United States v. Norman

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

July 1, 2005

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 04-20177

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD NORMAN; GLENN EDWARD SCOTT,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Texas

Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:

Ronald Norman (Norman)1 and Glenn Edward Scott (Scott) appeal

their convictions for conspiracy to possess with intent to

distribute a controlled substance and possession with intent to

distribute of a controlled substance. We affirm the convictions.

1

Norman told the probation officer preparing his presentence report that

his true name is Ronnie Ray Norman.

Facts and Proceedings Below

The Drug Enforcement Administration (DEA) began an

investigation of Scott after a confidential informant identified

him as a possible drug dealer. At the behest of his controlling

DEA agent, the informant set up a meeting with Scott for the

evening of September 25, 2002, at a gas station on Interstate

Highway 10 in Houston. The informant was wired with an audio

transmitter which was monitored by one of the team of DEA agents

assigned to the investigation, who then relayed by radio to the

other agents information obtained from the transmission. The scene

at the gas station was periodically observed by an agent who drove

past every few minutes.

After the informant, whom the agents had ascertained had no

drugs on his person or in his car, arrived at the gas station in

his vehicle, two other cars arrived. A person later identified as

Scott got out of one of the cars and into the informant’s vehicle.

Scott and the informant decided to move to a McDonald’s restaurant

on the other side of the interstate to complete the deal, whereupon

Scott opened the door of the vehicle and instructed someone he

called “Randy” to “go by my apartment and pick up that stuff,” and

to come meet them at the McDonald’s. All of the vehicles were

observed leaving the gas station, with the informant’s vehicle and

one of the cars heading over to the McDonald’s, while the other car

went in a different direction.

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A DEA agent with binoculars was in a car parked next door to

the McDonald’s when the informant’s vehicle arrived there. After

a few minutes, the agent saw the person he later identified as

Scott get out of the informant’s vehicle and walk up to the hood of

the informant’s vehicle. A person the agent later identified as

Norman walked up and met Scott at the hood of the informant’s

vehicle. Both men walked over near the front passenger side

window. Id. at 389. The surveillance agent later testified that

the men appeared to be conversing, and the audio transmission

included an exchange between the informant, Scott, and a person

Scott called “Ronnie,” later identified as Norman. In this

exchange, “Ronnie” tells Scott that he left Scott’s car “at the

house,” and that he ran over to the McDonald’s. There is a

footbridge over the interstate with one end near the McDonald’s and

the other end near an apartment complex on the other side of the

interstate. The surveillance agent did not see an actual handoff

of anything from Norman to Scott; the mens’ lower bodies were

generally blocked from view by the vehicle.

After the meeting broke up, the DEA agents recovered a paper

bag from the informant. The bag was subsequently determined to

contain 212.8 grams of cocaine base (crack cocaine). Scott was not

apprehended after this deal because the agents hoped to orchestrate

a larger drug sale on October 8, 2002. Scott was arrested on

October 8 after the larger sale fell through, and voluntarily told

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agents that he was involved in the September 25 sale to the

informant. The agents got Ronnie Norman’s name from Scott’s

confession and through registration records of the cars present for

the September 25 deal.2 Norman spoke with the agents in an

unrecorded interview on October 25, 2002, where he admitted going

to the gas station to provide protection for Scott. According to

the agents’ testimony, he further admitted that he went to an

apartment where he was handed a paper bag, and that he delivered

the bag to the McDonald’s. Norman told the agents that he thought

the bag had contained either money, “weed,” or cocaine. Based on

their discussions with Scott and Norman, two agents identified

Scott’s and Norman’s voices on the taped audio transmission from

the September 25 transaction.

