U.S. v. Jones, s. 97-2176
| Citation | 160 F.3d 473 |
| Decision Date | 17 November 1998 |
| Docket Number | 97-2178,Nos. 97-2176,97-2177,s. 97-2176 |
| Parties | UNITED STATES of America, Appellee, v. Harold J. JONES, Appellant. UNITED STATES of America, Appellee, v. James O. CASHAW, Appellant. UNITED STATES of America, Appellee, v. John L. PALMER, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Bruce Houdek, Kansas City, MO, argued, for Harold J. Jones.
David V. Ayres, Leavenworth, KS, argued, for James O. Cashaw.
Susan Hunt, Kansas City, MO, argued (Thomas M. Dawson, on the brief), for John L. Palmer.
Mark Miller, Kansas City, MO, argued, for United States of America.
Before WOLLMAN, BRIGHT, and HEANEY, Circuit Judges.
In this consolidated appeal, Harold J. Jones, James O. Cashaw, and John L. Palmer appeal from their convictions and from the sentences imposed by the district court 1 for conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)-(b)(1) and 846. We affirm on all issues other than Cashaw's four-level enhancement as a leader or organizer of a criminal activity involving five or more participants. 2
On November 5, 1991, Los Angeles, California, police made several arrests as the culmination of their investigation of an extensive narcotics distribution ring. The distribution operation included dozens of conspirators in numerous major cities, including Los Angeles, Kansas City, Atlanta, Detroit, Houston, and Denver. Anthony Rashid, one of the individuals arrested and a central figure in the conspiracy, ultimately cooperated with authorities. Rashid assisted the government in examining the full scope of his operation and identified key co-conspirators. Investigation revealed that Rashid's operation functioned as a conduit for smuggling massive amounts of cocaine and crack cocaine from sources in Houston and Los Angeles to other major metropolitan areas for further distribution. Drugs and cash were smuggled in airline baggage, automobile tires, and containers within automobile gasoline tanks. As a result of the investigation, Jones, Cashaw, and Palmer were charged with conspiracy to possess with intent to distribute cocaine. Jones was also charged with a criminal forfeiture count under 21 U.S.C. § 853. Although many of the participants in Rashid's conspiracy eventually entered into plea agreements with the government, Jones, Cashaw, and Palmer were tried, convicted, and sentenced for their involvement. The district court sentenced Cashaw to 360 months' imprisonment, while Palmer and Jones were given 235-month terms each.
The government's case consisted of testimony from co-conspirators and circumstantial evidence obtained by investigators. Evidence established that Jones, who sent large amounts of cash to Rashid and received large amounts of Rashid's cocaine bound for Kansas City, was Rashid's principal distributor in the Kansas City area. Testimony also established that Jones's involvement included acting as a courier between Rashid and Bruce Pompey, Rashid's brother, and providing Rashid with a .22 revolver and silencer. Cashaw, whose involvement placed him high in the distribution chain, was responsible for supplying Rashid with substantial amounts of cocaine. Cashaw was also involved with Rashid as a partner in the foiled Los Angeles transaction that resulted in Rashid's arrest and the seizure of 76 kilograms of cocaine. Palmer, who was often called upon to ferry drug-laden automobiles to distribution points and to smuggle large amounts of cash back to the source cities, was one of Rashid's principal couriers.
The defendants raise a number of issues on appeal. All three allege prosecutorial misconduct, contending that their convictions were the product of either the knowing, reckless, or negligent use of false testimony, or the failure to disclose exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They also argue that the district court made inadequate findings regarding drug amounts and erroneously concluded that it was without authority to grant downward departures. Additionally, Jones raises jury instruction issues and a Fifth Amendment claim, Cashaw challenges his sentence enhancement, and Palmer contends that the government failed to present sufficient evidence to support his conviction.
The first allegation of prosecutorial misconduct concerns the government's representations made to the jury regarding a reduction in Rashid's sentence. Rashid's guilty plea and subsequent cooperation were the product of the government's promises of a sentence reduction. Prior to the defendants' trial, Rashid received a sentence of 120 months, reduced from an initial sentencing range of 360 months to life. During his testimony in the present case, Rashid acknowledged that his sentence had been reduced as a result of the government's motion. Rashid then went on to testify that FBI Agent Mark Foxhall had promised him two sentence reductions. There then followed this exchange between the prosecutor and Rashid:
Q. Has that matter been discussed with you by representatives of the U.S. Attorneys Office, specifically have I spoken with you about it?
