United States v. Lee ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 10, 2007
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 06-51399
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
VERSUS
WANDA LEE,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
7:04-CR-32-1
Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Wanda Lee has taken an out-of-time appeal from her 2004 convictions for various drug-
trafficking offenses. Lee raises three issues on appeal. Based on our review of the record and
after considering the briefs of counsel, we conclude that none of Lee’s arguments have merit and
we therefore affirm her conviction.
I.
Wanda Lee, along with codefendants Mary Jennings and Donnie Younger, was charged in
five counts of a seven-count indictment. Count one charged that all three defendants conspired to
distribute at least five grams of a substance containing cocaine base (crack) within 100 feet of a
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
youth center, in Midland Texas, and within 1000 feet of an elementary school. Counts two, three,
four, and seven are substantive distribution counts. The jury convicted Lee on all five counts.
She did not appeal but subsequently filed a motion pursuant to 28 § U.S.C. 2255 asserting that
her counsel had been ineffective for failing to appeal as directed. The Government did not oppose
Lee’s out-of-time appeal, so the district court entered an order permitting Lee to appeal. The
district court did not, however, re-enter the criminal judgment. Lee now appeals.
II.
We examine sua sponte the basis of our jurisdiction. United States v. West, 240 F.3d 456,
458 (5th Cir. 2001) (citing United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995)). Lee’s notice of
appeal is late because it was filed over 17 months after the district court entered the original
conviction and the district court did not re-enter the judgment when it granted the out-of-time
appeal. Id. at 459 (“when leave to file an out-of-time appeal is granted, the district court should
reinstate the criminal judgment to trigger the running of a new Rule 4(b) appeal period”) (citing
Mack v. Smith, 659 F.2d 23, 25–26 (5th Cir. 1981)). Recently, however, this Court has stated
that for deadlines for filing federal notices of appeal in criminal, as opposed to civil, cases, “the
rule concerning criminal cases [is] not jurisdictional and could be waived.” United States v.
Martinez, 2007 WL 2285324, *1 (5th Cir. 2007) (emphasis in original) (citing Bowles v. Russell,
127 S. Ct. 2360, 2365 (2007)). It was recently an open issue whether Fed. R. App. P. 4(b) is
jurisdictional. See United States v. Leijano-Cruz, 473 F.3d 571 (5th Cir. 2006). The Supreme
Court, however, recently clarified that time limits not imposed by statute are not jurisdictional.
Bowles, 127 S. Ct. at 2365. The specific implication is that these time limits may be waived. Id.(“We have treated the rule-based time limit for criminal cases differently, stating that it may be
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waived ....”). Accordingly, because the Government did not oppose Lee’s out-of-time appeal,
and has thus waived application of Rule 4(b), we may address this case on the merits.
III.
On the merits, Lee first argues that there was a fatal variance between the indictment and
the Government’s proof at trial. She argues that count one of the indictment alleged a single
conspiracy among Lee, Jennings, and Younger, but there was no evidence presented that Lee was
involved in the drug transactions that occurred between the paid informant and Younger and there
was no evidence presented that Younger was involved in the transactions that occurred between
the paid informant and Lee and Jennings. Simply put, Lee claims that the Government did not
prove a single conspiracy, but instead proved a series of separate conspiracies between the
defendant and each of her two codefendants.
A variance occurs when the charging terms of an indictment remain unaltered but the
evidence at trial proves facts other than those alleged. United States v. Freeman, 434 F.3d 369,
374 (5th Cir. 2005) (citing United States v. Puig-Infante, 19 F.3d 929, 935 (5th Cir. 1994)). A
variance is reviewed for harmless error. Id. To prevail on a claim of fatal variance, the defendant
must demonstrate both that the variance was material and prejudicial to defendant's substantial
rights. Id. (quoting United States v. Guidry, 406 F.3d 314, 322 (5th Cir. 2005), cert denied, 546
U.S. 888 (2005)).
