U.S. v. Payne

• Decision Date: 11 November 1996
• Docket Number: Nos. 95-30421,95-30478 and 95-31277,s. 95-30421
• Citation: 99 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth O. PAYNE; Tommy Rigmaiden; Elijah Martin, Jr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wayne RIGMAIDEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frederick CAPTAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1273

99 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth O. PAYNE; Tommy Rigmaiden; Elijah Martin, Jr.,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wayne RIGMAIDEN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frederick CAPTAIN, Defendant-Appellant.

Nos. 95-30421, 95-30478 and 95-31277.

United States Court of Appeals, Fifth Circuit.

Nov. 11, 1996.

Cristina Walker, Josette Louise Cassiere, Assistant U.S. Attorneys, Office of the United States Attorney, Shreveport, LA, for plaintiff-appellee.

Valerie Gotch Garrett, Lafayette, LA, for Kenneth O. Payne, defendant-appellant.

Daniel James Stanford, Stanford Law Office, Eunice, LA, for Tommy Rigmaiden, defendant-appellant.

Rebecca L. Hudsmith, Office of the Federal Public Defender, Lafayette, LA, for Elijah Martin, Jr., defendant-appellant.

Brett L. Grayson, Department of Justice, U.S. Attorney's Office, Lafayette, LA, for U.S. in No. 95-31277.

Frederick Captain, Oakdale, LA, pro se.

Appeals from the United States District Court for the Western District of Louisiana.

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

DeMOSS, Circuit Judge:

We consider three consolidated appeals from five individuals convicted of various counts of conspiracy to distribute, and distribution of, cocaine base ("crack") in the Lake Charles, Louisiana area. Two of the defendants were also convicted of using a firearm in relation to a drug-trafficking transaction. The government admits that the firearm convictions cannot stand in light of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); accordingly, we reverse the firearm convictions and vacate the sentences on those counts. Finding that the evidence is sufficient to support the other convictions and that the district court committed no reversible error, we affirm the judgments of the district court on all other counts.

BACKGROUND

Procedural Background

Kenneth Payne, Tommy Rigmaiden, Elijah Martin, Jr., Timothy Rigmaiden and Frederick Captain were charged, along with eight other individuals, in a 25 count indictment. All of the charges concerned a crack distribution ring operating in Mossville, Louisiana, a community near Lake Charles.

Frederick Captain plead guilty to one count of distribution of crack, and the remaining charge against him was dismissed. He was sentenced to 78 months imprisonment. Captain filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which the district court denied. Captain appeals the denial of his motion.

Payne, Martin and Tommy Rigmaiden were tried together and convicted on all counts. Payne and Martin filed motions for acquittal, which were denied. Payne was convicted of one count of conspiracy to possess with intent to distribute crack, four counts of distribution of crack, two counts of possession with intent to distribute crack, one count of attempted distribution of crack, and one count of use of a firearm in relation to a drug-trafficking crime. He was sentenced to 78 months on each of the non-firearm counts, to run concurrently. He was sentenced to 60 months on the firearm count, to run consecutive to the other counts. Martin was convicted of one count of conspiracy to possess with intent to distribute crack, four counts of distribution of crack, one count of possession with intent to distribute crack, and one count of use of a firearm in relation to a drug trafficking crime. He was sentenced to 27 months on each of the non-firearm counts, to run concurrently. He was sentenced to 60 months on the firearm count, to run consecutive to the other counts. Tommy Rigmaiden was convicted of one count of conspiracy to possess with intent to distribute crack and three counts of distribution of crack. He was sentenced to 97 months on each of the counts, to run concurrently.

Due to the illness of his attorney, Timothy Rigmaiden was tried separately. He was convicted of one count of conspiracy to possess with intent to distribute crack and one

count of distribution of crack. He was sentenced to 30 months on each count, to run concurrently.

Facts as to Payne, Martin and Tommy Rigmaiden ¹

This case involves a crack distribution network in Mossville Louisiana. The leader of the network, and the principal source of cocaine in the Mossville area, was Benjamin Lutcher. Lutcher would travel to Houston, Texas, to purchase crack, which he would then sell in Mossville with the help of his many associates, including Payne, Martin and Tommy Rigmaiden.

