United States v. Armstead ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21141
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELICIA ARMSTEAD,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CR-257-2)
_________________________________________________________________
October 23, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Felicia Armstead appeals her convictions for conspiracy to
distribute cocaine base (crack) and cocaine powder and for
possession with the intent to distribute more than 50 grams of
crack. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a), (b)(1), 846.
Armstead challenges the sufficiency of the evidence on the
substantive, but not the conspiracy, count. She contends that the
evidence fails to show that she possessed with the intent to
distribute crack or that she aided and abetted codefendant Guy
Williams’ possession of the crack. Thus, criminal liability can
*
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this opinion should not be published and is not precedent except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.
ensue only through coconspirator liability. See Pinkerton v.
United States, 328 U.S. 640, 647-48 (1946); United States v.
Wilson, 105 F.3d 219, 221 (5th Cir.)(“a party to a conspiracy may
be held liable for the substantive offenses of a co-conspirator as
long as the acts were reasonably foreseeable and done in
furtherance of the conspiracy regardless of whether he had
knowledge of or participated in the substantive acts”), cert.
denied, 522 U.S. 847 (1997). Armstead asserts that such liability
is not supported by the evidence because the evidence fails to
demonstrate that the large amount of cocaine and the manufacturing
of crack by Williams were reasonably foreseeable to her.
In reviewing the sufficiency of the evidence, we must
determine “whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”. United
States v. Pineda-Ortuno, 952 F.2d 98, 102 (5th Cir.), cert. denied,
504 U.S. 928 (1992). The evidence is viewed “most favorably to the
government, drawing all reasonable inferences and credibility
choices in favor of supporting the jury’s verdict”. Id.Officer Seymour testified that Williams had been known as a
drug trafficker since 1992; and Officer Seymour knew Armstead to
have frequented 209 4th Street, a crack house, for approximately
eight to nine years. Armstead testified that she had known
Williams, her boyfriend, for six to seven years. The audio and
visual recordings revealed Armstead was involved in the drug
trafficking activity coming from 209 4th Street. Armstead was at
the residence on the night in question. The police seized items
from the kitchen of the vacant residence, items which are known to
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be used in manufacturing crack. Based on this evidence, and
drawing all reasonable inferences and credibility choices in favor
of the verdict, a reasonable jury could have found beyond a
reasonable doubt that Williams’ possession of crack at 209 4th
Street was reasonably foreseeable to Armstead. Accordingly, the
evidence was sufficient to convict Armstead of the substantive
count.
Concerning her conspiracy conviction, Armstead contends that
the district court’s charge failed to instruct the jury properly on
the drug conspiracy as alleged in the indictment, which included an
allegation of an overt act related to Armstead. She asserts that
the district court’s rejection of her proposed instruction, and
thus, the district court’s failure to instruct the jury concerning
the alleged overt act, amounted to an impermissible constructive
amendment of the indictment. Armstead concedes that her position
is unsupported by authority.
We review for an abuse of discretion the rejection of a
requested jury instruction. United States v. Morrow, 177 F.3d 272,
292 (5th Cir.), cert. denied, 528 U.S. 932 (1999). It is
reversible error to reject an instruction “only if the requested
jury instruction ‘(1) was a substantially correct statement of the
law, (2) was not substantially covered in the charge as a whole,
and (3) concerned an important point in the trial, the omission of
which seriously impaired the defendant’s ability to present an
effective defense’”. Id. (quoting United States v. Asibor, 109
F.3d 1023, 1034 (5th Cir.), cert. denied, 522 U.S. 902 (1997)). It
is “‘reversible error per se if there has been a modification at
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trial of the elements of the crime charged’”. United States v.
Nuñez, 180 F.3d 227, 230-31 (5th Cir. 1999)(quoting United States
v. Salinas, 601 F.2d 1279, 1290 (5th Cir. 1979)).
“[A] jury instruction as to an overt act need not be given for
an indictment charging conspiracy to violate the Drug Control Act,
21 U.S.C. §§ 841 and 846”. United States v. Brown, 692 F.2d 345,
348 (5th Cir. 1982). Thus, the indictment was not constructively
amended by the lack of an instruction covering overt acts of the
cocaine conspiracy. Therefore, the rejection of Armstead’s
proposed instruction was not an abuse of discretion.
AFFIRMED
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