United States v. Drones ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20813
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
JANADRICK KEMONT DRONES
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CR-125-3)
_________________________
July 2, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
*
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should not be published and is not precedent except under the limited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.
I.
The government indicted Janadrick Kemont Drones and several
others with conspiracy to possess cocaine base with the intent to
distribute, aiding and abetting the possession of cocaine base with
intent to distribute, and using and carrying a firearm in relation
to a drug-trafficking crime. During Drone’s jury trial, the
district court granted his motion for a judgment of acquittal
regarding the firearms offense, but denied the motion regarding the
drug-trafficking claims. The jury subsequently found Drones guilty
of committing the drug-trafficking offenses. Several days
following the jury’s verdict, the district court concluded that its
previous ruling denying the motion for judgment of acquittal on the
drug-trafficking offenses was erroneous and acquitted Drones of
those charges. The government filed a timely notice of appeal to
the district court’s order of acquittal.
II.
The government argues that the district court erred by
granting acquittal for Drones in the drug-trafficking offenses and
contends that there was sufficient evidence to support the
conclusion of Drones’s guilt of the conspiracy and aiding-and-
abetting charges beyond a reasonable doubt.
The duty of a district court in ruling on a post-verdict
motion for acquittal is to determine, viewing the evidence in the
light most favorable to the government, whether the evidence could
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be accepted by a jury as adequate and sufficient to support the
conclusion of the defendant’s guilt beyond a reasonable doubt.
United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert.
denied, 506 U.S. 918 (1992). An appellate court reviews the trial
court’s granting of a motion for acquittal de novo, applying the
same standard as the court below. Id. Neither the trial court,
nor the appellate court, may substitute its own subjective
interpretation of the evidence for that of the jury’s. United
States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.), cert. denied, 446
U.S. 945 (1980) (cited by Sanchez, 961 F.2d at 1179). However, if
the evidence supports equally or nearly equally a theory of
innocence, the district court will not have erred in entering a
judgment of acquittal. Sanchez, 961 F.2d at 1180.
To establish guilty of a drug conspiracy, the government must
prove beyond a reasonable doubt the existence of an agreement to
possess with intent to distribute an illicit substance, the
defendant’s knowledge of the agreement, and his voluntary
participation in it. United States v. Lewis, 902 F.2d 1176, 1180-
81 (5th Cir. 1990). It is not necessary for the government to
prove an express, explicit agreement; a tacit, mutual agreement
will suffice to prove a conspiracy. United States v. Prieto-Tejas,
779 F.2d 1098, 1103 (5th Cir. 1986). The government sustains its
burden by showing that the defendant was aware of the unlawful
agreement and was somehow associated with the plan to promote its
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success. United States v. Fernandez-Rogue, 703 F.2d 808, 814-15
(5th Cir. 1983).
A person who associates in a criminal venture, participates in
the venture, and engages in conduct designed to make the venture
succeed is guilty of aiding and abetting under 18 U.S.C. § 2.
United States v. Murray, 988 F.2d 518, 522 (5th Cir. 1993).
“‘Association’ means that the defendant shared the criminal intent
of the principal. ‘Participation’ means that the defendant engaged
in some affirmative conduct designed to aid the venture.” Id.
When a drug defendant is accused of aiding and abetting possession
with the intent to distribute, the government also must prove the
above three elements of aiding and abetting with respect to both
possession and intent to distribute. See United States v.
Longoria, 569 F.2d 422, 425 (5th Cir. 1978).
Gregory Haire, a sergeant investigator with the Texas
Department of Public Safety, testified that at approximately 1:00
p.m. on April 25, 1995, he directed two confidential informants
(CIs) as they negotiated a purchase of 18 ounces of crack cocaine
over the telephone. The CIs received two phone calls after paging
the sellers. Haire recorded both phone calls. Haire never
obtained the telephone numbers the CIs used to page the crack
cocaine sellers.
Haire stated that, at the drug transaction’s designated
meeting place, he observed Drones sitting in the driver’s seat of
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a 1995 White Mustang convertible, his codefendant, Vernon Paul
Freddie (Vernon), sitting in the front passenger seat, and his
other codefendant, Arnold Joseph Freddie (Arnold), sitting in the
rear of the vehicle. Haire also stated that the drugs were located
in the front right floorboard area. Haire testified that when the
backup officers came in to make the arrests, Drone moved as if to
run, but Haire grabbed him in a choke hold and wrestled him to the
ground.
Haire testified that he designated Drones as one of the
speakers in the transcripts of the recorded phone calls after he
recognized Drones’s voice at his arrest as one of the speakers in
the taped phone calls. On cross-examination, Haire clarified that
he determined Drones was one of the voices on the tapes after Haire
had listened to the tapes following Drones’s arrest.
