U.S. v. Booker

• Decision Date: 11 June 2003
• Docket Number: No. 02-40525.,02-40525.
• Citation: 334 F.3d 406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donnie Darrell BOOKER, et al., Defendants, Donnie Darrell Booker, and Pablo Ruiz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 406

334 F.3d 406

UNITED STATES of America, Plaintiff-Appellee, v. Donnie Darrell BOOKER, et al., Defendants Donnie Darrell Booker, and Pablo Ruiz, Defendants-Appellants.

No. 02-40525.

United States Court of Appeals, Fifth Circuit.

June 11, 2003.

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Heather Harris Rattan, Asst. U.S. Atty. (argued), Plano, TX, for Plaintiff-Appellee.

Joe J. Monsivais, Asst. Federal Public Defender (argued), Amy R. Blalock, Asst. Federal Public Defender, Tyler, TX, for Booker.

Richard Earle Weaver (argued), McKinney, TX, for Ruiz.

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

Before JONES and BENAVIDES, Circuit Judges, and KAZEN, District Judge.¹

KAZEN, Chief Judge:

A 24-count indictment was returned against 16 defendants, including appellants Donnie Darrell Booker ("Booker") and Pablo Ruiz ("Ruiz"), as well as John Catlin, Sr., and Cedric Catlin. Count 1 of the indictment charged all of the defendants with conspiracy to distribute 50 grams or more of cocaine base ("crack cocaine" or "crack"), in violation of 21 U.S.C. § 846. Booker was also charged in counts 7, 13 and 17 with distributing crack cocaine on or about June 16, 2000, August 24, 2000, and January 13, 2001, respectively. Twelve co-defendants pled guilty to various charges. Booker, Ruiz and the two Catlins proceeded to trial, but John Catlin Sr., was severed during the trial due to illness. Booker filed a motion to sever himself from the other defendants and for a separate trial on each count, which the district court denied.

All three remaining defendants were found guilty as charged by a jury, except that Booker was found not guilty on Count 17. Ruiz was sentenced to 88 months' imprisonment and 4 years of supervised release. Booker was sentenced to 151 months' imprisonment and 5 years of supervised release. Both appellants dispute the sufficiency of the evidence to convict them and the calculation of their sentences.² Booker also protests the denial of his severance motion and of a motion for post-trial juror interviews. Ruiz complains of two evidentiary rulings. We AFFIRM both convictions and Booker's sentence, but VACATE Ruiz's sentence and REMAND for resentencing.

I. Sufficiency of the Evidence

In evaluating sufficiency of the evidence, this court must affirm if any "reasonable construction of the evidence" could establish the defendant's guilt beyond a reasonable doubt. United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.1994). A conviction for conspiracy to distribute a controlled substance, 21 U.S.C. § 846, requires proof of (1) an agreement between two or more persons to violate the narcotics laws, (2) the defendant's knowledge of the agreement, and (3) the defendant's voluntary participation in the conspiracy. U.S. v. Gallardo-Trapero, 185 F.3d 307, 316-17 (5th Cir.1999). "The agreement may be tacit, and the jury may infer its existence from circumstantial evidence." United States v. Crooks, 83 F.3d 103, 106 (5th Cir.1996). Conviction of a distribution charge in violation of 21 U.S.C. §§ 841(a)(1) requires proof that the defendant knowingly delivered a controlled substance to someone else. United States v. Sotelo, 97 F.3d 782, 789 (5th Cir.1996). A defendant may be convicted on the uncorroborated testimony of a co-conspirator who has accepted a plea bargain unless the coconspirator's testimony is incredible. United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir.1999). Testimony is incredible as a matter of law only if "it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature." Bermea, 30 F.3d at 1552.

A. Booker

Booker argues that there was insufficient evidence to support his conviction because he lived in Texas for only a part of the conspiracy and because he did not appear on any of the video or audio surveillance. He also complains that, while he might have been present during the drug deals made on June 16, 2000 and August 24, 2000, the Government failed to link the drugs exclusively to him. Finally, Booker argues that the majority of testimony against him was provided by drug dealers and crack addicts, whose testimony was inherently self-serving and unreliable.

The evidence depicted a drug conspiracy primarily involving the Catlin family in Denton, Texas. The investigation focused on two residences and one nightclub. Zella Mae Catlin and John Catlin, Sr. owned one of the houses. Their son, John Catlin, Jr., (aka Popcorn) owned the other house, and the club. Members of the extended Catlin family as well as some neighbors and other drug users were also involved in buying and selling crack cocaine. Booker was a cousin of the Catlins who lived with Zella Mae Catlin and John Catlin, Sr., during 2000 and 2001.

