United States v. Karl Scott ( 2018 )

Case: 17-40552 Document: 00514514997 Page: 1 Date Filed: 06/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-40552 June 15, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee,
v.
KARL DOUGLAS SCOTT, also known as Fresh, also known as KD,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, WIENER, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
This case involves two failed attempts to transport marijuana 1 into the
United States. Karl Scott first recruited Brittini Randle to sneak marijuana
across the border from Mexico. Randle was arrested. Undeterred, Scott then
enlisted Mark Cane, who fared no better. Same plan. Same checkpoint. Same
result.
A jury convicted Scott of (1) conspiracy to possess marijuana with intent
to distribute, and (2) aiding and abetting the possession of marijuana with
intent to distribute. On appeal, Scott argues that the evidence was insufficient
1 Although the statute uses the term “marihuana,” this opinion uses “marijuana.”
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to support either conviction because he never exercised any dominion or control
over the marijuana.
Scott’s argument—no possession, no conviction—is uncomplicated. But
it is also unavailing. Put bluntly, possession is not nine-tenths of the law.
We affirm.
I. BACKGROUND
A. Brittini Randle & the July 8 Run
Randle met Scott in early 2014. Scott was a barber, and Randle was
interested in becoming a hairdresser. Their friendship blossomed into a
relationship. At some point, Scott asked Randle if she “knew anybody who
would want to make a run.” And by “run,” he meant transport drugs across the
border. After telling her that a driver would make about $1,500 or more,
Randle volunteered. But Scott suggested that “it would look better if it was you
and another person.” So Randle asked her childhood friend, Heleniah Adams,
to accompany her. The three then met in person to hash out the details.
About a week later, Randle and Adams met Scott at a gas station in
Beaumont, Texas, where Scott bought them gas. Randle and Adams followed
Scott to Houston where Scott picked up his uncle, Chris. The group then drove
to Edmond Hadnot’s house in Corpus Christi. Scott explained to Randle that
Chris was supposed to drive an 18-wheeler. If they could fit all the drugs in the
truck, Randle would not have to drive, but she would still get paid.
Hadnot, Scott, Chris, Adams, and Randle then put their plan into action.
They drove to the Rio Grande Valley; Scott drove Hadnot and Chris in his car,
and Randle took Adams in her car. The group enjoyed a night on the town,
drinking first at a Buffalo Wild Wings and later, at a local strip club. They then
stayed overnight in McAllen, where Scott, Adams, and Randle shared a hotel
room.
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The next morning, Hadnot called an audible. He told Randle that she
would drive alone while Adams drove separately. Randle followed Hadnot and
another man to a gas station, while Scott and Adams remained at the hotel.
Hadnot and the man left Randle at the gas station, taking her car.
About an hour and a half later, Hadnot called Randle and told her to get
into a different car with a different man. The man drove Randle to a residential
neighborhood where she found her car waiting for her.
Hadnot called Randle and told her to follow him. Initially, Scott, Hadnot,
Adams, and Randle had developed a cover story: Randle and Adams worked as
exotic dancers who were “constantly traveling.” But as the plan changed, so
did the cover story. Randle was now a medical student. As such, Hadnot led
Randle to Scrub Mart, purchased scrubs and a stethoscope, and instructed
Randle to change. Randle did so and headed toward the Falfurrias Border
Patrol Checkpoint.
As Randle drove north, the plan went south. While smoking a cigarette,
Randle tried to roll down her front windows. But only the driver-side window
worked. Randle became anxious. She was told that the marijuana would be
concealed in her gas tank, but Randle now suspected it was in her door.
Seeking reassurance, Randle exchanged multiple calls with both Hadnot and
Scott. Scott told her to calm down, not to worry, and that it was okay. Randle
hung up on Scott as she approached the Falfurrias Border Patrol Checkpoint.
