                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                          F I L E D
                          REVISED AUGUST 11, 2004
                                                                            July 26, 2004
                   IN THE UNITED STATES COURT OF APPEALS
                                                                       Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                               Clerk



                                   No. 03-30481



     UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,


          versus


     DONALD CRAIG SCROGGINS,


                                                   Defendant-Appellant.



             Appeal from the United States District Court
                 for the Western District of Louisiana



Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

     Donald Craig Scroggins appeals his conviction and sentence for

conspiracy    to    possess   with    the    intent   to   distribute       cocaine

hydrochloride      and   cocaine    base    in   violation   of   21    U.S.C.     §§

841(a)(1) and 846.        Scroggins was sentenced to life imprisonment

and five years of supervised release.                 We vacate Scroggins’s

sentence and remand to the district court for further proceedings

as explained below.
                   Facts and Proceedings Below

     Earl   Buchanan,   a   man   informally   adopted    by   defendant

Scroggins, was arrested in March 2001 for drug trafficking.        A few

days after Buchanan’s arrest, Scroggins told William Green, a

Special Agent with the DEA, that he wanted know how he could help

in order to benefit Buchanan.     Green testified at trial that over

the next few days, Scroggins met with Green multiple times and

discussed his previous drug trafficking experience, claiming that

he was doing this to assist Buchanan.     During this time, Scroggins

was already under investigation.       Scroggins offered to set up a

controlled buy with David Sosa, with whom Scroggins claimed he had

been drug dealing since late 1999 and early 2000.        Green testified

that Scroggins told him that he had purchased one to two kilograms

of cocaine from Sosa every two weeks over a period of a few months.

Scroggins later told Green that he had set up a ten kilogram

cocaine and 200 pound marihuana deal with Sosa thirty days before

even speaking with Green and that this was going to be his last

deal and that it was going to “set his retirement.”            Although

Scroggins offered and supposedly attempted to set up the deal with

Sosa, he was unable to do so.          In April 2002, Scroggins was

arrested at his home, where officers seized drug paraphernalia.

     Scroggins, along with John Calvin Bryant, was subsequently

charged in a superseding indictment. Count 1 charged Scroggins and

Bryant with conspiring, with each other and with other unnamed



                                   2
known and unknown persons, from about October 1998 through about

March 2001, to possess with the intent to distribute five kilograms

or more of cocaine hydrochloride (cocaine powder) and fifty grams

or more of cocaine base (crack cocaine) in violation of 21 U.S.C.

§§ 841(a)(1) and 846.                 Count 2 charged Scroggins (alone) with

distribution and aiding and abetting the distribution of cocaine

powder on or about November 15, 2002, in violation of 21 U.S.C. §

841(a)(1).1           At trial, one of the key witnesses against Scroggins

was Buchanan.2          Buchanan testified that he had been involved in

drug trafficking with and for Scroggins from 1998 until Buchanan

was arrested in March 2001.                    Buchanan testified that Scroggins

“financially supplied” the drugs, Buchanan sold the drugs for

Scroggins, and they trafficked in both powder and crack cocaine.

Buchanan’s testimony included amounts of cocaine sufficient for the

jury to find that Scroggins had been involved in a conspiracy

involving at least five kilograms of cocaine powder and at least

fifty grams of crack cocaine.

       The jury found Scroggins guilty of count 1 and not guilty of



       1
         The remaining two counts of the superceding indicment are immaterial to this appeal.
Count 3, which was dismissed on the government’s motion prior to trial, charged Scroggins
(alone) with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count
4 charged Bryant (alone) with having been convicted of a felony drug offense in 1983 thus
rendering him subject, in respect to Count 1, to enhanced penalties under sections 841 and 851.

       2
          By the time of the trial, Buchanan had pleaded guilty to possession with intent to
distribute fifty grams or more of crack cocaine and been sentenced to nearly twenty-four years
imprisonment.

                                                3
count 2 and acquitted Bryant. Scroggins then timely filed a motion

for new trial, focusing on two witnesses—Freddie Young and James

Thomas, confidential informants for the government—who, although

subpoenaed by Scroggins, did not show up at trial to testify

allegedly because of government interference.     At the new trial

hearing, these witnesses gave testimony indicating that each had

received a telephone call from the government that intimidated them

from testifying at trial.   They also gave substantive testimony,

which essentially would have served to impeach Buchanan and add

evidence indicating Scroggins was not a drug dealer. Following the

hearing, the district court denied the motion.       Scroggins was

subsequently sentenced to life imprisonment and five years of

supervised release and was given a $100 special assessment.

                            Discussion

     Scroggins raises several issues on appeal.    We address each

issue in turn.

I.   Inability to Call Two Witnesses at Trial

     Scroggins first argues that the fact that two witnesses whom

he had subpoenaed, Freddie Young and James Thomas, did not appear

to testify at trial constitutes reversible error for several

reasons.   Scroggins asserts that such errors include: 1) the

district court’s denial of his motion for new trial based on either

governmental interference with his witnesses or the “interest of

justice,” 2) the failure of the district court to issue bench


                                4
warrants compelling             the    two     witnesses       to    appear,      and    3)    the

ineffectiveness           of   his     trial     counsel       in    failing       to    seek     a

continuance following the nonappearance of the two witnesses.

       A.      Motion for New Trial

       Following trial, Scroggins moved for a new trial pursuant to

Fed. R. Crim P. 33, asserting that the government intimidated two

material witnesses from testifying.                        Scroggins asserted in the

motion that the “interest of justice” required that he be granted

a new trial.           The district court treated Scroggins’s motion as

being       based    on     newly      discovered        evidence        and     governmental

interference         with      witnesses,        even     though       Scroggins        had    not

expressly based his motion on newly discovered evidence.3                                      The

district court then denied the motion, finding that there was no

credible       evidence        that     the     government          prevented       either      of

Scroggins’s witnesses from testifying at trial.

       On appeal, Scroggins argues that the district court’s finding

that the       government        did    not     interfere       with     his    witnesses       is



       3
           In its memorandum ruling denying the motion, the district court first reviewed the
criteria for a motion for new trial based on newly discovered evidence. The district court then
declared that “Scroggins has failed to meet his burden of proof as to the first hurdle: Did the
government have anything to do with Young and/or Thomas’ failure to appear at trial?” While
this “first hurdle” is appropriate for the analysis of a governmental interference with witnesses
claim, see United States v. Thompson, 130 F.3d 676, 686 (5th Cir. 1997), it is not clear why the
district court treated Scroggins’s motion as based on newly discovered evidence or why it treated
governmental interference as the “first hurdle” for a newly discovered evidence claim, particularly
when the criteria for such a motion do not require a finding of governmental interference for the
motion to succeed. See United States v. Villareal, 324 F.3d 319, 325 (5th Cir. 2003)(listing the
criteria for new trial motion based on newly discovered evidence).

                                                 5
erroneous.      Scroggins further contends that even if the district

court was correct in finding that the government did not interfere

with the witnesses, his motion still should have been granted based

on the interest of justice.        Regarding the alleged government

interference with witnesses, we disagree with Scroggins and hold

that the district court’s finding of no interference is not clearly

erroneous. Nevertheless, we agree with Scroggins that the district

court should have analyzed the motion as being based on the

interest of justice and that in appropriate circumstances the

district court does not always need to find a specific legal error

in order to grant a motion for new trial made in the interest of

justice.     We therefore remand the case to the district court to

analyze Scroggins’s new trial motion in the interest of justice.

           1.     Standard of Review

     We review the denial of a motion for new trial for abuse of

discretion.     United States v. Villarreal, 324 F.3d 319, 325 (5th

Cir. 2003).



           2.     Rule 33 Motion for New Trial

     The district court “may . . . grant a new trial if the

interest of justice so requires.”      Rule 33(a).   A motion for new

trial “is addressed to the discretion of the court, which should be

exercised with caution, and the power to grant a new trial . . .

should be invoked only in exceptional cases . . . .”    United States


                                   6
v. Robertson, 110 F.3d 1113, 1120 n.11                 (5th Cir. 1997).        “Where a

court finds that a miscarriage of justice may have occurred at

trial, . . . this is classified as such an ‘exceptional case’ as to

warrant granting a new trial in the interests of justice.”                       Id.    A

Rule 33 motion “grounded on any reason other than newly discovered

evidence must be filed within 7 days after the verdict . . . or

within such further time as the court sets during the 7-day

period.”    Rule 33(b)(2).

            3.   Government Interference with Scroggins’s Witnesses

      Scroggins asserts that the district court’s finding that he

had not established governmental interference with the appearance

of his witnesses, Young and Thomas, is clearly erroneous, and that,

since the district court found their testimony material, this court

should itself order a new trial.                Having reviewed the record, we

hold that the district court’s finding is not clearly erroneous.

                 a.     Governmental Interference

      The Sixth Amendment guarantees a defendant “the right to

present    witnesses    to    establish         his    defense      without    fear    of

retaliation against the witness by the government.”                    United States

v.   Bieganowski,     313    F.3d   264,       291    (5th   Cir.    2002)    (internal

quotations and citations omitted).               Further, “the Fifth Amendment

protects the defendant from improper governmental interference with

his defense.”       Id. “To make a showing that the government has

infringed on [these] right[s], the defendant must show that the


                                           7
government’s conduct interfered substantially with a witness’s free

and unhampered choice to testify.”     United States v. Thompson, 130

F.3d 676, 686 (5th Cir. 1997) (internal quotations and citations

omitted).    As the movant, Scroggins bore the burden of proving, by

a preponderance of the evidence, that the government substantially

interfered with his witnesses and, therefore, that a new trial is

justified.    See Thompson, 130 F.3d at 687; cf. United States v.

Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997) (new trial on juror

disqualification).

                 b.   Standard    of     Review    and   Credibility
                      Determinations

     Even though we review the denial of a motion for new trial for

abuse of discretion, Villarreal, 324 F.3d at 325, “[b]ecause the

existence of substantial interference is a factual question, we may

reverse the trial court’s decision [that there was no interference]

only if it is clearly erroneous.”      Thompson, 130 F.3d at 686–87

(internal quotation and citations omitted).        In considering a

motion for new trial, “[t]he trial judge may weigh the evidence and

may assess the credibility of the witnesses.”     Robertson, 110 F.3d

at 1117.

                 c.   Scroggins’s Witnesses

     Scroggins argues that Young and Thomas did not appear to

testify at trial because of governmental interference.     Scroggins

asserts that these witnesses would have given exculpatory testimony



                                  8
and would have impeached Buchanan, a key government witness.

Nevertheless, even though it had “already determined . . . that the

testimony Young and Thomas were to provide [was] material,” the

district       court      found      that     Scroggins         failed      to    prove      by    a

preponderance of the evidence that the government had interfered

with the ability of these witnesses to testify at trial4 and,

therefore, denied the motion for new trial.                         We conclude that this

finding is not clearly erroneous.

                               (1)Freddie Young

       At the hearing on the new trial motion, Young testified

concerning actions by Agent Lee J. Scott, a Shreveport police

officer       working       with      the     DEA,      that      could      potentially          be

governmental interference with a witness.                        Young testified that on

Tuesday, the day before he was to testify at trial, Scott called

him.       Scroggins asserts that Scott made three statements that kept

Young from         testifying:        1)    because       his    subpoena        was   from     the

defense, Young did not need to show up to testify; 2) if Young did

show up to testify, he would be arrested; and 3) if Young testified

in court, he would be prosecuted for perjury.5

       4
         Although there is testimony in the new trial hearing and other evidence that suggest
others reasons why Young and Thomas did not show up, the district court did not expressly refer
to any of that evidence.
       5
          For some reason unexplained by either party, Scott did not testify at the new trial
hearing. Scroggins appears to imply that because Scott did not testify, he could not have rebutted
Young’s testimony. However, following the new trial hearing, the government filed an affidavit
from Scott with its brief in support of its response to Scroggins’s new trial motion. In his
affidavit, Scott stated that he told Young that “if he got a Federal subpoena it would be in his best

                                                 9
        Young      testified        twice      during      the     new     trial      hearing:        on

December 19, 2002, and on January 23, 2003.6                                     Throughout his

testimony, the content of what Young stated varied significantly.

While at times his testimony supported a finding of governmental

interference, at other times it clearly did not.

                                        (a)     Source of the Subpoena

        Young’s first discussion of the Scott phone call included no

mention of the “who issued the subpoena” discussion.                                  Further, the

first time Young was asked about Scott’s discussion of who issued

the subpoena yielded no clear evidence that Scott suggested to


interest to go to court” and that he never threatened or told Young not to go to court. The
affidavit did not make any mention of the “perjury” or the “arrest” warnings. Scroggins did not
respond to this affidavit, and the district court did not refer to it in its ruling denying the motion.
        6
          On the first day of the hearing, Thomas did not comply with his subpoena and, again, did
not appear. Because of Thomas’s continued unwillingness to appear, Scroggins was ready to give
up on trying to have him testify and was prepared to conclude the presentation of evidence.
         As part of its evidence, the government then played a recorded phone call between
Scroggins and Bryant, Scroggins’s codefendant. The content of their conversation supposedly
dealt with Scroggins and Bryant discussing paying Young. The quality of the recording was poor
enough that the district court stopped the proceeding and asked the government to make a
transcription of the tape. The district court planned to resume the hearing on the following day.
Scroggins then decided that if the hearing was to be delayed to make a transcript, he would
request a bench warrant for Thomas, which the district court then issued.
         The following day, the district court decided to postpone the remainder of the hearing
until January 23, 2003. When the hearing continued, Scroggins requested that, if the government
decided to play the taped call between Scroggins and Bryant, the district court allow Young to be
present and to respond to the tape in rebuttal. The government did play the tape, and Young was
allowed to listen to the tape and to again testify.
         We note that we have listened to the tape of this telephone conversation, but we have not
read the corresponding transcript. Based on the poor quality of the recording and the unclear
speech of Scroggins and Bryant, it is very difficult to understand. Although a transcript was
prepared for the new trial hearing, and the government refers to the transcript in its supplemental
brief, the transcript was not included in the record (the exhibit list for the new trial hearing lists
the tape of the phone conversation, but not the transcript of it).

