U.S. v. Magee, G-M

• Decision Date: 21 March 1994
• Docket Number: 93-2752 and 93-2756,Nos. 93-2622,G-M,s. 93-2622
• Citation: 19 F.3d 417
• Parties: UNITED STATES of America, Appellee, v. Willie S. MAGEE, Appellant. UNITED STATES of America, Appellee, v. Gerry McCRARY, also known asan, Appellant. UNITED STATES of America, Appellee, v. William FRIENDS, also known as Bill, Willie, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 417

19 F.3d 417

UNITED STATES of America, Appellee, v. Willie S. MAGEE, Appellant.

UNITED STATES of America, Appellee, v. Gerry McCRARY, also known as G-Man, Appellant.

UNITED STATES of America, Appellee, v. William FRIENDS, also known as Bill, Willie, Appellant.

Nos. 93-2622, 93-2752 and 93-2756.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1994.

Decided March 21, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied in No.

93-2682 April 29, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied in No.

93-2756 May 16, 1994.

Brenda Hamilton, Kansas City, MO, argued, for appellant in 2682.

Bruce Simon, Kansas City, MO, argued for appellant in 2752.

Michael Gunter, Kansas City, MO, argued, for appellant in 2756.

Larry Curtis Pace, Kansas City, MO, argued, for appellant in 2820.

Christina Y. Tabor, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before BEAM and MORRIS S. ARNOLD, Circuit Judges, and WELLFORD, ^* Senior Circuit Judge.

MORRIS S. ARNOLD, Circuit Judge.

Willie Magee, Gerry McCrary, and William Friends were convicted in late 1992 of various drug-related charges, firearms charges, and food stamp violations. Darren Brown pleaded guilty to similar charges at around the same time. All four defendants appeal. Mr. Magee, Mr. McCrary, and Mr. Friends challenge both their convictions and their sentences; Mr. Brown challenges only his sentence. We affirm the trial court in all regards except one; we vacate Mr. McCrary's sentence and remand his case to the trial court for reconsideration with respect to the amount of drugs attributable to Mr. McCrary.

I.

Mr. Magee was convicted of conspiracy to distribute more than 50 grams of cocaine base; distribution on May 27, 1992, of cocaine base; and use of a firearm on May 27, 1992, in connection with the distribution of cocaine base. He argues on appeal that the evidence was insufficient on all of those counts. He also contends that his waiver of the right to testify was not knowingly and intelligently made and that he was deprived of his sixth amendment right to counsel by his lawyer's ineffectiveness in advising him and in developing the record with respect to his waiver of the right to testify. Finally, he asserts that the trial court erred in failing to grant a four-level reduction, for "minimal" role, in the calculation of his base offense level for sentencing purposes (Mr. Magee did receive a two-level reduction, for "minor" role).

We have read very carefully the transcript of the six-day trial. Testimony incriminating to Mr. Magee was given by Investigator Edward Dawkins and Detective Gary Thurman of the Kansas City, Missouri, police department; by Leroy Lee, an informant; and by Russell Clark, who had previously pleaded guilty to two drug offenses and one firearms offense and was testifying under a plea agreement with the government. That evidence, in our view, is sufficient to sustain Mr. Magee's convictions on all three of the counts in question. See, e.g., United States v. Jones, 990 F.2d 1047, 1048 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994).

During the trial but outside the presence of the jury, the trial court held a short hearing with respect to Mr. Magee. In that proceeding, Mr. Magee's lawyer first asked Mr. Magee, "You and I have talked about this case and have talked about the fact that the Constitution gives you the right to choose whether you testify or whether you choose not to testify; do you understand that?" Mr. Magee responded, "Yes." Mr. Magee's lawyer then asked, "You know that the government has the burden of proof and you have no obligation to testify, and that if you do not testify, that that can't be used by the jury in determining your guilt or innocence; do you understand that?" Mr. Magee responded, "Yes." Mr. Magee's lawyer continued, "Have you made a decision as to whether or not it is your desire to testify in this case?" Mr. Magee answered, "No." Following up what seems to us to have been a confusing response, however, Mr. Magee's lawyer asked, "You don't want to testify?" Mr. Magee's reply was an unequivocal, "No, I don't."

Mr. Magee's lawyer went on to say, "You understand that if you did testify, you could be cross-examined about numerous matters, including, possibly, prior criminal convictions? Do you understand that?" Mr. Magee responded, "Yes." Mr. Magee's lawyer continued, "Having been advised of all that, you have chosen on your own to make the decision not to testify, is that correct?" Mr. Magee answered, "Yes." The trial court then explicitly found that Mr. Magee's waiver of his right to testify was "a voluntary decision and an informed decision."

