U.S. v. Clark

• Decision Date: 18 October 1995
• Docket Number: No. 93-9081,93-9081
• Citation: 67 F.3d 1154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donel Marcus CLARK, Wayland Thomas Wilson, Terry Dewayne Levels, and Loreta De-Ann Coffman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

67 F.3d 1154

UNITED STATES of America, Plaintiff-Appellee, v. Donel Marcus CLARK, Wayland Thomas Wilson, Terry Dewayne

Levels, and Loreta De-Ann Coffman, Defendants-Appellants.

No. 93-9081.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1995.

William T. Hughey (Court-appointed), Dallas, TX, for Clark.

Gary A. Udashen, Milner, Goranson, Sorrels, Udashen, Wells & Parker, Dallas, TX, for Wilson.

Timothy Crooks, Asst. Federal Public Defender, Fort Worth, TX, Ira R. Kirkendoll, Federal Public Defender, Dallas, TX, for Coffman.

Michael Sean Quinn (Court-appointed), Dallas, TX, for Levels.

Loreta De-Ann Coffman, Lexington, KY, pro se.

Joe C. Lockhart, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

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

Before GARWOOD, DUHE and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

I. FACTS AND PROCEEDINGS BELOW

Appellants Clark, Wayland Wilson, Levels, and Coffman were charged in a superseding 31-count indictment filed September 22, 1992, with committing various drug offenses and conspiring along with Michael Wilson (Wayland Wilson's brother), Bonnie Gill, and Linda Lane to distribute cocaine, crack cocaine, and marijuana. Specifically, in addition to the conspiracy allegation, various Appellants were charged with (1) possession with intent to distribute cocaine, crack cocaine, and marijuana; (2) using firearms during a drug trafficking crime; (3) using a telephone to facilitate drug trafficking; (4) using a residence located within 1000 feet of a secondary school for the distribution of cocaine and crack cocaine; and (5) money laundering.

A jury trial began on May 17, 1993, concluding on June 10, 1993. After the jury convicted the defendants, the district court held a sentencing hearing on November 12, 1993, issuing the following sentences: (1) Clark--420 months imprisonment; (2) Wayland Wilson--444 months imprisonment; (3) Levels--348 months imprisonment; and (4) Coffman--life plus 60 months imprisonment.

The four Appellants raise a total of 39 points of error on appeal. We affirm.

II. DISCUSSION AND ANALYSIS

A. Sufficiency of the Evidence

1. Appellant Clark:

Clark claims the evidence was insufficient to support his convictions on Count 1 (conspiracy), Count 25 (telephone count), and Count 26 (school-yard count). On the conspiracy count, the evidence against Clark included: (1) his weighing and packaging crack cocaine; (2) marijuana sales to Clark; and (3) Clark's "cooking" of crack cocaine with Wayland Wilson.

On the telephone count, Clark contends that the entire conversation on which this count is based is about staples which can relate to and be used for any purpose. The government counters that the jury could have reasonably concluded that the staples to be purchased and the packaging discussed related to crack cocaine even though the conversation did not expressly refer to the controlled substance.

On the school-yard count, Clark contends that there was no evidence that he was present at any time at Levels' house, a residence within 1000 feet of a school. The government responds that (1) in a telephone conversation between Clark and Levels, Clark agreed to go to Level's house to effect a drug transaction; and (2) Clark aided and abetted the commission of drug offenses at Levels' residence.

After viewing the evidence presented and all inferences that may reasonably be drawn from it in the light most favorable to the government, we hold that a reasonably-minded jury could have found Clark guilty of these offenses beyond a reasonable doubt. See United States v. Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991).

2. Appellant Wayland Wilson:

Wayland Wilson challenges the sufficiency of the evidence on Count 1 (conspiracy), Count 29 (money laundering), and Sec. 2D1.1(b)(1) of the sentencing guidelines (addition of two points to the offense level for possession of a dangerous weapon in connection with a drug offense). On the conspiracy count, Wayland Wilson contends that there were actually two conspiracies, one for cocaine and one for marijuana, and that he was involved only with the marijuana conspiracy. The evidence showed, among other things, that Wilson (1) was a part owner of Motor Market Unlimited where drug money was invested; (2) arranged marijuana transactions; (3) put marijuana proceeds into Motor Market; (4) taught Lane how to weigh marijuana; (5) participated with Clark in making crack cocaine at Lane's house; and (6) owned a briefcase which was found at Motor Market to contain crack cocaine and marijuana.