                                                   10
Young that he did not need to show up at court if the subpoena was

from the defense:

       “[Scroggins’s Counsel]: Did Lee J. Scott ever tell you
       anything about whether or not you got subpoenas from the
       defense or the prosecutor and what you had to do about
       them?
       [Young]: He just asked me when I said I got subpoenaed by
       the defense, well, he said—
       [Scroggins’s Counsel]: What did he say after that?
       [Young]: Well, he just told me, he say, ‘Well, you ain’t
       get subpoenaed by Liddell [Smith7].’
       [Scroggins’s Counsel]: By Liddell?
       [Young]: They said, ‘You ain’t get subpoenaed by
       Liddell.’ And I said, ‘I got subpoenaed by defense.’
       That was it.
       [Scroggins’s Counsel]: Did he tell you that if you got
       subpoenaed by the defense, you didn’t have to come?
       [Young]: No.   He just told me this—he said, ‘You got
       subpoenaed by the defense or Liddell?’      I said, ‘The
       defense.’ He said—he just pretty much said, ‘Well, you
       ain’t get subpoenaed by Liddell.’ He kept saying, ‘Well,
       Liddell didn’t do it.’
       THE COURT: Wait. You’re going to have to slow down, sir.
       I’m having difficulty following.
       [Young]: He said, ‘Liddell did not subpoena you.’ That’s
       what he said.
       [Scroggins’s Counsel]: So he said, ‘So, if you didn’t get
       subpoenaed by Liddell . . . ,’ what?
       [Young]: He just left it blank.” (emphasis added).

This exchange provides no compelling evidence that Scott led Young

to believe—intentionally or unintentionally—that he did not need to

respond to a defense subpoena.8


       7
           Assistant U.S. Attorney in the case.
       8
          At oral argument, the government suggested that the “who issued the subpoena”
discussion was centered around the issue of whether the government had reneged on its promise
to keep Young, as a confidential informant, out of court. While the new trial hearing does not
establish that that is the reason why Scott and Young discussed who issued the subpoena, just
prior to the exchange quoted in the accompanying text, Young testified that the government did
not want him to “never get on no stand” and that the reason for this was to protect him and keep

                                                  11
       It was not until his January testimony that Young gave any

meaningful support to the allegation that Scott told him that he

did not have to show up if the defense had issued the subpoena.

This time, in response to an unrelated question, Young testified

that Scott had told him that because the subpoena was from the

defense, he did not have to show up at court; however, this portion

of Young’s testimony is not a model of clarity or directness and is

markedly different from Young’s first testimony about the “who

issued the subpoena” discussion. While during his second testimony

(a month after his first testimony and not contemplated at the time

Young concluded his first testimony) Young claimed that Scott told

him that “[y]ou ain’t got to come . . . because we ain’t [issuing

the subpoena],” he originally testified that Scott simply said that

the government “did not subpoena you” and said nothing more.                           The

differences        between       the     two    versions    and    the     lack   of    a

straightforward         and      clear    answer    by   Young    during   his    second

testimony cast doubt over his second version.

                                    (b)    Arrest Warning

       The essence of Scroggins’s argument concerning the “arrest

warning” is that Scott’s phone call was a “veiled threat” that if

Young showed up to testify, he would be arrested because of an

outstanding warrant with his picture on it waiting for him at the

federal courthouse door.               In this case, there actually was such a


his name out of the courtroom.

                                               12
warrant for Young at the courthouse door.9

       Young’s testimony is clear that he learned about the specific

warrant on Wednesday morning, the day after Scott’s call and the

day Young was to testify, from Otis Litton, an employee of the

Caddo       Parish    Sheriff’s        Department,         someone       with     no    apparent

connection to Scroggins’s case whatsoever,10 and not from Scott.11

       Even though Young did not learn about the specific warrant

from Scott, he testified on cross examination that Scott stated

that he would be arrested if he showed up to testify.12                                 However,


       9
         This warrant for Young’s arrest was apparently recalled two days after the end of
Scroggins’s trial. The warrant was for failure to pay child support, but Young testified that he
had never been given any notice of anything about the specific child before his juvenile court date.
 When he showed up at juvenile court on Friday (two days after trial) pursuant to the warrant, the
judge recalled the warrant. While this seems suspicious under these circumstances, there was no
testimony at the new trial hearing to support a claim that the warrant was fabricated to keep
Young from testifying for Scroggins.
       10
          Although Litton knew that Young was to go to the federal courthouse on the day in
question, there was no testimony as to how Litton knew this. Young had no idea how Litton
knew, and apparently did not ask Litton how he knew, and Litton did not tell Young how he
knew.
       11
         Young further testified on cross-examination that the existence of the warrant was clear
to him on Wednesday, “the day the sheriff came.”
       12
         Young testified as follows:
       “[Gov’t]: Was that[, when Otis Litton told you about the warrant,] the first time
       you learned there was an outstanding warrant for your arrest?
       [Young]: That’s—the day before, I told you, Lee Scott, I talked to Agent Lee
       Scott, and he was asking me questions. Then he told me, he say: ‘You got no
       warrant? You sure you got no warrant for your arrest?’ I said: ‘No. For what.’ I
       said, ‘It’s gonna be something like a city court or something.’ He said, ‘ You
       sure?’ He said, ‘If you go on the federal property, you will be arrested at the
       door.’
       THE COURT: Wait. That’s slightly different than what you said last time. Here’s
       what I recall you saying last time: That you talked to the agent—

                                                13
[Young]: Yes.
THE COURT: —and he asked you whether you had a warrant outstanding for
you, and you said no. And he said, ‘Are you sure?’
[Young]: Yes.
THE COURT: And then who said what?
[Young]: He said—after then, he said, ‘are you sure,’ I said—I said, ‘Yeah, I’m
sure.’ And he said, ‘Well, if you come on—you come on that federal property,
they gonna arrest you.’
THE COURT: Well, did you ask him, ‘Arrest me for what?’
[Young]: I asked him for what and he said, ‘You sure you got no warrant?’ He
kept wanting to say that I got a warrant. He won’t come out and tell me. He
said—and I kept asking the same question. Well, you see, he started laughing. He
laughed on the phone and say, ‘Well.’ Just laughed. He just told me, ‘Well.’ He
just laughed. He started laughing about it. ‘Well, you just—you ain’t
going’—something like—then—sound like he just said—I asked him, I said, ‘I
gots to go.’ He said, ‘Just—well, you just ain’t gonna—you sure? Check and
see.’ He said, ‘Check and see,’ and he started laughing. I said, I ain’t got no
warrant.’ And he told me, he said, ‘Well, you got a warrant, you won’t make it on
the federal property; at the door you will be arrested.’
THE COURT: All right. He said, ‘If you have a warrant, you will be arrested at
the door’?
[Young]: Yes. He—
THE COURT: Is that what he said?
[Young]: More like he saying that he knowed I had a warrant and I was gonna be
arrested. Point blank, he was saying I was gonna be arrested if I come at the door.
He said I was gonna be arrested. His exact words: I’m gonna be arrested, if I
come to court, at the door. And I kept asking for what.’
[Gov’t]: You realize that’s different from what you testified to earlier?
[Young]: Yes, but it was more like he saying that I’m a be arrested, if I come to
court, at the door.
[Gov’t]: Do you remember exactly what he said?
[Young]: Yes. The day when he called, he said—he said—at first, he asked about
John Bryant. He said, ‘You have anything—do you know a John Bryant? John
Bryant paid you any money?’ I said, ‘No.’ He said, ‘You sure?’ I said, ‘No.’ I
said, ‘John ain’t—John Bryant gave me nothing.’ He said, ‘Well.’ I said, ‘You
know I got to come to court, Agent’—I told Lee Scott, ‘You know I got to come
to court.’ He said, ‘Well, you got no warrants for you?’ I said, ‘No.’ He say,
‘Well, you sure?’ I said, ‘No, I ain’t got no warrant.’ I say: ‘If I got one, it’s
probably one in the city court. That ain’t nothing.’ He say, ‘Well, I tell you, you
go on the federal prop—on that federal building, at the front door, you go on the
property, you will be arrested at the door.’ He said: ‘You will be arrested. You
gonna be arrested at the door and you ain’t gonna make it up there anyway,’ and

                                        14
as pointed out by the government and the district court during his

testimony, Young’s testimony changed somewhat from the first time

he talked about the Scott phone call in his direct examination.                              On

cross examination he added: Scott’s persistent laughing about the

potential arrest, Scott’s statement that “you ain’t gonna make it

[to the courthouse] anyway [to testify],” Scott’s knowledge of a

specific warrant for Young’s arrest, and Scott’s insistence that

Young would be arrested if he showed up to testify—not just if he

had an outstanding warrant.               Nonetheless, even with these changes,

Young twice confirmed during cross examination that Scott’s warning

was conditional on there being an outstanding warrant, not merely

on whether Young testified.13 Young also did not testify that Scott

told him about the specific warrant, but only that Young believed




       laughed about it.
       [Gov’t]: So is it your testimony now that he never said ‘if you have a warrant, you
       will be arrested,’ is that correct?
       [Young]: No, he was letting me know, yeah, I’m a be arrested.
       [Gov’t]: My question is: Is it your testimony that he did not say to you ‘if you
       have a warrant, you will be arrested’?
       [Young]: He said that.
       [Gov’t]: He said that?
       [Young]: Yeah. ‘If you had a warrant, you will be arrested.’” (emphasis added).
       13
           Young confirmed again on cross-examination during his second testimony that Scott’s
arrest warnings were conditional—you’ll get arrested if you have a warrant outstanding.
         Young had difficulty speaking of the warrant/arrest in conditional terms. He generally
spoke of the possibility of arrest as being conditional upon his testifying in court, but always
confirmed, when asked by the government or the court, that his arrest was conditional upon there
being an outstanding warrant for his arrest. Moreover, on at least two occasions Young directly
testified, rather than just merely confirmed, that Scott stated that the potential arrest was
conditional upon the existence of an outstanding warrant.

                                               15
that Scott knew of the warrant.

       In    spite      of    Scroggins’s         contentions,          Young’s       testimony

supports the following findings, none of which favor a finding of

governmental interference: 1) Scott never expressly stated that he

knew of a specific warrant for Young’s arrest; 2) Scott’s arrest

warning was conditional on the existence of an outstanding warrant

for his arrest; and 3) Young learned of the specific warrant for

his arrest after Scott’s call and from a person not shown to be

connected with the federal government or Scroggins’s case.14

                                      (c)     Perjury Warning

       Young’s testimony in December made no mention at all of any

“perjury warning” from Scott. That testimony did not come up until

Young’s January testimony.                  Young then brought this issue up in

response to an unrelated question:

       “[Scroggins’s Counsel]: So the only one that told you you
       didn’t have to come if the defense subpoenaed you was Lee
       J. Scott?
       [Young]: Yeah, because he told me on the phone
       that—started laughing, saying, ‘The DA gonna get you for
       perjury.’ I said, ‘Perjury for what?’ He talk about,
       ‘How much money John paid you?’ I told him, ‘John ain’t
       paid me nothing.’ And he said: ‘Ha. Ha. You sure?’ I
       said, ‘Yeah, I’m sure.’ Exact words, he said, ‘They’ll
       get you for perjury.’
       [Scroggins’s Counsel]: And did he tell you about the


       14
           As Young testified that no other agent called and told him about the warrant until after
the trial was completed, the allegation of governmental interference hinges on the Scott phone call
alone—unless the actions of Litton can somehow be attributed to the government. The district
court flatly rejected the suggestion that Litton’s actions could be part of the alleged governmental
interference. On appeal, Scroggins does not argue that Litton’s actions should be attributed to
the government, and we see no evidence in the new trial hearing suggesting as much.

                                                16
       tape?15
       [Young]: No. He told me that they were gonna get me for
       perjury. He said, ‘Liddell gonna get you for perjury.’
       [Scroggins’s Counsel]: Did you ask him why?
       [Young]: I kept asking him why. He wouldn’t tell me.
       But he told me—he said that’s what gonna happen. He kept
       telling me that’s what gonna happen, you know, they gonna
       get me for perjury. He wasn’t telling me about the tape,
       but he said, ‘They gonna get you for perjury.’”16

       Young later confirmed, however, in response to questioning by

the district court and the government, that the perjury warning was

conditional—if he lied, he would get prosecuted for perjury:

       “[Gov’t]: So did Lee Scott tell you anything else other
       than if you had a warrant, you’d be arrested?
       [Young]: And about you, you gonna get me for perjury.
       [Gov’t]: If you lied?
       [Young]: Yeah.     And he said—nah, he said something
       like—he said, ‘How much money John [Bryant] paid you?’
       I said, ‘John ain’t’—
       THE COURT: What?
       [Young]: He said, ‘How much money John Bryant paid you?’
       I said, ‘John ain’t paid me no money.’ And I—I explained
       to him and told him, and everybody know I worked on
       Donnie’s company at A-1 Painting. Even Agent Will Green
       know that. I worked with Donnie [Scroggins]. And I told
       him Donnie owe me money right then, because I supposed
       making—Donnie got put off the job at Fairgrounds Stadium.
       We did Independence Stadium.
       THE COURT: Wait a minute. Wait a minute. Stop. All you


       15
         Referring to the recorded conversation between Scroggins and Bryant in which they
discussed Bryant paying Young. Supra note 6. Young claimed that Bryant never gave him any
money and that the money referred to in the recorded conversation must have been money
Scroggins owed Young for painting work Young had done for Scroggins.
       16
          Later testimony by Young concerning the perjury warning is somewhat unclear about
when Scott may have given the warning, or if Young even received the warning from Scott as
opposed to from someone else. Young testified that Scott told Mary Winchell, Bryant’s defense
counsel, that the government would prosecute Young if he testified, and that Winchell told
Bryant, who then told Young. It is not clear, however, if this exchange of information among
Scott, Winchell, Bryant, and then Young occurred before or after Young’s alleged conversation
with Scott.

