U.S. v. Watson, s. 92-1357

• Citation: 988 F.2d 544
• Decision Date: 05 April 1993
• Docket Number: Nos. 92-1357,92-1509,s. 92-1357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael WATSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lennox CAMPBELL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 544

988 F.2d 544

UNITED STATES of America, Plaintiff-Appellee, v. Michael WATSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lennox CAMPBELL, Defendant-Appellant.

Nos. 92-1357, 92-1509.

United States Court of Appeals Fifth Circuit.

April 5, 1993.

Cynthia Anne Cohen (Court-appointed), Renfro, Mack & Hudman, Ft. Worth, TX, for defendant-appellant in No. 92-1357.

St. Clair Theodore, Asst. U.S. Atty., Delonia A. Watson, Asst. U.S. Atty., Marvin A. Collins, U.S. Atty., Dallas, TX, for plaintiff-appellee.

Sarah L. Scharnberg, Dallas, TX (Court-appointed), for defendant-appellant in No. 92-1509.

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

Before JOLLY, DAVIS, and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Lennox Campbell (Campbell) pleaded guilty to aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. He was sentenced to 211 months imprisonment and five years supervised release. Michael Watson (Watson) pleaded guilty to aiding and abetting the distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was sentenced to 121 months imprisonment, 5 years supervised release, and a fine of $5,000.00. Campbell appeals both the denial of his motion to withdraw his plea of guilty and his sentence. Watson appeals his sentence. We consolidated these appeals because they involve codefendants and similar issues. We affirm Campbell's conviction and sentence. We vacate Watson's sentence and remand for resentencing.

I.

From May through July of 1991, undercover officers of the Dallas Police Department conducted an investigation that involved, at various times, Campbell, Watson, William Lonnie Calahan (Calahan), Eric Wright (Wright) and Patrick B. Green (Green). In July of 1991, all five participated in the sale of approximately 250 grams of cocaine powder to the undercover officers. All five were arrested at the site of the sale, the Redbird Mall in Dallas. In August of 1991, a grand jury handed down a four count indictment against the defendants. Campbell was named in counts one and four. Watson was named in all four counts.

Campbell was released on bail in November of 1991. While Campbell was out on bail, an organized crime drug task force was investigating a number of individuals in Brevard County, Florida, near Orlando. William Thomas Ray (Ray), an agent with the Bureau of Alcohol, Tobacco and Firearms, and case agent for the prosecution of Campbell and his co-defendants, learned about this investigation in late December. According to Agent Ray, "they communicated to us in late December that ... they had a dial impulse recorder attached to the phone of the suspects in Florida," and "they wanted us to get some subscriber information on the persons' numbers that were being called in the Dallas area."

In mid-January, Agent Ray's office served a subpoena on Southwestern Bell and discovered Campbell's home phone number among those listed. About that time, the Florida authorities told Agent Ray's office that Claudette Hubbard (Hubbard), a cousin of Campbell's, was a target of the investigation. Agent Ray's office suspected a connection between Campbell and the Florida drug investigation.

On January 23, 1992, Campbell pleaded guilty to count four of the indictment in exchange for being dropped from count one. A provision of that agreement provided that:

Campbell shall cooperate with the Government, by giving truthful and complete information and/or testimony concerning Campbell's participation in and knowledge of criminal activities. The Government agrees that if the defendant complies with section 5K1.1 of the sentencing guidelines, the Government will file a motion with the Court asking for a downward departure from the applicable guideline range. ¹

St. Clair Theodore (Theodore), of the United States Attorney's Office for the Northern District of Texas, was the lead prosecutor for the case against Campbell. Both Agent Ray and Mr. Theodore testified that they understood the plea agreement to imply a grant of use immunity for the information Campbell would reveal. The scope of the immunity had to be worked out, and Mr. Theodore asked Campbell to give a proffer of what he intended to tell the government. On the day the plea agreement was reached, Campbell mentioned his knowledge about drug activities in Houston and New York. He did not mention knowledge of drug activities in Florida.

