United States v. Peters , 283 F.3d 300 ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-40587
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
RONNIE DONNELL PETERS, also known as Cuda, also known as Coota; SHANNON
BERNARD PETERS, also known as Six Flags, also known as Shane, also known as Hazelwood;
VELMA ALTISE BOYD, also known as Tese; ROGER QUINCY EDMONSON
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Texas, Sherman Division
February 14, 2002
Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Ronnie Donnell Peters, Shannon Bernard Peters, Velma Altise Boyd, and Roger Quincy
Edmonson (collectively “Defendants” or “Appellants”) were among 16 people indicted and convicted
on drug-related charges in Sherman, Texas following a six-month undercover operation. The
Appellants appeal from their convictions of conspiracy to possess with the intent to distribute crack
1
cocaine, possession with intent to distribute crack cocaine, and aiding and abetting possession with
the intent to distribute crack cocaine. Ronnie Peters and Shannon Peters also appeal from their
sentences. For the reasons assigned, we affirm the convictions and sentences appealed from.
FACTS AND PROCEDURAL HISTORY
In response to a request by local police, a team of agents from the United States Drug
Enforcement Agency (collectively “DEA”) went to Grayson County, Texas to investigate crack
cocaine1 dealing in Sherman and Denison, Texas. The investigation involved controlled purchases
of drugs using a paid confidential informant, Diana Story, and undercover officers. Law enforcement
personnel recorded and monitored the drug transactions between Story and the suspects.
On November 19, 1999, a grand jury in the Eastern District of Texas returned a 38 count
indictment against Appellants and 11 other individuals. On December 9, 1999, the grand jury
returned a superceding indictment in which 16 defendants, including these appellants, were charged
with conspiracy to possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846
(Count 1). In addition, the indictment charged Ronnie Peters with two counts of aiding and abetting
possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Counts 33 and 35). Ronnie Peters’s older brother, Shannon Peters, was charged with
one count of aiding and abetting possession with the intent to distribute cocaine base in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 32). Velma Boyd was charged with two counts of
aiding and abetting possession with the intent to distribute cocaine base in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2 (Counts 15 and 18) and with one count of possession with intent to
1
“Crack cocaine” is the common name for the statutory term “cocaine base.” Both terms are used here. Crack
is a potent, crystalline form of cocaine. 3 Oxford English Dictionary 1097 (2d ed. 1989).
2
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 25). The indictment charged
Roger Edmonson with one count of aiding and abetting possession with the intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 30). The 11 other
defendants entered guilty pleas to the conspiracy charge and several testified at Appellants’ trial.2
Although the investigation involved scores of transactions, we refer here only to those
pertinent to the issues raised on appeal. DEA agents captured many of these transactions on
videotape, audiotape, and in photographs.
Diana Story, the confidential informant, testified that on June 24, 1999, she was driving to
a suspected dealer’s house to purchase crack cocaine as part of the undercover operation when she
was flagged down by Joshua Delmast who offered to sell her $100 worth of crack cocaine. Story
knew Delmast from a previous sale of drugs he had made to her. Delmast told Story that his
girlfriend, Appellant Velma Boyd, would deliver the crack cocaine. Story waited with Delmast until
Boyd arrived and gave .57 grams of crack cocaine to Delmast, who in turn sold it to Story for $100.
(Videotaped and photographed).
On July 7, 1999, Story went to Delmast and Boyd’s home to purchase crack cocaine. Story
saw Boyd take crack cocaine out of her purse and enter a back room. Later, Delmast and Boyd came
out of the back room and Delmast gave 3.7 grams of crack cocaine to Story. Story gave $500 in cash
to Boyd for the drugs. (Videotaped).
On July 29, 1999, Story returned to Delmast and Boyd’s residence where she paid $340 for
3.4 grams of crack cocaine that she received from Boyd alone. Boyd also gave Story her phone
2
Anita Orr was charged with one count of aiding and abetting possession with the intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and with conspiracy to possess with the intent to distribute.
The jury found her guilty on both counts. She did not file a direct appeal.
3
number and told her to call if she ever needed anything. (Videotaped).
On August 12, 1999, Story went to Delmast’s house to purchase $1200 worth of crack
cocaine. When she arrived, Delmast told her to meet him at a car wash and Story agreed. At the car
wash, Appellant Roger Edmonson approached Story in her car and exchanged 7.5 grams of crack
cocaine for cash. Story testified that she had not seen or met Edmonson before this transaction.
(Videotaped). DEA Special Agent Carol Wilson testified that she observed the crack cocaine deal
between Edmonson and Story from a nearby location. Wilson confirmed that Delmast was driving
the car that brought Edmonson to the car wash.