Haire also testified that he never obtained a second tape of
Drones’s voice to allow researchers to definitively determine if
Drones’s voice was one of the voices in the phone call. Haire
stated that, although he could have done more to identify the
voices on the tapes, he did not do so because he believed it was
not important.
Haire discovered that Violet Walker rented the Mustang from
Budget Rental Car but never talked to her to discover to whom she
loaned the car. Haire testified that he saw the keys in the
ignition when he observed the Mustang, but could not contradict the
assertion that they were in Arnold’s pocket.
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After pleading guilty to the charged drug-trafficking crimes,
Vernon testified that he encountered Drones in the parking lot of
a Burger King restaurant, and that he had not seen Drones in a year
prior to that meeting. Vernon introduced Drones to his brother,
Arnold, who was near Vernon’s white Mustang. Vernon testified that
only his brother and he were in the Mustang when it arrived at the
Burger King, and that his brother was driving the car. Vernon and
Drones walked to the car to write down Drones’s phone number when
the CI walked up to the car and got in the driver’s seat. After
Vernon weighed an ounce of crack cocaine for the CI, the CI got out
of the car. At all times, Drones was standing by the back of the
car.
After pleading guilty to the drug-trafficking offenses, Arnold
testified that his brother introduced him to Drones at the Burger
King parking lot. Arnold stated that Drones was standing by the
rear of the car when Vernon and the CI got into the front of the
car and weighed the crack cocaine. Arnold stated that Drones was
still standing by the rear of the car when Haire came up to the
Mustang. Arnold affirmed it was his beeper number on the
recordings and that he had previously had a telephone conversation
with the CI which resulted in the arrangement of a drug
transaction, that he knew that a drug transaction was going to
occur in the parking lot, and that he was sitting in the backseat
of the car to be able to see everything in his role as bodyguard.
Arnold specifically testified that Drones was not a party to the
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drug transaction, that he was not in the car, and that he did not
recognize Drones’s voice on the tape recordings of the phone calls.
Krisna Brown, Drones’s wife, testified that the night previous
to Drones’s arrest, they had spent the night at a motel. On the
tape recordings, one of the CIs told the person Haire identified in
the tape as Drones that the CIs were willing to meet at a motel.
Brown testified that she left at 8:00 a.m. and spent the rest of
the day with Drones at her sister’s house, which did not have a
phone. Brown testified that Drones left her company at about 4:30
p.m. to get something to eat and that she believed he went to a
Burger King.
The government contends that the tape recorded conversations,
coupled with Haire’s identification of Drones as one of the
speakers in the conversations and Arnold’s admission that he
participated in the taped conversations was sufficient to support
a finding that Drones entered into an agreement with Arnold to sell
cocaine. The government asserts that Drones’s presence at the
scene of the transaction corroborated Haire’s voice identification
and that the jury could infer Drones’s knowing participation in the
transaction from a cumulation of the factors combined with Drones’s
presence at the scene and his attempted flight.
This case presents a close question whether the evidence,
viewed in the light most favorable to the government, supports
Drones’s conviction for conspiracy to possess cocaine base beyond
a reasonable doubt. Apparently, the jury considered Haire’s
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testimony, which included his identification of Drones’s voice and
presence in the car with the drugs, to be more credible than the
testimony of Drones’s codefendants and alibi witness. This
credibility choice must stand. See Varkonyi, 611 F.2d at 85. Yet,
Haire could not link Drones with the phone numbers used to arrange
the drug transaction. See United States v. Velgar-Vivero, 8 F.3d
236, 240 (5th Cir. 1993), cert. denied, 114 S. Ct. 2715 (1994)
(Government’s failure to link defendant with phone numbers used to
execute drug deal one of factors in reversing conspiracy conviction
for insufficient evidence).
However, giving the jury’s credibility choices their due
weight, the evidence appears to support the jury verdict beyond a
reasonable doubt. Haire’s testimony demonstrated Drones’s
involvement in the drug-transaction arrangements with Arnold and
placed him in the car with the drugs at the appointed transaction
site. Through this testimony the jury could believe that Drones
was aware of an unlawful agreement and that he was associated with
the plan to promote his success. See Fernandez-Rogue, 703 F.2d at
814-15. Because the evidence, accepted by the jury as adequate,
was sufficient to support the conclusion of Drones’s guilt beyond
a reasonable doubt, the district court erred by granting Drones’s
motion for a judgment of acquittal. See Sanchez, 961 F.2d at 1179.
See Varkonyi, 611 F.2d at 85.
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