U.S. v. Wilson

• Citation: 116 F.3d 1066
• Decision Date: 26 June 1997
• Docket Number: No. 95-30998,95-30998
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don R. WILSON, a/k/a Big Don; Alfred L. Brown, a/k/a Goat; Troy Bellamy, a/k/a Bow Leg; Sebastian Richardson, a/k/a Bam Bam; Reginald D. Wilson; a/k/a Reg; Donald R. Miller, a/k/a Big Daddy; Patrick D. Miller, a/k/a Patchy Cat; Roderick Allen, a/k/a Baby Hulk; Alonzo Bates, a/k/a Little Man; Dexter D. Chambers, a/k/a Dexter Holmes, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1066

116 F.3d 1066

UNITED STATES of America, Plaintiff-Appellee, v. Don R. WILSON, a/k/a Big Don; Alfred L. Brown, a/k/a Goat Troy Bellamy, a/k/a Bow Leg; Sebastian Richardson, a/k/a Bam Bam; Reginald D. Wilson; a/k/a Reg; Donald R. Miller a/k/a Big Daddy; Patrick D. Miller, a/k/a Patchy Cat Roderick Allen, a/k/a Baby Hulk; Alonzo Bates, a/k/a Little Man; Dexter D. Chambers, a/k/a Dexter Holmes, Defendants-Appellants.

No. 95-30998.

United States Court of Appeals Fifth Circuit.

June 26, 1997.

Josette Louise Cassiere, Assistant U.S. Attorney, William Joseph Flanagan, Kelly A. Pomes, James G. Cowles, Jr., Asst. U.S. Atty., Shreveport, LA, for Plaintiff-Appellee.

Rebecca L. Hudsmith, Federal Public Defender's Office, Lafayette, LA, for Don R. Wilson.

Daryl F. Gold, Shreveport, LA, for Alfred L. Brown.

Gordon Neal Blackman, Jr., Blackman Law Firm, Shreveport, LA, for Troy Bellamy.

Elton B. Richey, Jr., Shreveport, LA, for Sebastian Richardson.

Joseph Samuel Woodley, Peter Joseph Rotolo, III, Blanchard, Walker, O'Quin & Roberts, Shreveport, LA, for Reginald D. Wilson.

Alfred R. Beresko, Daye, Bowie & Beresko, Shreveport, LA, for Donald R. Miller.

Kelly W. Strickland, Shreveport, LA, for Patrick D. Miller.

Joey W. Hendrix, Shreveport, LA, for Roderick Allen.

Ander Michael Boggs, Bossier City, LA, for Alonzo Bates.

Patricia A. Gilley, Gilley & Gilley, Shreveport, LA, for Dexter D. Chambers.

Appeals from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, SMITH and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A federal district court in Louisiana convicted defendants, members of a Shreveport, Louisiana street gang called the "Bottoms Boys," of various federal offenses related to their participation in a drug trafficking conspiracy and a conspiracy to commit violent crimes in aid of racketeering. Defendants appeal their convictions and sentences, raising a blizzard of legal challenges. We affirm in part, vacate in part, remand in part for hearings, and remand in part for a new trial.

I

The Bottoms Boys are a street gang operating in the Ledbetter Heights neighborhood of Shreveport, formerly known as "the Bottoms." Until recently, members of the gang conducted a large-scale, open-air drug market, primarily in the 1100 block of Fannin Street. The Bottoms Boys controlled the sale of drugs within this area; no one could sell within Bottoms Boys territory unless they were members of the gang or received permission from one of the leaders of the gang, the so-called "Original Gangsters" or "O.G.s." The Bottoms Boys had the reputation as the toughest gang in Shreveport; anyone who crossed or "dissed" the gang often received a violent, sometimes deadly, response. Firearms were a fashionable Bottoms Boys accessory.

Defendant Alfred Brown served as the gang's principal drug supplier. Testimony established that Brown would distribute cocaine that he obtained in Houston to other leaders of the gang, who would then "front"--that is, distribute without payment up front--smaller amounts to members, until rocks of crack cocaine tumbled down to street level. Sales were highly lucrative; one former gang member testified that in an average week he made about $16,000 from drug sales. In addition, the gang had various "enforcers," also called "reapers," who enforced the rules of the gang and protected its territory and drug trade through acts of violence.

Police conducted a lengthy investigation of the gang. Undercover law enforcement officers and government informants purchased cocaine from gang members on several occasions, many under the watchful eye of hidden surveillance cameras. Some of these drug buys formed the basis for individual drug distribution counts in the indictment; others served as trial evidence in support of the drug conspiracy. The investigation culminated in the arrest of fourteen gang members. A federal grand jury returned a thirty-nine count indictment, charging thirteen members with various federal offenses, including drug conspiracy, drug distribution and possession with intent to distribute, conspiracy to commit violent crimes in aid of racketeering, and firearms charges.

