United States v. Newton

Citations: 44 F.3d 913; 1995 WL 31851Docket: 92-8228, 92-8764 and 94-8376

Court: Court of Appeals for the Eleventh Circuit; December 22, 1994; Federal Appellate Court

Original Court Document: View Document

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The United States Court of Appeals for the Eleventh Circuit reviewed appeals from multiple defendants convicted of drug-related offenses, including conspiracy to distribute cocaine and related charges under various U.S. Code statutes. Specifically, Joseph Newton, Grady D'Vaughn Reddick, Willie Lee Palmer, John Brown, Jr., Robert Jivens, Sean Jackson, Eddie Batten, and Robert Moss contested their convictions and sentences. Moss also appealed a conviction for employing minors in drug distribution, while several defendants challenged convictions for using firearms during drug trafficking. Reddick and Palmer contested their convictions for money laundering, and Newton and Moss appealed for using communication facilities to further drug felonies.

The court ordered a reconsideration of the previous opinion due to identified errors. Following this, the court affirmed the convictions of Brown and Moss while reversing Reddick's convictions. The judgments against Newton, Palmer, Jivens, Jackson, and Batten were affirmed without further opinion. 

The case originated from a September 1991 federal grand jury indictment of seventeen individuals linked to a violent crack cocaine distribution conspiracy led by Ricky Maurice Jivens, which began in late 1988. The gang was implicated in numerous violent crimes, prompting the formation of a federal task force. The investigation included infiltrating the gang with informants, ultimately leading to arrests and subsequent convictions after a January 1992 jury trial.

Moss, Brown, and Reddick are the remaining Appellants raising several issues on appeal. Moss argues that the district court incorrectly denied his motion for a new trial based on newly discovered evidence and improperly considered pre-eighteenth birthday activities in sentencing. He claims that a juvenile witness, CJR, likely committed perjury regarding his involvement in the murder of drug dealer Antonio Anderson, particularly about the nature of the weapon and the timing of the shooting. Moss asserts a Brady violation, alleging the Government failed to disclose critical homicide records and crime lab reports that contradicted CJR's testimony. The Government counters that these documents were not in its physical custody and were inadvertently misfiled.

The denial of Moss' motion is reviewed for abuse of discretion. The Supreme Court established that the suppression of favorable evidence by the prosecution violates due process if such evidence is material to guilt or punishment, regardless of the prosecution's intent. For a Brady violation to necessitate a new trial, a four-prong test must be satisfied: 1) the Government possessed evidence favorable to the defendant; 2) the defendant could not have obtained this evidence with reasonable diligence; 3) the prosecution suppressed the evidence; and 4) there is a reasonable probability that the trial's outcome would have differed had the evidence been disclosed.

The district court determined that Moss met the first three elements of his Rule 33 motion but failed to establish the fourth element, which required demonstrating that undisclosed evidence would have altered the trial's verdict. Consequently, the court denied his request for a new trial. The suppression of evidence constitutes a constitutional error only if its omission undermines confidence in the trial's outcome. Although the Brady rule aims to prevent wrongful convictions, it does not penalize the Government. A Brady violation may involve misconduct by Government attorneys, but in this case, there was no evidence of intentional concealment, as the relevant information was not possessed by Government counsel, nor was it clear that more diligence would have uncovered it. The omitted evidence could have impeached testimony regarding the Anderson murder, but it was determined that its suppression did not undermine confidence in the trial's outcome, given the overwhelming evidence of Moss' involvement in the charged offenses.

Regarding Moss' sentencing appeal, he argued that the district court improperly considered his actions before turning eighteen when determining drug quantities under the Sentencing Guidelines. The court rejected this claim, affirming that Moss was responsible for at least five to fifteen kilograms of cocaine base. Sentencing issues are predominantly factual and reviewed for clear error. The court found that since Moss participated in a continuous conspiracy spanning both before and after his eighteenth birthday, prior acts could be relevant to his guilt. However, the jury was instructed to consider only actions taken after his eighteenth birthday. Evidence presented included a recorded call involving Moss shortly after he turned eighteen, supporting the court's decision to base the sentencing on actions taken thereafter.

