U.S. v. Walker, No. 97-60153

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS; DENNIS
Citation148 F.3d 518
Docket NumberNo. 97-60153
Decision Date28 July 1998
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Santonio Lamond WALKER and Jerry Lee Quinn, Defendants-Appellants.

Page 518

148 F.3d 518
UNITED STATES of America, Plaintiff-Appellee,
v.
Santonio Lamond WALKER and Jerry Lee Quinn, Defendants-Appellants.
No. 97-60153.
United States Court of Appeals,
Fifth Circuit.
July 28, 1998.

Page 519

John Marshall Alexander, Calvin D. Buchanan, Oxford, MS, for Plaintiff-Appellee.

Page 520

Robbie Ann Byers, Christopher & Byers, Tupelo, MS, for Santonio Lamond Walker.

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

Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

A Federal Grand Jury returned a three-count indictment charging defendant-appellant Jerry Lee Quinn with one count of suborning Santonio Lamond Walker to commit perjury, in violation of 18 U.S.C. § 1622 (Count 1), and charging defendant-appellant Walker with two counts of knowingly making false material declarations while under oath, in violation of 18 U.S.C. § 1623(a) (Counts 2 and 3). The indictment was based on Walker's allegedly false testimony on Quinn's behalf in the trials of a felon in possession of a firearm charge against Quinn. 1 Walker moved for severance, but the motion was denied. After a jury trial, Quinn and Walker were found guilty on all three counts. At sentencing, Quinn received 24 months imprisonment as to Count 1 of the indictment, while Walker received 24 months each as to Counts 2 and 3, to run concurrently.

Walker appeals, alleging: (1) The admission of four out-of-court statements by his codefendant, Quinn, violated his Sixth Amendment right to cross-examination (i.e., a Bruton violation 2); (2) the trial court erroneously denied his motion for severance in light of the alleged Bruton violation; (3) the evidence was insufficient to support his convictions; and (4) his offense level calculated for purposes of the United States Sentencing Guidelines (U.S.S.G.) was improperly based on the underlying offense of possession of a firearm.

Quinn also appeals, alleging: (1) Admission of an out-of-court statement by his codefendant, Walker, was a Bruton violation; (2) testimony about Quinn's attempt to suborn perjury from someone other than Walker was improperly admitted because it was evidence of "other acts" not admissible pursuant to Federal Rule of Evidence 404(b); and (3) admission of statements made by Quinn to a jailhouse informant violated his Sixth Amendment right to counsel.

Having considered each alleged point of error, we affirm.

Facts

On May 12, 1995, Jerry Lee Quinn was under surveillance by Aberdeen (Mississippi) Police Officer Pete Conwill and Bureau of Alcohol, Tobacco and Firearms Agent Joey Hall pursuant to their investigation of Quinn for possession of a firearm by a convicted felon. 3 Quinn detected their surveillance and fled. Conwill and Hall pursued a black and gold Pontiac Grand Am, which they believed to be driven by Quinn. Conwill attempted to apprehend the driver of the Grand Am at an impromptu roadblock. The Grand Am driver avoided the roadblock, however, by speeding in reverse around a corner into the yard of James Kilan, abandoning the Grand Am, and fleeing on foot. After impounding the Grand Am, police found a loaded 9mm semiautomatic handgun in the backseat armrest. Further investigation led to the arrest of Quinn for possession of a firearm by a convicted felon.

At Quinn's first firearms possession trial, Santonio Lamond Walker, an acquaintance of Quinn's, testified that he, and not Quinn, had been driving the Grand Am on May 12, 1995 during the pursuit by Hall and Conwill. The jury deadlocked. At Quinn's second firearms possession trial, Walker again testified that he had been driving the Grand Am during

Page 521

the chase. Quinn was convicted in the second trial.

