United States v. Stanford ( 2000 )

No. 99-40567
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40567
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAIRONE TRANIEL STANFORD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-151-2
--------------------
March 27, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant, Tairone Traniel Stanford, seeks reversal of his
conviction of one count of possession with intent to distribute
cocaine base (crack) and one count of conspiracy to possess with
intent to distribute crack. Finding no error, we affirm.
Stanford’s contention that the district court erred in
admitting evidence of a prior drug transaction between Stanford
and Ronald Thomas under FED. R. EVID. 404(b) is without merit.
Acts committed in furtherance of a conspiracy are part of the act
charged and evidence of such acts constitutes intrinsic, i.e.,
*
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that this opinion should not be published and is not precedent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. 99-40567
-2-
direct evidence of the conspiracy. See United States v. Garcia
Abrego, 141 F.3d 142, 175 (5th Cir.), cert. denied, -- U.S. –-,
119 S. Ct. 182 (1998). Stanford’s argument that he cannot be
convicted of the prior transaction because it was not alleged in
the indictment is likewise unavailing. The indictment gave
Stanford sufficient notice of the crime alleged and Stanford’s
motion in limine to exclude the evidence demonstrates that he was
not prejudiced in his defense. See United States v. Cochran, 697
F.2d 600, 604 (5th Cir. 1983).
As Stanford failed to move for judgment acquittal at any
time during or after trial, this court’s review of the
sufficiency of the evidence is limited to a determination of
whether the record is devoid of evidence of guilt or if evidence
on a key element “is so tenuous that a conviction would be
shocking.” United States v. Galvan, 949 F.2d 777, 783 (5th Cir.
1991). Thomas’ testimony is sufficient to demonstrate the
existence of an agreement with Stanford to violate drug laws
notwithstanding any self-interest he may have had in cooperating
with the Government. See United States v. Gadison, 8 F.3d 186,
190 (5th Cir. 1993). Stanford’s further contention that he could
not have entered into a conspiracy with Thomas because Thomas was
a government informant overlooks the simple fact that the
conspiracy came into existence prior to the time that Thomas
began cooperating with law enforcement. Although a person may
not be a conspirator while working as an informer, he “may have
been a part of the continuing conspiracy prior to becoming an
informer.” United States v. Asibor, 109 F.3d 1023, 1032 (5th
No. 99-40567
-3-
Cir. 1997).
We also reject Stanford’s argument that the district court
erred in admitting the crack cocaine due to a break in the chain
of custody. There was no break in the chain of custody during
the relevant time period following Stanford’s arrest. The
testimony established that the crack cocaine retrieved from
Stanford’s vehicle was the same crack cocaine identified at
trial. Moreover, any suggested break goes to the weight rather
than the admissibility of evidence. See United States v. Dixon,
132 F.3d 192, 197 (5th Cir. 1997).
Finally, Stanford raises the frivolous argument that the
district court admitted the crack into evidence sua sponte
without a motion to do so by the Government. The record clearly
demonstrates that the Government offered the crack in evidence
during testimony by a chemist. The district court overruled
Stanford’s objection to the admissibility. The fact that the
district court did not state that the crack was admitted until
after the witness had been passed does not alter the fact that
the evidence was offered for admission.
For the foregoing reasons, we AFFIRM the conviction.
AFFIRMED