United States v. Cousin ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-30914
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CEDRIC DWAYNE ROBERSON,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * * * * *
_______________
No. 95-30915
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TROY ANTHONY COUSIN
and
DARRYL JACOBS,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Louisiana
(94-CR-20044)
_________________________
October 29, 1996
Before SMITH and PARKER, Circuit Judges, and JUSTICE1, District
Judge.
JERRY E. SMITH, Circuit Judge:**
Cedric Roberson, Troy Cousin, and Darryl Jacobs appeal their
convictions and sentences for possession with intent to distribute
cocaine and conspiracy to accomplish the same. Finding no error,
we affirm.
I.
This case arises out of the guilty pleas and convictions of
Cedric Dwayne Roberson, Troy Anthony Cousin, and Darryl Jacobs.
Three of the ten counts in the indictment are involved. Count one
charged Roberson, Cousin, Jacobs, and five others with conspiracy
to possess with intent to distribute 23 kilograms of cocaine and
252 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846. Count seven charged Cousin and Jacobs
with possession with intent to distribute 750 grams of cocaine on
February 4, 1992, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). Count nine charged Roberson with possession with
intent to distribute 1000 grams of cocaine on September 15, 1992,
1
District Judge of the Eastern District of Texas, sitting by designation.
**
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should not be published and is not precedent except under the limited circumstances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.
2
also a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
Roberson pleaded guilty to count nine; a jury found Cousin and
Jacobs guilty of counts one and seven.
The conspiracy involved a drug distribution network in Texas
and Louisiana. Roberson, Cousin, Jacobs, and others transported
cocaine from Texas to Louisiana and sold it through a group of drug
dealers in the Kenner area (the “Kenner group”). Couriers
typically would drive the cocaine from Houston to New Orleans,
where the Kenner group then would distribute the drugs at the
retail level. Bryan Kyles was the Houston contact for the Texas
portion of the distribution network (the “Texas group”); Cousin,
Roberson, and Jacobs were involved on the Louisiana side. The
parties communicated via cellular phones and pagers.
II.
Cousin and Jacobs’s first argument is that there was insuffi-
cient evidence to support their convictions. The district court
denied their respective motions for judgment of acquittal or new
trial on this ground, and we review those decisions de novo.
United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert.
denied, 506 U.S. 918 (1992). In a criminal case, we will affirm
the jury’s verdict if a reasonable trier of fact could conclude
from the evidence that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most
favorable to the jury’s verdict and drawing all reasonable
3
inferences from the evidence to support the verdict. The evidence
presented at trial need not exclude every reasonable possibility of
innocence. United States v. Faulkner, 17 F.3d 745, 768 (5th Cir.),
cert. denied, 115 S. Ct. 193 (1994).
In a prosecution for a drug conspiracy, the government must
prove (1) the existence of an agreement between two or more persons
to violate the narcotics laws; (2) that the defendant knew of the
agreement; and (3) that he voluntarily participated in the
agreement. United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.
1996). In a prosecution for possession with intent to distribute,
the government must prove that the defendant knowingly possessed a
controlled substance with intent to distribute it. United States
v. Limones, 8 F.3d 1004, 1009 (5th Cir. 1993), cert. denied,
114 S. Ct. 1543, and cert. denied, 114 S. Ct. 1562 (1994).
A.
We first address Cousin’s claim that there was insufficient
evidence to support his possession and conspiracy convictions.
With regard to the possession conviction, he argues that there is
no evidence to support a finding that he possessed cocaine on the
specific date charged, February 1, 1992. His contention is quite
simply that the lack of testimony regarding the specific date is
fatal to the government’s case. With respect to his conspiracy
conviction, he argues that there is no evidence to support a
4
finding that he was a “knowing” participant in the conspiracy.