On August 18, 1999, Story telephoned Charles Bowen and arranged to buy some crack
cocaine from him. The DEA recorded that phone call. Story went to Bowen’s house, where they
arranged t o meet later at a Piggly Wiggly grocery store. Once at the store, Bowen drove next to
Story’s vehicle and told her to follow him to a car wash. At the car wash, Ron McKinney, Bowen’s
passenger, delivered 4.4 grams of crack cocaine to Story in exchange for $300. (Videotaped).
Officer Charles Smith of the Sherman Police Department testified that on August 18, 1999,
he followed Charles Bowen after he left his house in an attempt to discover who supplied Bowen with
the crack cocaine that he sold to Story. Smith watched Bowen drive to Appellant Shannon Peters’s
house and meet with Shannon Peters. Bowen’s meeting with Shannon Peters occurred after Bowen
left his own house and before he met Story at the grocery store to deliver the crack cocaine.
On August 19, 1999, Story arranged to buy some crack cocaine from Melvin Orr, who lived
at the Crossroads Inn. Agent Wilson was acting as one of the surveillance units that day and listened
to the phone conversation between Story and Orr. Orr stated that he needed to contact his source
to obtain the amount of drugs Story requested. Wilson watched as Appellant Ronnie Peters drove
4
to the Crossroads Inn and entered Orr’s room. Ronnie Peters exited the room less than a minute
later. Officer Smith also saw Ronnie Peters drive to the Crossroads Inn. After Ronnie Peters left,
Story went to Orr’s room and bought 4.7 grams of crack cocaine for $500 from him. (Videotaped
and audiotaped).
On August 31, 1999, Story paged Bowen, who immediately called her back. Story told
Bowen she needed some crack cocaine. Bowen said he could provide her with $300 worth and
asked her to meet him at the Piggly Wiggly. They met in the grocery store parking lot where Story
received 4.0 grams of crack cocaine for her money. (Videotaped and audiotaped).
While conducting surveillance on Charles Bowen on August 31, 1999, DEA Agent Doug
Tramel saw Appellant Shannon Peters visit Bowen in a house shortly after Bowen’s telephone
conversation with Story and before Bowen met her at the Piggly Wiggly. Subsequently, Tramel saw
Bowen rendezvous with Appellant Ronnie Peters after the transaction with Story at the Piggly Wiggly
and hand money over to Ronnie Peters. (Photographed).
On October 21, 1999, Supervisor Carl Hudman of the Sherman Police Department observed
Appellant Roger Edmonson obtain crack cocaine from Patrick Ross, who was also being investigated
by the DEA. Sherman police officers stopped and searched Edmonson with his permission and found
a piece of crack cocaine in a pocket of his trousers.
In addition to hearing the testimony of DEA agents and police officers, the jury reviewed the
numerous videotapes, photographs, and audiotapes recorded during the investigation. Many of the
defendants’ alleged coconspirators also testified. Joshua Delmast, a codefendant, testified that he had
known Ronnie Peters and his brother, Shannon Peters, for about five years. Delmast told the jury that
Ronnie Peters supplied him with crack cocaine to sell during a six to seven month period in 1999.
5
In a typical transaction, Delmast would page Ronnie Peters when he needed supplies. When Ronnie
Peters called in response to the page, Delmast would tell Peters his location and Peters would deliver
the crack cocaine to him. Delmast usually bought $100 to $150 worth of crack cocaine at a time
from Ronnie and resold it in smaller pieces for twice the price.
Delmast also testified that he once purchased crack cocaine from Shannon Peters when he was
unable to reach Ronnie. Delmast confirmed that he had asked Boyd, who by the time of trial had
married Delmast, to bring him some crack cocaine to sell to Diana Story.
Delmast testified that he sold crack cocaine to Roger Edmonson almost every Friday after
Edmonson received his paycheck. He sold as much as $100 worth of crack cocaine to Edmonson
at a time. He also testified that once, after he had heard on the street that Story might be associated
with law enforcement, he used Edmonson to make a delivery of crack cocaine to Story and paid him
$50 for the job.
Codefendant Charles Bowen testified that he sold crack cocaine on commission for Appellant
Shannon Peters, Ronnie Peters’s older brother, between May 1999 and November 1999. Bowen said
that Shannon Peters sometimes delivered the cocaine to him at his home or asked Bowen to pick it
up from his house. Bowen mainly dealt in small amounts two or three times a week.
