U.S. v. Sparks, 92-4302

Citation2 F.3d 574
Decision Date14 September 1993
Docket NumberNo. 92-4302,92-4302
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roderick Deandra SPARKS, Bonnie Ray Dews, David Lee Spignor, and Joe Thomas Tucker, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

T.J. Baynham, Jr., Tyler, TX (court-appointed), for Sparks.

Donald Killingsworth, Tyler, TX (court-appointed), for Tucker.

Jerry C. Parker, Sammons-Parker, Tyler, TX (court-appointed), for Dews.

Sam Glenn Griffith, Tyler, TX (court-appointed), for Spignor.

Mervyn Hamburg, U.S. Dept. of Justice, Washington, DC, Bob Wortham, U.S. Atty., Tonda L. Curry, Asst. U.S. Atty., Tyler, TX, for U.S.

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

Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL 1, District Judge.

EMILIO M. GARZA, Circuit Judge:

Defendants, Roderick Deandra Sparks ("Sparks"), Bonnie Ray Dews ("Dews"), David Lee Spignor ("Spignor"), and Joe Thomas Tucker ("Tucker"), were jointly tried before a jury and convicted of various offenses stemming from a conspiracy to distribute crack cocaine. All four defendants were convicted of conspiring to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. Sec. 846 (1988). Sparks, Dews, and Spignor were found guilty of possession with intent to distribute within 1,000 feet of a public school, in violation of 21 U.S.C. Sec. 860 (1988). Tucker was convicted of aiding and abetting Sparks, Dews, Spignor, and ten other persons in possessing with intent to distribute a controlled substance within 1,000 feet of a school. Tucker also was convicted of conspiring to use and carry firearms in relation to a drug offense, and of the completed substantive firearms offense, in violation of 18 U.S.C. Secs. 371 and 924(c) (1988). Additionally, the jury found Dews guilty of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1) (1988). All four defendants now appeal their convictions, and Sparks, Dews, and Spignor appeal their sentences. We affirm the district court in all respects.

I

From 1987 until early 1991, Tucker operated an extensive conspiracy to distribute crack cocaine from property he owned in Tyler, Texas ("the field"). Tucker would obtain the crack cocaine in an uncut form and cut it into smaller "rocks" that could be sold at the field to crack users. Tucker, who controlled the hours and methods of operation and number of persons selling crack at the field, employed Sparks and Dews, among others, to sell crack at the field. Tucker also employed Spignor to construct a shed on the field, in which crack was stored, and later to sell cocaine. As the conspiracy grew, it became more profitable, netting up to $5000 a day in crack sales. Tucker's sellers also traded crack for food, electronic equipment, guns, clothes, and sex.

A cooperative investigation by local and federal authorities led to the arrests of a number of participants in the conspiracy, including Sparks, Dews, Spignor, and Tucker, all of whom were charged in an indictment alleging a number of drug-related offenses. A jury found all four defendants guilty of the charged offenses. The district court sentenced Sparks to a prison term of 168 months. Dews received a term of 188 months. Spignor received a 292 month term of imprisonment. The district court sentenced Tucker to a term of 292 months on the drug and firearms conspiracy counts and a consecutive 60 month term on the firearms count. 2 The defendants now appeal their convictions and sentences. 3

II

Joint Claims

A

Dews and Spignor contend that the evidence was insufficient to support their convictions for conspiracy to possess with intent to distribute a controlled substance. Spignor and Tucker argue that the evidence was insufficient to support their convictions for possession with intent to distribute a controlled substance within 1,000 feet of a public school. These claims are without merit.

(i)

"In deciding the sufficiency of the evidence, 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 offenses beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). "It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." Id. "We accept all credibility choices that tend to support the jury's verdict." United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.1991). We apply this standard of review here because Dews and Spignor properly preserved their sufficiency arguments by moving for a judgment of acquittal at trial. See United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir.1991).

