1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50120

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES CLAYTON DUKES,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

April 16, 1998

Before KING, BARKSDALE and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant James Clayton Dukes (“Dukes”) appeals his

conviction after jury trial on a three count indictment for 1)

aiding and abetting distribution of cocaine base within one

thousand feet of a school (a violation of 21 U.S.C. §§ 841(a)(1) &

860), 2) possessing wit h intent to distribute cocaine base (a

violation of 21 U.S.C. § 841(a)(1)), and 3) conspiring to

distribute and possess with intent to distribute cocaine base

within one thousand feet of a school (a violation of 21 U.S.C. §§2

846 & 860). Dukes was sentenced to three concurrent 168 month

prison terms, supervised rele ase and $650 in monetary sanctions.

We affirm.

FACTS

In February 1994, undercover law enforcement authorities were

investigating the drug distribution activities of Robert Long.

Long was not cooperating, but was the target of the investigation.

Long accompanied an undercover agent to Camelot Apartments and

purchased some drugs. The undercover officers did not observe from

which apartment Long procured the drugs, but concluded that it was

apartment number 1107 (or perhaps one in that vicinity). Dukes

lease d apartment 1107 at that time. Long was later arrested and

agreed to cooperate with authorities. He identified Dukes as his

supplier. Agents set up two controlled buys between Long and

Dukes. In the first one, on September 22, 1994, a third party

brought the drugs to sell to Long, and Dukes kept a $50 cut out of

the transaction. Long had been fitted with a transmitting device

that allowed agents to listen to and record the transaction. On

the second attempt, on October 7, 1994, no drug sale was

consummated. After that sale fell through, there was a high speed

chase, du ring which Dukes threw a package of cocaine base out of

the passenger window of a car. His arrest followed, after which

Dukes made a statement that he knew there was crack in the car,

that the crack belonged to the driver, and that Dukes threw it out

on instructions from the driver.3 MOTION TO SUPPRESS

Dukes challenges the trial court’s de nial of his motion to

s uppress the tape recording of the controlled drug buy. We must

affirm a trial court’s ruling on a motion to suppress unless,

viewing the evidence in the light most favorable to the prevailing

party, we determine that it is clearly erroneous or influenced by

an incorrect view of the law. S ee United States v. Muniz-Melchor

,

894 F.2d 1430, 1433-1434 (5th Cir. 1990).

Dukes moved to suppress the tapes and transcripts of the

conversations picked up o ver the wire Long wore during the

September 22, 1994 controlled buy. He argued, i nter alia

, that

Long’s chronic abuse of cocaine had rendered him incompetent to

volunt arily consent to the monitoring of his conversations, and

that the ta pes were of such poor quality that they were almost

entirely unintelligible. The trial court initially announced that

it could not understand what was said on the recording, and would

not admit the recording into evidence. Later, the trial court held

a second hearing on the motion, took the question under advisement

and just prior to trial, denied the motion to suppress finding that

the recording was sufficiently intelligible and that it constituted

probative evidence. Further, the trial court found that Long gave

knowing and voluntary consent. The trial court rejected Dukes’s

allegation that Long was so addicted to drugs that he lacked

capacity to consent based on documents and testimony that indicated

that Long was drug free p rior to, during and after the September

22, 1994 buy.4

a. Consent

In order to give valid consent, the person consenting to the

recording of his conversations must be mentally compe tent to

understand the nature of his act. See United States v. Elrod

, 441

F.2d 353, 355 (5th Cir. 1971)(examining consent in the context of

a warrantless search). Further, the act of consent must be “the

consensual act of one who knew what he was doing and had a

reasonable appreciation of the nature and significance of his

actions.” I d. D ukes contends that the district court clearly

erred in denying Dukes the opportunity to prove Long’s incompetence

through a court ordered psychiatric eval uation and that the

Government failed to carry its burden of proving that the consent

was valid.

