United States v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 26, 2009
No. 08-30179
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
MARIEA I. DAVIS; EMILY ANN GARDNER,
Defendants–Appellants.
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 3:07-CR-30015-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Mariea I. Davis and Emily Ann Gardner appeal their convictions for
conspiracy to possess with intent to distribute methamphetamine and possession
with intent to distribute methamphetamine. They argue that the evidence was
insufficient to support their convictions, the district court abused its discretion
by denying their Federal Rule of Evidence 404(b) motion and allowing evidence
of marijuana possession to be admitted, and the district court abused its
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-30179
discretion in instructing the jury that the conspiracy offense involved “a
controlled substance” rather than referring specifically to methamphetamine.
Because the defendants preserved their arguments below, we review the
sufficiency of the evidence de novo to determine “whether a rational trier of fact,
after considering all the evidence and reasonable inferences drawn therefrom in
a light most favorable to the verdict, could have found the defendant guilty
beyond a reasonable doubt.” United States v. Conner, 537 F.3d 480, 484 (5th Cir.
2008) (quoting United States v. Harris, 420 F.3d 467, 470 (5th Cir. 2005)). A
review of the Government’s case-in-chief establishes that Davis and Gardner
were sisters who were traveling in a rental car that was rented by another sister
who was not present. They were traveling eastbound on I-20 in Lincoln Parish,
Louisiana, although the rental car was not supposed to be driven outside of
Mississippi or Georgia. When questioned, Davis stated that they were traveling
from Atlanta. She then related several inconsistent versions of where they were
coming from and what they had done. In one version, she stated that she had
driven the rental car to Dallas, while receiving directions from her cousin,
Quinton, who also made the trip but in a separate car. Quinton had promised
to give her $500 to go shopping in Dallas. However, they did not go shopping in
Dallas, and she did not receive the $500. The evening they arrived, Quinton
took the rental car and left with three other men. When he returned, he told
them that it was time to drive back to Mississippi. During the return trip,
Quinton called Davis on her cell phone several times to warn her not to speed
when he observed police near the road. Davis testified that this made her
suspicious.
Gardner advised the officers that they traveled from Gulfport, Mississippi,
to Dallas, Texas, in order to visit her mother and some other relatives and
friends. She appeared extremely nervous and could not tell one of the officers
whom she had visited, nor could she recall the name of the hotel where they had
stayed. She admitted that, while in Dallas, a friend of theirs had taken the
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No. 08-30179
rental car and driven off with three other men. Her description of this man did
not match her sister’s. Gardner did not have any identification, a purse, or any
clothes with her. One of the officers described her eye contact during the
interview as deceptive and noted that she had answered the questions very
slowly.
After receiving consent to search the vehicle, officers found a shoe box in
the trunk that contained approximately $400,000 worth of methamphetamine.
Both Davis and Gardner denied knowledge of the drugs.
The distance between Gulfport, Mississippi, and Dallas, Texas, is
considerable, but Gardner’s statements indicated that they left on Wednesday
and started to drive back the next morning. In light of the less than credible
descriptions of the trip (including Gardner’s inability to name the friends and
relatives they allegedly had visited and Davis’s contention that they went to go
shopping but never did); the inconsistent answers given by the two women;
Gardner’s extreme nervousness and concern when she was told that the car was
to be searched; the suspicious actions of their friend in taking the rental car and
leaving with three men and then informing them upon his return that it was
time to leave; and the value and quantity of the drugs found, a rational trier of
fact could have found the defendants guilty of conspiracy and of possession with
intent to distribute methamphetamine. See United States v. Villarreal, 324 F.3d
319, 324-25 (5th Cir. 2003); United States v. Casilla, 20 F.3d 600, 606-08 (5th
Cir. 1994). Accordingly, the evidence was sufficient to support the convictions.
Davis and Gardner argue that the district court erred under Federal Rule
of Evidence 404(b) by admitting evidence that a personal-use amount of
marijuana was found in the car. However, the district court determined that the
marijuana was intrinsic evidence. Accordingly, Rule 404(b) was inapplicable,
and this argument is without merit. See United States v. Yi, 460 F.3d 623, 632
(5th Cir. 2006).
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No. 08-30179
Davis and Gardner contend that the jury charge would have been more
clear if the district court had specified that the conspiracy count involved
methamphetamine, rather than a “controlled substance.” To obtain a conviction
under 21 U.S.C. § 846, the Government did not have to establish that Davis and
Gardner knew that the substance in the trunk was methamphetamine; rather,
it was sufficient if they knew that it was a controlled substance. See United
States v. Patino-Prado, 533 F.3d 304, 309-10 (5th Cir. 2008) (per curiam), cert.
denied, 129 S. Ct. 328 (2008). The district court’s instruction, when coupled with
its recitation of the indictment, which specified that the charge related to
methamphetamine, properly guided the jury in its deliberations and was not an
abuse of discretion. See United States v. Klein, 543 F.3d 206, 210 (5th Cir. 2008),
petition for cert. filed (U.S. Jan. 13, 2009) (No. 08-8207).
AFFIRMED.
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