U.S. v. Burns

• Decision Date: 02 May 2008
• Docket Number: No. 07-50321.,07-50321.
• Citation: 526 F.3d 852
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy Delando BURNS, aka Twisted Black, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.3d 852

UNITED STATES of America, Plaintiff-Appellee, v. Tommy Delando BURNS, aka Twisted Black, Defendant-Appellant.

No. 07-50321.

United States Court of Appeals, Fifth Circuit.

May 2, 2008.

Joseph H. Gay, Jr., Asst. U.S. Atty., Angela S. Raba, San Antonio, TX, for Plaintiff-Appellee.

Mike DeGeurin, Foreman, DeGeurin & Nugent, Houston, TX, for Defendant-Appellant.

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

Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.^*

SOUTHWICK, Circuit Judge:

Tommy Delando Burns was convicted by a jury of one count of conspiracy to possess with intent to distribute crack cocaine and two counts of aiding and abetting the distribution of crack cocaine. He was sentenced to 360 months' imprisonment on each count and five years supervised release with all sentences to run concurrently. Burns appeals his conviction alleging (1) ineffective assistance of counsel; (2) improper remarks by the prosecutor at trial; and (3) insufficiency of the evidence to support the conviction. Burns also challenges his sentence in light of Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and the subsequent amendments to the Sentencing Guidelines regarding the disparity in sentencing of crack and powder cocaine offenses. We affirm Burns's conviction but vacate his sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 2, 2005, members of the Midland, Texas police department executed a search warrant at the home of Angela Hutson. During the search, they discovered cocaine in the home. In addition to the cocaine, officers also found razor blades with cocaine residue, as well as a Western Union receipt documenting a wire transfer of funds from Angela Hutson to Burns. Officers also found a poster or CD cover depicting the artist "Twisted Black."¹ After the search, Hutson became a cooperating witness for the Government and agreed to identify her cocaine suppliers. Burns was identified as a supplier. An investigation ensued, and a number of other individuals identified Burns as a cocaine supplier. Based on this evidence, Burns and a co-defendant Lashan Shelton were indicted on four counts: (1) conspiracy to possess, with intent to distribute, 50 grams or more of cocaine base or "crack"; (2) aiding and abetting the distribution of 500 grams of cocaine; (3) aiding and abetting the distribution of 5 grams or more of crack; and (4) aiding and abetting the distribution of 50 grams of crack.² All of these counts arose from transactions which occurred in either 2001 or 2005.

The case was tried to a jury. The Government presented thirteen witnesses describing Burns's involvement in the sale and distribution of cocaine. Eight of the Government's witnesses testified as cooperating witnesses pursuant to plea agreements in which they were seeking reduced sentences for testifying against Burns. Burns did not testify but presented eight witnesses in his defense. The jury found Burns guilty on all counts except Count 2, which was aiding and abetting the distribution of 500 grams of cocaine. A mistrial was declared on that Count.

After the conviction, the district court held a sentencing hearing. The district court calculated Burns's sentence, holding Burns responsible for 1,022.15 grams of crack cocaine, and granting a two-level upward adjustment in sentence for obstruction of justice. After taking into account Burns's criminal history category, his Guideline range was 360 months to life on counts one and four and 360 to 480 months on count three. The court sentenced Burns to 360 months' imprisonment and 5 years of supervised release on each count, to run concurrently. Burns timely appealed the conviction and sentence.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Burns first asserts that he was denied effective assistance of counsel. One of his attorneys had previously represented a witness who testified for the Government. Burns alleges that due to the prior representation, his lawyers labored under a conflict of interest, failed adequately to cross-examine the witness, and Burns's defense was harmed as a result.

The representation to which a defendant is entitled under the Sixth Amendment of the Constitution must be free from any conflict of interest. United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir.2006). As a general rule, a conflict exists when defense counsel allows a situation to arise that tempts a division in counsel's loyalties. Id. at 243. To establish a Sixth Amendment violation on the basis of a conflict of interest the defendant must demonstrate: (1) that his counsel acted under the influence of an actual conflict; and (2) that the conflict adversely affected his performance at trial. United States v. Culverhouse, 507 F.3d 888, 892 (5th Cir.2007). The question of whether a conflict existed and whether the conflict had an adverse effect on the representation are mixed questions of law and fact which are reviewed de novo. United States v. Infante, 404 F.3d 376, 391 (5th Cir.2005).

