U.S. v. Wright

• Decision Date: 23 February 2011
• Docket Number: No. 09–30763.,09–30763.
• Citation: 634 F.3d 770
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Larry WRIGHT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

634 F.3d 770

UNITED STATES of America, Plaintiff–Appellee,

v.Larry WRIGHT, Defendant–Appellant.

No. 09–30763.

United States Court of Appeals, Fifth Circuit.

Feb. 23, 2011.

Catherine M. Maraist, Asst. U.S. Atty. (argued), Baton Rouge, LA, for U.S.Rebecca Louise Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, James Edgar Boren (Court–Appointed), Baton Rouge, LA, for Wright.Appeal from the United States District Court for the Middle District of Louisiana.Before WIENER, GARZA, and PRADO, Circuit Judges.PRADO, Circuit Judge:

Larry Wright was found guilty by a jury of (1) knowingly and intentionally attempting to possess with the intent to distribute cocaine and (2) possession of a firearm in furtherance of drug trafficking. He appeals the district court's instruction to the jury, exclusion of evidence regarding his theory of defense, and denial of his motion for a new trial. Wright argues that he is immune from prosecution under the Controlled Substances Act (“CSA”), 21 U.S.C. § 885(d), for his attempt to buy narcotics because he was then a deputy sheriff with the East Baton Rouge Parish Sheriff's Office (“EBRSO”) and was “lawfully engaged in the enforcement of” the controlled substance laws. Wright asserts that the district court abused its discretion when it instructed the jury that Wright could be found not guilty only if he was authorized by an appropriate official to participate in the activity charged in the indictment and when it granted the government's motion in limine excluding evidence of Wright's prior assistance with narcotics investigations.

Section 885(d) does not give blanket immunity to Wright, who was not authorized to procure controlled substances outside of his role as a jailer at the parish prison, and the district court did not err in instructing the jury that Wright needed authorization to commit the conduct charged in the indictment in order to claim the defense. For this reason, we affirm the district court's jury instruction, its grant of the government's motion in limine, and its denial of Wright's motion for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Events Leading Up to the Arrest and Indictment

Wright was a deputy sheriff with the EBRSO during the time leading up to his arrest. Wright worked as a corrections officer in the Corrections Division, guarding the prisoners in custody at the parish prison and maintaining control of the prison. Wright's duties did not involve narcotics investigations outside the parish prison. Through a childhood friend, Wright came into contact with Chris Cordasco, a man who was arrested in 2005 on a firearms charge by local authorities and subsequently became an informant for the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) in June 2006. Around June 14, 2006, Wright offered to help Cordasco get the firearms charge dropped in exchange for $5,000. Cordasco contacted his ATF agent regarding Wright's offer, after which ATF began its investigation of Wright. Wright and Cordasco eventually negotiated a deal where Cordasco would pay Wright $2,500 and one quarter kilogram of cocaine in exchange for Wright getting the charges dropped.

During this time, Wright spoke multiple times with EBRSO Sergeant Eric Jones, who worked as a detective in the Narcotics Division. Wright told Jones that he had been offered cash and cocaine to get a state charge dropped, and Jones told Wright to leave the situation alone and not to do anything until he could get more information. Wright met Cordasco at a public parking lot on June 21 just after 5:15 p.m. to make the deal. ATF agents had installed surveillance equipment in Cordasco's car and on Cordasco's person. Wright was arrested just before he retrieved synthetic cocaine from the trunk of Cordasco's car, and officers recovered on Wright's person his loaded service weapon and $2,500 given to him by Cordasco.

B. Trial

A superceding indictment charged Wright with (1–3) three counts of use of a facility in interstate commerce to promote an unlawful activity, (4) knowingly and intentionally attempting to possess with the intent to distribute cocaine, and (5) possession of a firearm in furtherance of a drug trafficking crime. The district court dismissed the first three counts before trial on the government's motion.

