Filed: May 27, 1994
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 92-9099 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RONALD JEROME FISHER, a/k/a L.A. Ron, and DOUGLAS RAY DUNKINS, JR., a/k/a Little Doug, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Texas May 27, 1994 Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges. POLITZ, Chief Judge: Ronald Jerome Fisher and Douglas Ray Dunkins, Jr. appeal their jury convictions of drug violatio
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 92-9099 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RONALD JEROME FISHER, a/k/a L.A. Ron, and DOUGLAS RAY DUNKINS, JR., a/k/a Little Doug, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Texas May 27, 1994 Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges. POLITZ, Chief Judge: Ronald Jerome Fisher and Douglas Ray Dunkins, Jr. appeal their jury convictions of drug violation..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-9099
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD JEROME FISHER, a/k/a L.A.
Ron, and DOUGLAS RAY DUNKINS, JR.,
a/k/a Little Doug,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
May 27, 1994
Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.
POLITZ, Chief Judge:
Ronald Jerome Fisher and Douglas Ray Dunkins, Jr. appeal their
jury convictions of drug violations and their sentences to life
imprisonment. Finding no reversible error, we affirm.
Background
Fisher headed an operation in Fort Worth, Texas that purchased
50 kilograms of cocaine powder within a two-year period, converted
it to cocaine base, and distributed the resultant 20 kilograms of
crack. Dunkins was a top lieutenant, heavily involved in the
manufacturing and distribution aspects of the enterprise.
Along with a score of others, Fisher and Dunkins were indicted
for conspiracy to possess with intent to distribute and to
distribute cocaine, and to manufacture, possess with intent to
distribute and to distribute cocaine base in violation of 21 U.S.C.
§ 846. Fisher also was charged with two counts of possession of
cocaine with intent to distribute in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) and one count in violation of
§ 841(b)(1)(B), as well as four counts of money laundering in
contravention of 18 U.S.C. § 1956. Both Fisher and Dunkins were
charged with use of a firearm during and in relationship to a drug
trafficking crime in violation of 18 U.S.C. § 924(c). A jury
returned verdicts of guilty on all counts. As a third-time felony
drug-offender, Fisher received a mandatory sentence of life
imprisonment.1 Dunkins was sentenced to life imprisonment under
the Sentencing Guidelines. Both were given a consecutive five-year
term of imprisonment on the firearm count. They timely appealed.
Analysis
1. Failure to use a special verdict.
For the first time on appeal the defendants complain of the
district court's use of a general verdict form for the conspiracy
count. The failure to obtain a special verdict, they argue, makes
it impossible to know whether the jury convicted them of conspiracy
to traffic in cocaine powder or in crack. That objection does not
1
21 U.S.C. § 841(b)(1)(A).
2
invalidate the verdict. As the Supreme Court taught in Griffin v.
United States,2 a conviction on a multiple-object conspiracy count
may stand if there is sufficient evidence to support a conviction
for conspiracy to accomplish any of the charged objects. United
States v. Bounds,3 on which the defendants rely, does not hold to
the contrary. Any ambiguity arising from the general verdict is
relevant solely to sentencing. In this case, only Dunkins'
sentence could be affected; Fisher's convictions of the substantive
offense of possession with intent to distribute in excess of
5 kilograms of cocaine mandate life imprisonment under section
841(b)(1)(A).
In United States v. Cooper,4 we recognized that punishment for
conviction of a multiple object conspiracy may not exceed the
statutory maximum for the offense carrying the least severe
penalty.5 Dunkins' sentence is not inconsistent with that
limitation. Whether the object offense is possession with intent
to distribute 50 kilograms of cocaine or 20 kilograms of cocaine
base, the statutory maximum is life imprisonment.
We further held in Cooper that U.S.S.G. § 1B1.2(d) governs the
application of the Sentencing Guidelines to multiple object
2
112 S. Ct. 466 (1991).
3
985 F.2d 188 (5th Cir.), cert. denied,
114 S. Ct. 135 (1993).
4
966 F.2d 936 (5th Cir.), cert. denied,
113 S. Ct. 481 (1992).
5
The statutory penalty for a section 846 conspiracy is the
same as that prescribed for the object offense. 21 U.S.C. § 846.