“To prove a conspiracy, the government must prove (1) the existence of an agreement
between two or more persons to violate the narcotics laws; (2) that each conspirator knew of the
conspiracy and intended to join it; and (3) that each alleged conspirator participated in the
conspiracy.” United States v. Morris, 46 F.3d 410, 414–15 (5th Cir. 1995). The number of
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conspiracies proved at trial is a fact question within the jury's province. United States v. Mitchell,
484 F.3d 762, 769 (5th Cir. 2007) (citing United States v. Morrow, 177 F.3d 272, 291 (5th Cir.
1999) (per curiam)). We will affirm the jury's finding of a single conspiracy “unless the evidence
and all reasonable inferences, examined in the light most favorable to the government, would
preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt.” Morris,
46 F.3d at 415 (quoting United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989)). Finally,
if the evidence does point toward multiple conspiracies, the defendant’s substantial rights are not
affected so long as the Government establishes the defendant's involvement in at least one of the
proved conspiracies. Mitchell, 484 F.3d at 770 (citing Morrow, 177 F.3d at 291).
Our review of the record satisfies us that there was sufficient overlapping of the
participants in the various transactions such that a reasonable jury could find a single conspiracy
beyond a reasonable doubt. We must therefore reject Lee’s first argument.
IV.
Lee moved for judgment of acquittal at the close of the Government’s case and did not
present any evidence, therefore preserving her sufficiency challenge for appeal. See United States
v. Yi, 460 F.3d 623, 629 (5th Cir. 2006). In reviewing the sufficiency of the evidence, we view
the evidence and the inferences drawn therefrom in the light most favorable to the verdict.
Mitchell, 484 F.3d at 768 (citing United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)).
In doing so, we determine whether any rational jury could have found the defendant guilty beyond
a reasonable doubt and “our standard of review does not change if the evidence that sustains the
conviction is circumstantial rather than direct.” Id. (quoting United States v. Burton, 126 F.3d
666, 669–70 (5th Cir. 1997)); United States v. Jaramillo, 42 F.3d 920, 922–23 (5th Cir. 1995) (“In
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reviewing an appeal based on insufficient evidence, the standard is whether any reasonable trier of
fact could have found that the evidence established the appellant’s guilt beyond a reasonable
doubt.”).
A.
Lee attacks the sufficiency of the evidence to prove her conviction on each count. With
respect to the conspiracy charged in count one, Lee argues that there was no evidence that all
three codefendants were involved in each of the transactions. As explained above, and viewed in
the light most favorable to the Government, our review of the facts satisfies us that a rational jury
could find a single conspiracy among the three codefendants.
With respect to the charges in counts two and seven that Lee distributed crack, the
Government was required to prove that Lee (1) knowingly (2) distributed (3) crack cocaine as
alleged in the indictment. Lee argues that the only direct evidence linking her to the two drug
transactions came from the testimony of a paid Government informant. A conviction may be
sustained based on the testimony of a paid Government informant so long as procedural
safeguards are observed. United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). The jury
has the responsibility to determine the credibility of a witness, United States v. Millsaps, 157 F.3d
989, 994 (5th Cir. 1998), and concerns of witness credibility are usually not a sound basis for
alleging insufficiency of the evidence on appeal, United States v. Polk, 56 F.3d 613, 620 (5th Cir.
1995). Viewed in the light most favorable to the Government, our review of the record satisfies
us that a reasonable jury could find that Lee distributed crack.
With respect to the aiding and abetting the distribution of crack charged in counts three
and four, the Government was required to prove that Lee (1) associated with the criminal venture,
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(2) purposefully participated in the crime, and (3) sought by her actions for it to succeed. United
States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). “To aid and abet simply means to assist the
perpetrator of a crime while sharing the requisite criminal intent.” Jaramillo, 42 F.3d at 923. Lee
argues that she did not aid and abet because she was merely present when the crimes took place.
Viewed in the light most favorable to the Government, our review of the record satisfies us that
the jury was entitled to find that Lee participated sufficiently to support the conviction for aiding
and abetting the distribution of crack.
B.
Finally, Lee argues that the evidence presented at trial was insufficient to show the TEEN
F.L.O.W. Youth Center was a “youth center” as defined by 21 U.S.C. § 860(e)(2) (“youth
center” is “a recreational facility and/or gymnasium (including any parking lot appurtenant
thereto), intended primarily for use by persons under 18 years of age, which regularly provides
athletic, civic, or cultural activities”). Because there was uncontroverted and unchallenged
testimony that the TEEN F.L.O.W. Youth Center was a “youth center” where children played
basketball, our review of the record satisfies us that sufficient evidence supports the jury’s verdict.
V.
For the foregoing reasons, the judgement of the district court is AFFIRMED.
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