U.S. v. Pace

• Decision Date: 17 December 1993
• Docket Number: No. 90-1992,90-1992
• Citation: 10 F.3d 1106
• Parties: 38 Fed. R. Evid. Serv. 1532 UNITED STATES of America, Plaintiff-Appellee, v. Jacky Ronald PACE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1106

10 F.3d 1106

38 Fed. R. Evid. Serv. 1532

UNITED STATES of America, Plaintiff-Appellee, v. Jacky Ronald PACE, Defendant-Appellant.

No. 90-1992.

United States Court of Appeals Fifth Circuit.

Dec. 17, 1993.

R.H. Wallace, Jr., Fort Worth, TX (court-appointed), for defendant-appellant.

Joe C. Lockhart, Fred Schattman, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Fort Worth, TX, for plaintiff-appellee.

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

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and WINGATE ^*, District Judge.

WINGATE, District Judge:

Appellant Jacky Ronald Pace was convicted on September 15, 1989, by a district court jury of all counts of a nine-count indictment charging him with conspiracy to commit certain controlled substance offenses, various substantive drug offenses, and using a firearm in relation to a drug offense, all in violation respectively of Title 21 U.S.C. Secs. 846, 841(a)(1) and Title 18 U.S.C. Sec. 924(c). Aggrieved over the convictions, appellant now raises four issues for review: (1) whether the district court abused its discretion and violated the appellant's constitutional right to confrontation by allowing the prosecution to call as a witness appellant's probation officer for the purpose of establishing the location of appellant's residence; (2) whether the district court was correct in its assessment that the government's proof was sufficient to convict appellant under Title 18 U.S.C. Sec. 924(c) for "using a weapon during and in relation to" a drug offense; (3) whether the district court's instructions to the jury relative to this Sec. 924(c) gun offense were legally adequate; and (4) whether the district court was remiss in failing to provide appellant a complete, accurate trial record. Finding no reversible errors, we affirm the appellant's conviction.

The principal characters involved in this criminal scenario were the appellant; his co-defendant, China Lewis, Sr., and Charles Phillip Springer of the City of Fort Worth, Texas, Police Department, who was acting in an undercover capacity. Appellant's present predicament began on January 18, 1989, when a government informer introduced an unkempt, long-haired Springer as "Phil" to an unsuspecting Lewis, who was led to believe The obliging appellant was active in the negotiations with Springer. Appellant suggested prices for the "product," debated the relative merits of various types of cutting agents, and recommended a retail store where the mention of the appellant's name would generate a generous 50% discount. Additionally, the appellant promised to supply Springer with a quarter pound of amphetamine the following day, January 20th. After the appellant left, Lewis gave Springer 30.26 grams of a powdery substance containing 45% amphetamine and four one-pound bags of marijuana to sell. The next day, on January 20th, pursuant to his promise of the preceding day, the appellant delivered to Springer, through Lewis, 99.08 grams of a white powdery substance which contained 90% amphetamine.

                Springer was a potential distributor of large quantities of amphetamine for Lewis.  Once Lewis was confident of Springer's interest, Lewis asked Springer to join Lewis' criminal venture which included Lewis' partner named "Jacky."   The next day, January 19, 1989, Lewis introduced Springer to "Jacky," who is our appellant.  At this meeting of the threesome, the parties negotiated the terms of their arrangement, and Springer agreed to market amphetamines for Lewis and the appellant.  However, unknown to either appellant or Lewis, Springer had on his person a hidden transmitting device which permitted a nearby surveillance group of narcotic officers to overhear and to record the conversations
                

On January 25th and 30th, Lewis supplied Springer with additional amounts of amphetamine. On the 25th, Lewis gave Springer 111.9 grams to sell and on the 30th, 114.9 grams. On the 25th, Lewis explained that he would have supplied four more ounces, but he could not obtain the extra amount because his source, the appellant, was in Corsicana, Texas, where appellant had another amphetamine laboratory.

On February 6th, Springer, along with other officers, decided to end the undercover operation and arrest the subjects. First, they arrested Lewis. The officers then obtained an arrest warrant for the appellant and proceeded to his reputed residence of Lot 34, Paradise Estates, a mobile home park in Johnson County, southwest of Mansfield, Texas.

The officers surrounded the mobile home and entered it when their presence was discovered by the occupants therein. Besides appellant, a Pamela Lanell Gilreath was inside the mobile home. Officer Darrell Pena of the Narcotics Division, Fort Worth Police Department, entered first. Upon entering the mobile home, Officer Pena immediately encountered the appellant, whom he grabbed and passed to the officers behind him. Officer Pena observed a weapon, a Llama .38 caliber handgun, on a couch in the front living room.