Norman was subsequently arrested, and he and Scott were

charged with (1) conspiring to possess with intent to distribute 50

grams or more of cocaine base, and (2) aiding and abetting one

another in possessing with intent to distribute 50 grams or more of

cocaine base, under 21 U.S.C. §§ 841, 846. At trial, both Norman

and Scott objected to the admission into evidence of the agents’

identification of their voices on the tape recording of the

September 25 audio transmission, but their objections were

overruled. Scott attempted to use a Justice Department manual on

2

Since neither Norman nor Scott testified at trial, the jury was not told

of any mention of his co-defendant in either defendant’s confession. See Bruton

v. United States, 88 S.Ct. 1620, 1622–23 (1968).

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eyewitness identification in cross-examining some of the DEA

agents. Such use of the manual was precluded for not meeting the

requirements of Rule 803(18) of the Federal Rules of Evidence. The

jury found both Scott and Norman guilty of both counts. Scott was

sentenced to 235 months’ imprisonment, and Norman to 120 months.3

Discussion

Norman argues that his confession to the DEA agents was not

corroborated and was therefore inadmissible, that there was

insufficient evidence that he knew he was transporting a controlled

substance, and that the identification of his voice on the tape

recording should have been excluded. Scott appeals the district

court’s denial of his use in cross-examination of the Justice

Department identification guide.

I. Standard of Review

A district court’s evidentiary rulings are reviewed for

abuse of discretion, subject to the harmless error rule. United

States v. Valentine, 401 F.3d 609, 616 (5th Cir. 2005). In

reviewing sufficiency of the evidence in a jury trial, we consider

whether a rational jury, viewing the evidence in the light most

3

The district court adopted the probation officer’s assessment that Norman

had a minor role in the conspiracy, resulting in a sentence at the statutory

minimum of 120 months.

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favorable to the prosecution, could have found the defendant guilty

beyond a reasonable doubt.4 United States v. Miles, 360 F.3d 472,

476–77 (5th Cir. 2004).

II. Norman’s Conviction

A. Corroboration of Confession

With respect to Norman’s argument that his confession was not

corroborated, it is true that a defendant may not be convicted

solely on the basis of his uncorroborated confession. United

States v. Deville, 278 F.3d 500, 506 (5th Cir. 2002); United States

v. Abigando, 439 F.2d 827, 832 (5th Cir. 1971). Instead, “[t]he

government must introduce independent evidence [tending] to

establish the trustworthiness of the confession.” Deville, 278

F.3d at 506 (citing Smith v. United States, 75 S.Ct. 194, 199–200

(1954); Opper v. United States, 75 S.Ct. 158, 164 (1954)). The

government need not introduce independent evidence on every element

of the crime, however. Abigando, 439 F.2d at 832. “If there is

extrinsic evidence tending to corroborate the confession, the

confession as a whole is admissible; and some elements of the

offense may be proven entirely on the basis of a corroborated

confession.” Deville, 278 F.3d at 507 (quoting United States v.

Gravitt, 484 F.2d 375, 381 (5th Cir. 1973)).

4

The defendants properly preserved this issue by moving for a judgment of

acquittal at the close of the government’s evidence. The defense did not present

any evidence.

6

In the case of Norman’s confession, there is sufficient

independent evidence tending to establish its trustworthiness.

This evidence includes testimony that the informant received the

paper bag containing the cocaine base and that Norman was seen

meeting Scott at the McDonald’s, as well as the audio tape in which

a voice identified as Scott’s instructs someone to “pick up that

stuff” and go to the McDonald’s.5 All of this evidence

corroborates aspects of the confession, and tends to establish its

trustworthiness. The confession was therefore sufficiently

corroborated.

B. Sufficiency of the Evidence

Norman further argues that because his confession indicated

that he thought the bag he delivered might have contained money,

there was insufficient evidence to show that he was involved with

the knowing or intentional possession of a controlled substance as

required by 21 U.S.C. § 841.6 “In order to prove conspiracy to

possess and distribute drugs, the Government must prove beyond a

reasonable doubt: (1) the existence of an agreement between two or

5

This instruction on the tape is directed to “Randy,” but the jury was told

that Ronnie Norman has a brother Randy, and that one of the cars at the gas

station was registered to Randy Norman. A rational jury could have inferred that

Scott simply misspoke, referring to Ronnie as Randy.

