U.S. v. Vaughn

• Decision Date: 01 December 2005
• Docket Number: Docket No. 04-5136 CR(L).,Docket No. 04-6288 CR(CON).
• Citation: 430 F.3d 518
• Parties: UNITED STATES of America, Appellee, v. Derek A. VAUGHN, Zaza Leslie Lindo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 518

430 F.3d 518

UNITED STATES of America, Appellee, v. Derek A. VAUGHN, Zaza Leslie Lindo, Defendants-Appellants.

Docket No. 04-5136 CR(L).

Docket No. 04-6288 CR(CON).

United States Court of Appeals, Second Circuit.

Argued: September 23, 2005.

Decided: December 1, 2005.

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Paul S. Brenner, New York, NY, for Defendant-Appellant Derek A. Vaughn.

Edward S. Panzer (Robert A. Culp, on the brief), New York, NY, for Defendant-Appellant Zaza Leslie Lindo.

Vincent Tortorella, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, John M. Hillebrecht, Assistant United States Attorney, of counsel), New York, NY, for the Appellee.

Before: NEWMAN, SOTOMAYOR, Circuit Judges, and DANIELS, District Judge.^*

SOTOMAYOR, Circuit Judge.

Defendants-appellants Derek A. Vaughn and Zaza Leslie Lindo appeal from judgments entered on November 10, 2004, and September 23, 2004, respectively, in the District Court for the Southern District of New York (Jones, J.) sentencing Vaughn principally to 97 months' imprisonment and Lindo to 121 months' imprisonment for conspiring to distribute at least fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. In a concurrently filed summary order, we address the appellants' challenges to the district court's ruling pursuant to Fed.R.Evid. 404(b) and its application of the Sentencing Guidelines ("the Guidelines"). Here, we reject appellants' remaining contentions and hold that: (1) the district court's jury instruction about the cooperating witness adequately conveyed to the jury that witness's interest in the case and his possible motive to testify falsely and that United States v. Prawl, 168 F.3d 622 (2d Cir.1999) is not to the contrary; (2) the retroactive application of the remedial opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not violate the ex post facto principle of the Due Process Clause of the Fifth Amendment; (3) after Booker, district courts may continue to find facts relevant to sentencing by a preponderance of the evidence without violating the Due Process Clause; (4) after Booker, district courts may also continue to take into account acquitted conduct when sentencing defendants without violating the Due Process Clause; and (5) district courts may sentence a defendant to a term of imprisonment greater than a statutory minimum for a drug amount not found by a jury.

BACKGROUND

Appellants were charged in a one-count information with conspiring to distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(b)(1)(B). Winston Barnett, a co-conspirator who was present at a Manhattan Mini-Storage facility to receive a shipment of marijuana for delivery to a locker rented to the appellants, testified at trial as a cooperating witness. After the close of evidence, the district court judge¹ gave the following jury instruction:

There has been evidence that Winston Barnett, who testified at this trial, lied under oath at another proceeding. The testimony of Winston Barnett should be viewed cautiously and weighed with great care. However, it is for you to decide how much of his testimony, if any, you wish to believe.

You have heard testimony about an agreement between the government and a witness, Winston Barnett. It is no concern of yours why the government made an agreement with Winston Barnett. Your sole concern is whether Winston Barnett has given truthful testimony here in this courtroom before you.

In evaluating the testimony of Winston Barnett, you should ask yourselves whether he would benefit more by lying or by telling the truth. If, after scrutinizing his testimony, you decide to accept it, you may give it whatever weight, if any, you find it deserves.

The jury convicted both defendants. In response to a special interrogatory, the jury found that the prosecutor had proved beyond a reasonable doubt that appellants' conduct involved at least fifty kilograms but not more than 100 kilograms of marijuana. At sentencing, the district court found by a preponderance of the evidence that appellants' conduct involved 544 kilograms of marijuana, the quantity of the shipment to the storage facility. After finding that a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for gun possession was appropriate, the district court sentenced appellants in conformity with 21 U.S.C. § 841(b)(1)(C), for which there is no mandatory minimum sentence and a maximum sentence of twenty years' imprisonment.