There is no precedent for allowing or requiring the district

court to order a third party witness to submit to a psychiatric

evaluation. United States v. Napier

, 451 F.2d 552 (5th Cir. 1971),

relied on by Dukes, concerns an examination of an informantwitness, but does not address the issue of whether the district

court had the legal authority to order such an examination.

Further, there is sufficient evidence in the record to support the

trial court’s finding that Long was competent to consent to the

recording. Dukes calls our attention to instances of Long’s lack

of recall under cross examination. These isolated instances, when

viewed in the context of the entire record , do not call the

district court’s finding of competency into question. We therefore

cannot say that the district cour t’s decision regarding Long’s5

competence was clearly erroneous or influenced by an incorrect view

of the law.

b. Reliability of recordings and transcript

The tape recordings of the wire transmissions during the

September 22, 1994 contro lled buy were transcribed by a company

under contract with the Drug Enforcement Admi nistration (“DEA”).

The transcriber noted that the tapes were flawed by “heavy

static/background noise throughout.” Further, at various places

the not ations “U.I.” [for unintelligible] and “voices overlap”

indicate that it was hard to understand the content of the tape

recorded conversations. “[P]oor quality and partial

unintelligibility do not render tapes inadmissible unless the

unin telligible portions are so substantial as to render the

recording as a whole untrustworthy.” United States v. Stone , 960

F.2d 426, 436 (5th Cir. 1992). The determination of

trustworthiness of a tape recording is left to the sound discretion

of the trial judge. Id.

On reviewing the record, we have determined that the district

court’s finding that the tape recording was sufficiently

intelligible to be probative was not clearly erroneous.

AMBIGUITY OF 21 U.S.C. § 841 AND THE SENTENCING GUIDELINES

The indictment charged Dukes with violating 21 U.S.C. § 841,

which defines separate offenses for conduct involving cocaine and

cocai n e base, prescribing more severe punishment for offenses

involving cocaine base. Dukes moved to dismiss the indictment

alleging that the two substances are the same, the statute is6

ambiguous and under the rule of lenity, he should be charged with

the less severe offense, citing Busic v. United States

, 446 U.S.

398, 406 (1980). The district court overruled the motion without

a hearing, holding that this issue had been resolved against Dukes

by other appellate courts.

In United States v. Flanagan

, 87 F.3d 121 (5th Cir. 1996),

this Court considered an argument similar to the one raised by

Dukes and rejected it. Flanagan pleaded guilty to a cocaine

distribution offense. At sentencing, he argued that he “should be

sentenced based on the penalty for powder cocaine, rather than the

penalty for crack cocaine.” Id. at 122. In support of that

position, he alleged that because the chemicals are

indistinguishable, the penalty prov isions for cocaine base and

powder cocaine are ambiguous. I d. at 124. This court in F lanagan

rejected that argument, citing previous unpublish ed opinions and

United States v. Thomas

, 932 F.2d 1085, 1090 & n.1 (5th Cir.

1991)(stating “when cocaine is changed into cocaine base, it

becomes a different chemical substance.”) Id. Dukes attempts to

distinguish his position from that reje cted in F lanagan arguing

that, unlike Flanagan, he did not plead guilty to the cocaine base

offense, and his challenge attacks § 841 rather than the sentencing

guidelines. Although we have never addressed the issue in the

context of an ambiguity challenge to § 841, Flanagan ’s rejection of

the ambiguity challenge in the cont ext of sentencing guidelines

controls the issue. We therefore hold that the distinction between

powder cocain e and cocaine base made for purposes of a § 8417

conviction is not flawed by ambiguity.

Dukes also contends that the district court erred in applying

the sentencing guidelines for “cocaine base” rather t han the

guidelines for “cocaine” because cocaine base and cocaine are

chemically the same substance. This argument is likewise

foreclosed by United States v. Flanagan

, 87 F.3d 121 (5th Cir.

1996).

