U.S. v. Mergerson, No. 92-1179

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore KING, HIGGINBOTHAM and DeMOSS; KING
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne MERGERSON, and Richard Uchechukwu Anunaso, Defendants-Appellants. *
Decision Date12 July 1993
Docket NumberNo. 92-1179

Page 337

4 F.3d 337
UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry Wayne MERGERSON, and Richard Uchechukwu Anunaso,
Defendants-Appellants. *
No. 92-1179.
United States Court of Appeals,
Fifth Circuit.
July 12, 1993.

Page 339

Timothy W. Crooks, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for Mergerson.

Cloud Miller, III, Atlanta, GA, for Anunaso.

Christopher A. Curtis, Frederick M. Schattman, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, TX, for plaintiff-appellee.

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

Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Jerry Wayne Mergerson ("Mergerson") and Richard Uchechukwu Anunaso ("Anunaso") were convicted of various drug offenses in connection with a heroin ring in which they were involved. Mergerson was also convicted of being a felon in possession of a firearm. Mergerson and Anunaso appeal their convictions and corresponding sentences. We affirm both Anunaso's drug convictions and sentences. We affirm Mergerson's convictions on counts one through four of the indictment, but reverse his conviction on count five. We likewise affirm Mergerson's sentences for his convictions on counts two through four, but vacate Mergerson's sentence for count one of the indictment. We remand for resentencing.

I. PROCEDURAL AND FACTUAL BACKGROUND

A.

On October 8, 1991, a grand jury returned a five-count indictment against Mergerson and Anunaso. Count one of the indictment charged the defendants and Mergerson's girlfriend, Sheila Guy, with conspiracy to traffick heroin in violation of 21 U.S.C. Sec. 846. Counts two, three, and four each charged Mergerson with unlawful distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1). Pursuant to 18 U.S.C. Sec. 2, Anunaso was charged under counts two, three, and four with aiding and abetting Mergerson. In count five of the indictment, Mergerson was additionally charged with unlawful possession of a firearm by a felon in violation of 18 U.S.C. Sec. 922(g)(1). On October 11, 1991, the Government filed a "penalty enhancement" information under 21 U.S.C. Sec. 841(a)(1) with respect to Mergerson, alleging eight prior felony drug convictions.

Mergerson and Anunaso were tried on December 4, 1991, and both were found guilty of all charges against them. On January 3, 1992, pursuant to 21 U.S.C. Sec. 841(b), Mergerson was arraigned regarding the "penalty enhancement" information. On January 17, 1993, at a hearing on the Government's "penalty enhancement" information, certified copies of Mergerson's prior federal and state convictions were introduced into evidence, and Mergerson was identified as being the same person named in those documents. The district court found, beyond a reasonable doubt, that the allegations of prior convictions were true.

On February 21, 1992, Anunaso was sentenced to concurrent 250-month terms of imprisonment on counts one, three, and four

Page 340

of the indictment and to a 240-month term on count two of the indictment. Anunaso was also sentenced to concurrent five-year terms of supervised release on each count. The court also imposed a $200 special assessment. Mergerson was sentenced to concurrent terms of life imprisonment on counts one, three, and four and to concurrent thirty-year terms on counts two and five. 1 The court imposed concurrent eight-year terms of supervised release on counts two, three, and four, and a concurrent five-year term of supervised release on count five.

B.

This case involved three distinct drug transactions that occurred in late 1991. The first transaction took place on August 19, 1991, when DEA Special Agent David Battiste met with Mergerson in a parking lot in Fort Worth, Texas, for the purpose of purchasing an ounce of heroin. At that meeting, Mergerson told Battiste that he did not have the heroin, but would retrieve it at another location. At that point, Mergerson and Battiste got in Battiste's car and began driving to Anunaso's apartment complex. While en route to Anunaso's apartment, Mergerson told Battiste that his heroin business was thriving and that he had "several girls" working for him. Mergerson then made a number of phone calls on Battiste's mobile phone, one of which was later identified as being made to Anunaso's mobile phone. During one of the phone calls, Mergerson told the other party that he would be over shortly and that he was bringing a friend. Contemporaneously, a DEA agent conducting surveillance saw Anunaso outside of his apartment building talking on a mobile phone.

Upon reaching the apartment complex, Mergerson went into Anunaso's building and returned within a few minutes accompanied by Anunaso. Anunaso made eye contact with Battiste, who stood next to Mergerson, and nodded. Mergerson then informed Battiste that he had the heroin all along and directed Battiste to return to Mergerson's car. When they returned to his car, Mergerson delivered 24.9 grams of heroin to Battiste in exchange for $5,500.

On September 5, 1992, Battiste again met with Mergerson at a hotel. During this second transaction, which was videotaped, Mergerson sold 100.2 grams of heroin to Battiste. Shortly thereafter, DEA Special Agent Misha Harrington, acting undercover, joined Mergerson and Battiste. Harrington entered the room with two bundles of cash and asked Mergerson to count it. During the same meeting, the undercover agents asked Mergerson how much heroin he could supply at any one time. Mergerson replied that "the sky was the limit." After some discussion in which Mergerson offered to sell to them a kilogram of heroin that afternoon, Battiste and Harrington told him that they wished to purchase a kilogram later in the week. As the three men left the hotel room, Mergerson introduced himself to Harrington by his nickname "Big Merk." Later that day, surveillance officers followed Mergerson to a business by the name of "Communications on the Run," where Mergerson claimed to be employed, and later to Anunaso's apartment.