The evidence is sufficient to support Cousin’s conviction for
possession. When the government charges a defendant with a crime
using the “on” or “about” language, it is not required to prove the
precise date of the offense if it establishes the general time
frame in which the crime occurred. United States v. Hernandez, 962
F.2d 1152, 1157 (5th Cir. 1992); United States v. Tunnell, 667 F.2d
1182, 1186 (5th Cir. 1982). The testimony of Steven Webb, one of
Kyles’s drug couriers, established that the possession occurred on
or about February 5, 1992.1
There is also sufficient evidence to support Cousin’s
conspiracy conviction. Walter Sharpe testified that he received
cocaine from Cousin on four separate occasions. A number of other
witnesses linked Cousin with known drug dealers in the Kenner area.
Webb, for example, testified that Cousin and Albert Berniard
traveled together to Houston to pick up drugs and that Cousin paid
him $19,000 for a kilogram of cocaine. Finally, Berniard, a Kenner
area drug dealer, had a pager that was billed to Cousin’s address.
There was more than enough evidence for the jury reasonably to
conclude that Cousin was a knowing participant in the conspiracy.
1
Webb testified that at one point he had met Cousin at 1916 Franklin
Avenue in New Orleans to sell him a kilogram of cocaine. Both Cousin and a man
Webb knew as “Duke” were present when he delivered the drugs. On February 5,
1992, a Louisiana state trooper stopped Webb as he was driving from New Orleans
to Houston and found $19,724 in his car. Although Webb could not pinpoint the
exact date on which he had delivered the cocaine, he did testify that the traffic
stop occurred the day after the drug transaction and that the money in his car
had come from Cousin.
5
B.
Jacobs’s sufficiency claim is essentially that the government
failed to prove that he either knew of the conspiracy or volun-
tarily participated in it. At worst, he argues, the evidence
showed that he was at the wrong places at the wrong times.
Jacobs’s argument on his possession conviction is contingent on his
argument about on conspiracy convictionSShe contends that because
he was not a coconspirator, the evidence must show that he
personally possessed cocaine with the intent to distribute it.
The evidence was sufficient to support Jacobs’s conspiracy
conviction. A conspiracy may be proven by circumstantial evidence.
United States v. Leal, 74 F.3d 600, 606 (5th Cir. 1996) (quoting
United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert.
denied, 114 S. Ct. 2150 (1994)). Paul Fisher testified that at
Kyles’s behest, he delivered drugs to a man named “Duke”SSwhom the
government claimed was JacobsSSat Jacobs’s address.2 Webb testified
that “Duke” was present at the drug transaction in early February
of 1992. That testimony supports Jacobs’s conviction, particularly
when it is combined with the evidence of Jacobs’s friendship with
Kyles, the evidence that a number of drug transactions occurred at
Jacobs’s home, and the evidence that there were numerous phone
calls between members of the conspiracy and telephone numbers that
2
Fisher was unable to identify Jacobs in open court. Viewing the evidence
in the light most favorable to the verdict, however, that could easily be
attributed to the fact that Fisher saw “Duke” only once and for a short period
of time.
6
the government linked to Jacobs.3
III.
Cousin claims that the district court erred in denying his
motion for a judgment of acquittal because there was a variance
between the indictment and the proof. Specifically, he asserts
that the Kenner group was distinct from the Texas group. Cousin
argues that the participants in these groups did not overlap and
that the timing of the conspiracies was not a perfect fit. From
this he concludes that the government charged one conspiracy but
actually proved another.
As with Cousin’s sufficiency claim, we review the denial of
the motion for acquittal de novo. Sanchez, 961 F.2d at 1179. We
may reverse a conviction when the defendant both proves a variance
between the government's evidence and the allegations in the
indictment and demonstrates that the variance prejudiced his
substantial rights.4 But "[w]e must affirm the jury's finding that
the government proved a single conspiracy unless the evidence and
3
Indeed, it appears that the conspirators had a great deal to talk about
on the phone. Between January 15 and January 17, 1992, there were 25 calls
between Kyles’s cellular telephone or his pager and a telephone number installed
at 1916 Franklin Avenue. The subscriber to that telephone number was Contrella
Perkins, Jacobs’s common-law wife. Between February 3 and September 1, 1992,
Kyles called Berniard’s beeper 57 times. Between November 27, 1991, and
April 28, 1992, there were 199 calls between the telephone at 1916 Franklin and
Kyles’s pager or cell phone. Between February 3 and February 7, 1992, there were
24 calls between the telephone at 1916 Franklin and Kyles’s pager or cell phone.
