U.S. v. Featherson, 90-1681

• Decision Date: 18 December 1991
• Docket Number: No. 90-1681,90-1681
• Citation: 949 F.2d 770
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney FEATHERSON, a/k/a River Rat, James Edward Langston, and Ray Langston, a/k/a Big Ray, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 770

949 F.2d 770

UNITED STATES of America, Plaintiff-Appellee, v. Rodney FEATHERSON, a/k/a River Rat, James Edward Langston and Ray Langston, a/k/a Big Ray, Defendants-Appellants.

No. 90-1681.

United States Court of Appeals Fifth Circuit.

Dec. 18, 1991.

Bob Craig, Lubbock, Tex. (Court-appointed), for J.E. Langston.

Floyd Holder, Lubbock, Tex. (Court-appointed), for Featherson.

Tommy Turner, Lubbock, Tex. (Court-appointed), for Ray Langston.

Joe C. Lockhart, Asst. U.S. Atty., Fort Worth, Tex., C. Richard Baker, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Lubbock, Tex., for U.S.

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

Before KING, JOHNSON, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants Rodney Featherson ("Featherson"), James Edward Langston ("James"), and Ray Langston ("Ray") appeal their convictions for various controlled substance violations. They allege: (1) the district court abused its discretion in denying the motions of severance of James and Ray; (2) the district court exceeded its discretion by allowing the jury to use transcripts of audio recordings; (3) there is insufficient evidence to support their convictions of conspiracy with intent to distribute; (4) there is insufficient evidence to support the convictions of James and Featherson for use of a firearm during a drug trafficking crime; and (5) the district court gave an incorrect jury instruction. Finding no error, we affirm.

I. BACKGROUND

On April 25, 1990, James, Ray and Featherson were charged in a twenty-one count indictment involving various controlled substance violations, including conspiracy to possess with intent to distribute fifty grams or more of cocaine base.

During the period from September 19, 1989 to March 29, 1990, Bureau of Alcohol, Tobacco and Firearms ("ATF") agent Felix Garcia ("Agent Garcia") used confidential informants, Eddie Ward ("Ward") and Shawn Harris ("Harris"), to make numerous purchases of cocaine base or crack cocaine, primarily in the 1700 block of Avenue B ("the flats") in Lubbock, Texas. To prepare for these controlled buys, Agent Garcia would search the informants, place a listening device on them, and then give the informants instructions and funds to purchase crack cocaine. The informants would then make such purchases, and the broadcast of these transactions was then monitored and recorded by surveillance agents. After the transactions, the informants would give the crack cocaine and any remaining buy-money to Agent Garcia. The confidential informants purchased cocaine base or crack cocaine from James, Ray, and Featherson.

These drug transactions played out as follows: on September 19, 1989, Ward went to the flats and James sold him cocaine base; on October 2, 1989, James sold Ward more cocaine base; on October 16, 1989, Ray sold Ward cocaine base at the flats; and, on October 20, 1989 and October 24, 1989, Ray again sold Ward cocaine base at the flats.

Then, on November 19, 1989, the Lubbock police found Featherson with cocaine base in his car. Featherson also had a .25 semi-automatic pistol, a .357 caliber Smith & Wesson, and a .22 caliber revolver in his possession. On January 15, 1990, the Lubbock police found James in an apartment in the flats where James and Ray were attempting to manufacture cocaine base. In addition to the drugs found in the apartment, James had a loaded .380 semi-automatic pistol which the police officers found between a mattress and box springs approximately six to eight feet from where James had been standing.

The controlled buys continued: on March 12, 1990 and again on March 15, 1990, Ray referred Ward to Featherson who sold Ward cocaine base; on March 27, 1990, James and Ray sold cocaine base to Harris; and on March 29, 1990, Ray again sold Harris cocaine base. On March 30, 1990, several federal search warrants were executed on several rooms in the flats; one of these rooms was in Ray's temporary possession. All three defendants were subsequently indicted.

