P U B L I S H

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40538

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE LEE COOKS,

Defendant-Appellant.

CONSOLIDATED WITH

_______________________

No. 94-40685

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ARTIS CLEMMONS,

Defendant-Appellee.

Appeals from the United States District Court

for the Western District of Louisiana

(April 27, 1995)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Complaining of an improper limitation of the cross-examination1 21 U.S.C. §§ 841(a)(1), 846.

2 21 U.S.C. § 841(a)(1).

2 of a government witness, Eddie Lee Cooks appeals the denial of a

new trial following his convictions of c onspiracy to distribute

over 50 grams of cocaine base 1 and three substantive counts. 2 The

codefendant, Artis Clemmons, was convicted of the same conspiracy

and one substantive count but was granted a new trial for the cited

challenge and the government appeals. Finding neither error nor

abuse of discretion, we affirm.

Background

In January 1992, Clay Murray was arrested in Texas for state

drug offenses arising out of his possession of over 80 grams of

cocaine. Desirous of lenient treatment on these state charges and

on any possible federal charges, he agreed to cooperate with state

and fe deral law enforcement agencies in their investigations of

illegal drug activities in California and in his native Louisiana,

particularly in the Monroe area.

Upon being informed that Cooks, a longtime acquaintance, was

under investigation, Murray contacted him and began negotiations to

buy quantities of cocaine bas e. On January 15, 1992, Murray was

given money and a device to make an audio record of a purchase of

approximately two ounces of "crack" from Cooks. Murray immediately

delivered the audio tape and drugs to the authorities and continued

to assist in their investigation of Cooks.

A few days later Murray and Kendrick Van Buren, an undercover

officer, went to Cooks' business place where Murray, out of the3

pre sence of Van Buren but recorded on audiotape, purchased from

Cooks 1.5 ounces of crack. Two weeks later, in the presence of

Van Buren but not "on wire," Murray and Cooks agreed to the sale of

two additional ounces. On February 14, 1992, a "wired" Van Buren

and Murray met with Cooks and Clemmons. Murray and Clemmons

repaired to a bathroom and Murray returned with crack. The

Clemmons/Murray meeting was neither recorded nor personally viewed

by Van Buren.

Several months later Cooks and Clemmons were indicted, as

aforestated. The government sought i n limine to limit

cross-examination of Murray regar ding his prior arrests and drug

use. The court ultimately ruled that Murray could be

cross-examined about the circumstances and motivations surrounding

his cooperati on with the authorities as related to the Texas

charges but the court declined to allow questioning on a subsequent

Louisiana arrest for purs e-snatching or on the stiff penalties

Murray faced if convicted on either the Texas or Louisiana charges.

Following conviction by a jury on all counts Cooks and

Clemmons both sought a new trial, contending that the court's

limitation of their cross-examination of Murray about his prior

problems with the law and the potential effect that record might

have on his testimony impaired their right to a fair trial. The

district court agreed, noting that a full airing of Murray's reason

for cooperating with the authorities would have disclosed his

motivation for self-preservation which, in turn, may have furnished

a bias for his testimony. Having so ruled, the court then found3 United States v. Dula

, 989 F.2d 772 (5th Cir.), cert

. denied

,

_____ U.S. _____, 114 S.Ct. 172 (1993).

4 United States v. Logan , 861 F.2d 859 (5th Cir. 1988).

5 See Davis v. Alaska , 415 U.S. 308 (1974); U nited States v.

Tansley , 986 F.2d 880 (5th Cir. 1993).

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

4 that the extensive evidence dehors Murray's testimony about Cooks'

involvement made the restriction of Murray's cross-examination

harmless as to Cooks. Cooks' motion for new trial was denied and

the mandatory life sentence was impos ed. Clemmons, however, was

granted a new trial. Cooks and the government both timely appealed

and we consolidated the cases for disposition.

Analysis

Cooks maintains that there was insu fficient evidence, aside

from Murray's testimony, to secure his conviction and, as a

consequence, he also should have received a new trial. The

government co unters that the district court properly limited

cross-examination of Murray and that neither Cooks nor Clemmons

should receive a new trial.

The ruling on a new trial motion is reviewed for abu se of

discretion; 3 new trials are granted only upon dem onstration of

adverse effects on substantial rights of a defendant. 4 In the case

at bar, the right involved was Cooks' an d Clemmons'

well-establishe d 5 sixth amendment right to confront Murray to

elicit any relevant information bearing on his bias, prejudice, or

motive for testifying. 6

Although a district court possesses "wide latitude

. . . to7 Tansley , 986 F.2d at 886.