Bowen testified that on August 18, 1999, Story called him and placed an order for crack
cocaine. He told Story to meet him at a nearby grocery store. Bowen said that he left his house and
met with Shannon Peters at Peters’s house to obtain enough cocaine to fill Story’s order. Bowen
affirmed that Shannon Peters supplied him with cocaine that day. Bowen confirmed Story’s
testimony that he met Story at the grocery store and then drove to the car wash where she paid $300
6
for 4.4 grams of crack cocaine. Bowen denied, however, giving the proceeds of that sale to Ronnie
Peters, who was dating Bowen’s granddaughter at the time of the defendants’ trial.
Dameon Parker, another codefendant, testified that in June of 1999 he bought about 12 grams
of crack cocaine from “Cuda” (Ronnie Peters) when he was unable to travel to Dallas to purchase
crack cocaine from his regular supplier. The next time Parker tried to buy from Cuda, Cuda told him
that his brother was getting more from Dallas.
Codefendant Fidel Sherfield testified that he paged Ronnie Peters once during the summer of
1999 to buy some crack cocaine, but that the amount that Peters had to sell was too small. Sherfield
also testified that he sold small amounts of crack cocaine to Edmonson, who lived next door to him.
Ronald McKinney, another codefendant, testified that he used and sold crack cocaine.
Specifically, McKinney said that in the summer of 1999 he bought crack cocaine six or seven times
from Boyd in the parking lot of the “Salt N Pepper Club” and that he also bought crack cocaine from
her at her house. He also testified that he bought crack cocaine that summer from a source known
as “KP” (Kenneth Perryman). Whenever McKinney bought crack cocaine from him, KP would page
Shannon Peters. Shortly after the page, Shannon Peters would arrive and sell KP a “fifty” ($50 worth
of crack cocaine).
Codefendant Lana Shelton testified that she purchased and distributed crack cocaine in the
Sherman area and that she personally saw Shannon Peters and Ronnie Peters sell crack cocaine to her
boyfriend, Cedryck Johnson, who both used and sold crack cocaine. She stated that the last time she
dealt with Ronnie Peters was sometime in August 1999.
Ethan Guess, who had previously been convicted by a jury of conspiracy to distribute crack
7
cocaine in the Sherman area pursuant to a separate indictment, recounted buying crack cocaine from
Shannon Peters 11 or 12 years earlier when Guess was about 14 or 15 years old. Guess had recently
moved to Sherman from Dallas at that time and wanted to take over the area where Shannon Peters
was selling drugs. Guess testified that Peters had a “crack house”3 in Sherman near his own home
and that he had bought cocaine from Peters to “size up the competition.” Guess bought crack four
times from Peters to see how much Peters was giving his clients. Guess eventually moved back to
Dallas, but continued to distribute crack cocaine in Sherman.
Guess also told the jury that he had encountered Shannon Peters at a convenience store in
Sherman in the summer of 1999 when he stopped to buy gas. They began to talk and Shannon Peters
asked Guess if he was going out to a club that night. When Guess confirmed that he was, Peters said
that he wanted to “get some work” from him. Guess explained that “get some work” meant that
Peters wanted to buy crack cocaine. Later that night, Guess sold Peters $800 worth of crack cocaine.
Guess also testified that he saw Peters in Dallas that summer take delivery of four and one-half
ounces of crack (127 grams, worth up to $6,000) from Peters’s cousin. Finally, Guess said that he
had once asked Charles Bowen to sell drugs for him in the Sherman area, but that Bowen had told
him that he was already employed selling drugs for Shannon Peters.
At the close of the government’s case, all defendants moved for judgments of acquittal, which
the court denied. After presentation of their cases, the defendants renewed their motions for
judgment of acquittal, which the court again denied. The jury returned verdicts of guilty as to all
defendants on all counts.
3
A crack house has been defined as a house or apartment where crack cocaine is sold to addicts. Encarta®
World English Dictionary 420 (1999).
8
At the time of trial, the possible sentences for a violation of conspiracy to possess with the
intent to distribute, for aiding and abetting possession with intent to distribute, and for possession
with intent to distribute ranged from 10 years to life imprisonment for 50 grams or more of cocaine
base, 5 to 40 years for 5 grams or more of cocaine base, or not more than 20 years imprisonment for
less than 5 grams of cocaine base. After reviewing and adopting the defendants’ presentence reports,
the district court sentenced Ronnie Peters to 78 months (6.5 years) each on Counts 1, 33, and 35.
