56 F.3d 613 (5th Cir. 1995), 93-7605, United States v. Polk

Docket Nº:93-7605.
Citation:56 F.3d 613
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie James POLK, Derick O. Carter, Robert Welch and Ronald McMillian, Defendants-Appellants.
Case Date:June 16, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 613

56 F.3d 613 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie James POLK, Derick O. Carter, Robert Welch and Ronald

McMillian, Defendants-Appellants.

No. 93-7605.

United States Court of Appeals, Fifth Circuit

June 16, 1995

        Rehearing Denied July 14, 1995.

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        Wade M. Baine, (Court-appointed), Gulfport, MS, for Polk.

        Lisa D. Collums (Court-appointed), Gulfport, MS, for Carter.

        William M. Kulick (Court-appointed), Biloxi, MS, for Welch.

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        Warren L. Conway (Court-appointed), Gulfport, MS, for McMillian.

        Jay Golden, Victoria B. May, Richard Starrett, Asst. U.S. Attys., Jackson, MS, George Phillips, U.S. Atty., Biloxi, MS, for appellee.

        Appeal from the United States District Court For the Southern District of Mississippi.

        Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

        DeMOSS, Circuit Judge:

        The four defendant-appellants, Willie James Polk, Derrick O. Carter, Robert Welch and Ronald McMillian, were charged in a February 17, 1993 indictment with conspiracy and substantive offenses relating to their involvement in a crack cocaine operation based in Moss Point, Mississippi from 1989 to 1992. Several other conspirators were named in the indictment but did not go to trial with the appellants for various reasons. Dwight Earl Jackson pleaded guilty and testified at trial against the appellants. Mark A. Thomas, a/k/a "Jim"--who the evidence shows participated significantly in many of the drug transactions described below--was granted a severance, and comments from the district court indicate that Thomas was under psychiatric treatment and was being evaluated for fitness to stand trial. Terry Anthony Austin, the brother of defendant-appellant Carter, was also granted a separate trial. Houston Chambers, who the evidence shows participated in the June 1992 Eialand Plaza drug transactions, pleaded guilty to one count and did not go to trial.

        The alleged ringleader of the drug distribution enterprise, co-defendant Eric James a/k/a "Gold Dog," went to trial with the four appellants and was found guilty on all counts charged. However, James waived his right to appeal in exchange for a sentence reduction, so his convictions are not before us.

        Appellants Polk, Carter, Welch and McMillian were convicted by a jury on June 11, 1993 of the following offenses:

Count 1: Conspiracy to possess cocaine base with the intent to distribute from about 1989 to June 1992 in violation of 21 U.S.C. Secs. 841(a)(1), 846 (Polk, Carter, Welch and McMillian);

Count 3: Possession of cocaine base with intent to distribute on April 23, 1992, and aiding and abetting thereof, in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (McMillian);

Count 5: Possession of cocaine base with intent to distribute on April 30, 1992, and aiding and abetting thereof, in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (McMillian);

Count 6: Possession of cocaine base with intent to distribute on June 16, 1992, and aiding and abetting thereof, in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (McMillian and Carter);

Count 7: Possession of cocaine base with intent to distribute on June 18, 1992 in violation of 21 U.S.C. Sec. 841 (McMillian);

Count 8: Possession of cocaine base with intent to distribute on or about June 22, 1992 1, and aiding and abetting thereof, in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (Welch);

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. Count 9: Possession of cocaine base with intent to distribute on or about June 23, 1992, and aiding and abetting thereof, in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (Welch);

Count 10: Carrying a firearm during and in relation to a drug trafficking crime "on or about June 23, 1992, and prior thereto," and aiding and abetting thereof, in violation of 18 U.S.C. Secs. 2 and 924(c) (Welch).

        The appellants were sentenced as follows: Polk received 292 months of imprisonment on Count 1. Carter received 262 months on Count 1 and 240 months on Count 6, to run concurrently. Welch received 235 months for Count 1, 235 months for Count 8 and 235 months for Count 9, to run concurrently, and a consecutive 60-month sentence on Count 10. McMillian received 262 months on Count 1 and 240 months each on Counts 3, 5, 6 and 7, to run concurrently.

        All four defendant-appellants have appealed their convictions, raising various grounds for reversal. None of the appellants raises sentencing issues in this appeal.

