USA v. Kristi King, et al

Filing

UNPUBLISHED OPINION FILED. [10-60401 Affirmed] Judge: JLW , Judge: FPB , Judge: CES. Mandate pull date is 06/01/2011 for Appellant Kristi King and Appellant Joe Whittle [10-60401]

Case: 10-60401 Document: 00511474772 Page: 1 Date Filed: 05/11/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
May 11, 2011
No. 10-60401

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KRISTI KING; JOE WHITTLE
Defendants-Appellants

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:09-CR-57-5

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Kristi King and Joe Whittle were convicted of
conspiracy to possess with intent to distribute methamphetamine in excess of 50
grams pursuant to 21 U.S.C. § 846. King contends on appeal that the evidence
was insufficient to support her conviction and that she was not provided a
constitutionally fair trial.

Whittle contends on appeal that he was

unconstitutionally restricted in cross-examining a witness and that the

*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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No. 10-60401
government committed a Brady violation. We affirm King’s and Whittle’s convictions.
I. Facts and Proceedings
This case concerns a large methamphetamine (“meth”) conspiracy in
Northern Mississippi. William Page and Steve Ellis, two co-conspirators who
are not parties in this case, transported the Mexican-produced meth from
Arizona to Mississippi and delivered it to J.W. Myers and Freddy Majure, two
more co-conspirators who are not parties in this case. Myers and Majure further
distributed the meth in that area.
As part of the larger investigation of this conspiracy, federal agents ran a
pen register on Majure’s phone which led to the discovery that, between October
2007 and January 2008, Majure spoke with Whittle thirteen times and with
King ten times. This discovery, among others, led the agents to track King and
Whittle more closely.
In October 2008, Agent Kevin Gregory interviewed King and elicited a
confession from her.

Agent Gregory testified that King signed a Miranda

waiver, but that the interview was not recorded. He further testified that he
took notes during the interview and reviewed those notes with King before the
interview ended. According to Agent Gregory, King confessed that she began
purchasing meth from Majure in 2002, eventually working her way up to
purchasing two ounces at a time. King told Agent Gregory that she would often
receive meth from Majure on credit, and would then pay for it with the proceeds
from her downstream sales. King recited a list to Agent Gregory of specific
persons to whom she would sell meth, and stated that, on occasion, she would
supply meth to Majure as well. She said that she eventually stopped exchanging
drugs with Majure and last contacted him in 2008. King did not testify to these
facts at trial, but Agent Gregory took the stand and supplied this information.
In January 2009, Agent Gregory interviewed Majure. At trial, Agent
Gregory confirmed that the interview had occurred and that he had taken notes
2

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No. 10-60401
from it, but that the interview was not taped or recorded in any way.
Subsequent to this interview, Agent Gregory created a report1 which stated,
relevant to this appeal, that “JOE WHITTLE had purchased ½ ounce quantities
of methamphetamine from MAJURE a couple of times.”
Majure also took the stand and confirmed much of Agent Gregory’s report
of King’s confession. Majure stated that he sold meth to King from 2003 or 2004
until 2007, and that he received meth from King numerous times. Majure
testified to the fact that he knew King was “in the meth business” and that she
was dealing drugs. Numerous other witnesses testified at trial that they had
seen King possess and distribute large amounts of meth.
Majure also testified that on four occasions he had supplied meth to
Whittle2 in one-half-ounce quantities.

Counsel for Whittle cross-examined

Majure in an effort to force him to give a hard answer on how many times he had
sold to Whittle. After first exhibiting some uncertainty, Majure stated that he
sold to Whittle “[a]pproximately four times.” Whittle’s counsel did not confront
Majure with the report produced by Agent Gregory, which counsel contends
contains an inconsistent statement.
The indictment in the instant case listed seven co-conspirators, four of
whom pleaded guilty. King and Whittle, as well as Timmy Rhodes, another coconspirator, went to trial. A jury convicted all three of conspiracy to possess
with intent to distribute in excess of 50 grams of meth in violation of 21 U.S.C.

