United States v. Robert ( 2021 )


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  • Case: 20-61084     Document: 00516037070         Page: 1     Date Filed: 09/30/2021
    United States Court of Appeals
    for the Fifth Circuit                           United States Court of Appeals
    Fifth Circuit
    FILED
    September 30, 2021
    No. 20-61084
    Summary Calendar                     Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Daniel Robert,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 3:14-CR-11-2
    Before Barksdale, Willett, and Duncan, Circuit Judges.
    Per Curiam:*
    Daniel Robert was convicted of: in 2007, conspiring to possess, with
    intent to distribute, 500 grams or more of a mixture or substance containing
    cocaine hydrochloride, in violation of 
    21 U.S.C. § 846
     (count one); in 2007,
    aiding and abetting possession, with intent to distribute, 500 grams or more
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 20-61084      Document: 00516037070           Page: 2     Date Filed: 09/30/2021
    No. 20-61084
    of a mixture or substance containing cocaine hydrochloride, in violation of 
    21 U.S.C. § 841
    (a)(1) (count two); in 2009, conspiring to possess, with intent to
    distribute, five kilograms or more of a mixture or substance containing
    cocaine hydrochloride, in violation of 
    21 U.S.C. § 846
     (count three); and in
    2009, aiding and abetting attempted possession, with intent to distribute, five
    kilograms or more of a mixture or substance containing cocaine
    hydrochloride, in violation of 
    21 U.S.C. § 841
    (a)(1) (count four). He was
    sentenced to, inter alia, 330-months’ imprisonment.             He appeals his
    convictions, challenging, inter alia: sufficiency of the evidence; denial of his
    motion to sever; a claimed variance between counts one and three and the
    proof at trial; and admission of other-acts evidence.
    A preserved sufficiency-of-the-evidence challenge is reviewed de novo.
    United States v. Brown, 
    727 F.3d 329
    , 335 (5th Cir. 2013). Our review asks
    whether the evidence would allow “any rational trier of fact [to find] the
    essential elements of the crimes beyond a reasonable doubt”. 
    Id.
     (emphasis
    in original) (citation omitted); see also United States v. Pando Franco, 
    503 F.3d 389
    , 394 (5th Cir. 2007) (“[T]he sole inquiry is not whether the jury’s verdict
    was ultimately correct but whether the jury made a reasonable decision based
    upon the evidence introduced at trial”.). The evidence is viewed in the light
    most favorable to the verdict, giving the Government the benefit of all
    reasonable inferences and credibility choices. Brown, 727 F.3d at 335. Along
    that line, the jury is the sole decider of the credibility of witnesses, and “[w]e
    will not second guess the jury in its choice of which witnesses to believe”.
    United States v. Zuniga, 
    18 F.3d 1254
    , 1260 (5th Cir. 1994) (citations
    omitted).
    The Government presented evidence that Robert and codefendants
    drove to Texas on multiple occasions to obtain drugs for distribution in
    Mississippi. Robert contends the Government failed to show he was involved
    in, or even aware of, the offenses charged. This overlooks his codefendants’
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    No. 20-61084
    testimony implicating him, not only in those offenses, but in a larger pattern
    of drug trafficking. The uncorroborated testimony of a single coconspirator
    can sustain a conviction. United States v. Bermea, 
    30 F.3d 1539
    , 1552 (5th Cir.
    1994). Here, the jury heard detailed accounts from two coconspirators; the
    testimony was consistent and corroborated other evidence, including
    circumstantial evidence of: planning, coordination, and intent. See United
    States v. Zamora-Salazar, 
    860 F.3d 826
    , 832 (5th Cir. 2017) (noting “jury
    may infer any element of conspiracy from circumstantial evidence” (citation
    omitted)). The evidence sufficiently proved the offenses’ essential elements.
    Robert’s reliance on Sears v. United States, 
    343 F.2d 139
     (5th Cir. 1965), is
    misplaced because it did not turn on sufficiency. To the extent he contends
    his convictions on counts one and two required proof he personally possessed
    cocaine, his challenge is misplaced. See, e.g., United States v. Scott, 
    892 F.3d 791
    , 799 (5th Cir. 2018) (noting “Government is not required to prove actual
    or constructive possession [for] aiding and abetting”).
    Regarding denial of his pre-trial motion to sever, Robert contends he
    was prejudiced as to counts one and two, the offenses in 2007, by the joinder
    of counts three and four, the offenses in 2009. Joinder is prejudicial “when
    the jury is unable to separate the evidence and apply it to the proper offenses,
    or where the jury might use the evidence of one of the crimes to infer criminal
    disposition to commit the other crimes charged”. United States v.
    Fortenberry, 
    914 F.2d 671
    , 675 (5th Cir. 1990) (holding joinder of related
    counts not prejudicial because evidence “distinct in time and source” and
    jury would encounter “little difficulty separating [it]”). A severance-denial
    is reviewed for abuse of discretion and will not be reversed absent “a showing
    of specific and compelling prejudice which results in an unfair trial”. United
    States v. Ballis, 
    28 F.3d 1399
    , 1408 (5th Cir. 1994).