Randle drove her car into the primary lane where a canine performed a
free-air sniff and alerted. Based on the alert, a Border Patrol agent directed
Randle to secondary inspection. The agent x-rayed the vehicle and detected
three anomalies. Further search revealed bundles of marijuana in the car’s
doors and trunk. Ultimately, agents removed 62 bundles of marijuana from
Randle’s car with a net weight of 45.35 kilograms—nearly 100 pounds. Randle
was arrested.
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Randle initially followed the plan—that is to say, she lied. But she soon
relented and told the Border Patrol agents “everything.” After cooperating with
the agents, Randle was released. She then called Scott who sent Hadnot’s
girlfriend to pick her up. Hadnot’s girlfriend took Randle to Hadnot’s house,
and Scott and Adams met Randle in Scott’s car. Once again, Randle lied. She
told Scott and Adams she told the Border Patrol that she didn’t know anything
about the drugs. Scott then drove Adams and Randle back to Beaumont.
B. Mark Cane & the August 22 Run
Scott still had high hopes. A few months later, a mutual friend put Scott
in touch with Mark Cane. The friend knew that Cane had a commercial driver’s
license (CDL) and that Scott wanted to transport marijuana using someone’s
CDL. Cane called Scott and arranged a meeting. Scott offered Cane $5,000, or
alternatively ten pounds of marijuana, to transport 200 pounds of marijuana
from the Rio Grande Valley through a border checkpoint. Cane hesitantly
agreed.
Cane knew about Scott’s drug-run history—specifically, Randle’s
“busted” smuggling attempt. Cane wanted to avoid Randle’s fate. Scott gave
Cane the same advice he gave Randle: If he was caught with the 200 pounds
of marijuana at the check point, he should “play dumb,” act like he didn’t know
it was in the truck, and they would let him go. But Cane was still unsure about
whether he wanted to make the run. Scott knew Adams and Cane were good
friends, so he asked Cane if he would like Adams to join him. Cane accepted,
but he was still hesitant.
Once Cane was on board, Scott picked him up at his apartment in
Beaumont. The pair traveled to Houston, picked up Adams, and headed to
Hadnot’s house in Corpus Christi. Cane was still uneasy—he peppered Scott
and Adams with questions on the drive. He asked about the checkpoint and
Randle’s failed attempt. Scott and Adams told Cane to relax. They explained
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that Randle “played like she didn’t know nothing about [the marijuana] and
. . . they let her go.” They assured Cane that if he did the same, he too would
be released.
At Hadnot’s house, Hadnot, Adams, and Scott advised Cane about the
specifics of the job and discussed previous runs. Hadnot told Cane that the
truck he would drive had a secret compartment to store the marijuana. Hadnot
and Scott also provided a cover story: Cane was picking up a one-time load
from Corpus Christi to drop off in McAllen.
The next day, Scott drove Hadnot, Adams, and Cane to McAllen. On the
way, they stopped at a Wal-Mart where Scott gave Cane money to buy a
logbook, snacks, and a cooler to stage in Cane’s 18-wheeler. Hadnot and Cane
then left in Scott’s car to pick up the 18-wheeler. Meanwhile, Scott and Adams
waited for Hadnot and Cane at a Burger King.
Hadnot and Cane met two “Spanish guys” in a residential neighborhood
to pick up the truck already loaded with marijuana. Hadnot gave Cane money
for gas, and Cane followed Hadnot to a gas station. As Cane filled up, Hadnot
left to pick up Adams and Scott.
Once Hadnot returned, Cane followed Scott’s car, driven by Hadnot, onto
the highway. Cane ended up following the wrong car, and he lost sight of
Hadnot. Scott called Cane to redirect him. In fact, Scott talked to Cane multiple
times before the checkpoint.
Eventually, Cane reached the Falfurrias Border Patrol Checkpoint.