Between November 29, 1991, and April 20, 1992, Kyles made nine trips to New
Orleans and called the telephone number at 1916 Franklin 25 times.
4
United States v. Gaytan, 74 F.3d 545, 552 (5th Cir.), cert. denied, 1996 WL
378632 (Oct. 7, 1996); United States v. Morris, 46 F.3d 410, 414 (5th Cir.), cert.
denied, 115 S. Ct. 2595, and cert. denied, 115 S. Ct. 2595 (1995); United States v.
Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert. denied, 115 S. Ct. 180 (1994).
7
all reasonable inferences, examined in the light most favorable to
the government, would preclude reasonable jurors from finding a
single conspiracy beyond a reasonable doubt." United States v.
DeVarona, 872 F.2d 114, 118 (5th Cir. 1989). Among the factors to
be considered in determining whether a single conspiracy was proven
by the government are (1) the existence of a common goal; (2) the
nature of the scheme; and (3) whether the participants overlapped.
Morris, 46 F.3d at 415; Puig-Infante, 19 F.3d at 936.
The evidence is sufficient to support a finding of a single
conspiracy. The jury reasonably could have concluded that the
Texas group, which supplied drugs to Louisiana, and the Kenner
group, which sold the drugs to users in Louisiana, were two facets
of a single organization. The success of the Texas group was tied
to that of the Kenner group, as the retail sale of drugs was
necessary to Kyles’s success as a large-scale wholesale distribu-
tor. See Morris, 46 F.3d at 416. There was also evidence that the
two groups had overlapping memberships: Webb testified that two
members of the Kenner group, Cousin and Berniard, went to Houston
to pick up drugs. This is sufficient to prove a single conspiracy;
complete overlap is not required. Id.
IV.
Cousin argues that he was denied a right to a fair trial by
prosecutorial misconduct during closing arguments. Prior to
closing arguments, the district court excluded the hearsay
8
testimony of Montero Kelly on grounds that the government had
failed to provide sufficient evidence that Kelly was a co-conspira-
tor. Cousin alleges that the following statements during the
government’s rebuttal referred to that excluded evidence:
But, you know, with this testimony Bryan Kyles is in the
conspiracy. He also points out Walter Sharpe is not
named in the conspiracy, but you can tell by the events
that occurred during the course of the trial that Walter
Sharpe is a conspirator. I submit to you, ladies and
gentlemen, that the nucleus of the conspiracy in which
this defendant, this Mr. Cousin was involved, it is these
people in these photographs, some of them were dealing in
the Kenner area, some of them were small street dealers,
such as Walter Sharpe, and Montero Kelly, and that group.
Some of them were people like Mr. Cousin and the Polks.
Some of them was Mr. Albert Bernard, or Berniard, or
whatever he may be, that went in with Cousin to go and
get dope. [Emphasis added.]
The district court denied Cousin’s motion for a mistrial on the
basis of these statements.
In general, "[c]ounsel is accorded wide latitude during
closing argument, and this court gives deference to a district
court's determination regarding whether those arguments are
prejudicial and/or inflammatory." United States v. Murphy, 996
F.2d 94, 97 (5th Cir.), cert. denied, 510 U.S. 971 (1993). "Our
task in reviewing a claim of prosecutorial misconduct is to decide
whether the misconduct casts serious doubt upon the correctness of
the jury's verdict." United States v. Kelley, 981 F.2d 1464, 1473
(5th Cir.) (internal quotation marks and citation omitted) (quoting
United States v. Carter, 953 F.2d 1449, 1457 (5th Cir. 1992)),
9
cert. denied, 504 U.S. 990 (1992).