3
conspiracies.6 Section 1B1.2(d) provides:
A conviction on a count charging conspiracy to commit
more than one offense shall be treated as if the
defendant had been convicted on a separate count for each
offense that the defendant conspired to commit.
The hypothetical counts are then grouped pursuant to Part 3D of the
Guidelines. When the counts constitute part of a common scheme, as
here, they are deemed a single group and assigned the offense level
for the most serious.7 The operation of U.S.S.G. § 1D1.2(d),
however, is restricted by Application Note 5 of the Commentary,
which states:
Particular care must be taken in applying subsection (d)
because there are cases in which the verdict or plea does
not establish which offense(s) was the object of the
conspiracy. In such cases, subsection (d) should only be
applied with respect to an object offense alleged in the
conspiracy count if the court, were it sitting as a trier
of fact, would convict the defendant of conspiring to
commit that object offense.
That decision, according to the Sentencing Commission, "should be
governed by a reasonable doubt standard."8
The defendants contend that this scheme permits sentencing for
an offense of which they were not convicted. Their argument
overlooks the limitation of the sentence to the statutory maximum
for the least severe object offense alleged in the count of
6
But cf. Bounds.
7
U.S.S.G. §§ 3D1.2(b), 3D1.3(a). The defendants do not
dispute the propriety of aggregating the various transactions in a
particular drug so U.S.S.G. § 3D1.2(d) is not relevant herein.
8
Sentencing Guidelines Manual, App. C, Amendment 75; see also
United States v. McKinley, 995 F.2d 1020 (11th Cir. 1993), cert.
denied,
114 S. Ct. 1405 and
114 S. Ct. 1552 (1994).
4
conviction. That restriction belies their objection.9
The district court found "more than sufficient" evidence that
Fisher's organization distributed at least 20 kilograms of crack
cocaine and that Dunkins, as one of the organization's three
principals, knew it. The court did not expressly make a section
1B1.2(d) beyond-a-reasonable-doubt finding that Dunkins had
conspired to traffic in cocaine base as well as cocaine powder,
apparently because the issue was not raised. We agree with our
Eleventh Circuit colleagues that section 1B1.2(d) findings must be
either explicit or implicit in the record.10 Here, reviewing for
plain error, we conclude that there was no such error. There was
ample evidence to support the requisite implicit findings and there
was no miscarriage of justice.
2. Jury selection.
Fisher and Dunkins maintained that the government dismissed
Cassandra Owens, an African-American member of the venire, because
of her race in violation of the holding of Batson v. Kentucky.11
The government contemporaneously explained that it exercised a
peremptory challenge against Owens because two members of her
family had been arrested for drug offenses. The defendants
challenge that explanation as pretextual because the government did
9
Cf. United States v. Strong, 891 F.2d 82 (5th Cir. 1989)
(within the statutory limits for the offense of conviction, there
is no per se rule against consideration of criminal activity not
charged in the indictment in fashioning the sentence).
10
McKinley.
11
476 U.S. 79 (1986).
5
not strike a juror whose son was involved with marihuana or a juror
whose husband had been convicted of bribery. We agree with the
government that Owens' situation was distinguishable. We will not
disturb the district court's credibility call.
Fisher and Dunkins also contend that the district court erred
in not excusing for cause a member of the venire who was a personal
acquaintance of a police officer who was to testify for the
government. We disagree. Personal knowledge of a witness is not
a conclusive indicator of actual bias and the person challenged
insisted that he could be fair. We find no abuse of discretion in
the district court's decision to credit his assurances.
Parenthetically, we find the police officer's testimony to be brief
and essentially uncontested.12
3. Sufficiency of the evidence supporting
firearms conviction.
