U.S. v. Dukes

• Decision Date: 16 April 1998
• Docket Number: No. 97-50120,97-50120
• Citation: 139 F.3d 469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Clayton DUKES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 469

139 F.3d 469

UNITED STATES of America, Plaintiff-Appellee, v. James Clayton DUKES, Defendant-Appellant.

No. 97-50120.

United States Court of Appeals, Fifth Circuit.

April 16, 1998.

Richard L. Durbin, Jr., Asst. U.S. Atty., Michael W. McCrum, San Antonio, TX, for Plaintiff-Appellee.

Charles B. Gorham, San Antonio, TX, for Dukes.

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

Before KING, BARKSDALE and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant James Clayton Dukes ("Dukes") appeals his conviction after jury trial on a three count indictment for 1) aiding and abetting distribution of cocaine base within one thousand feet of a school (a violation of 21 U.S.C. §§ 841(a)(1) & 860), 2)

possessing with intent to distribute cocaine base (a violation of 21 U.S.C. § 841(a)(1)), and 3) conspiring to distribute and possess with intent to distribute cocaine base within one thousand feet of a school (a violation of 21 U.S.C. §§ 846 & 860). Dukes was sentenced to three concurrent 168 month prison terms, supervised release and $650 in monetary sanctions. We affirm.

FACTS

In February 1994, undercover law enforcement authorities were investigating the drug distribution activities of Robert Long. Long was not cooperating, but was the target of the investigation. Long accompanied an undercover agent to Camelot Apartments and purchased some drugs. The undercover officers did not observe from which apartment Long procured the drugs, but concluded that it was apartment number 1107 (or perhaps one in that vicinity). Dukes leased apartment 1107 at that time. Long was later arrested and agreed to cooperate with authorities. He identified Dukes as his supplier. Agents set up two controlled buys between Long and Dukes. In the first one, on September 22, 1994, a third party brought the drugs to sell to Long, and Dukes kept a $50 cut out of the transaction. Long had been fitted with a transmitting device that allowed agents to listen to and record the transaction. On the second attempt, on October 7, 1994, no drug sale was consummated. After that sale fell through, there was a high speed chase, during which Dukes threw a package of cocaine base out of the passenger window of a car. His arrest followed, after which Dukes made a statement that he knew there was crack in the car, that the crack belonged to the driver, and that Dukes threw it out on instructions from the driver.

MOTION TO SUPPRESS

Dukes challenges the trial court's denial of his motion to suppress the tape recording of the controlled drug buy. We must affirm a trial court's ruling on a motion to suppress unless, viewing the evidence in the light most favorable to the prevailing party, we determine that it is clearly erroneous or influenced by an incorrect view of the law. See United States v. Muniz-Melchor, 894 F.2d 1430, 1433-1434 (5th Cir.1990).

Dukes moved to suppress the tapes and transcripts of the conversations picked up over the wire Long wore during the September 22, 1994 controlled buy. He argued, inter alia, that Long's chronic abuse of cocaine had rendered him incompetent to voluntarily consent to the monitoring of his conversations, and that the tapes were of such poor quality that they were almost entirely unintelligible. The trial court initially announced that it could not understand what was said on the recording, and would not admit the recording into evidence. Later, the trial court held a second hearing on the motion, took the question under advisement and just prior to trial, denied the motion to suppress finding that the recording was sufficiently intelligible and that it constituted probative evidence. Further, the trial court found that Long gave knowing and voluntary consent. The trial court rejected Dukes's allegation that Long was so addicted to drugs that he lacked capacity to consent based on documents and testimony that indicated that Long was drug free prior to, during and after the September 22, 1994 buy.

a. Consent

In order to give valid consent, the person consenting to the recording of his conversations must be mentally competent to understand the nature of his act. See United States v. Elrod, 441 F.2d 353, 355 (5th Cir.1971)(examining consent in the context of a warrantless search). Further, the act of consent must be "the consensual act of one who knew what he was doing and had a reasonable appreciation of the nature and significance of his actions." Id. Dukes contends that the district court clearly erred in denying Dukes the opportunity to prove Long's incompetence through a court ordered psychiatric evaluation and that the Government failed to carry its burden of proving that the consent was valid.

There is no precedent for allowing or requiring the district court to order a third party witness to submit to a psychiatric evaluation.