Because Cousin objected to these remarks, we inquire whether
they were both inappropriate and harmful, which is equivalent to
review for harmless error. United States v. Simpson, 901 F.2d
1223, 1227 (5th Cir. 1990), cert. denied, 510 U.S. 983 (1993)
(citing United States v. Iredia, 866 F.2d 114 (5th Cir.), cert.
denied, 492 U.S. 921 (1989)). Specifically, we consider “(1) the
magnitude of the prejudicial effect of the statements; (2) the
efficacy of any cautionary instructions; and (3) the strength of
the evidence of the appellant['s] guilt." Kelley, 981 F.2d at 1473
(internal quotation marks and citation omitted). At all times,
"[t]he comments complained of must be viewed within the context of
the trial in which they are made." United States v. Willis, 6 F.3d
257, 264 (5th Cir. 1993) (quoting United States v. Dula, 989 F.2d
772, 776 (5th Cir.), cert. denied, 510 U.S. 859 (1993)).
The court did not err in denying a mistrial, because the
government’s closing argument did not refer to the excluded
testimony. As the court pointed out, its prior evidentiary ruling
was simply that Kelley’s hearsay statements were inadmissible
because the government had failed to prove that Kelly was a
coconspirator. The ruling went no further. The basis for the
government’s argument was not the excluded statements, but rather
a set of photographs that showed the alleged coconspirators
10
together.
V.
The defendants’ remaining claims relate to alleged errors in
their sentences. We review factual findings for clear error and
interpretations of the sentencing guidelines de novo. See, e.g.,
Gaytan, 74 F.3d at 558; United States v. McCaskey, 9 F.3d 368, 372
(5th Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994).
A.
Roberson claims that the district court’s determination of
relevant conduct violated both the terms of his plea agreement and
U.S.S.G. § 1B1.8, which provides that self-incriminating informa-
tion given by a defendant in a plea agreement cannot be used to
determine the applicable guidelines range. His argument is
essentially that the findings on the total quantity of cocaine
involved in his crime were based on information he had disclosed to
the prosecution before Cousin and Jacobs’s trial. Roberson further
contends that this information was not reliable.
The court did not err in using this information to determine
Roberson’s guidelines range. Whether it was disclosed to the
government before trial is immaterial, for the information Roberson
refers to was brought out both in testimony and in the government’s
interviews with other defendants. The memorandum ruling on this
issue recognized this and specifically cited the testimony as the
11
basis for its findings. No serious question is raised as to
reliability.
B.
Roberson next contends that the district court incorrectly
calculated the amount of drugs it used to determine his sentence.
Relying on United States v. Phillippi, 911 F.2d 149 (8th Cir.
1990), cert. denied, 498 U.S. 1036 (1991), he argues that the
relevant conduct testimony failed to provide specific dates and
amounts of delivery.
Phillippi is not controlling in this circuit, and the instant
case does not require us to decide whether it should be.5 The
memorandum ruling cited the testimony of Roberson’s codefendants in
determining that he was responsible for 12.4 kilograms of cocaine.
In so doing, it specifically rejected his argument that the
testimony had failed to show specific dates and amounts of
delivery.
We find no error in this decision. Even assuming, arguendo,
that the relevant conduct testimony did not fix specific dates to
the transactions, it certainly did establish that they occurred
within the time frame set out in the indictment for the conspiracy.
Under U.S.S.G. § 1B1.3(a)(1)(B), Roberson could be found responsi-
ble for all foreseeable acts in furtherance of the conspiracy, and
5
See United States v. Buckhalter, 986 F.2d 875, 879 (5th Cir.) (holding
that “[t]he Fifth Circuit has never adopted the Phillippi standard”), cert.
denied, 510 U.S. 873, and cert. denied, 510 U.S. 875 (1993).
12
under Buckhalter, 986 F.2d at 880, proof that the transactions
occurred during the conspiracy is enough.
C.