SELECTIVE PROSECUTION

Dukes moved to dismiss the indictment based on his claim that

“selective” prosecution of African-Americans for crack cocaine (as

opposed to prosecutio n of Anglo-Americans for “powder” cocaine

offenses) is improper. The district court rejected his request

because he failed to establish a prima facie violation.

In order to prevail on a selective prosecutio n claim, Dukes

must show that other similarly-situated offenders were not

prosecuted, and that the government chose to prosecute him in a

particular manner merely because he is an African-America n. S ee

United States v. Cooks

, 52 F. 3d 101, 105 (5th Cir. 1995). Dukes

argues on appeal that he was prevented from satisfying this twopart test because the district court denied his request to hire an

expert. Again, Dukes’s argument, based on the premise that there

is no chemical difference between cocaine and cocaine base, is

foreclosed by United States v. Flanagan, 87 F.3d 121, 123-24 (5th

C ir. 1996). The inability to make even a colorable claim of

selective prosecution bars his related requests for discovery and

funds for an expert. See United States v. Cooks , 52 F.3d at 105.8 SUFFICIENCY OF THE EVIDENCE

In the face of Dukes’s challenges to the sufficiency of the

evidence, this Court must examine the evidence in the light most

favorable to the verdict and decide whether a rational trier of

fact could have found all the essential elements of the offenses

beyond a reasonable doubt. S ee United States v. Ayala , 887 F.2d

62, 67 (5th Cir. 1989).

a. Cocaine v. Cocaine base

Dukes contends that the evidence was insufficient to convict

him for drug offenses involving cocaine base (as opposed to powder

cocaine). Two government chemists testified that the substances

they tested were cocaine base. Other witnesses testified that the

substances were “crack” cocaine, as well. Dukes’s parsing of the

record to find instances where the evidence referred to “cocaine”

instead of “cocaine base” at best creates a fact question for the

jury. The evidence was sufficient to support the cocaine base

versus cocaine element of the guilty verdict.

b. Aiding and abetting

Dukes argues that the evidence was insufficient to prove that

he aided and abetted a pe rson other than the government’s

informant. He claims the evidence is not sufficient to support a

finding that he intended to help the other participants in the

subject drug deal s. In a related issue, Dukes contends that the

evidence supports only a finding that he intended to assist the

informant to receive the crack cocaine, not that he intended to

help someone else deliver it. The elements of aiding and abetting9

are: a person must have (1) associated with the criminal venture,

(2) participated in the ventu re, and (3) sought by his action to

make the ventu re succeed. S ee United States v. Stone

, 960 F.2d

426, 433 (5th Cir. 1992). Dukes’s defense at trial, as well as his

position on appeal, is that he intended to help Long purchase

drugs, that Long did not have the requisite m ens rea to commit a

crime because he was working as a government informant at the time

of the transaction, and that there is insufficient ev idence that

Dukes intended to help the unidentified male who was the source for

the drugs. However, the evidence showed that Long did not know the

drug source, and but for Dukes’s participation, that source would

not have sold the drug s to Long. The evidence is therefore

sufficient to support a guilty verdict on the issue of aiding and

abetting the drug source, rather than Long.

Next Dukes contends that “distribution” means to deliver, but

excludes “receipt” of drugs and that the evidence only supports a

conclusion that Dukes intended to help Long receive cocaine. This

argument fails as well because the evidence is suffic ient to

support a jury’s conclusion that Dukes aided and abetted the drug

source as well as Long.

c. Conspiracy

Count t hree of the indictment charged that from January 1,

1994 through October 7, 199 4 and within 1000 feet of a public

school, Dukes conspired with persons known and unknown to violate

drug laws. Evidence was presented of specific drug transactions

involving Duk es on February 11, 1994, September 22, 1994 and10

October 7, 1994, which is sufficient to support a conspiracy within

the time parameters set out in the indictment. Further, evidence

was presented that the September 22 and October 7 transactions

occurred at Dukes’s apartment, which was within 1000 feet of a

public school. Dukes’s insufficiency argument is based on the

premise that he did not conspire with anyone other than Long at his

apartment. However, evidence was sufficient for a rational jury to

conclude that Dukes conspired with his unidentified source of

supply on September 22 an d October 7. A person can be convicted

for conspiring with unknown persons, if the i ndictment charges

conspiracy with unknown persons and the evidence supports their

existence and their compl icity in the conspiracy. S ee United

States v. Price , 869 F.2d 801, 804 (5th Cir 1989).

