U.S. v. Rogers

• Decision Date: 29 August 1991
• Docket Number: 90-2222,Nos. 90-1237,s. 90-1237
• Parties: UNITED STATES of America, Appellee, v. William Edgar ROGERS, Appellant. UNITED STATES of America, Appellee, v. DeLinda Vianne ROGERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 591

939 F.2d 591

UNITED STATES of America, Appellee, v. William Edgar ROGERS, Appellant.

UNITED STATES of America, Appellee, v. DeLinda Vianne ROGERS, Appellant.

Nos. 90-1237, 90-2222.

United States Court of Appeals,

Eighth Circuit.

Submitted April 8, 1991.

Decided July 23, 1991.

Rehearing and Rehearing en banc

Denied Aug. 29, 1991.

Calvin Holden, Springfield, Mo., argued, for appellant DeLinda Vianne Rogers.

Gregory K. Johnson, Springfield, Mo., argued, for appellee.

Before LAY, Chief Judge, FRIEDMAN, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PER CURIAM.

These consolidated appeals arise from a scheme to manufacture and distribute

methamphetamine. In case 90-1237, William Rogers pled guilty to a conspiracy to manufacture methamphetamine and phenyl-2-propanone ("P2P") and to distribute methamphetamine in violation of 21 U.S.C. Secs. 846, 841(a)(1) (1988). He also pled guilty to possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. Sec. 924(c) (1988). He later sought to withdraw his plea but his motion was denied. Rogers' counsel on appeal argues Rogers had ineffective assistance of counsel and that the Guidelines sentence is incorrect. William Rogers has also filed a pro se brief raising numerous issues. In case 90-2222, Rogers' wife, DeLinda Rogers, appeals from a jury conviction on the same charges. She argues insufficient evidence, improper admission of evidence, and errors in sentencing. We affirm the judgment in both cases.

I. No. 90-1237, William Rogers

William and DeLinda Rogers ran a medium-size methamphetamine lab at their home in rural Missouri. Two of their assistants became government informants and presented evidence against them after the police intercepted a package containing over 1,000 grams of methamphetamine carried by one of them. DEA agents and police arrested William and DeLinda and seized various lab equipment and precursor chemicals necessary to manufacture the drug.

On July 17, 1989, William requested that the district court appoint substitute counsel, citing a breakdown in communications between William and his appointed attorney. Just before trial was to begin, William's lawyer advised him to accept a plea bargain.

At the Change of Plea Hearing on July 31, 1989, the district court judge inquired about William's past indications that he was not satisfied with his counsel. Rogers stated that he was now getting along with his lawyer. The court's inquiry concluded with this exchange:

COURT: "So you're telling the Court that you are completely satisfied with the manner in which you have been represented?

ROGERS: Yes, sir, I am."

T.Cng.P. 5-7. At the same hearing, the government and the court told William that they estimated the base line offense level for the conspiracy charge to be a thirty-six, which would probably be reduced to a thirty-four for acceptance of responsibility, and would carry a range of 151 to 188 months. The court indicated that it could not be sure of the level until the Pre-sentence Investigation ("PSI") report was complete. Rogers stated on the record that he understood the calculation was preliminary. He also stated he understood the mandatory five year term for the firearm offense. He then entered a guilty plea.

The PSI found the base offense level for the conspiracy charge was thirty-four, and that William should receive a four point upward adjustment for being an organizer and a two point downward adjustment for acceptance of responsibility. The sentencing range was 235 to 293 months for the conspiracy charge. After receiving the PSI, Rogers sought to revoke his plea. A revocation hearing was held on November 19, 1989, and the court rejected Rogers' claims that he was induced to plead guilty and had received ineffective assistance of counsel. At the sentencing hearing, the district court sentenced William Rogers to consecutive terms of 235 months on the conspiracy charge and sixty months on the firearm charge.

William argues he was denied effective assistance of counsel when the district court failed to appoint different counsel. He also argues that his attorney was constitutionally ineffective because his lawyer failed to devote adequate time to his case and should not have counseled him to plead guilty. William states that he was dissatisfied with his attorney from the beginning.

The district court thoroughly inquired into William's earlier stated dissatisfaction with his attorney at the plea hearing. William's claim is refuted by his declaration in open court that he was completely satisfied with his attorney. William admits that he knew the calculation of his sentence given

at his plea hearing was preliminary. We hold that the district court did not err in refusing to appoint different counsel and that William cannot meet the high standard of proving ineffectiveness of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After examining the record, we find the remainder of William's arguments to be without merit. A full discussion of these issues would have little precedential value.

II. No. 90-2222, DeLinda Rogers

A. Admission of Prejudicial Guilty Plea

DeLinda Rogers initially entered a plea of nolo contendere on the charges but was allowed to withdraw her plea and proceed to trial. At trial, the government presented testimony from two co-conspirators, Chris Noble and Wade Stufflebean, who had agreed to cooperate with the government in exchange for their testimony. DeLinda's trial strategy was to discredit the government witnesses who had observed and participated in the manufacturing of the drugs at the Rogers' residence. DeLinda called Mark Webster as a witness, who was a friend of William Rogers and had been incarcerated at the same detention facility as William, Noble and Stufflebean. Webster testified that Noble had told him that the government was pressuring Noble to lie about the involvement of "the Rogers family" in the drug operation. Webster stated he meant DeLinda and William Rogers when he referred to the Rogers family. Over defense counsel's objection, the trial judge ruled that the government could impeach Webster by asking him if he knew that William had pleaded guilty to a conspiracy to manufacture and distribute methamphetamine. When asked if he knew William had pleaded guilty, Webster responded that he did. The jury convicted DeLinda Rogers and she was sentenced to an aggregate term of 248 months.

DeLinda first argues that the trial court erred in admitting the highly prejudicial fact that William Rogers had pleaded guilty to the same charges for which she was now standing trial. The trial court found that the defense had invited this impeachment by eliciting testimony from Webster that co-conspirator Noble had told Webster that both William and DeLinda Rogers were innocent and that the government was forcing Noble to testify otherwise. The court reasoned that the fact Noble knew William had pleaded guilty tended to show that Noble would not have made statements saying William was innocent. The government asked Webster if he knew William had pleaded guilty to the same offense with which co-conspirator Noble had been charged. After Webster stated he knew that, the government promptly terminated its cross examination.

The trial court has broad discretion in determining what evidence to admit and its decision will be overturned on appeal only if there has been an abuse of discretion. Rothgeb v. United States, 789 F.2d 647, 650 (8th Cir.1986). Any time a guilty plea of a co-offender is either directly or indirectly brought into a trial, trial courts must ensure it is not being offered as substantive proof of the defendant's guilt. See United States v. Wiesle, 542 F.2d 61, 62 (8th Cir.1976) (finding a co-defendant or co-conspirator's guilty plea may not be used as evidence of the defendant's guilt). Reference to such pleas obviously is capable of seriously prejudicing the defendant's right to a fair trial. United States v. Handly, 591 F.2d 1125, 1128 n. 1 (5th Cir.1979). A reviewing court must carefully scrutinize the facts and circumstances of the manner in which the plea was used. It is essential to consider such factors as whether the court gave the jury a limiting instruction, "whether there was a proper purpose in introducing the fact of the guilty plea, whether the plea was improperly emphasized or used as substantive evidence of guilt, [and] whether the...