United States v. Donald Scribner, II , 469 F. App'x 384 ( 2012 )

Case: 11-10464 Document: 00511818993 Page: 1 Date Filed: 04/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 12, 2012
No. 11-10464
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONALD RAYMOND SCRIBNER, II,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-233-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Donald Raymond Scribner, II, was convicted following a jury trial of aiding
and abetting the possession with intent to distribute marijuana. Scribner was
sentenced to 210 months of imprisonment and to three years of supervised
release. He contends that there was insufficient evidence to convict him
because the Government failed to present any evidence that he actually or
constructively possessed the marijuana and shared the intent to distribute it.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10464 Document: 00511818993 Page: 2 Date Filed: 04/12/2012
No. 11-10464
Because Scribner preserved his sufficiency argument for appeal, this court
reviews the issue de novo. See United States v. Ollison, 555 F.3d 152, 158 (5th
Cir. 2009). “To sustain a conviction for possession of marijuana with intent to
distribute, the [G]overnment must prove beyond a reasonable doubt (1) knowing
(2) possession of marijuana (3) with intent to distribute it.” United States v.
Ricardo, 472 F.3d 277, 282-83 (5th Cir. 2006) (internal quotation marks and
citation omitted). To prove aiding and abetting, the Government must establish
that the defendant “(1) associated with the criminal venture; (2) purposefully
participated in the crime; and (3) sought by his actions for it to succeed.” United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).
Scribner was discovered by authorities in the process of dismantling a
marijuana grow house in an effort to avoid police detection. A large amount of
marijuana and grow equipment were found in the house, which Scribner
possessed a key to in his wallet. This evidence is sufficient to show that Scribner
had constructive possession of the marijuana in the grow house. See United
States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998). Further, Scribner
acknowledged that he had been hired to dismantle the grow house and move the
contents via a U-haul truck to another location. He further acknowledged to
dismantling another grow house belonging to the same organization days before
his arrest. Scribner admitted to knowing that the organization was involved in
the distribution of marijuana and that it consisted of several grow houses. This
evidence and the reasonable inferences therefrom support a finding that
Scribner knew a marijuana distribution operation was occurring, that he
associated himself with the operation, that he participated in it with a desire
that it be accomplished, and that he committed an overt act designed to make
it succeed. See Pando Franco, 503 F.3d at 394; United States v. Martinez, 555
F.2d 1269, 1272 (5th Cir. 1977). Thus, a rational trier of fact could have found
Scribner guilty beyond a reasonable doubt. See United States v. Percel, 553 F.3d
903, 910 (5th Cir. 2008). Accordingly, his conviction is AFFIRMED.
2