United States v. Short

REVISED - AUGUST 12, 1999 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________________ No. 98-30495 ___________________________ UNITED STATES, Plaintiff-Appellee, VERSUS MICHAEL SHORT, Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court for the Eastern District of Louisiana ___________________________________________________ July 15, 1999

Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Michael Short appeals his conviction on a number of counts

arising out of his leadership of a drug-distribution ring. For the

reasons that follow, we vacate Short’s conviction on Count 1 and

affirm the remaining counts of his conviction.

I.

Michael Short was the leader of a substantial drug-dealing

organization named after its principal distribution point in New

Orleans, the intersection of Phillip Street and Clara Street.

Numerous witnesses testified about Short’s management of the

Phillip and Clara drug ring in 1995 and 1996. For example, Lloyd

Locke testified that he sold heroin for Short; Gregory Cooks

testified that he sold heroin for Short and acted as Short’s enforcer.

Law enforcement officers also testified as to Short’s

involvement in the drug trade. For example, Officer Tim Bayard of

the New Orleans Police Department testified that on September 15,

1995, he observed Short leaving 4507 S. Prieur Street carrying a

bag. When Short noticed Bayard, he threw the bag away. The police

retrieved the bag and found that it contained $15,000 cash. The

police seized the money after drug dogs alerted to the presence of

illegal substances on it. Officer Jake Schnapp testified that on

May 14, 1995, he and his partner observed Short give a brown paper

bag to Cooks. When Cooks saw the police, he threw the bag to the

ground. The police detained both men. While they did so, Yvonne

Cooks picked up the bag and began walking into a house at 903

Fourth Street. The police apprehended Ms. Cooks and searched the

bag. The bag contained $5,000 cash. Morever, a search of the 903

Fourth Street residence found five clear plastic bags of off-white

powder (later determined to be heroin) and a loaded pistol. The

prosecution also presented numerous recordings of phone

conversations between Short and others directly implicating Short

in the drug trade.

For the purposes of this appeal, two additional events are

important: the search of the car driven by Lerman Robinson and the

murder of Derrick Hubbard.

On June 25, 1996, Lerman Robinson was driving his mother-in-

law’s Pontiac. Short, who had been riding in a Jeep Cherokee with

Cooks and John Bryant, waved Robinson down. Robinson stopped the

Pontiac in an intersection so that Short could enter the car.

2 Officer Raymond Veit of the New Orleans Police Department saw

Robinson’s Pontiac blocking the intersection and pulled the car

over. Officer Veit asked the occupants to step out of the car and

conducted routine pat downs. He felt a large bulge in Short’s

pocket, which turned out to be $891 cash. Veit had previously

arrested Short on a narcotics-related offense, so he called a

canine officer to determine whether the money contained traces of

narcotics. The drug dog alerted to the money. Office William

Kingman, an ATF agent assigned to a local drug task force, assisted

Veit. When Kingman looked inside the Pontiac, he saw three

cellular phones. He picked up the phones, removed their backs, and

followed the instructions on how to retrieve the number assigned to

the phones. One of the numbers Kingman obtained was (404) 694-

7126, which he passed on to a DEA agent. The drug task force later

obtained a warrant to tap this phone. This wire tap was the source

of much of the evidence that led to Short’s conviction.

The second important event was the murder of Derrick Hubbard,

who was acting as an informant for the DEA. The Government

presented evidence that Hubbard had been a drug dealer and an

enforcer for Short’s organization. Short and Hubbard had a falling

out because Hubbard had been stealing drugs and money from Short.

On the day that Hubbard was murdered, Short threatened to kill

Hubbard after seeing him at the Phillip and Clara intersection.

After making this threat, Short had a conversation with Troyel Ross

and Kevin Brown. Ross then shot and killed Hubbard in front of a

number of eyewitnesses. Ross left the scene with Cooks. Cooks

went to a pay phone at the corner of Phillip and Clara. Short 3 called Cooks at that pay phone and exclaimed, “We got that bitch.

That bitch dead. We got that bitch.” A little while later, Short

gave Ross $2,500, stating, “This is a little something for handling

that.”

