U.S. v. Morgan

• Decision Date: 15 July 1997
• Docket Number: No. 96-10185,96-10185
• Citation: 117 F.3d 849
• Parties: 47 Fed. R. Evid. Serv. 793 UNITED STATES of America, Plaintiff-Appellee, v. Marcus MORGAN, also known as Red; Ryan Jackson, also known as Anthony, also known as Tony; Jarvis Wright, also known as Jaye, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 849

117 F.3d 849

47 Fed. R. Evid. Serv. 793

UNITED STATES of America, Plaintiff-Appellee, v. Marcus MORGAN, also known as Red; Ryan Jackson, also known as Anthony, also known as Tony; Jarvis Wright also known as Jaye, Defendants-Appellants.

No. 96-10185.

United States Court of Appeals Fifth Circuit.

July 15, 1997.

Rehearing Denied Aug. 14, 1997.

Susan B. Cowger, St. Clair Theodore, Assistant U.S. Attorney, David Michael Finn, Dallas, TX, for Plaintiff-Appellee.

Russell Hendrix Roden, Gwinn & Roby, Dallas, TX, for Marcus Morgan, Defendant-Appellant.

William A. Bratton, III, Dallas, TX, for Ryan Jackson, Defendant-Appellant.

Lydia M. Brandt, Dallas, TX, for Jarvis Wright, Defendant-Appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves three appellants who were convicted of numerous drug-related offenses. Appellants raise various challenges to the sufficiency of the evidence, evidentiary rulings, and their sentences. Finding no reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The narcotics conspiracy and related convictions in this case result from an undercover Federal Bureau of Investigation ("FBI") operation in Dallas, Texas. FBI Agent Donna Brown and Officer Mark Webster of the Dallas Police Department conducted an undercover operation in the Frazier Courts area in Dallas. Agent Brown and Officer Webster infiltrated the area and made numerous undercover purchases of crack cocaine, many of which were recorded on audiotape and/or videotape. ¹ As a result of their undercover efforts, a grand jury returned a 49-count indictment against 24 defendants. All 24 defendants were charged with conspiracy to distribute cocaine between December 1, 1994 and August 8, 1995, and many were charged with other offenses as well. The three appellants in this case were tried together.

Appellant Marcus Morgan was charged with conspiracy to distribute cocaine base (21 U.S.C. § 846), two counts of maintaining a building for the purpose of distributing cocaine base (21 U.S.C. § 856(a)(1)) and aiding and abetting the same (18 U.S.C. § 2), employment of a minor to assist in drug trafficking (21 U.S.C. §§ 861(a)(1)) and aiding and abetting the same (18 U.S.C. § 2), three counts of distribution of cocaine base near a public school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 860(a)) (one count included aiding and abetting, 18 U.S.C. § 2). On November 2, 1995, a jury returned a verdict of guilty on the conspiracy count and three counts of distribution of cocaine base near a school. The jury found Morgan not guilty on Jarvis Wright was charged with conspiring to distribute cocaine base (21 U.S.C. § 846), maintaining a building for the purpose of distributing cocaine base (21 U.S.C. § 856(a)(1)) and aiding and abetting (18 U.S.C. § 2), and four counts of distributing cocaine base near a school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 860(a)) and aiding and abetting (18 U.S.C. § 2). The jury returned a verdict of guilty on all six counts against Wright. The district court sentenced Wright to 240 months on each count to run concurrently and an eight-year term of supervised release.

both counts of maintaining a place for distributing crack cocaine. The district court sentenced Morgan to 240 months on each count to run concurrently and an eight-year term of supervised release.

Ryan Jackson was charged with conspiring to distribute cocaine base (21 U.S.C. § 846) and four counts of distributing cocaine base near a public school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), (B)(iii), and 860(a)) and aiding and abetting the same (18 U.S.C. § 2). He was convicted of all charges save one count of distributing or aiding and abetting the distribution of cocaine base near a school. The district court sentenced Jackson to 210 months on each count to run concurrently and five-, six-, and eight-year terms of supervised release to be served concurrently. The defendants timely filed notices of appeal.

Wright and Jackson seek to adopt by reference their co-appellants' briefs in their entirety. Federal Rule of Appellate Procedure 28(i) permits an appellant to "adopt by reference any part of the brief of another [appellant]." FED. R.APP. P. 28(i). This circuit, however, has held that an appellant may not adopt by reference fact-specific challenges to his conviction. See United States v. Alix, 86 F.3d 429, 434 n. 2 (5th Cir.1996) (citations omitted). Thus, Jackson may not adopt Morgan's and Wright's challenges to the sufficiency of the evidence, nor may Wright adopt Morgan's and Jackson's challenges to the district court's application of the sentencing guidelines. See id. (noting that sufficiency and sentencing challenges may not be adopted by reference). The government does not challenge Wright's adoption of Morgan's and Jackson's argument that there was a material variance between the indictment and the proof at trial.