1

Much of Whittle’s brief is devoted to his effort to convince us that the report was not
created by Agent Gregory, but rather by some unknown DEA agent. We conclude that the
record is clear that the report was created by Agent Gregory. The report labels Agent Gregory
as the interviewer, and he refers to “his” notes from the interview. Agent Gregory testified
that the reports of “other interviews” with Majure were handled by the DEA, clearly indicating
that the report of his January 2009 interview was not handled by the DEA. Whittle’s attempt
to suggest otherwise relies on a clever use of ellipses, but ultimately to no avail.
2

Because Whittle does not challenge the sufficiency of the evidence for his conviction,
we will not lay out his role in the conspiracy.

3

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§ 846. Rhodes did not appeal his conviction or sentence, but King and Whittle
timely appealed.
II. Analysis
A. Sufficiency of the Evidence for King’s Conviction
1. Standard of Review
We review a challenge to the sufficiency of the evidence for a criminal
conviction de novo, viewing all evidence and making all reasonable inferences in
the light most favorable to the verdict.3
2. Applicable Law
To convict for a drug conspiracy under 21 U.S.C. § 846, the government
must prove (1) the existence of an agreement between two or more persons to
violate federal narcotics laws, (2) the defendant’s knowledge of the agreement,
and (3) his voluntary participation in the agreement.4 King’s appeal concerns
the sufficiency of the evidence to show that there was a conspiratorial agreement
between her and the larger conspiracy to distribute meth in Northern
Mississippi.
Although to prove the existence of an agreement, the government may not
merely pile inference on inference or merely show that King associated with
conspirators,5 the existence of an agreement may be established exclusively by
circumstantial evidence.6 The defendant need not have joined the conspiracy at
its inception, nor need he have participated in all aspects of the conspiracy,7 so

3

See United States v. Salazar, 958 F.2d 1285, 1290-91 (5th Cir. 1992).

4

See United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996).

5

See United States v. Cardenas Alvarado, 806 F.2d 566, 569-70 (5th Cir. 1986).

6

Glasser v. United States, 315 U.S. 60, 80 (1942), superceded on other grounds by Fed.
R. Evid. 104(a); United States v. Duncan, 919 F.2d 981, 991 (5th Cir. 1990).
7

See United States v. Carrasco, 830 F.2d 41, 44 (5th Cir. 1987).

4

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long as he agreed to the “essential nature of the plan.”8 The agreement need not
be express, and one may be inferred if “the working relationship between the
parties [ ] has never been articulated but nevertheless amounts to a joint
criminal enterprise.” 9
A buyer/seller relationship is not sufficient, on its own, to constitute a
conspiratorial agreement; the conspirators must agree to commit some action in
furtherance of another crime.10 And, a buyer/seller relationship may be evidence
that the defendant intended to join a conspiracy.11
3. Discussion
When the evidence heard by this jury is viewed in the light most favorable
to the verdict, it is enough to support the conclusion that King entered into an
agreement, either tacitly or expressly, to distribute meth. Together, King’s
statements to Agent Gregory12 and Majure’s testimony13 at trial provided the
jury with evidence that (1) Majure sold up to two ounces of meth to King on a
“fronting” basis numerous times for as long as four years, (2) Majure spoke with
King at least ten times between October 2007 until January 2008, (3) Majure
knew that King was dealing drugs downstream, (4) witnesses saw King possess

8

Blumenthal v. United States, 332 U.S. 539, 557 (1947).

9

United States v. Weiner, 3 F.3d 17, 21 (1st Cir. 1993) (citation omitted).

10

See United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993).

11

See United States v. Williams-Hendricks, 805 F.2d 496, 503 (5th Cir. 1986).

12

King contends that her statements to Agent Gregory are inadmissible hearsay. Not
so: Her statements are admissible as admissions of a party-opponent under Federal Rule of
Evidence 801(d)(2). See, e.g., United States v. Coppola, 788 F.2d 303, 306 (5th Cir. 1986)
(allowing for the admission of evidence of a statement of a party-opponent as recounted in an
officer’s testimony).
13

King insists that Majure’s statements should not be admitted because they do not fit
into the hearsay exception embodied in Federal Rule of Evidence 801(d)(2)(E). Because this
evidence is not hearsay, however, there is no reason to look to this hearsay exception. The
testimony was properly admitted.

