U.S. v. Bradfield

• Citation: 113 F.3d 515
• Decision Date: 14 May 1997
• Docket Number: No. 94-60730,94-60730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy C. BRADFIELD and Lee Andrew Williams, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 515

113 F.3d 515

UNITED STATES of America, Plaintiff-Appellee, v. Roy C. BRADFIELD and Lee Andrew Williams, Defendants-Appellants.

No. 94-60730.

United States Court of Appeals Fifth Circuit.

May 14, 1997.

Victoria May, Alfred B. Jernigan, Jr., Richard Terrell Starrett, Assistant U.S. Attorneys, Jackson, MS, for Plaintiff-Appellee.

Joseph M. Hollomon, Palmer, Wright & Williamson, Jackson, MS, for Defendant-Appellant.

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

Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:

Following the filing and release of this panel's original opinion in the subject case, ¹ a member in active service on this court asked that the mandate be held and that the panel reconsider its decision, urging, inter alia, that even if the panel remained convinced that its judgment is correct, a narrower opinion could produce the same result. Agreeing now with our colleague, we withdraw our original opinion and substitute in its place the writing that follows.

Defendants-Appellants Roy C. Bradfield and Lee Andrews Williams appeal their convictions for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the reasons set forth below, we affirm Williams' conviction but reverse Bradfield's and remand his case for a new trial.

I. FACTS AND PROCEEDINGS

The events giving rise to Bradfield's and Williams' indictments and ultimate convictions arose in the context of a reverse-sting operation orchestrated largely by the FBI's confidential informant, John Lee Chancey, Jr. The sting targeted Bradfield directly.

Bradfield is a forty-year-old truck driver from Benton, Mississippi. On a trucking job in 1991, he met two other drivers, Chancey and Juan Guerero, for the first time. While waiting for their trucks to be unloaded, Guerero and Chancey began talking about cocaine and weapons deals. The only evidence in the record of this conversation is Chancey's testimony, from which it is not absolutely clear that Bradfield did not participate in the conversation but merely listened. Chancey testified initially that Bradfield "was just laying aside ... just hearing it." The only evidence that any part of the conversation may have been directed at Bradfield is Chancey's subsequent testimony that he told Bradfield to call Guerero if he (Bradfield) wanted to do a deal but that Chancey would not do a deal until the current trucking job was completed. Still, there is no evidence that Bradfield participated in any dialogue with either Chancey or Guerero, and none dispute that Bradfield and Chancey made no agreement that day to do a deal or that Bradfield left without even bothering to get Chancey's telephone number.

Chancey testified further, over a defense objection to hearsay, that some three months later, in March 1992, Guerero called and said that he had been contacted by Bradfield about doing a deal with Chancey. According to Chancey, he immediately notified personnel at a Texas district attorney's office, and together they began to develop a plan to lure Bradfield to Texas to purchase drugs. The district attorney's office agreed to compensate Chancey with 15-25% of whatever money might ultimately be obtained in the drug deal. When the district attorney realized that his office did not have the manpower or the jurisdiction to carry out the plan, he called it off. Disappointed that he would not make any money, Chancey kept his venture alive by next contacting FBI personnel and persuading them to take the case on the same contingency fee arrangement. Chancey admitted at trial that if he had not persisted with the FBI, the reverse-sting operation would have died when the district attorney in Texas lost interest.

Chancey placed as many as eighteen telephone calls to Bradfield, who returned none, before Chancey finally induced Bradfield to discuss a deal. Indeed, following several telephone conversations, some of which were taped, Bradfield and Chancey twice attempted--unsuccessfully--to structure the drug deal in Mississippi. Finally, several weeks later, Chancey returned to Jackson, Mississippi and, in a taped telephone conversation on June 22, 1992, made a deal to sell Bradfield four kilograms of cocaine for $50,000. They decided to meet at the Shoney's restaurant adjacent to the Shoney's Inn on East County Line Road where Chancey was staying.

That same day Williams, who is a mechanic, used auto parts dealer, and occasional roofing contractor from Yazoo County, Mississippi, agreed to ride to Jackson with his nephew, Herbert Watts, Jr., to pick up some furniture for delivery to Williams' sister-in-law, Joyce Sawyer, in Ridgeland, Mississippi. According to Watts' testimony, Williams and Watts rode in Watts' truck to East County Line Road and stopped at a convenience store to call Ms. Sawyer before picking up the furniture. She was not at home, so they decided to eat at the Shoney's restaurant next door.