Hadnot drove Scott’s car through the checkpoint, and Cane drove the truck to
the primary inspection lane. Once Cane stopped, an agent conducted a free-air
sniff with his canine—and the predictable happened. Once again, the canine
alerted, and the agent referred Cane to secondary inspection. Agents searched
the truck and found marijuana “in plain sight.” All told, agents found 29
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bundles of marijuana with a net weight of 175.46 kilograms 2—nearly 550
pounds. Cane tried to “play dumb like [Scott and Adams] told [him],” but to no
avail—like Randle, he was arrested.
The joint conspiracy had failed.
C. Indictment & Plea
Cane identified his four co-conspirators—Randle, Hadnot, Scott, and
Adams—from a photo lineup, and they were subsequently charged 3 with two
offenses: (1) conspiracy to possess with intent to distribute more than 100
kilograms (specifically, 220.81 kilograms 4) of marijuana between June 1, 2014
and August 22, 2014 in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)
(Count One), and (2) aiding and abetting possession with intent to distribute
less than 50 kilograms of marijuana (specifically, 45.35 kilograms) on July 8,
2014 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C. § 2 (Count
Two).
Randle pleaded guilty to Count One. Hadnot, Scott, and Adams,
however, pleaded not guilty and proceeded to trial.
D. Trial & Conviction
At trial, the Government relied on testimony from Randle and Cane to
establish the details of the conspiracy. The Government emphasized Scott’s
role in recruiting Randle and Cane to be drivers. Randle testified about her
involvement with Adams, Scott, and Hadnot to transport more than 45
2Gross weight is the weight of the controlled substance plus packaging, wrappings,
or masking agents. Agents found a gross weight of 249.26 kilograms of marijuana in Cane’s
truck with a net weight of 175.46 kilograms.
3 Cane was charged in a separate indictment. He pleaded guilty to conspiracy to
possess with intent to distribute more than 100 kilograms of marijuana (specifically, a gross
weight of 249.26 kilograms).
4 220.81 kilograms represents the total net weight of the two failed transport
attempts: Randle attempted to transport a net weight of 45.35 kilograms, and Cane
attempted to transport a net weight of 175.46 kilograms.
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kilograms of marijuana through the Falfurrias checkpoint on July 8, 2014.
Cane also testified about his role to transport more than 100 kilograms
through the checkpoint on August 22, 2014. The Government corroborated
their testimony with cell-phone records and testimony by investigators.
Adams, Scott, and Hadnot did not testify or otherwise present any witnesses.
At the close of the Government’s case, Scott moved for acquittal under
Federal Rule of Criminal Procedure 29(a). Scott disputed both counts in the
indictment, arguing that he could not be guilty because he never actually or
constructively possessed any marijuana. He also argued that Randle and Cane
bore sole responsibility for the dubious scheme because they had exclusive
possession of the marijuana and would receive all the profit. The court denied
Scott’s motion.
Scott re-urged these possession points in his closing argument.
A jury found Adams, Scott, and Hadnot guilty on both counts. The jury
also found by special verdict that Hadnot and Scott knew or reasonably should
have known that the conspiracy involved at least 100 kilograms of marijuana.
The court sentenced Scott to 60 months of imprisonment on each count, to be
served concurrently, followed by five years of supervised release on each count.
Scott timely appealed his convictions.
II. DISCUSSION
Scott contends the evidence was legally insufficient to support his
convictions for (1) conspiracy to possess marijuana with intent to distribute
more than 100 kilograms of marijuana (Count One), and (2) aiding and
abetting the possession with intent to distribute less than 50 kilograms of
marijuana (Count Two). As at trial, Scott argues that “there was insufficient
evidence to prove Scott had any possession, actual or constructive, of the
marihuana discovered in the vehicles of Randle and Cane.”
