U.S. v. Redd
| Decision Date | 30 December 2003 |
| Docket Number | No. 02-60453.,02-60453. |
| Citation | 355 F.3d 866 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Starsky Darnell REDD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gaines H. Cleveland, Asst. U.S. Atty. (argued), Gulfport, MS, Alfred B. Jernigan, Jr., Asst. U.S. Atty., Jackson, MS, for Plaintiff-Appellee.
Chokwe Lumumba (argued), Lumumba & Freelon, Ishmael R. Muhammad (argued), Peoples Advocacy Ctr., Jackson, MS, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GARWOOD, JONES and STEWART, Circuit Judges.
Starsky Darnell Redd appeals his jury trial conviction for attempting to possess cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. Redd was sentenced to 293 months' imprisonment, five years of supervised release, a $2,500 fine, and a $100 special assessment. We affirm the conviction and sentence. We also note that Redd's post appeal motion for a new trial based on newly discovered evidence remains pending before the district court.
Beginning in October 2000, a narcotics task force began following Redd's blue Ford Expedition around Jackson, Mississippi. On November 1, the task force agents were informed that they should resume their surveillance of Redd at approximately 10:30 P.M. and were directed to a truck stop in nearby Clinton, Mississippi. Shortly after arriving at the truck stop, the agents noticed a tractor trailer arrive that matched the description they had been given. The agents approached the truck and received the consent of the driver, Hector Guajardo, to perform a search, during which they found significant amounts of drugs: a box containing ten kilograms of cocaine1 in the cab of the truck and a large amount of marihuana in the trailer. The agents removed the box of cocaine from the truck but left the marihuana aboard.
Guajardo agreed to cooperate with the agents in a controlled delivery of the drugs. While waiting in the cab of the tractor trailer along with two Mississippi Bureau of Narcotics (MBN) agents — Marshall Pack and Jon Cooley — Guajardo received a call from Chris Jefferson, who had told Guajardo to meet him at the truck stop and to whom Guajardo was to deliver the box containing the cocaine. Between the time when the agents discovered the drugs on Guajardo's truck and the time of this call, one agent had observed Redd's blue Expedition briefly pull into the truck stop, but then immediately depart in the direction of Jackson. Both Redd and Jefferson were in the Expedition at that time.
In his call to Guajardo, Jefferson instructed Guajardo to meet him along the freeway — where Jefferson would be waiting on the shoulder of the road in a vehicle with its lights flashing. Upon seeing the vehicle, Guajardo was to flash his lights at the vehicle to signal his readiness to follow. Upon approaching the vehicle with its lights flashing, Agent Cooley, who was aboard Guajardo's truck, observed that it was the same blue Expedition they had been following earlier that day. Both Redd and Jefferson were in the Expedition at that time, and Redd was in the driver's seat. Redd led the tractor trailer off of the freeway and eventually to a parking lot adjacent to a building where Redd had his office.
Once in the parking lot, Jefferson exited the passenger side of the Expedition and walked to the rear. Redd then exited the driver's side and, according to the agents, placed what appeared to be a pistol in his waistband. Jefferson came to the passenger's side of the tractor trailer and opened the door. According to Agent Pack, who claims to have been wearing his raid jacket,2 Pack pointed his gun at Jefferson and told him: Jefferson complied, and Pack commanded: As Pack was exiting the tractor trailer, Jefferson attempted to close the door on him. Pack said: 3 Jefferson then ran behind the Expedition and out of Pack's sight.
Pack claims that as he exited the cab of the tractor trailer, he saw Redd come up from behind the passenger side of the Expedition and fire a shot at him.4 Pack returned fire. Meanwhile, Agent Cooley exited the cab of the tractor trailer yelling Cooley also returned fire. Redd eventually fled. When other officers later arrived, Redd was found wounded in a nearby field and was placed under arrest. The officers also recovered a pistol near where they had found Redd. The pistol bore Redd's fingerprint and matched cartridge casings and spent projectiles found in the parking lot and in Redd's Expedition.
