U.S. v. Taylor, 98-51225

• Decision Date: 14 April 2000
• Docket Number: No. 98-51225,98-51225
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JENELL GOODLEY TAYLOR, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 311

210 F.3d 311 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JENELL GOODLEY TAYLOR, Defendant-Appellant.

No. 98-51225

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 14, 2000

[Copyrighted Material Omitted]

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

Before POLITZ, GIBSON,^* and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Jenell Goodley Taylor appeals her conviction and sentence, contending that the trial court committed various evidentiary errors that, considered either separately or cumulatively, resulted in unfair prejudice and require a reversal. Taylor also raises two issues relevant to the calculation of her sentence. Finding reversible error we reverse Taylor's conviction and sentence and remand for a new trial.

BACKGROUND

Taylor was charged, along with 16 other defendants in a 54 count indictment, with one count of conspiracy to possess and distribute cocaine and cocaine base in violation of 21 U.S.C. 846; one count of aiding and abetting another to possess cocaine base with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; and two counts of money laundering in violation of 18 U.S.C. 1956(a)(1).¹ Taylor pleaded not guilty on all counts and her case was severed. The drug charges were tried to a jury and the government gave notice that it would seek a sentence enhancement based on the alleged involvement of over 50 grams of cocaine base.

Taylor's first trial ended in a mistrial.² On retrial the jury returned guilty verdicts on both counts. The Presentence Investigation Report characterized Taylor's role as one of a manager/supervisor. Taylor's objections to the information contained in the PSI were rejected and the court imposed concurrent sentences of imprisonment for 262 months and supervised release for eight years on each count. Taylor timely appealed.

Taylor raises several issues on appeal. She first contends that the court committed reversible error by admitting into evidence an organizational chart prepared by the government, claiming that the chart was not an accurate depiction of the testimony adduced at trial and that the jury was given an improper instruction regarding its use. She further contends the court improperly admitted two 1994 state court convictions of an alleged co-conspirator, Derrick Goodley, ostensibly as overt acts in furtherance of the conspiracy. In addition, she asserts that the court erroneously admitted evidence of her prior drug conviction and claims the prosecutor made improper statements during closing argument. Taylor maintains that each of these errors independently warrant reversal, and she urges that their cumulative effect mandates same. She also contends that the district court erred in imposing a three-level upward adjustment for her role as a manager/supervisor in the criminal organization. Her final point oferror is that under the Supreme Court's teachings in Jones v. United States,³ because the quantity of drugs involved increased the maximum penalty, that quantity should have been set forth in the indictment and proven to the jury beyond a reasonable doubt. We consider each of these issues in turn.

ANALYSIS

1. Admission of organizational chart.

We review the admission of evidence for abuse of discretion, considering any errors under the harmless error doctrine.⁴ Evidentiary rulings will be affirmed "unless they affect a substantial right of the complaining party."⁵

Throughout the trial the government made reference to a large organizational chart that purported to list the players in the drug conspiracy, and their relevant positions within the hierarchy. The chart was approximately 3' x 3' 6" in size and included photographs of each of the alleged conspirators. Colored lines connecting the photographs represented the flow of drugs. Taylor's picture was placed directly below the alleged leader of the conspiracy and the lines purported to show that she supplied crack cocaine to eight other co-conspirators, four of whom supposedly distributed the drugs to others within the lower ranks.

The chart was first used by the government in its opening statement to the jury as reflective of that which the prosecutor intended to prove. It also was used as an aid to assist the jury in distinguishing between the alleged conspirators, most of whom were related and had the same last name. The chart was placed before the jury during opening statements and when witnesses were questioned about it. At other times the chart was turned away from the jury. At the close of the government's case the chart was admitted into evidence as a summary of testimony. As such, the chart was before the jury during closing arguments and was in the jury room during deliberations. Defense counsel objected to the chart both before opening statements and when the prosecutor sought its admission into evidence.

The court gave two instructions regarding the chart's use. After the government's opening statement the court instructed the jury that the chart reflected what the government believed the facts to be, but that it would be up to them to evaluate whether it was an accurate depiction of the events. The second instruction, given after the chart was admitted into evidence, advised that the chart should be evaluated just like any other evidence and should be given whatever weight the jury deemed appropriate.

The admission of organizational charts and summary evidence is governed by Federal Rules of Evidence 611(a) and 1006. We previously have stated that allowing the use of charts as " 'pedagogical' devices intended to present the government's version of the case" is within the bounds of the trial court's discretion to control the presentation of evidence under Rule 611(a).⁶ Such demonstrative aids typically are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence.⁷ Additionally, such charts are not admitted into evidence and should not go to the jury room absent consent of the parties.⁸ In contrast, Rule 1006 applies to summary charts based on evidence previously admitted but which is so voluminous that in-court review by the jury would be inconvenient.⁹ Although the plain language of Rule 1006 does not apply to summaries of testimonial evidence, we have permitted such use in conspiracy cases to aid the jury "[in] put[ting] the myriad of complex and intricate pieces of testimonial and documentary evidence comprising the puzzle together...."¹⁰

The government contends that the district court did not err in admitting the organizational chart because there was testimony both supporting and not supporting the way the pictures were placed and the lines drawn. It also asserts that the testimony revealed numerous alleged participants with various familial relationships and a variety of relevant dates. As such, the chart enabled the jury to understand the conspiracy's structure and the nature and extent of Taylor's involvement. We are not persuaded.

A necessary precondition to the admission of summary charts is that they accurately reflect the underlying records or testimony, particularly when they are based, in part, on the government's factual assumptions.¹¹ In this case, the organizational chart did not accurately reflect the underlying testimony. For example, the government never alleged and there was no evidence to support the assertion that Taylor supplied cocaine base to Hilliard Goodley. The lines of the chart would show that she did. The chart also reflects that Taylor supplied crack cocaine directly to Patricia Miller and Clarence Blaylock, both of whom testified that they never received such.¹² Additionally, the chart would show that Freddie Goodman, the government's star witness, received crack cocaine only from Taylor and that he never supplied drugs to anyone else in the alleged conspiracy. His testimony, however, established that he received drugs from Carla Goodley Brady and Derrick Goodley, the purported head of the conspiracy, as well as from Taylor. Further, he testified that he provided cocaine base to at least four other individuals pictured on the chart, yet there are no lines drawn to reflect same. Thus, admissadmission of the chart allowed the government to assume that which it was required to prove beyond a reasonable doubt as operative facts of the alleged offense.¹³ The admission of the chart into evidence was error.

We further conclude that this error was not harmless. As noted, the chart was viewed by the jury throughout virtually the entire trial and it was available to them during deliberations. Taylor's picture was placed directly below the alleged leader of the conspiracy. By omitting connections between the other alleged participants, and including connections to Taylor that did not exist, the chart gave Taylor a more central role in the conspiracy than the testimony supported and stretched the bounds of permissible government assumptions well beyond the breaking point.¹⁴ Under these circumstances, we must conclude that Taylor's substantial rights were affected by the presence of and repeated references to the government's organizational chart.¹⁵ Although we have held that proper jury instructions regarding the function of summary charts may neutralize their potential prejudicial effect,¹⁶ the instructions herein do not pass muster. We therefore hold that admission of the chart unduly prejudicedTaylor's trial and requires a reversal. We deem it appropriate to address other issues raised in this appeal.

2. Admission of co-conspirator's prior convictions.

In her second point of error, Taylor contends that the district court erred in admitting into evidence two 1994 state court convictions of Derrick Goodley, the purported head of the conspiracy. Taylor complains that Goodley's convictions are irrelevant in determining her guilt and were highly prejudicial because they...