                                             17
       got asked was how much money—you’d get prosecuted for
       perjury if you lied?
       [Young]: Yes.” (emphasis added).

       That the perjury warning testimony did not come up at all

until Young’s January testimony and that Young confirmed that the

warning was “if he lied,” raises meaningful questions about the

testimony and the effect of the warning on Young’s decision not to

appear at court.

                                      (d)    Conclusion

       The district court found that “there is no credible evidence

that the prosecutors had anything to do with Young’s failure to

appear to testify at trial.”17                    The district court specifically

found that Young’s interpretation of the alleged conversation with

Scott about who issued the subpoena was “not credible” and most

likely came from a “misunderstanding on Young’s part.”18                                It also

found that Scott did not discuss or mention the warrant with Young.

Although the district court did not make a specific finding as to

Scott’s supposed perjury warning, the finding of no credible



       17
          Even though the district court limited its finding to the “prosecutors,” and questioned
whether Scott’s actions could be attributed to the federal government, it did assume that Scott’s
actions could be so attributed. Further, during oral argument, the government conceded that
Scott was the government for the purposes of this case. Therefore, we treat the district court’s
finding as including Scott’s actions within the potential government interference.
       18
          In his affidavit, filed with the government’s brief in support of its response to
Scroggins’s new trial motion, Scott stated that he told Young that “if he got a Federal subpoena it
would be in his best interest to go to court” and that he never threatened or told Young not to go
to court. This directly supports the district court’s finding that Young’s interpretation was not
credible and was a misunderstanding on his part.

                                                18
evidence of governmental interference sufficiently indicates that

it did not find this allegation to be credible.

       The district court’s determination that it was not shown by a

preponderance of the credible evidence that the government caused

Young’s failure to appear is not clearly erroneous. The nature and

content of Young’s testimony—adding more information during his

January testimony, being somewhat inconsistent in relating the

content of the conversation, confirming the government’s version of

events, but continuing to repeat the defense’s version—support the

district       court’s      determination            that    Young’s     account       was    not

credible and that at the least he misunderstood Scott.                                 Further,

Young’s testimony clearly reflects that he simply did not want to

get involved in the case by testifying.19

       Concerning the perjury warning, Scroggins relies on United

States v. Vavages, 151 F.3d 1185 (9th Cir. 1998).                           In Vavages, the

Ninth Circuit held that a statement that in effect told the witness

that    if    she    testified,        she     would        be   prosecuted      for    perjury

constituted government interference with the witness:


       19
           Young testified as follows:
         “[Scroggins’s Counsel]: Mr. Young, were you fearful about coming here today to
         testify against the government?
         [Young]: I don’t like it.
         [Scroggins’s Counsel]: Why don’t you like it?
         [Young]: Because I been with them a long time, and coming into court just ain’t
         me. I just like doing my job and I don’t like being here.”
Young’s testimony also suggests that it would not be safe for him, as a confidential informant, to
testify in court, giving him a motive to avoid testifying. Young testified that the government
previously had wanted, and had tried, to protect him by keeping him and his name out of court.

                                                19
       “The prosecutor combined a standard admonition against
       perjury—that Manuel could be prosecuted for perjury in
       the event she lied on the stand—with an unambiguous
       statement of his belief that Manuel would be lying if she
       testified in support of Vavages’ alibi. . . . It does
       not require much of an interpretative gloss on the
       prosecutor’s warning to conclude that unless Manuel
       changed her testimony or refused to testify at all, she
       would be prosecuted for perjury and suffer any attendant
       consequences.” Id. at 1190.

       It is not the law that the “government cannot tell a witness

of the consequences of committing perjury.”                         Thompson, 130 F.3d at

687.     So far as Scott merely informed Young of the consequences of

lying, that is not improper:

       “Granted, the government told the witnesses that they had
       to testify truthfully and, if not, they would go to jail.
       That procedure, however, even if carried out in a caustic
       manner, is no cause to dismiss the indictment against the
       defendants. There is nothing wrong with the government
       informing witnesses of the consequences of breaking the
       law.”   Id. (emphasis added) (internal quotations and
       citations omitted).

Because we believe that the district court found that Young’s

perjury warning story was not credible and because this finding is

not clearly erroneous, Vavages is distinguishable.20


       20
           Moreover, the Ninth Circuit explained that it was not saying that “a prosecutor should
never articulate his belief that a witness is lying.” Vavages, 151 F.3d at 1190. “[U]nusually
strong admonitions against perjury are typically justified only where the prosecutor has a more
substantial basis in the record for believing the witness might lie.” Id. Because the testimony that
the witness in Vavages would have given “would have been entirely consistent with her own prior
statements and would not have conflicted with any past testimony, the prosecutor lacked this
substantial basis for believing [the witness] would perjure herself.” Id. at 1191. In contrast, Scott
likely did have a substantial basis for believing that the Young might lie. While it is not clear,
Scott’s conditional perjury warning, if it happened at all, may have occurred in the following
context: 1) the recorded conversation between Scroggins and Bryant potentially discussing Bryant
paying Young; 2) Scott may have known of the recording; 3) during the conversation with Scott,
Young denied that Bryant had paid him any money; and 4) Scott responded by saying that if he

                                                20
       In addition to the reasons given thus far for sustaining the

finding of no governmental interference, Young’s testimony also

supports a finding that Scott’s call did not intimidate Young

enough to keep him from going to court.                                 The day after the

discussion with Scott, and the day he was to testify in court,

Young was in a discussion with Litton of the sheriff’s department

concerning his outstanding warrant.                       According to his discussion

with Litton, Young still planned to go to court—in spite of the




lied (about the money he received from Bryant), he would be prosecuted for perjury. Thus, it
appears that Scott’s conditional perjury warning was justified.
         We note, however, that there is no direct evidence in the record that Scott had listened to
or knew of the recorded conversation. Even though Scott asked Young whether Bryant had paid
Young, and then supposedly followed up with the perjury warning, he did not tell Young that he
knew of the recording nor did he expressly explain to Young what possible perjury he was
speaking of. Agent Green testified that he had listened to the recording, but never stated that he
had passed the information or the recording on to Scott.
         Scroggins also contends that the district court discounted the effect of the tape. The
government claims that the taped conversation indicates that Scroggins and Bryant may have paid
or offered to pay Young to testify, giving an explanation for Scott repeatedly asking Young if
Bryant had paid him. Scroggins responds by pointing out that the district court stated during the
new trial hearing that it “didn’t find anything in [the transcript of the tape] to hurt [Scroggins’s]
motion” and that it knew that the tape would worry Scroggins, but that it did not worry the
district court.
         The district court’s comments about the tape, however, do not diminish the fact that the
tape may have given Scott a substantial basis for believing that Young would lie. The court’s
comments came before Young accused Scott of the perjury warning and before it became
apparent that the tape may have created a basis for Scott’s belief concerning the likelihood that
Young would lie. Further, even if the tape does not establish that Scroggins and Bryant
attempted to pay Young to testify, it still may have led to Scott’s substantial basis for believing
Young would lie at trial: the tape talked of Bryant paying Young, Scott asked Young if Bryant
had paid him, and Young denied that Bryant had paid him. This establishes a basis for Scott then
telling Young that he would get prosecuted for perjury if he lied—assuming Scott knew of the
tape.

                                                 21
Scott phone call that he had already received.21                         Young’s testimony

clearly supports a finding that it was the discussions with the

sheriff’s department, not the discussion with Scott, that persuaded




       21
            The following exchange makes it apparent that Young was still willing to go to court
after talking to Scott:
         “[Young]: I asked and Otis tell me there. So I said, ‘Okay, Otis, I’ll be down there
         [at the sheriff’s department].’ So I ain’t—I called him back again. I said, ‘Otis,
         you know I supposed to be in—in court.’ Then he says: ‘Yeah, I know that, but
         you come [to the sheriff’s department] first. I’m gonna walk you through the
         process of the other court system where you got to go for this warrant, then you
         can take care all of that.’ And I said—
         THE COURT: Take care of what?
         [Young]: Take care of my other business. And I say, ‘Otis’—I asked him, I said,
         ‘Otis, you sure?’ He said. ‘Yes. Just come down first.’ I said, ‘No
         (indiscernible).’ I said, ‘Let me go over to the courthouse first.’
         [Scroggins’s Counsel]: Excuse me. When he said ‘you come down here first,’
         what do you mean? First before what?
         [Young]: Come to the Caddo Parish Sheriff Department building down there. He
         said come downstairs, he gonna be down there waiting on me and he gonna take
         me in court and walk me through the little—where the warrant was suppose to be
         at. Then I told him, I said, ‘Otis, why can’t I go to the other court first?’
         [Scroggins’s Counsel]: What do you mean by ‘the other court’?
         [Young]: The federal court.
         [Scroggins’s Counsel]: Okay. You asked—
         [Young]: The federal court.
         [Scroggins’s Counsel]: —him why you couldn’t go to federal court first?
         [Young]: Yeah. And when—he said, ‘Okay, then.’ I said, ‘Okay.’ So I—I
         waited a little while again, so I called Otis one more time. Otis said—
         THE COURT: Wait. Otis said okay, you can go to the other court first?
         [Young]: Yeah. He went on—he went on and said it. But when I got ready to
         come and decide to call him again, Otis told me, ‘You ain’t been over there.’ I
         said, ‘How you know?’ He say: ‘Because they got your picture out at the front
         door. They gonna arrest you, anyway, you come in there.’ I said, ‘They gonna
         arrest me for where, at the federal courthouse?’ He said: ‘Yeah. You was gonna
         be arrested at the door and you never would have made it to the court.’ And then
         that was left at that. That’s what was said right there out of me and Otis.”
         (emphasis added).

                                                22
him not go to federal court because of his fear of being arrested.22

       In summary, we are unable to conclude that the district

court’s finding with respect to Freddie Young and governmental

interference is clearly erroneous.

                              (2)    James Thomas



       22
           In spite of the testimony cited in the preceding footnote, Young then testified that
Scott’s call did have some part in his decision not to show up at court. Nevertheless, in light of
Young’s testimony up to this point, the phrasing of the question, and Young’s answer, this
testimony is less than convincing:
        “[Scroggins’s Counsel]: So because of what Mr. Otis Litton and Mr. Lee J. Scott,
        narcotics agent, told you, did that make you afraid to come to court?
        [Young]: Yes. I wasn’t coming. I wasn’t coming after that.
        [Scroggins’s Counsel]: Were you afraid to come?
        [Young]: Yes, because I wasn’t gonna be—I was afraid I was gonna be arrested
        on that day.”
The question and the answer do not distinguish between Scott’s and Litton’s actions and their
separate effect on Young. That Litton’s calls, not Scott’s, were primarily responsible for Young’s
nonappearance was made apparent on cross-examination of Young:
        “[Gov’t]: What day was it that you decided you—did you decide you were not
        coming to testify after all?
        [Young]: I was coming. Only day that I wasn’t coming—after the sheriffs came
        to my house, I wasn’t coming then. That day I found out that I got a warrant
        down here at the door, that I was gonna be arrested, I wasn’t coming.” (emphasis
        added).
        The conclusion that Scott’s call did not intimidate Young from coming to trial also has
some support from the trial record. On the last day of trial, Wednesday, September 25,
Scroggins’s counsel told the district court that: three witnesses whom she had subpoenaed had
not appeared, she had spoken to two of them on Tuesday night, and the third was not responding.
The third witness, the one not responding, was Thomas. Therefore, Young must have been one
of the other two nonappearing witnesses.
        Scroggins’s counsel, therefore, apparently spoke to Young after Scott’s call but before
Young was to testify. There is no indication from the record that on Tuesday night Young told
Scroggins’s counsel about Scott’s call or about the effect that the call allegedly had on him. If
Scott’s call had intimidated Young from testifying, presumably Young would have told
Scroggins’s counsel about this when she spoke to him on Tuesday night. While this is not
conclusive of what Scott may have told Young or the influence of the call on Young, it is
consistent with the conclusion that something other than Scott’s call influenced Young’s decision
not to testify.

                                               23
       Before      Thomas     was    to    testify           at    trial,   he   received     an

anonymous message supposedly from law enforcement stating that if

he showed up at the courthouse to testify, he would be arrested.

Scroggins       contends       that       this        call    constituted        governmental

interference with a witness.

                                     (a)    Testimony

       Early in the morning of Tuesday or Wednesday,23 Wednesday being

the day he was to testify, Thomas received a voice mail on his cell

phone from a number with a 676 prefix.                            Although the call came in

the morning, he did not check his messages until the night of the

call.       The message told him of a warrant for his arrest waiting at

the federal courthouse.24              Thomas did not save the message.

