U.S. v. Pinque, 00-1052

• Decision Date: 17 October 2000
• Docket Number: No. 00-1052,00-1052
• Citation: 234 F.3d 374
• Parties: (8th Cir. 2000) United States of America, Appellee, v. Sylvan Anthony Pinque,Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 374

234 F.3d 374 (8th Cir. 2000)

United States of America, Appellee, v. Sylvan Anthony Pinque,Appellant.

No. 00-1052

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: October 17, 2000

Filed: December 8, 2000

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges MORRIS SHEPPARD ARNOLD, Circuit Judge.

Sylvan Pinque was convicted on two counts of distributing cocaine base (crack) and two counts of conspiring to distribute and to possess crack with the intent to distribute it. See 21 U.S.C. 841(a)(1), 846. Mr. Pinque maintains on appeal that the trial court incorrectly instructed the jury on the conspiracy charges and that there was insufficient evidence of his predisposition to commit these crimes. We affirm.

I.

Mr. Pinque first maintains that the trial court erred in instructing the jury on the conspiracy charges. We would normally review the relevant instructions for plain error, since Mr. Pinque did not object to them in the trial court. See United States v. Johnson, 114 F.3d 808, 814 (8th Cir. 1997). The government contends, however, that Mr. Pinque proposed the very jury instructions to which he now objects, and, if this is true, Mr. Pinque would of course have waived his right to object to them. See United States v. Olano, 507 U.S. 725, 732-33 (1993); see also United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994). But Mr. Pinque's proposed instructions are not on the record, so we are obliged to reject the government's contention.

Mr. Pinque asserts that the trial court confused the jury by misdescribing the charges against him. While instructing the jury on the two conspiracy counts, the trial court stated that "[i]n order to sustain its burden of proof for the crime of possession of a controlled substance with intent to distribute, ... the Government must prove [certain] elements" (emphasis supplied). Because the counts for which the instruction was given actually charged conspiracy, the failure to mention conspiracy in this context was an obvious error.

In order for this plain error to be reversible, however, it must have affected Mr. Pinque's substantial rights. See United States v. Young, 223 F.3d 905, 908 (8th Cir. 2000). We do not think that this happened in his case because it appears to us that it would have been impossible for the jury not to understand that Mr. Pinque was charged with conspiracy in the relevant counts. Three sentences before the one quoted above, the trial court's instructions stated that "[c]ounts 3 and 4 of the indictment charge the defendant with conspiracy." Conspiracy was also mentioned in the sentences immediately before and after the sentence to which Mr. Pinque objects. We must evaluate individual jury instructions in the context of the entire charge. See United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000). Looking at the entire charge, the instructions indicated quite clearly that Mr. Pinque was charged with two counts of conspiracy, and thus we hold that his rights were not adversely affected by the error.

II.

The trial court instructed the jury that in order to convict Mr. Pinque of conspiracy the government had to prove that he "conspired to possess ... cocaine base crack," that he "knew that this substance was a controlled substance," and that he "intended to distribute this controlled substance." Mr. Pinque contends that this instruction was erroneous because the indictment charged him with a conspiracy to distribute and to possess with the intent to distribute, while the instructions describe only a conspiracy to possess with the intent to distribute. He asserts that this instruction allowed the jury to convict him without finding that he had entered into a conspiracy to distribute. Even if this is true, however, there was no prejudicial error:

When more than one violation is charged conjunctively in an indictment, proof of any of the violations will sustain the conviction. See United States v. Vickerage, 921 F.2d 143, 147 (8th Cir. 1990).

Mr. Pinque also asserts that the instructions erroneously failed to state that the conspiracy with which he was charged encompassed an agreement to distribute. It is true that the instructions used the word "conspired" only in stating that the defendant must have conspired to possess crack, while not explicitly stating that he must also have conspired to distribute. The jury was instructed, however, that the two relevant counts charged that "the defendant knowingly conspired with other persons ... to intentionally possess ... cocaine base crack, a controlled substance, with intent to distribute that substance." The jury was also properly instructed on the definitions of "conspiracy," "possess," and "distribute." As we have said, in evaluating jury instructions we look to whether, when taken as a whole, they fairly and adequately submitted the issue to the jury hearing the case. See United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000). We believe, without reservation, that the jurors here understood that in order to convict Mr. Pinque they had to determine that he was part of a conspiracy both to possess and to distribute crack.

III.

Mr. Pinque's final challenge to the jury instructions is that the trial court failed to state that in order to convict him of conspiracy, the jury had to find that he conspired with at least one person who was not a government agent. "It is of course a well-established rule that 'there can be no indictable conspiracy involving only the defendant and government agents and informers,' " United States v. Rios, 171 F.3d 565, 566 (8th Cir. 1999), quoting United States v. Nelson, 165 F.3d 1180, 1184 (8th Cir. 1999). Mr. Pinque, however, never argued at trial that government agents were his only co-conspirators. Nor did he...