U.S. v. Winston

• Citation: 37 F.3d 235
• Decision Date: 05 October 1994
• Docket Number: Nos. 93-5936,93-5937,s. 93-5936
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan WINSTON (93-5936) and Bobby Lloyd (93-5937), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 235

37 F.3d 235

UNITED STATES of America, Plaintiff-Appellee, v. Juan WINSTON (93-5936) and Bobby Lloyd (93-5937) Defendants-Appellants.

Nos. 93-5936, 93-5937.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 8, 1994.

Decided Oct. 5, 1994.

Batchelder, Circuit Judge, filed a concurring opinion.

Joseph C. Murphy, Jr., Asst. U.S. Atty. (argued and briefed), Memphis, TN, for the U.S.

Kemper B. Durand (argued and briefed), Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, for Juan Winston.

Timothy R. Holton (briefed), Crow & Holton, Memphis, TN, for Bobby Lloyd.

Bobby Lloyd, pro se.

Before: JONES and BATCHELDER, Circuit Judges; and JOINER, District Judge. ^*

NATHANIEL R. JONES, J., delivered the opinion of the court, in which JOINER, D.J., joined. BATCHELDER, J. (pp. 242-43), delivered a separate concurring opinion.

NATHANIEL R. JONES, Circuit Judge.

Defendants-Appellants Juan Winston and Bobby Lloyd appeal their convictions and sentences for conspiracy to possess cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 846, ¹ and aiding and abetting the possession of cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) ² and 18 U.S.C. Sec. 2. ³ We find that Lloyd's challenges to the sufficiency of the evidence against him, to various rulings by the lower court during the trial, and to his sentence, are meritless. Accordingly, we affirm Lloyd's conviction and sentence. Winston's challenge to the sufficiency of the evidence against him is also meritless. We find, however, that the lower court erred in calculating the sentence imposed upon Winston. Consequently, we vacate Winston's sentence and remand for resentencing.

I.

On August 6, 1992, a confidential informant told officers of the Shelby County Sheriff's Department about a pending drug deal that was to take place in the Piggly Wiggly parking lot on Watkins Street in Memphis, Tennessee. The officers equipped the informant with a radio transmitter, and staked out the parking lot. Shortly thereafter, the informant met with Louis Scott at the Watkins St. lot. Scott told the informant that the drugs would arrive in about five minutes in either a gold or silver Cadillac.

Five minutes later, a gold Cadillac with license number XLM-658, drove onto the lot. As Scott approached it, it slowed down but then drove off without stopping. Next, a silver Cadillac drove onto the lot and stopped. The second Cadillac was driven by Leslie T. Hill, and Defendant Bobby Lloyd was a passenger. Lloyd got out and placed three plastic bags in a shopping cart. Scott walked to the cart, picked up the bags, returned to the informant, and said: "Here the dope is--where is the money?" At this point, the police arrested Scott, Hill, and Lloyd. The plastic bags contained 23.4 grams of crack cocaine. ⁴

Upon his arrest, Lloyd told the officers that the cocaine came from Defendant Juan Winston's house at 1098 Decatur Street in Memphis, that Winston had another four to six ounces of crack at home, and that Winston drove a gold Cadillac. The police obtained a warrant and searched the house on Decatur Street, which was actually owned by Winston's mother. They found 37 more grams of crack cocaine in the house. Meanwhile, a detective found Winston driving the gold Cadillac with license number XLM-658, and arrested him. Upon his arrest, Winston admitted that the drugs found in his mother's house were his, and that he had earlier driven to the Piggly Wiggly parking lot carrying crack cocaine.

In September 1992, Scott, Hill, Lloyd, and Winston were indicted. Scott pled guilty. The case against Hill, Lloyd, and Winston went to trial. In January 1993, the government filed an Information giving Winston notice, as required by 21 U.S.C. Sec. 851(a)(1), ⁵ that it would seek an enhanced sentence based on Winston's two prior felony drug convictions. ⁶

Before trial, the court ruled that Lloyd's statements upon arrest about Winston and his Decatur Street residence were inadmissible hearsay at his and Winston's joint trial, in accordance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Subsequently, at trial, while being cross-examined by Lloyd's counsel, Police Officer Galloway referred to Lloyd's taking him to "a residence on Decatur," and telling him about "the stuff inside the residence." J.A. at 122. Winston and Lloyd each objected and moved for a mistrial. The court denied the motions. Lloyd's counsel then sought to cross-examine Galloway about Lloyd's statement, but the court denied her request.