We have held that if there is only one agreement to carry out the overall objective, even though various parties are engaged in different functions, there is only one conspiracy. United States v. Rena, 981 F.2d 765, 770 (5th Cir.1993). Moreover, a single agreement may have as its objective the selling of two different drugs. See United States v. Vasquez-Rodriguez, 978 F.2d 867, 871 n. 1 (5th Cir.1992). The evidence need not exclude every reasonable hypothesis of innocence. Triplett, 922 F.2d at 1177. Therefore, a reasonably-minded jury could have found Wayland Wilson guilty of conspiracy beyond a reasonable doubt. Id.

On the money laundering count, Wayland Wilson contends that the fact that his brother Michael spent $53,000 in cash on a house titled in the name of Michael Wilson, Wayland Wilson, and Bonnie Gill does not support a conviction for money laundering. To support a conviction under 18 U.S.C. Sec. 1956(a)(1)(A)(i), the government must show that (1) drug money was used to buy the house, and (2) the house was purchased with the intent to promote further drug trafficking. Bonnie Gill testified that the $53,000 was drug money. She also testified that Koda Cook was "working" at that house. When asked to elaborate, Gill testified that Cook would "run errands," including drug trafficking, from that location. The evidence was thus sufficient to support the conviction.

On the offense level issue, Wayland Wilson argues that there was no nexus between any firearms and the drug offenses. However, a loaded shotgun was found at Motor Market, and the district court found that the weapons were used to protect the drugs and drug proceeds at that location. The district court's finding is "essentially a factual determination reviewable under the clearly erroneous standard. If the weapon was present at the scene of the transaction, the adjustment should be applied unless it is clearly improbable that the weapon was connected to the offense." United States v. Rodriguez, 62 F.3d 723 (5th Cir.1995). The district court's finding was not clearly erroneous.

3. Appellant Levels:

Levels challenges the sufficiency of the evidence on Count 1 (conspiracy), Count 7 (gun count), and Count 26 (schoolyard count). On the conspiracy count, Levels summarily argues that the record does not establish a multiple conspiracy as alleged. The evidence showed, among other things, that Levels (1) "cooked" crack cocaine with Michael Wilson; (2) assisted in counting drug money; and (3) admitted his participation in the drug operation to an IRS special agent. Again, a single agreement may have as its objective the selling of two different drugs. See Vasquez-Rodriguez, 978 F.2d at 871 n. 1. The evidence thus supported the conviction.

On the gun count, Levels argues that there was no evidence that he used any firearms in any phase of drug trafficking. He claims that he lived in a rough neighborhood and that it is consistent with the evidence that the three firearms seized from his house could have been needed for protection. However, "use" does not require proof of actual use but simply that the weapons could have facilitated the drug offense. United States v. Pace, 10 F.3d 1106, 1117 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994). Furthermore, once again, the evidence need not exclude every reasonable hypothesis of innocence. Triplett, 922 F.2d at 1177. The evidence was therefore sufficient to support the conviction.

On the school-yard count, Levels argues that the statute refers to "secondary" schools and that the school at issue is a "middle" school. Therefore, he argues, the statute does not apply to the given facts. The statute reads "public or private elementary, vocational, or secondary school, or a public or private college, junior college, or university, or a playground ..." 21 U.S.C. Sec. 860(a). In this context, it is evident that Congress intended to give the statute wide breadth. The term "secondary school" comes after "elementary" school and therefore indicates schools above the elementary level, including middle schools. Therefore, the statute does apply to the middle school in this case.

4. Appellant Coffman:

Coffman challenges the sufficiency of the evidence on Count 2 (possession), Count 8 (gun count), and Counts 12, 13, and 15 (telephone counts). The evidence supporting the possession count included a styrofoam cooler containing drugs that was placed outside the back door of Coffman's apartment by Michael Wilson. Because there was no proof that Coffman ever had actual possession of the drugs, the government sought to prove constructive possession. Coffman argues that there was insufficient evidence to support a finding of constructive possession because "mere joint occupancy" is not enough. United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). However, in addition to the drugs in the cooler, drug paraphernalia (including a scale with Coffman's fingerprints on it) and drug ledgers also were seized from the apartment. Therefore, the evidence showed more than mere joint occupancy and was sufficient to support the conviction.

Coffman's challenge to the conviction on the gun count is also without merit....