U.S. v. Lucien

• Decision Date: 08 August 1995
• Docket Number: No. 94-50393,94-50393
• Citation: 61 F.3d 366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cortney Anthony LUCIEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 366

61 F.3d 366

UNITED STATES of America, Plaintiff-Appellee, v. Cortney Anthony LUCIEN, Defendant-Appellant.

No. 94-50393.

United States Court of Appeals Fifth Circuit.

Aug. 8, 1995.

Rehearing Denied Nov. 2, 1995.

Cornel A. Williams, Lewis & Williams, Houston, TX, for appellant.

Diane D. Kirstein and Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

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

Before WISDOM, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Cortney Anthony Lucien (Lucien) appeals his convictions, following a jury trial, of one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and one count of possession of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). We reverse and remand.

Facts and Proceedings Below

On September 5, 1989, local police executed a search warrant at 6302-D Manor Road in Austin, Texas. Upon entering the residence, the officers observed a black male, later identified as Lucien, running from the bathroom. Officer Valera (Valera) heard running water in the bathroom and noticed that Lucien's hands were wet. Valera found a plastic bag containing several aluminum foil packets floating in the toilet and $819 in cash in the bathroom sink. An additional $408 was found in a pair of pants in one of the bedrooms. The police arrested Lucien and Taika Campbell (Campbell) at the scene. No one else was present. The officers found the keys to the Manor Road residence in Lucien's pockets as well as an identification card bearing his picture but the name Antwon Watson. The officers found a rental application for the Manor Road apartment in the name of Antwon Watson in the living room. In the course of executing the search warrant, the officers also seized three weapons and approximately sixteen grams of crack cocaine. ¹ Although Lucien's real name is apparently Corey Demetric Lucien, he gave his name as Cortney Anthony Lucien at the time of his arrest. ² Lucien also told the Austin police that his address was 560 Rice in San Antonio, Texas, but the government verified that no such address existed.

Law enforcement officials filed second-degree drug felony charges against Lucien and Campbell in Texas state court. On September 9, 1989, Lucien posted bail and returned to his home in Los Angeles, California. In October 1989, all state charges against Lucien were dropped, and state and federal authorities agreed that the federal government would prosecute Lucien. On October 10, 1989, an agent with the Bureau of Alcohol, Tobacco, and Firearms (ATF) placed a hold on two of the three weapons seized during the September 9, 1989, search. On January 29, 1992, the hold was accidentally removed, and the two weapons were subsequently destroyed. The third firearm had been returned to its true owner and thus was not destroyed.

On May 9, 1991, nineteen months after the state charges were dropped, Lucien and Campbell were indicted by a federal grand jury on three drug-related counts, and federal warrants for their arrests were issued. Taika Campbell was arrested on August 9, 1991, in Los Angeles, California, and federal authorities proceeded with the case against him until the charges were dismissed on January 9, 1992. Lucien remained at large until November 23, 1993, when he was arrested by the California police during a routine traffic stop after an NCIC check indicated the outstanding federal arrest warrant. Lucien was taken into custody and subsequently transferred to the Western District of Texas.

On January 18, 1994, a federal grand jury returned a superseding three-count indictment charging Lucien and Campbell with conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) & 846 (Count One), possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (Count Two), and possession of firearms during and in relation to the commission of a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) (Count Three). ³ Lucien filed a motion to dismiss for lack of a speedy trial and a supplemental brief alleging that his due process rights were violated by the period of preindictment delay. On February 10, 1994, the district court held an evidentiary hearing on this motion.

At this hearing, Lucien maintained that, during the period between the October 1989 dismissal of the state charges and his November 1993 arrest, he was living openly in Los Angeles. He testified that, after his release on bail and until January 1990, he lived openly with his sister at 1016 Gage Street, Los Angeles, California, an address listed on his bond application. ⁴ According to Lucien, he moved to his mother's house at 1717 West 45th Street in Los Angeles in January 1990 and lived openly at her house until his arrest in November 1993. As evidence, Lucien provided probation records reflecting that he regularly completed his required community service hours, copies of an income tax return, phone bills, and a California identification card issued by the Department of Motor Vehicles (DMV). All these documents listed Lucien's address as 1717 West 45th Street.

