U.S. v. Speer

• Decision Date: 22 August 1994
• Docket Number: No. 93-1092,93-1092
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray Dale SPEER, and William Robert Weeks, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 605

30 F.3d 605

UNITED STATES of America, Plaintiff-Appellee, v. Ray Dale SPEER, and William Robert Weeks, Jr., Defendants-Appellants.

No. 93-1092.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1994.

Timothy J. Henry, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for Speer.

Neil L. Durrance (Court-appointed), Arlington, TX, for Weeks.

Paul E. Gartner, Jr., Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Fort Worth, TX, for appellee.

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

Before KING and SMITH, Circuit Judges, and KAZEN, ¹ District Judge.

KAZEN, District Judge:

Defendants, Ray Dale Speer ("Speer") and William Robert Weeks, Jr. ("Weeks"), appeal from their convictions for (1) felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1); (2) possession with intent to distribute approximately 30 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); and (3) carrying or using a firearm, a F.I.E. .32 caliber semiautomatic pistol, during and in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1). Defendants present three common issues for review. They both challenge the trial judge's refusal of a tendered jury instruction on their defense to the cocaine charge, as well as the admission of expert testimony and the sufficiency of the evidence on that same issue. Additionally, Speer appeals the trial judge's excusal of a seated and sworn juror while Weeks appeals the sufficiency of the evidence on his firearm convictions and a sentencing enhancement under 18 U.S.C. Sec. 924(e). We have concluded that none of the issues warrant reversal.

I. Background

The following recitation of facts reflects the evidence as viewed in the light most favorable to the jury's verdict. See United States v. Willis, 6 F.3d 257, 264 (5th Cir.1993). Ron Wooten ("Wooten"), an undercover officer with the Tarrant County Narcotics Intelligence Coordination Unit, put out word on the street that he had an ounce of cocaine for sale. On April 14, 1992, Wooten met with paid informant Ray Stovall ("Stovall") Rebecca Smith ("Smith"), and Karen Lindstrom ("Lindstrom"), an undercover officer with the Fort Worth Drug Task Force to discuss the potential sale of cocaine to Smith and a friend of Smith's, Beth Pierce ("Pierce"). Wooten agreed to meet with Smith, Stovall and Pierce later that day in the Burrus Food Store parking lot in River Oaks, Texas, once the prospective purchasers obtained the money to make the purchase. Stovall went with Smith to Pierce's apartment to check about the money.

Pierce did not have the money at the apartment, so she telephoned Speer and told him to bring it over and come with them to River Oaks. Speer arrived with the money. Meanwhile Weeks came to the apartment but left after a brief stay. Stovall needed to drop off a pickup truck before the trip to River Oaks, so Pierce, Speer and Smith followed him in Pierce's car. Although the four intended to proceed to the Burrus parking lot, they returned to the apartment and left Pierce there because she was feeling ill. In the interim, Weeks had returned to the apartment and, at Speer's request, Weeks drove the group to River Oaks in Pierce's car.

Wooten was waiting in the Burrus parking lot when the group arrived, and Weeks parked the car next to Wooten's pickup. Speer was in the front passenger seat next to Weeks, while Smith and Stovall were in the back seat. Wooten approached and talked to Weeks through the driver's window. During the conversation, he observed a handgun under Speer's inner right thigh. When Wooten asked about the presence of the "heat," Weeks volunteered that it was "there to assure that [Wooten] was not going to rip him off." Wooten then asked Weeks to come to the back of Wooten's pickup, where they both leaned into the bed of the truck over the top of the tailgate. Wooten produced the cocaine and Weeks attempted to weigh it, without success, on scales he had brought with him. After being assured by Wooten that the cocaine would "weigh heavy," Weeks gave Wooten the money and took the cocaine. Wooten gave the arrest signal. Moments later, Weeks was arrested against the fence at the rear of the pickup. Speer and Smith were arrested after being pulled out of the car. The gun, scales and cocaine were found in the car.

II. Jury Charge

Defendants Weeks and Speer were convicted of possessing cocaine with the intent to distribute under 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Both Defendants appeal the trial judge's omission of the following tendered jury charge on their defense:

If you find that Beth Pierce, Rebecca Smith, Ray Speer and/or William Weeks, Jr. acted in concert, that is jointly, with one another in the purchasing of the cocaine alleged in the indictment, and that the cocaine was for their group without further distribution purposes, you must find the defendants not guilty of possession of cocaine with the intent to distribute.