Short and a number of coconspirators were charged in a

multicount indictment. Short was charged in ten counts.1 He was

found guilty on all counts. The district court imposed four

concurrent life sentences on Counts 1-4, plus a mandatory

additional five-year prison sentence on Count 5, the firearm

offense. The district court imposed additional prison terms on the

remaining counts, but these terms all run concurrently with the

life sentences. Short now appeals.

II.

Short argues eleven points of error on appeal. We address

these points in turn.

A.

Short argues first that Agent Kingman violated rights secured

by the Fourth Amendment when the agent obtained the telephone 1 Count 1 for conspiring to distribute heroin and cocaine in violation of 21 U.S.C. § 846 ; Count 2 for leading, organizing, and managing a continuing criminal enterprise involving a conspiracy to distribute heroin in violation of 21 U.S.C. § 848 ; Count 3 for intentionally killing Derrick Hubbard in furtherance of a continuing criminal enterprise in violation of 21 U.S.C. § 848 (e)(1)(A) and 18 U.S.C. § 2 ; Count 4 for causing the killing of Hubbard through the use of a firearm in violation of 18 U.S.C. § 924 (j)(1) and 18 U.S.C. § 2 ; Count 5 for carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924 (c)(1); Counts 6 and 8 for using a telephone in furtherance of a drug conspiracy in violation of 21 U.S.C. § 843 (b); Count 7 for using the Postal Service in furtherance of a drug conspiracy in violation of 21 U.S.C. § 843 (b); Count 24 for using a modified cellular phone with the intent to defraud in violation of 18 U.S.C. § 1029 (a)(5); and Count 27 for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956 .

4 numbers assigned to the cellular phones found in the Pontiac being

driven by Lerman Robinson. Short argues that because this search

was improper, the wire tap of one of the phone numbers discovered

in that search was illegal and therefore all the fruits of that

wire tap should have been suppressed.

Preliminarily, however, we address the Government’s contention

that Short does not have standing to assert this argument. Under

the precedent of the Supreme Court and this Court, a passenger in

an automobile generally lacks standing to challenge a search of

that automobile, especially when there is no indication that the

items being searched belong to the passenger. See Rakas v.

Illinois, 439 U.S. 128, 132-45 , 99 S. Ct. 421, 424-30 , 58 L. Ed. 2d

387 (1978); United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir.

1993); United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th

Cir. 1992). Short points to no evidence from the search or any

legal theory that supports an argument that this general rule does

not apply to the search of Robinson’s Pontiac and the cellular

phones found in that vehicle. Short did not have the phones on his

person, nor were the phones in a location that indicated that the

phones were his, nor did he indicate to the police that the phones

were his. Under the cases cited above, Short does not have

standing to challenge the search of Robinson’s Pontiac or the

cellular phones found in the vehicle. We therefore reject his

Fourth Amendment challenge.

B.

Short next argues that the district court erred by refusing to

instruct the jury that, in order to find Short guilty of being an 5 organizer, supervisor, or manager of the continuing criminal

enterprise, the jurors must agree unanimously as to the identities

of at least five of the people being organized, supervised, or

managed.

This Court previously rejected this exact argument in United

States v. Linn, 889 F.2d 1369, 1374 (5th Cir. 1989). The Supreme

Court, however, recently held that a jury must agree unanimously on

the three criminal acts forming a series of criminal acts for the

purposes of the continuing criminal enterprise statute. Richardson

v. United States, 119 S. Ct. 1707, 1712-13 (1999). This holding

raises the question of whether this Circuit’s precedent that does

not require jury unanimity as to the identities of supervisees

still stands. In Richardson, the Supreme Court gave us guidance on

this issue. Although the Court did not decide whether unanimity is

required as to supervisees, the Court distinguished the

“supervisor” provision from the “series” provision it found to

require unanimity. The Court stated: “Assuming without deciding,

that there is no unanimity requirement [as to supervisees], we []

find [that provision] significantly different from the provision

before us. They differ in respect to language, breadth, tradition,

and the other factors we have discussed.” Id. at 1713 . Thus,

although the Supreme Court in Richardson did not decide the issue,

it gave no indication that a jury finding of unanimity as to

supervisees is required. In other words, Richardson did not

suggest that our precedent is no longer valid. Indeed, the

Richardson opinion implied just the opposite. Because this panel

is bound by the precedent of previous panels absent an intervening 6 Supreme Court case explicitly or implicitly overruling that prior

precedent, we are bound by our decision in Linn. For that reason,

we reject Short’s contention that the district court erred by

refusing his proposed jury instruction requiring unanimity as to

the identities of the five people being organized, supervised, or

managed.

C.

Short next argues that his counsel made improper statements

during closing argument and therefore the district court should

have granted him a new trial.

During closing argument, Short’s counsel stated, If you listen to the tapes, if you hear between the lines and read between the lines of the several people who testified out there, you know that bunches of people were selling drugs and they were distributing drugs to numbers of people. Michael Short[] was involved; you’ve heard that evidence; it can’t be denied. But the idea that he was a kingpin relies on the testimony of these men. There was money to be made; they made money. There was money that was earned illegally through the drug trade, but that doesn’t make a continuing criminal enterprise.

. . .

Ladies and gentlemen of the jury, the bottom level of this case is the conspiracy charge. And that is, for me, the most difficult thing to argue because the evidence is so strong; . . . but they were basically independent operators who, from time to time, came in contact with and worked with some other people. They were basically independent people.

At the end of this closing argument, Short told the district court

that he did not agree with the statements of his counsel, which he

felt were tantamount to an admission of guilt. After he was

convicted, Short requested a new trial on the ground that his

counsel had effectively entered a guilty plea for him.

The district court characterized Short’s claim as one of 7 ineffective assistance of counsel. The court then ruled that

counsel’s argument fell “within the ambit of trial strategy and

tactics.” In light of the overwhelming evidence of Short’s

involvement in the drug trade, the district court found that

counsel’s trial strategy was reasonable and therefore it was not

ineffective assistance under Strickland v. Washington, 466 U.S.

668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984).

We concur with the district court’s analysis. While counsel

did not explicitly admit Short’s guilt on any of the particular

counts with which Short was charged, counsel clearly implicated

Short in the drug trade. However, we agree with the district court

that this closing argument does not amount to ineffective

assistance of counsel. The evidence from coconspirators, law

enforcement officers, and recorded telephone conversations was

overwhelming that Short was involved in the drug trade. Thus,

counsel took the reasonable strategic approach of trying to

establish his credibility with the jury and enhance his chances

that the jury would accept his arguments on the more serious

counts, such as the kingpin element of the continuing criminal

enterprise and the murder of Derrick Hubbard. We agree with the

district court that counsel’s use of such a tactic does not mandate

that we grant Short a new trial.

D.

Short argues that his conviction and sentence on both Count 1

(conspiracy) and Count 2 (continuing criminal enterprise) violate

the Double Jeopardy Clause of the Constitution because Count 1 is

a lesser included offense of Count 2. See United States v. Brito, 8

136 F.3d 397, 408 (5th Cir. 1998). The Government agrees and

concedes that if we affirm Count 2, then we should vacate Count 1.

Therefore, because we do affirm Count 2, we vacate Count 1.

E.

Short next contends that the evidence is insufficient to

support his conviction on Counts 3 and 4. He also argues that his

conviction on Counts 3 and 4 must be overturned because the jury

reached inconsistent verdicts.

Count 3 of the amended indictment alleged that Short and

Troyel Ross intentionally killed Derrick Hubbard in furtherance of

a continuing criminal enterprise. Count 4 alleged that Short

procured and caused the killing of Derrick Hubbard through the use

of a firearm and that Ross performed the actual killing. The jury

convicted Short on both Counts 3 and 4. The record evidence

discussed above amply supports these verdicts.

While the jury convicted Short on Counts 3 and 4, it was

unable to reach a verdict as to Ross. Short contends that because

the jury was not convinced beyond a reasonable doubt that Ross

killed Hubbard, it could not have been convinced beyond a

reasonable doubt that Short caused Ross to kill Hubbard. Short

contends that to permit such inconsistent verdicts would violate

his right to due process of law under the Fifth Amendment.

This argument is meritless. First, it is not clear to us that

the verdicts are necessarily inconsistent. Second, inconsistent

verdicts do not require reversal of the guilty verdicts, so long as

there is sufficient evidence to support the jury’s determination of

guilt. See, e.g., United States v. Sylvester, 143 F.3d 923 , 930 9 (5th Cir. 1998) (inconsistent verdicts not a bar to conviction even

when all coconspirators are acquitted); United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995) (jury can render inconsistent

verdicts, even when inconsistency is result of mistake or

compromise); United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.