During the time Booker lived at the Catlin house, drug traffic was so frequent that there were worn trails leading to and from the house. Numerous individuals testified that they had purchased crack from Booker. One witness testified that he alone had dealt with Booker at least 50 times. Some of these purchases were in controlled buys, witnessed by undercover officers. Testimony from co-conspirators indicated that Booker was not merely an independent operator, but that he had participated in at least one larger drug deal with Popcorn Catlin. The June 16, 2000 crack sale was a controlled buy, and both the purchaser and an undercover officer testified that Booker sold the crack in that transaction. Popcorn testified that Booker volunteered to participate with him in the August 24, 2000 transaction. While Popcorn negotiated that transaction, it was Booker who actually handed the bag of crack to its purchaser, undercover officer Cogwell. A reasonable juror could have easily concluded that Booker was guilty of participating in a conspiracy to distribute crack cocaine and did distribute crack on June 16 and August 24, 2000.

B. Ruiz

Ruiz claims that the evidence showed only a buyer-seller relationship between himself and the Catlins, and that this relationship does not constitute a conspiracy. In addition, Ruiz claims no knowledge that the Catlins were crack dealers and that his dealings with the Catlins involved powder cocaine but not crack.

Popcorn Catlin testified that Ruiz knew he was a crack dealer and was eager to provide him with drugs. Popcorn described how Ruiz had attempted to sell him marijuana, and had given him a couple of bags of marijuana to smoke. Popcorn never purchased any marijuana from Ruiz, and informed him that he was not in the marijuana business. Popcorn also testified that he had known Ruiz for six years, that Ruiz's cousin was Popcorn's neighbor, and that Ruiz had previously sold him an ounce of powder cocaine on one occasion and a half of an ounce subsequent to that.

In addition, Paul Cogwell, an undercover officer, described a meeting with Ruiz and Popcorn on September 22, 2000, concerning a potential cocaine deal. Some of the discussion was recorded. This meeting took place after Cogwell had negotiated with Popcorn to buy a half-kilo of crack for approximately $10,000. The deal was in jeopardy because Popcorn's intended supplier was intercepted by police officers in Lewisville, TX. Popcorn admitted that this deal would be the largest he had ever done, and he believed Cogwell urgently wanted the drugs. Hoping to keep Cogwell interested in the deal, Popcorn called several people, including Ruiz, to see if they could supply Cogwell with drugs. After reaching Ruiz by telephone, Popcorn met him and brought him to Cogwell. Cogwell and Ruiz discussed bringing in a large amount of cocaine from Mexico. They discussed the potential amount of drugs, their price, and different means for getting them to Cogwell. Ruiz and Cogwell also discussed the possible transportation of marijuana. Although no deal was ever reached between Cogwell and Ruiz, a reasonable jury could conclude that Ruiz was participating in the overall Catlin conspiracy by attempting to help a key member of that conspiracy keep a buyer satisfied. "To be convicted of engaging in a criminal conspiracy, an individual need not know all the details of the unlawful enterprise or know the exact number or identity of all the co-conspirators, so long as he knowingly participates in some fashion in the larger objectives of the conspiracy." U.S. v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir.1998) (internal citation omitted).

II. Evidentiary Objections

A. Rule 404(b)

Ruiz contends that the district court abused its discretion by admitting evidence of his possession of 178 kilograms of marijuana at his residence in Starr County, Texas. This seizure occurred on June 21, 2001, almost six weeks after the indictment was filed in this case. The evidence was admitted to show intent, pursuant to Fed.R.Evid. 404(b). Ruiz argues that this evidence only allowed the jury to see him as a drug dealer and provided no evidence of his intent to be involved in the crack conspiracy in North Texas. He also argues that any probative value of this evidence was substantially outweighed by its prejudicial effect on the jury.

This court applies a highly deferential standard in reviewing a district court's evidentiary rulings, reversing only for abuse of discretion. Even then, the error is not reversible unless the defendant was prejudiced. United States v. Coleman, 78 F.3d 154, 156 (5th Cir.1996). To be admissible under Rule 404(b), evidence must be relevant to an issue other than the defendant's character and must possess probative value not substantially outweighed by the danger of unfair prejudice. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472, (1979). The mere entry of a not guilty plea in a conspiracy case raises the issue of intent sufficiently to justify the admissibility of extrinsic offense evidence. U.S. v. Broussard, 80 F.3d...