FACTUAL BACKGROUND 2

        The four defendants grew up knowing one another in the same neighborhood in Moss Point, Mississippi, near the intersection of Barnett and Church streets. James/"Gold Dog" owned a house on Barnett Street nicknamed "the camp" that in the years 1989 to 1992 was a site for sales of crack cocaine. The small, run-down Barnett Street house had beds, electricity and phone service but no water or gas. There was a high chain-link fence within 18 inches of the house, and pit bulls were maintained as guard dogs. One witness testified that the camp was a crack house run in shifts and open 24 hours a day. A Volkswagen van was parked in the yard. There was testimony that Polk, Carter, Welch, McMillian and others sold crack from the house, from the van and elsewhere, sometimes returning the money they received to James, and that guns were kept in the van to protect the drugs. One witness testified that the eight or nine people working for James at the Barnett Street house would sell about a kilogram of cocaine every two weeks. In the spring and early summer of 1992, government agents made several undercover drug purchases at the Barnett Street address, using two confidential informants. Some of the transactions were tape-recorded, and videotape was taken on at least one occasion.

        Evidence showed that James obtained large shipments of cocaine from Houston, converted it to crack and distributed it through street-level dealers in Moss Point, Mississippi and other communities. An airport narcotics officer testified that in 1991 narcotics officials at the New Orleans Airport seized more than $30,000 in cash from James and three other people who had bought cash one-way tickets to Houston and fit the drug profile. The money was forfeited without protest from James.

        In a challenged evidentiary ruling, the court admitted evidence about an undercover operation in Laurel, Mississippi on July 24, 1992 in which James arranged to buy five kilograms of cocaine for $110,000 from a "source" who was actually an undercover officer. The court instructed the jury that the evidence of the five-kilogram transaction related only to James and could not be used in any way against defendant-appellants Polk, Carter, Welch or McMillian. James and several other people, including co-conspirator/government witness Cedric Carter, were arrested, were charged and pleaded guilty in a separate case in relation to the July 24, 1992 five-kilogram transaction. 3

        The evidence showed that James did not live in the Barnett Street house; he lived in a larger, well-kept rented house on Griffin Street in Moss Point. However, there was

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testimony that James visited the Barnett Street house every day to collect money from the drug sales. Government surveillance established that all drug activity ceased at the Barnett Street house after July 24, 1992, the day James was arrested and taken into custody.

        DISCUSSION

Sufficiency of the Evidence Issues

        All four defendant-appellants challenge the sufficiency of the evidence to support their convictions on Count 1, conspiracy. Carter, McMillian and Welch challenge the sufficiency of the evidence to support their convictions on the individual substantive cocaine possession offenses in Counts 3, 5, 6, 7, 8 and 9. Welch challenges the sufficiency of the evidence to support his conviction in Count 10 for using or carrying a firearm in connection with a drug offense. All defendants preserved the sufficiency issues at trial by moving for judgments of acquittal on all counts, both after the government rested and after all defendants rested.

        We find that the evidence introduced at trial was sufficient to support the convictions of Polk, Carter, Welch and McMillian in Count 1 (conspiracy), and of McMillian in Counts 5, 6 and 7 and of Welch in Count 8 (possession with intent to distribute), and we therefore affirm those convictions. However, for the reasons we discuss below, we find that the evidence was insufficient to support the convictions of McMillian in Count 3, Carter in Count 6 and Welch in Counts 9 (possession with intent to distribute) and of Welch in Count 10 (use/carrying of firearm in relation to a drug crime), and we therefore reverse those convictions. 4

        The elements of a drug conspiracy are: (1) the existence of an agreement to possess narcotics with the intent to distribute, (2) knowledge of the agreement, and (3) voluntary participation in the agreement. United States v. Fierro, 38 F.3d 761, 768 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1431, 131 L.Ed.2d 312 (1995); United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). The jury may infer a conspiracy from circumstantial evidence and may rely upon presence and association, along with other evidence. Proof of an overt act in furtherance of the conspiracy is not required; a common purpose and plan may be inferred from a development and collection of circumstances. Fierro, 38 F.3d at 768; United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989). On a sufficiency review, the appellate court must consider all evidence in the light most...

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