U.S. v. Crain

• Decision Date: 19 September 1994
• Docket Number: No. 93-1331,93-1331
• Citation: 33 F.3d 480
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles CRAIN and Tony Watkins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 480

33 F.3d 480

UNITED STATES of America, Plaintiff-Appellee, v. Charles CRAIN and Tony Watkins, Defendants-Appellants.

No. 93-1331.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1994.

Jim Aldridge (Court-appointed), Chappell, Lanehart & Aldridge, P.C., Lubbock, TX, for Crain.

Ronnie L. Agnew (Court-appointed), McWhorter, Cobb & Johnson, L.L.P., Lubbock, TX, for Watkins.

William B. Mateja, Tanya K. Northrup, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Lubbock, TX, for appellee.

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

Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellants Charles Crain and Tony Watkins were convicted by a jury for conspiracy to possess and possession of cocaine base with the intent to distribute. We affirm Watkins' convictions and sentence on both counts, and we affirm Crain's conspiracy conviction. However, we reverse Crain's possession conviction as not supported by sufficient evidence, and we vacate Crain's sentence and remand his case to the trial court for resentencing.

FACTS

Because this case involves a challenge to the sufficiency of the evidence, the facts are stated here in detail. Watkins' cousin, Carlos Woodward, testified at trial that on September 12, 1992, in Abilene, Texas, Watkins borrowed Woodward's car to "go pick up his girlfriend." Watkins gave his cousin $60 for the use of the car.

Defendant Crain's cousin, Michael Thompson, was called to the stand at trial by Crain's defense counsel. Thompson testified that on September 12, 1992, Thompson and Crain were at a friend's house in Abilene, and Watkins showed up at about 1 p.m. and asked Crain if he wanted to go to Fort Worth with him. Crain agreed, and Thompson decided to come along, too. The three men, who had known each other all their lives, rode together in the borrowed car and arrived in Fort Worth at about 8 p.m. that evening. They went to the house of Watkins' Just after midnight on September 13, 1992, Texas Department of Public Safety troopers Jimmy Willey and Steve Tone stopped the car after radar indicated a speed of 90 mph. According to Thompson's testimony, as the car was being pulled over, the three men had a brief conversation. Thompson woke up when he heard Watkins say, "DPS officer." At that point, the patrol car was behind them with its lights flashing. As Crain began to pull over, he said, "The only thing we are going to get is a ticket for speeding." Watkins said, "No, I got this. I got this dope." Thompson said that until that point, he and Crain did not know that Watkins had any drugs with him. Either Crain or Thompson said to Watkins: "Man, that is yours. I don't know nothing about it. You are going to have to deal with that." As Crain was getting out of the car to talk to the officers, he said to Watkins, "Well, hide it or something." While Crain was outside the car speaking with the DPS troopers, Watkins said to Thompson, "Mike, hide this," and Thompson replied, "I ain't hiding nothing, you got me bent. I ain't gonna touch it. I ain't messing with it." Thompson testified that Watkins then reached over, hid the drugs "up under the seat" on the driver's side, then "set back straight."

                girlfriend, Crystal, who was there along with "Buzzy," her roommate.  Crain, Thompson, Crystal and Buzzy played dominoes while Watkins made several phone calls.  Soon thereafter, Antonio Harris and a person named "Chub" arrived at the house. 1  Watkins, Harris and Chub went outside.  After five or ten minutes, Watkins came back inside and said "Man, bull corn.  They are tripping, man.  Let's go.  Are you ready to go?   Let's go."   Watkins, Crain and Thompson left the house at about 9:30 or 10 p.m., and they went through the drive-through at Taco Bell before heading back to Abilene.  They had spent only about two hours in Fort Worth.  Crain was driving the car when they started back to Abilene.  Watkins was in the front passenger seat, and Thompson rode in the back seat, sleeping part of the time
                

