U.S. v. Forrest

• Decision Date: 02 March 1994
• Docket Number: No. 92-4132,92-4132
• Citation: 17 F.3d 916
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wade FORREST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 916

17 F.3d 916

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wade FORREST, Defendant-Appellant.

No. 92-4132.

United States Court of Appeals, Sixth Circuit.

Submitted Oct. 8, 1993.

Decided March 2, 1994.

Dana M. Peters (briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

Victor D. Merullo (briefed), Merullo, Reister & Swinford, Columbus, OH, for defendant-appellant.

Before: MARTIN and BOGGS, Circuit Judges; and JOINER, Senior District Judge. ^*

PER CURIAM.

Timothy Wade Forrest appeals his convictions for distribution of cocaine base and conspiracy to distribute and to possess with intent to distribute cocaine base. For the reasons discussed herein, we affirm.

I

On December 6, 1991, agents of the Bureau of Alcohol, Tobacco, and Firearms arrested Forrest during the execution of a federal search warrant at 825 South Ohio Avenue in Columbus, Ohio, for distribution of and conspiracy to distribute crack cocaine. Before the execution of the warrant, the ATF had used a confidential informant to conduct three controlled, undercover buys of crack cocaine at that address. The informant made two buys directly from Forrest while an associate of Forrest held a firearm on the informant. During one buy, Forrest pulled the crack cocaine from his pants; at the other buy, he went into the living room and returned with the cocaine. The informant made the third buy from an associate of Forrest.

In executing the search warrant, ATF agents and Columbus police entered through the back door of the house, while other officers covered the front. Forrest and Doris Featherstone attempted to flee the house but were stopped. Both were searched and (according to the agents) given Miranda warnings. Forrest told an agent that Featherstone was his common-law wife, but that he lived elsewhere. Featherstone told an agent that she was the sole lessee of the house, that Forrest was her boyfriend, and that he had lived with her off and on for five months. She later denied making these statements.

Agents found previously-recorded "buy" money in Forrest's sock. Forrest was vomiting during the search, indicating to agents that he had swallowed crack cocaine. No firearms were found in the house, but agents found a baggie with crack in it on a chair, a baggie with crack behind a picture in the living room, and crack on the refrigerator and in a closet. When agents searched behind the picture, Forrest became animated, suggesting that he knew that the crack was there. The amount of crack cocaine, more than seventeen grams, was too large for personal use. Featherstone testified that Forrest had been sitting on the chair on which a baggie of crack was found. A small scale was found. Agents also found a photograph of Forrest holding Featherstone's child in the house and a dry cleaning claim ticket in his name.

On December 19, 1991, a federal grand jury indicted Forrest on two counts of violating federal narcotics laws: (1) conspiracy to distribute and to possess with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; and (2) distribution of crack cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. A jury convicted Forrest on both counts. Forrest appeals the convictions on the grounds that the evidence was insufficient to convict him and that prejudicial trial testimony regarding his criminal history warranted the granting of a mistrial.

II

In his appeal, Forrest argues that the district court erred in denying his motion for judgment of acquittal on the ground that the verdict was contrary to the weight of the evidence and not supported by substantial evidence. The standard of review for claims of insufficient evidence is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Phibbs, 999 F.2d 1053, 1063 (6th Cir.1993). The record indicates sufficient evidence upon which a rational juror could find Forrest guilty of distribution of and conspiracy to distribute crack cocaine.

A. Drug Conspiracy

Forrest was convicted of conspiracy to distribute and to possess with intent to distribute crack cocaine under 21 U.S.C. Secs. 841(a)(1) (manufacture, distribution, or dispensing of controlled substance unlawful) and 846 (conspiracy to violate drug laws). The elements of a drug conspiracy are (1) that an agreement to violate the drug laws existed; and (2) that each conspirator knew of, intended to join, and participated in the conspiracy. Phibbs, 999 F.2d at 1063 (quoting United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990). "No formal or express agreement is necessary to establish a conspiracy under Sec. 846." Phibbs, 999 F.2d at 1063 (citing United States v. Hughes, 891 F.2d 597, 601 (6th Cir.1989)). A tacit or mutual understanding among the parties is sufficient. Ibid. Proof of the elements may be by direct or circumstantial evidence. United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir.1981) (citing United States v. Luxenberg, 374 F.2d 241, 250 (6th Cir.1967)).

