U.S. v. Davis

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before WISDOM, GARWOOD and W. EUGENE DAVIS; W. EUGENE DAVIS
• Citation: U.S. v. Davis, 61 F.3d 291 (5th Cir. 1995)
• Decision Date: 02 August 1995
• Docket Number: No. 93-7769,93-7769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd DAVIS, Rodney Davenport, a/k/a "Fella", Perry Williams, a/k/a "Tic," James Edward Jefferson, a/k/a "Peanut," and Mary McBride, a/k/a "Mary Jefferson," Defendants-Appellants.

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61 F.3d 291

UNITED STATES of America, Plaintiff-Appellee, v. Floyd DAVIS, Rodney Davenport, a/k/a "Fella", Perry Williams, a/k/a "Tic," James Edward Jefferson a/k/a "Peanut," and Mary McBride, a/k/a "Mary Jefferson," Defendants-Appellants.

No. 93-7769.

United States Court of Appeals Fifth Circuit.

Aug. 2, 1995.

Rehearing Denied Aug. 31, 1995.

Michael A. Ragland, Indianapolis, IN, for Davis.

Harold W. Duke (Court-appointed), Greenville, MS, for Davenport.

Robert E. Buck (Court-appointed), Greenville, MS, for P. Williams.

W.C. Trotter, III (Court-appointed), Belzoni, MS, for J.E. Jefferson.

J. Rabun Jones, Jr., Howard Dyer, III, Dyer, Dyer, Jones & Daniels, Greenville, MS, for Mary McBride.

Thomas W. Dawson, William C. Martin, Asst. U.S. Attys., Alfred Moreton, U.S. Atty., Oxford, MS, for appellee.

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

Before WISDOM, GARWOOD and W. EUGENE DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellants Floyd Davis ("Davis"), Rodney Davenport ("Davenport"), Perry Williams ("Williams"), James Edward Jefferson ("Jefferson") and Mary McBride ("McBride") were jointly tried before a jury and convicted of various drug trafficking offenses stemming from a conspiracy to distribute cocaine and cocaine base. All five appeal their convictions. Finding no reversible error, we affirm.

I. FACTS

From 1989 to 1992, appellant Jefferson ran a large narcotics distribution organization in Greenville, Mississippi. The organization consisted of over twenty members who worked under Jefferson's direction to distribute cocaine, cocaine base and marijuana. Jefferson owned and operated a bar called "The Side Effect," which served as a front for his organization. From The Side Effect, Jefferson directed a phalanx of street dealers who sold drugs around the clock. Jefferson also supervised the cooking of the cocaine into cocaine base at the house of his mother, appellant Mary McBride. Additionally, he arranged and directed several trips to pick up drugs from various source cities around the country.

In June 1991, McBride was arrested in Miami on one of these trips while obtaining thirty kilograms of cocaine. In August 1991, another member of the Jefferson organization was apprehended while attempting to transport two kilograms of cocaine from California to Greenville. Additionally, appellant Davis, who supplied narcotics to the Jefferson organization, was apprehended in Nevada en route from his home in California to Greenville with over three ounces of cocaine and some marijuana.

On March 19, 1992, a reverse sting operation was initiated in Greenville by undercover agents posing as drug dealers. Jefferson sent Jerry and Edward Kyser to meet with agents at the Alamatt Motel to purchase cocaine. Prior to the meeting, Jefferson directed Edward Kyser to withdraw nearly $7000 from The Side Effect checking account. Jefferson gave Kyser additional money in a paper bag. Jefferson also gave Jerry Kyser a nine-millimeter pistol to take with him to the meeting. When the Kysers arrived at the Alamatt Motel and tendered the purchase money, the agents arrested them. Following their arrest, the Kysers agreed to cooperate with the government and consented to tape-record three telephone conversations with Jefferson.

The investigation led to a seven-count indictment against twenty defendants for various drug and firearms violations. Count One charged all five appellants and fifteen other defendants with conspiracy to possess with intent to distribute and distribution of in excess of five kilograms of cocaine and cocaine base, in violation of 21 U.S.C. Secs. 841 and 846. Count Two charged Jefferson with unlawfully engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. Sec. 848. Count Three charged Jefferson with attempted distribution of cocaine and marijuana, in violation of 21 U.S.C. Sec. 846. Counts Four through Seven charged Jefferson with the use of a firearm during and in relation to a drug trafficking offense and possession of a firearm by a convicted felon, in violation of 18 U.S.C. Secs. 924(c) and 922(g).