In order to prove that a defendant conspired to possess crack with intent to distribute it, the government must prove beyond a reasonable doubt that (1) there was a conspiracy 4 to possess with intent to distribute crack, (2) the defendant knew about the conspiracy, and (3) the defendant voluntarily joined the conspiracy. See United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988). "No evidence of overt conduct is required. A conspiracy agreement may be tacit, and the trier of fact may infer agreement from circumstantial evidence." Id. (footnotes omitted).

(ii)

An abundance of evidence presented by the prosecution established the existence of the conspiracy and the knowledge of and voluntary participation in the conspiracy by both Dews and Spignor. Two co-conspirators testified that Dews served as a crack seller and lookout for Tucker's operations at the field. Moreover, agent Marvin Richardson testified that Dews both sold crack to him at the field and arranged for him to purchase a large quantity of cocaine at another location. Richardson's testimony regarding these purchases was corroborated by yet another co-conspirator. Two co-conspirators also identified Spignor as a member of the conspiracy who sold crack for Tucker at the field. Moreover, the record demonstrated that Spignor helped to construct a shed used for the storage of crack at the field and attempted on one occasion to sell crack to agent Richardson, who declined because he had already purchased crack from other sellers at the field. Richardson testified that Spignor complained on this occasion that the other sellers were selling crack during the sales period that Tucker had allocated to him, thereby demonstrating his knowledge of and participation in the conspiracy.

Although some of the government's evidence regarding the participation by Dews and Spignor in the conspiracy may have been circumstantial, it was more than sufficient to support the jury's verdict. See United States v. Martinez, 975 F.2d 159, 162 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1346, 122 L.Ed.2d 728 (1993). Consequently, we reject their insufficiency of the evidence arguments.

(iii)

The evidence also supports the jury's conclusion that Spignor and Tucker 5 were guilty of possessing with intent to distribute crack within 1,000 feet of a public school. 6 At trial, Charlie Thomas, a city of Tyler engineer, identified an aerial photograph of the area encompassing the field and the nearby public school. Thomas testified that the photograph demonstrated that the field was located within 1,000 feet of the school. Neither Spignor nor Tucker presented any contrary evidence. Although cross-examination did create an issue as to Thomas' credibility, the jury resolved the issue in favor of the government. Because "[w]e accept all credibility choices that tend to support the jury's verdict," United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.1991), we find sufficient evidence supporting the convictions.

B

Spignor and Tucker contend that the district court erred in failing to dismiss the indictment for selective prosecution. They argue that the government indicted and prosecuted all the male co-conspirators while failing to indict or prosecute any women co-conspirators. Spignor and Tucker argue that this proves purposeful discrimination by the government.

Generally, the government has broad discretion in determining who to prosecute. See Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). Consequently, Spignor and Tucker bear a heavy burden in their attempt to demonstrate unconstitutional selective prosecution. See United States v. Jennings, 724 F.2d 436, 445 (5th Cir.), cert. denied, 467 U.S. 1227, 104 S.Ct. 2682, 81 L.Ed.2d 877 (1984). A prima facie showing of unconstitutional selective prosecution requires Spignor and Tucker first to demonstrate that they were singled out for prosecution while others similarly situated who committed the same crime were not prosecuted. Spignor and Tucker next must show that the government's discriminatory selection of them for prosecution was invidious or done in bad faith--i.e., that the government selected its course of prosecution "because of," rather than "in spite of," its adverse effect upon an identifiable group. Wayte, 470 U.S. at 610, 105 S.Ct. at 1532; United States v. Ramirez, 765 F.2d 438, 440 (5th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 812, 88 L.Ed.2d 786 (1986).

Spignor and Tucker fail to satisfy either prong of a prima facie selective prosecution claim. They argue that the government dropped charges against one female named in the indictment, but neglect to point out that she pled guilty in state court to possession of a controlled substance and originally was listed as a prosecution witness. Tucker further alleges that "other female witnesses and/or accomplices were not charged or their federal charges were...

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