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Scott preserved his challenge by moving for acquittal under Rule 29(a). 5
We review preserved challenges to the sufficiency of the evidence de novo, but
we are “highly deferential to the verdict.” 6 “When reviewing the sufficiency of
the evidence, we view all evidence, whether circumstantial or direct, in the
light most favorable to the government, with all reasonable inferences and
credibility choices to be made in support of the jury’s verdict.” 7 We do not delve
into the evidentiary weeds: The jury “retains the sole authority to weigh any
conflicting evidence and to evaluate the credibility of witnesses.” 8
“A conviction, especially one accompanied by an accomplice instruction,
may be sustained on the uncorroborated testimony of an accomplice so long as
‘the testimony is not incredible or otherwise insubstantial on its face.’” 9
“Testimony is incredible as a matter of law only if ‘it relates to facts that the
witness could not possibly have observed or to events which could not have
occurred under the laws of nature.’” 10 Evidence is sufficient to support a
conviction if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” 11 Our “inquiry is limited to whether
the jury’s verdict was reasonable, not whether we believe it to be correct.” 12
5 See United States v. Jimenez-Elvirez, 862 F.3d 527, 533 (5th Cir. 2017).
6 United States v. Velasquez, 881 F.3d 314, 328 (5th Cir. 2018) (per curiam) (quoting
United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014)).
7 United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009) (per curiam) (citing United
States v. Salazar, 958 F.2d 1285, 1290–91 (5th Cir. 1992)).
8 United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) (quoting United States v.
Loe, 262 F.3d 427, 432 (5th Cir. 2001)).
9 United States v. Suarez, 879 F.3d 626, 631 (5th Cir. 2018) (quoting United States v.
Arledge, 553 F.3d 881, 888 (5th Cir. 2008)).
10 United States v. Booker, 334 F.3d 406, 410 (5th Cir. 2003) (quoting United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994)).
11 United States v. Oti, 872 F.3d 678, 686 (5th Cir. 2017) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
12 United States v. Alaniz, 726 F.3d 586, 601 (5th Cir. 2013) (quoting United States v.
Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)).
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A. Conspiracy
Count One charged Scott with conspiring to possess with intent to
distribute more than 100 kilograms of marijuana, specifically 220.81
kilograms, between June 1, 2014, and August 22, 2014. A conviction for a drug
conspiracy requires proof of “(1) an agreement between two or more persons to
violate the narcotics laws, (2) the defendant’s knowledge of the agreement, and
(3) the defendant’s voluntary participation in the conspiracy.” 13 “The
agreement may be tacit, and the jury may infer its existence from
circumstantial evidence.” 14 The Government must also prove beyond a
reasonable doubt that the quantity of marijuana was at least 100 kilograms. 15
Scott does not dispute that there was an unlawful agreement, that he
knew of the agreement, or that he voluntarily participated in the conspiracy.
In fact, Scott acknowledges his role. Nor does Scott dispute the amount of
marijuana involved. Scott’s only argument is that “the government presented
no proof establishing his clear exercise of control of or dominion over the
marihuana placed in Randle and Cane’s vehicles.” In essence, he contends the
Government has not shown that he possessed the marijuana, so insufficient
evidence supports his conviction for conspiracy to possess with intent to
distribute.
But possession is not an element of a drug conspiracy under 21 U.S.C.
§ 846. 16 Although Scott was never in possession of the marijuana, the evidence
13 Booker, 334 F.3d at 409 (citing United States v. Gallardo-Trapero, 185 F.3d 307,
316–17 (5th Cir. 1999)).
14 United States v. Crooks, 83 F.3d 103, 106 (5th Cir. 1996).
15 See United States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002).
16 See Booker, 334 F.3d at 409.
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establishes—as Scott admits—a concerted action among Scott, Hadnot, and
Adams to transport marijuana through the checkpoint. 17
Ample evidence supports Scott’s conspiracy conviction. Testimony from
Randle and Cane revealed Scott’s role in the conspiracy. 18 Scott recruited both
Randle and Cane to “make a run” through the checkpoint. Randle testified that
she agreed with Adams, Scott, and Hadnot to smuggle roughly 45 kilograms of
marijuana through the checkpoint on July 8, 2014. Scott then met Randle and
Adams to discuss specifics. The three drove to Hadnot’s house, where he helped
develop a cover story, and ultimately to the Rio Grande Valley. And Scott
calmed Randle as she approached the checkpoint: During the run, he was in
constant contact with her through phone calls and text messages.