In the latter part of February, Agent Ray told Mr. Theodore about the Florida drug investigation. Because of the "new criminal offense that [Campbell] was committing at the time," Mr. Theodore decided not to grant Campbell use immunity. Mr. Theodore further testified that "I could not jeopardize that investigation and [give Campbell's attorney the] information that I had received about his client." So Mr. Theodore "did not relay any further information" to Campbell's lawyer and delayed working on the use immunity agreement.

Shortly thereafter, in a letter dated February 27, 1992, Campbell gave his proffer. He said that he would tell the government information about drug transactions in Dallas, Houston, and the State of New York. Again Campbell did not allege that he could provide information about operations in Florida.

On March 10, 1992, the government received its first concrete information that Campbell was involved in an ongoing drug offense. The Florida authorities intercepted and recorded a phone conversation between Campbell and Hubbard in which the two discussed a drug deal. Campbell was subsequently indicted in the Middle District of Florida on charges arising out of the Florida investigation.

The government never scheduled a debriefing meeting with Campbell. Nor did it file a 5K1.1 motion in Campbell's behalf. Campbell filed a motion to withdraw his guilty plea because the government had failed to allow him to perform his part of the plea agreement.

At a hearing on the motion, Campbell said that he spoke with Claudette Hubbard "for the purpose of getting information to pass it to the government." To this, he added the somewhat implausible story that his current roommate, Leunford Brown (Brown), had authorized him to set up drug deals for the government. According to Campbell, Brown had shown him documentation that he was a police officer. But this occurred three years earlier. Thus, Campbell testified with respect to the March 10 call:

Campbell: Brown waked me up and asked me to call Claudette Hubbard and see if she would be interested to come here and buy some drugs and I did.

Q: So Leunford Brown was asking you to make the call on behalf of him for his drug deal with Claudette?

Campbell: Or to get her to come here to buy drugs so that he could bust her. That was his words to me.

Agent Ray testified that he was not aware that anyone in the government had authorized Campbell to work for the government or make deals on the government's behalf. Mr. Theodore testified that, on January 23, 1992, he fully intended to comply with the agreement.

The district court overruled Campbell's motion for leave to withdraw the plea of guilty. In so doing, it found that Campbell gave "preposterous" testimony and "lied" under oath. The court further found that the government had "not engaged in any misconduct." Campbell was later acquitted of the charges arising out of the Florida investigation.

The facts surrounding Watson's appeal are not as complex. He pleaded guilty to count three of the indictment, in exchange for the charges in counts one, two, and four being dropped. His plea agreement provided:

WATSON shall cooperate with the Government, by giving truthful and complete information and/or testimony during the trial of any codefendant concerning WATSON'S and codefendant CAMPBELL, WRIGHT, GREEN and CALAHAN'S participation in and knowledge of criminal activities. The Government agrees that if the defendant complies with section 5K1.1 of the sentencing guidelines, the Government will file a motion with the Court asking for a downward departure from the applicable guideline range.... The Government shall advise the Court, via the Probation Department, of the extent of CALAHAN'S [sic] cooperation.

The government interviewed Watson for Green's trial. But it did not file a § 5K1.1 motion for downward departure in Watson's behalf. At the sentencing hearing, Watson's attorney raised this issue. He told the district court that he had requested that the government file the motion, that the government had declined without explanation, to do so and that it was his understanding that they would file such a motion as part of the plea agreement. Watson testified at the hearing that he had answered the government's questions, and that he had cooperated with them and stood ready to cooperate with them at all times. He stated that he understood that the § 5K1.1 motion of the government recommending downward departure was dependent on his cooperation. The government did not make any statements in response. The district court did not respond to Watson's counsel's argument, and went on to sentence Watson within the guidelines as calculated by the Probation Department in the Presentence Report. (PSR).

II.

A.

Campbell contends that he was induced to plead guilty by the government's promise to move for downward departure if he cooperated. He further contends that he stood ready at all times to comply with his part of the agreement. However, he argues, the government breached the agreement by not granting him immunity or seeking his assistance. Thus, contends Campbell, his guilty plea is void because it was involuntary. The government argues that it did not breach the agreement because Campbell did not satisfy the conditions upon which its alleged obligations were predicated. Specifically, the government argues that Campbell withheld knowledge of the drug deal he was negotiating in Florida....