United States v. Simmons ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-40016
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LEE SIMMONS, JR.,
Defendant-Appellant.
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No. 99-40193
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREA EMEARY SIMMONS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:96-CR-67-1
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March 15, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Codefendants-appellants Tommy Lee Simmons, Jr., and Andrea
Emeary Simmons, husband and wife, appeal their convictions and
sentences for several offenses involving drug-trafficking and
fraud.
* Pursuant to 5th Cir. 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that this opinion should not be published and is not precedent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 Cir. Rule
47.5.4.
No. 99-40016
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Andrea Simmons argues that the evidence was insufficient to
support her convictions for conspiracy to commit bank fraud (in
violation of 18 U.S.C. §§ 371 and 1344), conspiracy to distribute
cocaine base (in violation of 21 U.S.C. § 846), possession of
forged securities (in violation of 18 U.S.C. § 513(a), and two
counts of using a false Social Security number (in violation of
42 U.S.C. § 407(a)(7)(B)). She moved for a judgment of acquittal
as to only the drug-trafficking-conspiracy and one of the false-
Social-Security-number counts. We have reviewed the sufficiency
of the evidence to support these convictions to determine whether
any rational trier of fact could have found that the evidence
establishes the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); Glasser v. United States, 315 U.S. 60, 80 (1942). The
evidence amply showed that Andrea conspired with her husband
Tommy to distribute crack cocaine and that she provided a false
Social Security number on several automobile-financing documents.
That the Government did not show that Andrea provided such a
number on the exact date alleged in the indictment is not fatal
to such conviction. See United States v. Powers, 168 F.3d 741,
746 (5th Cir.), cert. denied, 120 S. Ct. 360 (1999).
Because Andrea Simmons did not move for a judgment of
acquittal as to the bank-fraud conspiracy, possession-of-forged-
securities, and the second of the false-Social-Security-number
counts, the sufficiency of the evidence supporting these counts
is reviewed only for plain error, meaning that this court will
reverse the conviction only to avoid a “manifest miscarriage of
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No. 99-40193
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justice.” See United States v. Parker, 133 F.3d 322, 328 (5th
Cir.), cert. denied, 523 U.S. 1142 (1998). The evidence was
sufficient to support her convictions of these counts, however,
even under the Jackson standard.
Both Tommy and Andrea Simmons contend that the district
court erred in excluding from evidence a prior felony-escape
conviction of crucial Government witness Kenneth King; the
appellants wished to use the conviction to attack King’s
credibility. Both appellants contend that such conviction was
admissible pursuant to FED. R. EVID. 609(a)(2). The escape
conviction was not admissible under Rule 609(a)(2) because it was
not a crime involving “dishonesty or false statement.” With
respect to Rule 609(a)(1), the district court did not abuse its
discretion in excluding the conviction, because a wealth of other
evidence that included King’s convictions for other offenses was
available upon which to attack King’s trustworthiness.
See United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.
1991); FED. R. EVID. 403.
Finally, both appellants argue that the district court erred
in attributing to each of them at least 150 grams of crack
cocaine for sentencing purposes. The district court did not
clearly err in approximating the quantity of crack sold by the
appellants to several trial witnesses who testified regarding the
drug-distribution conspiracy. United States v. Torres, 114 F.3d
520, 527 (5th cir. 1997); U.S.S.G. § 2D1.1, comment. (n.12) (when
there is no drug seizure, the court may approximate the
quantity).
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AFFIRMED.