U.S. v. Misher

• Decision Date: 30 October 1996
• Docket Number: No. 95-50248,95-50248
• Citation: 99 F.3d 664
• Parties: 45 Fed. R. Evid. Serv. 1134 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lamone MISHER, Ricky E. Levi, Rodney Earl Heslip, and Keith O. Cobb, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 664

99 F.3d 664

45 Fed. R. Evid. Serv. 1134

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lamone MISHER, Ricky E. Levi, Rodney Earl Heslip and Keith O. Cobb, Defendants-Appellants.

No. 95-50248.

United States Court of Appeals Fifth Circuit.

Oct. 30, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Joan E.T. Stearns, Joseph H. Gay, Jr., Office of the United States Attorney, San Antonio, TX, James H. DeAtley, Austin, TX, for plaintiff-appellee.

Barbara Worth Palmer, Bryan, TX, for Anthony Lamone Misher, defendant-appellant.

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

Before REYNALDO G. GARZA, JOLLY and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

This appeal arises from a drug conspiracy which operated in Waco, Texas, from 1989 to 1993. All the appellants were convicted and sentenced on indictments arising from this conspiracy. More specifically, all the appellants were convicted for conspiring to possess and distribute cocaine in and about the Waco area. Additionally, appellants Cobb and Levi were also convicted for conspiring to launder money from the proceeds they received out of the drug conspiracy. All the appellants challenge both their convictions and their sentences.

I. Facts and Summary of Proceedings

In January 1994, a federal grand jury, sitting in the Waco Division of the Western District of Texas, filed the second superseding indictment ("the indictment") involved in the instant case. Count one of the indictment charged Appellants Anthony Lamone Misher, Ricky E. Levi, Rodney Earl Heslip, and Keith O. Cobb, as well as Clemond E. Busby, and Gerald D. Hicks, Jr. ¹ and others known and unknown to the Grand Jury, with conspiring to possess cocaine with the intent to distribute it, in violation of 21 U.S.C. § 846, and actually distributing it, in violation of 21 U.S.C. § 841(a)(1). Count two charged Appellant Cobb and Natalie Annique Bradshaw ² with conspiring to launder money by using funds they knew to be the proceeds of illicit drug trafficking to purchase a 1984 Jaguar in such a way as to disguise the nature, location, source, ownership, and control of the drug proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). In Count Three of the indictment, the grand jury charged Appellant Levi and Gerald D. Hicks, Jr. ³ , with laundering money in the same fashion as Appellant Cobb had been charged in Count Two. A jury convicted all the appellants as charged in their indictments.

The district court sentenced Misher to serve 360 months in prison and four years of supervised release. It also ordered him to pay a $50 special assessment and a $3,000 fine.

The district court sentenced Levi to serve 300 months in prison and five years on supervised release on Count One of the indictment; he was sentenced to 240 months in prison and three years of supervised release on Count Three. The court ordered the sentences on Count Three to be served concurrent to those on Count One. It also imposed a $100 special assessment and a $3,000 fine.

Heslip was ordered to serve a 120-month imprisonment term followed by five years of supervised release for his conviction on Count One of the indictment. The court imposed a $50 special assessment and a $2,000 fine, as well.

Cobb was sentenced to 400 months in prison and five years of supervised release on Count One; he was ordered to serve 360 months in prison and three years of supervised release on Count Two. The court ordered the terms to be served concurrent to each other. It also ordered Cobb to pay a $100 special assessment and a $10,000 fine.

Cobb was the hub of a drug conspiracy which included all of the appellants. He established his drug trade in Waco and competed for business with another drug dealer by the name of Keith Dancer. Cobb and Dancer were the "two top-notch drug dealers" in Waco.

Misher sold cocaine for Cobb and was present three or four times when Cobb sold cocaine to others. In fact, Misher and Cobb sold cocaine as a team. At one point in time, Cobb gave Misher a Cadillac.

Levi and Cobb also dealt cocaine together. Cobb sold cocaine in the presence of Levi; Levi received cocaine from Cobb; Cobb taught a witness how to manufacture crack cocaine in Levi's kitchen; Levi went so far as to tell a witness that he and Cobb had a bunch of crack houses in Waco.

Heslip sold cocaine as well. He was also associated with Cobb, both directly and indirectly. Indirectly, Heslip worked for Cobb. This is evidenced by the fact that Heslip was driving a car from which Misher sold three ounces of cocaine and was fully aware of this transaction. Directly, his relationship went beyond drug trafficking. Heslip was Cobb's half-brother.