We therefore find no merit to any of Dukes’s sufficiency

arguments.

JURY INSTRUCTIONS

A district court’s refusal to give a req uested jury

in struction is reviewed under the abuse of discretion standard.

S ee United States v. Sellers , 926 F.2d 410, 414 (5th Cir. 1991).

When an instruction is challenged on appeal, this court determines

whether “the court’s charge, as a whole, is a correct statement of

the law and whether it clearly instructs jurors as to the

principles of law applicable to the factual issues confronting

them.” United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990).

a. Aiding and abetting instruction

Dukes submitted to the district court a proposed jury11

instruction which included the following language:

The fact that the defendant may have done something

to help Robert Long acquire cocaine base does not mean he

helped another person distribute cocaine base. The

government must prove beyond a reasonable dou bt that

apa rt from any help or encouragement the defendant may

have given Robert Long, he intent ionally helped or

encouraged another person to distribute cocaine base.

Dukes also requested, and was denied, an instruction that the

jury consider only evidence of tr ansfer, and not evidence of

distribution because evidence of he lping a person r eceive a

controlled substance will not support a convict ion for aiding a

person to distribute that substance. S ee United States v. Harold

,

531 F.2d 704 (5th Cir. 1976). In order for a defendant to be

entitled to an instruction, “any evidence in support of a defensive

theory must be sufficient for a reasonable jury to rule in favor of

the defendant on that theory.” U nited States v. Stone

, 960 F.2d

4 26, 432 (5th Cir. 1992). In S tone, this Court held that a

defendant was not ent itled to a requested jury instruction where

his “theory” of defense suggested the nonexistence of one element

of the offense. I d. The Government argues that Dukes’s theory of

defense is that he did not a id the transfer of cocaine , which

theory Dukes’s counsel stressed in his final jury argument.

The refusal to give a requested jury instruction is reversible

error if the instruction (1) was substantially correct, (2) was not

substantially covered in the charge given to the jury, and (3)

concerned an important issue so that the failure to give it

seriously impaired the defendant’s ability to present a given

defense. S ee Stone

, 960 F.2d at 432. Dukes’s jury was instructed1 Dukes cites only one case to support his position

-- United

States v. Bradfield , 103 F.3d 1207 (5th Cir. 1997). That opinion

has been withdrawn and replaced with an opinion that specifically

declines to reach the paid informant issue. See United States v.

Bradfield , 113 F.3d 525 (5th Cir. 1997).

12 that the government had the burden of proving each element,

including “that the Defendant knowingly transferred or delivered a

controlled substance,” and that “distribute” is defined as “to

deliver or transfer possession of a controlled substance to another

person, with or without any financial interest in the transaction.”

We find that the instruction given substantially covered the law,

and failure to give Dukes’s requested instruction did not seriously

impair his ability to present his chosen defense.

b. Conspiracy instruction

The district court also denied Dukes’s requested jury

instruction emphasizing that he could not conspire with Long after

Long became a government informant. The trial court noted that the

evid ence established that persons other than Long and Dukes

participated in the conspiracy, including the unidentified seller

in the September 22, 1994 transaction and the source in the October

7, 1994 transaction. Dukes’s defense, that he did not conspire

with anyone, was substantially covered by the instructions on the

el ements of a conspiracy offense and could have been adequately

developed under the instructions given.

c. Weight of informant’s testimony 1

Dukes did not request a jury instruction regarding the fact

that Long was a paid inf ormant. Therefore, we employ the plain

error standard of review. S ee United States v. Lopez

, 923 F.2d 47,13

49 (5th Cir. 1991).

