Burton v. U.S.

• Citation: 237 F.3d 490
• Decision Date: 22 December 2000
• Docket Number: No. 98-20294,98-20294
• Parties: (5th Cir. 2000) Bobby Joe Burton, Petitioner v. United States of America, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 490

237 F.3d 490 (5th Cir. 2000)

Bobby Joe Burton, Petitioner v. United States of America, Respondent.

No. 98-20294

UNITED STATES COURT OF APPEALS, THE FIFTH CIRCUIT

December 22, 2000

On Remand from the Supreme Court of the United States.

Before Reynaldo G. Garza, Edith H. Jones and Emilio M. Garza, Circuit Judges.

PER CURIAM:

Pursuant to the Supreme Court's decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), a fact that increases the penalty for a crime beyond the prescribed statutory maximum must be alleged in the indictment and proved to the jury beyond a reasonable doubt. Guided by these two Supreme Court decisions, it is the law of this circuit that when drug quantity is used to obtain an enhanced sentence, the quantity of drugs is an element of the offense. See United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000).

In the instant case, the quantity of cocaine base possessed with intent to distribute by Bobby Joe Burton, Jr. was neither charged in the indictment nor proven to the jury beyond a reasonable doubt. The life sentence given to Burton exceeds the maximum statutory penalty set forth in 21 U.S.C. § 841(b)(1), absent a showing of drug quantity or other sentence enhancing factors. See Meshack, 225 F.3d at 576. We therefore vacate Burton's sentence and remand to the United States District Court for the Southern District of Texas for resentencing.

SENTENCE VACATED AND REMANDED.

Attachment:

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 98-20294

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOE NATHAN CRAWFORD; FRED LANDERS HERNDON, JR; MARVIN GIBBS, JR; TERALD EUGENE THOMAS; MARCUS DEWAYNE MCGEE; ALTON JEROME LEWIS; AND BOBBY JOE BURTON, JR., Defendants-Appellants.

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

March 8, 2000

Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:^*

I. PROCEDURAL AND FACTUAL BACKGROUND

Lewis, Crawford, McGee, Thomas, Gibbs, Herndon and Burton were charged, along with 24 others, by indictment in the Southern District of Texas with conspiracy to manufacture, to possess with intent to distribute, and to distribute crack cocaine. Additionally, all but Lewis were charged with possession with intent to distribute. Many of the possession with intent to distribute charges were dismissed on the motion of the Government. All except Crawford were convicted of the conspiracy count. All but Lewis were convicted of at least one count of possession with intent to distribute. In addition to fines and terms of supervised release, each Appellant received a sentence for the following months of confinement: Lewis (410 months), Burton (life imprisonment), Herndon (240 months), McGee (121 months), Thomas (122 months), Gibbs (120 months), and Crawford (100 months). On appeal, each of the named appellants challenges his conviction and sentence on various grounds.

In approximately September of 1995, the FBI learned about a crack cocaine trafficking organization, the investigation of which lead to the arrest of the Appellants in March of 1997. Several techniques were used to investigate the organization, including undercover purchases of crack cocaine, camera surveillance, wiretapping, and a paid confidential informant named Calvin Workman. The execution of search warrants at Burton's and Lewis' premises revealed large sums of cash, digital scales and invoices. However, the critical evidence of the drug conspiracy arose from the undercover drug transactions and the testimony of conspiracy participants who testified against their co-conspirators. According to this evidence, the focal point of the organization was the trio of Burton, Lewis, and Christopher Cooks.¹ Cooks and Burton traveled from Bryan, Texas to Houston to purchase crack cocaine from Lewis. Cooks made 100 such trips and was accompanied by Burton on 10-20 of them. At times, Lewis would give them the crack cocaine in batteries that they put in their car. Other times, the crack would be hidden inside secret compartments in vehicles provided by Lewis. The crack cocaine was then taken back to the Bryan area for distribution.