       Thomas also testified that the DEA agents with whom he had

worked had contacted him before on his cell phone.                               He had given

his number to five different agents, three of whom had called him

on his cell phone (Russell Sarpy, Green, and Scott); the agents’




       23
          Thomas stated at least twice that the call came either Tuesday or Wednesday morning;
however, Thomas later testified that he received the voice mail Tuesday morning, but that he did
not review his messages until Tuesday night. If the call came Wednesday morning and if he did
not check his messages until Wednesday night—after trial was already over—then the call would
be completely immaterial as to his decision to not testify. Overall, his testimony does tend to
support that the call came on Tuesday, not Wednesday.
       24
           Thomas testified that the message told him “not to come to court because it was a
warrant down here for my arrest and I’d be arrested before I walked through the door” and that
the message said “‘don’t step foot on the federal property.’” Thomas also testified that the
message talked about “something like an assault and battery charge” and that the warrant would
be at the front door of the federal courthouse with a picture.

                                                 24
calls came from a 676 number.25                  Thomas’s testimony indicates these

three agents were the only agents who had called him and that the

only calls he received from a 676 number were from narcotics

agents.       Nevertheless, Thomas did not recognize the voice on the

message and could not say that it was from any of the agents to

whom he had talked.             He also did not know that the call was from a

narcotics agent; he merely testified that the call “sounded like a

law enforcement” because “who else would call [him] and tell [him]

something like that?” Therefore, his belief that the call was from

“law enforcement” was based on the 676 prefix and the argument that

“who else would have done it?”

       Thomas later testified that on Tuesday night, after he had

heard the message, he spoke to the secretary to Victoria Cranford,

Scroggins’s counsel, to tell Cranford about it.                                 Cranford never

called      him     back;       however,       Thomas       could      not      recall      if     he

specifically told the secretary about the mysterious message.26                                    On

Tuesday evening Thomas also called and left a message on the

answering machine of David Shanks, the defense team’s investigator;

however, he could not recall what, if anything, he specifically


       25
         Thomas testified that“[s]ometimes [the calls] used to be three different numbers, but I
just remember 676-48 I think.”
       26
           Elsewhere Thomas testified that he called Cranford on Wednesday and left a message
with the secretary for Cranford to call him. He did not testify as to the content of his
message—i.e., whether he told the secretary about the mysterious phone call. No one returned
his call. It is not clear whether this call (on Wednesday) is different from the call described in the
accompanying text (on Tuesday) or if Thomas was simply mixing up his days again and forgetting
when the calls occurred. Thomas did testify that he had “problems with long-term memory.”

                                                 25
told Shanks about the call.                  Shanks also did not call him back.

Therefore, it is unclear whether Thomas specifically told anyone of

the call before the end of trial.27

       Thomas testified that after receiving the message, he decided

not to show up to testify because of his fear of being arrested and

being “messed over”—being put in a situation that he could not get

out of—by the government.

       Nevertheless, in spite of Thomas’s testimony that he did not

show up at trial at least in part because of the phone call,28 it

appears that he was already very reluctant to show up.                                   Thomas

simply did not want to get involved in the case:

       “[Gov’t]: And why did it take you so long to go down and
       talk to [Scroggins’s counsel before trial]?29
       [Thomas]: Because I really didn’t want to get involved.
       [Gov’t]: And why didn’t you want to get involved?
       [Thomas]: Because I just didn’t want to—after all—after
       I did that last buy [with Earl Buchanan]30, I just wanted
       to put it all behind me.” (emphasis added).

Thomas eventually decided to go to the office of Scroggins’s

counsel about one week before trial.                     Thomas also appeared at the


       27
        Thomas did testify that on Thursday or Friday of the same week—after the trial was
over—he did speak with Cranford and told her about the call.
       28
           When asked by the government what helped him to make his decision not to show up,
Thomas replied: “Probably everything. Really, the government, that phone call, and just—two
factors, I guess you can say.”
       29
          Thomas testified that it had taken him a long time to go and talk to Scroggins’s counsel
after she had contacted him about testifying.
       30
        Thomas was the government’s confidential informant in a controlled buy with Buchanan
in November 2000.

                                               26
office of Scroggins’s counsel on Monday, the first day of trail,

and was told to go to the courthouse on Wednesday to testify.

     Even though Thomas appeared at the office of Scroggins’s

counsel on Monday, his testimony supports a finding that he did not

plan to go to court—independent of the anonymous phone call.    In

his testimony, Thomas volunteered that he was not going to show up

anyway because he did not want to get involved.   It was only after

persistent and lengthy questioning by the district court that

Thomas did state again that the phone call had contributed to his

decision to not appear at court:

     “[Gov’t]: When did you become afraid of the police?
     [Thomas]: When I started hearing [the mysterious
     message], that was enough for me not to come, period.
     [Gov’t]: And how long—
     [Thomas]: I wasn’t—anyway, I wasn’t planning on coming
     anyway, because I really didn’t want to get involved.
     [Gov’t]: So—
     THE COURT: Excuse me. Say that again?
     [Thomas]: I was not going to come anyway, because I
     really didn’t want to be involved.
     [Gov’t]: Have you ever been threatened by Mr. Scroggins
     or any of his family member?
     [Thomas]: No, sir.
     [Gov’t]: Did you ever tell agents that you had been
     threatened by—
     THE COURT: Okay, stop.    I’m going to explore it.    If
     you’re not going to, I’m going to.
          You said you were not going to come anyway, because
     you didn’t want to be involved?
     [Thomas]: Yes, sir. When I—when I made that deal—
     THE COURT: What deal?
     [Thomas]: With Russell Sarpy.     The deal was that I
     wouldn’t have to testify in court.
     THE COURT: Okay. But we’re talking about coming to the
     trial and testifying.
     [Thomas]: Yes, sir.
     THE COURT: Are you telling me that you were not going to
     come to testify whether or not somebody called you and

                                27
       told you that you were going to be arrested if you did
       come? Did you follow that?
       [Thomas]: Sir?
       THE COURT: Did you understand the question?
       [Thomas]: Say—repeat the question.
       THE COURT: Okay.    You just told me that you were not
       going to come to testify anyway. What I’m trying to find
       out is whether or not this phone call that you got from
       the 676 number had anything to do with your not coming.
       [Thomas]: No. That Monday I came, and she told me to
       come back. She was going to call me to come back that
       Wednesday.   But when I got that phone call, I wasn’t
       going to come, because I didn’t want to be involved.
       THE COURT: Okay. What I’m trying to find out is: Had you
       decided not to come before you got that phone call—
       [Thomas]: No, sir.
       THE COURT: —or did that phone call cause you to decide
       not to come?
       [Thomas]: Yes, sir. That Monday I did come to trial.
       THE COURT: “Yes, sir,” what?
       [Thomas]: I came to trial that Monday31 before I got the
       phone call, but that phone call made me not come no more.
       THE COURT: That’s what I want to know, because you just
       said that you were not going to come anyway, and I want
       to make sure that it was the phone call from the 676
       number that caused you not to come. Is that correct?
       [Thomas]: Yes, sir.
       THE COURT: All right.” (emphasis added).

       Even though Thomas eventually confirmed that the phone call

caused him not to come, he never disavowed his voluntary statement

that he “was not going to come anyway,” even before he received the

call.       It is very questionable whether Thomas would have shown up

at court even without the mysterious message.



       31
          Thomas talks about coming to trial on Monday, but his previous testimony is that he
merely showed up at the office of Scroggins’s counsel. While it is not clear if Thomas was
thinking of his appearance at the attorney’s office or some separate appearance at the courtroom,
we assume that it is the former. The statements of Scroggins’s appellate counsel at oral argument
support this assumption—he admitted that the witnesses showed up at the office on Monday, but
made no mention of either of them showing up at trial.

                                               28
       Moreover, Thomas’s behavior with respect to the new trial

hearing also makes it apparent that he was very reluctant to get

involved by testifying at trial.                    When Thomas was subpoenaed for

the new trial hearing, again he did not show up—even though there

was no evidence of a continued risk of being arrested at the

federal courthouse because of some supposed warrant.                                    Thomas

finally came to the new trial hearing because he was arrested for

not complying with his subpoena to appear at the hearing on the

previous       occasion.32          Although        he   was    still      afraid      of    the

government,33 he now knew that he had to comply with the subpoena

or   be     arrested.34         This     testimony       supports       the    government’s

contention that Thomas had other reasons for not appearing at


       32
          The day Thomas did not show up at trial was September 25, 2002. The first day of the
new trial hearing was December 19, 2002. Thomas did not show up then; he finally appeared on
January 23, 2003.
       33
         Thomas was afraid of retaliation from the government if he showed up to testify:
       “[Thomas]: I told [Cranford and Shanks] about the phone call and I told them I
       was afraid because I really didn’t—I was—I was scared, scared of the government,
       scared they will try to do something to me if I came and showed up here.
       [Gov’t]: And what were you afraid they were going to do to you?
       [Thomas]: Anything.
                                               ***
       [Thomas]: A lot of stuff went through my mind.
       [Gov’t]: What were you afraid that they were going to do to you?
       [Thomas]: Try to set me up; anything.
       [Gov’t]: They were going to set you up for coming to court?
       [Thomas]: Yeah.
       [Gov’t]: Did anybody from the government tell you that?
       [Thomas]: No, sir.”
       34
         Thomas testified that he did not understand that he could get arrested for not obeying
the subpoena—until he got thrown in jail.

                                               29
trial.35

                                       (b)    Conclusion

       The district court found that there was “no credible evidence

that        the     Government       prevented         Thomas      from      testifying”          at

Scroggins’s          trial.        The     court       observed       that     the     “evidence

surrounding Thomas’ voice mail message is insufficient to implicate

interference by the federal government as there is no evidence that

the federal government corners the market on the ‘676’ prefix in

Shreveport, Louisiana.”                The court considered that Thomas did not

recognize the voice of the caller and could not identify it as

belonging to any agent who had called him and whose voice he likely

would have recognized. Because the district court found that there

was     no        credible    evidence        of      governmental        interference,           it

apparently did not believe Thomas’s testimony that the mysterious

call had occurred in the manner that he testified—if at all.

       The district court did not clearly err in finding that Thomas

had not shown by a preponderance of the evidence that the mystery

call was from the government: Thomas did not recognize the voice as

belonging to any agent who had called him on his cell phone and




       35
          Thomas’s testimony of why he did not show up at the first new trial hearing showed his
“pattern” of deciding not to show up at court. When asked if he had told Scroggins’s team if he
was not coming to the first new trial hearing, Thomas stated: “I told them I was afraid. I ain’t tell
them I was coming, because I had got up to come, but I just turned around and changed my
mind.” (emphasis added).

                                                 30
with whom he had spoken and whose voice he recognized;36 there was

no evidence given during the new trial hearing or otherwise that

the    government         “corners       the     market      on    the    ‘676’      prefix      in

Shreveport;”37 and Thomas did not know if the call was from a

narcotics agent, but only assumed it was because “who else would

have done it?”

       Furthermore, what is most damaging to Thomas’s allegations is

his testimony that he had already decided not to go to court

anyway—independent of the call—because he did not want to get

involved and because of his fear of the government.                             Thomas’s fear

of the government developed prior to and independent of the claimed

phone message.            Although he did assert that the phone call did

contribute to his decision to not come, he also stated that he was

not going to come anyway.                 Thus, it is difficult to conclude that

but for the alleged phone call, Thomas would have appeared at

trial, particularly in light of Thomas’s failure to appear at the

new trial hearing until he was arrested—even though there was no

evidence of any threat preventing him from appearing at that time.



       36
          Thomas had spoken with Sarpy and Green several times, but was not asked about
Scott’s voice and how many times he had heard Scott speak.
       37
          Scroggins’s counsel stated during the new trial hearing that “676 is only a government
prefix number, Your Honor.” Nevertheless, the district court was correct that there was no
evidence given about the 676 prefix and the government’s share of such numbers—either during
the new trial hearing or after. Further, Scroggins did not request that the district court take
judicial notice of the 676 prefix and no motion to take judicial notice on the issue has been filed
before this court.

                                                 31
       Other evidence at the new trial hearing also explains why

Thomas would have been reluctant to appear at trial—independent of

the    mysterious         call.        Green      testified         that    Thomas      had    been

threatened in the past by the Scroggins family and that he came to

the agents requesting money or protection and that they get him out

of the Shreveport area.38                  In addition, along with its brief in

support of its response to the new trial motion, the government

filed an investigation report that purportedly detailed a payment

to    Thomas     for     security       purposes       because       of    threats      from     the

Scroggins family.              The report stated                that: threats were made

against the “CS’s”39 life as a result of cooperation with the DEA

during October and November 2000; the payment was for security

purposes and was to assist the CS in leaving the area because of

the threats; and at least some of the threats were from Donald

Scroggins and were due to the CS’s involvement in the arrest of

Buchanan.        Adding this evidence to Thomas’s testimony about his

reluctance to show up at trial and his not appearing at the

December new trial hearing, the district court did not clearly err

in    finding      that     the     government        did     not    prevent       Thomas      from



       38
         Green testified that according to his recollection, the agents gave him money to leave
the Shreveport area. Thomas testified, however, that the government was “supposed to pay me
some money and got me out of Shreveport, but they never did do that.”
       39
          The report omits the name of the subject, who is referred to as the “CS.” Although
there is nothing in the report specifically stating that the CS is Thomas, the facts in the report are
consistent with Green’s testimony and Thomas’s involvement in the events leading to the arrest of
Buchanan.

