U.S. v. Royal

• Decision Date: 08 September 1992
• Docket Number: No. 91-8471,91-8471
• Citation: 972 F.2d 643
• Parties: 36 Fed. R. Evid. Serv. 808 UNITED STATES of America, Plaintiff-Appellee, v. Jon Harold ROYAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 643

972 F.2d 643

36 Fed. R. Evid. Serv. 808

UNITED STATES of America, Plaintiff-Appellee, v. Jon Harold ROYAL, Defendant-Appellant.

No. 91-8471.

United States Court of Appeals Fifth Circuit.

Sept. 8, 1992.

Rehearing and Rehearing En Banc Denied Sept. 30, 1992.

W.V. Dunnam, Jr., Waco, Tex., for defendant-appellant.

Sean Connelly, U.S. Dept. of Justice, Washington, D.C., Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before HIGGINBOTHAM and DUHE, Circuit Judges and HARMON, District Judge. ¹

DUHE, Circuit Judge.

Defendant Jon Harold Royal appeals both his conviction of conspiracy to possess cocaine with intent to distribute it and his sentence. We affirm both.

I.

Royal met David LeBoeuf in 1977 and sometime thereafter they began trafficking methamphetamine together in the Houston area. By 1983, the two were trafficking cocaine, with Royal supplying the drug to LeBoeuf for resale. In 1985, Royal was arrested for selling cocaine to an undercover agent. He pled guilty to federal drug charges and was imprisoned upon his guilty plea in April 1986. While imprisoned, Royal enlisted LeBoeuf and others to carry on his drug operations for him.

The jury had before it the following evidence supporting the charge that Royal conspired to perpetuate his cocaine business while imprisoned. After his arrest in 1985, he asked LeBoeuf to assist in transporting cocaine from Florida to Texas. LeBoeuf and his brother-in-law, Jay Husik, met with Royal and agreed that Husik would be paid $2500 per trip. Husik had previously transported cocaine between Austin and Houston for LeBoeuf. Royal arranged and provided the money for the purchase of a truck for Husik and he accompanied Husik on one trip to Florida. Husik made five to ten trips, returning each time with two to six kilograms of cocaine. Of each such delivery, LeBoeuf received one kilogram and Royal the rest.

Shortly before Royal was imprisoned, he arranged for LeBoeuf to assume his role in this trafficking scheme. He accompanied LeBoeuf to Florida and introduced LeBoeuf to his supplier. LeBoeuf agreed to pay the Defendant a commission for the cocaine bought in Florida during his imprisonment.

At the time these arrangements were made, the Defendant thought he would be in prison for six to eight months. Actually, he was imprisoned for almost three years. After his release, LeBoeuf refused to pay him the promised commissions because, according to LeBoeuf, the bottom had fallen out of the cocaine market during the Defendant's longer-than-expected prison term. To settle their dispute, LeBoeuf arranged for a loan for Royal's used car business and agreed to provide him with 500 grams of cocaine.

After federal authorities began investigating LeBoeuf's activities, LeBoeuf, Husik and others agreed to cooperate with these investigators, who arrested the Florida suppliers and got a warrant for the Defendant's arrest. These agents also obtained a warrant to search the Defendant's house, where they found cocaine, scales, business records and guns. Subsequently, Royal was convicted of conspiracy to possess cocaine with intent to distribute it. He was sentenced to thirty years' imprisonment, ten years' supervised release, a $25,000 fine and a $50 special assessment. He now appeals both his conviction and his sentence.

II.

Royal contends that the district court erred in several evidentiary rulings. We examine a district court's ruling on the admissibility of evidence for abuse of discretion. United States v. Shaw, 920 F.2d 1225, 1229 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2038, 114 L.Ed.2d 122 (1991).

A.

First, Royal complains of the denial of his motion to exclude evidence that a customer of his, Geno Hernandez, died in 1986 as a result of using cocaine Royal supplied. During cross-examination, he denied that he was Hernandez's supplier at that time. A government rebuttal witness testified that the Defendant supplied the cocaine to LeBoeuf, who was unable to sell it as planned because there was something wrong with it, and that LeBoeuf then gave it to Hernandez. The government argues that this evidence is relevant to the conspiracy charge because Royal initially intended for Hernandez to take over his cocaine business and chose LeBoeuf for this position only after Hernandez died. This evidence is also relevant, the government contends, to impeach the Defendant's testimony that he had discontinued all drug trafficking activities by the time Hernandez died.