Shannon Peters received prison sentences of 360 months (30 years) on Count 1 and 240 months (20
years) on Count 32. Boyd received a sentence of 78 months’ imprisonment each on Counts 1, 15,
18 and 25. Edmonson received a sentence of 60 months’ (5 years) imprisonment on Counts 1 and
30. The court ordered that all sentences run concurrently. These appeals followed.
ANALYSIS
I. Sufficiency of the Evidence
Each of the appellants argues that the evidence was insufficient to support his or her
conviction. Because each moved for a judgment of acquittal at the close of the government’s case,
the standard of review in assessing each challenge to the sufficiency of the evidence is whether,
considering all the evidence in the light most favorable to the verdict, a rational trier of fact could
have found that the evidence established the elements of the offenses beyond a reasonable doubt.4
To prove a conspiracy to possess and distribute a controlled substance, the government must
prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons to
violate narco tics laws, (2) knowledge of the conspiracy and intent to join it, and (3) voluntary
4
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th
Cir. 2001).
9
participation in the conspiracy.5 Factors that a jury may consider in determining whether a defendant
is guilty of committing a drug conspiracy crime are “concert of action,” presence among or
association with drug conspirators, and “evasive and erratic behavior.”6 Of course, mere presence
or association with drug conspirators alone cannot establish that a person has voluntarily joined that
conspiracy.7
To prove possession of a controlled substance with intent to distribute, the government must
show beyond a reasonable doubt (1) knowing (2) possession of a controlled substance (3) with intent
to distribute that substance.8 Possession may be actual or constructive.9 To establish aiding and
abetting under 18 U.S.C. § 2, the defendant must have (1) associated with a criminal venture, (2)
purposefully participated in the venture, and (3) sought by action to make the venture successful.10
To aid and abet means to assist the perpetrator of a crime by some affirmative act intended to aid the
venture, while sharing the requisite criminal intent.11
A. Ronnie Peters
Appellant Ronnie Peters argues that there is insufficient evidence to support his conviction
of aiding and abetting possession with the intent to distribute 4.7 grams of cocaine base on Count 33,
5
United States v. Quiroz-Hernandez, 48 F.3d 858, 866 (5th Cir. 1995).
6
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
7
Id.
8
21 U.S.C. § 841(a)(1); Carreon-Palacio, 267 F.3d at 389.
9
Carreon-Palacio, 267 F.3d at 389.
10
Id.
11
United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).
10
relating to the transaction on August 19, 1999. Ronnie Peters contends that the evidence proves
nothing more than that he was present at the location of a drug transaction between Story and Melvin
Orr.
Three witnesses testified regarding the August 19, 1999 transaction. Diana Story testified that
she placed an order to buy crack cocaine from Melvin Orr, who told her that he had to meet with his
supplier to obtain the drugs. Shortly after that conversation, Agent Wilson saw Ronnie Peters drive
to Orr’s motel and enter Orr’s motel room. Officer Smith also saw Ronnie Peters pull in and out of
the parking lot of Orr’s motel that day. After Ronnie Peters left, Story went to Orr’s motel room and
bought $500 worth of crack cocaine from Orr. The jury heard witnesses such as Joshua Delmast,
Dameon Parker, Fidel Sherfield, and Lana Shelton identify Ronnie Peters as their crack cocaine
supplier. This evidence is sufficient to support the jury’s finding beyond a reasonable doubt that
Ronnie Peters aided and abetted the distribution of crack cocaine by Melvin Orr to Diana Story on
August 19, 1999.
Ronnie Peters also argues that there is insufficient evidence to support his conviction of aiding
and abetting possession with the intent to distribute 4 grams of cocaine base on Count 35, relating
to the transaction on August 31, 1999. Ronnie Peters contends that the evidence proves nothing
more than that he contacted Charles Bowen subsequent to a drug transaction between Bowen and
Story and received cash from Bowen. Furthermore, he notes that Bowen denied giving money to him
that day.
Story testified that on August 21, 1999, she bought $300 worth of crack cocaine from Charles
Bowen. Bowen testified that Shannon Peters supplied him with the cocaine, but refused to implicate
11
Ronnie Peters, who was dating Bowen’s granddaughter at the time. However, a DEA agent, Doug
Tramel, testified that after Bowen and Story consummated the deal, he watched Bowen wait in the
grocery store parking lot until Ronnie Peters arrived. Ronnie Peters then walked up to Bowen’s
vehicle and got inside. Using binoculars, Agent Tramel saw Bowen hand Peters what appeared to
be cash.