                                                 32
appearing at trial.40



               4.     Interest of Justice

       We next consider whether the district court erred by not

considering the primary basis of Scroggins’s new trial motion—the

interest of justice.             We hold that the district court did err in

limiting its analysis of the motion to newly discovered evidence

and that this error was not harmless to Scroggins.                           We also reject

the government’s argument that the district court may not grant the

new trial motion absent an identifiable legal error and hold that

the existence of a specific legal error is not always required to

grant a motion for new trial in the interest of justice.

                      a.      Proper Standard for Analyzing New Trial Motion



       40
          There is also evidence that would tend to question Thomas’s credibility. It is
questionable that Scroggins’s team did not return Thomas’s calls on Tuesday, particularly when
Scroggins considered Thomas to be such an important exculpatory witness. Granted, because
Thomas could not recall if he had told the defense team about the mysterious message,
Scroggins’s team may have received his nonspecific messages and not felt a need to respond to
Thomas quickly to make sure that he would be in trial on Wednesday to testify. We also note that
Thomas’s testimony is potentially inconsistent with what occurred at trial. When Thomas did not
show up at court, Cranford, Scroggins’s counsel, said that even though she had “subpoenaed him,
paid his witness fees, done everything properly, [Thomas was] not responding” to her voice mails.
Therefore, we have testimony by Thomas that he left messages for Cranford and Shanks on
Tuesday, to which they did not respond, and a statement by Cranford that she had left at least one
message for Thomas, after he had met with her on Monday and before Wednesday morning, to
which Thomas had not responded. While it is possible that both statements are correct—i.e., that
Thomas did not receive Cranford’s message and that Cranford did not receive Thomas’s
message—it casts some doubt over whether Thomas even called Cranford and Shanks or whether
Scroggins’s team diligently tried to locate Thomas.
        Thomas himself also stated that he had “problems with long-term memory,” perhaps
giving the district court another reason to question his credibility.

                                               33
       Because Scroggins filed his motion for new trial within the

time authorized by Rule 33(b)(2), his motion could have been

properly grounded on any reason for which a new trial could be

granted and was not required to be limited to newly discovered

evidence.41        Scroggins based his motion on the interest of justice

and not expressly upon newly discovered evidence.42                             Therefore, the


       41
          The jury verdict against Scroggins was filed on Thursday, September 26, 2002. On
Friday, October 4, 2002, less than seven days after the verdict, the district court extended the
deadline for filing a motion for new trial to October 16, 2002. See FED. R. CRIM. P. 45(a)(2) (in
computing time periods, “[e]xclude intermediate Saturdays [and] Sundays . . . when the period is
less than 11 days”). Scroggins timely filed his Rule 33 motion on October 16, 2002. The
government agrees that Scroggins’s motion was in fact filed within the properly extended time.
       42
            Scroggins mentioned “newly discovered evidence” in two portions of his documents
supporting his motion for new trial. First, he referred to newly discovered evidence in reviewing a
case, United States v. Ouimette, 798 F.2d 47 (2d Cir. 1986), that he claimed supported his
motion. In Ouimette, a witness favorable to the defense was allegedly intimidated by the police to
recant his proposed testimony and flee from the area, making him unavailable to testify at trial.
Later, the witness returned and gave a sworn statement to the defendant reiterating his original
testimony and describing how the police had threatened and harassed him, causing him to flee.
Apparently more than seven days after the verdict, the defendant moved for a new trial based on
newly discovered evidence, using this sworn statement of the witness as the primary support. Id.
at 51. While the Second Circuit held that the witness’s testimony was not newly discovered
evidence—since the defendant had known about the supposedly exculpatory testimony prior to
trial—it did hold that the “assertion concerning the pressure put on [the witness] by the . . . police
to dissuade him from testifying for the defense is certainly new in the sense that it was discovered
after trial.” Id. The Second Circuit then remanded the case for further findings to determine if
the defendant had met the other requirements for a motion based on newly discovered evidence,
primarily whether the defendant had exercised due diligence. Id. at 52.
         Scroggins’s reference to Ouimette is not enough for the district court to conclude that his
motion was based on (or only on) newly discovered evidence. In contrast to Ouimette, as
Scroggins’s motion was filed within the Rule 33(b)(2) time limit, it was not required to be limited
to newly discovered evidence. The defendant in Ouimette was limited to evidence concerning
interference with the witness since the direct exculpatory evidence was not newly discovered and
the motion for new trial had to be limited to newly discovered evidence. Further, none of the
arguments in any of Scroggins’s documents supporting the new trial motion or in the new trial
hearing suggest that Scroggins was primarily interested in the evidence of the government’s
interference with Thomas and Young as opposed to the substance of their supposedly exculpatory

                                                 34
district court erred in limiting its analysis of the motion, and

the exercise of its discretion, to newly discovered evidence while

not    considering         the     primary      basis      of    Scroggins’s         motion—the

interest of justice.43

       Further, the district court’s failure to analyze the motion

based on the interest of justice was not harmless to Scroggins.44

In contrast to motions made within the seven-day period, new trial

motions based on newly discovered evidence are subjected “to an

unusually stringent substantive test.”                          United States v. Ugalde,

861 F.2d 802, 808 (5th Cir. 1988).                          See also United States v.



testimonies.
         Scroggins also stated in his brief in support of his motion for new trial, requested by the
district court at the end of the new trial hearing, that he “now requests, in the alternative, that
[he] be granted a new trial on the grounds of newly discovered evidence as well as government
misconduct.” (emphasis added). It appears that the newly discovered evidence Scroggins refers
to here is not the substance of Thomas’s and Young’s testimonies, but rather the evidence of the
alleged interference with Young. Although the substance of their testimonies would not be newly
discovered evidence since it was known to Scroggins before trial (both witnesses met with
Scroggins’s counsel before the time of their scheduled testimony, see Ouimette, 798 F.2d at 51),
again there is no indication that Scroggins was primarily concerned about the alleged government
interference evidence as opposed to the substantive evidence. Thus, the court’s treatment of the
motion as one based on (or only on) newly discovered evidence was not warranted.
       43
           Even if Scroggins’s motion were based only on newly discovered evidence, because it
was timely made within the Rule 33(b)(2) time limit, the district court likely still should have
considered the interest of justice in its analysis. See United States v. Ugalde, 861 F.2d 802, 808
(5th Cir. 1988) (commenting that when a motion for new trial under Rule 33 is made within seven
days of the verdict, “courts will grant the motion, even if based on newly discovered evidence,
whenever it is in the interest of justice to do so”) (internal quotations and citations omitted).
       44
           We do not suggest, however, that the district court would have necessarily exercised its
discretion to grant a new trial if it had considered the motion in the interest of justice, nor do we
suggest that the interest of justice required a new trial. Those are matters to be addressed in the
first instance by the district court.

                                                 35
Rachal, 473 F.2d 1338, 1343 (5th Cir. 1973) (recognizing “the

heavier burden which the movant must carry” in a new trial motion

based on newly discovered evidence in contrast to motions “based on

other   grounds,    which   must    be    made    within   seven        days    after

verdict”); 3 CHARLES ALAN WRIGHT,   ET AL.,   FEDERAL PRACTICE   AND   PROCEDURE § 551

(3d ed. 2004) (“[M]otions for new trial on the ground of newly

discovered evidence are not favored, and are to be granted with

caution. It is a mistake to extend this proposition to motions for

a new trial because of trial errors or other grounds.                       Here the

motion should be neither favored nor disfavored, and the question

is   only   what   the   interest   of    justice    requires.”)           (footnote

omitted).    Moreover, the standard chosen by the district court to

analyze a new trial motion will likely have an effect on the

exercise of its discretion: “Just as our standard of review shapes

our decision in this appeal, the standards that guide a trial

court’s Rule 33 analysis shape its review of the trial evidence and

the outcome of defendant’s Rule 33 motion.”                  United States v.

Ferguson, 246 F.3d 129, 133 (2d Cir. 2001).

                   b.    Interest   of    Justice    and   Presence        of   Legal
                         Error

      A district court may grant a new trial where it “finds that a

miscarriage of justice may have occurred at trial.” Robertson, 110

F.3d at 1120 n.11; see also Ferguson, 246 F.3d at 133 (“[Rule 33]

by its terms gives the trial court broad discretion . . . to set

aside a jury verdict and order a new trial to avert a perceived

                                         36
miscarriage          of     justice.”)          (internal         quotation          and     citation

omitted).          A miscarriage of justice warranting a new trial in

certain circumstances                 may     occur      even     when     there      has     been     no

specific legal error.                See United States v. Vicaria, 12 F.3d 195,

198–99 (11th Cir. 1994); FEDERAL PRACTICE                      AND   PROCEDURE, supra, § 551.45

        United States v. Patterson, 41 F.3d 577 (10th Cir. 1994),

presents a somewhat analogous situation.                             There the district court

granted a Rule 33 motion for new trial made in the interest of

justice.46        Id. at 579.         The defendant’s brother was to testify for

the defendant, and during jury selection and opening statement the

jury was made aware by defense counsel that the brother was present

in the courthouse, would testify for the defense, and had first


        45
           On this issue, the parties dispute the applicability of United States v. Smith, 67 S.Ct.
1330 (1947). In Smith, the district court stated in granting a motion for new trial: “‘This Court . .
. reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is
our opinion upon this reconsideration that in the interest of justice a new trial should be granted
the defendant.’” Id. at 1331. The district court “assigned no more particular ground for the
order.” Id. When the government filed a petition with the court of appeals for writs directing
that the order be vacated, the district judge responded by referring to the memorandum in which it
granted the motion “but did not further elucidate his reasons for granting a new trial.” Id. The
court of appeals denied the writs. The Supreme Court noted that “[t]he generality of the reasons
assigned by [the district court] for the order in question is all that is required.” Id. at 1332.
However, the Court reversed the court of appeals and issued writs vacating the order for new
trial, holding that a district court could not grant a motion for new trial after its initial denial of the
motion had been affirmed on appeal. Id. at 1333–34. The Supreme Court in Smith also stated
that “[n]ew trials . . . may be granted for error occurring at the trial or for reasons which were
not part of the court’s knowledge at the time of judgment.” Smith, 67 S.Ct. at 1333 (emphasis
added). We conclude that Smith provides no clear guidance on the present issue.
        46
          The Tenth Circuit’s opinion does not specify when the motion for new trial was filed;
however, the court specifically found “‘that in the interest of justice the defendant should be
granted a new trial.’” Patterson, 41 F.3d at 579. Thus, presumably the motion was filed within
seven days of the verdict.

                                                   37
hand knowledge of important facts.           However, when it came time for

the brother to testify, he could not be found, even though he had

been present at court earlier that morning.               The district court

allowed a short recess to locate the witness, but he still could

not be found.      The defendant requested a continuance, which the

district court denied.      Id. at 578.          Following the jury’s guilty

verdict, the    defendant   moved      for   a    new   trial,   submitting    an

affidavit from his brother, the missing witness, stating that he

had left the courthouse at lunchtime to run a personal errand, and

that while away, his truck broke down, and he was unable to contact

anyone until later that afternoon, after the verdict.                  Id.

     In granting a new trial, the district court found that “the

absence of [the witness] could have been prejudicial to defendant

because the jury had been told, and was anticipating the testimony

of [the witness], and the fact that he did not testify could have

created an   inference    that   his    testimony       would    not   have   been

favorable to the defense.”          Id. at 579.           The district court

“accepted [the witness’s] excuse, giving him the benefit of the

doubt, with a finding that [the witness] may not have been able to

find a telephone to call in the news of his breakdown until it was

too late.”   Id.

     The Tenth Circuit affirmed the district court, rejecting the

government’s argument that “the trial court could not sustain the

motion for new trial since the court did not make any finding that


                                    38
the initial denial of a continuance was an ‘abuse of discretion.’”

Id.   The Tenth Circuit stated that “a trial judge is not obliged to

review his past trial rulings and make an independent judgment that

he himself has ‘abused his discretion’ before granting a new

trial.”    Id.   The Tenth Circuit concluded that the district court

had not abused its discretion in granting the new trial, id., even

though neither the district court nor the Tenth Circuit pointed to

any specific legal error.

      We   therefore   remand   this    case   to   the   district   court   to

consider Scroggins’s motion for new trial in the interest of

justice and conclude that the district court may grant a new trial

in the interest of justice even if it does not find that a specific

legal error occurred at trial.         Nevertheless, the district court’s

discretion to grant a new trial, although broad, is not without

bounds.     Robertson, 110 F.3d at 1118.             See FEDERAL PRACTICE    AND

PROCEDURE, supra, § 551 (“The court has discretion in passing on the

[new trial] motion, but it should hold in mind the harmless and

plain error provisions of Rule 52, and refuse to grant a new trial

if the substantial rights of the defendant were not affected.”)

(emphasis added) (footnotes omitted). In appropriate instances, we

have not hesitated to set aside a trial court’s grant of a new

trial in criminal cases.        See, e.g., United States v. Logan, 861

F.2d 859 (5th Cir. 1988); United States v. Leal, 781 F.2d 1108,

1111 (5th Cir. 1986).     Absent legal error, for the district court


                                       39
to grant a new trial, it must, in the exercise of its discretion,

find either that the absence of Young or Thomas (or both together)

resulted in a manifest injustice and that Scroggins would have

probably been acquitted if the jury had heard their testimonies,

United States v. Sanchez, 969 F.2d 1409, 1414-16 (2d Cir. 1992), or

that,   with   the   additional    testimony,   the   evidence   would

“preponderate heavily against the verdict, such that it would be a

miscarriage of justice to let the verdict stand.”      Robertson, 110

F.3d at 1118 (emphasis added) (internal citations omitted). In its

analysis, however, the district court “may not reweigh the evidence

and set aside the verdict simply because it feels some other result

would be more reasonable.”   Id.