Jacobs reiterates Roberson’s second argument in slightly
different form: He claims that Roberson’s drug quantities should
not be attributed to him, because he did not maintain contact with
Roberson after introducing him to Kyles. This argument is easily
disposed of, for it is functionally equivalent to Jacobs’s earlier
contention that there is insufficient evidence to show that he was
a member of the conspiracy. As we noted above, there is sufficient
evidence for the jury to find that Jacobs was a member of the
conspiracy. It follows that because a coconspirator is responsible
for any foreseeable acts in furtherance of the conspiracy, see
U.S.S.G. § 1B1.3(a)(1)(B), the district court’s decision to hold
Jacobs responsible for some of Roberson’s drug transactions was not
error.
D.
Jacobs next argues that the district court erred in finding
foreseeability, i.e., that the amount of drugs in the conspiracy
was foreseeable to him. Once again, however, Jacobs’s contentions
are based on the implicit assertion that he was not part of the
conspiracy. There is sufficient evidence for the jury to find that
Jacobs was involved in the conspiracy, and one properly could infer
that he introduced Kyles to both Roberson and Cousin and that he
13
knew of Kyles’s drug scheme. That in turn permits an inference
that the quantity of drugs involved in the conspiracy was reason-
ably foreseeable. The district court did not err in attributing
Roberson’s drug quantities to Jacobs.
E.
Jacobs also avers that the court erred in denying him a
downward role adjustment under U.S.S.G. § 3B1.2 for his minimal or
minor role in the conspiracy. In support of this, he points to the
government’s brief in response to Cousin’s motion for acquittal,
noting that that document did not identify him as a major player in
the conspiracy.
Jacobs conspicuously fails to note, however, that it was he
who brought the respective buyers and sellers of cocaine together
in the first place. Without Jacobs, the transactions simply could
not have taken place. One who facilitates a drug transaction by
bringing the parties together cannot claim that he is a “minimal”
or “minor” participant merely by virtue of having not bought or
sold the drugs himself. See United States v. Tremelling, 43 F.3d
148, 153 (5th Cir.), cert. denied, 115 S. Ct. 1990 (1995). The
court did not err in finding that Jacobs was not entitled to a
downward departure under § 3B1.2.
F.
Cousin and Roberson contend that the district court should
have applied the rule of lenity in sentencing. That is, they argue
14
that the sentencing disparity in 21 U.S.C. § 841(b) between
“cocaine” and “cocaine base” or “crack cocaine” is based on an
ambiguous and scientifically meaningless distinction.
This argument is meritless. As the government points out,
this circuit has uniformly rejected challenges to the statutorily
mandated sentence enhancement for “crack cocaine.”6 Even assuming,
arguendo, that the rule of lenity applies in sentencing proceed-
ings, § 841(b) does not contain the sort of grievous ambiguity that
would require us to invoke it. See, e.g., Chapman v. United
States, 500 U.S. 453, 463 (1991) (holding that rule of lenity does
not apply absent a “'grievous ambiguity or uncertainty'” in the
statute) (quoting Huddleston v. United States, 415 U.S. 814, 831
(1974)).
AFFIRMED.
6
See United States v. Cherry, 50 F.3d 338, 344 (5th Cir. 1995) (rejecting
equal protection challenge); United States v. Fisher, 22 F.3d 574, 579 (5th Cir.)
(rejecting Eighth Amendment challenge), cert. denied, 115 S. Ct. 529 (1994);
United States v. Howard, 991 F.2d 195, 198 (5th Cir.) (rejecting vagueness
challenge), cert. denied, 510 U.S. 949 (1993); United States v. Watson, 953 F.2d
895, 897-98 (5th Cir.) (rejecting equal protection and due process challenges),
cert. denied, 504 U.S. 928 (1992); United States v. Galloway, 951 F.2d 64, 66
(5th Cir.) (same); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991)
(rejecting vagueness challenge), cert. denied, 502 U.S. 895, and cert. denied,
502 U.S. 962, and cert. denied, 502 U.S. 1038 (1992).
15