U.S. v. Womack, s. 91-3677

Decision Date01 February 1993
Docket NumberNos. 91-3677,92-1215,92-1218 and 92-1890,92-1028,s. 91-3677
PartiesUNITED STATES of America, Appellee, v. Walter Ray WOMACK, Appellant. UNITED STATES of America, Appellee, v. Karleen Rae STONE, also known as Cassie Williams, also known as Cassie Fox, Appellant. UNITED STATES of America, Appellee, v. Eric Dwayne FRENCH, Appellant. UNITED STATES of America, Appellee, v. Virgil Lee TOLEFREE, also known as Virgil Kirkwood, Appellant. UNITED STATES of America, Appellee, v. Donald Eugene CARAWAY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Whitney E. Tarutis, Bemidji, MN, argued, for Walter Womack.

Charles W. Faulkner, Minneapolis, MN, argued, for Karleen Rae Stone.

Thomas J. O'Connor, Burnsville, MN, argued (Alan D. Margoles, St. Paul, MN, on Tolefree's brief), for Eric French and Virgil Tolefree.

Larry E. Reed, Minneapolis, MN, argued for Donald Caraway.

Denise D. Reilly, Asst. U.S. Atty., Minneapolis, MN, argued, for U.S.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

This is a drug conspiracy case. Five individuals who either pleaded guilty to or were convicted of conspiring to distribute or to possess with intent to distribute cocaine base now appeal from the district court's 1 imposition of sentence. One of the five, Walter Ray Womack, also appeals from his conviction. We affirm.

I.

Donald Eugene Caraway began a cocaine distribution operation in 1987. Initially, he bought cocaine in Florida and brought it back to the Minneapolis-St. Paul area for distribution. Caraway used his brother Napoleon Adorable McBroom, a girlfriend Karleen Stone, and an associate Rodney Keith Taylor to transport money and cocaine between Florida and Minnesota. After Caraway's Florida source was arrested in 1989, Caraway began buying cocaine from Haywood "Buzzy" Kemp, who lived in the Los Angeles, California area.

In the first half of 1990, Caraway switched from cocaine powder to cocaine base (also known as "crack" cocaine). Buzzy Kemp would ship packages containing cocaine to the St. Paul address of Joseph Cook, who would then deliver the packages to Bliss Kemp, Buzzy's mother. Caraway would retrieve the cocaine from Bliss Kemp and drop off payments at her house. In turn, she would send the cash to Buzzy in California. Caraway would then sell his cocaine to a number of dealers, including Eric French, Virgil Tolefree, and Ray Womack.

The federal Drug Enforcement Agency (DEA) and the Minnesota Bureau of Criminal Apprehension (BCA) combined forces to investigate Caraway and his network. Among other investigatory techniques, they conducted a court-authorized wiretap on phones used by Caraway. On October 1, 1990, the DEA and the BCA concluded their investigation by arresting most of the individuals involved in the drug operation. On October 17, 1990, a federal grand jury returned a ten-count indictment against thirteen individuals, including Womack.

Shortly after the arrests of Caraway and his colleagues on October 1, 1990, Womack closed his St. Paul beauty salon business and left the area. Over the next few months he stayed with friends or relatives in several states. While staying with a friend in Arizona, Womack obtained an Arizona driver's license under the name of Robert Earl White. Womack ended up in California. In April, 1991, a California police officer stopped Womack for a traffic violation. Although Womack gave the officer the name Robert Earl White, the officer discovered that Womack (or White) had been indicted by a federal grand jury in Minnesota and arrested him.

Caraway, Stone, French, and Tolefree reached plea agreements with the government. They pleaded guilty to Count X of the indictment, which charged them with conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). In exchange for their guilty pleas and their cooperation with law enforcement officials by providing information and helping to prosecute their codefendants, the government agreed to move the district court for a downward departure in their sentences. Ray Womack chose to take his case to trial, at which the jury convicted him of conspiracy as well.

On appeal, Womack challenges his conviction and the district court's imposition of a two-level enhancement of his sentence for obstruction of justice. Caraway, Stone, French, and Tolefree make various challenges to their respective sentences.

II.

Womack, who is black, initially asserts that his trial violated his due process rights under the Fifth Amendment and his right to an impartial jury under the Sixth Amendment because there were no black individuals on the venire panel. In essence, he claims that he was denied his constitutional right to a jury selected from a fair cross-section of the community where he was tried.

In Duren v. Missouri, the Supreme Court set forth the elements that a defendant must establish in order to state a prima facie violation of the fair-cross-section requirement. Specifically, the defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

Womack meets the first element in that blacks constitute a "distinctive" group in the Minnesota community. Nonetheless, Womack's claim fails because he has not presented any evidence of the percentage of blacks in the Minnesota community or of the percentage of blacks on 1991 Minnesota venire panels. Accordingly, we are unable to gauge whether blacks have not been fairly and reasonably represented on Minnesota venire panels in relation to their presence in the community. See id. Moreover, he has failed to produce any evidence to show that any underrepresentation was due to a systematic exclusion of blacks from venire panels in the District of Minnesota. As we have stated previously, "[e]vidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion." Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989).

Womack next argues that the government failed to produce certain discovery materials (including wiretap transcripts, witness statements, etc.) to his counsel in a timely manner. We disagree. Womack's attorney admittedly knew that the government had placed copies of all discovery material in the federal Public Defender's office so that counsel for all 13 indicted codefendants could have access to them. Moreover, when Womack's attorney argued on the day of jury selection that he had not seen the materials because of some misunderstanding with the Public Defender's office, the district court granted the defense a one-week continuance to review the materials and further prepare for trial.

Even if we were to assume that Womack's counsel should bear none of the blame for failing to obtain the discovery materials, which we do not, Womack fails to show any discovery violation on the government's part. The Jencks Act, 18 U.S.C. § 3500, requires that, after a government witness has testified, the government must produce statements made by that witness. Here, the government gave Womack all Jencks Act statements one week before trial. Likewise, Womack fails to show how the government violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), when the defense had all discovery materials at least one week prior to trial and Womack has not alleged that any earlier production of the documents would have "enabled [him] to create a reasonable doubt that did not otherwise exist," United States v. Bledsoe, 674 F.2d 647, 670 (8th Cir.), cert. denied sub nom. Phillips v. United States, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982).

Womack next argues that the district court erroneously admitted a packet of crack cocaine and a gun that the government had obtained through an allegedly unconstitutional search conducted by a St. Paul police officer after he had arrested Womack in September 1990 for driving with an expired license. At trial, Womack failed to object to the cocaine packet, and therefore he may not raise its admission as a trial error on appeal. United States v. Trent, 949 F.2d 998, 999 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3005, 120 L.Ed.2d 880 (1992). Moreover, we do not find the cocaine's admission to be plain error because the cocaine was properly discovered in the course of a pat-down search when the officer believed that he felt a knife. With respect to the gun, we agree with the district court's ruling that the police officer discovered the gun during a proper inventory search of the vehicle Womack was driving prior to having it towed from a no-parking zone. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976).

Finally, Womack claims that the district court erred in enhancing his base offense level by two levels under U.S.S.G. § 3C1.1 for obstructing justice. Reviewing the district court's decision to depart upward under an abuse of discretion standard, United States v. Snover, 900 F.2d 1207, 1209 (8th Cir.1990), we hold that the obstruction enhancement was proper in this case.

Initially, the district court found that Womack had committed perjury. We do not believe this factual finding to be clearly erroneous. At a pretrial hearing, Womack...

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