U.S. v. Dean

• Decision Date: 21 July 1995
• Docket Number: No. 94-10247,94-10247
• Citation: 59 F.3d 1479
• Parties: 42 Fed. R. Evid. Serv. 1025 UNITED STATES of America, Plaintiff-Appellee, v. George DEAN, James Earl Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1479

59 F.3d 1479

42 Fed. R. Evid. Serv. 1025

UNITED STATES of America, Plaintiff-Appellee, v. George DEAN, James Earl Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers, Defendants-Appellants.

No. 94-10247.

United States Court of Appeals Fifth Circuit.

July 21, 1995.

Rehearing Denied Aug. 23, 1995.

Paul H. Williamson (Court-appointed), Burdett, Morgan & Thomas, Amarillo, TX, for Dean.

Frederic M. Wolfram (Court-appointed), Amarillo, TX, for Cofer.

Mark Wilson (Court-appointed), Amarillo, TX, for Flowers.

Sam Ogan, Asst. Federal Public Defender, Amarillo, TX, for Smith.

Vicki H. Lamberson, Christy Drake, Asst. U.S. Attys., Paul E. Coggins, U.S. Atty., Amarillo, TX, for appellee.

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

Before WISDOM, JONES and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

George Dean, James Earl Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers were indicted by a federal grand jury on charges of conspiring to possess with intent to deliver crack cocaine, ¹ possessing with intent to deliver crack cocaine, ² and using or carrying a firearm during a drug trafficking crime. ³ Dean and Cofer were convicted on the drug counts, but acquitted on the weapons count; ⁴ Smith and Flowers were convicted on all three counts. ⁵ We affirm Dean Cofer, Smith, and Flowers' convictions, but vacate their sentences and remand for resentencing.

I

The Amarillo Police Department arrested George Dean, James Earl Cofer, Kenneth Dewayne Smith, and Kenneth Earl Flowers with the cooperation of informants Jackie Small and Calvin Thomas. Small and Thomas, who had been arrested in New Mexico for possessing crack cocaine, agreed to help the Amarillo police set up a purchase of five ounces of crack cocaine from Fred Espy, a dealer Small and Thomas knew in Amarillo. Small telephoned Espy, but Flowers returned her call. Small and Flowers discussed the possibility of Small's purchasing five ounces of crack cocaine. Later, Small and Thomas went to Espy's house to discuss the transaction with Espy personally. At that time, Espy agreed to sell Small and Thomas five ounces (about 141.75 grams) of crack cocaine for $5,000. When Small and Espy spoke again, Espy told Small that he would deliver the drugs to her motel room.

The Amarillo police hid a camera inside the motel room where the transaction was to take place, and ten police officers hid in the next-door room. Six other officers watched the motel's parking lot. One of these officers testified that he had observed a vehicle pull into the parking lot and park, and then, a few seconds later, another vehicle pull into the lot and park behind the first vehicle. Three men emerged from the first vehicle, and two men from the second, but the officer was unable to identify who had been in which vehicle. The five men congregated between the vehicles for approximately ten seconds, and then walked toward the motel room where Small and Thomas were waiting. Three of the men entered the motel room; the remaining two, later identified as Dean and Cofer, remained outside.

Smith, Flowers, and Espy entered the motel room and closed the door behind them. Once inside, Smith took several small bags containing a total of 123.7 grams (about 4.36 ounces) of crack cocaine from his clothes and placed them on the bed. Espy was nearby, making conversation with Small and Thomas, and Flowers stood in front of the closed door. Thomas asked Small to retrieve the money to pay for the drugs from a car parked outside. Immediately after Small exited through the front door, the police entered the motel room through both the front door and an interior door.

Deputy Sheriff Charles Jones testified that after Smith, Flowers, and Espy entered the motel room, Dean and Cofer "peeled off kind of to the right and walked out into the parking lot. They separated, one would go this way, the other this way, all the while turning their head." Jones testified that Dean and Cofer walked back and forth in front of the room approximately four or five times, each time covering from 60 to 70 feet. Jones also testified that, on each pass, Dean and Cofer would "disappear briefly, for three or four seconds around the corner of the motel and then be back." Jones testified that Dean and Cofer behaved in this manner until Small emerged from the motel room, and he characterized their behavior as that of lookouts. ⁶

The police fired their guns several times during the raid, fatally wounding Espy, and wounding Thomas and an officer who was in the next room. ⁷ When gunfire erupted in the motel room, Dean and Cofer fled from the scene. Cofer was apprehended and arrested outside the motel room, and Dean was arrested within 100 feet of the motel. The police found no drugs on either Dean or Cofer. In addition to the drugs found on the bed in the motel room, police found 24.5 grams of crack cocaine in Espy's pants and underwear, 5.3 grams in Smith's underwear, and .82 grams in Flowers' sock.