An actual conflict is one that "adversely affects counsel's performance." Infante, 404 F.3d at 392. There must be an "actual" conflict and not "a speculative or potential" conflict. Id. at 391. Only if counsel had to choose between "the divergent or competing interests of a former or current client" is there an actual conflict. Garcia-Jasso, 472 F.3d at 243.

The question of whether a disqualifying conflict exists is highly fact-dependent. Id. at 392. Factors that this Court has found to be particularly relevant include (1) whether the attorney has confidential information that is helpful to one client but harmful to the other client; (2) whether and how closely related is the subject matter of the multiple representations; (3) how close in time the multiple representations are; and (4) whether the prior representation has been unambiguously terminated. Id. Furthermore, the defendant must show more than that his attorney cross-examined a former client before a hypothetical conflict will be considered an actual one. Perillo v. Johnson, 205 F.3d 775, 801-02 (5th Cir.2000).

The conflict here remained purely hypothetical. One of Burns's attorneys represented a Government witness in an asset forfeiture administrative proceeding four years prior to this trial. The representation had been unequivocally terminated; the facts and issues of the previous representation had no relation to the charges brought against Burns. The attorney had very limited contact with the former client and in those contacts did not discuss the source of the forfeited funds. Furthermore, out of an abundance of caution, the affected attorney's co-counsel cross-examined the witness.

The burden is on Burns to show that "there was some plausible alternative defense strategy that could have been pursued, but was not, because of the actual conflict." Infante, 404 F.3d at 393. Burns asserts that defense counsel refrained from inquiring into the forfeiture proceedings because of the conflict. The record does not support this contention. Instead, the record demonstrates that Burns's attorney challenged the witness' credibility at length in an attempt to demonstrate that the witness really did not know Burns, and was testifying to obtain favorable treatment from the Government. There is nothing to indicate that the failure to inquire about the prior forfeiture was the result of the "divided loyalties" which would result in an actual conflict as opposed to a tactical trial strategy.³ United States v. Martinez, 151 F.3d 384, 393 (5th Cir.1998). Because Burns has not demonstrated that counsel labored under an actual conflict of interest, we do not have to address his claim that he was entitled to a Garcia-Jasso hearing to ensure that he knowingly waived the conflict. Garcia-Jasso, 472 F.3d at 244.

B. Prosecutorial Misconduct

Burns challenges two comments made by the prosecutor during the trial. The first statement was made while a defense witness was being cross-examined, and the second was made during the Government's closing argument. Both involve the credibility of Government witness Angela Hutson.

Improper statements by a prosecutor constitutes reversible error when "the defendant's right to a fair trial is substantially affected." United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994). Our review of challenged statements occurs in two steps. First we determine whether the prosecutor made an improper remark. If so, then we examine whether, in the context of the entire trial, the remark "prejudiced the defendant's substantive rights." United States v. Morganfield, 501 F.3d 453, 467 (5th Cir.2007).

The first statement occurred in the cross-examination of defense witness Sylvia Villalba. The defense wanted her to testify as to Hutson's reputation for truthfulness. On cross-examination, the Government asked Villalba this:

Ms. Villalba, you're aware that, specifically, Ms. Hutson testified before a jury in a very similar case for Mr. Perkins, and that jury, from the results of that verdict, found her to be truthful; is that correct?

MR. GREENE: I object.

COURT: Sustained.

The second statement occurred during closing arguments. The prosecutor was describing the testimony of various defense witnesses:

Inecia Perkins. Inecia Perkins [is] the [sister] of the convicted drug dealer, Zet Perkins. Zet Perkins is involved in this case. Zet Perkins went to the pen because of Angela Hutson's testimony from the last trial. You heard all of that. Does Inecia Perkins sound like an unbiased person to ask her opinion to Angela Hutson? Does it sound like somebody who is mad because this lady testified in her brother's trial? (Emphasis added.)

In these comments or questions, the Government was referring to a prior trial. Both comments referred to a central prosecution witness against Burns, Angela Hutson. Hutson had testified in a...