After fifteen co-conspirators pleaded guilty, the government proceeded to trial against the five appellants. The jury returned verdicts of guilty against the appellants on all counts charged. The district court then sentenced Jefferson to life plus five years imprisonment; ¹ Davis, McBride and Williams to life imprisonment; and Davenport to 292 months imprisonment. The appellants raise numerous issues on appeal, which we consider below.

II. SUFFICIENCY OF THE EVIDENCE

Jefferson and Davenport complain that the evidence is insufficient to support their convictions. ² In reviewing a claim for insufficiency, we determine whether, based on the totality of the evidence at trial, any rational trier of fact could have found that the government proved the essential elements of the crimes charged beyond a reasonable doubt. United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.1994). In doing so, we view the evidence in the light most favorable to the verdict. Id.

A. Davenport

Davenport argues that the evidence was insufficient to show his knowledge and participation in the conspiracy. He contends that the government portrayed him as a mere "street dealer" and failed to present any evidence establishing his ability to exercise dominion or control over other members of the conspiracy, his participation in the management of the conspiracy, or his knowledge of the details of the conspiracy.

The government presented evidence, beyond mere presence and association, to support Davenport's conviction. Ten coconspirators testified about Davenport's role in the organization. The testimony established not only that he was a regular street dealer for the organization, but also that he collected money from and distributed packets of cocaine to the other street dealers, picked up guns for Jefferson, and accompanied a group of coconspirators to beat up a man who allegedly stole drugs from Jefferson. The evidence also showed that Davenport had signatory privileges at Sunburst Bank for The Side Effect account. Furthermore, Antoine Gilmore testified that he and Davenport occasionally ran the business when Jefferson was out of town. Viewing the evidence in the light most favorable to the verdict, a rational jury could have concluded that Davenport was guilty on the conspiracy count.

B. Jefferson

1. The CCE Conviction

Jefferson first challenges the sufficiency of the evidence to support his CCE conviction. The governing provision, 21 U.S.C. Sec. 848(b), provides that a person engages in a CCE if:

(1) he violates any provision of [title 21] the punishment for which is a felony, and

(2) such violation is part of a continuing series of violations of [title 21]--

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

The testimony established that Jefferson was the leader of a large cocaine distribution conspiracy that ran from 1988 to 1992, employing more than twenty people at any given time and making up to $6000 daily. Jefferson argues that his conviction should nevertheless be reversed because the evidence against him primarily consisted of the testimony of ten accomplices, all of whom had accepted plea bargains from the government in return for testifying. This argument lacks merit.

It is well-settled that credibility determinations are the sole province of the jury. See, e.g., United States v. Bailey, 444 U.S. 394, 414-15, 100 S.Ct. 624, 637, 62 L.Ed.2d 575 (1980) ("It is for [jurors] and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story."). We have held that "[a] conviction may rest solely on the uncorroborated testimony of one accomplice if the testimony is not insubstantial on its face." United States v. Gibson, 55 F.3d 173, 181 (5th Cir.1995) (citing United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987)). Jefferson's role in the enterprise was corroborated by taped telephone conversations and financial data from The Side Effect, bank records and Western Union records. The abundant evidence concerning Jefferson's role in the conspiracy and the income he derived from it was sufficient to support the CCE conviction.

2. The Firearms Convictions

Jefferson next challenges his four firearms convictions (Counts 4-7). Count 4 charged Jefferson with aiding and abetting the carrying and use of a firearm during and in relation to the March 19, 1993 drug deal at the Alamatt Motel, in violation of 18 U.S.C. Sec. 924(c). To establish an offense under Sec. 924(c), the government need not prove that the defendant used, handled or brandished the weapon in an affirmative manner, but rather need only prove that the firearm was available to provide protection to the defendant in connection with the drug trafficking offense. See United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). To sustain a conviction of an aiding and abetting offense, the government must show that the defendant associated with a criminal venture, participated in the venture and sought by action to make the venture succeed. United States v. Stone, 960 F.2d 426, 433 (5th Cir.1992).

The firearm in question, a Stallard Arms Model JS nine-millimeter semi-automatic pistol, was taken from co-conspirator Jerry Kyser after the reverse sting operation at the Alamatt Motel. The gun was available to Kyser during that transaction to use should the need arise. Kyser testified that Jefferson had engineered the Alamatt Motel meeting and had furnished the firearm to Kyser for protection during that transaction. From this...