DISCUSSION

I. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a jury verdict, we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. United States v. Sneed, 63 F.3d 381, 385 (5th Cir.1995) (citing United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, Pruneda-Gonzalez v. United States, 504 U.S. 978, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992)), cert. denied, Polley v. United States, --- U.S. ----, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996).

A. Conspiracy (Wright and Morgan)

Both Morgan and Wright challenge their conspiracy convictions on the grounds of insufficient evidence. To establish a drug conspiracy in violation of 21 U.S.C. § 846, the government must prove beyond a reasonable doubt that (1) an agreement existed to violate narcotics laws, (2) the defendant knew of the agreement, and (3) the defendant voluntarily participated in it. United States v. Misher, 99 F.3d 664, 667 (5th Cir.1996) (citation omitted), petition for cert. filed, No. 96-1983 (Mar. 17, 1997) (citations omitted). The jury may infer any element of the conspiracy from circumstantial evidence. United States v. Inocencio, 40 F.3d 716, 725 (5th Cir.1994) (citations omitted); Misher, 99 F.3d at 668 (citations omitted). Moreover, a conspiracy conviction can rest solely on the uncorroborated testimony of an accomplice if the testimony is not on its face insubstantial. United States v. Gibson, 55 F.3d 173, 181 (5th Cir.1995) (citing United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987)).

Melvin Ammons, John Stuart, and Johnny Robinson testified that they had an agreement to distribute crack cocaine in the Frazier Courts area. The record shows that Ammons, Stuart, and Robinson occupied one of The record also supports an inference that Frazier Courts was a protected territory for the distribution of crack cocaine; that is, dealers in the area would not allow just anyone to sell crack cocaine in the area. Dealers were equally choosy about their clientele. Both Stuart and Rogers testified that they would not sell crack cocaine to someone they did not know. Agent Brown's and Officer Webster's testimony also bears this out: to make undercover purchases of crack cocaine, they had to have area residents involved in the drug scene introduce them to dealers.

the top rungs of the drug-dealing ladder in this area. Ammons bought cocaine in Dallas and Los Angeles for distribution in the Frazier Courts area. Stuart and Robinson sold crack from Ammons's duplex on Frank Street. Andre Rogers was another key player who appears to have occupied an intermediate rung. Rogers employed appellant Jackson, bought crack from Ammons, Stuart, and Robinson, and sold crack to Jackson, Morgan, and Wright.

1. Wright

The record in this case is sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that Wright knew of and voluntarily participated in an agreement to distribute crack cocaine in the Frazier Courts area.

Wright made crack cocaine purchases from several of the key members of the Frazier Courts conspiracy. During 1995, Stuart sold and "fronted" crack (i.e., allowed Wright to pay for crack with the proceeds of its sale to others) to Wright. Robinson also fronted crack to Wright. Wright twice attempted to purchase crack from Ammons "on consignment." Ammons testified that he refused because it was "common knowledge" that Wright was "working for" Stuart. ² Wright also purchased crack from Andre Rogers.

Wright did not purchase crack cocaine only for his personal use. Wright concedes that the government proved that he sold crack to Officer Webster on April 19, 1995, April 26, 1995, May 23, 1995, and July 18, 1995. The government also presented evidence that Wright distributed crack in the neighborhood. ³ According to Rogers, Wright once asked Rogers to let him "have a customer." Wright also referred Officer Webster to 2939 School Place, an apartment out of which he and his relatives Darren Choice and Shawntee Cherry sold drugs. When Officer Webster made a purchase of crack from Shawntee Cherry, Wright paged him. Officer Webster testified that Wright first asked him why he had purchased from Cherry, but then said "oh, well, it doesn't really matter, he works for me, it's all the same."

All these pieces of evidence, especially in light of other testimony that Frazier Courts was a protected area where only insiders could sell crack, are sufficient to support Wright's conspiracy conviction.

2. Morgan

The evidence of Morgan's participation in the crack-distribution conspiracy is sufficient as well. The record demonstrates that Morgan bought crack from Ammons, Stuart, and Robinson during 1995, made two crack sales to undercover officers during the same period, and...