Moss was implicated in drug trafficking activities, having delivered $20,000 and $10,000 to Jivens on separate occasions. A videotape from September 18, 1991, shows Jivens expressing frustration over unpaid amounts from Moss. Following Jivens' arrest on September 20, 1991, an undercover call from Richardson, posing as Jivens, revealed Moss's acknowledgment of a slow day. Moss was arrested later that night with coconspirator Michael Williams, carrying a cellular phone and pager. The court found sufficient evidence, including Moss's post-eighteen conduct, to uphold his conviction and sentence him with a base offense level of 40 for multiple charges, including conspiracy to distribute cocaine and use of a firearm during drug trafficking.

The defense raised concerns about prosecutorial misconduct, arguing that the prosecutor improperly vouched for the credibility of key witness Jerome Richardson by referencing a federal judge's issuance of a search warrant based on Richardson's testimony. The prosecutor's statements suggested that the warrant was granted due to credible evidence provided by Richardson, which led to the discovery of drugs and cash, thus supporting Richardson's reliability. The legal standard for reviewing such misconduct requires a showing of plain error due to the absence of contemporaneous objections. While vouching for a witness's credibility is typically seen as improper, the government contended that it was simply highlighting the success of its investigation based on Richardson's information.

Lawyers are cautioned against expressing personal opinions on witness credibility, as established in United States v. Eley. In evaluating the prosecutor's comments during the trial, the court determined that the statements did not constitute improper vouching or call upon the court to endorse the witness's truthfulness. The prosecutor's remark regarding the issuance of a search warrant was interpreted as an indication that the information provided by the witness, Richardson, was substantiated by the evidence found during the search. The distinction made is that while prosecutors can argue for a witness's credibility, they cannot do so based on the authority of their office or evidence not presented to the jury. 

Regarding Reddick, who was indicted as an aider and abettor in a conspiracy and faced money laundering charges, the court found that the evidence presented by the Government was insufficient to support his convictions. The standard of review for sufficiency of evidence requires that all evidence and inferences be viewed favorably towards the Government, determining if a reasonable jury could find guilt beyond a reasonable doubt. To establish conspiracy, it is necessary for the Government to prove the existence of a conspiracy, the defendant’s knowledge of its aims, and their participation. Aiding and abetting involves associating with the crime and actively seeking its success. For the money laundering count, it must be demonstrated that the defendant's actions were integral to the drug conspiracy's operation.

Government evidence primarily relied on testimony from two witnesses: David Smith, the leasing agent, and Chris Cochran, an acquaintance of the defendants. Smith testified that Reddick leased a house on Chowning Drive in November 1990 for $675 per month, providing false statements that he would live there with his wife and children. Smith visited the property once during the lease and encountered a woman with a baby, believed to be Danielle Jones, the girlfriend of Ricky Jivens. Cochran stated that Jivens initially sought to rent the house but, failing a credit check, had Reddick lease it instead. Reddick argued that his actions were merely a favor for a friend, not criminally motivated.

The Government presented physical evidence indicating that Reddick also rented a boat slip and had a home at 3211 Martha Street, where he was registered as a resident. They introduced a $3,000 money order related to a car containing further evidence against Reddick. However, the court found insufficient evidence to support the charges against Reddick. Specifically, there was no proof that he concealed the source of rental payments or that he was aware of any illegal funds involved. Furthermore, there was no evidence linking Reddick to drug-related activities or conspiracies beyond his association with Jivens. The court emphasized that mere association does not equate to participation in criminal activity, citing prior case law.

Ultimately, the court reversed Reddick's convictions due to insufficient evidence, while affirming the convictions of other defendants Moss and Brown.