U.S. v. Turner, 01-11589.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation319 F.3d 716
Docket NumberNo. 01-11589.,01-11589.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John TURNER, Defendant-Appellant.
Decision Date27 January 2003

Susan B. Cowger (argued), Dallas, TX, for Plaintiff-Appellee.

Lydia M. Brandt (argued), The Brandt Law Firm, Richardson, TX, for Defendant-Appellant.

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

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

CLEMENT, Circuit Judge:

John Turner ("Turner") appeals his conviction for violating 21 U.S.C. § 846, participating in a conspiracy to distribute over 100 kilograms of marijuana, and a separate count under 21 U.S.C. § 846, for a separate conspiracy to distribute over five kilograms of cocaine. On appeal, Turner argues that the district court erred by: (1) ruling that there was sufficient evidence to support a finding that Turner conspired to distribute more than five kilograms of cocaine; (2) applying a 2-level increase to Turner's offense level based on the five kilograms of cocaine allegedly involved in the conspiracy; and (3) applying a sentencing enhancement for Turner's role as an "organizer, leader, manager, or supervisor" under U.S.S.G. § 3B1.1. We disagree and affirm.

I. BACKGROUND

Over a two-year period, various law enforcement agencies jointly investigated an alleged drug conspiracy located in Arlington, Texas. The conspiracy began in January 1997 and continued until November 8, 2000. Two businesses were tied to the drug conspiracy as legitimate fronts for the drug distributors. The first business, "That Sounds Good," was a car stereo shop owned by one of the alleged co-conspirators, Nathan Henderson ("Henderson"). Turner owned the second business, "Platinum Sounds," a CD store located adjacent to Henderson's stereo shop in the same strip mall. Henderson, Turner, and a third alleged co-conspirator, Julius Robinson ("Robinson"), organized a scheme to sell and distribute marijuana to Turner's friend in Missouri, Alex Jones ("Jones").

Henderson and Turner typically shipped and received packages containing controlled substances from their business location in the strip mall. They received packages containing drug money at the same location, and on some occasions, at Turner's home address. Leteisha Barnett ("Barnett"), an employee of Platinum Sounds and That Sounds Good, signed for the packages on behalf of Henderson and Turner when they came to the store. In exchange for lending Barnett money for her apartment, Henderson enlisted Barnett to store marijuana in her apartment. Turner, Henderson, and Robinson would often go to Barnett's apartment to package and store marijuana, and Henderson eventually had her lease a storage unit for the marijuana. On at least a few occasions, Turner had Barnett deliver packages of marijuana to the UPS facility at the Dallas-Fort Worth Airport.

Alleged co-conspirator, Victor Jiminez ("Jiminez"), was one of the major suppliers of marijuana to Henderson and Robinson, and was the cocaine supplier to Robinson. Jiminez sold Turner and Henderson a total of nearly 2,000 pounds of marijuana. Jiminez recalled selling cocaine to Robinson three or four times, for a total quantity of approximately four kilograms. According to Jiminez, Robinson also asked to purchase cocaine from him on three or four other occasions, but he was unable to satisfy Robinson's request. On one of these occasions, Robinson requested one-half of a kilogram of cocaine, but Jiminez refused because he normally only dealt in kilogram quantities. During these transactions, the alleged co-conspirators used certain code words. For instance, to refer to one kilogram of cocaine, they would use the terms, "the other" or "a T-shirt".

In June 2000, a series of phone calls took place between Turner and Robinson and between Robinson and Jiminez. The Government intercepted and recorded the calls. The DEA case agents who listened to all of the intercepted calls found that Turner's conversation with Robinson about cocaine and Turner's conversation with Henderson about marijuana demonstrated his familiarity with the other's drug-dealing terminology and that it appeared to be more than just an isolated transaction.1 As a result of these conversations, law enforcement obtained a search warrant for Turner's residence. When executed, the search netted guns, cell phones, and $8,500 in cash, but no illegal substances.

