U.S. v. Lampton

• Decision Date: 19 October 1998
• Docket Number: No. 97-30835,97-30835
• Citation: 158 F.3d 251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy LAMPTON, aka Shorty; Michael Jackson, aka Low Down; Cortney Walker, aka Moon, aka Courtney Walker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 251

158 F.3d 251

UNITED STATES of America, Plaintiff-Appellee, v. Billy LAMPTON, aka Shorty; Michael Jackson, aka Low Down Cortney Walker, aka Moon, aka Courtney Walker Defendants-Appellants.

No. 97-30835.

United States Court of Appeals Fifth Circuit.

Oct. 19, 1998.

John Francis Murphy, Assistant U.S. Attorney, Stephen A. Higginson, Assistant U.S. Attorney, New Orleans, LA, for Plaintiff-Appellee.

John H. Craft, New Orleans, LA, for Billy Lampton.

Richard Michael Olsen, New Orleans, LA, for Michael Jackson.

Robert Francis Fleming, Jr., Metairie, LA, for Cortney Walker.

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

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Defendants-appellants Billy Lampton, Michael Jackson, and Cortney Walker challenge their convictions and sentences. For the reasons set forth below, we AFFIRM.

FACTUAL & PROCEDURAL BACKGROUND

The F.B.I. began an investigation of the appellants and thirteen of their associates when an informant revealed that they were distributing large quantities of cocaine, heroin, and marijuana. On February 22, 1996, the government obtained an order for the interception of wire communications over a telephone located at Lampton's and Walker's residence. The next day the wire tap began. On April 4, 1996, the government obtained authority to wire tap another of Lampton's residences after the co-defendants discontinued using the first telephone. During the course of the investigation, over 4,000 calls were recorded. One hundred and eleven of these calls would be later played for the jury.

On May 1, 1996, the government obtained a search warrant from a federal magistrate to conduct searches of the co-defendants' homes and vehicles. Numerous firearms, drug paraphernalia, drug ledgers, large amounts of cash, drug laboratory equipment, and quantities of cocaine and marijuana were recovered. The government had also been extensively using cooperating witnesses, one of which directly purchased heroin from Lampton on two occasions while being video and audio taped by the F.B.I.

On September 27, 1996, a nine count superseding indictment was filed against the three appellants and eleven of the co-defendants in which all were charged with conspiracy to distribute quantities of heroin, marijuana, cocaine base, and cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). Additionally, Lampton was charged separately and individually with distribution of heroin in violation of 21 U.S.C. § 841(a)(1), with use of a firearm in relation to the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) ¹, with fraudulent use of a telecommunications instrument in violation of 18 U.S.C. § 1029(a)(5), and with operating a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Trial for appellants, along with two co-defendants, began on February 3, 1997. It ended in a mistrial on February 13, 1997. On March 17, 1997, the second trial began. During the second trial, on March 20, the government learned, through another prisoner in custody with Lampton, that Lampton wanted to bribe a specific juror. The prisoner, who became a cooperating witness, led Lampton to believe he could make contact with the juror and that the juror would be amenable to a bribe. Lampton then spoke on the telephone with a person whom he believed was the juror, but was actually an F.B.I. agent recording the conversation. Lampton later pled guilty to obstruction of justice. When the trial court learned of the incident, it became concerned that other jurors may have been the target of Lampton's efforts, and conducted a voir dire of each juror in his chambers with one counsel for the government and one counsel for the defense present (Lampton's counsel). The district court eventually concluded that no jury tampering had occurred, and continued with the trial.

On March 28, 1997, the jury convicted Lampton, Walker and Jackson on all counts charged and remaining in the superseding indictment. One of the other co-defendants was acquitted on one charge but convicted on another. The remaining co-defendant was found not guilty on all charges. On June 11, 1997, the court conducted a hearing on appellants' motion for new trial. The motion was based on the appellants' allegations that the district court's and the government's investigation as to whether Lampton's attempt to bribe a juror tainted the entire jury or prejudiced his co-defendants. The district court denied the motion after hearing from the juror whom Lampton targeted to bribe, the informant who revealed to the government Lampton's intention to bribe a juror, and an Assistant U.S. Attorney who was assigned to investigate and successfully prosecuted Lampton's obstruction of justice offense. None of the defendants were present during this hearing, although their counsel were. In addition, Lampton's counsel left the hearing because he was ill when the court had called a lunch recess. The attorney had been present during the juror-witness' testimony, and part of the informant's testimony, but missed the remainder of the informant's testimony and all of the government attorney's testimony. The district court continued with the hearing, and eventually denied appellants' motion.

