United States v. Tina Fox ( 2012 )

Case: 11-40191 Document: 00511970315 Page: 1 Date Filed: 08/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2012
No. 11-40191
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TINA LYNN FOX,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:10-CR-37-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Tina Lynn Fox appeals from her convictions of one count of conspiring to
possess pseudoephedrine knowing, or having reasonable cause to believe, that
it would be used to manufacture methamphetamine, and 32 counts of possession
of pseudoephedrine with intent to manufacture methamphetamine. She argues
that the evidence adduced at trial was not sufficient to support these convictions.
She does not appeal from her conviction of one count of possession of
methamphetamine.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40191 Document: 00511970315 Page: 2 Date Filed: 08/27/2012
No. 11-40191
By moving generally for acquittal at the close of the Government’s case
and again at the close of all of the evidence, Fox preserved her sufficiency
challenges for appellate review. See United States v. Guerrero, 169 F.3d 933, 938
(5th Cir. 1999); FED. R. CRIM. P. 29(a). Accordingly, we must determine “whether
the evidence, when reviewed in the light most favorable to the government with
all reasonable inferences and credibility choices made in support of a conviction,
allows a rational fact finder to find every element of the offense beyond a
reasonable doubt.” United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008)
(internal quotation marks and citations omitted). Our review is “highly
deferential to the verdict” and our “inquiry is limited to whether the jury’s
verdict was reasonable, not whether we believe it to be correct.” Id. (internal
quotation marks and citations omitted).
To convict Fox of conspiring to possess pseudoephedrine with intent to
manufacture methamphetamine under 21 U.S.C. § 846, the Government must
prove beyond a reasonable doubt that (1) an agreement existed between two or
more persons to violate the narcotics laws, (2) Fox knew of the conspiracy and
intended to join it, and (3) she voluntarily participated in the conspiracy. See
United States v. Cantwell, 470 F.3d 1087, 1090 (5th Cir. 2006); United States v.
Johnston, 127 F.3d 380, 401 (5th Cir. 1997). To prove possession with intent to
manufacture, the Government was required to prove that Fox knowingly
possessed pseudoephedrine either with intent to manufacture
methamphetamine or with knowledge, or reasonable cause to believe, that the
pseudoephedrine would be used to manufacture methamphetamine. See
21 U.S.C. § 841(c)(1) and (2). Further, Fox could be found guilty of possession
with intent to manufacture based upon foreseeable acts of her co-conspirators
that were committed in furtherance of, and that were the reasonably foreseeable
consequences of, the conspiracy. See United States v. Jimenez, 509 F.3d 682, 692
& n.9 (5th Cir. 2007).
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No. 11-40191
Contrary to Fox’s mostly conclusory assertions, the evidence adduced by
the Government at trial-- including, inter alia, pharmacy pseudoephedrine logs
bearing the signature “Tina Fox” for each possession conviction as well as the
testimonies of Agent Rodney Tandy, handwriting expert Kenneth Crawford, and
co-conspirators Brad Boren, Stacy Cameron, and Heidi Beall evidencing both
Fox’s pseudoephedrine purchases and her involvement in the conspiracy--
provided ample support for her conviction beyond a reasonable doubt on all
counts of conviction. See Gulley, 536 F.3d at 816.
Although Fox would have us do otherwise, we cannot speculate as to the
jury’s reasons for acquitting Fox on some charged counts. See United States v.
Partida 385 F.3d 546, 564 (5th Cir. 2004). “Juries are free to return inconsistent
verdicts, for whatever reason, provided their convictions are supported by
adequate evidence.” United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.
1985).
To the extent that Fox argues that her witnesses were more credible than
the Government’s, the jury, rather than this court, has the sole discretion to
make such credibility determinations. See United States v. Moreno-Gonzalez,
662 F.3d 369, 375 (5th Cir. 2011). Determining whether the signatures
contained in the pharmacy logs matched samples of Fox’s authentic signature
was likewise within the jury’s province. United States v. Ismoila, 100 F.3d 380,
388 (5th Cir. 1996). Although she offers up several alternative views of the
evidence that would be consistent with her innocence, “[t]he evidence need not
exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt.” United States v. Mann, 493 F.3d 484, 492
(5th Cir. 2007).
Even if Fox is correct that her possession conviction on Count 47 was
supported in part by a pharmacy log that was not properly verified, the jury was
free to rely upon the log in question because, as Fox concedes, she failed to object
to its admission into evidence. See United States v. Yamin, 868 F.2d 130, 135
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No. 11-40191
(5th Cir. 1989). While Fox is correct that a ten-day discrepancy exists between
the date that Count 47 was alleged to have been committed in the second
superseding indictment and the date shown in the relevant log, this discrepancy
does not undermine her conviction. See United States v. Powers, 168 F.3d 741,
746 (5th Cir. 1999).
Finally, to the extent that Fox asserts that the 1.44 grams of
pseudoephedrine that she purchased at the Drug Emporium on October 28,
2008, should not have been included in determining her base offense level, she
did not raise this argument in the district court, and she fails to show that the
district court plainly erred by treating the purchase as relevant conduct. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); United States v.
Vital, 68 F.3d 114, 118 (5th Cir. 1995); U.S.S.G. § 1B1.3.
AFFIRMED.
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