U.S. v. Wright

• Decision Date: 12 September 1995
• Docket Number: No. 94-4375,94-4375
• Citation: 63 F.3d 1067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norman N. WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1067

63 F.3d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Norman N. WRIGHT, Defendant-Appellant.

No. 94-4375.

United States Court of Appeals, Eleventh Circuit.

Sept. 12, 1995.

Thomas F. Almon, Miami, FL, for appellant.

Kendall B. Coffey, U.S. Atty., Luis M. Perez, Adalberto Jordan, Lisa T. Rubio, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, HILL and REYNALDO G. GARZA ^*, Senior Circuit Judges.

REYNALDO G. GARZA, Senior Circuit Judge:

This appeal presents us with the opportunity to revisit the rule of consistency. In 1988 this Court, sitting in full, overruled the rule of consistency in this Circuit. ¹ However, where this Court was faced with inconsistent jury verdicts, this panel is faced with an inconsistency between a judgment of acquittal and a jury verdict of guilty. Because we find that our prior decision in United States v. Andrews, controls this situation, we affirm.

Factual Background

Pursuant to a tip, the DEA established surveillance on an apartment complex in Boynton Beach. Appellant Norman Wright, driving a red Nissan, along with Temeka Perry, his girlfriend, arrived at the complex to pick up a confidential informant (CI). Appellant drove to a Miami residence and picked up "Tony the Cuban", the alleged seller of cocaine. The four individuals drove to an apartment located in a community with security gates. The car remained there for approximately fifteen minutes.

Tony the Cuban obtained the cocaine and sold it to Appellant and the CI. After returning Tony the Cuban to his Miami residence, Appellant drove the CI to a house in Delray Beach and then drove to a Winn-Dixie with Perry. The couple entered the store and purchased carpet freshener and fabric softener. Upon returning to the car, the surveillance team observed movement in the car. Perry exited the car and threw a plastic bag containing a near empty roll of duct tape and a steel wool pad into a nearby trash bin. Appellant placed something in the trunk of the car.

Appellant and Perry were ultimately stopped. Responding to questions, Appellant first told the officers that he was going to Delray Beach and then told them he was heading to Tallahassee. The officers utilized a narcotics detector K-9 dog. The dog alerted the officers to the driver's door and the trunk. In the trunk they found one-quarter of a kilogram of cocaine wrapped in duct tape and sheets of fabric softener.

While seated in the police car, Appellant and Perry spoke to each other. Their conversation, which was recorded, was later introduced at trial. After Appellant was read his rights, he admitted he knew of the cocaine in the car, and that he had obtained it from Tony the Cuban for the purpose of converting it into crack and reselling it.

Appellant and Perry were indicted for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846. The grand jury also charged Tony the Cuban, who was never arrested. At the close of the government's case, the district court granted Perry's motion for acquittal, and denied Appellant's motion for acquittal. At this time there was some discussion about a defense witness who was not served with a subpoena because he was in state custody. Appellant, however did not proffer the testimony of this witness. Because there was no evidence that the witness could be obtained within a reasonable time, and Appellant conceded that his testimony would be the same as the absent witness, the district court did not grant a continuance or a writ of habeas corpus ad testificandum. Appellant then took the stand in his own defense. After Appellant testified, the defense rested. Appellant failed to renew his motion for an acquittal at the close of all the evidence.

The jury returned a verdict of guilty. The district court denied Appellant's motion for a new trial and sentenced Appellant to 120 months of imprisonment, three years of supervised release, and a special assessment of $100. This appeal ensued.

Discussion

Appellant attacks his conviction on two grounds. First, Appellant contends the district court erred by failing to grant a continuance that would enable Appellant to secure the presence of a defense witness. Appellant argues this error operated to deny him his right to present witnesses on his behalf. Second, Appellant contends the evidence was insufficient to support his conviction. Appellant argues a conviction of conspiracy requires evidence that two or more individuals conspired; because Appellant's co-conspirator was acquitted, Appellant asserts the evidence is insufficient to support the conviction.

I. Defense Witness

During the first day of trial, Appellant informed the court below that one of his prospective witnesses, Albert Wright, was in state custody on a traffic charge in Marion County. The witness was allegedly present in the apartment when the CI persuaded Appellant to participate in the events leading up to his indictment. The witness was incarcerated for a traffic offense two weeks prior to trial. As a result of the incarceration and a mixup concerning service of a subpoena, the witness was never served. Appellant was not aware of this situation until the day of trial.

Appellant asked the court "to permit me to make the necessary arrangements to have him transported down here." After a recess, Appellant acknowledged that he needed a court order to secure the presence of the witness. The district court did not think that it could obtain the witness from the state authorities within a reasonable amount of time. ² In fact, Appellant conceded that even with a court order it would take a day or two to obtain the witness. The court asked Appellant if there was any other way to get the testimony. Appellant stated, "Well, I'm most likely to have my client testify which would, in essence, be the same testimony. Would say the same thing." Because Appellant would supply the same testimony as the absent witness, and the court would not be able to obtain the witness within a reasonable amount of time, the court "denied" Appellant's motion. ³

Appellant insists he is entitled to a reversal as a result of the district's failure to order the production of the witness and the district court's failure to continue the trial until production of the witness was possible. Appellant never formally requested a continuance, nor formally petitioned the court for a writ of habeas corpus ad testificandum. However, because the court below understood the requests made by Appellant, we will construe the discourse between the court and Appellant as a request for a continuance and a petition for a writ of habeas corpus ad testificandum. For purposes of clarity we will address each separately.

A. Writ of habeas corpus ad testificandum

"The proper method for securing a prisoner's presence at trial is a petition for a writ of habeas corpus ad testificandum." ⁴ The denial of a petition for a writ of habeas corpus ad testificandum is committed to the sound discretion of the district court; the district court's ruling is subject to reversal on appeal only upon a showing of abuse of that discretion. ⁵ A district court should consider several factors in determining whether to issue the writ. After the defendant shows that the presence of the witness is necessary for an adequate defense, the district court should consider

whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. ⁶

We affirm the district court's denial of the writ because Appellant failed to show that the defense witness was necessary for an adequate defense; Appellant failed to show whether the prisoner's presence would substantially further the resolution of the case.

Appellant contends Albert was a critical witness that would have substantiated Appellant's defense of entrapment. However, Appellant failed to proffer the witness's testimony to the district court. In Rinchack this Court found the lack of a proffer sufficient grounds to deny a writ of habeas corpus ad testificandum.

The trial transcript from the trial reflects that [the defendant's] request for the presence of his two codefendants was not accompanied by any offer of proof as to the testimony they might be expected to offer ... [T]he burden of showing necessity and relevance is on the defendant ... [T]he failure to carry this burden is a legitimate basis to deny a request to procure the presence of a witness. ⁷

The only indication of what might be expected of the witness was the statement that Appellant would testify, and the witness's testimony would, "in essence, be the same testimony, that they would say the same thing." This does not constitute a proffer. A proffer details the facts to which the witness is expected to testify. ⁸ The mere statement that the absent witness "would say the same thing," without detailing what Appellant planned to state, is not sufficient to show that the witness is necessary to an adequate defense of Appellant's case.

Appellant's own testimony did not support his entrapment defense. Appellant's underlying reason for the initial rejection of the CI's offer was based on his lack of money. ⁹ Once the CI told Appellant that he would make a profit from the cocaine when it was resold, Appellant agreed. Appellant's own testimony reveals that it took only ten minutes for Appellant to agree to front the money. Furthermore, Appellant admitted he had been convicted in state court for possession of marijuana with intent to sell approximately two years prior to the drug transaction...