U.S. v. Jones

• Decision Date: 11 October 1990
• Docket Number: 89-3738,Nos. 89-3070,s. 89-3070
• Citation: 913 F.2d 1552
• Parties: 31 Fed. R. Evid. Serv. 551 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Keith JONES, a/k/a Kenneth R. Jones, David Michael Minyard, Michael Cavaliere, Bonnie Grisson Russell, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Daniel Michael MINYARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1552

913 F.2d 1552

31 Fed. R. Evid. Serv. 551

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Keith JONES, a/k/a Kenneth R. Jones, David Michael

Minyard, Michael Cavaliere, Bonnie Grisson

Russell, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Michael MINYARD, Defendant-Appellant.

Nos. 89-3070, 89-3738.

United States Court of Appeals Eleventh Circuit.

Oct. 11, 1990.

R. Glenn Arnold, Altamonte Springs, Fla., for Anthony Jones.

Laura E. Keene, Barry W. Beroset, Beroset & Keene, Pensacola, Fla., for David M. Minyard.

Thomas S. Keith, Asst. Federal Public Defender, Pensacola, Fla., for Cavaliere.

Al Pennington, Mobile, Ala., for Bonnie Russell.

Barbara D. Schwartz, Randy Hensel, Kevin Michael Moore, Kenneth W. Sukhia, Asst. U.S. Attys., Pensacola, Fla., for plaintiff-appellee.

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

Before CLARK, Circuit Judge, MORGAN and RONEY, ^* Senior Circuit Judges.

MORGAN, Senior Circuit Judge:

Defendants appeal their convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846, and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. We affirm.

INTRODUCTION

On October 3, 1987, David Sanford Jones was arrested following a search of his residence in which 670 grams of cocaine were discovered. David Jones agreed to cooperate with the government and told of various cocaine transactions in which he had been involved. Among the people he identified were the appellants in this case. David Jones later helped police obtain recorded telephone conversations with appellants Cavaliere and Jones, among others.

Each of the appellants was charged with one count of conspiracy to possess cocaine At trial in the Northern District of Florida, David Jones was the principal witness for the government. Jones testified that, between November 1985 and October 1987, he supplied Michael Cavaliere, Anthony Keith Jones and Michael Minyard with cocaine he obtained from his suppliers in south Florida. Bonnie Russell served as his driver on some of the trips between Florida, Tennessee and South Carolina. Nancy Parker and Mylan Daugherty, who had also helped Jones by driving for him, testified for the government and substantially corroborated much of Jones's testimony, as did Nelson Izquierdo, who, along with Miguel Perez, had been the source of the drugs Jones and the others distributed. ²

                with intent to distribute.  Additionally, Michael Cavaliere, Anthony Keith Jones and Bonnie Russell were each charged with one count of possession of cocaine with intent to distribute. 1   David Michael Minyard was charged with six counts of possession of cocaine with intent to distribute
                

The jury convicted each of the defendants on the conspiracy and possession counts as charged. ³ All defendants appeal their convictions. Each contends that the evidence at trial was not sufficient to sustain the verdicts and each asserts an assortment of other issues as well.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

All of the defendants below argue that the evidence was insufficient to support their convictions. This Court cannot reverse a conviction for insufficiency of the evidence unless after reviewing the evidence in the light most favorable to the government, we conclude that no reasonable jury could find proof beyond a reasonable doubt. United States v. Bennett, 848 F.2d 1134, 1138 (11th Cir.1988).

To support a conviction for conspiracy, the government must prove only that two or more persons agreed to commit a crime, that the defendant knew of the conspiratorial goal, and that he voluntarily participated in helping to accomplish that goal. United States v. Lee, 695 F.2d 515, 518 (11th Cir.), cert. denied, 464 U.S. 839, 104 S.Ct. 130, 78 L.Ed.2d 125 (1983). The existence of such an agreement may be proved by either direct or circumstantial evidence; a common scheme or plan may be inferred from the conduct of the alleged participants or from other circumstances. United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985). It is not necessary for the government to prove that a defendant knew every detail or that he participated in every stage of the conspiracy. Lee, 695 F.2d at 518. Nor is it necessary for the government to disprove every reasonable hypothesis of innocence, as the jury is "free to choose among reasonable constructions of the evidence." United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)).