United States v. Napier, 451 F.2d 552 (5th Cir.1971), relied on by Dukes, concerns an examination of an informant-witness, but does not address the issue of whether the district court had the legal authority to order such an examination. Further, there is sufficient evidence in the record to support the trial court's finding that Long was competent to consent to the recording. Dukes calls our attention to instances of Long's lack of recall under cross examination. These isolated instances, when viewed in the context of the entire record, do not call the district court's finding of competency into question. We therefore cannot say that the district court's decision regarding Long's competence was clearly erroneous or influenced by an incorrect view of the law.

b. Reliability of recordings and transcript

The tape recordings of the wire transmissions during the September 22, 1994 controlled buy were transcribed by a company under contract with the Drug Enforcement Administration ("DEA"). The transcriber noted that the tapes were flawed by "heavy static/background noise throughout." Further, at various places the notations "U.I." [for unintelligible] and "voices overlap" indicate that it was hard to understand the content of the tape recorded conversations. "[P]oor quality and partial unintelligibility do not render tapes inadmissible unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy." United States v. Stone, 960 F.2d 426, 436 (5th Cir.1992). The determination of trustworthiness of a tape recording is left to the sound discretion of the trial judge. Id.

On reviewing the record, we have determined that the district court's finding that the tape recording was sufficiently intelligible to be probative was not clearly erroneous.

AMBIGUITY OF 21 U.S.C. § 841

AND THE SENTENCING GUIDELINES

The indictment charged Dukes with violating 21 U.S.C. § 841, which defines separate offenses for conduct involving cocaine and cocaine base, prescribing more severe punishment for offenses involving cocaine base. Dukes moved to dismiss the indictment alleging that the two substances are the same, the statute is ambiguous and under the rule of lenity, he should be charged with the less severe offense, citing Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1752-53, 64 L.Ed.2d 381 (1980). The district court overruled the motion without a hearing, holding that this issue had been resolved against Dukes by other appellate courts.

In United States v. Flanagan, 87 F.3d 121 (5th Cir.1996), this Court considered an argument similar to the one raised by Dukes and rejected it. Flanagan pleaded guilty to a cocaine distribution offense. At sentencing, he argued that he "should be sentenced based on the penalty for powder cocaine, rather than the penalty for crack cocaine." Id. at 122. In support of that position, he alleged that because the chemicals are indistinguishable, the penalty provisions for cocaine base and powder cocaine are ambiguous. Id. at 124. This court in Flanagan rejected that argument, citing previous unpublished opinions and United States v. Thomas, 932 F.2d 1085, 1090 & n. 1 (5th Cir.1991)(stating "when cocaine is changed into cocaine base, it becomes a different chemical substance.") Id. Dukes attempts to distinguish his position from that rejected in Flanagan arguing that, unlike Flanagan, he did not plead guilty to the cocaine base offense, and his challenge attacks § 841 rather than the sentencing guidelines. Although we have never addressed the issue in the context of an ambiguity challenge to § 841, Flanagan 's rejection of the ambiguity challenge in the context of sentencing guidelines controls the issue. We therefore hold that the distinction between powder cocaine and cocaine base made for purposes of a § 841 conviction is not flawed by ambiguity.

Dukes also contends that the district court erred in applying the sentencing guidelines for "cocaine base" rather than the guidelines for "cocaine" because cocaine base and cocaine are chemically the same substance. This argument is likewise foreclosed by United States v. Flanagan, 87 F.3d 121 (5th Cir.1996).

SELECTIVE PROSECUTION

Dukes moved to dismiss the indictment based on his claim that "selective" prosecution of African-Americans for crack cocaine (as opposed to prosecution of Anglo-Americans for "powder" cocaine offenses) is improper. The district court rejected his request because he failed to establish a prima facie violation.

In order to prevail on a selective prosecution claim, Dukes must show that other similarly-situated offenders were not prosecuted, and that the government chose to prosecute him in a particular manner merely because he is an African-American. See United States v. Cooks, 52 F.3d 101, 105 (5th Cir.1995). Dukes argues on appeal that he was prevented from satisfying this two-part test because the district court denied his request to hire an expert. Again, Dukes's argument, based on the premise that there is no chemical difference between cocaine and cocaine base, is foreclosed by ...