U.S. v. Farris

• Decision Date: 13 March 1996
• Docket Number: Nos. 93-8168,93-8212,s. 93-8168
• Citation: 77 F.3d 391
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J.B. FARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Bernard BUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 391

77 F.3d 391

UNITED STATES of America, Plaintiff-Appellee, v. J.B. FARRIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Bernard BUSH, Defendant-Appellant.

Nos. 93-8168, 93-8212.

United States Court of Appeals Eleventh Circuit.

March 13, 1996.

John W. Stokes, Jr., Office of John W. Stokes, Jr., Decatur, GA, for J.B. Farris.

Suzanne Hashimi, Federal Defender Program, Inc., Atlanta, GA, for Jeffrey Bernard Bush.

Kent Alexander, U.S. Attorney, Bryan J. Farrell, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for the U.S.

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

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

J.B. Farris appeals his convictions and sentences for conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846 and for use of a firearm during the commission of a drug offense in violation of 18 U.S.C. § 924(c) and § 2. Jeffrey Bush appeals his convictions and sentences for the conspiracy charge and a substantive count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

In 1992, Farris, in the presence of Special Agent Ralph Bicknese of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), agreed to deliver $150 of crack cocaine to a confidential informant ("CI") at a motel. Farris arrived at the motel in a Toyota with three other passengers--Jeffrey Bush, Judy Ison and Susan Mae Lester. As Farris approached the designated motel room, agents announced he was under arrest. Farris fled and threw the cocaine into the nearby swimming pool. He was arrested, and the cocaine was retrieved.

The Toyota was driven out of the motel lot but was pulled over by ATF agents. After Ms. Ison, the car's owner, consented to a search of the car, agents found a loaded 9 millimeter pistol in the glove compartment, a nine millimeter bullet between the seats, and a slab of crack cocaine in the trunk. All three occupants were arrested and given Miranda warnings. ¹ Bush, the driver of the Toyota, told agents that the gun and cocaine belonged to Farris and that Farris handed him the gun before leaving the car.

Bush, Ison and Lester were taken to an ATF office and questioned. Without being asked, Bush told Agent Bicknese that there was, under the driver's seat floor mat, additional crack cocaine which Farris had handed to him before leaving the Toyota. This cocaine was found during a search of the vehicle conducted at the ATF office. When Bush was searched, agents found $727 in cash and a beeper. Bush signed a form which said he had been advised of his constitutional rights, but he never signed a form waiving his right to a lawyer or the right to remain silent. Bush never asked for a lawyer. The next day Bush told Agent Bicknese that he wanted to cut a deal and that the cocaine found in the car was not his, but that he did own the gun.

Farris and Bush were indicted on three charges: (1) conspiracy to possess with intent to distribute cocaine; (2) possession with intent to distribute cocaine; and (3) use and carrying of a firearm during the commission of a drug offense. Farris' motion to sever the trials was granted. Farris was convicted of all three counts. Bush was convicted of the first two counts but acquitted of the gun charge.

Sufficiency of the Evidence

Farris and Bush appeal the district court's orders denying their motions for judgment of acquittal based on insufficient evidence. ² Sufficiency of the evidence is a question of law reviewed de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994). Evidence is sufficient if, viewed in the light most favorable to the government, the jury could have found defendants guilty beyond a reasonable doubt. Id.

a. Evidence of conspiracy

Farris and Bush claim the only evidence of conspiracy was that they drove to the motel together. They say no evidence showed an agreement between the two and that mere presence at the scene coupled with evidence of flight does not establish proof of a conspiracy. See United States v. Pantoja-Soto, 739 F.2d 1520, 1527 (11th Cir.1984).

To establish the existence of a drug conspiracy under 21 U.S.C. § 846, the government must prove that there was an agreement by two or more persons to violate the narcotics laws. See United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.1983). The existence of a conspiratorial agreement may be established through either direct or circumstantial evidence, such as inferences from the conduct of the alleged participants. Id.