The evidence supports the jury’s determination that Peters was guilty of aiding and abetting
the dist ribution of crack cocaine on August 31, 1999 because he participated in the sale of crack
cocaine to Story by accepting the cocaine deal’s proceeds. From the evidence presented, the jury
could infer that Bowen, after receiving cash for crack cocaine from Story, gave the cash from that
transaction to Ronnie Peters. Bowen testified that Shannon Peters, Ronnie Peters’s older brother,
supplied him with crack cocaine from May 1999 to November 1999. Viewing the evidence in the
light most favorable to the verdict, we conclude that a reasonable jury could have found that the
evidence established the elements of the offense beyond a reasonable doubt.
Finally, Ronnie Peters argues that there is insufficient evidence to support his conviction on
Count 1, conspiracy to possess with the intent to deliver crack cocaine, because the government did
not prove that he ratified his involvement in the conspiracy after his 18th birthday on August 8, 1999.
For a defendant to be charged wit h a conspiracy that transcends his 18th birthday, he must do
something to ratify his involvement in the conspiracy after he reaches 18.12 A juvenile “ratifies” his
involvement in a conspiracy by continuing to participate in an ongoing conspiracy after his 18th
12
United States v. Tolliver, 61 F.3d 1189, 1200 (5th Cir. 1995), vacated as to other def. Sterling v. United
States, 516 U.S. 1105 (1996).
12
birthday.13 However, a person who does absolutely nothing to further the conspiracy or to reaffirm
membership in it after his 18th birthday cannot be held criminally liable as an adult in federal court.14
We have already found the evidence sufficient to support Ronnie Peters’s convictions on
Counts 33 and 35, involving cocaine transactions by him after he became 18 years old. The jury
could have inferred, from the evidence presented, that Ronnie Peters knew of the ongoing conspiracy
to distribute crack cocaine in Sherman, Texas and voluntarily participated in the conspiracy by
accepting the proceeds of the crack cocaine transaction on August 31 and by delivering crack cocaine
to one of his dealers on August 19, 1999. A reasonable jury could have found that by continuing to
participate in these crack cocaine sales after he reached 18 years of age, Peters furthered the aims of
the conspiracy and ratified his involvement in it.
B. Shannon Peters
Appellant Shannon Peters argues that there is insufficient evidence to support his conviction
of aiding and abetting possession with the intent to distribute 4.4 grams of cocaine base on Count 32,
relating to the transaction on August 18, 1999. Shannon Peters contends that there is insufficient
evidence that he provided crack cocaine that day to Charles Bowen, which was later sold to the
confidential informant, Diana Story. Shannon Peters contends that Officer Smith did not see him
hand anything to Charles Bowen that day. The government argues, however, that the evidence
supports the jury’s verdict and we agree.
Charles Bowen testified that he sold crack cocaine for Shannon Peters on commission.
13
United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991).
14
Id.
13
Bowen said that Diana Story often asked for more cocaine than he had available and that he would
have to get in touch with Shannon Peters to fill Story’s orders. On August 18, 1999, Story went to
Bowen’s house to purchase cocaine. Bowen agreed to meet Story later at a grocery store for the
exchange. According to Officer Smith, Bowen then drove to Shannon Peters’s house and met with
him. Shortly after that encounter, Bowen met with Story and his passenger gave her the cocaine in
exchange for cash. Bowen told the jury on cross-examination that Shannon Peters gave him the crack
cocaine that he later sold to Story that day. Based on this evidence, the jury could have found beyond
a reasonable doubt that Shannon Peters supplied the cocaine sold to Story on August 18, 1999.
We reject Shannon Peters’s invitation to reverse his conviction based on United States v.
Polk.15 In Polk, this Court found that the evidence was insufficient to support a jury’s conviction of
participating in or aiding and abetting a crack cocaine transaction where the only evidence linking a
defendant named Carter to the transaction at issue was that a car registered to Carter transported
two men to a house where they bought cocaine.16 The government did not adduce any evidence that
Carter was one of the men in the car.17 In contrast to Polk, the government in this case presented
sufficient evidence described above that Shannon Peters assisted the distribution of illegal drugs on
August 18, 1999 by providing Bowen with crack cocaine while sharing the requisite criminal intent.18
Shannon Peters also argues that there is insufficient evidence to support his conviction on
Count 1, conspiracy to possess with the intent to deliver crack cocaine. The evidence clearly
15
56 F.3d 613 (5th Cir. 1995).
16
Id. at 628.
17
Id. at 630.
18
See United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).