     We also emphasize that because we have upheld the district

court’s finding that the government did not interfere with Young

and Thomas, the case for a new trial must be stronger than if the

district court had found governmental interference. The absence of

governmental misconduct means that the district court should grant

the new trial only if it concludes, in the exercise of its

discretion, see United States v. Arroyo, 805 F.2d 589, 599 (5th

Cir. 1986), either that the jury probably would have acquitted

Scroggins with the testimonies of Young or Thomas, rather than

simply that the jury might have acquitted, cf. Sanchez, 969 F.2d at




                                   40
1414-16,47 or that had Young and Thomas testified the evidence would

so heavily preponderate against the verdict that it would be a

miscarriage of justice to let it stand.

                       c.     District Court’s Materiality Determination

       Because the district court should consider Scroggins’s motion

for new trial in the interest of justice in the first instance, at

this stage it is not appropriate for us to review the district

court’s finding that Young and Thomas would have given material

testimony if they had testified at trial.48                       However, we note that

in any event the record before is not sufficiently developed to

rule on the district court’s materiality determination.                                       The

district court declared in its ruling on the new trial motion that

it had “already determined in open court that the testimony Young

and Thomas were to provide is material”; however, it did not make

any other reference to its materiality determination or to findings

upon which        it    based     its    conclusion        that    their      testimony       was

material.       In the new trial hearing the district court did state



       47
          In the context of false testimony, the Second Circuit explained in Sanchez that
       “[e]ven in a case where perjury clearly has been identified, however, we have
       indicated our reluctance to approve the granting of a new trial unless we can say
       that the jury probably would have acquitted in the absence of the false testimony.
       It is only in the rare instance where it can be shown that the prosecution knowingly
       used false testimony that we would apply a less stringent test and permit the
       granting of new trial where the jury ‘might' have acquitted absent the perjury.”
       Sanchez, 969 F.2d at 1413-14 (emphasis added) (internal citations omitted).
       48
        The government has argued that the district court was incorrect in concluding that
Young and Thomas were material witnesses.

                                               41
that the witnesses were very important and could have made a

difference; however, the court never did make any specific findings

upon which it based its materiality determination.                               Furthermore,

during Thomas’s testimony the district court clearly and repeatedly

prevented Scroggins’s counsel from going further into the substance

of what Thomas would have testified to at trial.49                           In addition, at

the conclusion of the new trial hearing, the district court again

expressed its view that Young and Thomas were important witnesses,

but expressly instructed the parties to limit their arguments in

their post-hearing briefs to the governmental interference issue,

clearly implying that they were not to address the materiality

issue.

       Because the issue of materiality is a mixed question of law


       49
           Thomas testified at the new trial hearing that: 1) he told the agents that Scroggins did
not sell drugs, but that the agents wanted him to attempt to purchase drugs from Scroggins
anyway; and 2) when he asked Scroggins for drugs, Scroggins said, “You know I don’t do that.”
        After hearing this much of Thomas’s substantive testimony, the district court indicated
that Thomas “could have been a very important witness” and repeatedly directed Scroggins’s
counsel to limit the questioning to the issue of governmental interference:
        “THE COURT: Let me see if I can be absolutely clear to you. I am satisfied that
        [Thomas], testifying as he has testified today, could have made a difference. You
        need not go any further into that. The question for you is: Did the government
        have something, do something wrong to prevent his testifying? That is all I am
        any longer interested in. Proceed.” (emphasis added).
Scroggins’s counsel had more questions to ask concerning Thomas’s substantive testimony, but
finally conceded, after the district court had repeatedly rejected her several attempts to further
pursue what testimony Thomas would have given at trial, that the district court would not let her
go any further on that issue:
        “ [Scroggins’s Counsel]: Your Honor, I have no further questions with [Thomas].
        I had a lot of other questions regarding the testimony he would have given at trial,
        but I can see that Your Honor is not letting me go into that field.
        THE COURT: I’m not going any further into that field.”

                                                42
and fact, our review is generally de novo, meaning “we undertake an

independent appellate analysis to determine whether the facts found

by the trial court rise to the level of the applicable legal

standard.”       United States v. O’Keefe, 128 F.3d 885, 893–94 (5th

Cir. 1997).        In this case the district court did not make any

specific factual findings regarding the testimonies of Young and

Thomas.     Its only determinations were that the testimonies were

important    and    could   have   made   a   difference   and   that   it   was

interested in them.         In any event, with respect to Thomas, the

district court did not allow Scroggins to fully develop the record

concerning the substance of his testimony.           Therefore, even if it

were appropriate for us to rule on the district court’s materiality

determination, we could not do so on the record before us.

     With the foregoing in mind, in considering Scroggins’s new

trial motion in the interest of justice on remand, the district

court may need to hold a further hearing (if timely and properly

requested to do so by either party).

     B.     Failure to Issue Bench Warrant and Right to Compulsory
            Process

     Scroggins argues that he is entitled to a new trial because he

was denied compulsory process when the district court did not issue

bench warrants compelling Young and Thomas to appear. We disagree.

            1.     Standard of Review

     Scroggins did not raise the issue of the district court’s

failure to issue a bench warrant before the district court, either

                                      43
at trial or in his motion for new trial.                      Therefore, as he is

raising this argument for the first time on appeal, we review it

for plain error.          United States v. Serna-Villarreal, 352 F.3d 225,

231 (5th Cir. 2003).

              2.        Sixth Amendment Right to Compulsory Process

       Under the Sixth Amendment, “‘criminal defendants have the

right to the government’s assistance in compelling the attendance

of favorable witnesses at trial and the right to put before a jury

evidence that might influence the determination of guilt.’” United

States v. Soape, 169 F.3d 257, 268 (5th Cir. 1999) (quoting

Pennsylvania       v.     Ritchie,   107    S.Ct.     989,   1000     (1987)).        “The

compulsory process right is not absolute, however; when requesting

a court to subpoena a witness, a defendant has the duty to

demonstrate the necessity of the witness’s testimony.”                      Soape, 169

F.3d   at    268    (emphasis    added).         To   show   a    violation      of   the

constitutional right, the defendant must show more than that he was

deprived of certain testimony; he must instead “make some plausible

showing of how [that] testimony would have been both material and

favorable to his defense.” United States v. Valenzuela-Bernal, 102

S.Ct. 3440, 3446 (1982).

       Therefore, to show a violation of his right to compulsory

process regarding Young or Thomas, Scroggins must have 1) requested

the court to issue a bench warrant compelling the witnesses to

appear      and    2)    demonstrated      the   necessity       of   the   witnesses’


                                            44
testimony by making a plausible showing of how their testimony

would have been both material and favorable to his defense.                    Soape,

169 F.3d at 268.

             3.     District Court’s “Refusal” to Issue Bench Warrants

                    a.     Freddie Young

      Scroggins did not meet his duty of demonstrating the necessity

of   Young’s      testimony.       When   Young    did   not    appear    in   court,

Scroggins’s counsel did not even mention Young by name and did not

say anything about him to show how his testimony would have been

material and favorable.

                    b.     James Thomas

      When   Thomas      did   not   appear,      Scroggins’s    counsel       briefly

explained the importance of his testimony:

      “[Thomas] was referred to in the testimony of Special
      Agent Clifton (sic) Simmons, the undercover agent who
      conducted the buy [with Earl Buchanan] on November 15,
      2000. James Thomas was the confidential informant of the
      government who was the go-between between Earl Buchanan,
      and his testimony is completely and totally exculpatory
      as to what Agent Simmons testified to, and I think he is
      crucial to my case.” (emphasis added).

     That Thomas’s testimony would be “completely and totally

exculpatory as to what Agent Simmons testified to” is, however,

simply conclusory and does not allege any specific facts that would

lead the trial court to conclude that Thomas’s testimony was both

material and favorable to Scroggins’s defense.                    See Janecka v.

Cockrell,    301    F.3d    316,     326–27    (5th   Cir.     2002)     (“Janecka’s

explanation of how Duff-Smith’s testimony might have been material

                                          45
and favorable to his defense is vague at best.                            He fails to offer

any details regarding what specific information Duff-Smith could

have provided or why Duff-Smith’s testimony would not have been

merely      cumulative        of    other      evidence        presented        at    trial.”)50

(emphasis added); United States v. Gonzales, 79 F.3d 413, 424 (5th

Cir. 1996) (“The government may respond [to a defendant’s request

to subpoena a witness] by demonstrating that the facts upon which

the defense relies are inaccurate . . . .”) (emphasis added).

Further, the statement that Thomas’s testimony is “exculpatory as

to what Agent Simmons testified to” did not help Scroggins at


       50
           In Janecka, the potential witness, Duff-Smith, submitted a signed affidavit stating that
“if given the opportunity [to testify], [he] could provide information and testimonial evidence
relating to defensive strategies for Mr. Janecka’s trial, including but not limited to, exculpatory
evidence, impeachment evidence of State witnesses, rebuttal evidence, as well as mitigation
evidence, if applicable.” Janecka, 301 F.3d at 325–26 n.14. Janecka also submitted that:
        “1. Duff-Smith’s testimony would dispute that Janecka was in the chain of
        remuneration for this crime;
        2. Duff-Smith’s testimony would establish that he did not pay Walt Waldhauser to
        pay Janecka to murder;
        3. Duff-Smith would testify that various state witnesses were lying;
        4. Duff-Smith would testify that if Janecka did murder for hire, he did it out of
        duress from the mafia; and
        5. Duff-Smith would testify in mitigation of sentence.” Id. at 326.
        In spite of these descriptions of Duff-Smith’s potential testimony, the court held that
Janecka had failed to show how the offer of proof could have helped his defense:
        “The only specific point Janecka suggests Duff-Smith would have made had he
        been able to testify at trial was that he did not pay Waldhauser to hire Janecka to
        murder the Wanstraths. . . . Because the State’s theory was that Waldhauser,
        rather than Duff-Smith, paid Janecka to kill the Wanstraths, any evidence that
        Duff-Smith did not intend for Waldhauser to hire Janecka would have been of little
        value.” Id. at 327.
        Scroggins’s description of Thomas’s potential testimony is less helpful than Janecka’s in
making a plausible showing of how Thomas’s testimony would have been material and favorable
to his defense.

                                                46
all—even if specific facts had been given. Simmons testified merely

to   identify      the     cocaine      purchased        by    the    government         in   the

controlled buy with Buchanan on November 15, 2000.                               None of his

testimony implicated Scroggins and it is not clear how Thomas’s

testimony would have been “exculpatory as to what Agent Simmons

testified to.”        It was Buchanan that later testified that the drugs

that he sold that day were supplied by Scroggins. Because Scroggins

failed to make the required plausible showing of the need for

Thomas’s testimony, Scroggins’s right to compulsory process was not

violated by a failure to issue the bench warrant.51

      Moreover,        Scroggins       did     not    explicitly        request       that    the

district court issue bench warrants to compel the presence of the

witnesses.         When Thomas did not appear at trial on Wednesday

morning, the following exchange took place between the district

court and Scroggins’s counsel:

      “[Scroggins’s Counsel]: I have three [witnesses] that are
      not here and I—I have subpoenaed.      I may want writs
      issued and—
      THE COURT: Have you talked to them?
      [Scroggins’s Counsel]: I talked to two of them last
      night, and the other one, even though I’ve subpoenaed
      him, paid his witness fees, done everything properly, he


       51
          Scroggins relies on United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993). In
Simpson the defendant specifically asserted facts that directly contradicted testimony of a police
officer. The defendant asserted that the witness “was allegedly standing about twenty-five feet
from [the police officer] and Simpson during the encounter, witnessed the frisk and did not see a
bag, or any other object, fall out of Simpson’s pocket.” Id. at 1230. “This testimony, if believed
by the jury, could have substantially undercut the Government’s case.” Id. In contrast, the
description of Thomas’s testimony by Scroggins’s counsel was merely conclusory and did not
present specific facts to undercut the government’s case.

                                               47
     is not responding and I have a feeling that—
                              * * *
     THE COURT: When did the subpoena say he should appear?
     [Scroggins’s Counsel]: The subpoena had told him to
     appear on Monday, and we called all of our witnesses and
     left messages to come Wednesday.
     THE COURT: Then I hope he is here. These last-minute
     actions on your—just if he’s not here, we’re going on.
     [Scroggins’s Counsel]: Then I’ll—
     THE COURT: A bench warrant will take anywhere from a day
     to a week to execute.
     [Scroggins’s Counsel]: Then I’d like to make a comment on
     the record as of what I think happened.
                              * * *
     THE COURT: I suggest you send [the defense investigator]
     out to find him, because you’re going to need him and I’m
     not going to delay this trial any further.” (emphasis
     added).

Scroggins contends that his trial counsel was about to request a

bench warrant and did not only because of the district court’s

implicit rejection of the anticipated request and that he was not

required to “continue fighting” with the district court once it had

indicated that it would not issue a bench warrant.

     We recognize that at times a party in Scroggins’s position may

be excused from explicitly making a request for a bench warrant for

a material witness. An arguably analogous situation is when a party

is excused from raising objections to proposed jury instructions:



     “A party may be excused from the requirement of making a
     specific objection only where the party’s position
     previously has been made clear to the trial judge and it
     is plain that a further objection would be unavailing.
     Only when the appellate court is sure that the trial
     court was adequately informed as to a litigant’s
     contentions may the appellate court reverse on the basis
     of jury instructions to which there was no formal
     objection.” Russell v. Plano Bank & Trust, 130 F.3d 715,

                                48
      720 (5th Cir. 1997) (internal quotations and citations
      omitted).52

Projecting this excuse for failure to object to jury instructions

to the present situation, in order for Scroggins to be excused for

not requesting a bench warrant, Scroggins would have to show that

1) he previously made clear to the district court his position that

Thomas was a materially favorable witness and that he needed a bench

warrant to compel Thomas’s attendance and 2) it is plain that a

further request for a bench warrant would be unavailing.