The Government paid Long $50 on one occasion and $150 on

another occasion. The trial court’s instruction, unchallenged by

Dukes, told the ju ry to consider Long’s relationship with the

Government and any other factor that could influence his testimony,

but did not advise the jury that Long had rec eived money for his

services. Dukes takes the position that it was plain error for the

trial court to fail to go furth er and instruct the jury to use

caution in evaluating the credibility of a paid informant.

The Government takes the position that such an instruction was

not necessary because the money paid to Long was reimbursement for

his expenses incurred as a result of his cooperation and not

pay ment for his services. Further, the instruction given was

adequate to caution the jury concerning Long’s possible bias.

The Fifth Circuit, sitting en banc in 1987, eliminated the

longstanding per se rule (and its myriad exceptions) that an

informant who was paid a contingency fee for the conviction of a

pretargeted individual was no t competent to testify. S ee United

States v. Cervantes-Pacheco

, 826 F.2d 310 (5th Cir. 1987). That

case imposed restrictions on the admissibility of such testimony,

including a requirement that the district court instruct the jury

specifically on the suspect credibility of a compensated witness.

See id. at 316.

There is no evidence in the record that would support the

conclusion that Long was compensated on a contingent basis.

However, even if Long was a compensated witness, this court need14

not correct forfeited e rrors that do not affect the fairness,

i ntegrity and public reputation of the judicial process. S ee

United States v. Olano , 507 U.S. 725, 732 (1993). The cautionary

instructions given by the district court concerning Long’s

credibility are adequate to protect the truth seeking function of

the jury. Therefore, even if the district court erred in failing

to instruct the jury concerning the Government’s payments to Long,

we elect not to correct such error, because it did not affect

Duke’s substantial rights.

DISCOVERY

Dukes argues that he was denied the opportunity to examine and

test the cocaine base. The district court overruled Dukes’s motion

for an order requiring the Government to produce the drugs for

inspection an d testing, holding that the record established that

the Government had fulfilled all of its discovery obligations to

Dukes. We review alleged discovery violations under the abuse of

discretion standard. S ee United States v. Bullock

, 551 F.2d 1377,

1384 (5th Cir. 1977). An error in administering the discovery

rules is not reversible absent a showing that the error was

prejudicial to the substantial rights of the defendant. Id.

In its order denying Dukes’s motion for new trial the trial

court stated:

[T]he Government unambiguously agreed to permit Dukes to

test the cocaine base subject only to his compliance with

Drug Enforcement Agency safekeeping procedures and

offered to discuss with his counsel “the mechanics of how

to do it.” There is no record that Dukes ever attempted

to comply with these relatively straightforward

procedures or that he otherwise contested their

applicability. Nor did he bring any issue in this regard15

to the Court’s attention during the following nine months

preceding trial, other than to make ge neralized, nonspecific requests for discovery. In these circumstances,

any prejudice Dukes suffered was of his own making.

The Government does not dispute Dukes’s right to inspect and

test the evidence pursuant to Fed. R. Crim. P. 16(a)(1)(C).

Rather, it contends that Dukes could have had the cocaine base

tested had he complied with the DEA procedures for doing so. The

record contains letters from the prosecutor to Dukes’s counsel

dated November 20, 1995 and January 31, 1996 advising him of the

DEA’s procedural requirements for having a chemist of defendant’s

choice independently test the controlled substa nce. There is no

indication in the record that Dukes made any attempt to comply with

the stated procedures. Therefore, the district court did not abuse

its discretion regarding Dukes’s right to inspect and test the

cocaine base. Further, Dukes has not shown that the denial

prejudiced his defense.

CONCLUSION

For the foregoing reasons, we affirm Dukes’s convictions and

sentences.

AFFIRMED.