On appeal, Mr. Magee contends that his waiver of the right to testify was not an informed decision. He asserts that he was unaware that he could provide testimony that might be considered exculpatory; he also asserts that he did not know that, under the rules of evidence, he could be cross-examined about only one of his prior convictions, rather than all seven. Finally, he seems to argue that he was prejudiced by the trial court's failure to instruct the jury that his silence could not be considered. Mr. Magee frames these contentions in terms of both trial court error and a deprivation of his sixth amendment right to counsel, based on his lawyer's alleged ineffective assistance. He buttresses his argument by reference to remarks that he made at sentencing, specifically, the protest that "The reason ... I was convicted ... of conspiracy, ... you know, ... I failed, you know, with me not knowing enough about the law that I had. If I had understood that, when I first come to this trial, I would have took that stand, because I am the only one--it is against me to come up that I have no part in it." Mr. Magee subsequently stated, "I would rather ... schedule the sentence for another time since I can't represent myself in court so that I, you know, had no part in this." (After consultation with his lawyer, Mr. Magee agreed to be sentenced on the day he made his remarks.)

We consider Mr. Magee's arguments first from the perspective of trial court error. A defendant's waiver of the right to testify must be made "voluntarily and knowingly." United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); see also United States v. Gleason, 980 F.2d 1183, 1185 (8th Cir.1992). In the hearing, Mr. Magee stated that he and his lawyer had talked about whether he should testify, that he understood that he could be cross-examined by the government if he did testify, and that he had decided not to testify. Under those circumstances, and after reading the transcript of the colloquy between Mr. Magee and his lawyer, we hold that there was no error in the trial court's ruling that Mr. Magee had made a voluntary and informed decision to waive his right to testify. See, e.g., United States v. Gleason, 980 F.2d at 1185-86. As for the trial court's failure to instruct the jury with respect to Mr. Magee's silence, nothing in the transcript of the jury instructions conference reflects that Mr. Magee either asked for such an instruction or objected when the trial court indicated a reluctance to give such an instruction. Under those circumstances, Mr. Magee has waived that argument.

To the extent that Mr. Magee is contending that he was deprived of his sixth amendment right to counsel, we note that such arguments are not usually cognizable on direct appeal, except in circumstances not present here, but are more appropriately raised in a petition under 28 U.S.C. Sec. 2255, where the relevant facts may be fully developed. See, e.g., United States v. Kenyon, 7 F.3d 783, 785 (8th Cir.1993); United States v. Petty, 1 F.3d 695, 695-96 (8th Cir.1993); and United States v. Thomas, 992 F.2d 201, 204 (8th Cir.1993). See also United States v. Echols, 2 F.3d 849, 850 (8th Cir.1993) (per curiam ). We therefore decline to address that question and express no view on its merits.

Under the federal sentencing guidelines, a trial court may reduce a defendant's base offense level by four levels if the defendant "was a minimal participant" or by two levels if the defendant "was a minor participant." See U.S.S.G. Sec. 3B1.2(a), Sec. 3B1.2(b). A "minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." See U.S.S.G. Sec. 3B1.2, application note 3. A defendant plays a minimal role if, for example, he lacks "knowledge or understanding of the scope and structure of the enterprise and of the activities of others." See U.S.S.G. Sec. 3B1.2, application note 1.

The trial court found that Mr. Magee played a minor role in the drug conspiracy. We have read the transcripts of both the trial and the sentencing hearing. That finding is not clearly erroneous. See, e.g., United States v. Westerman, 973 F.2d 1422, 1428 (8th Cir.1992).

II.

Mr. McCrary was convicted of conspiracy to distribute more than 50 grams of cocaine base; operation of a building for the purpose of unlawful distribution of cocaine base; distribution on June 10 and June 17, 1992, of cocaine base; use of a firearm on June 17, 1992, in connection with the distribution of cocaine base; and unlawful acquisition on June 17, 1992, of food stamps. He argues on appeal that the evidence was insufficient on the firearms charge, that the government improperly vouched for the truthfulness of various witnesses, and that the trial court improperly rejected jury instructions that would have required the jury to determine the period during which each defendant participated in the drug conspiracy and the amounts of drugs properly attributable and foreseeable to each defendant. He also contends that the trial court erred in failing to grant a two-level reduction, for acceptance of responsibility, in the calculation of his base offense level. Finally, he asserts that the trial court incorrectly calculated his...