We are sympathetic to Royal's argument that the evidence of Hernandez's death was improperly admitted. The government could have offered evidence that the Defendant supplied cocaine to Hernandez in 1986 and intended to pass on his drug business to Hernandez to establish the details of the conspiracy and the time frame in which his drug activities occurred without also offering evidence that Hernandez's death resulted from "bad" cocaine that originated with Royal. In light of the other evidence against the Defendant, this evidence was completely unnecessary to the government's case and we discern no purpose other than prosecutorial overkill in the government's insistence that it be admitted.

Nonetheless, Royal has not demonstrated that the admission of this evidence prejudiced him in any way. The evidence of his involvement in the cocaine conspiracy was overwhelming, supported by the testimony of LeBoeuf, Husik, and LeBoeuf's brother, who also transported drugs for LeBoeuf, as well as by the physical evidence found in Royal's home. He has not convinced us that the jury convicted him to punish him for Hernandez's death, rather than for the drug conspiracy offense with which he was charged. Accordingly, the admission of this evidence, if error at all, was harmless. United States v. Williams, 957 F.2d 1238, 1243 (5th Cir.1992) (finding erroneous admission of drug courier profile as substantive evidence of defendant's guilt to be harmless error where evidence of guilt was overwhelming).

B.

Next, Royal argues that the court erred in allowing the testimony by Kalim Tippit that Tippit's mother ² tried to convince him to testify that the guns and drugs found in the house belonged to him and not to Royal. The Defendant objected on hearsay grounds and now argues that such evidence is admissible only if he, as the defendant, and not a third party, tried to influence the witness's testimony.

We cannot agree. Tippit was a defense witness and the government was entitled to elicit during cross-examination testimony relevant to any possible bias he may have had. United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984) (holding that the Federal Rules of Evidence permit impeachment of a witness showing bias). Although Tippit did not comply with his mother's request, the influence his mother tried to assert on his testimony was certainly relevant to show that his testimony may have been biased. The jury was entitled to hear this evidence so that it could evaluate his credibility. Although Royal evidently believes that this evidence caused the jury to unfairly discredit Tippit's testimony on Royal's behalf, we think it just as likely that Tippit's refusal to perjure himself despite pressure from his mother may have leant more credibility to his testimony. In any case, the evidence was clearly relevant to the jury's evaluation of Tippit's credibility and his possible bias. See United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (finding no abuse of discretion where court allowed evidence that defendant had physically abused wife to show that her testimony on his behalf may have been motivated by fear).

C.

Royal asserts that evidence found in his home pursuant to a search warrant was unlawfully admitted because the warrant was supported by stale evidence and therefore failed to show probable cause. The warrant was based on a twelve-page affidavit by Special IRS Agent Gary Gallman and described conduct by the Defendant occurring over the several years prior to the issuance of the warrant. ³ A United States magistrate issued the warrant, and the district court determined that the magistrate's finding of probable cause was reasonable, rejected the argument that the evidence was stale, and, in any case, concluded that the "good faith exception" under United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984), applied to this case.

We need not address probable cause for the warrant because we conclude that law enforcement officials acted in good faith in relying on the warrant. United States v. Puma, 937 F.2d 151, 158 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992). Evidence obtained under a warrant, even one based upon inadequate probable cause, is admissible if an officer's reliance on the warrant was objectively reasonable. Id. "Such reliance is objectively reasonable unless the affidavit supporting the warrant is so lacking in indicia of probable cause as to render belief in its existence unreasonable." Id. Furthermore, the "[i]ssuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to a warrant." United States v. Craig, 861 F.2d 818, 821 (5th Cir.1988). Accordingly, we find no reason to reverse the district court.

D.

Next, Royal complains of the admission of evidence of several prior bad acts. The government offered evidence that he sold LeBoeuf cocaine on numerous occasions during 1983 and 1984, and was arrested in 1985 and imprisoned in 1986 for several sales of cocaine to an undercover drug agent in 1983. Royal argues that the government admitted evidence of these prior bad acts to prove character in contravention of Rule 404(b), ⁴ that the cocaine sales to LeBoeuf were so remote in time that the jury...