U.S. v. Williams

• Decision Date: 24 February 1993
• Docket Number: No. 91-7284,91-7284
• Citation: 985 F.2d 749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth WILLIAMS, Robert Kitchens, and Jacky Green, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 749

985 F.2d 749

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth WILLIAMS, Robert Kitchens, and Jacky Green Defendants-Appellants.

No. 91-7284.

United States Court of Appeals Fifth Circuit.

Feb. 24, 1993.

Rehearing and Rehearing En Banc

Denied April 8, 1993.

Randolph Noble, Jr., Robertshaw, Terney & Noble, Greenville, MS (court-appointed), for Green.

Julie Ann Epps, Jackson, MS (court-appointed), for Kitchens.

David G. Hill (court-appointed), Maurie L. White, Oxford, MS, for Williams.

Thomas W. Dawson, Paul D. Roberts, Asst. U.S. Attys., Robert Q. Whitwell, U.S. Atty., Oxford, MS, for U.S.

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

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Kenneth Williams, Robert Kitchens, and Jacky Green appeal their convictions for aiding and abetting the possession with intent to distribute cocaine and crack cocaine and aiding and abetting the use of a firearm in relation to a drug trafficking crime. Defendants argue that the evidence is insufficient to support their convictions that the jury instructions were flawed, and that newly-discovered evidence entitles them to a new trial. We affirm their convictions on the drug charges but reverse their convictions on the weapons offense because we conclude that the court's jury charge on this count was defective.

I.

On September 5, 1990, police officers executed a "no knock" search warrant on a house at 1009 Holmes Street in Greenville, Mississippi. In August, before obtaining the warrant, officers placed the house under surveillance. During the surveillance, police officers observed activity which they concluded was consistent with drug trafficking.

On the night of the search the officers surrounded the house quietly. Two officers stood at the locked back door of the house. Officer Blackley was dispatched under the house to break out the sewer line when the execution of the search warrant began. Five officers waited at the front door with a hydraulic device to get through a steel security door and then enter the house.

With all the officers in place, Officer Hart and Major Ballard used the hydraulic device to open the front steel security door. After quickly opening the metal door, Officers Hart, Morgan, and Zelaya then attempted to break down the inner wood door. They opened the door only a few inches before it was slammed shut.

At the same time, Officer Blackley began breaking open the sewer line under the house. As he broke the pipe, Blackley heard a commotion upstairs and heard someone running through the house. Then he heard the toilet flush. He held a pan underneath the line and caught one package of a white substance wrapped in clear plastic bags. He saw another similar package lodge in the line. He pulled this package out and placed it in the pan as well.

Upstairs, the officers were still attempting to enter the front door. Someone in the house shouted, "Who is it?" The officers responded, "Police officers, open the door." After one to two minutes, the opposition stopped. The officers forced the door open, pushed away a love seat that had been moved against the inner door, and entered the house. The officers found Williams, Kitchens, and Green in the front room of the house. No one else was in the house. No one entered or exited through the back door during the raid.

As the first officer entered the room, he saw Williams move backward and sit on a couch that was across from the door. Kitchens was also moving backward and sat on the opposite end of the same couch. Green was approximately four feet away, standing near a doorway that led to the rest of the house and to the bathroom.

Once the three defendants were secured, the police searched the house. Under a cushion on the couch where Williams was seated, officers found a loaded .25 caliber semi-automatic pistol. This weapon was under the front edge of the cushion, with the handle facing out. The gun was situated so that a person sitting where Williams was found could reach under the cushion and retrieve it.

During the search the officers found several items: a radio scanner with the frequency set on the police band; in the bathroom, a package of single edge safety razor blades and a box of sandwich bags similar to those used in the package recovered from the sewer line; small plastic bags scattered around the floor of the house; and in the kitchen, a bag of white substance that was later determined to be starch, a common cutting agent.

The officers concluded that no one permanently resided in the house. The officers found two stoves in the kitchen, one of which was turned upside down. The other stove was hooked up and had a single pan with food remnants on it. The refrigerator did not function. One bedroom had a bed, dresser, and some clothes on the floor, but no bed linens. The living room had a television, VCR, and some videos. The windows were covered with metal security screens, and both the front and back entrances had metal security doors.