1985) (“Juries are free to return inconsistent verdicts, for

whatever reason, provided their convictions are supported by

adequate evidence.”). In this case, ample evidence supports

Short’s conviction on Counts 3 and 4. Therefore, the jury’s

failure to convict Ross on Counts 3 and 4 does not provide any

reason to vacate Short’s conviction on the same counts.

F.

Short also argues that the evidence is insufficient to support

his conviction on Counts 2, 5, and 27. We disagree.

In Count 2, Short was convicted of organizing, supervising, or

managing a continuing criminal enterprise to possess and distribute

heroin. Short contends that the Government failed to provide

sufficient proof that Short supervised five or more members of the

criminal enterprise, as required by 21 U.S.C. § 848 . In response,

the Government argues that it presented evidence sufficient for the

jury to find that Short supervised or managed at least nine members

of the Phillip and Clara drug ring. After reviewing the record, we

agree with the Government that the evidence was clearly sufficient

for the jury to conclude that Short organized, supervised, or

managed at least five members of the criminal enterprise.

In Count 5, Short was convicted of carrying a gun during the

commission of a drug trafficking crime in violation of 18 U.S.C. § 10

924(c)(1). Short contends that the Government did not prove that

Short carried a gun during or in relation to a drug crime, as

required by Section 924(c)(1). Short, however, ignores the

evidence that he directed his underlings to carry guns.

The record is replete with references to firearms being used

by the Phillip and Clara organization, usually at Short’s behest.

For example, Lloyd Locke testified to a number of times when Short

told him to “get strapped”--get a firearm--and accompany him on a

drug-related errand. The Government also presented wire tap

recordings in which Short ordered Locke and Kevin Brown to arm

themselves and handle various problems for the organization. This

evidence is clearly sufficient to support Short’s conviction on

Count 5. See 18 U.S.C. § 2 (“Whoever commits an offense . . . or

aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.”).

Next, Short challenges the sufficiency of the evidence

supporting his conviction on Count 27 for money laundering. In

support of this count, the Government presented evidence that Short

had given his wife, Kim Short, $25,000 in cash and instructed her

to place the money in a safety deposit box under the name of one of

her relatives. Based on this evidence, the Government charged

Short with money laundering under two provisions of a federal money

laundering statute: 18 U.S.C. § 1956 (a)(1)(A)(i), which prohibits

financial transactions “with the intent to promote the carrying on

of specified, unlawful activity,” and 18 U.S.C. § 1956 (a)(1)(B)(i),

which prohibits financial transactions designed “to conceal or

disguise the nature, the location, the source, the ownership, or 11 the control of the proceeds of specified, unlawful activity.” The

district court instructed the jury that it could find Short guilty

if it found that his actions satisfied the elements of either the

“intent to promote” provision or the “conceal and disguise”

provision. After reviewing the record, we conclude that the

evidence is sufficient to support conviction under the “conceal or

disguise” provision. The Government provided evidence sufficient

for the jury to infer that the $25,000 cash was profit from drug

dealing that Short was attempting to conceal or disguise by having

his wife place the money in a safety deposit box under the name of

one of her relatives. This inference satisfies all elements of the

crime and is therefore sufficient to uphold the money laundering

conviction. We therefore reject Short’s sufficiency argument on

Count 27.

G.

Short’s remaining arguments are as follows: his conviction

must be set aside because the Government offered leniency to the

coconspirators who testified against him; the district court erred

by denying his Motion to List the Individuals the Government Will

Allege Were Organized, Supervised, or Managed by Defendant Short in

a Continuing Criminal Enterprise; and the district court erred by

denying his Motion for a New Trial based on newly discovered

evidence. We have considered these arguments and conclude that

they are without merit.

CONCLUSION We agree with Short and the Government that Count 1 should be

vacated. With that one exception, the judgment of the district 12 court is affirmed. Although we vacate Count 1, because Short’s

sentences on Counts 1, 2, 3, and 4 are to be served concurrently,

it is unnecessary for the district court to resentence Short.

AFFIRMED in part, VACATED in part.

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