At approximately 12:30 p.m. on September 11, 1991, Mergerson negotiated with Battiste by telephone for the sale of one kilogram of heroin to Battiste and Harrington for $170,000. The drugs were to be delivered to the same hotel where the prior transaction had occurred. At 1:00 p.m., Mergerson called Battiste to tell him that he was only able to acquire 350 grams. Surveillance personnel observed Mergerson arriving at Anunaso's apartment complex in a automobile registered to Anunaso. Mergerson left the apartment complex in the same vehicle and drove it to the hotel. There Mergerson met with the two agents and delivered to the agents 334.8 grams of heroin. At the outset of the meeting, the agents questioned Mergerson about why he did not bring an entire kilogram. Mergerson answered that he was not

Page 341

the one in the trafficking operation who controlled the heroin. He further stated that "we got a place where we keep it" and that when he went to that location there was less than a kilogram present. Mergerson assured them that he would be able to get the rest of the heroin the next day or "Friday at the latest," but could not do so immediately because "his man" was "out of town." Mergerson was arrested shortly thereafter.

A search warrant was executed at Anunaso's apartment after Mergerson was arrested. Police seized a number of items of incriminating evidence, including: (i) a piece of paper containing notations that were later identified as referring to the heroin used in the transaction as well as heroin used in other transactions, (ii) a small electronic business organizer which contained the name "Merk" together with the address and telephone number of "Communications on the Run" and Mergerson's pager number, (iii) a notebook containing notes of what appeared to be narcotics transactions, which included the name "Merk," (iv) a box containing several plastic baggies, and (v) a loaded .25 caliber pistol. A search conducted at Mergerson's residence on October 11, 1991, resulted in the seizure of an inoperable nine millimeter pistol from beneath the mattress and box spring in the master bedroom, a shoe box containing zip lock baggies, and 7.8 grams of cocaine. Anunaso was also arrested.

II. DISCUSSION

A. Sufficiency of the Evidence: the Drug Convictions

Mergerson and Anunaso both challenge the sufficiency of the evidence supporting their convictions under the first count of the indictment, which alleged a conspiracy to traffick in heroin in violation of 21 U.S.C. Sec. 846. Anunaso also challenges the sufficiency of the evidence supporting his conviction under counts two, three, and four that charged him with aiding and abetting Mergerson's distributions of heroin. Mergerson does not challenge the sufficiency of the evidence on the three distribution counts.

The standard of review in assessing a challenge to the sufficiency of the evidence in a criminal case is whether a "reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In evaluating the sufficiency of the evidence, a court views all evidence and all reasonable inferences drawn from it in the light most favorable to the government. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). This standard applies whether the evidence is direct or circumstantial. See United States v. Triplett, 922 F.2d 1174 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991).

i) The Conspiracy Count

In a conspiracy prosecution under 21 U.S.C. Sec. 846, the government must prove beyond a reasonable doubt not only the existence of an agreement between...

To continue reading

Request your trial
165 practice notes
  • U.S. v. Grier, No. 05-1698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 2007
    ...the murder, causing the Guidelines sentence to go from 262-327 months to mandatory life imprisonment); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993) ("We believe that, although there may be certain cases where a sentencing fact is a `tail that wags the dog of the substantive of......
  • U.S. v. Bieganowski, No. 00-50593.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2002
    ...and all reasonable inferences drawn from it in the light most favorable to the government." Id. (quoting United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.1993)). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every ......
  • U.S. v. Tolliver, Nos. 93-3873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1995
    ...court's determination of the quantity of drugs attributable Page 1219 to the Appellant for clear error. See United States v. Mergerson, 4 F.3d 337, 345 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994); United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990)......
  • United States v. Moreland, No. 09–60566.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 14, 2011
    ...child pornography or that he did so knowingly. Possession may be either actual or constructive. [665 F.3d 150] United States v. Mergerson, 4 F.3d 337, 348 (5th Cir.1993); United States v. McKnight, 953 F.2d 898, 901 (5th Cir.1992). “Actual possession means the defendant knowingly has direct......
  • Request a trial to view additional results
165 cases
  • U.S. v. Grier, No. 05-1698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 2007
    ...the murder, causing the Guidelines sentence to go from 262-327 months to mandatory life imprisonment); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993) ("We believe that, although there may be certain cases where a sentencing fact is a `tail that wags the dog of the substantive of......
  • U.S. v. Bieganowski, No. 00-50593.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2002
    ...and all reasonable inferences drawn from it in the light most favorable to the government." Id. (quoting United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.1993)). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every ......
  • U.S. v. Tolliver, Nos. 93-3873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1995
    ...court's determination of the quantity of drugs attributable Page 1219 to the Appellant for clear error. See United States v. Mergerson, 4 F.3d 337, 345 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994); United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990)......
  • United States v. Moreland, No. 09–60566.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 14, 2011
    ...child pornography or that he did so knowingly. Possession may be either actual or constructive. [665 F.3d 150] United States v. Mergerson, 4 F.3d 337, 348 (5th Cir.1993); United States v. McKnight, 953 F.2d 898, 901 (5th Cir.1992). “Actual possession means the defendant knowingly has direct......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT