United States v. Haines

• Decision Date: 15 October 2015
• Docket Number: No. 13–31287.,13–31287.
• Citation: 803 F.3d 713
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Clarence HAINES, also known as Knowledge Haines; Raymond Porter, also known as T. Porter; Jose Iturres–Bonilla, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

803 F.3d 713

UNITED STATES of America, Plaintiff–Appellee

v.Clarence HAINES, also known as Knowledge Haines; Raymond Porter, also known as T. Porter; Jose Iturres–Bonilla, Defendants–Appellants.

No. 13–31287.

United States Court of Appeals, Fifth Circuit.

Oct. 15, 2015.

Sharan E. Lieberman, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, New Orleans, LA, for Plaintiff–Appellee.

Claude John Kelly, III, Federal Public Defender, Jordan Mark Siverd, Assistant Federal Public Defender, Jason Rogers Williams, New Orleans, LA, for Defendant–Appellant Clarence Haines, also known as Knowledge Haines.

Christopher Albert Aberle, Mandeville, LA, for Defendant–Appellant Raymond Porter, also known as T. Porter (Federal Prisoner: # 28542–034).

Rachel Isabel Conner, New Orleans, LA, for Defendant–Appellant Jose Iturres–Bonilla.

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

Before KING, SMITH, and ELROD, Circuit Judges.

Opinion

JENNIFER WALKER ELROD:

Defendants–Appellants Clarence Haines, Raymond Porter, and Jose Iturres–Bonilla were charged with one count of conspiracy to possess with intent to distribute one kilogram or more of heroin and one count each of using a communication facility in facilitating the commission of that crime. Both counts stemmed from Defendant–Appellants' involvement in a heroin ring. At trial, the DEA case agent testified both as a fact witness about their case and as an expert witness about drug code. All three defendants were convicted on both counts.

The jury found that the total scope of the conspiracy involved one kilogram or more of heroin, and the district court concluded that this finding triggered the statutory minimum of 20 years' imprisonment for Haines and Porter, and also increased Iturres–Bonilla's statutory maximum from 20 years' imprisonment to life imprisonment. All three defendants challenge the sufficiency of the evidence for their convictions and the district court's use of a conspiracy-wide drug-quantity jury finding instead of an individual-specific drug-quantity jury finding. All three defendants also argue that the DEA agent's testimony was improper. Iturres–Bonilla makes several other challenges to his sentence.

Because there is no merit to defendants' sufficiency of the evidence arguments, and because the portions of the DEA agent's testimony that were admitted in error were harmless, we AFFIRM the convictions. Because the district court improperly sentenced Haines and Porter based upon the conspiracy-wide drug quantity, we VACATE their sentences and remand the case to the district court for resentencing of Haines and Porter. Because the district court did not plainly err in sentencing Iturres–Bonilla, we AFFIRM his sentence.

I.

In October 2010, the DEA began investigating a New Orleans drug dealer named Marc Guyton. Officer Ricky Jackson testified that he made roughly ten undercover purchases of heroin from Guyton between November 2010 and April 2011. In March 2011, the DEA began tracking Guyton's calls and texts. In April 2011, the DEA also began tracking Haines's calls and texts. Over the next several months, the government began surveilling two other members of the drug ring, Harry Berry and Terrance Henderson. This surveillance produced much of the evidence presented at trial.

DEA Task Force Agent Demond Lockhart was the key government witness at trial. According to his trial testimony, Guyton called Haines in April 2011 and, using “code” phrases, expressed his desire to buy heroin from Haines. Guyton was returning from an unsuccessful attempt to buy heroin in St. Louis. In code, Haines agreed to sell a sample of heroin to Guyton. After this phone call, GPS tracking indicated that Guyton went to the block of Haines's home. After midnight, Guyton texted Haines to begin negotiating the price of heroin.

Guyton also texted an individual identified as “Nick,” one of his heroin customers. Guyton told Nick he wanted Nick to “check something out,” which, according to Lockhart, indicated that Guyton wanted someone to test a sample of heroin. Later that day, Guyton called Haines and said that “it's good, I'm going to get that from you,” as long as Haines “[m]ake[s] sure it's that same thing right there.” According to Lockhart, this exchange was Guyton's confirming to Haines that Guyton would purchase heroin so long as it was the same as the sample. Guyton asked Haines to let him know “the ticket,” i.e., the price, and to “[c]heck on the half also,” meaning a half-kilogram of heroin.

