U.S. v. Christopher
| Decision Date | 21 February 1991 |
| Docket Number | No. 89-7035,89-7035 |
| Citation | 923 F.2d 1545 |
| Parties | 33 Fed. R. Evid. Serv. 1465 UNITED STATES of America, Plaintiff-Appellee, v. Sodonnie Leroy CHRISTOPHER, Catherine Lyvonne Allen, John Christopher, Beverly Anita Irby, a/k/a Mechiko Presley, a/k/a Tamiko Presley, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Daniel L. McCleave, McCleave & Patterson, Mobile, Ala., for Sodonnie Christopher.
James M. Byrd, Mobile, Ala., for Catherine Lyvonne Allen.
Joseph O. Kulakowski, Mobile, Ala., for John Christopher.
J.B. Sessions, III, U.S. Atty. and E.T. Rolison, Asst. U.S. Atty., Mobile, Ala., for the U.S.
James W. Bodiford, Jr., Mobile, Ala. (court appointed), for Beverly Anita Irby.
Appeal from the United States District Court for the Southern District of Alabama.
Before JOHNSON and HATCHETT, Circuit Judges, and SMITH *, Senior Circuit Judge.
In another crack cocaine case, we affirm the convictions of all the appellants, but vacate the sentence of one appellant and remand for resentencing of that appellant.
In July, 1988, the Mobile Police Department, Mobile, Alabama, received a tip that John Christopher, Catherine Allen, and Mechiko Presley were distributing cocaine. On July 29, 1988, Mobile police officers arrested Sodonnie Christopher and Jameson Christopher (two of John Christopher's sons) for the sale of crack cocaine.
In August, 1988, after surveillance of the residence at 2264 Joy Lane, Mobile, Alabama, Mobile police officers executed a warrant to search the residence. Upon their arrival at the residence, John Christopher ran down a hallway toward the rear of the residence in an attempt to escape. Upon being captured, John Christopher stated that his name was Billy Davis, and in his wallet, the police officers discovered false identification in the name of Billy Davis. Later, while handcuffed, John Christopher again attempted to escape. Upon being recaptured, Christopher said: "if you were looking at the time I was looking at, you'd run too."
During the search of a bedroom, which John Christopher identified as his, the officers found a red suitcase containing: triple beam scales; one to two thousand small zip-lock bags; crack cocaine; several memo books; a heat-sealing machine; rulers; powdered cocaine in a small zip-lock bag; boxes of sandwich bags; a stapler or hole-punch; and a set of keys. The officers also discovered crack cocaine in a zip-lock bag, and a briefcase containing $4,970 in cash.
In addition to the memo books found in the red suitcase, the officers also found a memo book on a television set in the living room. These memo books contained the names of persons selling crack cocaine for John Christopher. In a bathroom in the house, the officers discovered a packet of crack cocaine wrapped in a zip-lock bag and $300 in the sink.
In addition to John Christopher, several other people were at the residence, including Catherine Allen, Mechiko Presley, Sodonnie Christopher, and Jameson Christopher. The Mobile Police Department's identification officer found Catherine Allen's fingerprints on two of the zip-lock bags found in the red suitcase. The officer also identified Mechiko Presley's fingerprints on two of the zip-lock bags, as well as on the seal-a-meal machine, found in the red suitcase.
A grand jury charged John Christopher, Catherine Allen, Mechiko Presley and Sodonnie Christopher in a two-count indictment with (a) conspiracy to possess crack cocaine and cocaine base with intent to distribute (Count I), and (b) distribution and possession of crack cocaine and cocaine base with the intent to distribute (Count Sodonnie Christopher pleaded guilty to Count I. After a trial, a jury found John Christopher, Catherine Allen and Mechiko Presley guilty on both counts of the indictment. At trial, Cheryl Martin, an indicted co-defendant, testified on behalf of the government against John Christopher, Presley, and Allen. 1
II), in violation of 21 U.S.C. Secs. 841(a)(1), 846, and 18 U.S.C. Sec. 2.
The district court sentenced John Christopher to life imprisonment without parole, and a five year term of supervised release. Additionally, the district court sentenced Sodonnie Christopher to 360 months in prison followed by a five year supervised release period, Mechiko Presley to 360 months in prison and a ten year supervised release term, and Catherine Allen to 360 Months in prison and a ten year period of supervised release.
John Christopher, Presley, and Allen contend that the district court erred when it admitted into evidence the hearsay testimony of Cheryl Martin. John Christopher also contends that the admission of Martin's hearsay testimony violated his sixth amendment right to confront witnesses against him. Further, John Christopher, Presley and Allen contend that insufficient evidence supported their convictions. Additionally, John Christopher contends that the district court (1) abused its discretion when it denied his motion for a mistrial based upon the government's alleged violation of Fed.R.Crim.P. 16, and (2) erroneously sentenced him under the Sentencing Guidelines. Finally, Sodonnie Christopher maintains that the district court should have sentenced him under the Sentencing Guidelines. Consequently, he contends that his sentence should be vacated and, further, that he should be given the opportunity to withdraw his guilty plea.
In response, the government contends that the district court ruled properly.
We address the following issues:
1. Whether the district court erred when it admitted in evidence Cheryl Martin's challenged testimony;
2. Whether sufficient evidence supported John Christopher's, Allen's and Presley's convictions for conspiracy to possess and possession of crack cocaine with intent to distribute;
3. Whether the district court abused its discretion when it denied John Christopher's motion for a mistrial;
4. Whether the district court erred when it sentenced Christopher under the Sentencing Guidelines;
5. Whether the district court properly sentenced Sodonnie Christopher under the Sentencing Guidelines; and
6. Whether Sodonnie Christopher should be allowed to withdraw his guilty plea.
Federal Rule of Evidence 801(d)(2)(E) provides that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay and, consequently, may be offered in evidence for the truth of the matter asserted.
When determining whether a co-conspirator's statement is admissible over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that there was a conspiracy involving the declarant and the defendant against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy.
We will only overturn the district court's findings of fact if they are clearly erroneous. United States v. Perez, 824 F.2d 1567, 1572 (11th Cir.1987). "[E]videntiary and other non-constitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant's substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted." United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990); Fed.R.Evid. 103.
The sixth amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him." U.S. Const. amend. VI. "Both the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant's interest in testing the accuracy of evidence through personal confrontation and cross-examination." United States v. Lang, 904 F.2d 618, 625 (11th Cir.1990) (quoting United States v. Thevis, 665 F.2d 616, 632 (5th Cir.Unit B), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982)).
"Despite the common root of the confrontation clause and the rules governing hearsay, not all hearsay will violate the confrontation clause." Lang, 904 F.2d at 625. In United States v. Chapman, 866 F.2d 1326 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989), we noted that the prosecution must meet two requirements before hearsay evidence will be admissible:
First, the prosecution must show that the out-of-court declarant is unavailable to testify despite its good faith efforts to obtain his presence at trial. Second, the prosecution must show that the out-of-court statements bear sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth.
866 F.2d at 1330 (citing Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Lang, 904 F.2d at 625-26 (citation omitted) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89...
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