We review the charge omission for abuse of discretion. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993). The trial court is given wide latitude "in determining what instructions are merited by the evidence presented." Id. However, where the court "refuse[s] a charge on a defense theory for which there is an evidentiary foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent, this court presumes that the lower court has abused its discretion." Id.

Defendants rely on the case of United States v. Swiderski, 548 F.2d 445 (2d Cir.1977), for the proposition that if persons are acting "in concert" to obtain drugs for their own use, they cannot be guilty of possession with intent to distribute. The Swiderski court expressly limited its holding "to the passing of a drug between joint possessors who simultaneously acquired possession at the outset for their own use." Id. at 450-51. This Circuit has never adopted the Swiderski doctrine nor have we found that any other circuit has done so. In United States v. Young, 655 F.2d 624 (5th Cir.1981), we found Swiderski inapplicable to a defendant who, while negotiating the sale of cocaine, was also sampling it. Id. at 627. In United States v. Pool, 660 F.2d 547 (5th Cir.1981), without mentioning Swiderski by name, we observed that the statutorily prohibited distribution of drugs may, "in appropriate circumstances," refer to the distribution of a controlled substance from one conspirator to another. Id. at 561.

In a factual situation very similar to the instant case, the Ninth Circuit declined to follow Swiderski. See United States v. Wright, 593 F.2d 105, 108 (9th Cir.1979). There the defendant was given money by a friend and asked to procure heroin so that the two might use it together. The defendant left the friend's dwelling, procured the heroin, and returned to the friend, whereupon they "snorted" it together. Id. Expressly without endorsing Swiderski, the Ninth Circuit found it inapplicable because the two users in question had not purchased the substance simultaneously. Instead the defendant "operated as the link between the person with whom he intended to share the heroin and the drug itself." Id. The Wright court noted this language from Swiderski itself: "The agent who delivers to his principal performs a service in increasing the distribution of narcotics. Without the agent's services the principal might never come into possession of the drug." Id., quoting Swiderski, 548 F.2d at 541.

We also need not pass on the validity of the Swiderski doctrine because, just as in Wright, the doctrine does not apply to the facts of this case. The evidence here shows that only Weeks and perhaps Speer and Smith, could be said to have "simultaneously" acquired possession of the cocaine. It is undisputed that at least some of the cocaine was intended by the trio to be subsequently distributed to Pierce, who was not at or near the scene of the transaction. Accordingly the trial court did not abuse its discretion in declining to give the proffered instruction.

III. Expert Testimony

Defendants contend that the trial court erred in admitting the expert testimony of DEA Agent Lunt ("Lunt"), because his testimony exceeded the limitation of Fed.R.Evid. 704(b) ² or alternatively, that his testimony was an impermissible use of "profile" evidence as substantive evidence of guilt. "We review a trial judge's admission of evidence under an abuse of discretion standard." United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir.1992).

Agent Lunt is a twenty-year-plus veteran of the DEA who has been involved in several hundred drug arrests involving both large and small amounts of drugs. He was not involved in the arrest of the Defendants. The following are excerpts from Lunt's direct examination, which the court allowed over both defense counsels' objections:

Government: Agent Lunt, pursuant to the testimony in this case that individuals have taken possession of 30 grams of cocaine, now, from that, do you have an opinion as to what a person being in possession of cocaine would be consistent with or not consistent with?

. . . . .

Lunt: It is my opinion that a person in possession of 30 grams of cocaine is consistent with narcotic trafficking. In my experience, it is not consistent that a person that would purchase 30 grams of cocaine would purchase that for his own personal use.

. . . . .

Government: Agent Lunt, in this case there's been testimony that during the buy in which the defendants bought 30 grams of cocaine from an undercover officer, one of the defendants pulled out a scale that weighs in grams. Pursuant to your expertise, do you have an opinion regarding what that would be consistent with, that person pulling out scales and buying a weight [sic] in 30 grams?

. . . . .

Lunt: That possession of scales is consistent with narcotic trafficking.

....