14
supports the existence of an agreement between two or more persons to violate drug laws during the
period from May 1999 to November 1999 and Shannon Peters’s vo luntary participation in and
knowledge of the agreement. Ethan Guess testified that in the summer of 1999, he sold $800 worth
of crack cocaine to Peters in Sherman, Texas and saw Peters replenishing his stock in Dallas with a
$6,000 purchase of crack cocaine. Lana Shelton testified that she had seen both Shannon and Ronnie
Peters sell crack cocaine to her boyfriend. Ronald McKinney testified that during the summer of
1999 he witnessed several crack cocaine transactions between Shannon Peters and Kenneth
Perryman, his supplier. The jury also heard the testimony of Charles Bowen that he sold crack
cocaine for Shannon Peters on commission. While Shannon Peters is correct in stating that no police
officer or DEA agent testified to seeing or arresting him in possession of crack cocaine, the evidence
from other sources is sufficient to support a rational jury’s decision to convict him of conspiracy to
possess with intent to distribute crack cocaine.19
C. Boyd
Appellant Velma Boyd argues that there is insufficient evidence to support her conviction
of aiding and abetting possession with the intent to distribute cocaine base on Counts 15 (the June
24th sale of .57 grams) and 18 (the July 7th sale of 3.7 grams); for possession with the intent to
distribute cocaine base on Count 25 (the July 29th sale of 3.4 grams); and for conspiracy to possess
with the intent to distribute cocaine base as charged in Count 1 of the indictment. Boyd contends that
because no government agent or officer saw her distribute cocaine, the evidence is insufficient to
support her convictions on these counts.
19
See United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (“It is well-settled that credibility
determinations are the sole province of the jury.”)
15
As in most drug trials, the government’s case did not rely solely on the eyewitness testimony
of officers and agents. Confidential informant Diana Story testified that on June 24, 1999 she
watched Boyd deliver crack cocaine to Delmast so that he could sell it to Story. DEA agent Doug
Tramel testified that he saw Boyd driving the car that delivered the crack cocaine that day. On July
7th, when Story visited Boyd and Delmast at their home, she saw Boyd take cocaine out of her purse
and then walk into a back room of the house with Delmast. When Delmast and Boyd returned from
the back room, Delmast handed Story crack cocaine. On July 29th, Boyd sold crack cocaine directly
to Story when Delmast was not around. Furthermore, Story and the DEA videotaped each of these
transactions, giving the jury the opportunity of watching Boyd in action.
Numerous codefendants, including her husband, Delmast, testified about Boyd’s participation
in the conspiracy. Delmast confirmed that Boyd delivered the cocaine he sold to Story on June 24th.
Ronald McKinney testified that he bought crack cocaine from Boyd six or seven times both at her
home and in a parking lot of a club that summer.
The testimony and evidence in this case clearly supports the jury’s verdict on Counts 1, 15,
18, and 25. A rational trier of fact could have found that the government proved that Boyd had
knowing possession of cocaine base with the intent to distribute on July 29, 1999 beyond a reasonable
doubt based on Story’s testimony and the videotape. Boyd’s delivery of the crack cocaine to Delmast
on June 24, 1999 supports her conviction of aiding and abetting possession of crack cocaine with the
intent to distribute because she acted affirmatively to aid the venture and shared the criminal intent.
Similarly, Bo yd aided and abetted the sale of cocaine to Story on July 7, 1999 when she assisted
Delmast in making a sale to Story.
16
Not only did Boyd possess crack cocaine with the intent to distribute, there was sufficient
evidence that she was a member of the conspiracy distributing crack cocaine in the Sherman, Texas
area that summer. She, along with her husband, agreed to supply Story with crack cocaine on
numerous occasions. The jury could reasonably infer that she obtained the crack cocaine that she sold
from either Delmast or Ronnie Peters.
D. Edmonson
Appellant Roger Edmonson argues that there is insufficient evidence to support his conviction
of aiding and abetting possession with the intent to distribute 7.5 grams of cocaine base on Count 30,
relating to the transaction on August 12, 1999, and for conspiracy to possess with the intent to
distribute cocaine base as charged in Count 1 of the indictment.
From the testimony introduced at trial, a rational trier of fact could have rejected Edmonson’s
claim that he was an innocent bystander duped into delivering drugs without his knowledge. Delmast
testified that he had been selling crack cocaine to Edmonson for two years before he recruited him
to make the delivery to Story on August 12, 1999. Because of his history of purchases, Edmonson
had experience with the type of packaging used for crack cocaine and the methods of its delivery.
Even though Delmast testified that he did not tell Edmonson what he was delivering, the evidence
without dispute indicates that the drugs were visibly contained in a clear plastic bag and were
recognizable as illegal drugs by a person with Edmonson’s experience. Therefore, the jury could
reasonably find that Edmonson was aware that he was delivering crack cocaine; and that by delivering
the drugs to Story, Edmonson assisted Delmast in distribution of cocaine and shared in his criminal
intent.