Both defendants challenge the sufficiency of the evidence that
they used or carried a firearm during and in relationship to a drug
trafficking offense. The government need not prove affirmative use
of a firearm to establish a violation of 18 U.S.C. § 924(c); it is
enough if "the firearm was available to provide protection to the
defendant in connection with his engagement in drug trafficking."13
12
Cf. United States v. Munoz, 15 F.3d 395 (5th Cir. 1994)
(particular care must be taken to guard against juror bias in favor
of law enforcement officers when the case pits police testimony
against that of a defense witness), petition for cert. filed (U.S.
Apr. 25, 1994) (No. 93-8841); Cook v. United States,
379 F.2d 966
(5th Cir. 1967) (trial court should have asked whether any member
of the panel knew the government's principal witness so that the
defense could exercise its peremptory challenges intelligently).
13
United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989).
6
A rational jury easily could have so found herein.
Victor Costa testified that while negotiating a sale of
cocaine to Fisher on December 28 or 29, 1990, Fisher was carrying
"a very big gun behind his belt." A few days later a police
officer encountered Fisher carrying a loaded 9 mm. Beretta pistol.
Shelly Gene Franklin, the third principal in the Fisher
triumvirate, testified that Fisher usually carried a gun for
protection in the course of his drug trafficking activities. The
evidence was sufficient to support Fisher's conviction.
Four firearms were found in a search of Dunkins' residence:
a 9 mm. Taurus pistol, a .25 caliber Beretta pistol, a .357 caliber
Taurus revolver, and a .223 caliber Ruger rifle. All were at
readily accessible locations in the master bedroom and all except
the rifle were loaded; the magazine and ammunition for the rifle
were located nearby. Also found during the search were stacks of
cash. Trial testimony established that Dunkins' residence was used
for converting powdered cocaine into crack and for distributing the
finished product to street dealers. Dunkins told investigators
that he kept the weapons for protection. The jury appropriately
could have inferred that "protection" included protection of the
illegal activities.14 This assignment of error has no merit.
4. Evidentiary rulings.
The defendants contend that the district court erred in
admitting out-of-court statements of coconspirators without
expressly finding the predicate facts required by Rule 801(d)(2)(E)
14
See United States v. Pace, 10 F.3d 1106 (5th Cir. 1993).
7
of the Federal Rules of Evidence. The district court may defer its
Rule 801(d)(2)(E) findings until the close of the government's case
but it is error to omit such findings altogether. We recognized in
United States v. Fragoso,15 however, that the error can be harmless.
We find it harmless here.
The defendants also object to two fleeting allusions by
government witnesses to gangs and one to heroin and marihuana.
These objections are groundless. The remarks, which were isolated
and cursory, could not have affected the verdict in light of the
overwhelming evidence of guilt.16 Furthermore, where requested, the
district court cured any error by admonishing the jury.
5. Validity of the searches.
Dunkins challenges the validity of the warrants authorizing
the searches of his residence and rental storage locker, contending
that the supporting affidavits did not establish the reliability of
information linking Dunkins to the Fisher network. We disagree.
Under the good faith exception, we will uphold a search if the
officer's reliance on a search warrant was reasonable. Warrants
based on affidavits "so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable" do
not fall within the exception.17 In determining the sufficiency of
an affidavit we examine the totality of circumstances, including
15
978 F.2d 896 (5th Cir. 1992), cert. denied,
113 S. Ct. 1664
(1993).
16
See United States v. Gadison, 8 F.3d 186 (5th Cir. 1993).
17
United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.
1992), quoting United States v. Leon,
468 U.S. 897, 923 (1984).
8
the veracity, reliability, and basis of knowledge of a confidential
informant.18 One means of establishing the reliability of
information provided by a confidential informant is corroboration;
we deem an informant who "is right about some things . . . more
probably right about other facts."19 Applying this rubric, we find
that reliance on the warrants issued herein was reasonable.