II. Discussion

A. Sufficiency of the evidence

1. Standard of review

A conviction must be allowed to stand if, after viewing the evidence in the light most favorable to the prosecution, the reviewing court finds that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783-84, 61 L.Ed.2d 560 (1979).

2. Rodney Earl Heslip

Heslip challenges the sufficiency of the evidence to support his conviction on Count One: Conspiracy to possess and distribute cocaine and distributing cocaine.

In order to sustain appellant's convictions for a drug conspiracy, the evidence must establish beyond a reasonable doubt that: (1) there existed an agreement between two or more persons to violate narcotics laws; (2) the appellant had knowledge of the agreement; and (3) he voluntarily participated in it. United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.1996). Merely placing a defendant in a "climate of activity that reeks of something foul" is not enough to support a conspiracy conviction. United States v Dean, 59 F.3d 1479, 1485 (5th Cir.1995) (quoting United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982)). Nevertheless, a jury may infer each element of a conspiracy from circumstantial evidence: "an agreement to violate narcotics laws may be inferred from concert of action." United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994). In fact, a defendant need only have a minor role in the conspiracy once it is shown that he voluntarily agreed to participate. United States v. Castillo, 77 F.3d 1480, 1493 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 180, 136 L.Ed.2d 120. His presence and association with other members of a conspiracy, when supported by other evidence, may be used to support the finding of a conspiracy. United States v. Casilla, 20 F.3d 600, 603 (5th Cir.), cert. denied, 513 U.S. 892, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994); Cardenas, 9 F.3d at 1157.

As mentioned above, the government showed that Heslip sold cocaine. (13 R. 907). Two individuals, Luis Sais and Clemond Busby, testified that they purchased drugs from Heslip. More specifically, Busby testified that he purchased "six or seven rocks" from Heslip. (11 R. 533-534). Sais also bought crack cocaine from Heslip. (12 R. 726). Furthermore, Heslip was driving his car from which he knew Misher was selling cocaine. (13 R. 906-907). In searching Heslip's car, the phone number to a pager owned by Cobb was found by the police. (10 R. 153; 14 R. 1329). Several receipts and documents belonging to Cobb were also found in Heslip's possession. (11 R. 236-249). During the execution of a search warrant at Heslip's residence, the police found and seized a .22 caliber Marlin rifle (11 R. 263), cocaine-cutting paraphernalia (11 R. 264), a shotgun (11 R. 266), and other traditional crack-manufacturing supplies (11 R. 266-267).

As Cobb is Heslip's half-brother, the probative value of this evidence concerned us at first glance. However, after reviewing the record, reading the briefs, and listening to appellant's argument, we find that the jury was presented with more than sufficient evidence so that a rational trier of fact could have found the essential elements of his conviction beyond a reasonable doubt.

3. Misher, Levi, and Cobb--Conspiracy

The remaining three appellants also contend that the evidence presented at trial was insufficient to uphold their conspiracy convictions. However, the record is replete with evidence as to Misher, Levi, and Cobb's conspiracy and distribution convictions. Given the standard of review as dictated above, the case law behind conspiracy to possess and distribute and distributing cocaine, and a thorough review of the record, appellants' arguments and briefs, we must uphold the lower court's conspiracy convictions of these three defendants as charged.

4. Levi and Cobb--Money Laundering

To obtain a conviction for money laundering, the government must show that a defendant: (1) knowingly conducted a financial transaction; (2) that involved the proceeds of an unlawful activity; (3) knowing that the transaction was in whole or in part to conceal the nature, the location, the source, the ownership, or the control of the proceeds of an unlawful activity. 18 U.S.C. § 1956(a)(1)(B)(1).

The grand jury indicted Cobb for purchasing a 1984 Jaguar in violation of 18 U.S.C. § 1956. In support of this indictment the government presented evidence to show that Cobb had purchased the automobile for $14,500 in cash. (13 R. 1181). In fact, Cobb came in to the dealership carrying the money in a small suit case. (13 R. 1181). The money which he purchased the car with consisted mainly of small bills, including ones, fives, tens, and twenties. (13 R. 1182). Furthermore, the name put on the car's title was fictitious. (13 R. 1183-1186). Although the government did not show that the money came from drug trafficking, it did present evidence as to Cobb's dealings in narcotics. It also introduced evidence that all of these practices are common methods of operation for drug dealers. (10 R. 52-54). From this, a reasonable juror could...