After carefully reviewing the evidence in the light most favorable to the government, we hold the evidence sufficient to sustain the convictions of each defendant. Specific evidence against each defendant is set out separately below.

A. Michael Cavaliere

David Jones testified at trial that he delivered cocaine to Cavaliere, in Pensacola There was evidence that Cavaliere rendered other assistance to Jones and the cocaine distribution conspiracy. On one occasion, Perez was waiting for Jones to return with money from the South Carolina distributors. Jones had Cavaliere telephone him several times during his meeting with Perez, to give Perez the idea that someone was watching over Jones during the delivery of the money. There was also testimony that Cavaliere had met Parker, Leachman and Russell at Jones's apartment and had been present when details of the distribution conspiracy were discussed. This was sufficient evidence to allow a reasonable trier of fact to conclude that Cavaliere was a member of a cocaine distribution conspiracy beyond a reasonable doubt.

from November 1985 until the summer of 1986 when Cavaliere was hospitalized as a result of his own cocaine abuse. Cavaliere received twenty ounces from two kilograms of cocaine Jones brought back after one of his first trips to south Florida. The cocaine was "fronted," or provided on credit, to Cavaliere, who was to repay Jones from the proceeds of the resale of the cocaine. Jones continued to supply Cavaliere with cocaine on a frequent basis. He accompanied Cavaliere to Mississippi to attempt a sale. Jones testified that he was owed $20,000 by Cavaliere at the time of his arrest.

B. Anthony Keith Jones

David Jones testified that he made four deliveries of cocaine to Anthony Keith Jones in Tennessee and one delivery in Pensacola. The amounts of cocaine actually delivered, according to David Jones, totaled slightly less than one kilogram. These deliveries were made on credit, after Anthony Keith expressed interest in trying to sell cocaine in the Nashville area. David Jones testified to at least four other trips he made to Tennessee to collect money. Although on some of these other trips he took cocaine intending to deliver it to Anthony Keith, he refused to turn it over when Anthony Keith could not produce money owed for earlier transactions. Anthony Keith at one time admitted to David Jones that he had used the money he got from cocaine sales to finance a marijuana scheme.

This testimony was corroborated in part by Nancy Parker. The government produced receipts from motels in which David Jones stayed while in Tennessee. This evidence was sufficient to allow the jury to find Anthony Keith Jones guilty of conspiracy beyond a reasonable doubt.

Jones also contends that the evidence was not sufficient to support his conviction for possession of cocaine. He was convicted of possession with intent to distribute two kilograms of cocaine, on or about August 27, 1987, in the Northern District of Florida. Jones misconstrues the nature of the charges against him when he insists that his absence from the Northern District of Florida on August 27 proves his innocence.

David Jones testified that he passed through the Northern District of Florida on or about August 27 carrying two kilograms of cocaine which eventually were carried to Anthony Keith Jones in Tennessee, who had arranged for a buyer there. Although this transaction eventually fell through, these facts are sufficient to establish the guilt of Anthony Keith Jones on the possession count as charged.

An accused may be found to have aided and abetted a coconspirator's possession by virtue of his participation in the conspiracy. United States v. Stitzer, 785 F.2d 1506, 1519 n. 7 (11th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986). The standard test for determining guilt by aiding and abetting is to determine whether a substantive offense was committed by someone, whether there was an act by the defendant which contributed to and furthered the offense, and whether the defendant intended to aid its commission. United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989).

Anthony Keith Jones not only participated in the conspiracy to possess and distribute cocaine, his offer to help David Jones distribute cocaine furthered, indeed

was one motivating factor for David Jones obtaining this cocaine in the first place. The requisite intent is clearly established by the evidence outlined above. See United States v. Brantley, 733 F.2d 1429, 1434-35 (1984) (suppliers of drug properly convicted of possession due to aiding and abetting the actual possession of their buyers). Alternatively, guilt for an offense committed by another may be established by proof that the accused conspired with the other to commit it. Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). The jury was correctly instructed as to how they could find the defendants guilty on the possession counts and the evidence is sufficient to support the guilty verdicts that the jury returned. ⁴

C. David Michael Minyard

Most of the cocaine received by David Jones in south Florida was...