17
The government provided sufficient evidence of a conspiracy between the Peters brothers and
others to distribute crack cocaine in Sherman, Texas. Edmonson’s knowledge of the conspiracy is
evidenced by his weekly crack cocaine purchases from Delmast, one of the lower-level drug dealers
in the conspiracy. There is also sufficient evidence to support finding that he voluntarily participated
in the conspiracy and intended to join it when he agreed to deliver crack cocaine from Delmast to
Story for $50. Considering the evidence in the light most favorable to the verdict, a rational trier of
fact could have found that the evidence as to Edmonson established the elements of both counts
beyond a reasonable doubt.
II. Evidence of Other Crimes
Shannon Peters and Edmonson object to the district court’s decision to allow evidence of
other crimes to be introduced at the trial. We review evidentiary rulings for abuse of discretion.20
A. Shannon Peters
The trial court admitted Ethan Guess’s testimony about his prior purchases of crack from
Shannon Peters and Peters’s operation of a crack house under the Fed. R. Evid. 404(b) exception.
The court stated, “I think its probative value as evidence on the issues of intent, scheme, [and] plan,
outweighs any unfair prejudice. . . . I’m admitting it as an extraneous offense and will give an
instruction.” In United States v. Beechum,21 this Court outlined a two-step test to determine the
admissibility of evidence of a defendant’s prior wrongful acts. Under Beechum, evidence of extrinsic
offenses is admissible if it is (1) relevant to an issue other than the defendant’s character, and (2) the
20
United States v. Miranda, 248 F.3d 434, 439 (5th Cir. ), cert. denied, 122 S. Ct. 410 (2001).
21
582 F.2d 898 (5th Cir. 1978).
18
incremental probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice to the defendant.22 Ethan Guess’s testimony that Shannon Peters previously ran a crack
house in Sherman, Texas ten years ago and had sold crack cocaine to Guess was admissible under
the Beechum test. First, the evidence of Peters’s prior sales of cocaine was relevant to issues other
than his character; it was relevant to prove his knowledge of and experience with crack cocaine sales
in the area and his continuing intent to sell crack cocaine. Second, the highly probative value of this
evidence was not substantially outweighed by the danger of unfair prejudice in light of the other
substantial evidence that the government introduced at trial implicating Peters as a member of the
conspiracy and a supplier o f crack cocaine. Finally, the trial judge instructed the jury that the
testimony or evidence concerning acts allegedly committed by Shannon Peters did not constitute any
offense charged, but would, at most, constitute evidence of acts similar to those alleged in the
indictment and that such evidence should only be considered for the limited purpose of determining
whether the defendant (1) had the intent necessary to commit the crimes charged; (2) had a motive
or opportunity to commit the acts charged; (3) acted according to a plan or in preparation for
commission of a crime; or (4) committed the acts for which he is on trial by accident or mistake. We
cannot say that the trial court abused its discretion in allowing the admission of this evidence.
B. Edmonson
Under the Beechum test, the officer’s testimony about Edmonson’s possession of crack
cocaine on October 21, 1999 was admissible. The officer testified that he was watching a crack
house that night as part of the DEA’s ongoing investigation when he saw Edmonson meet with a man
22
Id. at 911.
19
in the back yard of the house. The man gave Edmonson a plastic “baggie,” which he put in his
pocket. The police approached Edmonson and he agreed to a search that revealed crack cocaine
wrapped in a plastic baggie in his pants. The evidence of this encounter is relevant to prove
Edmonson’s knowledge of and involvement in the drug distribution conspiracy. Because the jury
heard abundant evidence that Edmonson regularly bought crack cocaine, there was no danger of
unfair prejudice. Furthermore, the incident occurred during the time frame alleged in the indictment
and was ‘inextricably intertwined’ with the evidence used to prove the conspiracy.23 Such intrinsic
evidence may be admitted under proper circumstances to enable the jury to evaluate all the
circumstances under which the defendant acted.24 Evidence of this cocaine transaction was part of
the story of the crime, demonstrates Edmonson’s knowledge and involvement in the conspiracy and
is therefore admissible.
III. Apprendi claims
The district court must submit to the jury any fact, other than a prior conviction, that increases
the penalty for a crime beyond the prescribed statutory maximum.25 If the government seeks an
enhancement of the penalties for a crime based on the amount of drugs, the quantity must be stated
in the indictment and submitted to the jury for a finding of proof beyond a reasonable doubt.26 In this
case, the indictment stated the amount of crack cocaine involved in each count, but the jury
23
See United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992).
24
Id.