8 United States v. Garcia , 13 F.3d 1464, 1468 (11th Cir.),

cert

. denied , _____ U.S. _____, 114 S.Ct. 2723 (1994).

9 Davis , 415 U.S. at 316.

10 United States v. Onori , 535 F.2d 938, 945 (5th Cir. 1976).

11 See Gordon v. United States , 344 U.S. 414 (1953).

12 Tansley , 986 F.2d at 886.

5 impose reasonable limits on cross examination," 7 this "discretion

is limited, however, by the requirements of the Sixth Amendment." 8

Cross-examinat ion to expose a witness' motive for testifying is

"al ways relevant as discrediting the witness and affecting the

weight of his testimony," 9 and "is especially important with

respect to

. . . witnesses who may have substantial reason to

cooperate with th e government." 1 0 The importance of and need to

safeguard this right is enhanced when, as here, the witness is

crucial to the prosecution. 1 1 The constitutional right is not

violated, however, if "the jury ha[s] sufficient information to

appraise the bias and motives of the witness." 12

In the case at bar, although the jury was informed of Murray's

status as a paid career criminal informan t, and of his hopes for

leniency on the Texas charges in exchange for his assistance in

this investigation, the court's ruling prevented the airing of

other important information pertinent to Murray's reliability,

namely his effort to avoid the consequences of his own crimes,

which, given their seriousness and his recidivism, might have been1 3 If convicted of the Texas drug charges, Murray faced a

possible 99-yea r sentence. Tex. Health & Safety Code Ann.

§ 481.112(c) and (d). If convicted on the Louisiana charge, as

this was Murray's third offense he faced a possible 40-year

sentence. La. R.S. 14:65.1; 15:529.1.

14 United States v. Abel , 469 U.S. 45, 52 (1984).

1 5 United States v. Restivo

, 8 F.3d 274 (5th Cir. 1993), cert

. denied , _____ U.S. _____, 115 S.Ct. 54 (1994).

16 Van Arsdall

.

6 very severe in this case. 13 Given the obvious pressure on Murray

that his cooperation be of value to the prosecution, there was

considerable incentive for him to "slant, unconsciously or

otherwise, his testimony in favor of or against a party." 1 4 The

jury should have been informed of all of the pertinent facts

surrounding this motivation, and th e district court correctly

r ecognized that its earlier ruling limiting this line of

questioning was error.

It is axiomatic, however, that such an er ror is actionable

only if clearly prejudicial. 1 5 The presence of harmful error in

this context is determined based on a reviewing court's examination

of both the overall strength of the prosecution's case and the

circumstances surrounding the testi mony, such as the extent of

allowed cross-examination, the importance of the testimony to the

government's case, and its corroboration or contradic tion at

trial. 16

Although Murray's direct testimon y was important to the

government's case against Coo ks, there was an abundance of other

evidence to support the verdict. The government introduced the1 7 United States v. Arroyo

, 805 F.2d 589, 599 (5th Cir. 1986).

7 testimony of several FBI agents and state police officers who saw

Murray enter Cooks' home and business and emerge with

n ewly-acquired drugs. Officer Van Buren testified that he heard

Cooks plan drug sales to Murray. The government introduced the

audio recordings of Murray and Cooks that clearly supported

Murray's testimony that he had purchased the drugs from Cooks, and

that Cooks' main source of revenue was the distribution of illegal

drugs. Thus, any error in limiting Cooks' cross-examination of

Murray was harmless, and the district court did not abuse its

discretion in denying his motion for new trial.

The record also demonstrates that the district court was

correct in noting that absent Murray's testimony, there was no

direct evidence linking Clemmons to any o f the drug transactions

alleged in the indictment. The recordings made of Clemmons fail to

mak e even an inferential reference to the business of drug

distribution, and no state or federal officer actually saw Clemmons

engage in any drug transaction. Given the absence of any direct

evidence beyond Murray's testimony, and our "extreme[] reluctan[ce]

to second guess, on the basis of a paper record, the decision of a

trial judge that insufficient cumulative evidence exists to cure a

trial error," 17 we find no ab use of discretion in the district

court 's efforts to correct, by a new trial, its error which it

found prejudicial.

Cooks, an African-American , next claims that unlike white

defendants, he was selectively prosecuted in federal court instead1 8 Wayte v. United States

, 470 U.S . 598 (1985); U nited States

v. Johnson , 577 F.2d 1304 (5th Cir. 1978).

1 9 United States v. Ramirez

, 765 F.2d 438 (5th Cir. 1985), cert

. denied , 474 U.S. 1063 (1986).