Williams and Watts entered the restaurant with a relative of Roy Bradfield's, Newton "Shawn" Bradfield (Shawn), whom Williams had recognized in the parking lot. Once inside, Williams spotted his old high school classmates, Bradfield and co-defendant Gregory Robertson, sitting together at a table. Williams, Watts, and Shawn joined Bradfield and Robertson and ordered something to eat.

Around 1:00 p.m., Chancey entered the restaurant and sat at a table next to the aforenamed group of five. Shortly after Chancey sat down, Bradfield pointed to Williams, indicating to Chancey that Williams was "the man that was going to bring the money," and then motioned for Chancey to accompany him (Bradfield) to the men's room. Inside the men's room, Bradfield and Chancey engaged in a lengthy conversation which Chancey was secretly recording. About fifteen minutes later, Williams entered the men's room and Bradfield introduced him by his nickname, Chimp, to Chancey. The conversation resumed, this time among the three men.

The gist of this recorded conversation was that some of the drug money was at the restaurant, but that a substantial amount was elsewhere. Bradfield said that he and Robertson would leave the restaurant, presumably to retrieve the rest of the money, and instructed Williams to tell Shawn that they (Williams and Shawn) would show Chancey the money that Shawn was holding. Bradfield also instructed Williams to accompany Chancey to his motel room and wait there with him until Bradfield returned with the rest of the money. Williams agreed to go with Chancey, saying that he would take along a "notebook or something."

Instead of going with Chancey, though, Williams went back to the table and got Watts. The two of them then left the restaurant together, leaving Robertson and Shawn at the table.

David Langlois, an FBI electronics technician, witnessed the next series of events, to which he testified at trial. Langlois was driving home from work and stopped at a Texaco station at Exit 108 on I-55. While stopped, he saw a dark Buick Regal, which matched a vehicle description that he had heard earlier on the FBI radio, turn into the service station across the street from the Texaco and stop alongside a silver Ford Ranger pickup belonging to Watts. One of the occupants of the Buick (Langlois testified that there were at least two) entered the service station's convenience store, and the silver pickup was driven around to the rear of the store. The individual from the Buick left the store and walked around to the silver pickup at the rear of the store. Two individuals in the Buick then drove it away. The driver of the silver pickup moved it to the east side of the station, parked it, got out, and got into a dark colored, full-sized pickup truck belonging to Robertson, who had just arrived at the service station. The individual from the silver pickup and Robertson then left the station in Robertson's truck.

Langlois never saw gasoline purchased for any of the vehicles that had stopped at the station. The FBI agents who observed the scene (Langlois and his relief) reported that the individuals in the various vehicles appeared to be engaged in "counter-surveillance" activity, i.e., looking for indications of any suspicious circumstances or the presence of law enforcement officers.

Not surprisingly, Williams' brief recounts a significantly different version of these events. According to Williams' version, he and Watts left the restaurant and called Ms. Sawyer again, but she was still not home, so they drove to Williams' brother's house in Jackson. Williams read the paper and dozed for about an hour while Watts continued the efforts to contact Ms. Sawyer. Never able to reach her, the two headed back to Yazoo County, as Watts had to report to work in Canton, Mississippi at 3:30 p.m. Watts stopped at a Texaco station at Exit 108 on I- 55 and filled his truck with gasoline. Leaving the station, they saw Robertson putting diesel fuel into his truck. Watts stopped beside Robertson's truck, and Williams asked Robertson if he wanted to see a roof that Williams had put on a "mansion" in Madison County. Watts parked his truck; Watts and Williams got into Robertson's truck; and the three went to see the roof (despite Watts' purported appointment in Canton). Later, when those three returned to the Texaco station in Robertson's truck, three cars of FBI and DEA agents pulled in behind them, detained them for approximately 25-30 minutes, photographed them, searched their persons as well as Robertson's and Watts' trucks, but eventually released all three without arresting them.

It is noteworthy that (1) Williams maintains that these events took place at the Texaco station at Exit 108 on I-55, but Langlois testified that they occurred at the service station across the street from the Texaco station, and (2) Langlois never saw fuel purchased for any of the vehicles.

Sometime after the vehicles...