25
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
26
United States v. Delgado, 256 F.3d 264, 280 (5th Cir. 2001); United States v. Doggett, 230 F.3d 160, 164-
65 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).
20
instructions did not include information with respect to the issue of quantity. Because the defendants
did not object to the failure of the district court to include instructions with respect to drug quantity,
we review for plain error.27 Assuming that the error was otherwise plain, a jury instruction that omits
an element of the offense is subject to harmless error analysis.28 We will grant relief under this
analysis only if the district court’s failure to instruct the jury that it must find a specific drug quantity
beyond a reasonable doubt was not harmless.29 To determine harmlessness when a jury is not
instructed as to an element of an offense, we decide whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted evidence.30 Finally, we note that
Apprendi requires reversal of a conviction only in those cases where a sentence exceeds the statutory
maximum.31
Ronnie Peters was facing a statutory maximum of 20 years imprisonment and a $1,000,000
fine under the default sentencing provision.32 The judge sentenced him to 78 months’ imprisonment
on each count, concurrent, and waived any fine. His sentence is within the statutory maximum and
does not run afoul of Apprendi.
Because the judge sentenced Shannon Peters to 30 years’ imprisonment, ten years more than
the statutory maximum under the default sentencing provision, we must decide whether the record
27
Delgado, 256 F.3d at 280.
28
Id.
29
United States v. Green, 246 F.3d 433, 437 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001).
30
Id.
31
United States v. Salazar-Flores, 238 F.3d 672, 673 (5th Cir. 2001).
32
21 U.S.C. § 841(b)(1)(C).
21
contains evidence that could rationally lead to a contrary finding with respect to the amount of crack
cocaine attributed to Shannon Peters. Charles Bowen testified that he sold $50 worth of crack
cocaine that he obtained from Shannon Peters every two to three days. The federal probation officer
conservatively estimated the total amount of Bowen’s crack sales during the conspiracy at 52 grams.
Ethan Guess testified that he sold Shannon Peters $800 worth of crack cocaine and saw Peters
purchase approximately 127 grams of crack cocaine in Dallas. The record contains undisputed
evidence that Shannon Peters was responsible for the sale of at least 50 grams of crack cocaine.
Therefore, the court’s failure to instruct the jury that it must find a specific drug quantity beyond a
reasonable doubt was harmless error.
IV. Sentence Enhancement
Shannon Pet ers argues that the district court erred in determining that he played a
management role in the conspiracy and in adjusting his sentencing upward as a result of this
determination. We review for clear error a sentencing court’s factual determination that a defendant
is subject to enhancement.33 “A factual finding is not clearly erroneous if it is plausible in light of the
record read as a whole.”34 Furthermore, a district court may adopt facts contained in a Presentence
Report (PSR) without further inquiry if the facts have an adequate evidentiary basis and the defendant
does not present rebuttal evidence.35
The sentencing guidelines provide for an upward adjustment of three levels if the defendant
33
United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001).
34
Id.
35
Id. at 239.
22
was a manager or supervisor of a criminal activity that involved five or more participants.36 At
Shannon Peters’s sentencing, the district court adopted the findings of fact contained in the PSR as
the findings of fact of the court. The U.S. probation officer who prepared Peters’s PSR noted that
he was distributing crack cocaine on a large scale basis in Sherman, Texas. The report, based on
statements from codefendants and witnesses, stated that Peters supplied crack cocaine to his brother,
Ronnie Peters, and to Cedryck Johnson, Charles Bowen, and Joshua Delmast, who in turn
repackaged and resold the crack cocaine to other customers. While Peters objected to the
enhancement based on his activities, he did not offer evidence that refuted the findings of the PSR.
Finding no error in the district court’s determination, we deny relief on this issue.
For the foregoing reasons, the convictions of Ronnie Peters, Shannon Peters, Velma Boyd,
and Roger Edmonson and the sentences of Ronnie and Shannon Peters are AFFIRMED.
36
U.S.S.G. § 3B1.1(b). Federal guidelines assign crimes to different categories. A base level is set for each
offense category. After the level is set by reference to the offense characteristics, adjustments can be made for the
defendant’s role in the offense. 5 Wayne R. LeFave, et al., Criminal Procedure § 26.3(e) (2d ed. 1999). The base level
for a violation of 21 U.S.C. § 841(a)(1) involving 50 grams or more of cocaine base is 32. U.S.S.G. § 2D1.1(a)(3) and
(c)(4). Because of his criminal history and the court’s determination that he play ed a management role in the
conspiracy, Shannon Peters’s total offense level was 37. The guideline range for imprisonment at this offense level
is 360 months to life. U.S.S.G. Sentencing Table, Zone D.
23