Turner was indicted with thirty-six other people. The indictment ultimately charged Turner, in count 1, with participating in a conspiracy to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 846,2 and in count 2, with a separate conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846.3

Turner waived his right to trial by jury. At trial, several co-defendants testified that Turner was involved in selling marijuana. While none of the co-defendants testified that they had personal knowledge of Turner selling cocaine, Henderson revealed that he heard from Robinson (who did not testify at Turner's trial) that Turner was involved in selling cocaine. Another individual testified that Turner would refer persons in search of cocaine to Robinson.

The district court convicted Turner on both counts. In Turner's Presentence Report ("PSR"), the Probation Office made the following findings: (1) Turner was responsible for approximately 2,600 kilograms of marijuana, resulting in a base offense level of 32;4 and (2) Turner's management of Leteisha Barnett warranted a two-level increase for his role as an "organizer, leader, manager or supervisor."5 Turner's total offense level of 34 combined with his Category IV criminal history score resulted in a guideline imprisonment range of 210 to 262 months. The court sentenced Turner to: (1) 262 months in prison on counts 1 and 2 (to run concurrently); (2) five years of supervised release on counts 1 and 2; and (3) a special assessment of $200. He timely filed a notice of appeal.

II. ANALYSIS
A. Sufficiency of the Evidence to Support the Cocaine Conspiracy Conviction
1. Standard of Review

This Court's standard of review in "evaluating the sufficiency of the evidence supporting a conviction after a bench trial is whether the finding of guilt is supported by substantial evidence, i.e., evidence sufficient to justify the trial judge, as the trier of fact, in concluding beyond reasonable doubt that the defendant is guilty." United States v. Mathes, 151 F.3d 251, 252 (5th Cir.1998). This Court should not weigh evidence, nor should it determine the credibility of witnesses; this Court must "view all evidence in the light most favorable to the government and defer to all reasonable inferences drawn by the trial court." Id. This Court will acquit a defendant if "the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence." United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999).

2. Discussion

On appeal, Turner asserts that the Government did not provide an adequate factual basis to support his conviction of conspiracy to distribute more than five kilograms of cocaine. According to Turner, the evidence does not demonstrate: (1) an agreement between Turner and Robinson existed to distribute more than five kilograms of cocaine; (2) that Turner knew of any such agreement pertaining to more than five kilograms of cocaine; or (3) that Turner voluntarily participated in the distribution of more than five kilograms of cocaine. Conversely, the Government contends that given its burden of proof under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the evidence was sufficient to show that Turner was guilty of conspiring to distribute cocaine, and that the conspiracy involved more than five kilograms of cocaine.6 The Government maintains that it is sufficient for it to prove that the conspiracy as a whole involved more than five kilograms of cocaine, despite the lack of evidence that Turner was directly involved with the requisite amount of cocaine. Turner contends that even given this reframing of the issue, the Government only has evidence of 4.5 kilograms of cocaine, and the evidence supporting an additional amount of cocaine is legally insufficient.

To prove that a defendant is guilty of conspiring to distribute illegal drugs under 21 U.S.C. § 846, the Government must prove beyond a reasonable doubt: "(1) the existence of an agreement between two or more persons to violate narcotics laws, (2) knowledge of the conspiracy and intent to join it, and (3) voluntary participation in the conspiracy." United States v. Peters, 283 F.3d 300, 307 (5th Cir.), cert. denied, 536 U.S. 934, 122 S.Ct. 2612, 153 L.Ed.2d 797 (2002). The Government need not prove an overt act to show participation in a conspiracy. United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.1994). Mere presence or association alone, however, are not sufficient to prove participation in a conspiracy. Id. at 1551 (citing United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993)). Nevertheless, a court may consider a defendant's presence or association with a conspiracy as evidence of participation along with other circumstantial evidence. See Cardenas, 9 F.3d at 1157. "As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator, even one who has chosen to cooperate with the government in exchange for non-prosecution of leniency, may be constitutionally sufficient evidence to convict." United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir.1997).

In this case, because the indictment alleges Turner's involvement in a conspiracy to distribute a quantity greater than five kilograms of cocaine, thereby triggering punishment within the statutory range of 21 U.S.C. § 841(b)(1)(A), a fourth element applies...

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