U.S. v. Green, 98-30484

• Decision Date: 30 June 1999
• Docket Number: No. 98-30484,98-30484
• Citation: 180 F.3d 216
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Paul Richard GREEN, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 216

180 F.3d 216

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Paul Richard GREEN, Defendant-Appellant-Cross-Appellee.

No. 98-30484.

United States Court of Appeals Fifth Circuit.

June 30, 1999.

Josette Louise Cassiere, Assistant U.S. Attorney, Shreveport, LA, for Plaintiff-Appellee-Cross-Appellant.

Rebecca L. Hudsmith, Lafayette, LA, for Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before JONES, DUHE, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Paul Richard Green having been convicted for, while a policeman, harboring a fugitive and a concomitant drug trafficking conspiracy involving that fugitive, the principal issue is presented by the Government's cross-appeal: error vel non in the sentencing court concluding that the jury's general guilty verdict for the conspiracy count (charging cocaine and preludes distribution) was "ambiguous" ipso facto and that, therefore, Green's sentence could not exceed the five-year statutory maximum for a conspiracy involving only preludes (statutory mandatory minimum for the cocaine charge is ten years). Green contests the sufficiency of the evidence and the admission of co-conspirator statements and rebuttal reputation testimony. We AFFIRM the convictions, but VACATE the sentence and REMAND for resentencing.

I.

Green, a Lafayette, Louisiana, police officer from 1973 until arrested in 1996 (he had attained the rank of captain), was charged with conspiracy to distribute cocaine and phenmetrazine tablets (preludes), in violation of 21 U.S.C. § 846 (Count I), and with harboring a fugitive, in violation of 18 U.S.C. § 1071 (Count II). A jury was unable to reach a verdict at Green's first trial in 1997.

But, at his second trial that year, a jury found him guilty on both counts. The Government presented evidence that Colomb, a drug dealer, paid Green monthly for information to help Colomb and others in his organization avoid arrest, including after Colomb became a fugitive in 1988. Colomb testified that he avoided arrest from 1981 until 1995 through information Green provided.

Claiming that, instead, Colomb was a confidential informant, Green denied taking money from him. Green admitted, however, that, while Colomb was a fugitive, they spoke by telephone, but claimed that he was attempting to persuade Colomb to surrender; denied assisting Colomb in avoiding apprehension; and stated that he last spoke with Colomb in 1991, five years before Green was arrested.

Post-verdict, the court denied judgment as a matter of law or a new trial. Green was sentenced inter alia, to five years imprisonment on each of the two counts, to run consecutively.

II.

Green contests the sufficiency of evidence for his convictions, and the admission of a co-conspirator's statements and rebuttal testimony regarding his reputation for trustworthiness. The Government challenges the court imposing, on the basis that the conspiracy verdict was "ambiguous", only a five-year sentence (statutory maximum for conspiracy based solely on preludes) on that count. (Alternatively, it contends that, even if the verdict was ambiguous, drug type and quantity are not elements of the conspiracy offense, but instead are sentencing factors. Concluding that the verdict is not ambiguous, we need not address this contention.)

A.

In reviewing Green's properly-preserved sufficiency of the evidence challenge, we must determine whether "a rational trier of fact could have found that the evidence, viewed in the light most favorable to the government, established guilt beyond a reasonable doubt". United States v. Truesdale, 152 F.3d 443, 446 (5th Cir.1998); FED. R.CRIM. P. 29. Along this line, authority hardly need be cited for the rule that "[i]t is the sole province of the jury, and not within the power of this Court, to weigh conflicting evidence and evaluate the credibility of witnesses". United States v. Millsaps, 157 F.3d 989, 994 (5th Cir.1998) (internal quotation marks and citation omitted). In the light of the conflicting testimony, especially by Green and Colomb, and the proper credibility choices for the jury, this was indeed a classic case for a jury. Green fails to hurdle these almost insurmountable obstacles.

1.

The harboring statute provides, in pertinent part:

Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined....

18 U.S.C. § 1071. "Section 1071 requires some affirmative action to support a conviction. Failure to disclose a fugitive's location and giving financial assistance do not constitute harboring, but any physical act of providing assistance ... to aid the prisoner in avoiding detection and apprehension will make out a violation of section 1071". United States v. Stacey, 896 F.2d 75, 77 (5th Cir.1990) (internal quotation marks and citation omitted).