2 0 United States v. Sparks , 2 F.3d 574 (5th Cir. 1993), c ert

. denied , _____ U.S. _____, 114 S.Ct. 899 (1994).

8 of in state court because of a de sire to inflict the stiffer

federal penalty for distribution of cocaine base, and that the

district court erred in denying his motion for dismissal on this

basis. Cooks also contends that the court should have granted his

motions for discovery of government records relating to similar

prosecutions, for funds to secure a criminologist to assist in

proving the above claim, and for an evidentiary hearing.

Althoug h the government has great discretion in the

prosecu torial decision, the exercise of this discretion cannot

violate the Constitution's equal protection guarantee. 18 In order

to prevail on his selective prosecution claim, Cooks must show that

other similarly situated offenders were not prosecuted in federal

court 19 and that he was prosecuted there because he was an

African-American. 20

In support of his claim Cooks invites our attention to a

report noting that, nationally, minority arrests for drug offenses

have increased tenfold in recent years. He also notes the

existence of statistics reflecting that the overwhelming majority

of those arrested for possession of crack are African-American. We

agree with the district court that this data fails to satisfy the

first pron g of the selective prosecution inquiry; it does not21 Sparks , 2 F.3d at 580.

2 2 See United States v. Hintzman , 806 F.2d 840 (8th Cir. 1986)

(no abuse of discretion by denial of discovery in absence of prima

facie case of selective prosecution).

2 3 See United States v. Williams

, 998 F.2d 258 (5th Cir. 1993),

cert

. denied , _____ U.S. _____, 114 S.Ct. 940 (1994) (no abuse of

discretion in refusal to fund expert pursuant to 18 U.S.C. § 3006A

in absence of some factual basis in support of claim).

2 4 See United States v. Jennings

, 724 F.2d 436 (5th Cir.), cert

. denied

, 467 U.S. 1227 (1984) (no abuse of discretion in denying

evidentiary hearing on selective prosecution in absen ce of p rima

facie case of selective prosecution).

25 See United States v. Watson

, 953 F.2d 895 (5th Cir.), cert

. denied , _____ U.S. _____, 112 S.Ct. 1989 (1992); United States v.

Galloway , 951 F.2d 64 (5th Cir. 1992).

9 establish that white defendants c ommitting this offense were

prosecuted in state rather than federal court. Further, Cooks

offers no evidence to indicate any discriminatory animus present in

this prosecution; consequently, Cooks fails to carr y the "heavy

burden" 21 of establishing invidious selective prosecution. Cooks'

inability to make even a colorable claim of selective prosecution

accordingly bars his related requests for discovery, 22 funds for a

criminologist, 23 and an evidentiary hearing. 24

Cooks next claims that as the majority of prosecutions for

possession of cocaine base involve African-Americans, the stiffer

penalties for offenses involving cocaine base violate the equal

protection provision. We need not tarry long here; we have ruled

to the contrary. 25

Next, Cooks argues that his s e ntence is constitutionally

excessive and thereby violative of the eighth amendment bar to

cruel and unusual punishment. Given the absence of any eighth26 S ee Harmelin v. Michigan

, 501 U.S. 957 (1991). S ee al s o

United States v. Willis , 956 F.2d 248 (11th Cir. 1992).

2 7 United States v. Goodwin

, 457 U.S. 368 (1982); Bordenkircher

v. Hayes , 434 U.S. 357 (1978).

2 8 See United States v. Molina-Iguado

, 894 F.2d 1452 (5th Cir.),

cert

. denied , 498 U.S. 831 (1990).

10 amendment proportionality requirement, 26 Cooks' reliance thereon is

m isplacaed. We do not question the wisdom of Congress in its

determination that the protection of society warrants the imposing

of a sentence of life imprisonment on career narcotics distribution

offenders.

Finally, Cooks posits that the stiff sentence he received as

a career narcotics offender stems from a vindictive exercise of the

government's discretionary authority to seek a sentence

enhancement. Following Cooks' withdrawal of a previous guilty plea

that would have waived any enhanc ement the government, under

21 U.S.C. §§ 841(b)(1)(A) and 851, gave notice of two prior

narcotics convictions which subjected Cooks to the mandatory term

of life imprisonment. As there is no presumption of prosecutorial

vindictiveness attendant in the exercise of admittedly

discretionary action s, 27 Cooks' failure to offer any tangible

evidence in support of his vindictiveness claim dooms it to

failure. 28

Cooks' remaining claims are without merit. The rulings of the

district court are AFFIRMED in all respects as relates to both

Cooks and Clemmons.