Winston's fifteen-year-old nephew testified at trial that the drugs found at 1098 Decatur Street were his and not Winston's. Apparently, the jury did not believe the nephew, as it returned guilty verdicts against Hill, Lloyd, and Winston.

Subsequently, the court sentenced Lloyd to 292 months imprisonment, followed by a five-year term of supervised release. This sentence included a six-level enhancement to Lloyd's base offense level due to the court's finding that Lloyd was a career offender within the meaning of USSG Sec. 4B1.1. ⁷

Stating that "I see that I have no discretion in the matter," J.A. at 324, the court sentenced Winston to a mandatory term of life imprisonment without release pursuant to 21 U.S.C. Sec. 841(b)(1)(A). ⁸

Hill, Lloyd, and Winston each appealed. Hill, however, died in March 1994, whereupon his conviction was vacated and his appeal dismissed.

II.

Both Defendants claim that the evidence against them was insufficient to support their convictions. "We have held that on appeal from a criminal conviction we must only determine 'whether the relevant evidence viewed in the light most favorable to the government could be accepted by a reasonably-minded jury as adequate and sufficient to support the conclusion of defendant's guilt beyond a reasonable doubt.' " United States v. Seltzer, 794 F.2d 1114, 1119 (6th Cir.1986) (quoting United States v. Meyers, 646 F.2d 1142, 1143 (6th Cir.1981)), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 979 (1987). In reviewing claims for sufficiency of evidence to support a conviction, this court, while reviewing the record in the light most favorable to the prosecution, should grant relief only "if it is found that upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979).

Without offering any argument, Lloyd asserts that the evidence against him was insufficient. This submission is without merit. Police eyewitnesses testified that they saw Lloyd leave the car driven by Hill with the plastic bags later found to contain crack cocaine.

Winston points out that the police eyewitnesses could not identify him as the driver of the gold Cadillac at the Piggly Wiggly parking lot, and that even if he was there at that time, there is no evidence that he participated in the drug sale. Further, although Winston stated upon his arrest that he brought drugs to the Piggly Wiggly parking lot while driving the gold Cadillac, he argues that this statement does not imply that he had anything to do with the activities of Lloyd, Scott, or Hill. Therefore, he concludes, the evidence was insufficient to support the count of conspiracy against him.

However, the record evidence includes the recorded statement made by Scott to the informant that Scott expected the drugs to come in about five minutes from either a gold or silver Cadillac, and eyewitness testimony that Winston's gold Cadillac pulled into the parking lot five minutes later. Taken together with Winston's testimony that he did bring drugs in this vehicle to the Piggly Wiggly parking lot, and viewing the evidence in the light most favorable to the prosecution, it was not irrational for the jury to conclude that Winston played a role in the conspiracy.

Winston also mentions that his nephew denied that the crack cocaine uncovered at his residence belonged to Winston. However, upon his arrest Winston stated that the crack was his. It was not irrational for the jury to believe this statement and reject the nephew's testimony.

III.

Both Defendants moved for mistrial when, during cross-examination, Officer Galloway referred to "the residence on Decatur." However, only Lloyd raises the denial of his motion as an issue on appeal. "We review the denial of a motion for mistrial for an abuse of discretion." United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1217, 117 L.Ed.2d 455 (1992). See also United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986) (stating that appellate court must decide when trial court has abused its discretion by failing to grant mistrial), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Bendectin Litig., 857 F.2d 290, 307 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989); Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156-57 (6th Cir.1988).

We find that Galloway's references to Decatur Street were only prejudicial to Winston, and not to Lloyd. Lloyd's statements about Winston having drugs at 1098 Decatur would have been admissible against Lloyd had Lloyd not been jointly tried with Winston. See Fed.R.Evid. 801(d)(2). These statements were only inadmissible hearsay as against Winston. See Bruton, 391 U.S. at 137, 88 S.Ct. at 1628-29. Furthermore, it was Lloyd's counsel whose questions elicited Galloway's reference to the house on Decatur. Thus, even if the question of whether the court should have granted Winston's motion for mistrial is a close question, the court clearly did not abuse its discretion in denying Lloyd's motion for mistrial.

IV.

After the court denied Lloyd's motion for mistrial, Lloyd...