United States v. Robert

Case: 20-61084 Document: 00516037070 Page: 1 Date Filed: 09/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2021
No. 20-61084
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Daniel Robert,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:14-CR-11-2
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Daniel Robert was convicted of: in 2007, conspiring to possess, with
intent to distribute, 500 grams or more of a mixture or substance containing
cocaine hydrochloride, in violation of 21 U.S.C. § 846 (count one); in 2007,
aiding and abetting possession, with intent to distribute, 500 grams or more
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-61084
of a mixture or substance containing cocaine hydrochloride, in violation of 21
U.S.C. § 841(a)(1) (count two); in 2009, conspiring to possess, with intent to
distribute, five kilograms or more of a mixture or substance containing
cocaine hydrochloride, in violation of 21 U.S.C. § 846 (count three); and in
2009, aiding and abetting attempted possession, with intent to distribute, five
kilograms or more of a mixture or substance containing cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (count four). He was
sentenced to, inter alia, 330-months’ imprisonment. He appeals his
convictions, challenging, inter alia: sufficiency of the evidence; denial of his
motion to sever; a claimed variance between counts one and three and the
proof at trial; and admission of other-acts evidence.
A preserved sufficiency-of-the-evidence challenge is reviewed de novo.
United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013). Our review asks
whether the evidence would allow “any rational trier of fact [to find] the
essential elements of the crimes beyond a reasonable doubt”. Id. (emphasis
in original) (citation omitted); see also United States v. Pando Franco, 503 F.3d
389, 394 (5th Cir. 2007) (“[T]he sole inquiry is not whether the jury’s verdict
was ultimately correct but whether the jury made a reasonable decision based
upon the evidence introduced at trial”.). The evidence is viewed in the light
most favorable to the verdict, giving the Government the benefit of all
reasonable inferences and credibility choices. Brown, 727 F.3d at 335. Along
that line, the jury is the sole decider of the credibility of witnesses, and “[w]e
will not second guess the jury in its choice of which witnesses to believe”.
United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citations
omitted).
The Government presented evidence that Robert and codefendants
drove to Texas on multiple occasions to obtain drugs for distribution in
Mississippi. Robert contends the Government failed to show he was involved
in, or even aware of, the offenses charged. This overlooks his codefendants’
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testimony implicating him, not only in those offenses, but in a larger pattern
of drug trafficking. The uncorroborated testimony of a single coconspirator
can sustain a conviction. United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.
1994). Here, the jury heard detailed accounts from two coconspirators; the
testimony was consistent and corroborated other evidence, including
circumstantial evidence of: planning, coordination, and intent. See United
States v. Zamora-Salazar, 860 F.3d 826, 832 (5th Cir. 2017) (noting “jury
may infer any element of conspiracy from circumstantial evidence” (citation
omitted)). The evidence sufficiently proved the offenses’ essential elements.
Robert’s reliance on Sears v. United States, 343 F.2d 139 (5th Cir. 1965), is
misplaced because it did not turn on sufficiency. To the extent he contends
his convictions on counts one and two required proof he personally possessed
cocaine, his challenge is misplaced. See, e.g., United States v. Scott, 892 F.3d
791, 799 (5th Cir. 2018) (noting “Government is not required to prove actual
or constructive possession [for] aiding and abetting”).
Regarding denial of his pre-trial motion to sever, Robert contends he
was prejudiced as to counts one and two, the offenses in 2007, by the joinder
of counts three and four, the offenses in 2009. Joinder is prejudicial “when
the jury is unable to separate the evidence and apply it to the proper offenses,
or where the jury might use the evidence of one of the crimes to infer criminal
disposition to commit the other crimes charged”. United States v.
Fortenberry, 914 F.2d 671, 675 (5th Cir. 1990) (holding joinder of related
counts not prejudicial because evidence “distinct in time and source” and
jury would encounter “little difficulty separating [it]”). A severance-denial
is reviewed for abuse of discretion and will not be reversed absent “a showing
of specific and compelling prejudice which results in an unfair trial”. United
States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994).
Robert fails to make that showing. Moreover, the court instructed the
jury to distinguish each count and its related evidence. This instruction
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generally suffices to cure any prejudice from a failure to sever counts. See
United States v. Hickerson, 489 F.3d 742, 746 (5th Cir. 2007) (holding district
court did not abuse its discretion, jury given instruction and defendant failed
to establish it was disregarded).