5

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and distribute meth, and (5) King identified the recipients of many of her meth
sales.
Although there is no direct evidence of a conspiratorial agreement, the
confluence of this evidence is sufficient to entitle the jury to conclude that there
was an agreement between King and the larger conspiracy. Especially probative
of the existence of a conspiratorial agreement is the “fronting” arrangement
engaged in by Majure and King, which indicates trust and a mutually dependent
relationship.14 The fact that King may not have known all intricacies of the
conspiracy is immaterial; she need only have known of the conspiracy’s general
purpose and scope15 — in this case, distribution of meth in Northern Mississippi.
Viewing all of this evidence and the inferences to be drawn therefrom in the light
most favorable to the verdict, we conclude that the jury heard sufficient evidence
on which to convict King.
B. King’s Constitutional Challenge
1. Standard of Review
In her one-paragraph argument on this claim, King asserts that she was
unconstitutionally prohibited from using both Agent Gregory’s report that he
created for the issuance of a search warrant in the larger meth conspiracy and
a composite 40-page report created by DEA Agent Arlis Swindoll. When a
defendant objects to the limitation on confrontation in the district court, we
review the purported Confrontation Clause16 violation de novo.17 Here, the
defendants objected to the trial court’s limitation on the use of Agent Swindoll’s

14

See United States v. Self, No. 09-51012, 2011 WL 134950, at *1 (5th Cir. Jan. 14,
2011) (unpublished); United States v. Bender, 539 F.3d 449, 454 (7th Cir. 2008).
15

See United States v. Thomas, 12 F.3d 1350, 1357 (5th Cir. 1994).

16

King cites to cases dealing with Brady violations, but it is clear she is raising a
Confrontation Clause challenge.
17

See United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).

6

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report, so we review that ruling de novo. The parties did not, however, object to
any purported limitation on Agent Gregory’s report, so we review any ruling
related to that report for plain error.18
2. Discussion
Use of Agent Gregory’s report was not limited, and the parties at trial
questioned Agent Gregory on his report at length. Therefore, King has not
shown error — let alone plain error — regarding the report created by Agent
Gregory. The district court did, however, limit King’s use of Agent Swindoll’s
report in her cross-examination of Agent Gregory because the court was
concerned that there was not a proper foundation that Agent Gregory knew of,
used, or incorporated Agent Swindoll’s report.

King has not offered any

explanation on appeal, however, as to why this limitation by the district court
was improper. King has thus waived any challenge she might have had by
failing to brief this issue adequately.
C. Whittle’s Confrontation Clause Challenge
1. Standard of Review
As stated above, a Confrontation Clause challenge is reviewed de novo if
made in the district court and for plain error if it was not challenged in the
district court. It is unclear whether Whittle objected on this ground at an
appropriate time,19 but, because Whittle’s challenge fails under either de novo
or plain-error review, we shall assume that our standard of review is de novo.
2. Applicable Law

18

Id.

19

The only citation to the record of an objection on this ground — and the only objection
we could find on our own review — demonstrates an objection that was made in Whittle’s
motion for acquittal. “The only proper basis for a motion for judgment of acquittal is a
challenge to the sufficiency of the government’s evidence.” United States v. Hope, 487 F.3d 224,
227 (5th Cir. 2007) (brackets and citation omitted). Whittle was not permitted to make an
evidentiary challenge in a motion for acquittal.

7

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The Confrontation Clause of the Sixth Amendment ensures that an
accused has the right to “be confronted with the witnesses against him.” This
right does not, however, require the district court to allow wholly unfettered
cross-examination.20

A district court is afforded “wide latitude” to impose

reasonable limits on cross-examination “based on concerns about, among other
things, harassment, prejudice, [or] confusion of the issues. . . .” 21

“[T]he

Confrontation Clause guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.” 22
3. Discussion
Whittle asserts that the January 2009 report contains a prior inconsistent
statement with which he should have been permitted to confront Majure. That
report, written by Agent Gregory, recounts that Majure stated that he sold meth
to Whittle a “couple” of times. Whittle argues that, because “couple” literally
means “two,” Majure’s statement in the January 2009 interview is inconsistent
with his testimony at trial that he sold meth to Whittle on four occasions. Such
a

distinction could be important because the government must show that

Whittle conspired to possess at least 50 grams of meth, and proof of only two
sales of one-half ounce of meth each would not satisfy this burden.23
The government asserts that there was no limitation on questioning or use
of the Gregory report.

The government is correct that at trial the parties

addressed the report and the interview with Agent Gregory and discussed the
interview with Majure. But the government cites to no instance when a party

20

21

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Id.

