U.S. v. Vaquero

• Citation: 997 F.2d 78
• Decision Date: 26 July 1993
• Docket Number: 91-3805,Nos. 91-3781,s. 91-3781
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel VAQUERO, a/k/a Michael or Mike Vacuero or Vaccaro, Clarence Taylor, Jr., and Herman J. Mouton, Jr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Clarence TAYLOR, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 78

997 F.2d 78

UNITED STATES of America, Plaintiff-Appellee, v. Miguel VAQUERO, a/k/a Michael or Mike Vacuero or Vaccaro, Clarence Taylor, Jr., and Herman J. Mouton, Jr.,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Clarence TAYLOR, Jr., Defendant-Appellant.

Nos. 91-3781, 91-3805.

United States Court of Appeals Fifth Circuit.

July 26, 1993.

R. Scott Iles, Lafayette, LA (Court-appointed), for Miguel Vaquero.

Dwight Doskey, Martin E. Regan, Jr., Regan & Associates, New Orleans, for Taylor.

Pamela Blankenship, Grambling, LA, for Herman J. Mouton, Jr.

Robert W. Piedrahita, Randall B. Miller, Asst. U.S. Attys., P. Raymond Lamonica, U.S. Atty., Baton Rouge, LA, for U.S Appeals from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, KING and DUHE, Circuit Judges.

DUHE, Circuit Judge.

BACKGROUND

In 1991, Clarence Taylor, Miguel Vaquero, and Herman Mouton were indicted and convicted for conspiring to possess cocaine with intent to distribute and conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Herman Mouton was also indicted and convicted for unlawfully using a communications facility in violation of 21 U.S.C. § 843(b).

The cocaine conspiracy revolved around Linda Howard, a Baton Rouge drug dealer who, unbeknownst to Appellants, was cooperating with law enforcement officials. Howard bought cocaine from Appellant Vaquero's business partner and friend, Jesus Blanco, who resided in Florida. In turn, Appellants Mouton and Taylor purchased cocaine from Howard, to resell it elsewhere in Louisiana.

Much of the evidence consisted of videotapes and recorded telephone conversations gathered by law enforcement officials using hidden cameras and recording devices in Howard's home and telephone. Taylor, Vaquero, and Mouton each appeal. We affirm.

DISCUSSION

I. Clarence Taylor

A. Sufficient Evidence

Taylor moved for a judgment of acquittal at the close of the Government's case, but not at the close of his case. We therefore restrict our review of his claim to whether his conviction results in a manifest miscarriage of justice. United States v. Knezek, 964 F.2d 394, 399-400 (5th Cir.1992). A miscarriage of justice exists if the record is devoid of evidence pointing to guilt or if the evidence on a key element of the offense is so tenuous that a conviction would be shocking. United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992).

The indictment charged Taylor with conspiring to possess and distribute cocaine from November 1990 until January 1991. He argues that insufficient evidence exists of his involvement in the conspiracy during this time frame because of Howard's testimony that she personally did not give or sell cocaine to Taylor in November, December, or January and Jeffrey Hale's testimony that he did not know whether he met with Taylor to deal cocaine during November, December, or January.

We note that Taylor need not have purchased cocaine directly from Howard or Hale in order to be involved in the conspiracy. Only slight evidence is needed to connect an individual to an illegal conspiracy once the United States has produced evidence of that conspiracy. United States v. Duncan, 919 F.2d 981, 991 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991). A defendant is presumed to continue involvement in a conspiracy unless that defendant makes a substantial affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose. United States v. Branch, 850 F.2d 1080 (5th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 806 (1989). The defendant has the burden of going forward with such evidence. United States v. MMR Corp. (LA), 907 F.2d 489, 499-500 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1388, 113 L.Ed.2d 445 (1990). The record reveals substantial evidence that Taylor was deeply involved in the conspiracy prior to November 1990. ¹

To prove his withdrawal from the conspiracy, Taylor must show "[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators." United States v. United States Gypsum Co., 438 U.S. 422, 464-465, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978). Howard and Hale's testimony that they did not directly sell cocaine to Taylor from November 1990 to January 1991 does not carry this burden. Taylor did not demonstrate his withdrawal from the conspiracy and we therefore conclude that his conviction did not result in a manifest miscarriage of justice.

