U.S. v. Hare, 96-41099

• Citation: 150 F.3d 419
• Decision Date: 05 August 1998
• Docket Number: No. 96-41099,96-41099
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Bruce HARE; John Timothy Majors, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 419

150 F.3d 419

UNITED STATES of America, Plaintiff-Appellee, v. William Bruce HARE; John Timothy Majors, Defendants-Appellants.

No. 96-41099.

United States Court of Appeals Fifth Circuit.

Aug. 5, 1998.

Joseph R. Batte, Paul E. Naman, Beaumont, TX, for Plaintiff-Appellee.

Susan Graham James, Montgomery, AL, for Hare.

James A. DeLee, Port Arthur, TX, for Majors.

Appeals from the United States District Court for the Eastern District of Texas.

Before DUHE, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

On May 22, 1996, a jury convicted William Bruce Hare and John Timothy Majors for their possession of marihuana with the intent to distribute and their participation in a conspiracy to distribute marihuana. On appeal, Hare and Majors challenge both the validity of their convictions and the duration of their sentences. We affirm.

I. Factual and Procedural Background

On November 16, 1995, Roy Thomas Simmons and Gregory Alexander Mouton were arrested for the possession of approximately five pounds of marihuana. This marihuana was discovered by two Texas Department of Public Safety (Texas DPS) Troopers in connection with a routine traffic stop on Interstate 10. In an effort to minimize their criminal liability, Simmons and Mouton agreed to help the authorities arrest Hare, who had supplied them with the five pounds of marihuana seized during the traffic stop.

After Simmons and Mouton described their prior dealings with Hare, Sergeant Moore of the Texas DPS Narcotics Service ordered the surveillance of Hare's residence. While observing Hare's residence, Sergeant Greer, also of the Texas DPS Narcotics Service, saw Hare and Majors driving a blue Buick and saw Tamorra Lynn Pinkston driving a white Dodge Intrepid. Moore also convinced Mouton to telephone Hare and initiate negotiations regarding an additional purchase of marihuana. These calls were recorded by Moore with Mouton's permission. On November 18, 1995, Hare agreed to deliver 50 pounds of marihuana to Mouton the following day in Orange, Texas. Moore and Greer then decided to intercept this shipment and enlisted the aid of other law enforcement officers to carry out their plan.

On November 19, 1995, Hare spoke with Mouton and confirmed the delivery of the Marihuana in Orange. Pinkston also contacted Mouton and told him that she and Hare would be traveling in a white car. This information was relayed to Greer, who, along with other officers involved in the operation, was positioned on Interstate 10 between Hare's residence and Orange. Greer eventually spotted Hare and Pinkston traveling in the white Dodge that he had previously seen at Hare's residence. He also identified Majors and a female companion following in the blue Buick that he had earlier observed at Hare's residence.

Greer decided to follow Majors and advised Sergeant Gary Porter, a member of the Jefferson County Narcotics Task Force, to follow Hare. While following Hare and Pinkston in Jefferson County, Porter noticed the Dodge twice weave out of its lane. Porter then stopped and detained Hare and Pinkston.

Shortly after Porter stopped Hare and Pinkston, Greer observed the Buick being driven by Majors weave onto the shoulder of the highway. Greer then informed DPS Trooper Daniel Young, who was also following Majors, that he had observed Majors commit a traffic violation. Young then twice witnessed the Buick leave its lane. After the last of these violations, Young and Greer stopped Majors in Orange County.

During the stop, Greer and Young questioned Majors and his companion about their destination and received conflicting answers. They also noticed that Majors was extremely nervous. When Greer and Young asked for consent to search the Buick, Majors refused. Greer then decided to detain Majors until Porter, who commanded a drug-sniffing dog, could arrive. This detention lasted approximately ten minutes. When Porter arrived, he immediately used his canine to sniff around the perimeter of the Buick. The dog alerted on the trunk of the car. When the officers searched the trunk, they discovered approximately 50 pounds of marihuana. After Young arrested Majors, the officers searched the interior of the Buick. This search produced 200 tablets of a narcotic known as "ecstasy."

The following day, Moore obtained a search warrant for Hare's residence. The search turned up marihuana in the kitchen. In the master bedroom, the officers executing the warrant found ledgers linking Hare to the distribution of over 660 pounds of marihuana, additional marihuana, and a firearm on a nightstand.