Following a jury trial, James was convicted of eleven counts of drug-related violations; Ray was convicted of twelve counts of drug-related violations; and Featherson was convicted of eight counts of drug-related violations. James was given two sentences--one of 136 months' imprisonment and one of 60 months' imprisonment; ¹ Ray was sentenced to 188 months' imprisonment. Featherson was given two sentences--one of 135 months' imprisonment and one of 60 months' imprisonment. Each defendant also received a five-year term of supervised release. All three defendants timely appealed.

II. THE MOTIONS TO SEVER

James and Ray argue that the district court erred by denying their separate motions for severance. As a general rule, defendants who are indicted together are tried together. See United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989) (citation omitted). This rule is especially strong when the defendants are charged with committing the same conspiracy. See United States v. McGuire, 608 F.2d 1028, 1031 (5th Cir.1979), cert. denied, 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 262 (1980) (citation omitted).

This court reviews a district court's denial of a motion for severance for abuse of discretion. See United States v. De Varona, 872 F.2d 114, 120-21 (5th Cir.1989) (citation omitted). To demonstrate abuse, defendants must show that the joint trial prejudiced them to such an extent that the district court could not provide adequate protection, and the prejudice outweighed the government's interest in the economy of judicial administration. Id. The denial of a motion for severance will result in reversal only where defendants can show that they were unable to obtain a fair trial without a severance. See United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978) (citations omitted). Furthermore, reversal is only warranted when the appellant demonstrates that the trial court was unable to afford protection against compelling prejudice. Id. Thus, a showing of compelling prejudice is required before we may overrule the district court's decision regarding severance. See United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980) (citation omitted).

James and Ray contend that the evidence showed separate transactions that are similar only in that they occurred in the same location with the same informants during the same time period. The evidence, however, reveals cooperative conduct among the three defendants. Ray and Featherson distributed cocaine base. Ray and James participated in jointly manufacturing and distributing cocaine base, and Ray made referrals to Featherson. The Government made a complete and coherent case against each defendant. The jury considered the counts against each defendant individually, and returned the guilty verdicts against defendants separately; there is no indication that the jury did not consider each defendant individually or each offense separately. See Arzola-Amaya, 867 F.2d at 1516 (jury able to compartmentalize evidence where trial court explicitly instructed jury to consider each offense separately and each defendant individually). Thus, the defendants' desire to be tried separately was not shown to have outweighed considerations of judicial economy, and the defendants have failed to show prejudice. Accordingly, we find that the district court did not abuse its discretion in denying defendants' motions for severance.

III. THE TRANSCRIPTS OF AUDIO RECORDINGS

Audio recordings that were made of the undercover drug transactions were played to the jury, and the district court allowed the jury to use the Government's transcripts of these recordings. James, Ray, and Featherson argue that the district court exceeded its discretion by allowing the jury to use these transcripts of audio proceedings. Specifically, the defendants contend that they did not have the opportunity to review the Government's transcripts, that the transcripts contain many errors, and that the transcripts are generally unreliable. Defendants cite United States v. Onori, 535 F.2d 938 (5th Cir.1976) (discussing procedures to be followed where disputed transcripts of tape recordings are involved) as support for their argument.

If the defendants had intended to urge this issue on appeal, then the necessary materials should have been provided to this court. See Fed.R.App.P. 10(b)(2) (explaining appellant's burden to assemble the record on appeal); see also Adams v. Johns-Manville Sales Corp., 783 F.2d 589, 592 (5th Cir.1986) (burden of presenting an adequate record on appeal is on the appellant). These tapes and transcripts, however, were not provided with the record so we are unable to review the merits of the defendants' contentions. In any event, the defendants waived their right to complain about the transcripts because they did not move for a recess or a continuance after the transcripts were admitted in the district court. Cf. United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (defendant waives claim of prejudice--due to delayed disclosure of impeachment evidence--when he fails to object, file a motion for dismissal, or a motion for continuance).

IV. SUFFICIENCY OF EVIDENCE ISSUES

In reviewing a challenge to the sufficiency of the evidence in a criminal case, it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. See United States v. Hall, 845 F.2d 1281, 1283 (5th Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988) (citation omitted). We review the evidence in the light most favorable to the Government, making all reasonable inferences and credibility choices in favor of the verdict. See United States v. Evans, ...