      Based on the trial judge’s statements that “[a] bench warrant

will take anywhere from a day to a week to execute,” “if he’s not

here, we’re going on,” and “I’m not going to delay this trial any

further,” particularly in light of Scroggins’s counsel’s statement

that “I may want writs issued” for the missing witnesses, it is

plain that it would have been unavailing for Scroggins to request

a bench warrant for Thomas.                    Nevertheless, as discussed above,

Scroggins did not successfully make clear his position, other than

in mere conclusory terms, that Thomas was a materially favorable

witness.       Therefore, Scroggins’s failure to explicitly request a

bench warrant is not excused, further supporting the conclusion that

the failure to issue a bench warrant for Thomas was not plain error.

      C.      Ineffective Assistance of Counsel



       52
           Although Russell involves a rule of civil procedure, FED. R. CIV. P. 51, the parallel rule
under the rules of criminal procedure, FED. R. CRIM. P. 30, has the same objection, and excuse for
failure to object, requirements. United States v. Redd, 355 F.3d 866, 874 (5th Cir. 2003).

                                                49
      On the final issue concerning Scroggins’s missing witnesses,

Scroggins contends that he should be granted a new trial because his

trial        counsel’s    failure       to    request       a   continuance         upon     the

nonappearance of Young and Thomas was ineffective assistance of

counsel.        Because Scroggins did not properly raise it before the

district court, we decline to address the merits of Scroggins’s

ineffective assistance of counsel claim.

      During the new trial hearing, Scroggins’s counsel asserted that

she had requested a continuance when Young and Thomas did not appear

at trial; however, the district court could not recall the request

or find it in the trial transcript.                  In the brief in support of the

motion for new trial, requested by the district court at the end of

the January 2003 hearing, Scroggins’s counsel continued to assert

that she had made such a request,53 even though no evidence of the

request       for   a    continuance         could     be    found      in    the    record.54

Scroggins’s counsel then argued in the brief that if the district

court believed that she did not request a continuance, the failure


        53
           With his brief in support of his motion, Scroggins filed an unsworn statement from
Bryant’s counsel stating that she remembered that Scroggins’s counsel had requested a
continuance. Scroggins also pointed to the government’s memorandum in support of its response
to Scroggins’s motion—filed before Scroggins raised the ineffective assistance of counsel claim in
his brief and before preparation of the trial transcript—where the government states that
Scroggins had requested a continuance when Scroggins’s witnesses did not show up and that the
district court had denied the request.
        54
          We have found no indication of a request for a continuance made by Scroggins at trial;
on appeal, Scroggins has conceded that no such request is found in the record or on the backup
tapes of the trial. Scroggins has not sought to correct or supplement the record under FED. R.
APP. P. 10(e) or otherwise.

                                               50
to do so was ineffective assistance of counsel—because Young and

Thomas were the “most crucial part” of the defense trial strategy.

In denying Scroggins’s motion for new trial, the district court did

not mention the ineffective assistance issue.

     In general, we do not resolve claims of ineffective assistance

of counsel on direct appeal when the claim has not been raised

before the district court since there was no opportunity to develop

the record on the merits of the claim.   United States v. Higdon, 832

F.2d 312, 313–14 (5th Cir. 1987).

     Scroggins did not properly raise the ineffective assistance of

counsel issue before the district court. Even though “issues raised

for the first time in post judgment motions are preserved for

appeal,” Instone Travel Tech Marine & Offshore v. Int’l Shipping,

334 F.3d 423, 431 n.7 (5th Cir. 2003), Scroggins’s attempt to raise

the claim did not properly bring it before the district court.

Scroggins did not raise the claim in his new trial motion or in the

hearing on the motion, but only after the hearing and without

amending his previously filed motion.     Further, because the claim

was raised in conjunction with a request for a new trial made more

than seven days after the verdict, Scroggins was at that time

limited to moving for a new trial only on the basis of newly

discovered evidence, Rule 33(b)(2), and we have held that “a Rule

33 motion, filed more than seven days after the verdict and premised

on ‘newly discovered evidence,’ is an improper vehicle for raising


                                51
a claim of ineffective assistance of counsel.”    United States v.

Medina, 118 F.3d 371, 372 (5th Cir. 1997) (citing Ugalde, 861 F.2d

at 807–09).    Therefore, we decline to address the merits of

Scroggins’s ineffective assistance of counsel claim; however, we do

so without prejudice to Scroggins’s right to raise the issue

pursuant to 28 U.S.C. § 2255.   See Higdon, 832 F.2d at 314.

II.   Prosecution’s Misstatement of the Law in Closing Arguments

      Scroggins contends that a new trial is justified because the

government misrepresented an element of the conspiracy charge during

its closing arguments.      During trial there was evidence that

Scroggins was a drug addict.      During its rebuttal at closing

argument, the government referred to this:

      “And if Mr. Donald Scroggins is a drug addict, where,
      ladies and gentlemen, where was he getting the drugs?
      For him to get cocaine necessarily means that he’s
      involved in cocaine trafficking. There’s two people in
      that conspiracy right there: the person he got the drugs
      from and himself.”

Scroggins, however, did not object to the government’s argument.

      Scroggins argues that this comment misstates the elements of

a conspiracy by implying that a mere buyer-seller relationship was

sufficient to establish a conspiracy.   As Scroggins has not shown

that he was prejudiced by this comment, we decline to reverse his

conviction on this basis.

      Objections to comments made during closing arguments that are

raised for the first time on appeal are reviewed for plain error.

United States v. Flores-Chapa, 48 F.3d 156, 159 (5th Cir. 1995).

                                52
Plain error is reviewed using a three-part test: “First, there must

be error, next, that error must be plain, and finally, the error

must affect substantial rights.”      Id.   If we find such plain error,

we have the discretion to correct the error, but are not required

to do so. United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).

“Plain errors affecting substantial rights should be corrected on

appeal only if they seriously affect the fairness, integrity, or

public   reputation   of   judicial     proceedings.”     Id.   (internal

quotations and citations omitted).

     “Proof of a buyer-seller agreement, without more, is not

sufficient to tie a buyer to a conspiracy.”             United States v.

McKinney, 53 F.3d 664, 672 (5th Cir. 1995).       For the government to

argue that because Scroggins uses drugs, for “him to get cocaine

necessarily means that he’s involved in cocaine trafficking” implies

that merely because Scroggins buys drugs from a seller, he is

involved in a conspiracy. Such an implication is legally erroneous.

     This error, however, did not affect Scroggins’s substantial

rights and did not “seriously affect the fairness, integrity, or

public reputation” of the proceeding.        Vital, 68 F.3d at 119.    We

therefore decline to reverse on this basis.

     There is a significant amount of testimony, besides Scroggins’s

characteristic as a drug addict-buyer, to support a jury finding

that Scroggins was involved in a conspiracy.      Further, the district

court properly instructed the jury on the elements of a drug


                                   53
conspiracy and told the jury to base their verdict on the evidence

presented through witness testimony and not on the argument of

counsel. See United States v. Ellender, 947 F.2d 748, 758 (5th Cir.

1991).   Finally, the complained of statement was but a very small

portion of the prosecutor’s arguments and there was no other like

statement   or    implied    assertion    that     the    mere   buyer-seller

relationship     equated    to   a   conspiracy.         Scroggins   has   not

demonstrated prejudice because of the prosecutor’s statement.

III. District Court’s Refusal to Grant Access to the Presentence
     Reports for Key Witnesses

     Scroggins claims that the district court erred when it denied

his pretrial request that the government produce the presentence

reports (PSRs) for two key government witnesses, Earl Buchanan and

Gregory Byrd, that had been produced in connection with their drug

prosecutions.    The district court denied the motion without giving

any reasons and without any indication that it had reviewed the

reports in camera.

     United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994),

presents a similar situation and describes the proper result.              In

Carreon, the defendant had “requested access to the PSRs of [the

coconspirator] witnesses in order to acquire any exculpatory or

impeachment information under Brady and Giglio.”            Id. at 1238.    We

held that the district court erred in denying the request and

remanded the case so that the district court could inspect the PSRs

and “determine whether [the defendant] was in fact denied access to

                                     54
material Brady or Giglio information and, if so, whether he suffered

prejudice as a result of this denial.”    Id.

      Similar to Carreon, Scroggins requested access to the PSRs of

key government witnesses.    The district court denied the request,

without indicating whether it had conducted an in camera review of

the PSRs and without making the PSRs part of the record.          We

therefore remand the case in order for the district court to

      “1) conduct an in camera inspection and make appropriate
      findings as to whether the PSRs of the government
      witnesses contained any material Brady or Giglio
      information, and 2) compare those findings against the
      evidence [Scroggins] had at trial to determine whether
      the failure to provide this information was harmless
      error. So that these findings and conclusions are
      reviewable on appeal, we require that the district court
      ensure that these PSRs are made a part of the record,
      albeit under seal if need be.” Id.

IV.   Information Relied on by the District Court at Sentencing

      Scroggins argues that information upon which the district court

relied in setting his sentence did not bear a sufficient indicia of

reliability.     Scroggins specifically objects to information and

testimony provided by Buchanan concerning the amount of crack

cocaine involved in the conspiracy of which Scroggins was convicted

and Scroggins’s alleged obstruction of justice.   In both instances,

Buchanan was the only source upon which the guideline calculation

was based.     Scroggins claims that because the information relied

upon by the district court at sentencing is inconsistent with

Buchanan’s testimony at trial, and is also hearsay, the information



                                 55
could not properly be used to set Scroggins’s sentence.55

      A.      Standard of Review

      Factual findings under the Sentencing Guidelines are reviewed

for clear error.           United States v. Reinhart, 357 F.3d 521, 525 (5th

Cir. 2004).        Findings as to the amount of drugs attributable to a

defendant and that a defendant has obstructed justice are both

factual      findings       reviewed      for    clear      error.      United      States      v.

Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998) (quantity of drugs);

United      States    v.    Rickett,       89    F.3d    224,     226    (5th     Cir.     1996)

(obstruction of justice).               “The district court’s findings are not

clearly erroneous if they are plausible in light of the record

reviewed in its entirety.”                United States v. Solis, 299 F.3d 420,

455 (5th Cir. 2002) (internal quotation and citation omitted).

      B.      District Court’s Findings

      The district court found that “there’s no doubt in [its] mind

from the testimony at trial and the testimony hear today that Mr.

Scroggins was involved in a conspiracy that dealt in more than 1.5

kilograms of crack cocaine.”56                  The district court also found that


       55
          Scroggins asserts that much, if not all, of Buchanan’s testimony was rejected by the jury
by its acquittal of Scroggins on count 2 and Bryant on count 1, and therefore, that Buchanan’s
testimony cannot be relied upon at sentencing. As “the jury cannot be said to have necessarily
rejected any facts when it returns a general verdict of not guilty,” United States v. Watts, 117
S.Ct. 633, 637 (1997), the acquittals are essentially immaterial as to whether Buchanan’s
testimony could have been relied on for sentencing purposes.

       56
          Even though the PSR indicated that Scroggins had trafficked in more than 1.5 kilograms
of crack cocaine, because the Sentencing Guidelines mandate the statutory-maximum life sentence

                                                56
Buchanan had testified that “Mr. Scroggins tried to get him to take

the charges” and applied the obstruction of justice enhancement.

We review whether these findings are plausible in light of the

record in its entirety.



      C.      Obstruction of Justice

      Buchanan was the only source indicating that Scroggins merited

the obstruction of justice enhancement under U.S.S.G. § 3C1.1.                                   At

trial on redirect examination, Buchanan testified that Scroggins and

Bryant had asked him not to testify at their trial and promised him

financial support for not testifying.

      Scroggins raises this issue because the district court’s

finding, and the PSR upon which the district court presumably based

its finding, differed from Buchanan’s actual testimony.                                  The PSR

stated that Buchanan “testified in court [that Scroggins] tried to

get him to ‘take the charges’ so [Scroggins] could get away with

being prosecuted for any criminal behavior and [Scroggins] would

take care of [Buchanan] if he were to do this for him.”                               In making

its finding, the district court repeated the substance of the PSR:

“Buchanan has testified that Mr. Scroggins tried to get him to take



for 1.5 kilograms or more of crack cocaine, U.S.S.G. § 2D1.1(c)(1), any amount of crack over
1.5 kilograms is irrelevant. The district court pointed this out at the beginning of the sentencing
hearing. Because the amount of cocaine powder involved in the conspiracy is not close to the
amount needed to uphold Scroggins’s life sentence—150 kilograms or more, id.—the amount of
powder cocaine is also irrelevant for purposes of analyzing the validity of Scroggins’s life
sentence.

                                                57
the charges.”         Our review of Buchanan’s testimony at trial—upon

which the PSR and the district court supposedly relied—does not

disclose any specific “take the charges” testimony.

      Nevertheless,         the    district         court’s    ultimate      finding        that

Scroggins merited the obstruction of justice enhancement, in respect

to his efforts to use Buchanan to obstruct justice with reference

to his trial, is sufficiently supported by the record.                              Buchanan

testified that Scroggins: asked him not to testify in Scroggins’s

trial, promised him financial support if he did not testify, and

asked him not to say anything about Scroggins at the trial.                            As the

district court’s finding of obstruction of justice is plausible in

light of the record reviewed in its entirety, the finding is not

clearly erroneous.          Solis, 299 F.3d at 455.

      D.     Amount of Crack Cocaine

             1.      Buchanan’s Information

      Buchanan       was     the     only      source—either         at     trial      or      at

sentencing—for        the     amount      of    crack     cocaine      involved       in       the

conspiracy.       At sentencing, Agent Green testified that Buchanan had

told him in an interview that Scroggins had trafficked in at least

ten kilograms of cocaine, seven of which were cocaine powder and

three of which were crack cocaine.57

      At trial, however, Buchanan did not testify to the amounts he



       57
          Although Green's testimony at sentencing did not give the time frame of Buchanan's
estimate, Scroggins's PSR did limit Buchanan’s information to the period of the conspiracy.