The affidavit supporting the warrant to search Dunkins'
residence states that six months before a confidential informant
had obtained four to five kilograms of cocaine and cocaine base at
the residence. In the course of the transaction the informant
heard Dunkins open a safe reportedly purchased by Fisher to protect
drugs and drug proceeds. According to the informant, Dunkins and
Franklin were key members of Fisher's drug-distribution network;
one of the businesses used to launder proceeds, "Doug and Ron's
Custom Jewelry," was registered in Fisher and Dunkins' names. The
informant also reported that Costa supplied Fisher with cocaine in
late 1990 and early 1991, and talked of Fisher's lavish spending
habits, including a spree at the Footlocker athletic shoe store.
As Dunkins notes, the affidavit does not vouch for the
informant's veracity. It reflects, however, a first-hand basis of
knowledge with respect to the reported drug purchases. Other
aspects of the informant's report are corroborated. Costa
18
United States v. Broussard, 987 F.2d 215 (5th Cir. 1993),
abrogated on other grounds by J.E.B. v. Alabama ex rel. T.B.,
114
S. Ct. 1419 (1994).
19
Illinois v. Gates, 462 U.S. 213, 244 (1983) (internal
citation omitted).
9
confirmed that he had sold Fisher and Franklin a substantial
quantity of cocaine during the period identified by the
confidential informant. An undercover officer placed Dunkins at
the center of the network; he observed his contact obtain price
quotations from an office occupied by Fisher, Franklin, and
Dunkins. Other investigative efforts revealed an assumed name
certificate for Doug and Ron's Custom Jewelry issued to Dunkins and
Fisher, and the delivery of mail addressed to that entity at
Dunkins' home. Two of the firearms found at Fisher's residence
were traced to Dunkins. Consistent with the informant's report of
a spending spree at the Footlocker, agents also found 40 pairs of
athletic shoes at Fisher's home. We have before us more than a
"barebones" affidavit; the affidavit was sufficient to justify
official belief in the validity of the warrant.
During the search a narcotics dog alerted on several areas of
the house and agents found a trace of white powder believed to be
cocaine, four firearms, and $16,000 in cash. They also discovered
a receipt for rental of a storage locker for which they secured a
search warrant. Dunkins challenges this second warrant. Again his
challenge lacks merit. Agents found evidence of drug-dealing at
Dunkins' residence but not drugs or records. An experienced DEA
agent attested that narcotics traffickers routinely use rented
storage space to hide drugs, proceeds, and records. Under those
circumstances, it was reasonable for the officer to believe that
the affidavit inferred a nexus between Dunkins' illegal activity
10
and the storage locker.20 The evidence seized in both searches was
admissible.
6. Constitutionality of harsher penalties for cocaine base.
Finally Fisher and Dunkins contest the constitutionality of
the disparity between the penalties for trafficking in powdered
cocaine and cocaine base; the statute treats the latter more
harshly, as do the Guidelines. We previously have rejected the due
process, equal protection, and vagueness challenges asserted
herein.21 We now reject an eighth amendment challenge. The
penalties for cocaine base transactions, while harsher than those
for cocaine transactions, are not grossly disproportionate to the
severity of the offense,22 considering that cocaine base
"concentrates and magnifies the effect of one gram of cocaine to
such a degree that dealers profitably can sell it in very cheap yet
still-potent quantities."23 The impact of crack cocaine is
devastating; Congress' decision to punish more severely those who
traffic in it is well warranted. We reject this last assignment of
error.
AFFIRMED.
20
See United States v. Pace, 955 F.2d 270 (5th Cir. 1992).
21
See United States v. Watson, 953 F.2d 895 (5th Cir.), cert.
denied,
112 S. Ct. 1989 (1992); United States v. Thomas,
932 F.2d
1085 (5th Cir.), cert. denied,
112 S. Ct. 264 and
112 S. Ct. 428
(1991), and
112 S. Ct. 887 (1992).
22
See McGruder v. Puckett, 954 F.2d 313 (5th Cir.) (adopting
a threshold test of "gross disproportionality" in the wake of
Harmelin v. Michigan,
501 U.S. 957 (1991)), cert. denied,
113 S. Ct.
146 (1992).
23
Thomas, 932 F.2d at 1090; see also Watson.
11