In addition, the indictment charged several defendants with engaging in or threatening particular acts of violence in violation of 18 U.S.C. § 1959(a). Don Wilson, one of the leaders of the gang, directly threatened Officer Robin Snyder while she was inventorying property in a vacant house in the 1100 block of Fannin street. Wilson told her: "Shine, I am going to fucking kill you." Reginald Wilson fatally shot twin brothers Michael and Mitchell Henderson as they sat in their car in the 1100 block of Fannin Street. Patrick Miller shot and wounded Donny Williams, a member of a rival gang, after he and his companions "dissed" the Bottoms Boys by "throwing" rival gang signs. The government presented other, uncharged acts of violence as proof of participation in a broad conspiracy to commit violent acts on behalf of the gang.

Two defendants pleaded guilty before trial, and the court declared a mistrial as to another defendant for medical reasons. Of the remaining eleven defendants, the jury returned guilty verdicts against all but one. ¹ The district court denied defendants' motions for judgment of acquittal and new trial. After sentencing, all ten defendants filed timely notices of appeal.

II

DRUG CONSPIRACY

A

Each defendant argues that the evidence was insufficient to support his conviction for participation in the drug conspiracy under 21 U.S.C. §§ 841(a)(1) and 846. At trial, defendants moved for acquittal, which the district court denied. We review a denial of a motion for judgment of acquittal de novo. United States v. Restrepo, 994 F.2d 173, 182 (5th Cir.1993). We must draw all reasonable inferences in favor of the verdict and affirm the convictions if a reasonable jury could find that the evidence establishes the guilt of the defendants beyond a reasonable doubt. Id. The jury may choose among reasonable inferences from the evidence, and the evidence need not exclude every hypothesis of innocence. United States v. Okoronkwo, 46 F.3d 426, 430 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 107, 133 L.Ed.2d 60 (1995).

To establish a drug conspiracy under 21 U.S.C. § 846, the government must prove: (1) the existence of an agreement between two or more persons to violate federal narcotics laws; (2) that the defendant knew of the agreement; and (3) that the defendant voluntarily participated in the agreement. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991). No overt acts in furtherance of the conspiracy need be alleged or proved. United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994). The requisite elements may be proved by circumstantial evidence, and "[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation ... be sufficient to constitute conclusive proof." United States v. Roberts, 913 F.2d 211, 218 (5th Cir.1990) (citation omitted), cert. denied, 500 U.S. 955, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991).

Most of the evidence at trial consisted of testimony of former gang members and officers in the sting operation. Several defendants urge that the evidence is insufficient to support their convictions because it showed only that they were members of the Bottoms Boys and that they had, at some point in time, sold drugs on the 1100 block of Fannin Street. Although mere presence and association with wrongdoers is insufficient to support a conspiracy conviction, it is a factor that the jury may consider in conjunction with other evidence in finding a defendant guilty of the conspiracy. United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989). Once the government has shown the existence of an illegal conspiracy, it need produce only "slight evidence" to connect an individual defendant to the scheme. United States v. Duncan, 919 F.2d 981, 991 (5th Cir.1990), cert. denied, 500 U.S. 926, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991).

Testimony of former gang members, government surveillance video, and home movies made by the Bottoms Boys (later admitted into evidence at trial) showed that all defendants were members of the gang and that the gang was an organized, drug-dealing enterprise. All defendants sold drugs on Bottoms Boys turf; the evidence showed that this was impossible absent membership in the gang or without permission from one of the original gangsters, or "O.G.s," such as Don Wilson. A rational jury could infer voluntary participation in the conspiracy from these facts.

Next, the defendants argue that there is a prejudicial variance between the indictment, which charges a single conspiracy, and the proof at trial, which they suggest tends to show the existence of multiple conspiracies. The principal considerations for determining whether the evidence supports a single conspiracy or multiple conspiracies are (1) the existence of a common goal, (2) the nature of the scheme, and (3) the overlapping of the participants in the various dealings. United States v. Morris, 46 F.3d 410, 415 (5th Cir.), cert. denied, 515 U.S. 1150, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995). In examining these factors, "[w]e must affirm the jury's finding that the government proved a single conspiracy unless the evidence and all reasonable inferences, examined in the light most favorable to the government, would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt." Id. (citation omitted).

The goal of selling cocaine for profit satisfies the common-goal requirement. United States v. Maceo, 947 F.2d 1191, 1196 (5th Cir.1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1510, 117 L.Ed.2d 647 (1992). With respect to the nature of the scheme, we look at the degree of interdependence of the actions of members of the conspiracy--that is, whether the...