Conviction under § 1071 requires proof beyond a reasonable doubt that the defendant: (1) knew that a federal arrest warrant had been issued; (2) engaged in physical acts that aided the fugitive in avoiding detection and apprehension; and (3) intended to prevent the fugitive's discovery. United States v. Zerba, 21 F.3d 250, 252 (8th Cir.1994). Green maintains that the Government failed to prove either his knowledge of Colomb's federal arrest warrant or, after learning of its existence, his providing assistance to him.

a.

Regarding his November 1991 federal warrant for unlawful flight to avoid prosecution, Colomb testified that, in late 1991, he received a copy of a confidential Lafayette Police Department report from his brother, Harold Colomb. Another brother, Paul Colomb, a Lafayette attorney, testified that the report, in a sealed envelope, was delivered by an unknown person to his residence; and that he took the report to Harold Colomb, who lived in Texas, and might have contact with Colomb. The report stated, inter alia, that Colomb's federal warrant was in effect as of 18 November 1991. Colomb testified that he discussed the report with Green.

Green admitted knowing that Colomb was a fugitive from a 1988 state drug racketeering indictment, but asserts that, nevertheless, he was not aware until trial of the federal warrant. In this regard, he denied seeing the confidential report before the Government revealed it then. But, of course, the jury was entitled to discredit Green's testimony and to find instead that he was aware of the report's contents, including concerning the federal warrant.

And, there was other circumstantial evidence from which the jury could have concluded that Green was aware of the warrant. An FBI Agent testified that police agencies are advised of federal fugitive warrants, and that they are put into a computer database to which all police agencies, including the Lafayette Police Department, have access.

b.

Concerning Green acting after November 1991 to aid Colomb in avoiding detection and apprehension, the Government presented evidence that: Colomb applied for employment in Houston, Texas, on 23 May 1994, using the name "Ronald Prince" (Colomb's deceased cousin); Colomb asked Green to ensure that this alias did not have any outstanding warrants; on 26 May, three days after Colomb applied for employment, a Lafayette Police Department computer was used to inquire about Ronald Prince, revealing a valid Louisiana driver's license and no record of traffic violations; telephone toll records reflected that a telephone call was made that same day from Green's residence to a pay telephone in Houston; Colomb was living in the Houston area; and Colomb was hired on 6 June, 11 days after the computer check and telephone call.

In addition, Colomb testified that Green provided him with information that enabled him to avoid arrest during the entire time he was a fugitive; and that Green brought money to him on many occasions during that period.

2.

A 21 U.S.C. § 846 drug trafficking conspiracy conviction requires proof beyond a reasonable doubt that: (1) there was an agreement between two or more persons to violate the narcotics laws; (2) the defendant knew of the conspiracy and intended to join it; and (3) he voluntarily participated in it. E.g., United States v. Medina, 161 F.3d 867, 872 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1344, --- L.Ed.2d ---- (1999).

Green's sufficiency challenge for the conspiracy is premised almost entirely on attacking Colomb's credibility. But, again, credibility choices are for the jury.

Colomb testified that: in January 1981, while at the Lafayette Airport to pick up preludes, he was arrested by Green and three other officers; from inside Colomb's vehicle, Green removed a small bag containing $5,000 and concealed it under his arm; when he asked Green's plans for the bag, Green responded "don't worry about it"; no one was standing next to Colomb when he made the inquiry; the next day, he went to Green's home, and Green gave him the $5,000; Colomb gave $500 of it to Green; and, thereafter, he paid Green monthly for protection and information needed to avoid apprehension.

Green contends that, as a matter of law, Colomb's testimony regarding the 1981 arrest is incredible, claiming that it is factually impossible for him to have searched Colomb's car, seized the money, and then discussed it with Colomb, who was under arrest and handcuffed, without alerting other arresting officers. And, based on Colomb's claimed lack of credibility on that point and motivation to lie, Green maintains that Colomb's testimony is insufficient to support the conspiracy verdict.

"Testimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or to events which...