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 2004-01

United States v. Stewart , 86 F. App'x 703 ( 2004 )


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  •                                                         United States Court of Appeals
Fifth Circuit
F I L E D
January 29, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
Clerk
No. 03-50410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY EARL STEWART,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-02-CR-25-1
- - - - - - - - - -
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Terry Earl Stewart appeals his convictions, following a jury
trial, of conspiracy to possess with intent to distribute 50 or
more grams of cocaine base, possession of cocaine base with intent
to distribute, and distribution of cocaine base, in violation of
    21 U.S.C. §§ 841
    (a) and 846.     The court sentenced Stewart to life
imprisonment as to the conspiracy count and 30-year prison terms as
to the possession and distribution counts, with the terms to run
concurrently.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 03-50410
-2-
Stewart contends that the trial evidence was insufficient
to support any of his convictions.         The standard for reviewing a
claim of insufficient evidence is whether “a rational trier of fact
could have found that the evidence establishes the essential
elements of the offense beyond a reasonable doubt.”          United States
v. Villarreal,
    324 F.3d 319
    , 322 (5th Cir. 2003) (citing Jackson v.
Virginia,
    443 U.S. 307
    , 319 (1979)).        Review of the sufficiency of
the evidence does not include review of the weight of the evidence
or of the credibility of the witnesses.         United States v. Garcia,
    995 F.2d 556
    , 561 (5th Cir. 1993).
Stewart contends that the evidence was insufficient to support
his conspiracy conviction because the Government relied on a
“rogue’s gallery” of witnesses who were facing drug-trafficking
charges or who had already been imprisoned for drug-trafficking
convictions.      The testimony of various Government witnesses was
sufficient   to    support   the   conspiracy   conviction    because      the
testimony established the existence of an agreement between two or
more persons to violate narcotics laws, Stewart’s knowledge of such
agreement, and his voluntary participation in it.                 See United
States v. Peters,
    283 F.3d 300
    , 307 (5th Cir.), cert. denied,
    536 U.S. 934
     (2002); United States v. Westbrook,
    119 F.3d 1176
    , 1190
(5th Cir. 1997) (“uncorroborated testimony of a co-conspirator” is
sufficient as long is “not factually insubstantial or incredible”).
Stewart contends that the evidence was insufficient to support
his conviction     of   possession   of   cocaine   base   with   intent    to
distribute on September 21, 2001, because no drugs were found on
his person or in his vehicle.          The evidence was sufficient to
No. 03-50410
-3-
establish to support this conviction because it showed that Stewart
and his girlfriend Latoya (or “Toyah”) Golden were stopped on the
street in a drug-trafficking area of Midland, Texas, that cocaine
base was found on Golden’s person during this detention, and that
Stewart and Golden regularly sold cocaine base together in the
area.    See United States v. Fierro,
    38 F.3d 761
    , 768 (5th Cir.
1994) (defining aiding and abetting).
Stewart argues that the evidence was insufficient to support
his distribution conviction, relating to a drug transaction on
October 10, 2001.   The evidence overwhelmingly established that
Midland police officers sent a confidential informant (“CI”) to
perform a controlled purchase of cocaine base from Stewart and that
the CI bought from Stewart 16 “crack” cocaine rocks weighing 2.84
grams.   See United States v. Sotelo,
    97 F.3d 782
    , 789 (5th Cir.
1996).
Finally, Stewart argues that the district court abused its
discretion in admitting into evidence an audiotape and transcript
thereof from the October 10, 2001, controlled purchase.   The “poor
quality and partial unintelligibility” of the tape did not render
the tape inadmissible, United States v. Booker,
    334 F.3d 406
    , 412
(5th Cir. 2003) (citation omitted), and the court gave the jury
cautionary instructions regarding the poor quality of the tape.
See United States v.   Stone,
    960 F.2d 426
    , 436 (5th Cir. 1992).
The court did not abuse its discretion in admitting the tape.   See
United States v. White,
    219 F.3d 442
    , 448 (5th Cir. 2000).
Stewart’s convictions are AFFIRMED.