The following evidence--basically the same evidence was introduced at both Farris' and Bush's trials--supports the conspiracy conviction: (1) Farris and Bush arrived at the motel together; (2) Bush waited at the motel while Farris went in; (3) when Farris began to run and attempted to get rid of the cocaine, Bush too sought to escape; (4) agents found a beeper and $727 on Bush; (5) the amount of cocaine found was consistent with distribution not personal use; and (6) Bush made conflicting statements about the ownership of the drugs and the gun. ³ Viewing the evidence in the light most favorable to the government, a reasonable jury could find Defendants guilty of conspiracy to possess with intent to distribute beyond a reasonable doubt.

b. Evidence of possession

Only Bush argues that the evidence was insufficient to convict him of the substantive drug charge. He says his mere proximity to the drugs, his knowledge that drugs were under the floor mat, and his statement to Agent Bicknese that Farris handed the bag of drugs to him are insufficient to support his conviction. See United States v. Rackley, 742 F.2d 1266, 1272 (11th Cir.1984).

To support a conviction for possession with intent to distribute, the government must prove (1) knowing (2) possession of a controlled substance (3) with intent to distribute it. United States v. Freyre-Lazaro, 3 F.3d 1496, 1504 (11th Cir.1993). Possession may be actual or constructive and may be proved by circumstantial evidence. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983).

To convict Bush of this charge under a theory of aiding and abetting, 18 U.S.C. § 2, the government must prove that Bush associated himself with the criminal venture and sought to make the venture a success. See Freyre-Lazaro, 3 F.3d at 1504. The evidence, which is sufficient to support the conspiracy charge, supports the possession charge because it shows Bush to have been an aider and abettor.

c. The gun charge

Farris says no evidence shows he used, carried or had actual or constructive possession of the firearm or that he aided and abetted Bush to use or to carry the weapon. The government concedes that, in the light of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the evidence is insufficient to support a jury finding that Farris "used" the weapon for the drug trafficking crime. The government argues, however, that the evidence is sufficient to support Farris conviction under the "carry" element of 18 U.S.C. § 924(c).

The government says that section 924(c) applies when a defendant carries a firearm in a vehicle that is being used as a base for drug distribution. See United States v. Freisinger, 937 F.2d 383, 387 (8th Cir.1991) (carrying under 18 U.S.C. § 924(c) includes carrying firearm in vehicle); United States v. Ross, 920 F.2d 1530, 1536 (10th Cir.1990) (carrying includes carrying in vehicle); United States v. Cardenas, 864 F.2d 1528, 1535-36 (10th Cir.1989) ("[t]he means of carrying is the vehicle, itself, rather than the defendant's hands or pocket"). ⁴ The government argues the evidence was sufficient for the jury to conclude that the pertinent Toyota was being used as a drug distribution center and that the firearm seized from the glove compartment was being carried--within the meaning of section 924(c)--during the commission of a drug offense.

Farris argues that no evidence shows he even knew the firearm was in the glove compartment: the car was owned by Ms. Ison; Bush was driving the car; Farris had been sitting in the backseat. But, the conviction must be affirmed if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989). The evidence need not exclude every hypothesis of innocence. Id.

The evidence presented by the government is enough to support Farris' conviction on the gun charge. The jury heard that Bush originally told agents the gun belonged to Farris; the gun was present in a car from which drugs were being distributed; Farris set up the drug deal and was to make the sale; and Bush never left the car which contained the remaining cocaine and the gun. From this the jury could find that the Toyota was used as a drug distribution center and that Farris knew the firearm was in the automobile. Put differently, the jury could find that the firearm was being carried by Farris in the vehicle. The district court did not err in refusing to grant Farris the motion for judgment of acquittal on the gun charge.

Waiver of Twelve Member Jury

After the case was submitted to the jury and the alternate juror had been dismissed, that one sitting juror might be racially biased was discovered. ⁵ The district court asked Farris' counsel how she wanted to proceed. She discussed the situation with Farris, and he agreed to proceed with eleven jurors if the alternate could not return immediately. The alternate juror could not be located.

Right before the jury was brought in to read the verdict, the court asked Farris if he agreed to proceed with eleven jurors; and he said yes. Farris now claims that he did not consent to proceeding with fewer than twelve jurors. He says the district court did not ask him if he would waive his right to twelve jurors until after the jury reached its verdict and that the...