After obtaining a search warrant, the officers searched the mobile home for illegal drugs and seized two additional weapons. A Rossi .38 caliber revolver was found in the master bedroom on the bed's headboard/book shelf in an unzipped pistol case. An Ithaca .45 caliber semiautomatic handgun was found in the other bedroom between a set of boxsprings and a mattress. All of the firearms were loaded.

The officers also seized large quantities of amphetamine which were secreted about the mobile home. Approximately seven pounds of amphetamine in powder form and of a very high purity were seized, as were three and one-third quarts of amphetamine oil which, in its finished state, could produce eight pounds of amphetamine. The officers also found paraphernalia associated with the manufacture of amphetamine, including scales, miscellaneous flasks, glassware, a grinder, and filter paper. The officers additionally discovered a sizeable amount of cash: $3,800.00 in a bank bag; $1,000.00 in a bag; $355.00 in an address book; and $91.00 in a glass jar.

Following the search, Presley Darnell, criminal investigator with the Internal Revenue Service, asked Officer Michael DeLaFlor of the Narcotics Division, Fort Worth Police Department, how much amphetamine had been found. Officer DeLaFlor responded. Then Pace, who had not been addressed, disagreed with Officer DeLaFlor's estimate and said, "No, there's only two or three On February 22, 1989, the appellant, along with two co-defendants, China Lewis, Sr., and Pamela Lanell Gilreath, were charged in a nine-count indictment. Count 1 charged the appellant with conspiracy to commit certain controlled substance offenses, including the manufacture, possession with intent to manufacture, distribution, and possession with intent to distribute amphetamine, a Schedule II controlled substance, in violation of Title 21 U.S.C. Sec. 846. Counts 2 through 6 charged the appellant with the distribution of amphetamine in violation of Title 21 U.S.C. Sec. 841(a)(1). Count 7 charged the appellant with possession with intent to distribute in violation of Title 21 U.S.C. Sec. 841(a)(1). Count 8 charged the appellant with possession with intent to manufacture amphetamine in violation of Title 21 U.S.C. Sec. 841(a)(1). And, count 9 charged the appellant with the use of firearms during and in relation to the drug trafficking offenses alleged in counts 1, 7 and 8 in violation of Title 18 U.S.C. Sec. 924(c). Following a jury trial, on September 15, 1989, the appellant was convicted of all nine counts.

                pounds."   Officer DeLaFlor corrected Pace, and Pace, who earlier had been given his Miranda rights, said, "Yes, if you include four pounds in the back, yes, it would have been a total of about seven."   Record VII at 115-17
                

ISSUE NO. I

WHETHER THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF A UNITED STATES PROBATION OFFICER FOR THE PURPOSES OF ESTABLISHING THE APPELLANT'S RESIDENCE.

Although appellant had been arrested in the mobile home containing a cache of amphetamine and an amphetamine laboratory, at trial the government hoped to show a stronger connection between appellant and the mobile home, namely, that it was his residence. In an earlier court proceeding, the government had stipulated that the mobile home was the residence of co-defendant Pamela Gilreath. ¹ The government expected to establish through the testimony of Officer Springer that it was also the residence of the appellant, Gilreath's live-in lover.

At trial, Springer testified as the government expected. However, when defense counsel objected to the testimony on grounds of hearsay, the trial court sustained the objection and instructed the jury to disregard Springer's testimony on the point.

The United States then called as a witness David Stout, a United States Probation Officer, to testify that the mobile home was appellant's residence. During the time of the alleged offenses which are the subject of this opinion, the appellant was on pretrial release in another criminal case. ² Stout's duty was to monitor that pretrial release.

The government first asked Stout his name and then asked "[h]ow are you employed, Mr. Stout?" Within the hearing of the jury, Stout replied, "I am employed as [a] United States Probation Officer."

In a conference before the bench, outside the hearing of the jury, the appellant's counsel immediately objected to the government's use of a probation officer as a witness. Appellant's counsel argued that any testimony from a probation officer inevitably would signal to the jury that the appellant was under some sort of judicial supervision for a previous offense. ³

Counsel for the government then explained that Stout had twice been to the appellant's residence, once in December 1988 and once in January 1989, during the time the underlying events of this cause had occurred. Counsel for the United States emphasized the limited purpose of...