U.S. v. Scott

• Decision Date: 21 March 1995
• Docket Number: No. 93-7552,93-7552
• Citation: 48 F.3d 1389
• Parties: 42 Fed. R. Evid. Serv. 440 UNITED STATES of America, Plaintiff-Appellee, v. Charlie SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1389

48 F.3d 1389

42 Fed. R. Evid. Serv. 440

UNITED STATES of America, Plaintiff-Appellee, v. Charlie SCOTT, Defendant-Appellant.

No. 93-7552.

United States Court of Appeals Fifth Circuit.

March 21, 1995.

Julie Ann Epps (court appointed counsel), Jackson, MS, for appellant.

Richard T. Starrett, Victoria B. May, Asst. U.S. Attys., and George Phillips, U.S. Atty., Jackson, MS, for appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN, District Judge. ^*

EMILIO M. GARZA, Circuit Judge:

Charlie Scott was convicted by a Mississippi jury of conspiracy to possess with the intent to distribute crack cocaine, see 21 U.S.C. Sec. 846 (1988), possession with the intent to distribute crack cocaine, see 21 U.S.C. 841(a)(1) (1988), and possession with the intent to distribute crack cocaine within 1,000 feet of a school, see 21 U.S.C. Sec. 845a (1988). Scott appeals his conviction, and we affirm.

I

Charlie Scott plead guilty in district court to possessing, with the intent to distribute, crack cocaine, and to distributing crack cocaine. On appeal, this Court vacated Scott's plea on the grounds that he was not fully advised of its consequences, and ordered that he be allowed to replead. 987 F.2d 261. Julie Anne Epps, Scott's appointed counsel in his appeal to this Court, accepted appointment as his trial counsel. Scott plead not guilty, and the district court set the case for trial.

Much of the trial evidence was the product of a joint investigation by the FBI and local police (the "government investigation") of a group of individuals suspected of organizing for the purpose of selling crack cocaine. One of the individuals was Charlie Scott, whom the agencies suspected of selling crack cocaine, supplied to him by Rodney Gulley, from the convenience store Scott owned. At Scott's trial, the prosecution entered into evidence audio tapes of Scott selling crack cocaine to an informant, Willie Earl Grady, in Scott's store. These transactions were secretly taped by Grady while an FBI agent conducted surveillance of Scott's store from a car parked outside.

A jury found Scott guilty of conspiring with at least one other person to possess, with the intent to distribute, crack cocaine. The jury also found Scott guilty of having, on two separate days, possessed crack cocaine with the intent to distribute. Scott appeals his conviction, arguing that (1) insufficient evidence supports the jury verdict, (2) there is no evidence linking the taped sales to any conspiracy, (3) the Government either knowingly relied on false testimony or concealed evidence materially favorable to Scott, (4) the Government failed to provide Scott in a timely manner with a log of phone calls allegedly placed by him, (5) the district court's denial of Scott's request for a continuance deprived him of his rights to counsel and due process, (6) the district court erred in denying Scott's request for an expert, (7) the district court abused its discretion in admitting extrinsic offense evidence against him, (8) the district court erred in refusing to allow Grady's criminal record to be admitted into evidence, and (9) the district court gave inadequate reasons for giving Scott a harsher sentence following the trial than he had received pursuant to his guilty plea.

II

A

Scott contends that insufficient evidence supports the jury's verdict. In our review of the sufficiency of the evidence supporting Scott's conviction, "we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." ¹ United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). "We accept all credibility choices that tend to support the jury's verdict." United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.1991). Moreover, juries are "free to choose among all reasonable constructions of the evidence." United States v. Chaney, 964 F.2d 437, 448 (5th Cir.1992).

Scott contends that insufficient evidence supports the jury's determination that he twice possessed, with the intent to distribute, crack cocaine. Scott points to what he believes are inconsistencies between Grady's tapes and FBI surveillance reports. The Government argues that while their surveillance may have been incomplete, the tapes constituted sufficient evidence of the sales.