The two packages that were recovered from the sewer line enclosed inner bags which in turn held smaller packages containing individual rocks of crack cocaine and portions of cocaine powder. The sandwich bags used to package the smaller portions were similar to the sandwich bags found in the bathroom and scattered around the house.

Sergeant Elizabeth Hanners, the evidence custodian, collected the evidence. The wet outer packages of the crack and cocaine were discarded, leaving the inner packages and the individually wrapped crack and cocaine. The crack cocaine, including the packaging, weighed approximately 13 grams and included twenty individually wrapped rocks. The cocaine powder, including the six small bags holding the cocaine, weighed approximately 7 grams. Sergeant Hanners field-tested the substances from the sewer line and found that they contained cocaine. The starch found in the kitchen tested negative for the presence of controlled substances.

Hanners sealed the seized items, including the starch, in Greenville Police Department bags and turned them over to the custodian of the Police Department vault. The packages were processed and delivered to the Mississippi Crime Laboratory by certified mail. Pursuant to Crime Lab policy, the drugs were assigned to lab chemist Jon Maddox for analysis. He determined that the substances were cocaine and crack. The starch was tested and found not to contain controlled substances. Maddox removed the packaging and weighed the substances. The cocaine powder weighed 5 grams and the crack cocaine weighed 9.5 grams.

Maddox took a medical leave of absence approximately ten days before trial. During this leave Crime Lab officers investigated complaints that Maddox had pilfered drugs from the lab's disposal pile for his personal use. After this investigation began, drugs that Maddox had previously tested in preparation for his testimony were retested. The state notified defense counsel that the drugs seized in the case would be retested. Crime Lab chemist Ted Chapman reanalyzed the substances and again found that they contained cocaine and crack cocaine. The weight of the drugs before Chapman's analysis, but after Maddox analyzed the drugs and removed the packaging, was 4.2 grams of powder cocaine and 7.8 grams of crack. Neither Maddox nor Chapman tested the purity of the cocaine.

Chapman determined that the third substance, found in the kitchen of 1009 Holmes, was starch. This is commonly used as a cutting agent for cocaine and an ingredient in the cooking process used to convert cocaine powder to crack.

The defendants did not testify at trial. Charles Williams, defendant Kenneth Williams's father, testified that his other son Danny owned the house at 1009 Holmes, but did not live there. The defendants also called Kendall Gibbs, who testified that he rented the house from Danny Williams. Gibbs further testified that he had invited the three appellants to the house for a fish fry and to watch videos on September 5, 1990, and that he left to buy beer, fish, and cigarettes. He left through the back door and did not lock the back metal security door. He stopped at a nearby lounge, where he was informed that police were at his house. Gibbs returned to the house without having purchased the supplies, and police arrested him on an unrelated outstanding misdemeanor warrant.

A jury convicted Williams, Kitchens, and Green of aiding and abetting possession with intent to distribute crack cocaine (Count I) and cocaine (Count II) and aiding and abetting the use and carrying of a firearm during the commission of a drug trafficking crime (Count III). The court sentenced Williams to 144 months of imprisonment and five years of supervised release; the court sentenced both Kitchens and Green to 123 months of imprisonment and five years of supervised release.

Defendants filed motions for a new trial based on newly-discovered evidence about Maddox's removal from his job as a Crime Lab chemist. After a hearing, the district court denied those motions and these appeals followed. The appellants raise three issues on appeal: 1) the evidence was insufficient to support the verdict; 2) the court's jury instructions on the weapon offense was inadequate; 3) the court erred in denying their motion for new trial. We consider these arguments below.

II.

A.

Defendants first argue that the evidence is insufficient to support their convictions on all three counts. We consider first their attack on the drug offenses, aiding and abetting each other in possessing with intent to distribute crack cocaine (Count I) and cocaine (Count II).

Possession with intent to distribute cocaine and crack cocaine requires proof that each defendant (1) knowingly (2) possessed cocaine and crack (3) with the intent to distribute it. 21 U.S.C. § 841(a)(1); United States v. Gallo, 927 F.2d 815, 821-22 (5th Cir.1991)....