Before trial, Wright gave notice that he intended to raise the public authority defense, which “is available when the defendant is engaged by a government official to participate or assist in covert activity,” United States v. Spires, 79 F.3d 464, 466 n. 2 (5th Cir.1996) (citation omitted), and indicated he intended to call Jones and EBRSO Sheriff Elmer Litchfield in support of the defense. The government filed, and the district court granted, a motion in limine to prohibit Wright from introducing at trial “evidence that he assisted and provided information in criminal investigations unrelated to the facts and circumstances surrounding the charges against him.” The court agreed that such evidence was irrelevant to whether Wright was authorized to engage in the conduct charged in the indictment. The district court denied Wright's motion to reconsider.

Wright initially requested a jury instruction based on the public authority defense but withdrew this defense and submitted a substitute jury instruction ostensibly based on 21 U.S.C. § 885(d)—which grants immunity from prosecution to “duly authorized” state officials “lawfully engaged” in the enforcement of a controlled-substance law—suggesting the jury be instructed that:

No criminal liability shall be imposed upon any duly authorized officer of any political subdivision of a State, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.

In each parish in Louisiana an elected sheriff is the chief law enforcement officer in the parish. The sheriff grants commissions to deputies which make them a duly authorized officer of the sheriff and charges them with the duty of preserving the peace and apprehending public offenders

Some of the duties of a law enforcement officer include making arrests and detecting crime for the enforcement of the laws of the State of Louisiana.

The district rejected Wright's proposed instruction and charged the jury as follows:

Now, the defendant in this case claims that if he committed the acts charged in the indictment, he did so during the course and scope of his employment as a law enforcement officer, and pursuant to lawful authority.

You must consider whether the defendant should be found not guilty because he was authorized by a qualified official of the East Baton Rouge Parish Sheriff's Office to participate, or to assist in the activity charged in the indictment.

As a matter of law, I instruct you that every holder of a law enforcement commission is not necessarily authorized by virtue of that commission, to commit illegal acts in connection with investigations of criminal activity.

If you find that the defendant engaged in the activity charged in the indictment, pursuant to the authority granted to him by a qualified official of the East Baton Rouge Sheriff's Office, then you must find him not guilty under the indictment.

A jury trial was held June 23 to June 25, 2008, after which the jury convicted Wright on Counts 4 and 5 of the superceding indictment. After the trial, Wright filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on the district court's jury instruction and exclusion of evidence related to his assistance in other criminal investigations. The district court denied the motion. The district court sentenced Wright on August 21, 2009 to sixty months imprisonment on each count for a total of 120 months imprisonment and three years of supervised release on each count. Wright filed a timely notice of appeal.

II. JURISDICTION AND STANDARDS OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

We “review a jury instruction for abuse of discretion, affording substantial latitude to the district court in describing the law to the jury.” United States v. Williams, 610 F.3d 271, 285 (5th Cir.2010). ¹ In so doing, we “ ‘consider whether the charge, as a whole, was a correct statement of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them.’ ” United States v. Santos, 589 F.3d 759, 764 (5th Cir.2009) (quoting United States v. Orji–Nwosu, 549 F.3d 1005, 1006 (5th Cir.2008)). However, when a jury instruction hinges on a question of statutory construction, the court's review is de novo. See United States v. Guevara, 408 F.3d 252, 257 (5th Cir.2005) (citing United States v. Ho, 311 F.3d 589, 605 (5th Cir.2002)).²

We review “ ‘a district court's refusal to provide a requested jury instruction for an abuse of discretion. We will reverse the district court's decision only if the requested instruction (1) was a substantially correct statement of the law, (2) was not substantially covered in the charge as a whole, and (3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the defendant's ability to present a given defense.’ ” Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc., 276 F.3d 704, 714 (5th Cir.2002) (quoting United States v. McClatchy, 249 F.3d 348, 356 (5th Cir.2001)) (internal quotation marks and citations omitted).

We review a district court's evidentiary findings for abuse of discretion. See United States v. White, 972 F.2d 590, 598 (5th Cir.1992). “The abuse of discretion must create the likelihood of prejudice to the defendant and the substantial right at issue must be made known to the court.” United States v. Lowery, 135 F.3d 957, 959 (5th Cir.1998) (citing United States v. Tansley, 986 F.2d 880, 886–87 (5th Cir.1993)). Furthermore, “even if the district court erred in its evidentiary rulings, such error can be excused if it was...