Suspecting that Quinn had suborned Walker's perjury in the firearms possession trials, Hall asked Quinn's cellmate, Rodney Seaton, to be attuned to anything Quinn might say about his recent trial, but not to initiate any conversation with Quinn; Hall gave Seaton no details concerning the investigation of Quinn. On Thanksgiving night, Quinn volunteered to Seaton that he should not be in jail because his "home boy" had "stood up in court and took the rap for him being in the car." After Quinn volunteered this information, Seaton asked him if he was driving the car during the chase, to which Quinn replied that he was, but that his "home boy" had claimed to be the driver. Seaton relayed this information to Hall, which, along with the results of further investigation, led, eight months later, to the indictments of Walker for perjury and Quinn for subornation of perjury.

The government presented its evidence in two stages of a joint trial of the charges against Walker and Quinn. The first stage of the government's case addressed whether Walker had knowingly made false material declarations while under oath as a witness in Quinn's firearms possession trials. Seaton testified that Quinn, in his jailhouse statements on Thanksgiving night, said that Walker had "taken the rap for him" in the firearms possession trials, and that the police were unaware that his "home boy" was not the driver of the Grand Am because its windows were darkly tinted. Hall testified that, during the car chase, when he pulled his vehicle's left side up to the Grand Am's left side at an intersection, the driver of the Grand Am, whom Hall identified definitely as Quinn, rolled down his window and looked at him. Conwill testified that he blocked the road with his car after seeing the Grand Am approaching from behind, and got out of his car to apprehend the driver. When he was close enough to the Grand Am to place his hand on its hood, the Grand Am backed around the corner. Conwill testified, however, that he was able to see through the tinted glass and identify Quinn as the driver and sole occupant of the car. Conwill further testified that, in a separate municipal court trial related to the chase, Quinn offered two different exculpatory stories regarding driving the Grand Am on the day of the chase; each story related that Quinn had driven the Grand Am to a mechanic (the first story related that the mechanic was in Columbus, Mississippi, and the second story changed the mechanic's location to Aberdeen), and neither story involved Walker's driving the Grand Am at any point.

Although James Kilan testified that he was not positive that Quinn was the driver who abandoned the Grand Am in his yard, he described the driver as resembling Quinn but not Walker. Barbara Byrd, the court clerk of the city of Aberdeen, testified that Walker was in the City Court appearing on two unrelated matters on the day and at the time of the chase. Robert Taylor, an acquaintance to both Walker and Quinn, testified that, in a conversation prior to the firearms possession trial, Quinn had admitted to having driven the Grand Am during the chase. The foreman of the jury that convicted Quinn of the firearms violation testified that the identity of the driver was a major issue in determining whether Quinn possessed the firearm found in the Grand Am's backseat armrest. The transcripts from the two firearms possession trials were entered as evidence, demonstrating that Walker had testified under oath that he was the driver of the hotly pursued Grand Am.

The second stage of the prosecution's case addressed whether Quinn had knowingly acted to suborn Walker's false testimony. Taylor testified that Walker told him in a conversation after Quinn's firearms possession conviction that he testified falsely that he was driving the Grand Am, and that Quinn promised to give him $5,000 and two ounces of cocaine if Quinn was acquitted of the firearms possession charges. Taylor also testified that Quinn had tried to persuade him to testify falsely at the firearms possession trial that he, not Quinn, was the driver of the Grand Am.

Neither Walker nor Quinn testified at the perjury/subornation trial.

Page 522

Analysis

I. Walker's appeal

A. The alleged Bruton violation.

" '[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him' secured by the Sixth Amendment." Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (quoting Pointer v. State of Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). Where an out-of-court statement by a non-testifying codefendant is admitted, the defendant inculpated by the statement is denied the opportunity to cross-examine his codefendant, thus leaving the reliability of the codefendant's statement untested. Therefore, the inculpated defendant is denied his constitutional right to confront the witnesses against him. Bruton, 391 U.S. at 127, 88 S.Ct. 1620 (citing Douglas v. State of Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)); see also United States v. Wilson, 116 F.3d 1066, 1083 (5th Cir.1997) (examining a possible Bruton violation). This type of constitutional violation is termed a Bruton violation after the case of Bruton v. United States in which the Supreme Court held that a curative instruction for the jury to consider an inculpatory statement only in determining the confessing codefendant's guilt, rather than that of the non-confessing inculpated defendant, does not cure the Sixth Amendment violation. See Bruton 392 U.S. at 131, 88 S.Ct. 1942.