Later that day, Guyton texted Haines and said, “just one quarter of crawfish; don't f—k with the one half.” According to Lockhart, “crawfish” was a code term for heroin; the text message was changing the order from a half-kilogram to a quarter kilogram. Haines responded that he would “see what Cajuns got.” Lockhart testified that “Cajuns” was Guyton's term for the person from whom he would buy heroin. Haines sent a follow-up text stating that “Cajuns” would let him know about the order later. At noon, Haines texted Guyton that “Cajuns don't have no mo crawfish.” The only person Haines had talked to on the phone that morning, other than his two girlfriends, was Harry Berry.

After the “Cajuns” exchange, Guyton texted Haines and asked, “That's all you had?” Haines responded affirmatively. Guyton responded to Haines, “D—n, Knowledge,” which is Guyton's nickname for Haines. Haines replied, “I know, bruh, we need to go to Afghanistan.” Lockhart testified that over 75% of the world's opium comes from Afghanistan, and opium is used to make heroin.

That same day, Haines called Guyton and the two of them discussed the quality of the heroin that Haines had given to Guyton, apparently in response to a negative review that another distributor had given Guyton of the sample provided by Haines. Guyton and Haines arranged to meet, and indeed met that night at a gas station. Haines and Guyton drove separate vehicles to the gas station; Haines exited his vehicle and got into the passenger seat of Guyton's vehicle, then shortly thereafter exited Guyton's vehicle and returned to his own vehicle.

The government also presented extensive evidence of the involvement of appellant Raymond Terrell Porter, whose nickname was “T,” in the drug ring. According to the testimony of co-conspirator McKenzie Weber, Porter had once sold nine ounces of heroin to Guyton in Guyton's Frenchman Street apartment. After buying the heroin, Guyton proceeded to “cut” it using a blender.

In May 2011, Porter called Guyton and Guyton responded that he was still at home. Guyton then called two of his heroin customers and asked them “to check something out.” As noted above, according to Lockhart's testimony, this is the phrase Guyton uses with his customers to indicate he has a sample for them to try. The customer texted Guyton shortly thereafter, “Honestly, last s—t was better, Brah.” That night, Guyton called a co-conspirator, Dorian Goins, and discussed the variances they had noticed in Porter's products. Approximately two weeks later, the New Orleans police department arrested Guyton and found him in possession of 63 grams of heroin. After the arrest, Haines and Berry discussed it on the phone.

At this point, investigators believed that an apartment in Houston, Texas, that Berry and his associates called “the spot,” was hosting drug transactions involving defendants. In early June 2011, Berry and Haines drove to Houston. Berry dropped Haines off at a mall and then went to “the spot.” While in Houston, Berry repeatedly called Iturres–Bonilla's phone. During the drive, Berry also contacted Porter and, according to Lockhart, spoke in code that indicated Porter had not given Berry enough money.

After Berry and Haines returned to New Orleans, the investigators put surveillance on Berry. Berry drove from Haines's residence to the home of Ruffin Moye, a codefendant. Moye came outside, entered Berry's vehicle, and then exited it again. The next day, police checked Moye's trash and found plastic with heroin residue on it and black tape. It was inside a plastic bag that looked as if it had been washed out. The police followed Moye, saw him conduct heroin sales, and arrested him.

Several days later, Berry made another trip to “the spot.” The following day, on the way back, Berry stopped at Porter's brother's residence for 25 minutes. After leaving the residence, Berry stopped a block or two away and discarded a white plastic bag containing plastic wrap and black electrical tape. Berry then went to Porter's residence.

In July, Berry took another trip to “the spot.” On the way there, he stopped at Haines's residence and on his way back, he stopped at Haines's residence again. After remaining there for an hour, Berry and Haines left in Berry's truck. Berry stopped his truck around the corner, and Haines exited the vehicle and threw away a bag in a trash bin. Investigators discovered that the bag contained plastic wrap and black electrical tape, and it tested positive for heroin residue.

Beginning in mid-July, the government intercepted numerous phone calls between Iturres–Bonilla and Henderson and between Iturres–Bonilla and Berry. On July 15, Berry and Iturres–Bonilla spoke on the phone. Iturres–Bonilla asked, “How everything going with you?” Berry responded, “Ain't too much, slow but sure,” which Lockhart testified was code for steady heroin business. Iturres–Bonilla also said, “I got a little situation,” which Lockhart testified was a problem with his heroin trafficking.

In a July phone call with Henderson, Iturres–Bonilla discussed dealing with the money Henderson had previously given him, as well as problems with his heroin suppliers. Iturres–Bonilla also assured Henderson that the heroin business would “pick up.”

The following day, in a phone call between Berry and Henderson, Henderson referred to Iturres–Bonilla (whose voice can be heard on the call) as Berry's “partner.” The three of them...