    Robert fails to make that showing. Moreover, the court instructed the
    jury to distinguish each count and its related evidence. This instruction
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    generally suffices to cure any prejudice from a failure to sever counts. See
    United States v. Hickerson, 
    489 F.3d 742
    , 746 (5th Cir. 2007) (holding district
    court did not abuse its discretion, jury given instruction and defendant failed
    to establish it was disregarded).
    Next, regarding counts one and three, Robert contends there was a
    variance between the indictment and the proof at trial. Even assuming this
    to be true, reversal is unwarranted because he fails to demonstrate prejudice.
    See United States v. Jara-Favela, 
    686 F.3d 289
    , 299–300 (5th Cir. 2012)
    (explaining reversal warranted only when difference between indictment and
    jury instruction allows “defendant to be convicted of a separate crime from
    the one for which he was indicted” (citation omitted)). A variance does not
    constitute reversible error if “defendant receives notice and is not subject to
    the risk of double jeopardy”. United States v. Ekanem, 
    555 F.3d 172
    , 174 (5th
    Cir. 2009) (citation omitted). Robert does not assert: he was prejudiced in
    preparing his defense; he is at risk of double jeopardy; or the jury was charged
    improperly on counts one and three. Moreover, jurors were cautioned
    repeatedly against drawing the type of inference he maintains the
    indictment’s wording might have suggested.
    As for his other-acts-evidence challenge, evidentiary rulings are
    reviewed for abuse of discretion; and this review, understandably, “is
    necessarily heightened” for criminal proceedings. United States v. Sumlin,
    
    489 F.3d 683
    , 688 (5th Cir. 2007). Generally, other-acts evidence is not
    admissible to prove a person possessed a particular character or character
    trait. Fed. R. Evid. 404. Admissibility turns, inter alia, on whether the
    evidence is intrinsic or extrinsic. United States v. Rice, 
    607 F.3d 133
    , 141 (5th
    Cir. 2010) (holding court did not abuse discretion by admitting intrinsic
    other-act evidence). Evidence is intrinsic if “inextricably intertwined” with
    evidence of a charged offense; this evidence is generally admissible. See id.;
    Sumlin, 
    489 F.3d at 689
     (noting “Rule 404(b) only applies to limit the
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    admissibility of evidence of extrinsic acts”). Extrinsic other-act evidence is
    admissible if, as discussed infra, it satisfies the two-prong test provided in
    United States v. Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc); see
    Fed. R. Evid. 404(b).
    Two coconspirators testified about uncharged trafficking offenses.
    Robert did not object to the admission of some of this testimony; reversal,
    therefore, is not warranted unless he shows reversible plain error. See, e.g.,
    United States v. Ceballos, 
    789 F.3d 607
    , 617, 620–21 (5th Cir. 2015) (holding
    defendant failed to meet standard). Some of the challenged testimony may
    qualify as intrinsic evidence, as the Government contends. Parsing the
    relevant statements individually is unnecessary, however, because, even
    assuming his challenges are preserved and none of the evidence is intrinsic,
    he does not show they run afoul of the Beechum test.
    Beechum’s first prong asks whether the “evidence is relevant to an
    issue other than the defendant’s character”. Beechum, 
    582 F.2d at 911
    .
    Evidence of Robert’s involvement in a pattern of trafficking activity was
    probative of his knowledge and intent. See, e.g., United States v. Garcia
    Mendoza, 
    587 F.3d 682
    , 689 (5th Cir. 2009) (concluding evidence of accused
    conspirator’s involvement in another drug conspiracy five years earlier
    “highly relevant” to his intent). Although Robert maintains he did not place
    his intent at issue, he is mistaken. See United States v. Booker, 
    334 F.3d 406
    ,
    411 (5th Cir. 2003) (“The mere entry of a not guilty plea in a conspiracy case
    raises the issue of intent sufficiently to justify the admissibility of extrinsic
    offense evidence.” (citation omitted)).
    Beechum’s second prong asks whether the probative value of extrinsic
    evidence is “substantially outweighed” by the risk of undue prejudice.
    Beechum, 
    582 F.2d at 911
    . Limiting instructions can “greatly minimize any
    risk of undue prejudice posed by the admission of extrinsic evidence”.
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    Garcia Mendoza, 
    587 F.3d at 689
    . The jury received one. Robert contends
    this instruction was ineffective, but his assertion is unclear and unpersuasive.
    His largely unexplained references to the strictures of Federal Rule of
    Evidence 104(b) (relevance depending on facts) are no more successful in
    bolstering his claims.
    Robert refers to other legal theories and points of error. Those issues
    are inadequately briefed; he, therefore, has abandoned them. United States
    v. Scroggins, 
    599 F.3d 433
    , 446–47 (5th Cir. 2010) (noting merely alluding to
    legal theory without explanation constitutes failure to brief). We also decline
    to review issues raised for the first time in his reply. 
    Id. at 447
     (explaining
    issues not raised in initial brief on appeal generally not reviewed).
    AFFIRMED.
    6