A. Yes, you have. And you have indicated you have no intention of following through with that.
Q. Did you indicate also that it is your intention to litigate that at a later time?
A. Absolutely.
Rashid later filed a motion pursuant to 28 U.S.C. § 2255 seeking the second reduction. The government did not oppose Rashid's motion, and the district court 3 further reduced his sentence from 120 months to five years. (By the time of the sentencing in the present case, Rashid had served his time and was no longer in custody.) The defendants contend that the government never intended to oppose Rashid's second reduction and therefore misrepresented its intentions to the jury.
Ronald Whitley, a drug courier in the conspiracy, offered incriminating testimony against all three defendants. He received a 120-month sentence pursuant to a written plea agreement with the government. Prior to the entry of Whitley's guilty plea, a teleconference took place between Whitley's counsel, a government attorney, and Whitley's sentencing judge. 4 During the conference, the court indicated its intention to sentence Whitley as a minimal participant and impose a sentence of not more than ten years. The court further stated that Whitley could receive a lesser sentence if he agreed to cooperate with the government. Later, at his plea and sentencing, Whitley denied any involvement with drugs, other than handling money that he thought was drug proceeds, and denied responsibility for or knowledge of any particular quantity of drugs. The defendants, who sought full disclosure of all Brady material in pretrial motions, allege that the government never provided them with any of the information relevant to Whitley's plea agreement or statements made during the teleconference.
During Whitley's direct examination in the present case, he stated that he was testifying pursuant to an agreement with the government; that he had received a ten-year sentence; that he had agreed to testify subsequent to his sentencing; and that the government had agreed to file a motion pursuant to Fed.R.Crim.P. 35(b) in exchange for his cooperation. Later, on redirect, the following colloquy occurred:
[The Government]: Were you told if you were caught lying about anything your plea agreement would be torn up and thrown into the wind?
Whitley: Yes.
[Jones's Attorney]: I object. That is a misrepresentation. I don't think there is a plea agreement in this case. At least I haven't been provided one by the government.
[The Government]: There was a Rule 35 filed on your behalf.
[Jones's Attorney]: There was a motion. It doesn't say anything about that.
The Court: I think the plea agreement may be a loose way to describe the understanding. There is no written plea agreement as I understand it.
[The Government]: No.
The defendants argue that the government knowingly presented false testimony by leading the jury to believe that it intended to oppose Rashid's request for a second sentence reduction. The defendants have presented no evidence to support their bare assertion that the government had no intention of opposing Rashid's second reduction. Rather, they suggest that the representation made to the jury was false because the government subsequently failed to oppose the reduction. We conclude, however, that the record adequately explains why the government did not follow through on its earlier-held intention to oppose the second reduction.
In a presentencing hearing before Judge Stevens (held some two years after the trial), the government explained that it had made no objection to Rashid's bid for a further sentence reduction because of Judge Wright's unequivocally expressed intention to grant the reduction on his own motion (why, we do not know) and his refusal to brook any opposition to such a course of action. As an additional reason, the government stated that Agent Foxhall had been dismissed by the FBI for irregularities in dealing with a confidential informant and was nowhere to be found, leaving the government without evidence to oppose Rashid's contention that he had been promised an additional sentence reduction. This explanation, which we accept as true, reflects little credit on the manner in which Rashid's case was handled, but it refutes the defendants' contention that the government was guilty of falsely representing to the jury that it intended to oppose a further reduction in Rashid's sentence. Moreover, any impact on the jury's assessment of Rashid's credibility resulting from the announcement of the government's then-held intention to oppose such a reduction must necessarily have been minimal in light of the fact that Rashid had...
To continue reading
Request your trial
-
State ex rel. Clemons v. Larkins
...in question ‘would have been discoverable with minimal investigation by [defense] counsel.’ ") (emphasis added); United States v. Jones, 160 F.3d 473, 479–80 (8th Cir.1998) ("no Brady violation if ‘the defendant[s], using reasonable diligence, could have obtained the information ’ themselve......
-
U.S. v. Jeross
...broker to a coconspirator and demanded that another coconspirator make an advance payment on a set of checks); United States v. Jones, 160 F.3d 473, 482-83 (8th Cir.1998) (holding that the district court's finding under USSG § 3B1.1 was clearly erroneous where evidence showed that the defen......
-
U.S. v. Ringis
...byproduct of the Sentencing Guidelines," the transfer of "discretion once held by judges to the government." See United States v. Jones, 160 F.3d 473, 483 (8th Cir.1998). The specific question before the court is the following: Can disparities between this federal district and the vast majo......
-
United States v. Sigillito
...is that it does not cover “information available from other sources or evidence already possessed by a defendant.” United States v. Jones, 160 F.3d 473, 479 (8th Cir.1998) (citation omitted). We consider undisclosed Brady material collectively to determine if nondisclosure undermines confid......