6

21 U.S.C. § 841(a) provides:

“(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally–

(1) to manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to

distribute or dispense, a counterfeit substance.”

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more persons; (2) the defendant’s knowledge of the agreement; and

(3) the defendant’s voluntary participation in the conspiracy.”

United States v. Tenorio, 360 F.3d 491, 494 (5th Cir. 2004).

Although mere presence at a crime scene or association with

conspirators is not enough to establish participation in a

conspiracy, United States v. Maltos, 985 F.2d 743, 746 (5th Cir.

1992), “[t]he agreement, a defendant’s guilty knowledge and a

defendant’s participation in the conspiracy all may be inferred

from the development and collocation of circumstances,” United

States v. Lentz, 823 F.2d 867, 868 (5th Cir. 1987) (internal

quotation omitted). To prove aiding and abetting of a criminal

venture, the government must show that the defendant: “(1)

associated with the criminal enterprise; (2) participated in the

venture; (3) sought by his action to make the venture succeed.”

Tenorio, 360 F.3d at 495. Because “[t]he evidence supporting a

conspiracy conviction typically supports an aiding and abetting

conviction,” id., we consider here the sufficiency of the evidence

for the conspiracy conviction.

“Ordinarily, knowledge of the existence of drugs may be

inferred from control over the location in which they are found.”

United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).

However, if the drugs are hidden, such as in a secret compartment

in luggage or a vehicle, “we require ‘additional circumstantial

evidence that is suspicious in nature or demonstrates guilty

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knowledge.’” Id. (quoting United States v. Ortega Reyna, 148 F.3d

540, 544 (5th Cir. 1998)). It is clear that drugs inside a hand

carried paper bag that Norman had complete control of and

believed to contain drugs or money do not qualify as “hidden” for

this purpose. Even if they are considered hidden, however, there

was ample additional evidence indicating knowledge on the part of

Norman.

Norman admitted that he had gone to the gas station to

provide protection, from which the jury could infer that Norman

knew an illicit deal was taking place. Furthermore, the

audiotape, coupled with Norman’s admitted actions and his

appearance at the McDonald’s, indicates that Scott told Norman to

“go get that stuff,” a wording that implies prior knowledge by

Norman of the deal and his role in it. The jury was also aware

of an earlier incident in which a police officer saw a plastic

bag thrown out of the passenger-side window of a car that Norman

was a passenger in, and the bag turned out to contain nine grams

of crack cocaine. This incident suggests that Norman had some

familiarity with drug sales and would likely know that he was

being asked to carry drugs in the September 25 sale.7 In

addition, this court has found participation in tasks vital to a

conspiracy where the tasks are undertaken within a narrow time

7

The jury was instructed to consider this earlier incident only for the

purposes of determining state of mind or intent necessary for the crime, or

whether the defendant acted out of accident or mistake.

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frame to be indicative of “knowledge of, and intentional

participation in, crimes in progress.” United States v. Pruneda-

Gonzalez, 953 F.2d 190, 197 (5th Cir. 1992). A rational jury

could easily discount Norman’s claim that he thought the bag

might contain money in view of this other evidence. There is

therefore sufficient evidence supporting the jury’s finding that

Norman was involved in the knowing or intentional possession of a

controlled substance.

C. Identification of Norman’s Voice

Norman argues that testimony by DEA agents identifying

Norman’s voice on the audio tape of the drug transaction (and

identification of his voice on a transcript of the tape) should

have been excluded. Rule 901(b)(5) of the Federal Rules of

Evidence indicates that a voice may be properly identified “by

opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.”8 The DEA

agents’ hour-long discussion with Norman in October 2002 was

8

Rule 901 of the Federal Rules of Evidence provides in relevant part:

“Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is

what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of

limitation, the following are examples of authentication or identification

conforming with the requirements of this rule:

. . . .