Charles Meyer, an ATF agent, testified about the government's efforts to locate Lucien after the federal arrest warrant was issued. Meyer testified that he contacted the Los Angeles police department, the sheriff's department, and the gang unit; called the California phone numbers listed in phone records seized from the Manor Road residence; checked several addresses associated with Lucien; and sent flyers to Los Angeles and San Antonio. In searching the California DMV records, Meyer used the name Cortney Anthony Lucien. Because Lucien's California identification card was under the name Corey Demetric Lucien, the result stated "No record for criteria given." Meyer conceded that the government never sent an agent to the 1016 Gage Street address listed on Lucien's bond application. Eventually, the government obtained the 1717 West 45th Street address from a Los Angeles gang unit, and in December 1991, Meyer requested a Los Angeles-based ATF agent, Annette Harden (Harden), to go to the 1717 West 45th Street address and attempt to apprehend Lucien. Harden testified that she went to 1717 West 45th Street and spoke with a middle-aged woman who identified herself as a relative of Lucien's. After this woman told Harden that Lucien did not live at 1717 West 45th Street, Harden informed her that there was an outstanding federal arrest warrant for Lucien.

On March 31, 1994, the district court denied Lucien's motion to dismiss the indictment for pre- and post-indictment delay. Lucien's case proceeded to trial. At the close of the evidence, Lucien requested that the district court give the jury a lesser-included offense instruction on simple possession. The district court denied Lucien's request. Thereafter, the jury found Lucien guilty of Counts Two and Three but acquitted him of the conspiracy count. On May 27, 1994, the district court sentenced Lucien to 168 months of imprisonment, five years of supervised release, and ordered him to pay a $100 in special assessments. Lucien filed a timely notice of appeal.

Discussion

I. Preindictment Delay

Lucien argues that the delay between the dismissal of the state charges against him and his indictment on federal charges violated his Sixth Amendment right to a speedy trial. ⁵ Preindictment delay, however, does not raise a Sixth Amendment issue; rather, it is examined under the due process clause of the Fifth Amendment. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1432, 131 L.Ed.2d 313 (1995). Although Lucien raised a due process argument based on preindictment delay in the district court, we hold that he has abandoned his preindictment delay argument on appeal by failing to adequately brief the issue. United States v. Heacock, 31 F.3d 249, 258 (5th Cir.1994). Lucien's arguments on appeal focus solely on the post-indictment delay and the relevant Sixth Amendment analysis; he never raises the due process argument or cites preindictment delay cases. ⁶

Even if Lucien had not abandoned his preindictment delay argument, we would still reject it because he has not established actual prejudice resulting from the delay. Citing Sixth Amendment post-indictment delay cases, Lucien argues that the delay was presumptively prejudicial; however, a defendant must show actual prejudice to establish a claim of preindictment delay under the due process clause. Lucien's argument is thus without merit. United States v. Beszborn, 21 F.3d 62, 66 (5th Cir.) ("The concept of presumed prejudice has no place in a due process analysis."), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994).

Lucien argues that the delay resulted in the destruction of tangible evidence, but he never identifies what evidence was destroyed. If Lucien is referring to the two firearms accidentally destroyed, his argument fails. The government presented the third weapon to the jury. Moreover, the loss of the two weapons inured to Lucien's benefit and could hardly be said to constitute actual prejudice. We thus reject Lucien's argument based on destroyed evidence. United States v. Royals, 777 F.2d 1089, 1090 (5th Cir.1985) (defendant must show that lost evidence is material, exculpatory, and otherwise unobtainable). Lucien also argues that the government was responsible for the disappearance of Campbell, the only eyewitness in the case. Lucien does not explain the relevance of Campbell's testimony and thus cannot rely on it to establish actual prejudice. United States v. Neal, 27 F.3d 1035, 1043 (5th Cir.) (defendant who failed to explain relevance of lost witness's testimony could not show prejudice), cert. denied,...