One witness, Deborah Malbrough, testified that the house in which she lived was used for selling crack. In exchange for permission to sell drugs out of the house, the dealers would leave some crack for Malbrough and her boyfriend. Malbrough testified that Payne engaged in drug transactions with Lutcher's associates at her house. Specifically, Payne met with Khoury Thomas, a partner of Lutcher who "always had dope with him." When they met they went into the back room of the house where, Malbrough surmised, they engaged in a drug transaction. She came to this conclusion because "that's all that went on over there." Malbrough also testified that Martin came to the house to buy drugs from Lutcher, often buying over $100 worth of crack.

Albert Holmes, another partner of Lutcher, testified to a meeting between Lutcher and Payne outside a Mossville convenience store. Payne told Lutcher, "I am low." Lutcher then wrote down a telephone number and gave it to Payne.

An undercover police agent bought crack from Payne four times from June to August 1993. The evidence established that Payne and Martin sold crack together outside of Martin's house. On one occasion, Payne asked Martin to go into the house and "get two thirties." ² Martin then entered the residence and returned with an item, which was later determined to be crack, which he handed to Payne, who gave it to the agent.

On a separate occasion, Payne and Martin both approached the agent outside Martin's house. Payne then instructed Martin to go back into the house and get two rocks. Martin came back within a minute and handed Payne an object, which he handed to the agent. The object was later determined to be crack.

When Martin was arrested the police found a loaded .45 semi-automatic handgun and two rocks of crack on the nightstand in his bedroom.

Tommy Rigmaiden was a drug user who sold crack to support his habit. He would often sell crack for other dealers, keeping a small amount for himself as payment. Malbrough testified that Tommy sometimes sold crack for Lutcher. She also testified that Payne and Tommy sometimes sold crack together. Malbrough further testified that Tommy sold drugs for Payne. Tommy admitted to an FBI agent that he sold crack to support his habit. Undercover police agents bought crack from Tommy three times in December 1993.

Facts as to Timothy Rigmaiden

Zavier Lewis, an undercover "contract agent" ³ for the Calcasieu Parish Sheriff's Office, testified that he bought crack from Timothy Rigmaiden in October 1993. This crack sale is the basis for the distribution of crack count.

Several witnesses testified that they bought crack from Timothy. Deborah Malbrough testified that Timothy Rigmaiden sold crack with his cousins, Frederick and Damien Captain. No witness testified that Timothy Rigmaiden ever had dealings with Lutcher; several witnesses testified that Timothy Rigmaiden had no involvement with Lutcher.

Malbrough testified that Frederick Captain and Lutcher met at her house on one occasion. When Frederick Captain entered a back room where Lutcher was he had no drugs. "And when he came out of the room, he did have dope."

DISCUSSION

Conspiracy--Payne, Martin and Tommy Rigmaiden

Payne, Martin and Tommy Rigmaiden argue that there is insufficient evidence to sustain their convictions for conspiracy to distribute crack. In a sufficiency review, we must determine whether viewing the evidence and the inferences therefrom "in a light most favorable to the jury's guilty verdicts, a rational trier of fact could have found these defendants guilty beyond a reasonable doubt." United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.1993), cert. denied, 511 U.S. 1096, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994). In denying Payne's and Martin's motions for acquittal, the district court passed on the sufficiency of the evidence. We review the denial of the motion for acquittal de novo, applying the same standards as in a general sufficiency review. United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992).

The elements of a drug conspiracy are: "(1) the existence of an agreement between two or more persons to violate narcotics law; (2) the defendant's knowledge of the agreement; and (3) the defendant's voluntary participation in the agreement." United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.1996). "A jury may infer the elements of a conspiracy conviction from circumstantial evidence: an agreement to violate narcotics law may be inferred from concert of action. Knowledge of the conspiracy may be inferred from a collection of circumstances." United States v. Leal, 74 F.3d 600, 606 (5th Cir.1996) (internal quotations and citations omitted).

The defendants claim that the government's witnesses are not credible. They point to the facts that many of the witnesses were crack addicts and most had entered plea agreements with the government, agreeing to testify in return for favorable treatment. However, "non-credibility is generally not a sound basis for alleging insufficiency of the evidence; it is the jury's function to determine credibility." United States v. Polk, 56 F.3d 613, 620 (5th Cir.1995); see also Sanchez, 961 F.2d at 1179-80. We have held that "a guilty verdict may be supported only by the uncorroborated testimony of a coconspirator, even if the witness is interested due to a plea...