U.S. v. White

• Decision Date: 04 September 1992
• Docket Number: No. 91-1472,91-1472
• Parties: , 36 Fed. R. Evid. Serv. 800 UNITED STATES of America, Plaintiff-Appellee, v. John Sennett WHITE and John Michael Wilson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 590

972 F.2d 590

122 A.L.R.Fed. 717, 36 Fed. R. Evid. Serv. 800

UNITED STATES of America, Plaintiff-Appellee, v. John Sennett WHITE and John Michael Wilson, Defendants-Appellants.

No. 91-1472.

United States Court of Appeals, Fifth Circuit.

Sept. 4, 1992.

Rehearing and Rehearing En Banc Denied Oct. 9, 1992.

Christopher Lee Milner, Dallas, Tex. (court-appointed), for White.

Gary A. Udashen, Milner, Goranson, Sorrels, Udashen, Wells & Parker, Dallas, Tex. (court-appointed), for Wilson.

John Mitchell Nevins, Plano, Tex., for John Michael Wilson.

David C. Musslewhite, Dallas, Tex. (court-appointed), for John Sennett White, Jr.

Candina S. Heath, Delonia A. Watson, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.

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

Before HILL ¹, KING and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

John Sennett White and John Michael Wilson appeal their convictions on charges of possession with intent to distribute cocaine and conspiracy to commit the same offense on several grounds. Both challenge their convictions and Wilson contests his sentence under the Guidelines. For both defendants, we reverse in part, affirm in part and remand for entry of a new judgment and for resentencing.

I.

In the fall of 1989, a federal grand jury in the Southern District of Texas returned an indictment against Mark Monroe Northcutt (Northcutt) charging him with possession of cocaine with intent to distribute and conspiring to commit the same offense in violation of 21 U.S.C. §§ 841(a)(1) and 846. Northcutt was also facing state felony drug charges in San Marcos, Texas, as well as state forfeiture proceedings against his property. In January of 1990, Northcutt agreed to cooperate with the Drug Enforcement Administration (DEA) and identified several targets for federal prosecution. One of those targets is a defendant in this case, John Michael Wilson (Wilson). Wilson was a criminal defense attorney practicing in Dallas who handled mostly drug cases.

At an initial unrecorded meeting, Northcutt met with Wilson at Wilson's office in Dallas. Northcutt asked Wilson to defend him in the cases described above. According to Northcutt, Wilson quizzed him about the extent and profitability of his drug distribution business. Northcutt met a second time with Wilson in Houston on February 27, 1990. In this meeting, which was tape recorded, Northcutt told Wilson that he wanted to hire him but didn't have any cash. Northcutt told Wilson that he had twenty-one kilograms of cocaine stored in a mini-warehouse and asked Wilson for an introduction to one of his clients who might be interested in purchasing the cocaine. Wilson responded that if he furnished such an introduction, he would be implicated in the conspiracy which he did not want to do. Wilson agreed, however, to consider the proposal. John Sennett White (White), who was both Wilson's client and personal cocaine supplier, left at least nine telephone messages for Wilson during the week following this meeting.

The next contact with Wilson occurred when Wilson called Northcutt on March 8, 1990. Wilson told Northcutt that he had "somebody in Dallas that might be interested" in the cocaine. Later the same day, Wilson and Northcutt discussed over the phone whether the cocaine transfer should be made in Dallas, Houston (where Northcutt was) or somewhere between the two cities. Wilson mentioned "his man" in relation to the transaction. Wilson agreed to travel to Houston on Saturday, March 10, 1990 to make the exchange, but did not show up.

Over the next seven days, Wilson and Northcutt had numerous tape-recorded phone conversations which culminated in Wilson's agreement to represent Northcutt in exchange for the cocaine. According to Northcutt, Wilson agreed to represent him in return for the twenty-one kilos of cocaine. Wilson testified that he thought he had agreed to represent Northcutt in return for one kilo of cocaine and $100,000. Wilson had several more telephone conversations with Northcutt attempting to arrange a time and place to transfer the cocaine.

On March 18, Wilson and Northcutt met for about one hour in Wilson's office in Dallas. No tape recording was made of this meeting. Northcutt testified that they discussed the amount of cocaine Wilson's "man" could move a week and the price they expected to obtain for it. According to Northcutt, Wilson told him that ten kilos would pay Wilson for his services in defending Northcutt in the federal charges and the remainder would compensate Wilson for defending the state charges. Northcutt agreed to go to Houston, pick up the cocaine and deliver it to Dallas in a single suitcase as soon as possible. During the days immediately before this meeting, White left several messages with Wilson's message service.