Dean, Cofer, Smith, and Flowers were convicted in federal district court of conspiring to possess with the intent to deliver crack cocaine and of possessing with the intent to deliver crack cocaine. Smith and Flowers were also convicted of using or carrying a firearm during a drug trafficking crime. Dean, Cofer, Smith, and Flowers appeal their convictions and sentences on several grounds.

II

Dean, Cofer, Smith, and Flowers argue that insufficient evidence supports their convictions. In our review of the sufficiency of the evidence supporting the jury's verdict, "we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, 504 U.S. 978, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992); see also United States v. Quiroz-Hernandez, 48 F.3d 858, 865 (5th Cir.1995) ("[T]he inquiry into the sufficiency of the evidence is whether the jury could reasonably, logically and legally infer that the defendant was guilty beyond a reasonable doubt."); United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.) (same), cert. denied, --- U.S. ----, 115 S.Ct. 2014, 131 L.Ed.2d 1013 (1995); United States v. Fierro, 38 F.3d 761, 768 (5th Cir.1994) (same), cert. denied, --- U.S. ----, 115 S.Ct. 1388, 131 L.Ed.2d 240 (1995). ⁸ We recognize that the jury was "free to choose among all reasonable constructions of the evidence," United States v. Chaney, 964 F.2d 437, 448 (5th Cir.1992), and we "accept all credibility choices that tend to support the jury's verdict." United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.1991); see also Jaramillo, 42 F.3d at 922-23 ("The jury retains sole responsibility for determining the weight and credibility of the evidence."); United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir.) ("We will not second guess the jury in its choice of which witnesses to believe."), cert. denied, --- U.S. ----, 115 S.Ct. 214, 130 L.Ed.2d 142 (1994). We view the evidence, both direct and circumstantial, as well as all reasonable inferences from that evidence, in the light most favorable to the verdict. Jaramillo, 42 F.3d at 923; Fierro, 38 F.3d at 768. Moreover, we determine only whether the jury made a rational decision, not whether its verdict was correct on the issue of guilt or innocence. See Jaramillo, 42 F.3d at 923 ("A review concentrates on whether the trier of fact made a rational decision to convict or acquit, not whether the fact finder correctly determined the defendant's guilt or innocence."). "Further, the evidence need not exclude every reasonable hypothesis of innocence." Jaramillo, 42 F.3d at 923; United States v. Leed, 981 F.2d 202, 207 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2971, 125 L.Ed.2d 669 (1993). "However, we must reverse a conviction if the evidence construed in favor of the verdict 'gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.' " Jaramillo, 42 F.3d at 923 (quoting United States v. Menesses, 962 F.2d 420, 426 (5th Cir.1992)); accord United States v. Pennington, 20 F.3d 593, 597 (5th Cir.1994).

A

Dean, Cofer, and Flowers contend that insufficient evidence supports the jury's verdict against them on the conspiracy count. The Government presented the following evidence of the conspiracy at trial: (1) Pictures of Dean, Cofer, and Flowers were found in the glove compartment of Espy's car; (2) Cofer was seen at Espy's house in the afternoon before the drug transaction; (3) Small identified Flowers as the person with whom she spoke on the telephone to arrange to buy crack cocaine from Espy; (3) Dean, Cofer, Flowers, Espy, and Smith arrived in the parking lot of the motel at about the same time, but in two separate vehicles; ⁹ (4) Dean, Cofer, Flowers, Espy, and Smith gathered between the vehicles for about ten seconds, and then walked toward the room in which the government informants were waiting; (5) Flowers, Espy, and Smith entered the motel room, but Dean and Cofer remained outside; (6) As Espy closed the door to the motel room behind him, Small asked: "Who's that outside? Who is that behind y'all?" Espy answered: "Oh, that's some of my people. I didn't know what was gonna happen;" (7) Inside the motel room, Flowers stood near the door as the drug transaction took place; (8) Outside the motel room, Dean and Cofer walked out into the parking lot and then separated. Each walked "back and forth" in front of the motel room, acting like lookouts; (9) When gunfire erupted inside the motel room, Dean and Cofer fled; and (10) The police found crack cocaine taped to Flowers' ankle.

"To establish the offense of a drug conspiracy, the Government must prove beyond a reasonable doubt that a conspiracy existed, that the accused knew of the...