B. Prior Acts

A detective with the Osceola County Sheriff's Office in Florida testified that in February of 1990 he stopped Taylor's vehicle in Florida and searched it with Taylor's consent and found over $350,000 in Taylor's car. A deputy with the Chambers County Sheriff's Office in Texas testified that in May of 1990 he stopped Taylor and his father outside of Beaumont, Texas and found approximately $26,000 as well as a pound and a quarter of cocaine in the vehicle. The court admitted this evidence pursuant to Federal Rule of Evidence 404(b) to prove motive, opportunity, intent, or preparation. Taylor contends this was error because the evidence was more prejudicial than probative in violation of Rule 403.

Our thorough review of the record reveals that Taylor did not make a Rule 403 objection to the evidence. We are therefore limited to the plain error standard of review. United States v. Blankenship, 746 F.2d 233, 238 (5th Cir.1984); see United States v. Arteaga-Limones, 529 F.2d 1183, 1198-99 (5th Cir.1976), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976).

Taylor's cocaine conspiracy transferred cocaine between Louisiana and Florida by car and airplane, and the amounts of money involved reached the tens if not hundreds of thousands of dollars. The money and cocaine found during Taylor's prior stops and searches in Florida and Texas strongly indicate motive and intent to carry drugs and money interstate. The probative value of this evidence was not outweighed by its prejudicial impact, if any. We therefore conclude that the court did not clearly err in admitting the evidence.

C. Sentencing

Taylor argues that the court erred by (1) increasing his offense level under United States Sentencing Commission, Guidelines Manual, § 3B1.1(c) (Nov.1990), for his role as a "leader," (2) increasing his offense level under U.S.S.G. § 2D1.1(b)(1) for possessing a weapon during the commission of a drug offense, and (3) increasing his offense level for obstruction of justice based on perjury, under U.S.S.G. § 3C1.1.

1. Taylor's Role as a Leader

Section 3B1.1(c) requires a two level increase in a defendant's offense level if the defendant was an organizer, leader, manager, or supervisor in the criminal activity. Taylor's level was increased because his presentence report indicated that he determined whether to purchase cocaine from the co-conspirators, made decisions about its quantity, price, and place of delivery, and directed others to transport it.

Taylor argues that this enhancement was error because this information is based on unsubstantiated claims against him, and because the conduct portraying him as a leader did not occur during the time frame of the conspiracy.

Information with a " 'sufficient indicia of reliability to support its probable accuracy,' " may be relied upon. See United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.1990) (quoting U.S.S.G. § 6A1.3(a)). An addendum to the presentence report states that the information is based on statements from confidential informants and cooperating defendants. Having reviewed the presentence report and the transcript of the sentencing hearing, we find that this information had a sufficient indicia of reliability to support the district court's finding that Taylor had a leadership role in the conspiracy. See United States v. Ramirez, 963 F.2d 693, 708 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992).

Regarding Taylor's claim that the "leadership conduct" occurred prior to November 1990, we first note that § 1B1.3 provides that offense level adjustments shall be determined on the basis of all acts committed by the defendant "that occurred during the commission of the offense of conviction [or] in preparation for that offense." Additionally, the introductory commentary to § 3B1.1 states that the determination of a defendant's role in the offense "is to be made on the basis of all conduct within the scope of § 1B1.3 ... and not solely on the basis of elements and acts cited in the count of conviction." The court heard testimony specifically identifying Taylor as a leader and supervisor in the overall cocaine conspiracy. Given this evidence, we find that the court did not clearly err in enhancing Taylor's offense level for his role as a leader.

2. Possession of a Weapon

We review a court's decision to apply U.S.S.G. § 2D1.1(b)(1) for clear error. United States v. Paulk, 917 F.2d 879, 882 (5th Cir.1990). Taylor's offense level was increased because (1) a .357 revolver was found under the driver's seat of his vehicle one week after his arrest, and (2) a handgun was found in the glove compartment of his rental car when he was stopped in Florida in February 1990. Taylor objected to this increase, arguing that the gun found in the truck after his arrest was not his and had not been placed there by him, and that the gun in his car in Florida belonged to his passenger.

After Taylor's arrest, police officers inventoried his truck and had it towed to an impoundment lot by a wrecker service that has a contract with the Baton Rouge Sheriff's Department. One week later, the owner of the impoundment lot noticed that the driver's side door of Taylor's truck was not completely closed. He approached the truck to close the door, saw the handle of a revolver protruding from under the front of...