Cane testified that he agreed with Adams, Scott, and Hadnot to smuggle
more than 200 kilograms of marijuana through the checkpoint on August 22,
2014. Scott met with Cane to discuss the details of the job, including payment
and Randle’s “busted” drug run. When Cane was hesitant, Scott had Adams
contact Cane to convince him to join the scheme. Scott also advised Cane about
his upcoming run on the way to Hadnot’s house. After Cane picked up the truck
loaded with marijuana, he followed a car driven by Hadnot containing Scott
and Adams as passengers. Scott traveled with them to Hadnot’s house and
later to the Rio Grande Valley. He gave Cane money to buy a logbook, snacks,
and a cooler to stage the truck that Cane would be driving. Scott was also in
constant contact with Cane via phone and text message.
Finally, Daniel Ramos, a Corpus Christi police officer assigned as a task
force officer with the Drug Enforcement Administration, testified about the
amount of marijuana seized.
17 See Salazar, 958 F.2d at 1291–92 (reviewing evidence and finding it sufficient for a
conviction under § 846).
18 See Booker, 334 F.3d at 410.
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Based on the above evidence, a rational trier of fact could have found
beyond a reasonable doubt that Scott formed an agreement with Adams,
Hadnot, Randle, and Cane to transport marijuana, that he knew of the
agreement, and that he voluntarily participated in the agreement.
Scott’s conspiracy challenge is without merit.
B. Aiding & Abetting
Scott also challenges his conviction for aiding and abetting on similar
grounds. Count Two charged Scott with aiding and abetting Randle in her
possession with intent to distribute 45.35 kilograms of marijuana.
“The crime of aiding and abetting occurs when the defendant associates
with a criminal venture, purposefully participates in it, and seeks by his
actions to make it succeed.” 19 A conviction for aiding and abetting requires
proof that “the substantive offense occurred and 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.” 20 The Government thus
must prove that Scott “aided and abetted both the possession of [marijuana]
and the intent to distribute it.” 21 But a defendant need not commit each
element of the substantive offense, so long as he aided and abetted each
element. 22 Importantly, the defendant “need not have actual or constructive
possession of the drugs to be guilty of aiding and abetting possession with
intent to distribute.” 23
19 Salazar, 958 F.2d at 1292 (quoting United States v. Vaden, 912 F.2d 780, 783 (5th
Cir. 1990)).
20 United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).
21 United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993) (citing United States v.
Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989)).
22 United States v. Fischel, 686 F.2d 1082, 1087–88 (5th Cir. 1982); see also United
States v. Zapata-Alvarez, 911 F.2d 1025, 1026–27 (5th Cir. 1990) (per curiam).
23 Williams, 985 F.2d at 735; see also United States v. Pena, 949 F.2d 751, 755 (5th
Cir. 1991).
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Scott’s aiding and abetting charge was based on Randle’s failed attempt
to transport marijuana through the checkpoint. Scott acknowledges that he
accompanied Randle to the Rio Grande Valley, where the marijuana was
loaded into her car. But he points to Hadnot as the man responsible for the
transaction. Scott was neither present when the marijuana was obtained nor
involved in preparing Randle’s vehicle to cross the checkpoint. Scott does not
dispute that the underlying offense occurred—he argues that the evidence is
insufficient because he did not participate “in the possession aspect of the
transaction.”
For support, Scott cites United States v. Jackson. 24 In that case, Jackson
introduced two co-defendants who independently arranged a sale of cocaine to
DEA agents. 25 This court found that “[a]lthough [Jackson] was not present at
the actual sale, he helped set up the transaction, was aware of all the
circumstances, and intended that the illegal venture succeed.” 26 But there was
no evidence that Jackson helped his co-defendants obtain the cocaine or that
he exercised any control over the drug. 27 Thus, “[t]here was no participation
. . . in the possession aspect of the transaction” to support a conviction for
aiding and abetting possession with intent to distribute. 28 Scott argues that,
like Jackson, he was aware of the circumstances of the illegal venture and
helped it succeed, but he in no way aided Randle’s possession of marijuana.
