United States v. Crawford ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS November 24, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY J. CRAWFORD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(SA-00-CR-625-2)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges
PER CURIAM:*
Following a jury trial, Wesley J. Crawford was convicted
of aiding and abetting possession, with intent to distribute, of
more than 50 grams of cocaine base, in violation of 18 U.S.C. § 2and 21 U.S.C. § 841(a)(1). He was sentenced, inter alia, to 20
years imprisonment. Crawford appeals his conviction on several
grounds.
Crawford’s trial and conviction followed a trial in which he
was acquitted on a conspiracy count but which resulted in a mistrial
*
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this opinion should not be published and is not precedent except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.
on the aiding and abetting count. Crawford maintains his retrial
subjected him to double jeopardy and that the Government should have
been collaterally estopped from retrying him. Assuming, without
deciding, that these contentions were not waived by Crawford’s
failure to raise them in district court prior to the second trial,
they are without merit.
First, the retrial for aiding and abetting did not subject
Crawford to double jeopardy, because the retrial was necessitated
by the inability of the jurors in the first trial to reach a verdict
on that count. See United States v. Deerman, 837 F.2d 684, 689 (5th
Cir.), cert. denied, 488 U.S. 856 (1988); Grogan v. United States,
394 F.2d 287, 289 (5th Cir. 1967), cert. denied, 393 U.S. 830(1968). Second, Crawford has not shown that the retrial violated
the collateral-estoppel doctrine, because the elements of aiding and
abetting were not necessarily decided by his previous acquittal on
conspiracy to possess and distribute narcotics. United States v.
Nelson, 599 F.2d 714, 716 (5th Cir. 1979). Although Nelson noted
that the Government would be estopped from presenting evidence at
a second trial that indicated a conspiracy which it failed to prove
at the first trial, Crawford has not appealed the introduction of
any evidence at his second trial which tended to prove a conspiracy.
Id.Crawford’s contention that the district court erred in
denying his motion for disclosure of the identity of a confidential
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informant involved in the drug investigation also fails. That
motion was made, and denied, prior to the first trial; the record
does not reflect that Crawford renewed it prior to the second. A
retrial following a mistrial is both in purpose and in effect a new
trial. United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997).
Therefore, motions and objections must be renewed to have effect in
the retrial. Id. at 220. Palmer noted, however, that written
motions for disclosure of the informant made before the first trial
may have more long-lasting effect than a simple objection. Id. at
221. Such long-lasting effects are irrelevant here, however,
because the district judge in the first trial later ordered the
Government to reveal the name of the informant.
Crawford further contends that the prosecutor made improper
comments during closing argument that presented facts outside of the
evidence and misled the jury on the applicable law. In a claim for
prosecutorial misconduct, we first ask whether the prosecutor’s
comments were improper and, if so, whether they prejudiced the
defendant’s substantive rights. E.g., United States v. Duffaut, 314
F.3d 203, 210 (5th Cir. 2002). Crawford asserts that the prosecutor
suggested to the jury that mere presence among drug conspirators is
enough to make an individual part of a conspiracy. Crawford does
not cite to the record to support this point, however; and the
record does not reveal that the prosecutor made such a statement.
The other comments about which Crawford complains — he was the
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source of the drugs and that he tried to hide them — were not
improper because the prosecutor was merely urging those inferences
and conclusions she wished the jury to draw from the evidence. See
United States v. Washington, 44 F.3d 1271, 1278 (5th Cir.), cert.
denied, 514 U.S. 1132 (1995); United States v. Webb, 950 F.2d 226,
230 (5th Cir. 1991). There was no prosecutorial misconduct.
Duffaut, 314 F.3d at 210.
Finally, Crawford challenges the sufficiency of the evidence
to support his conviction. Crawford’s counsel made a motion for
acquittal based on insufficient evidence only after the jury had
retired to deliberate; but, pursuant to Federal Rule of Criminal
Procedure 29(a), this motion should have been made earlier — at the
close of the evidence. When a motion for acquittal is untimely,
“the sufficiency of the evidence challenge is reviewed only to
determine if the defendant’s conviction constitutes a manifest
miscarriage of justice”. United States v. Griffin, 324 F.3d 330,
356 (5th Cir. 2003). A manifest miscarriage of justice occurs only
if there is no evidence to support a finding of guilt. United
States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002). Here,
Crawford’s conviction does not constitute a manifest miscarriage of
justice. Even assuming the motion was timely, under the usual
standard of review, the evidence was sufficient.
Crawford was charged with aiding and abetting the possession
of cocaine with the intent to distribute. To convict on this
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charge, the Government had to prove beyond a reasonable doubt that
Crawford associated himself with the criminal venture, participated
in it, and sought by his action to make it succeed. E.g., United
States v. Cartwright, 6 F.3d 294, 300 (5th Cir. 1993). The
evidence showed that the informant negotiated the sale of four
ounces of crack cocaine with Rick Shoels, Crawford’s co-defendant.
The informant contacted Shoels by dialing the number to Crawford’s
cellular telephone. Shoels and Crawford arrived in the same vehicle
to meet the informant at the agreed upon time. Upon approaching
Shoels’ vehicle, police found two ounces of crack cocaine on the
center console, just inches from where Crawford’s left knee would
have been located. Police found more crack cocaine on the passenger
side floorboard pushed slightly under the seat, where Crawford’s
feet had been located. At trial, an officer testified that he
recognized Crawford due to a prior cocaine arrest and that, when
another person accompanies a dealer to a drug sale, it is often
because the second person is the source of supply or a co-seller who
is present to protect his own interests.
AFFIRMED
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