There are two well-established exceptions to the Bruton rule, however. First, Bruton only applies to out-of-court statements that are "facially incriminating." Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Therefore, for a Bruton violation to occur, the codefendant's statement must directly implicate the defendant. Where the reference to the defendant is indirect and the jury can only complete the inference by relying on other evidence in the trial, Bruton will not apply. United States v. Wilson, 116 F.3d 1066, 1083 (5th Cir.1997) (where...

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32 practice notes
  • Baez Arroyo v. Dretke, No. Civ.A.SA-01-CA-0976-XR.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • March 29, 2005
    ...the [inadmissible] statement by the prosecutor can affect the perception of that statement by the jurors." United States v. Walker, 148 F.3d 518, 527 (5th Cir.1998) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 37. Petitioner "fairly presented&......
  • U.S. v. Johnson, Nos. CR 00-3034-MWB, CR 01-3046-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 23, 2002
    ...for subornation of perjury and the like. See Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. 477, 88 L.Ed.2d 481; United States v. Walker, 148 F.3d 518, 528-30 (5th Cir.1998). Nothing prevents the government from using Bender's statements, if knowing and voluntary, for the purpose of impeachment,......
  • Jones v. Cain, Civil Action No. 06-939.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 10, 2009
    ...it can fairly be assumed that a jury will consider all evidence for its truth, and this case is no different. See U.S. v. Walker, 148 F.3d 518, 524-25 (5th Cir.1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), abrogation recognized by ......
  • United States v. Pleitez, No. 16-20570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2017
    ..., 445 Fed.Appx. 771, 776 (5th Cir. 2011) (citing United States v. Baymon , 312 F.3d 725, 727 (5th Cir. 2002) ; United States v. Walker , 148 F.3d 518, 528 (5th Cir. 1998) ). Whether a defendant's right to counsel was constructively denied "is a mixed question of law and fact, subject t......
  • Request a trial to view additional results
32 cases
  • Baez Arroyo v. Dretke, No. Civ.A.SA-01-CA-0976-XR.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • March 29, 2005
    ...on the [inadmissible] statement by the prosecutor can affect the perception of that statement by the jurors." United States v. Walker, 148 F.3d 518, 527 (5th Cir.1998) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 37. Petitioner "fairly presented" this c......
  • U.S. v. Johnson, Nos. CR 00-3034-MWB, CR 01-3046-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 23, 2002
    ...for subornation of perjury and the like. See Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. 477, 88 L.Ed.2d 481; United States v. Walker, 148 F.3d 518, 528-30 (5th Cir.1998). Nothing prevents the government from using Bender's statements, if knowing and voluntary, for the purpose of impeachment,......
  • Jones v. Cain, Civil Action No. 06-939.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 10, 2009
    ...it can fairly be assumed that a jury will consider all evidence for its truth, and this case is no different. See U.S. v. Walker, 148 F.3d 518, 524-25 (5th Cir.1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), abrogation recognized by ......
  • United States v. Pleitez, No. 16-20570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2017
    ..., 445 Fed.Appx. 771, 776 (5th Cir. 2011) (citing United States v. Baymon , 312 F.3d 725, 727 (5th Cir. 2002) ; United States v. Walker , 148 F.3d 518, 528 (5th Cir. 1998) ). Whether a defendant's right to counsel was constructively denied "is a mixed question of law and fact, subject to de ......
  • Request a trial to view additional results

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