusage procedure of rule 7(d) to remove from the indictment any matters that it plans to prove through evidence at trial. United States v. Thomas, 875 F.2d 559, 562 n. 2 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 189, 107 L.Ed.2d 144 (1989). Although the removal of Wylie's name from the indictment is pursuant to an informal...

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