Redd was charged in a three-count superseding indictment with: count one, conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; count two, attempting, aided and abetted by others, to possess with intent to distribute approximately ten kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2; and count three, knowingly possessing and discharging a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(iii). On January 31, 2002, a jury found Redd guilty of count two and not guilty of counts one and three. Following the trial, Redd on February 8, 2002, moved for a new trial or, in the alternative, for judgment notwithstanding the verdict; the district court on April 22, 2002, denied the motion. On May 14, 2002, Redd was sentenced. Redd filed his notice of appeal on May 17, 2002, and on July 8, 2002, he filed a motion in the district court for new trial based on newly discovered evidence.5 The district court on September 24, 2002, denied the July 8 motion claiming lack of jurisdiction due to Redd's pending appeal. Redd has not filed a notice of appeal after filing his July 8, 2002 motion.
Redd raises several claims of error, as follows: (1) the evidence was insufficient to convict him; (2) the jury instructions were improper; (3) the district court exerted undue pressure on the jury to reach a verdict; (4) the district court improperly denied his request to issue a writ of habeas corpus ad testificandum for a potential witness confined in a federal prison; (5) the district court improperly allowed evidence of the task force's surveillance of him; and (6) the district court improperly denied as moot his July 8, 2002 motion for new trial based on newly discovered evidence. We address each point of error in turn and conclude that none warrants reversal.
Our standard of review for a challenge to the sufficiency of the evidence in a criminal conviction is "highly deferential to the verdict." United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002). Our review is "limited to whether the jury's verdict was reasonable, not whether we believe it to be correct." United States v. Williams, 264 F.3d 561, 576 (5th Cir.2001). We ask "`whether the evidence, when reviewed in the light most favorable to the government with all reasonable inferences and credibility choices made in support of a conviction, allows a rational fact finder to find every element of the offense beyond a reasonable doubt.'" Harris, 293 F.3d at 869 (quoting United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.1997)).
In order to convict Redd of the attempt charge under 21 U.S.C. § 846, the jury was required to find that Redd was "acting with the kind of culpability otherwise required for the commission" of a possession with intent to distribute cocaine charge and "must have engaged in conduct which constitutes a substantial step toward commission of the crime i.e., conduct strongly corroborative of the firmness of the defendant's criminal intent." United States v. Stone, 960 F.2d 426, 433 (5th Cir.1992) (internal quotations and citations omitted). Therefore, there must have been sufficient evidence for the jury to find that Redd knowingly took a substantial step toward possessing cocaine with the intent to distribute it. See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997) (). "The elements of possession with intent to distribute may be established by circumstantial evidence." Id. "Furthermore, intent to distribute may be inferred from a large quantity of illegal narcotics and the value and quality of the drugs." Id.
Having reviewed the record, we hold that the evidence before the jury was sufficient to support the verdict. There was evidence that: Redd went with Jefferson — an acknowledged participant in the drug operation — to the truck stop where the tractor trailer, upon which the agents had just discovered cocaine, was to meet Jefferson; the box the agents pulled from the truck contained cocaine weighing ten kilograms and conservatively valued at $200,000; Redd met the tractor trailer that had been carrying the cocaine and led it to his place of business; and he fired first upon an agent who had verbally identified himself as a police officer and who was wearing identifiable police clothing.6 Drawing all inferences from this evidence in the light most favorable to the verdict, a reasonable jury could find that the government had proven beyond a reasonable doubt that Redd knowingly intended to possess cocaine with the intent to distribute and that he took a substantial step toward that end. There was also testimony from two former cell mates of Redd's that during Redd pre-trial confinement he stated he had been arrested while on his way with another to pick up some "cocaine" or "dope." Redd is not entitled to a judgment of acquittal.
Redd argues that the district court erred in its...
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