953 F.2d 1525 (11th Cir. 1992), 89-8181, United States v. Teague

Docket Nº:89-8181.
Citation:953 F.2d 1525
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald TEAGUE, Defendant-Appellant.
Case Date:February 26, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1525

953 F.2d 1525 (11th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald TEAGUE, Defendant-Appellant.

No. 89-8181.

United States Court of Appeals, Eleventh Circuit

February 26, 1992

Page 1526

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 TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges, [*] and CLARK [**], Senior Circuit Judge.

FAY, Circuit Judge:

Defendant Donald Teague was convicted of attempting to possess marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 846, and carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c). He appealed the district court's denial of his motion for a new trial, arguing that he was denied his constitutional right to testify because his counsel did not call him as a witness at his trial. A divided panel of this court agreed that Teague's right to testify had been violated, and reversed. United States v. Teague, 908 F.2d 752 (11th Cir.1990). A majority of the judges of this court in regular active service voted that this case be reheard by this court en banc. United States v. Teague, 932 F.2d 899 (11th Cir.1991) (on petition for rehearing and suggestion for rehearing en banc). 1 On rehearing, we AFFIRM the judgment of the district court.

BACKGROUND

The record indicates that in August 1988, Donald Augustine, an undercover Drug Enforcement Administration (DEA) agent, arranged to sell seventy-five pounds of marijuana

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to Kenneth Patterson. Patterson was to make an initial payment of $35,000 and a final payment of $17,500 a few days later.

At that time, Donald Teague was working for Patterson on the renovation of Patterson's mother's home in Atlanta. On the morning of August 17, 1988, Patterson and Teague made several trips together away from the house. On the first trip, they went to a hardware store and then bought beer at a bait shop. They later made a second trip to the bait shop to buy ice. After returning from the second trip, Patterson asked Teague to accompany him on a third trip, and the two drove off in Patterson's truck. When Teague asked where they were going, Patterson said they were going "to check out some herbal."

Patterson and Teague drove to the restaurant parking lot where Patterson had agreed to meet with Augustine. Patterson got out of the truck and spoke with Augustine while Teague remained in the truck. When Augustine asked who Teague was, Patterson identified him as his partner. Patterson then got back in the cab of the truck, while Augustine remained outside and talked to the two men through the driver's side window. Augustine asked Teague whether he was Patterson's partner, and Teague responded affirmatively. Augustine also expressed some concern about Patterson's ability to obtain the additional $17,500 in a few days. Teague then told Augustine not to worry, that Patterson was trustworthy.

When Augustine asked to see the money Patterson had agreed to bring, Patterson opened a bag and handed him envelopes containing money. Augustine testified that when Patterson opened the bag to remove the envelopes he also removed a handgun from the bag and put it on the seat between himself and Teague. However, according to Patterson, who testified for the defense, Patterson had removed the handgun from the bag and placed it on the seat before they entered the parking lot. Augustine then invited Patterson to accompany him to his car to inspect the marijuana. Augustine further testified that Patterson and Teague discussed how they would transfer the marijuana from Augustine's car to the truck. Patterson got out of the truck to follow Augustine to his car, leaving the handgun on the seat. Augustine then gave a signal, and Patterson and Teague were arrested.

A federal grand jury indicted Patterson and Teague on charges of conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 846, attempting to possess marijuana with intent to distribute, id., and carrying a firearm during the commission of a drug trafficking crime, 18 U.S.C. § 924(c). 2 Patterson entered into a plea agreement, but Teague proceeded to trial, represented by Stephanie Kearns, Director of the Federal Public Defender Program for the Northern District of Georgia. On November 28, 1988, after a two-day trial, a jury convicted Teague of the attempt to possess marijuana with intent to distribute and the firearm charges, but acquitted him of the conspiracy charge.

Then on December 2, 1988, Teague filed a motion for new trial, claiming that he had been denied his constitutional right to testify at trial on his own behalf. The district court held an evidentiary hearing on this motion on February 3, 1989.

At the evidentiary hearing, Teague's counsel testified that Teague had made his desire to testify known to her prior to trial. For that reason, she conducted a mock direct and cross-examination with Teague in her office during the week before trial. Counsel testified that it was part of her normal practice to discuss with her clients whether they would testify and that she probably explained to Teague at this time

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that whether he would testify ultimately would be his decision. According to counsel, Teague had difficulty maintaining his composure during the practice; he cried while she was asking him questions and would frequently rush to answer before she finished the question. Counsel then advised Teague that in her opinion it would be better if he did not testify. Although she felt the jury would perceive him as "truthful, open, and very sincere," she was afraid that he would not listen carefully to the questions being asked and therefore easily could be manipulated by the prosecution on cross-examination. However, no final decision on whether Teague would testify was reached at that time. Counsel testified that they intentionally left the question open until it was clear if Patterson would be testifying in Teague's defense. She felt that if Patterson testified there would be little reason for Teague to testify.

During the trial, Teague several times asked counsel when he would be testifying. At that point, because it was clear that Patterson would be testifying for the defense, she told Teague to wait and see what Patterson said. Patterson testified that Teague was not involved in the deal and that he did not tell Teague about the quantity of "herbal" or the amount of money involved. According to Patterson, he wanted Teague to accompany him as protection and he told Augustine that Teague was his partner only because he was afraid Augustine would back out if he knew that someone who was not involved in the deal was present. Patterson further testified that other than saying that Patterson was good for the money Teague did not speak to Augustine. However, Patterson also testified that he took his gun out of the bag and put it on the seat between them long before they arrived at the parking lot, so Teague must have been aware of it. Teague was very concerned about this last testimony, pulling on counsel's sleeve and whispering, "That's not true," and asking when he was going to have a chance to tell his side of the story. At that time, counsel did not think the conflicting testimony about the gun was significant, and told Teague not to worry about it. The defense rested after Patterson testified, without the testimony of Teague.

At some point after the defense rested but before closing arguments, Teague again asked when he would testify, and counsel again discussed it with him. 3 During that conversation, she felt that Teague was just letting her know that he was willing to testify, if necessary. According to counsel, Teague was concerned about Patterson's testimony about the gun. Counsel testified that she told him that it was not necessary for him to testify because agent Augustine had contradicted Patterson's testimony about the gun. Teague did not persist, and counsel testified that at the time she rested the defense case, she felt that Teague had assented to the decision not to put him on the stand. No motion was made to reopen the defense case to permit Teague to testify.

Closing arguments were made the next day, and the jury retired to deliberate, ultimately acquitting Teague of conspiracy, but convicting him of attempt to possess marijuana with intent to distribute and carrying a firearm during a drug trafficking crime. Sometime after this verdict was rendered, however, Teague began to call his counsel at home late at night. He was very distressed and repeatedly asked her when he would get a chance to tell his side of the story. Counsel then became very concerned that she may not have made it clear to Teague that the choice of whether to testify belonged to him, not her, and for that reason she filed the motion for new trial. 4

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Teague also testified at the evidentiary hearing on his motion for new trial. He remembered discussing with counsel whether he would testify, and that she advised him not to testify, although he could not remember if she told him the reason why. He also testified that counsel never told him that she would not allow him to testify.

Then, at the court's request, Teague gave his version of what happened, i.e., what he would have testified to had he been called to the stand. Teague testified that he thought that the third time he and Patterson went out it was to buy a drill bit that Teague needed. When Teague got in the truck, Patterson told him that he needed to stop to "check on some herbal." They pulled into the...

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