953 F.2d 1449 (5th Cir. 1992), 90-1903, United States v. Carter

Docket Nº:90-1903.
Citation:953 F.2d 1449
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joe Henry CARTER, Jr., Joseph Estel Hammack, Defendants-Appellants.
Case Date:February 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1449

953 F.2d 1449 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Joe Henry CARTER, Jr., Joseph Estel Hammack, Defendants-Appellants.

No. 90-1903.

United States Court of Appeals, Fifth Circuit

February 12, 1992

Rehearing and Rehearing En Banc

Denied March 25, 1992.

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Alex R. Tandy, Fort Worth, Tex., for defendants-appellants.

Timothy W. Crooks, Asst. Federal Public Defender, Fort Worth, Tex., for defendant-appellant Joseph Hammack.

Frank D. Able, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

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

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and MAHON [*], District Judge.

GARWOOD, Circuit Judge:

Defendants-appellants Joe Henry Carter, Jr. (Carter) and Joseph Estel Hammack (Hammack) were convicted of conspiring to manufacture amphetamine and of possessing, and conspiring to possess, phenylacetone with the intent to manufacture amphetamine. They both appeal, raising various challenges to their convictions and sentences. We affirm.

Facts and Proceedings Below

Viewed most favorably to the government, the evidence reflected the following.

Officer Brad Johnson (Johnson) of the Fort Worth Police Department and the Tarrant County Narcotics Intelligence Task Force received a tip from a confidential informant that there was a possibility that an amphetamine laboratory was being operated at the residence at 2418 Old Fort Worth Highway in Parker County, Texas. The informant further indicated that the residence was being occupied by Carter, who was known to Johnson and the other members of the police force, and by a woman named Paula. Johnson relayed this information to several other officers with the Fort Worth Police Department who were assigned to a Drug Enforcement Administration (DEA) Task Force. The officers drove and walked by the house, but could not detect any chemical odor of the type associated with the manufacture of amphetamine, methamphetamine, or phenylacetone. However, a background check revealed that the Dallas County Sheriff's Office had an outstanding felony arrest warrant for Carter. Johnson placed a telephone call to the house at about 12:30 a.m. on July 11, 1990 and asked the female who answered whether "Joe" was there. Based on her response, Johnson and the other officers drove to the residence to execute the arrest warrant.

Once they got onto the property surrounding the residence, the officers could detect the chemical odor characteristic of amphetamine reactions. Johnson and another officer went to the front of the house, while Johnson's partner Scott Campbell (Campbell) and a fourth officer went around to the rear. As Johnson was nearing the front door, he heard noise from the rear of the house, and he heard Campbell yell "Stop, Police!" Johnson kicked in the front door, and inside he found Carter lying on a mattress on the floor with a woman who identified herself as Paula Henderson (Henderson). There was an empty holster near the mattress, and Johnson asked Carter where the weapon was. Carter told him it was beneath the mattress, and Johnson found there a loaded RG model .357 magnum handgun.

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Campbell testified that as he rounded the rear corner of the house, he saw a shadow in the shed located behind the house. When he shined the flashlight in that direction, he saw that it was a person exiting the shed. After Campbell identified himself as a police officer and told the person not to move, the person broke and ran toward the back of the yard. Campbell overtook him, wrestled him to the ground, and handcuffed him. Campbell again identified himself as a police officer and read the suspect his rights. The suspect, who did not make any statement to Campbell, was later identified as defendant-appellant Hammack. Campbell shined his flashlight inside the shed and saw what he believed to be a phenylacetone reaction--a round flask filled with chemicals on a heating mantle, with condenser tubes above the flask. He also saw a lounge chair laid out flat with a pillow and a blanket on it.

After obtaining a search warrant, the officers returned to the residence and conducted a search. In the rear bedroom of the house they found a distillation apparatus that was still slightly warm to the touch. They took a jar of brown liquid from the bedroom, which a DEA chemist determined to be amphetamine. In the same room they found a billfold with identification belonging to Hammack. In the shed behind the house, liquid that was later determined to be phenylacetone was boiling in a flask. And in a camper shell behind the house they found numerous precursor chemicals customarily used in the amphetamine manufacturing process.

On July 24, 1990, a federal grand jury returned a three-count indictment against Carter, Hammack, and Henderson. Count One charged all three with conspiracy to manufacture amphetamine and to possess phenylacetone with intent to manufacture amphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged the three with possession of phenylacetone with intent to manufacture amphetamine, in violation of 21 U.S.C. § 841(a)(1). Count Three charged Carter and Henderson with carrying a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Carter and Hammack were tried together before a jury. At the close of the evidence, the district court granted Carter's motion for a judgment of acquittal on Count Three. Carter and Hammack were convicted on the other two counts. Carter was sentenced to 190 months' imprisonment and Hammack to 162 months', with both defendants to serve a term of supervised release and pay a special assessment. Both defendants appeal.


Carter and Hammack both challenge the sufficiency of the evidence to sustain their convictions. In addition, Carter contends that the district court erred in: (1) allowing the government to elicit evidence that Hammack had previously been convicted of a misdemeanor weapon offense; (2) failing to instruct the jury not to consider evidence of the presence of a firearm in his house for any purposes whatsoever; (3) applying sentencing guidelines relating to a firearm offense under 18 U.S.C. § 924(c); and (4) departing upward from the sentencing guidelines in imposing sentence. Hammack joins in Carter's first argument, challenging the admission not only of his weapon conviction, but also of four prior narcotics convictions, and arguing that introduction of the evidence of the weapon conviction was effected by deception amounting to prosecutorial misconduct. He additionally argues: (1) that in referring to, and eliciting testimony about, his silence after he received Miranda warnings, the prosecutor deprived him of due process under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); (2) that the prosecutor during closing argument impermissibly sought to bolster government witnesses and to inflame community passions and prejudices; and (3) that the decision to refer his case for federal rather than state prosecution, made without reference to any objective or reviewable standards, violated due process.

Hammack's allegation of Doyle violations presents by far the most substantial point of error. We reserve discussion of it until after disposing of the other issues.

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I. Sufficiency of the Evidence

On appeal this Court must view the evidence and all reasonable inferences in the light most favorable to the verdict, and decide whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. United States v. Diaz-Carreon, 915 F.2d 951, 953-54 (5th Cir.1990).

In a conspiracy prosecution under 21 U.S.C. § 846, the government is required to prove (1) the existence of an agreement between two or more persons to violate the narcotics laws, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy. United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991). All elements may be inferred from circumstantial evidence. Id.; United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.1988). In drug conspiracy cases the government need not prove an overt act in furtherance of the conspiracy. United States v. Mollier, 853 F.2d 1169, 1172 (5th Cir.1988).

The crux of defendants' argument is that there is no evidence of any agreement between them or involving any other person. They rely on the principle that evidence merely showing presence at the site of a drug offense or association with the conspirators will not sustain a conspiracy conviction. See, e.g., United States v. Onick, 889 F.2d 1425, 1432 (5th Cir.1989); Espinoza-Seanez, 862 F.2d at 536-39; United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir.1987); United States v. Blessing, 727 F.2d 353, 356 (5th Cir.1984), cert. denied sub nom. Rodriguez v. United States, 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985); United States v. Jackson, 700 F.2d 181, 185-86 (5th Cir.), cert. denied sub nom. Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983).

In the cited cases, this Court reversed conspiracy convictions because the evidence did not satisfactorily establish that the defendants knew of the drug offense, even though they were present in an area where the drugs were located or some conduct related to the offense took place. Although Hammack offered a generally similar defense in this case, we...

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