United States v. Wright ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50559
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOYLAN BARSHUN WRIGHT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CR-85-1
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June 15, 2001
Before REAVLEY, JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Toylan Barshun Wright appeals his conviction of conspiracy
to possess with the intent to distribute more than 50 grams of
cocaine base, and of aiding and abetting the possession with the
intent to distribute more than 50 grams of cocaine base. Wright
contends that the evidence was not sufficient to support his
convictions.
Because Wright moved for a judgment of acquittal at the
close of the Government’s case and reurged the motion at the
conclusion of all the evidence, we will affirm if “a rational
*
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that this opinion should not be published and is not precedent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. 00-50559
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trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.”
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
The Government was required to prove three elements in order
to obtain the conviction for conspiracy to possess with intent to
distribute: 1) the existence of an agreement between two or more
persons to violate federal narcotics laws; 2) the defendant’s
knowledge of the agreement; and 3) the defendant's voluntary
participation in the agreement. United States v. Gonzales, 79
F.3d 413, 423 (5th Cir. 1996). Circumstantial evidence is
sufficient to prove the existence of a conspiracy, the elements
of which “may be inferred from the development and collocation of
circumstances.” Id. (internal citations and quotation marks
omitted). The jury may consider factors such as “concert of
action” and presence among, or association with, drug
coconspirators, United States v. Bermea, 30 F.3d 1539, 1551 (5th
Cir. 1994) (internal quotation marks and citations omitted),
although mere presence and association alone are not sufficient
to support a conspiracy conviction. See United States v. Brito,
136 F.3d 397, 409 (5th Cir. 1998). An explicit agreement need
not be proven; the agreement may be tacit. United States v.
Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997).
Wright was the driver of a vehicle containing a
distributable quantity of cocaine base and related drug
paraphernalia. When the vehicle was stopped for a minor traffic
offense, Wright failed to pull over immediately; once stopped,
Wright immediately exited the vehicle, exhibited nervousness, and
No. 00-50559
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engaged the police officer while a co-conspirator discarded the
illegal drugs beside the vehicle. After his arrest on an
outstanding warrant, Wright displayed an active interest in the
ongoing police investigation, which eventually discovered the
discarded cocaine base. A small quantity of cocaine base was
found in the backseat of the police vehicle where Wright had been
seated, and a field test of Wright’s clothing returned a positive
result for cocaine. Considering the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
prosecution, a rational trier of fact could have found that the
Government established the essential elements of the offense
beyond a reasonable doubt. See Lopez, 74 F.3d at 577.
Wright challenges his conviction for aiding and abetting on
the grounds that the evidence was insufficient to establish that
he possessed more than 50 grams of cocaine base or possessed more
than is consistent with personal use. “The essential elements of
an aiding and abetting claim are (1) association with a criminal
drug venture, (2) participation in the venture, and (3) action by
the defendant that, in some way, tries to make the venture
succeed.” United States v. Drones, 218 F.3d 496, 505 (5th Cir.
2000) (citation omitted). Possession is not an essential element
of the offense. “A defendant may be convicted of aiding and
abetting the offense of possession with intent to distribute a
controlled substance even if he did not have actual or
constructive possession of the substance.” United States v.
Gonzales, 121 F.3d 928, 936 (5th Cir. 1997). Evidence supporting
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a conspiracy conviction is generally sufficient to support an
aiding and abetting conviction. See id.
Considering the evidence adduced at trial, a rational jury
could have found that Wright – who drove a vehicle which
contained at least one co-conspirator, a distributable quantity
of “crack” cocaine, and related drug paraphernalia; who failed
immediately to bring the vehicle to a halt when stopped by a
police cruiser for a traffic violation; who, upon exiting the
vehicle, exhibited nervousness and engaged the police officer
while occupants of the vehicle disposed of contraband; and whose
clothing tested positive for cocaine – was associated with,
participated in, and took actions to help a “crack” cocaine
distribution venture succeed.
AFFIRMED.