22

Id. (emphasis in original).

23

There are approximately 28.35 grams in one ounce.

8

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was permitted to use a report of an interview to confront a witness with his or
her allegedly inconsistent statement.

This is the prohibition about which

Whittle complains, i.e., his inability to impeach Majure.
Indeed, the record indicates that the defense lawyers did not believe that
they could use this evidence. Whittle’s attorney stated that the district court
had already told the parties that they could not use this evidence, and the
district court appears to agree that it had imposed such limitation. It stated that
“the issue that defense counsel was precluded from using an officer’s report to
cross-examine a witness that did not author or accept or acquiesce in that report.
I stand by that ruling.” Despite this language, Whittle does not indicate where
in the record the district court’s imposition of such a limitation can be found.
But even assuming that this limitation was imposed, Whittle has not
shown that it was improper. The report is hearsay as to Majure’s statements,
and the only hearsay exception that could possibly be at issue is the one for
impeachment purposes.24 Whittle has not adequately shown that the district
court acted outside of the “wide latitude” it is afforded in limiting the use of
Agent Gregory’s summary report of the interview.
The evidence that Whittle wishes to introduce is unreliable. The report
did not purport to be a verbatim account of Majure’s statements; it comprised
only the thoughts and recollections of Agent Gregory, and there is no evidence
that Majure ever saw the report or adopted it. It is “grossly unfair to allow the
defense to use statements to impeach a witness which could not fairly be said to
be the witness’ own rather than the product of the investigator’s selections,
interpretations, and interpolations.” 25

24

See United States v. Palacios, 556 F.2d 1359, 1363-64 (5th Cir. 1977).

25

United States v. Judon, 581 F.2d 553, 554 (5th Cir. 1978).

9

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Furthermore, Whittle’s narrow focus on the word “couple” is unavailing.
Although in its dictionary sense, “couple” means “two,” it is broadly used
colloquially in reference to a small but inexact number. It is entirely unclear
whether Agent Gregory asked Majure precisely how many times he sold meth
to Whittle or whether Agent Gregory remembered Whittle’s answer if he actually
asked him exactly how many sales he had made. It is thus unreasonable to
assume that Agent Gregory’s use of the word “couple” means that Agent Gregory
remembered that Majure had stated that he sold to Whittle on two, and only
two, occasions.
Thus, the district court was within its discretion in limiting the use of this
unreliably imprecise piece of evidence in cross-examination, and Whittle
advances no argument why the district court’s limitation is unjustified. Indeed,
Whittle had other avenues available to elicit the same information.

For

example, he could have cross-examined Agent Gregory and forced him to state
specifically on the record precisely how many times Majure told him that he sold
meth to Whittle. Although this testimony would be hearsay, it could have
contained sufficient reliability to be admissible as impeachment evidence only.
In fact, at least one other defense attorney planned to do just that, stating that
he would attempt to get around the prohibition on the use of the report as
impeachment evidence by calling the agent who conducted the interview.
Whittle did not pursue this strategy, and it does not appear that the district
court would have limited this line of questioning.
D. Whittle’s Brady Violation Challenge
Whittle asserts that the government committed a Brady violation when
it failed to produce the DEA agent who wrote the report of the January 2009
interview with Majure.

To state a violation of Brady, a defendant must

demonstrate that (1) the evidence at issue was favorable to the defense, (2) the
government suppressed that evidence, and (3) the evidence would have been
10

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material to either guilt or punishment.26 Whittle has provided no evidence that
anyone other than Agent Gregory wrote the report. Because the report was
produced by the government and Agent Gregory was featured prominently at
trial, there is no indication that any evidence was suppressed. It follows that
there could not have been any Brady violation. Regardless, Whittle did not
object to a purported Brady violation in the district court, so he waived that
claim.27
III. Conclusion
The evidence at trial was sufficient to entitle the jury to convict King, and
her trial comported with the Constitution. Whittle has failed to show a violation
of either the Confrontation Clause or Brady. The defendants’ convictions are
AFFIRMED.

26

Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir. 1994).

27

See United States v. Rice, 607 F.3d 133, 142 (5th Cir. 2010) (declining to hear a Brady
claim because the defendant did not properly raise the issue in the district court).

11