DISCUSSION

1. Cooperating Witness Instruction

Appellants contend that the district court erred by failing to instruct the jury more specifically on the interest of a co-conspirator who testifies for the prosecution. We disagree and find that the district court's instruction, viewed in the context of the arguments defense counsel made at trial, adequately conveyed to the jury the cooperating witness's interest in the case and his possible motivation to testify falsely.

A defendant is entitled to have his theory of the case fairly submitted to the jury, as long as it has some foundation in the evidence. United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir.1976). This includes a defendant's theory that the government's witnesses are lying. Id. An appellant bears the burden of showing that a requested instruction accurately represented the law and that, in light of the entire charge actually given, the appellant was prejudiced by the failure to give the instruction. United States v. Dove, 916 F.2d 41, 45 (2d Cir.1990). We review the propriety of a jury instruction de novo. United States v. Abelis, 146 F.3d 73, 82 (2d Cir.1998).

The district court commenced its instruction on the credibility of witnesses in this case with a general "interested witness" charge, telling the jury to "consider . . . the witness' relationship to the government or the defendants [and his or her] interest, if any, in the outcome of the case." Thereafter, the court specifically noted that the cooperator's testimony had to be "viewed cautiously and weighed with great care" because the cooperator had lied under oath in another proceeding. Having reminded the jury of Barnett's agreement with the government, the court instructed the jury to assess "whether he would benefit more by lying or by telling the truth." Defense counsel had requested a more extensive cooperating witness charge than that ultimately given by the court.² The parties, however, drew attention to Barnett's cooperation agreement and his motive to lie in their summations. The government, in its summation, rhetorically asked the jury whether, in light of that agreement, "he ha[d] a motive to lie, or [] a motive to tell the truth." Moreover, defense counsel argued during cross-examination and summation that Barnett's testimony should receive careful scrutiny, stating that "the government marrie[d] . . . Barnett" and that "[t]he government will have gone to bat for him." Defense counsel further argued that "[e]verything that [Barnett] did . . . was fake and fraudulent. . . If he did all that — and he did all that — why did [the government] make this cooperation agreement with him?"

The better course would have been for the trial judge to more specifically caution the jury to scrutinize the testimony of the cooperating witness with an eye to his motivation for testifying and what he stood to gain by testifying. We find, however, that the jury charge as a whole and counsel's arguments that the prosecution had "married" and "gone to bat for" Barnett, as well as the government's summation, fairly put the issue of the cooperator's credibility to the jury. See United States v. Velez, 652 F.2d 258, 261 n. 5 (2d Cir.1981) (suggesting that the district court's omission of a cooperating witness instruction was not prejudicial in light of defense counsel's summation); United States v. Santana, 503 F.2d 710, 716 (2d Cir.1974) (finding no error where the court instructed the jury to scrutinize the testimony of cooperating witnesses and where defense counsel, through cross-examination and summation, argued that the cooperating witnesses had motives to lie).

Appellants rely on United States v. Prawl, 168 F.3d 622 (2d Cir.1999), but Prawl does not compel a different result. In that case, we found reversible error where the district court neglected to charge the jury that it could not consider the guilty plea of an alleged co-conspirator as evidence of the defendant's guilt. Id. at 627. Moreover, although the defendant had requested a number of proposed charges on accomplice witness testimony, the district court gave only the following concise instruction:

The testimony of a witness who provides evidence against the defendant hoping for immunity from or mitigation of punishment or for vindication or for other personal advantage must be examined and weighed by you with great care. You must determine whether such witness's testimony has been materially affected by any such interest.

Id. at 629. We did not determine in Prawl that its accomplice-witness charge, or the failure to give any of the accomplice-testimony instructions requested by defense counsel, required reversal independently. Rather, we held that, in light of the charge that was given, the government could not rely on the testimony of the cooperating witnesses in establishing "a lack of prejudice ensuing from the omission of the charge on [the alleged co-conspirator's] guilty plea." Id. Our holding in Prawl did not sweep broadly, and we do not read it, as defendants contend, to establish a rule that district courts must do more than convey to the jury that the testimony of cooperating witnesses should be subjected to scrutiny in terms of their possible motivations, particularly where defense counsel argues to the jury that a cooperating witness's interest in the case bears on his or her credibility. See Santana, 503 F.2d...