DPS troopers Willey and Tone testified that after Crain got out of the car, Trooper Willey asked him to step to the rear of the vehicle and out of traffic. The other two men remained in the car. The trooper asked Crain for his driver's license and proof of insurance. Crain did not have a driver's license with him, but he provided his name and date of birth. When asked about proof of insurance, Crain stated that the car was not his and indicated that the officer should talk to Watkins. The other trooper, Steve Tone, walked up to the front passenger window and asked Watkins for identification and the vehicle's proof of insurance. Watkins supplied both items, obtaining the proof of insurance from the car's glove compartment. At this point, Trooper Tone returned to the patrol car and began running a radio check on both Crain and Watkins, using Watkins' identification and Crain's name and birth date. Meanwhile, Trooper Willey asked Crain where he had been. Crain said that the three men had been in Fort Worth visiting a friend named Antonio Harris. While talking to Watkins about the insurance, Trooper Tone had separately asked Watkins where he had been. Watkins said that they had been to Fort Worth to attend an aunt's funeral. After the radio checks were run on both Watkins and Crain, both troopers returned to the car and confronted Crain about the discrepancy in the stories. ² Trooper Trooper Tone then asked Crain for consent to "look inside the car," and almost immediately thereafter, Trooper Willey also asked Crain for consent to search the car. ⁴ The officers did not tell Crain what they were looking for in the search, nor did they ask Crain any questions about possible drugs, weapons or other contraband. Trooper Tone testified at a pretrial suppression hearing that the officers sought consent to search the car for three reasons: (1) the radio check showed that both Crain and Watkins had criminal histories, (2) all three men appeared nervous "like they were trying to hide something," and (3) they had told differing stories about the reason they had gone to Fort Worth. In response to the officers' request for consent to search, Crain hesitated a moment, then repeated that the car did not belong to him. One or both officers told Crain that, as the operator of the car, he could consent to the search. Crain then said something to the effect of "I don't care," "I don't mind," or "go ahead." Although both troopers were aware that Watkins had borrowed the car from a relative and that Watkins had supplied proof of insurance for the car, neither trooper asked Watkins for consent to search the car. Crain was not given a consent form to sign, and he was not informed that he had a right to refuse consent.

                Tone then went and opened the rear door of the car, obtained identification from Thompson, the rear passenger, and asked both Watkins and Thompson if all three men had been to a funeral.  Trooper Tone testified that Watkins and Thompson repeated the story that the three of them had been to Watkins' aunt's funeral in Fort Worth. 3  Trooper Tone told them that Crain had said they had been visiting a friend, and that Crain didn't know anything about a funeral.  After a few seconds, the two responded that maybe Crain hadn't gone to the funeral with them.  During this time, the officers testified, all three men appeared "nervous."
                

Trooper Tone then told Watkins and Thompson to get out of the car because the officers were going to search the passenger compartment. Thompson testified that at that point he did not know that Crain had consented to the search. Watkins and Thompson got out of the car and went to stand at the rear of the car as instructed. Crain remained standing at the rear of the car, where he had been for about 30 minutes since the car was initially stopped. During the search, Trooper Tone found a brown paper bag lodged under the driver's bucket seat, between the seat and the gearshift, underneath the rail by which the seat slides forward and back. The bag had been twisted and rolled up and was "sticking out" two to three inches from underneath the seat. Trooper Tone testified that the bag would have been within easy reach of all three passengers in the car. Tone attempted to remove the bag by pulling it out from the top, but the bag was caught underneath the seat and he could not pull it out from the top without tearing it. Trooper Tone thus removed the bag by pulling it out from under the seat. He then opened the bag and found a plastic bag containing a whitish rock substance that later proved to be crack cocaine base. The government's crime laboratory witness testified that the rock-like substance was 80-percent-pure cocaine base weighing 21.51 grams. FBI Special Agent Tom Clark, testifying for the government, stated that 21 grams of cocaine is worth more than $4,000 on the street, and that possession of such an amount would normally indicate an intent to distribute.

All three men were arrested. Thompson was not charged with any federal violation. Watkins and Crain were both indicted on two counts: (1) conspiracy to possess cocaine base with the intent to distribute; and (2) possession of cocaine base with the intent to distribute. ⁵ A jury trial was held on February 1, 1993, and the jury found both defendants

guilty on both counts. The district court held a sentencing hearing on April 2, 1993. Watkins was sentenced to 140 months on each count, to run concurrently. Crain, who had several prior convictions, was sentenced as a "career offender" to 262 months on each count, to run concurrently. Both Watkins and Crain appeal their convictions and sentences.

ISSUES

Watkins claims that the district court erred in denying his motion to suppress the evidence obtained during the vehicle search. ⁶ Crain challenges the sufficiency of the evidence to convict him of both the possession offense and the conspiracy...