United States v. Derrow ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40568
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL JOSEPH DERROW;
DARON LOUIS RICHARDSON,
Defendants-Appellants.
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Appeal from the United States District Court for the
Eastern District of Texas
USDC No. 9:98-CR-6-9
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April 13, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Joseph Derrow and Daron Louis Richardson appeal their
jury convictions. Derrow argues that there was insufficient
evidence proving that he possessed with intent to distribute crack
cocaine in the Eastern District of Texas as alleged in count three
of the indictment. Derrow also raises a general objection that the
district court abused its discretion when it allowed testimony
about Derrow’s drug activities in Nebraska, Arkansas, Alabama, and
*
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this opinion should not be published and is not precedent except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.
Louisiana, which he states were not alleged in the indictment
counts. Richardson argues that there was insufficient evidence
establishing that he was part of the conspiracy to possess with
intent to distribute crack cocaine.
Derrow’s argument that there was insufficient evidence that he
possessed crack cocaine in the Eastern District of Texas, as
opposed to the Southern District of Texas (Houston) where he dealt
his drugs, is a venue challenge. Derrow did not raise this issue
at any time in the trial court, and he has thus waived this issue.
See United States v. Solomon, 29 F.3d 961, 964 (5th Cir. 1994); see
also United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984).
Derrow’s plea of not guilty to the conspiracy charge placed at
issue his intent to commit the offenses, and evidence of his drug
offenses in other states was admissible to prove this element. See
United States v. Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996); Fed.
R. Evid. 404(b). Also, the district court gave the jury a limiting
instruction as to how to view the testimony regarding Derrow’s
other dealings, thus, mitigating the potential for prejudice from
such evidence. See United States v. Bailey, 111 F.3d 1229, 1234
(5th Cir. 1997).
The trial record reveals that there was sufficient evidence
demonstrating the existence of a conspiracy to possess with intent
to distribute crack cocaine, Richardson’s knowledge of the
conspiracy, and his willing participation in the conspiracy. See
2
United States v. Broussard, 80 F.3d 1025, 1030-31 (5th Cir. 1996).
Richardson’s argument is without merit.
The convictions of both Derrow and Richardson are
A F F I R M E D.
3