Next, regarding counts one and three, Robert contends there was a
variance between the indictment and the proof at trial. Even assuming this
to be true, reversal is unwarranted because he fails to demonstrate prejudice.
See United States v. Jara-Favela, 686 F.3d 289, 299–300 (5th Cir. 2012)
(explaining reversal warranted only when difference between indictment and
jury instruction allows “defendant to be convicted of a separate crime from
the one for which he was indicted” (citation omitted)). A variance does not
constitute reversible error if “defendant receives notice and is not subject to
the risk of double jeopardy”. United States v. Ekanem, 555 F.3d 172, 174 (5th
Cir. 2009) (citation omitted). Robert does not assert: he was prejudiced in
preparing his defense; he is at risk of double jeopardy; or the jury was charged
improperly on counts one and three. Moreover, jurors were cautioned
repeatedly against drawing the type of inference he maintains the
indictment’s wording might have suggested.
As for his other-acts-evidence challenge, evidentiary rulings are
reviewed for abuse of discretion; and this review, understandably, “is
necessarily heightened” for criminal proceedings. United States v. Sumlin,
489 F.3d 683, 688 (5th Cir. 2007). Generally, other-acts evidence is not
admissible to prove a person possessed a particular character or character
trait. Fed. R. Evid. 404. Admissibility turns, inter alia, on whether the
evidence is intrinsic or extrinsic. United States v. Rice, 607 F.3d 133, 141 (5th
Cir. 2010) (holding court did not abuse discretion by admitting intrinsic
other-act evidence). Evidence is intrinsic if “inextricably intertwined” with
evidence of a charged offense; this evidence is generally admissible. See id.;
Sumlin, 489 F.3d at 689 (noting “Rule 404(b) only applies to limit the
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admissibility of evidence of extrinsic acts”). Extrinsic other-act evidence is
admissible if, as discussed infra, it satisfies the two-prong test provided in
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc); see
Fed. R. Evid. 404(b).
Two coconspirators testified about uncharged trafficking offenses.
Robert did not object to the admission of some of this testimony; reversal,
therefore, is not warranted unless he shows reversible plain error. See, e.g.,
United States v. Ceballos, 789 F.3d 607, 617, 620–21 (5th Cir. 2015) (holding
defendant failed to meet standard). Some of the challenged testimony may
qualify as intrinsic evidence, as the Government contends. Parsing the
relevant statements individually is unnecessary, however, because, even
assuming his challenges are preserved and none of the evidence is intrinsic,
he does not show they run afoul of the Beechum test.
Beechum’s first prong asks whether the “evidence is relevant to an
issue other than the defendant’s character”. Beechum, 582 F.2d at 911.
Evidence of Robert’s involvement in a pattern of trafficking activity was
probative of his knowledge and intent. See, e.g., United States v. Garcia
Mendoza, 587 F.3d 682, 689 (5th Cir. 2009) (concluding evidence of accused
conspirator’s involvement in another drug conspiracy five years earlier
“highly relevant” to his intent). Although Robert maintains he did not place
his intent at issue, he is mistaken. See United States v. Booker, 334 F.3d 406,
411 (5th Cir. 2003) (“The mere entry of a not guilty plea in a conspiracy case
raises the issue of intent sufficiently to justify the admissibility of extrinsic
offense evidence.” (citation omitted)).
Beechum’s second prong asks whether the probative value of extrinsic
evidence is “substantially outweighed” by the risk of undue prejudice.
Beechum, 582 F.2d at 911. Limiting instructions can “greatly minimize any
risk of undue prejudice posed by the admission of extrinsic evidence”.
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Garcia Mendoza, 587 F.3d at 689. The jury received one. Robert contends
this instruction was ineffective, but his assertion is unclear and unpersuasive.
His largely unexplained references to the strictures of Federal Rule of
Evidence 104(b) (relevance depending on facts) are no more successful in
bolstering his claims.
Robert refers to other legal theories and points of error. Those issues
are inadequately briefed; he, therefore, has abandoned them. United States
v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (noting merely alluding to
legal theory without explanation constitutes failure to brief). We also decline
to review issues raised for the first time in his reply. Id. at 447 (explaining
issues not raised in initial brief on appeal generally not reviewed).
AFFIRMED.
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