At trial, the Government introduced into evidence audio tapes of two crack cocaine sales. An FBI agent who was familiar with Scott's voice testified that the voice of the seller belonged to Scott, that he had wired Grady with a tape recorder on the two relevant days, and that he had observed Grady arrive at and leave from Scott's store on one of those days. Viewing this evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could have found beyond a reasonable doubt that, on two separate days, Scott delivered crack cocaine to Grady. See Pruneda-Gonzalez, 953 F.2d at 193 (reciting standard of review for claims of insufficiency of the evidence).

Scott contends that there is no evidence connecting the drug sales with a conspiracy involving at least one other person to possess, with the intent to distribute, crack cocaine. The Government argues that the trial testimony of Scott's supplier, Gulley, provided sufficient evidence of the connection between the sales to Grady and the conspiracy.

Although the conspiracy charge in the indictment made reference to the two transactions between Scott and Grady, "[p]roof of an overt act in furtherance of the conspiracy is not required." United States v. Fierro, 38 F.3d 761, 768 (5th Cir.1994) (discussing elements of drug conspiracy). The district court instructed the jury that "the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out." The jury need only have found "(1) the existence of an agreement to possess narcotics with the intent to distribute, (2) knowledge of the agreement, and (3) voluntary participation in the agreement." Id. at 768. Gulley testified that Scott had approached him and asked him to supply him with drugs, and that he supplied Scott with crack cocaine both directly and through an intermediary during the six months preceding Scott's arrest. Viewing this evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Scott conspired with at least one other person to possess, with intent to distribute, crack cocaine. See Pruneda-Gonzalez, 953 F.2d at 193 (reciting standard of review for claims of insufficiency of the evidence).

B

Scott contends that the trial court's denial of his motion for continuance deprived him of both his right to counsel and his right to due process. In that motion, Scott's attorney, Julie Ann Epps, states that she learned of her appointment to represent Scott just under a month before his trial date. Soon thereafter, the district court granted a motion from Epps that Scott be returned from his place of incarceration to the court's jurisdiction. Epps first met with Scott six days before the trial began, on the day that he was returned to the court's jurisdiction. Epps filed Scott's motion for continuance on that same day, and argued it on the first day of the trial, but it was denied by the district court. Scott argues that his counsel was prevented from adequately preparing for trial by the combination of the delay in their first meeting and the demands of Epps' other professional obligations.

"This court will reverse a district court's decision denying a defendant's motion for continuance only when the district court has abused its discretion and the defendant can establish that he suffered serious prejudice." United States v. Castro, 15 F.3d 417, 423 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 127, 130 L.Ed.2d 71 (1994). We have emphasized that trial judges have broad discretion in ruling on such motions. See United States v. Correa-Ventura, 6 F.3d 1070, 1074 (5th Cir.1993). Whether a party complaining of inadequate preparation time was properly denied a continuance depends on (1) the amount of preparation time available, (2) whether the defendant took advantage of the time available, (3) the likelihood of prejudice from a denial, (4) the availability of discovery from the prosecution, and (5) the complexity of the case. United States v. Kelly, 973 F.2d 1145, 1148 & n. 3 (5th Cir.1992). "In review, we evaluate each situation on a case-by-case basis and normally consider only the reasons for continuance presented to the trial judge." United States v. Cueto, 611 F.2d 1056, 1060 (5th Cir.1980); see Ungar v. Sarafite, 376 U.S. 575, 589-90, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964) ("The answer must be found in the circumstances present in every case, particularly the reasons presented to the trial judge at the time the request is denied.").

Scott contends on appeal that the district court's denial of his motion for a continuance prejudiced him in several ways. ² During the hearing on the motion, however, Epps made fewer claims. Epps told the district court that she had not had time to investigate Grady's employment claims or felony record, to interview any of the alleged co-conspirators, to develop jury instructions, or to research the particularities and application of 21 U.S.C. Sec. 845a. Epps also requested time to employ a voice expert, and stated that she needed time to obtain transcripts in a codefendant's case.

The district court found that Scott and Epps had "three and a half weeks or so" of preparation time, which the court stated was "sufficient time to investigate and prepare for" what it described as a "fairly...