U.S. v. Morris, Nos. 92-9096

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before KING and BENAVIDES; BENAVIDES
• Citation: 46 F.3d 410
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Hugh MORRIS, Brenda Pearl Owens, Ernest Munoz, a/k/a Ernesto, Kenneth Leon Morris, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Charles Bernard MALONE, a/k/a Tuna, Defendant-Appellant.
• Docket Number: 92-9110,Nos. 92-9096
• Decision Date: 16 February 1995

Page 410

46 F.3d 410 UNITED STATES of America, Plaintiff-Appellee,
v.
Willie Hugh MORRIS, Brenda Pearl Owens, Ernest Munoz, a/k/a
Ernesto, Kenneth Leon Morris, Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Bernard MALONE, a/k/a Tuna, Defendant-Appellant. Nos. 92-9096, 92-9110. United States Court of Appeals,
Fifth Circuit. Feb. 16, 1995.

Page 413

Walter G. Pettey, III (Court-appointed), Hughes & Luce, Dallas, TX, for appellant Charles Malone.

Frederick M. Schattman, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Fort Worth, TX, for appellee in No. 92-9110.

Richard Alley (Court-appointed), Fort Worth, TX, for Brenda Owens.

Harry M. Solomon, Miami, FL, for Ernest Munoz.

Donald S. Gandy, Fort Worth, TX, for Kenneth Morris.

John W. Sweeney, Jr. (Court-appointed), Douglas, Kressler & Wuester, Fort Worth, TX, for Willie Morris.

Frederick M. Schattman, Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Fort Worth, TX, for appellee in No. 92-9096.

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

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Before KING and BENAVIDES, Circuit Judges, and LEE ^*, District Judge.

BENAVIDES, Circuit Judge:

These appeals concern five members of two of a number of organizations involved in a major cocaine trafficking scheme. Defendants-Appellants Willie Morris, Kenneth Morris, Brenda Owens ("Owens"), Ernesto Munoz ("Munoz"), and Charles Malone ("Malone") were each convicted of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 846. Willie Morris was also convicted of money laundering in violation of 18 U.S.C. Sec. 1956; possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(A); and aiding and abetting others in committing money laundering and possession with intent to distribute cocaine in violation of 18 U.S.C. Sec. 2. In addition to the conspiracy conviction, Owens was also convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), while Munoz was also convicted of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Finally, Kenneth Morris and Malone were also convicted of money laundering in violation of 18 U.S.C. Sec. 1956. They separately raise numerous issues on appeal. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 30, 1992, a thirty-five count indictment was returned against twenty-three individuals, including Willie Morris, Kenneth Morris, Owens, Munoz, and Malone. The appellants were charged with several drug offenses, including a charge of conspiracy to commit the substantive drug offenses from on or about May 1, 1989 to November 7, 1991.

At trial, the government relied heavily on the testimony of Victor Mattias Costa ("Costa"), a cocaine "broker" or "distributor" in the Fort Worth, Texas area. Costa testified that he bought bulk quantities of cocaine from several different groups of suppliers and sold the cocaine to a number of drug organizations in the Fort Worth area. The suppliers included: (1) several groups from Miami, Florida; (2) Munoz and his associates ("Munoz Organization"); and (3) a group from Laredo, Texas ("Laredo Organization"). The purchasers included: (1) a group that included Willie Morris, Kenneth Morris, Owens, and Malone ("Morris Organization"); (2) the Ronald Jerome Fisher organization ("Fisher Organization"); and (3) a group from Atlanta, Georgia. On July 21, 1992, the district court severed the trial into two groups of defendants. The Morris and Munoz Organizations were tried together, while the Fisher Organization was tried separately with the Laredo Organization.