Forrest argues that the United States failed to meet these burdens. He asserts that the record contains no evidence that he possessed or sold crack, other than the "word of an unreliable confidential informant." He argues that his fingerprints were not on the baggies and that no agent saw him with crack on or near him or saw him deal drugs. He further argues that no agents had any direct knowledge of any agreements he may have had with others, so there is no proof of conspiracy. Forrest attempts to undermine the credibility of the informant's testimony--upon which the government relies--by noting that the informant testified that guns had been present, yet no guns were recovered.

The evidence presented at trial was more than sufficient to support Forrest's conviction for conspiracy to violate the drug laws. The informant testified that Forrest sold crack while associates would hold firearms (in order to protect the operation). The informant testified that people kept coming and going from the house to buy crack from Forrest. The informant also testified that he himself made two controlled buys of crack from Forrest. He testified that he made a third controlled buy, from Forrest's associate, whom the informant had seen at the house before; he testified that the same gun was present at each of the controlled buys. An agent testified that he found the recorded "buy" money from the third sale in Forrest's sock. A jury could infer an agreement and knowledge of and participation in a conspiracy to violate the drug laws from this evidence. The agreement was tacit, but such a tacit or mutual understanding is enough: Forrest's associates protected the operation while he made the sale; this indicates that they were working together in violating the drug laws. A jury could infer from the informant's testimony regarding the third buy that Forrest had delegated the sales duty, so that when the drug sale was made, the money was transferred to Forrest; this indicates an agreement to violate the drug laws and participation by Forrest.

Also, the jury could weigh the credibility of the informant's testimony as to whether the same firearms were present. Any error, if error there was, in the informant's testimony as to the guns goes to the quality of the informant's evidence and not to its sufficiency; credibility of witnesses is a matter for the trier of fact.

There was other evidence of a conspiracy. A baggie of crack was found in the chair in which Featherstone says Forrest was sitting at the time of the raid. Crack was found in the house in quantities too large for personal consumption, suggesting drug trafficking; the scale and large amount of cash found on Forrest similarly suggest drug trafficking. Forrest's reaction to the discovery of the crack behind the picture, to which the agents testified, is circumstantial evidence of his knowledge of its existence. The informant's testimony that Forrest went into the living room for the second controlled buy indicates his knowledge of and control over Featherstone's house in carrying out his drug conspiracy. Similarly, the photograph, laundry claim ticket, and Featherstone's statements to the agent all suggest that Forrest had control of the house and therefore possession of the crack. Finally, Forrest's attempt to flee and his vomiting, which suggests he swallowed crack, according to one agent's testimony, indicate a guilty mind.

Thus, given the testimony at trial and evidence found at the house, a rational juror could find Forrest guilty of conspiring to violate the drug laws.

B. Drug Distribution

Forrest was also convicted of unlawful distribution of crack cocaine under 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The essential elements of the offense are that a person knowingly and intentionally distributes or possesses with intent to distribute a controlled substance. United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989). As with the conspiracy conviction, the evidence more than adequately supports Forrest's conviction for distribution of crack.

Forrest argues that no drugs were ever found on his person. However, the informant testified that he made two controlled buys of crack from Forrest. From this testimony, a rational juror could find him guilty of distributing crack.

Forrest also argues that for a conviction based on circumstantial evidence to stand, every reasonable hypothesis of innocence must be excluded. His characterization of the law, however, is incorrect. A jury may choose from among reasonable constructions of the evidence in a drug prosecution and need not exclude every reasonable hypothesis except that of guilt. United States v. Martinez, 981...