(5) Voice identification. Identification of a voice, whether

heard firsthand or through mechanical or electronic transmission or

recording, by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.

. . . .”

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clearly a circumstance connecting Norman’s voice with Norman, and

therefore is permissible under Rule 901(b)(5). The government

must additionally lay a foundation of reliability and accuracy

when introducing a sound recording, however. United States v.

Cuesta, 597 F.2d 903, 914 (5th Cir. 1979). Norman argues that

the voice identified as his on the tape is too short in duration

and too accompanied by background noise for a reliable

identification to be made, and that the agents’ identification

was actually based on statements of the confidential informant

and Scott, neither of whom testified. At trial, one of the two

agents identifying Norman’s voice testified that it would have

been very hard to identify Norman based on his discussions with

Norman and the tape-recorded voice alone, and indicated that

corroboration by the facts in Norman’s confession played a role

in his voice identification. The other agent identifying Norman,

on the other hand, testified that he could identify Norman solely

by comparing his voice heard during the interview to that on the

tape.

At a preliminary hearing on the voice identifications, the

district court concluded that any inaudible portions of the tape

were insufficient to make the tape as a whole inadmissible, and

that the government’s proffer included sufficient indicia of

reliability for the tape to be admissible. The court stated that

the question of whether there was enough of Norman’s voice on the

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tape to make an identification went to weight rather than

admissibility. This conclusion was not an abuse of discretion.

Not only are the requirements of Rule 901(b)(5) met, but there

was other evidence, such as the visual identification of Norman

and Scott’s voice on the tape calling him by name, supporting the

reliability of the identification. See Cuesta, 597 F.2d at 915;

United States v. Vento, 533 F.2d 838, 864 (3d Cir. 1976).

We conclude that evidence identifying a voice on the tape as

Norman’s was properly admitted.9

III. Scott’s Conviction

Scott argues that he should have been allowed to cross-

examine testifying DEA agents using a Justice Department manual

on eyewitness identification. In particular, Scott wanted to

establish that proper procedure according to the manual is to use

a photo lineup in soliciting an eyewitness identification, rather

than using a single photo of the suspect. Learned treatises are

exempt from the hearsay rule to the extent they are used by an

expert witness or in cross-examination of an expert witness, if

they are established as reliable authority. The treatise can be

established as reliable authority by expert testimony, by

admission of an expert being cross-examined, or by judicial

9

In any event, there is sufficient evidence supporting Norman’s

conviction, as discussed above, even if the identification of his voice had been

excluded. And, considering the record as a whole, we conclude there is no

reasonable possibility that the jury would have acquitted had the identification

of Norman’s voice on the tape been excluded.

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notice. FEDERAL RULES OF EVIDENCE 803(18).10 The treatise was not

established as a reliable authority because Norman did not offer

an expert in this area, the testifying agents did not recognize

the manual, and the court did not take judicial notice of its

reliability. Moreover, as stated by the district court, the

manual was not being used in cross-examination of expert

testimony. The agents’ identification testimony was merely the

testimony of lay witnesses. They simply described how they had

made the identification from a photograph of Scott. When asked

on cross-examination whether they believed that adequate, they

merely said they did. None of the testifying agents claimed any

special expertise in preferred methods of photo identification by

witnesses or the like.

Conclusion

For the foregoing reasons, both Norman’s and Scott’s

convictions are

AFFIRMED.

10

Federal Rules of Evidence 803 provides in relevant part:

“Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

. . . .

(18) Learned treatises. To the extent called to the attention of

an expert witness upon cross-examination or relied upon by the expert

witness in direct examination, statements contained in published

treatises, periodicals, or pamphlets on a subject of history, medicine,

or other science or art, established as a reliable authority by the

testimony or admission of the witness or by other expert testimony or by

judicial notice. If admitted, the statements may be read into evidence

but may not be received as exhibits.

. . . .”

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