On August 7, 1997, the appellants were sentenced. Jackson was sentenced to a term of imprisonment of 360 months, while Lampton and Walker received life sentences. All appellants timely filed notices of appeal.

DISCUSSION

Defendants-appellants raise several joint challenges to their convictions, as well as several individual challenges. We initially discuss each joint challenge, and then proceed to discuss each defendant-appellant's individual challenges in order of Lampton, Jackson, and Walker.

I.

Walker and Lampton jointly contend that their absence during the hearing of the new trial motion violated their FED. R.CRIM. P. 43 and constitutional rights. Lampton further argues that his counsel's absence after the lunch recess during the evidentiary hearing also violates his Sixth Amendment right regarding the presence of counsel. We review these legal questions de novo. See, e.g., Associated Metals & Minerals Corp. v. Alexander's Unity MV, 41 F.3d 1007, 1010 (5th Cir.1995).

We do not agree with either of these arguments. Assuming arguendo that Rule 43 speaks to a defendant's presence at a motion hearing for a new trial, we have interpreted Rule 43 to require the defendants show that their actual presence could have aided in their defense. See United States v. Gradsky, 434 F.2d 880, 883 (5th Cir.1970). Neither appellant can make this showing. The motion was based on the appellants' allegations that the district court's and the government's investigation as to whether Lampton's attempt to bribe a juror tainted the entire jury or prejudiced his co-defendants. The district court denied the motion after hearing from the juror whom Lampton targeted to bribe, the informant who revealed to the government Lampton's intention to bribe a juror, and an Assistant U.S. Attorney who was assigned to investigate and successfully prosecuted Lampton's obstruction of justice offense. Neither appellant argues there was error in the substance of the evidentiary hearing. Nor were the factual issues addressed at the post-trial motion hearing ones in which the defendants could testify. Neither appellant offers any way, in fact, in which their presence could have assisted in their defense, and we refuse to reverse on this ground. ²

Nor was their presence required by the Constitution. Under the Due Process Clause, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). As we already have noted, the appellants' presence was not required for a fair resolution of the issues addressed at the new trial motion hearing. See, e.g., United States v. Sanchez, 917 F.2d 607, 619 (1st Cir.1990) (where issues addressed at hearing on motion for new trial would not have been affected by input of defendant, due process did not require presence of defendant at hearing).

We also cannot agree with Lampton's argument that his counsel's decision to leave immediately prior to the lunch recess constitutes reversible error. The district court did not exclude Lampton's counsel from being present; rather, he voluntarily absented himself from the courtroom after advising the court he was ill. Lampton's counsel never asked the proceedings be postponed. All other defendants' counsel stayed and participated throughout the hearing, and Lampton's counsel was present for the testimony of the critical witness, the targeted juror herself. Lampton's counsel did not ask a single question during this proceeding, and in fact indicated the opposite when he observed to the court that his questions would be basically the same as his co-counsel's. While as a general matter counsel should be present to represent a defendant's interest to the court, this case presents the unusual situation in which his absence did not cause his client any harm. Cf. Satterwhite v. Texas, 486 U.S. 249, 258, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (applying harmless error rule in Sixth Amendment context). We therefore reject Lampton's argument to the contrary.

II.

Walker and Lampton argue that the district court erred when it imposed upon both a mandatory life sentence under 21 U.S.C. § 851(a)(2). The prosecution had sought to enhance defendants' sentences on the theory that they were multiple offenders. As part of the procedure in advancing this request, § 851(a)(1) requires the prosecution to file with the district court a bill of information containing records of prior convictions. However, the next subsection provides that:

[...