                                               58
had communicated to Green.      Buchanan first testified that Scroggins

was purchasing cocaine from Shirley Preston from the end of 1998 to

the end of 1999 or the first part of 2000.                These purchases

consisted of one or two kilograms of cocaine at a time, occurred

approximately once a month, but sometimes less frequently, and

consisted of powder cocaine only.        When Buchanan sold this cocaine

for Scroggins, some of it was in the crack form.               Regarding the

cocaine purchased from Preston, Buchanan’s testimony of the amount

of crack cocaine was as follows:

       “[Gov’t]: Do you know approximately how much crack you
       sold?
       [Buchanan]: No, sir. More powder than crack.
       [Gov’t]: Was it more than 50 grams of crack?
       [Buchanan]: Yes, sir.”

Buchanan then testified that Scroggins purchased cocaine from David

Sosa starting in the first part of 2000.         These purchases consisted

of one to two kilograms at a time and occurred approximately once

a month.   Buchanan testified that this cocaine consisted in all of

about five kilograms—one kilogram of crack and four of powder.

           2.     Amount of Drugs and Inconsistent Information

       In making factual findings under the Sentencing Guidelines,

“the   district   court   may   consider   any   information    which   bears

sufficient indicia of reliability to support its probable accuracy,

including hearsay evidence, without regard to admissibility under

the Federal Rules of Evidence which govern at trial.”            Solis, 299

F.3d at 455 (emphasis added) (internal quotation and citation


                                    59
omitted).    Even when a witness has “told lies and contradicted

himself,” although it “creates a credibility question for the

district    court   to   resolve,”   the   testimony   may    still    bear   a

sufficient indicia of reliability.         United States v. Ramirez, 963

F.2d 693, 708 (5th Cir. 1992).

     Specifically with respect to calculating the amount of drugs,

the Seventh and Third Circuits have addressed the question of how

a district court should deal with inconsistencies and contradictions

among the different testimonies of the same witness or between a

sworn testimony of a witness and a hearsay statement of that

witness.    In United States v. Beler, 20 F.3d 1428 (7th Cir. 1994),

the district court relied on two affidavits from a government

witness and the trial testimony of a second witness in calculating

the drug amount.     Id. at 1430.    The information and testimony from

the witness who supplied the affidavits was: 1) at trial, the

witness was unable to estimate the quantity of cocaine he had

purchased from the defendant; 2) the first affidavit, signed prior

to the defendant’s sentencing, stated that the witness had purchased

150 to 200 ounces of cocaine from the defendant; and 3) the second

affidavit   stated   that   the   amount   in   the   first   affidavit     was

incorrect because of a typographical error and that the correct

amount should have been 15 to 20 ounces of cocaine.                   Id.   The

Seventh Circuit found that the district judge’s conclusory finding

as to the reliability of the second affidavit was not acceptable and


                                     60
held that the district court should have further explored the

factual basis for the estimate before accepting the amount as

uncontroverted.         Id.   at    1433–34.      The   Seventh    Circuit    also

recognized that “the district court should have subjected any

information provided by [this witness] to special scrutiny in light

of his dual status as a cocaine addict and government informant.”

Id. at 1435.      The district court in Beler, because of these

inconsistencies    among      the    witness’s    affidavits      and   his   trial

testimony, clearly erred when it did not subject the affidavits to

“searching scrutiny.”         Id. at 1435.        Nevertheless, the Seventh

Circuit noted that on remand, this witness was not barred from

providing drug quantity information, provided that “the district

court scrutinize that information to ensure that it possesses

sufficient indicia of reliability to support its probable accuracy.”

Id. (internal quotation and citation omitted).             In United States v.

McEntire, 153 F.3d 424, 437 (7th Cir. 1998), the court was faced

with a situation analogous to that in Beler and reached the same

result, remanding for the district court to directly address the

contradiction and explain why it credited one statement rather than

the other.

      In United States v. Brothers, 75 F.3d 845 (3d Cir. 1996), a

coconspirator testified at the sentencing hearing that the defendant

“never knew the amount of cocaine involved”; however, the FBI agent

who   had   initially    interviewed     the     coconspirator     gave   hearsay


                                        61
testimony at sentencing that the coconspirator had stated earlier

that the defendant did know of the amount of drugs involved in the

transaction.       Id. at 847.        The Third Circuit went on to emphasize

that,   in   general,        hearsay     evidence     can     be   proper    sentencing

evidence—and      it    may    even     be    credited    “over     sworn    testimony,

especially    where      there    is     other     evidence    to     corroborate    the

inconsistent hearsay statement.” Id. at 848 (internal quotation and

citation omitted).           Although the district court gave reasons why it

believed that the hearsay evidence from the FBI agent was more

credible than the testimony of the coconspirator, id. at 850, the

Third Circuit concluded that the reasons could not support the

district court’s conclusion.             Id. at 853.

     These cases illustrate the following principles in the context

of calculating the amount of drugs for sentencing purposes: 1) a

witness’s inconsistent and contradictory testimonies, be they from

sworn   testimony       or    hearsay,       may   properly    form    the   basis   for

calculating       the   amount     of     drugs;     2)     however,    in   cases    of

inconsistent or contradictory statements from the same witness, the

district court must sufficiently scrutinize the evidence, and 3)

provide a rationale in the record for why it chose to believe one

inconsistent statement over another.

             3.    District Court’s Reliance on Buchanan’s Information

                   a.        Hearsay Evidence

     We reject Scroggins’s contention that the district court could


                                             62
not have relied on Green’s testimony of what Buchanan told him

because it was hearsay.         As a district court may properly rely on

hearsay evidence at sentencing, Solis, 299 F.3d at 455, the hearsay

nature of Green’s testimony, by itself, does not create any error.

                 b.      Amount of Drugs

      In sum, Buchanan’s versions of the amount of crack cocaine for

which Scroggins was responsible included: 1) trial testimony of at

least   1.05   kilograms,    but    with   Buchanan   unable   to   know   the

approximate total amount (more than fifty grams from Preston, and

one kilogram from Sosa); and 2) information given to Green of about

three kilograms.      While the amounts differ, the two accounts would

not necessarily be inconsistent but for Buchanan’s testimony that

he did not know approximately how much of the Preston-cocaine was

crack cocaine.

      We conclude that the district court did not sufficiently

scrutinize Buchanan’s inconsistent statements and did not provide

a rationale in the record for believing one version over another.

In detailing its findings, the district court stated that it had

relied on the testimony at trial and at sentencing, but it did not

say   anything   about    the    differences   between   Buchanan’s    trial

testimony and the information Buchanan gave Green and of which Green

testified at sentencing.

      It also appears that in arriving at its finding, the district

court was confused, and likely influenced, by other evidence given


                                      63
at the sentencing hearing and in the PSR concerning the amount of

cocaine. Green also testified at sentencing that Scroggins had told

Green        that    he    had    received       one    to    two   kilograms   of   cocaine

approximately every two weeks for about a three- to four-month

period.58           On cross-examination, Green added that this purchase-

pattern could have resulted in at least 6 kilograms of cocaine, but

that it could have been more.                    Green, however, did not distinguish

at   all       between       powder       or    crack     cocaine.      Nevertheless,     as

Scroggins’s counsel was giving her closing statements at sentencing,

it was apparent that there was confusion about whether Green had

testified about powder or crack cocaine:

      “[Scroggins’s Counsel]: . . .    And unless the Court is
      believing solely and only the testimony of Earl Buchanan,
      . . . then the Court could find reason for giving Mr.
      Scroggins less than life based upon the testimony of
      Agent Green in that he used the statements that Mr.
      Scroggins gave to him as being between 6 and 8 kilograms
      of powder cocaine.
      THE COURT: Crack cocaine.
      [Scroggins’s Counsel]: No, I believe that he said powder
      cocaine. Now, Mr.—
      THE COURT: I think he said both.      I think he said 3
      kilograms of crack. Was that—
      [Scroggins’s Counsel]: Mr. Buchanan testified to crack.
      THE COURT: Yes.
      [Scroggins’s Counsel]: But not Mr. Scroggins—
      THE COURT: Well, I understand.
      [Scroggins’s Counsel]: —in his reports to Agent Green,
      and I’m asking you to use that as your basis for lowering
      him below the life sentence range.” (emphasis added).

The district court then overruled Scroggins’s objection to the

amount of crack cocaine and reiterated its finding that Scroggins


        58
             Green gave essentially the same testimony at trial.

                                                   64
was responsible for at least 1.5 kilograms of crack cocaine.59

      Our review of the record indicates that Green did not testify

specifically about crack or powder cocaine; Buchanan was the only

source at trial or at the sentencing hearing that gave information

about the amount of crack cocaine.                     We believe that the district

court’s confusion as to the content of Green’s testimony, which was

most likely due to a misrepresentation in the addendum to the PSR,60

likely influenced the district court’s conclusion regarding the

amount of crack cocaine involved in the conspiracy. If the district

court thought that Green’s testimony of what Scroggins told him

included amounts of crack cocaine over 1.5 kilograms, it would not

have been particularly concerned about the differences in Buchanan’s

information, perhaps explaining why the district court did not

attempt to address the differences.



       59
         1.5 kilograms of crack cocaine resulted in a minimum (and maximum) guideline
sentence of life imprisonment. The next lowest category of crack cocaine volume is .5 to 1
kilogram, under which the guidelines sentencing range would have been 360 months to life.
       60
          The PSR concluded that a “conservative best estimate” of the amount of crack cocaine
involved was at least three kilograms. Scroggins objected by arguing that that amount of crack
cocaine was based entirely on Buchanan’s information. The government responded by arguing
that Scroggins’s own statements to Green that Scroggins had purchased approximately one to
two kilograms of cocaine approximately every two weeks for a three- to four-month period
corroborated Buchanan’s information given to Green. The second time the government referred
to Scroggins’s statements to Green, it stated that the Scroggins’s statement was “just one instance
in which [Scroggins] admitted to drug trafficking activities in excess of 1.5 kilograms of crack
cocaine.” (emphasis added). The addendum to the PSR agreed with the government’s position.
        In spite of the government’s claim that Scroggins referred to crack cocaine in his
statements to Green, we have not found any such reference in the record. Both at trial and at
sentencing when Green testified about his conversations with Scroggins, he did not distinguish at
all between powder and crack cocaine.

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      Therefore, we remand the case for resentencing with respect to

the quantity of crack cocaine (and, should it become relevant, the

quantity of powder cocaine).

                                          Conclusion

      Based on the foregoing, we REMAND the case to the district

court to consider Scroggins’s motion for new trial in the interest

of justice (Part I.A.4 hereof above).                      We also REMAND in order for

the district court to review the PSRs of Earl Buchanan and Gregory

Byrd to determine whether these PSRs include any material Brady or

Giglio information to which Scroggins was denied access (Part III

hereof above).          Finally, we VACATE Scroggins’s sentence as to the

quantity      of    crack      cocaine       and     REMAND       for     resentencing         not

inconsistent with this opinion (Part IV.D hereof above).61                                       We

reject all other points of error raised by Scroggins and affirm the

district court’s rulings in the respects challenged.62

       61
         Of course, resentencing would not be appropriate if the district court, pursuant to our
remand, first sets aside the conviction.
       62
          Scroggins has raised three other issues that we decline to review. Scroggins first raises
two arguments that he concedes are foreclosed in this circuit. Scroggins argues that 21 U.S.C. §
841(b)(1)(A) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
therefore, that he should have been sentenced in accordance to § 841(b)(1)(C). Scroggins
concedes that this argument is foreclosed in this circuit. See United States v. Slaughter, 238 F.3d
580 (5th Cir. 2000), cert. denied, 121 S.Ct. 2015 (2001); United States v. Fort, 248 F.3d 475,
483 (5th Cir.), cert. denied, 122 S.Ct. 405 (2001). Scroggins also argues that because he has
been sentenced on the basis of thirty times more cocaine base than he was charged with without
being afforded a jury finding regarding the amount determined at sentencing, his resulting
sentence violates due process. Nevertheless, Scroggins concedes that this argument has been
foreclosed in this circuit. See, e.g., United States v. Keith, 230 F.3d 784, 786–87 (5th Cir. 2000),
cert. denied, 121 S.Ct. 1163 (2001); United States v. Salazar-Flores, 238 F.3d 672, 673–74 (5th
Cir. 2001). As Scroggins raises these arguments merely to preserve Supreme Court review,

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                                     SENTENCE VACATED

                                       CAUSE REMANDED




concedes that they are foreclosed, and does not develop the arguments whatsoever, we do not
review these claims.
         Scroggins has also filed a supplemental brief in which he claims that under the recent
Supreme Court case of Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (U.S. June 24,
2004), his sentence is unconstitutional. Although we granted Scroggins’s June 29, 2004 motion
to file a supplemental brief on the issue, our order doing so states that the order granting the
motion does not constitute a determination that any issue raised pursuant to the motion was
properly or timely before us. As Scroggins did not raise the issue in his initial brief, reply brief,
oral argument, or earlier supplement briefs, but nearly two months after oral arguments, we
decline to address this issue now, particularly as Scroggins’s argument is foreclosed in this circuit
by United States v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004), in which we held that Blakely
does not invalidate the Federal Sentencing Guidelines. Even if we were to review the issue,
Scroggins concedes that we would do so under the plain error standard. In light of Pineiro, there
cannot have been plain error.

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