On February 8, 1996, a federal grand jury returned a superseding indictment charging Hare, Majors, and Pinkston with conspiracy to distribute marihuana. In addition, Hare and Majors were each charged with possession with the intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1). The defendants were tried together before a jury and Hare and Majors were found guilty on both counts. ¹ The district court sentenced Hare to concurrent sentences of 300 months imprisonment for his conspiracy conviction and 120 months imprisonment for his possession conviction. Majors received concurrent sentences of 51 months imprisonment for each conviction.

II. DISCUSSION

A. Defendant Hare

1. The Admissibility of Hare's Eleven-Year-Old Conviction for Possession with the Intent to Distribute Marihuana

Hare challenges the district court's admission of an eleven-year-old conviction for possession with intent to distribute marijuana. Although Hare has conceded that under Fed. Rule Evid. 404(b), his prior conviction was relevant to the issue of his intent, he claims that the district court erred when deciding that the probative value of his eleven-year-old conviction was not substantially outweighed by its prejudicial and cumulative effect. Fed.R.Evid. 403; United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc). We review a district court's decision to admit evidence under Rule 403 for an abuse of discretion. United States v. Chavez, 119 F.3d 342, 346 (5th Cir.1997).

According to Hare, the probative value of his prior conviction was slight, if for no other reason than its age. Cf. Fed.R.Evid. 609(b) (adopting a ten-year time limit, absent unusual circumstances, on the use of prior convictions for impeachment purposes). With respect to the cumulative effect of this evidence, Hare contends that this additional evidence of his intent was entirely unnecessary because the Government's remaining evidence of guilt was overwhelming. With respect to the prejudicial effect of his prior conviction, Hare notes that some risk of prejudice from a conformity inference remained even after the district court properly instructed the jury that it could only consider this evidence as it related to Hare's intent. Accordingly, Hare concludes that his prior conviction should have been excluded because its probative value was substantially outweighed by its prejudicial and cumulative effect.

Hare's contention is not without merit. The Government had ample evidence of Hare's guilt, including the physical evidence linking Hare to a large quantity of drugs, the audiotapes of Mouton's conversations with Hare regarding the delivery of a large quantity of marihuana, and the testimony of Mouton and the law enforcement officers who arrested Hare and searched his residence. Moreover, the probative value of the prior conviction on the question of intent was slight and its introduction into evidence, even when accompanied by a limiting instruction, did pose some risk of unfair prejudice given that Hare was once again charged with possession with the intent to distribute marihuana. Nevertheless, we need not decide whether the district court abused its discretion when admitting Hare's prior conviction, for Hare is caught in a catch-22: Even if the district court improperly admitted his prior conviction because it was unnecessarily cumulative in light of the overwhelming nature of the evidence against him, the remaining evidence convinces us that that the error was harmless. See, e.g., United States v. Tomblin, 46 F.3d 1369, 1388 (5th Cir.1995) (applying harmless error analysis when a district court abused its discretion under Rule 403). The overwhelming evidence against Hare in this case points to one inescapable conclusion: Hare is guilty of the crimes charged in the indictment and the jury could not have found otherwise. Accordingly, Hare is not entitled to a new trial on the basis of the district court's decision to admit into evidence his eleven-year-old conviction.

2. The Authenticity of Six Audio Tapes Made By Moore

Hare argues that the district court abused its discretion under United States v. Buchanan, 70 F.3d 818, 827 (5th Cir.1995), by admitting into evidence four audio tapes of statements he made to Mouton and two recordings of messages he left on Mouton's voicemail. According to Hare, these tapes were not properly authenticated. For each audio recording to be properly authenticated, the Government was required to show: (1) the operator's competency; (2) the fidelity of the recording equipment; (3) the absence of material alteration; and (4) the identification of relevant sounds or voices. Id. The district court may, however, admit a recording in the absence of these requirements if it is convinced that the recording reproduces the auditory experience. Id. We have carefully reviewed the record and have determined that the requirements of Buchanan were met through the comprehensive testimony of Moore and Mouton. Thus, the district did not abuse its discretion in admitting these six recordings.

3. The Sufficiency of the Government's Notice of Intent to Seek a Career Offender Enhancement

Hare asserts that he lacked "notice of the Government's intent to use a prior conviction for career offender enhancement," in part, because "he was not personally served." In order for a district court to enhance a...