Further testimony by conspiracy participants revealed the involvements of the other named Appellants. Lorenzo Shirley testified about making several trips with Cooks from Bryan to Houston to purchase cocaine from Lewis. According to Shirley, he sold cocaine to Crawford, who in turn sold the cocaine to others. A man named Timothy Perry testified that Burton "fronted" him crack cocaine to sell so he could pay Burton $600. Perry's customers included Herndon and Gibbs. Reginald Caldwell, a crack addict employed by Burton and Lewis for cocaine related errands, stated that he bought cocaine from Herndon and McGee on several occasions. A man named Glover fronted Gibbs cocaine on at least one occasion. Workman, the confidential informant, bought cocaine from Burton, McGee, Crawford, Herndon, and Gibbs. Finally, the testimony of co-conspirators revealed that Thomas had been involved in several crack cocaine transactions involving members of the conspiracy.

II. DISCUSSION

1. LEWIS

Alton Jerome Lewis was convicted of conspiracy to manufacture, possess with intent to distribute, and to distribute cocaine. The Government alleges that he, along with Burton and Cooks, was one of the key figures in the conspiracy. Specifically, it is alleged that Lewis was the Houston supplier of the crack cocaine for the distribution ring in Bryan-College Station, Texas. Now Lewis challenges his conviction on appeal.

a. Brady violation.

First, Lewis contends that the district court abused its discretion in denying Lewis' motion for new trial on the ground the government allegedly withheld exculpatory evidence and presented perjured testimony at trial. Specifically, Lewis contends that the Government's failure to turn over the lease agreement for a Rolls Royce constituted a Brady violation. He also contends the government suborned perjury when it argued and presented evidence that he owned a Rolls Royce when, in fact, the government was in possession of evidence that the vehicle was leased by his sister.

To establish such a claim under Brady v. Maryland, 373 U.S. 83 (1963), Lewis must show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to Lewis, and (3) the evidence was material. See Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996). Suppression of material, favorable evidence results in a Constitutional error if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 115 S.Ct. 1555, 1558 (1995); United States v. Bagley, 473 U.S. 667, 682 (1985).

Lewis argues that because he was never found to be in possession of any crack cocaine, the notion of "unexplained wealth," particularly his alleged ownership of a 1989 Rolls Royce, was a crucial element of the case against him. According to Lewis, the prosecution repeatedly elicited testimony to show that Lewis owned a 1989 Rolls Royce even though the prosecution possessed undisclosed documents which showed the car was leased by Lewis' sister and never owned by Lewis. Lewis further contends that although such documents were requested prior to trial, they were not turned over until the hearing on the motion for new trial. According to Lewis, the lease documents are exculpatory, material and favorable as they would have countered the allegation of "unexplained wealth" by showing his sister leased the car for the less-than-stunning sum of $600 a month and would have prevented the prosecutor from impeaching another defense witness (the alleged co-lessor of the car) with her failure to produce the lease documents. Thus, Lewis contends the prosecutor failed to comply with his duty to disclose such exculpatory evidence and that this non-disclosure prejudiced his defense. The district court, however, denied the motion for a new trial, finding in relevant part that Lewis knew of the alleged documents prior to or during trial.

After reviewing the parties' briefs and the record, we find that there was no Brady violation. As Agent Johnson explained at the hearing on the motion for new trial, it was not until the second day of the trial, when Lewis' counsel first requested copies of the lease documents, that the agents learned they had been erroneous in their belief that the leasing documents had been turned over to the defense. At that time, Johnson made sure that a copy of a "302" was shown to Lewis' counsel. The 302 was an FBI report indicating that the Rolls Royce had been rented by a woman named Andrea Celestine. Apparently, Lewis' counsel decided not to keep a copy of the document. Johnson further testified that he told Lewis' counsel where a copy of the lease would be, if the Government had it, and who to call to acquire it. Based on the information known to Lewis, he should have been aware of the lease documents and could have easily acquired them. See, e.g., United States v. Dixon, 132 F.2d 192, 199 (5th Cir. 1997) ("Brady does not obligate the government to produce for [a defendant] evidence or information already known to him, or that he could have obtained from other sources by exercising diligence.") Thus, since there is no Brady violation, the district court did not abuse its discretion in denying a new trial.

Next, Lewis argues he was denied due process when the prosecution introduced testimony to the effect that Lewis owned the Rolls Royce. Lewis argues that the prosecution knew or should have known such testimony was perjured because the government had discovered the afore-mentioned documents showing the car was leased in the name of someone other than Lewis. However, Lewis fails to prove the...