The jury returned verdicts against each of the appellants. The arguments of each appellant and the disposition thereof will be considered separately as follows:

I. Ernesto Munoz

A. Was there a material variance between the indictment and the government's proof at trial that harmed Munoz?

Munoz claims that his conviction should be reversed because a fatal variance existed between the indictment, which charged a single conspiracy, and the proof at trial, which revealed multiple conspiracies. Even if a variance existed, however, Munoz must still prove that his substantial rights were violated. "The true inquiry is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused." Berger v. U.S., 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Thus, in order to prevail, Munoz must prove (1) a variance between the indictment and the proof at trial; and (2) that the variance affected his "substantial rights."

i. Variance

To prove a conspiracy, the government must prove (1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) that each conspirator knew of the conspiracy and intended to join it; and (3) that each alleged conspirator

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participated in the conspiracy. U.S. v. Maseratti, 1 F.3d 330, 337 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1096, 127 L.Ed.2d 409 (1994). To determine whether a variance existed between the indictment and the proof at trial, the number of conspiracies proved at trial must be counted. The principal considerations in counting conspiracies are (1) the existence of a common goal; (2) the nature of the scheme; and (3) the overlapping of the participants in the various dealings. U.S. v. Richerson, 833 F.2d 1147, 1153 (5th Cir.1987). In examining these factors, "[w]e must affirm the jury's finding that the government proved a single conspiracy unless the evidence and all reasonable inferences, examined in the light most favorable to the government, would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt." U.S. v. DeVarona, 872 F.2d 114, 118 (5th Cir.1989).

1. A common goal. Everyone alleged to be part of the same single conspiracy must share a common goal. "Where the evidence demonstrates that all of the alleged co-conspirators directed their efforts towards the accomplishment of a single goal or common purpose, then a single conspiracy exists." Id. The Fifth Circuit has broadly defined this criterion and has adopted an expansive notion of a "common purpose." For example, we have found a common purpose with a plan to purchase cocaine involving various participants over three years, U.S. v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir.1975), and in a series of staged automobile accidents involving different participants, in different locations, and over an extended period of time, U.S. v. Perez, 489 F.2d 51, 62-63 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). In fact, one panel has remarked that "[g]iven these broad 'common goals' the common objective test may have become a mere matter of semantics." Richerson, 833 F.2d at 1153.

In the instant case, the common goal is readily apparent. The common goal of everyone involved, the suppliers, Costa, and the purchasers, was to derive personal gain from the illicit business of buying and selling cocaine. The sellers, such as Munoz, derived profits from selling to the middleman, Costa, at a higher price than for what they had bought. The purchasers, such as Willie Morris, derived profits from selling at a higher price than for what they had bought from Costa. Likewise, Costa derived profits from selling to the purchasers at a higher price than for what he had bought from the sellers. The overall objective or goal was for everyone in the conspiracy to profit from the illicit purchase and selling of cocaine.

2. The nature of the scheme. Although diagrams and charts of conspiracies as either "wheels" or "chains" were once important in analyzing this criterion, ¹ this court has moved away from a structural and formal examination of the criminal enterprise. Indeed, we have rejected an analysis of this factor based on wheels, charts, or other modes. ² Instead, this court has moved to a more functional and substantive analysis. In 1973, we determined that, "[i]f [an] agreement contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to

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keep it up, then such agreement constitutes a single conspiracy." Perez, 489 F.2d at 62. Similarly, in U.S. v. Elam, 678 F.2d 1234 (5th Cir.1982), we stated that the existence of a single conspiracy will be inferred where the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect or to the overall success of the venture, where there are several parts inherent in a larger common plan, id. at 1246.

Thus, it can be said in the instant case that "[t]he success of this conspiracy depended on the continued willingness of each member to perform his function." Richerson, 833 F.2d at 1154. If the sellers discontinued selling, there would be no cocaine for Costa and the purchasers to buy. "The necessity of a steady cocaine supply to feed a distribution effort is beyond question." DeVarona, 872 F.2d at 199. Likewise, the distribution effort is critical to the success of the suppliers. If the purchasers ceased to buy, there would be no reason for Costa to buy from the sellers, and hence no reason for the sellers to acquire the cocaine. Thus, although the sellers and the purchasers may not have had a direct relationship with each other, each was necessary for the continued success of the venture.

Munoz suggests that an analysis of the conspiracy horizontally among the suppliers and the purchasers, however, points to a different conclusion. Munoz, for example, argues that his organization could not have been in the same conspiracy as the other suppliers, such as the Laredo Organization, which were competitors. Munoz cites to the testimony of Costa in which he stated that he initially approached the Laredo Organization for...