On Tuesday, March 20, 1990, Northcutt returned to Dallas with the cocaine. He went to Wilson's office around 7 p.m. and gave Wilson the key to Room 909 of the Holiday Inn on Central Expressway. In a recorded conversation, Northcutt told Wilson that the cocaine was stored in an expensive Halliburton case that he wanted back. Northcutt also told Wilson that Wilson and "his man" would be impressed with the quality and purity of the drug. Wilson said that he would go right over to complete the pick-up. After Northcutt left, Wilson called White and arranged to meet him at the Holiday Inn.

Shortly thereafter, White and Wilson arrived at the Holiday Inn in separate cars. The two spoke briefly and entered the hotel. The DEA, which had already set up a surveillance of Room 909, videotaped the activity in the room. White and Wilson entered the room, turned off the lights and turned up the volume on the television. They explored the room, Wilson peered behind a picture and White covered the smoke detector with a towel. These actions were taken in an obvious attempt to avoid surveillance. They paced the room and then each walked over to the suitcase and lifted it as if to check its weight.

Finally, after about ten minutes, White placed the suitcase on the bed and opened it. He counted the kilos as Wilson observed. White then rearranged the cocaine, closed the suitcase and returned it to the corner of the room. Both men then immediately left the room, placing a do-not-disturb sign on the door. They talked briefly by their vehicles and left the Holiday Inn. At approximately 11 p.m. that night, an unidentified female drove White's car very slowly through the parking lot of the Holiday Inn several times. White was in the car and appeared to be inspecting the lot.

A few hours later, Northcutt called Wilson and reminded Wilson that he wanted to retrieve the bag. Wilson told Northcutt he could retrieve the bag after 10:30 a.m. the next morning. At approximately 10 a.m., Wilson arrived at the Holiday Inn. He proceeded directly to Room 909, entered the room, opened the suitcase and transferred eleven kilograms of cocaine to a green canvas bag he was carrying. Wilson closed the suitcase, which contained remaining ten kilos, and he returned the suitcase to the corner of the room. Dallas DEA agents arrested Wilson as he left the room.

A few minutes later, White arrived at the Holiday Inn and parked next to Wilson's vehicle. White carried a briefcase containing a canvas bag, similar to Wilson's. As White stepped off the elevator and proceeded towards Room 909, the DEA arrested him. At the time of his arrest White did not have a key to the room.

White and Wilson pled not guilty and were tried together before a jury in January 1991. The court, in its instructions, gave the jury the option of finding the defendants guilty of the lesser included offense of simple possession on Count 1, rather than the charged offense, possession with intent to distribute. But on Count 2, the court did not give the jury the option of finding the defendants guilty on the lesser included offense--conspiracy to possess (rather than the charged offense, conspiracy to possess with intent to distribute).

During their deliberations, the jury sent out a note to the court which read as follows:

Please clarify if Defendant is found guilty of lesser offense--Count 1--(possession) is he automatically not guilty on Count 2.

The Court responded:

Members of the jury, in response to your third question, if you have a reasonable doubt about a Defendant's intent to distribute cocaine, you must find the Defendant not guilty of the offense charged in Count 2 of the indictment.

Later that day, the jury sent a message to the court that it had reached a verdict. The verdict form reflected that the jury had found both defendants guilty of the lesser included offense of simple possession on Count 1. The jury made no finding on Count 2. The verdict was read in open court as to both defendants and a poll reflected a unanimous verdict. When questioned about the absence of a verdict on Count 2, the jury foreperson explained that the jury thought that if they could not reach a verdict on Count 1 as charged they could not reach a verdict on Count 2.

The jury was excused for the weekend. Wilson and White argued that the guilty verdict on the lesser included offense on Count 1 precluded a guilty verdict on Count 2 as charged. Alternatively, they argued that if the court intended to require the jury to deliberate further on Count 2, it should authorize the jury to return a verdict on the lesser included offense of conspiracy to possess cocaine (without intent to distribute). The court denied both requests. On Tuesday, the jury was instructed to continue their deliberations on Count 2. After further deliberating, the jury asked whether they could reconsider their verdict on Count 1. Over the defendants' objections the court told them they could. The jury then found the defendants guilty on both counts as charged. White and Wilson appeal. Additional facts necessary to the discussion of particular...