Scott’s argument fares no better than Randle’s failed run.
24 See 526 F.2d 1236 (5th Cir. 1976).
25 Id. at 1237.
26 Id. at 1238.
27 Id.
28 Id.
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To be sure, there is no evidence that Scott actually or constructively
possessed the contraband—a relevant factor in our aiding and abetting cases. 29
But the Government is not required to prove actual or constructive possession
in aiding and abetting cases. 30 Aiding and abetting merely requires that the
defendant’s association and participation in a venture were calculated to bring
about the venture’s success. 31 “Typically, the same evidence will support both
a conspiracy and an aiding and abetting conviction.” 32 This is such a case.
Unlike in Jackson, where Jackson’s co-defendants independently
arranged the sale of cocaine, Scott knew the details of the scheme. He recruited
Randle to drive the marijuana across the checkpoint by telling her how much
money she could make, discussed the plan with her on multiple occasions, and
even helped her concoct a cover story. Scott then accompanied Randle to the
Rio Grande Valley and shared a hotel room with her the night before
marijuana was loaded into her car. 33 Scott also drove Hadnot to the Valley
where Hadnot coordinated to load the marijuana into Randle’s car. Once
29 See, e.g., id. at 1237–38 (reversing conviction where there was no evidence that the
defendant helped obtain cocaine or exercised control over it); Fischel, 686 F.2d at 1088–89
(finding sufficient evidence where the defendant encouraged and negotiated the sale of
cocaine but did not possess it).
30 Pena, 949 F.2d at 755.
31 See Williams, 985 F.2d at 753; Fischel, 686 F.2d at 1089 (“Fischel need not have
pulled the cocaine from his own pocket and maintained total control over it until the
consummating of the sale . . . . Fischel need only have helped [the principal’s] possession.”).
32 United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991). See also United States
v. Tenorio, 360 F.3d 491, 494–95 (5th Cir. 2004) (“‘The evidence supporting a conspiracy
conviction typically supports an aiding and abetting conviction.’ . . . Therefore we consider
the sufficiency of the jury verdicts on both the conspiracy and aiding and abetting charges
together.” (quoting United States v. Montgomery, 210 F.3d 446, 450 (5th Cir. 2000))).
33 See United States v. Ceballos-Amaya, 470 F. App’x 254, 260 (5th Cir. 2012) (per
curiam) (unpublished) (finding sufficient evidence to support aiding and abetting with intent
to distribute where defendant assisted in recruiting a driver to transport marijuana and
watched him in the motel while he waited for the truck to drive the marijuana); United States
v. Garcia-Aleman, 14 F.3d 54, at *1 (5th Cir. 1994) (per curiam) (unpublished) (finding that
bringing a man with a large amount of heroin to meet a purchaser “facilitated the distribution
of heroin”).
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Randle possessed the marijuana, Scott coaxed her through the checkpoint
when she became nervous. But for Scott’s actions, Randle would never have
come into possession of the marijuana—unlike the drug dealers in Jackson,
who obtained the cocaine independently of Jackson’s efforts. 34
Viewing this evidence in the light most favorable to the jury verdict, we
cannot say that no rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. 35 Scott associated with a criminal
venture. He ensured Randle possessed marijuana in order to transport it
across the border, purposefully participated in the venture, and sought by his
actions to make the venture succeed.
Scott’s aiding-and-abetting challenge is likewise meritless.
III. CONCLUSION
The evidence, viewed as a whole and in the light most favorable to the
jury verdict, is sufficient to prove the crimes charged beyond a reasonable
doubt.
We AFFIRM Scott’s conviction.
34 See Jackson, 56 F.2d at 1237–38.
35 See Oti, 872 F.3d at 686.
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