U.S. v. Stowell, 90-2223

Decision Date28 January 1992
Docket NumberNo. 90-2223,90-2223
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Janice M. STOWELL, a/k/a Jody Annmarie Tucker, Gary Lane Williams, a/k/a Jackson King and Jimmy Wood, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Marjorie A. Meyers, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Stowell.

Dick DeGuerin, DeGuerin & Dickson, Houston, Tex., Jeralyn E. Merritt, Denver, Colo., for Williams.

Paula Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

Appeal From the United States District Court for the Southern District of Texas.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion November 15, 1991, 5th Cir.1991, 947 F.2d 1251)

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the Petition for Rehearing filed by the government in the above entitled and numbered cause be and the same is hereby DENIED. Treating the suggestion for rehearing en banc filed by Gary Lane Williams as a petition for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for rehearing En Banc is DENIED.

In its petition for rehearing, the government argues that we erred in stating that our discretion was limited to determining "whether there is any evidence to support the issuance of the [multiple conspiracies] charge." It relies on Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), where the Supreme Court stated that, generally speaking, "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." The government asserts that our "any evidence" standard is inconsistent with the "sufficient evidence" standard mandated by the Supreme Court.

Although we have on several occasions before and after Mathews observed that the court must charge the jury on a defense theory when there is any evidence to support it, see, e.g., United States v. Washington, 688 F.2d 953, 958 (5th Cir.1982); United States v. Rubio, 834 F.2d 442, 447 (5th Cir.1987); United States v. Kim, 884 F.2d 189, 193 (5th Cir.1989); United States v. Harris, 932 F.2d 1529, 1535 (5th Cir.1991), this language is admittedly incomplete. Its shorthand implies that a mere scintilla of evidence in support of a defense theory requires the giving of an instruction on that theory at the defendant's request. Of course, any evidence in support of a defensive theory must be sufficient for a reasonable jury to rule in favor of the defendant on that theory. See Mathews, supra; United States v. Schmick, 904 F.2d 936, 942-43 (5th Cir.1990). This is what we meant when we stated in this case that a court may decide as a matter of law that the evidence of multiple conspiracies fails to raise a factual question for the jury. United States v. Stowell, 947 F.2d 1251, 1258 (5th Cir.1991).

That having been said, we think there was sufficient evidence of multiple conspiracies here to warrant an instruction on this theory of defense. The evidence at trial was inconclusive as to whether Jimmy Wood was merely the Mexican supplier of the marijuana or whether he was a participant in the scheme to distribute the marijuana in the United States as well. Although the jury may well have concluded that Wood was a member of the conspiracy to distribute, it could reasonably have concluded otherwise. Under these circumstances, the district court should have granted Wood's request for a jury instruction on multiple conspiracies. The jury should decide the issue of single versus multiple conspiracies. United States v. Richerson, 833 F.2d 1147, 1155 (5th Cir.1987).

We are not persuaded by the government's contention that because Wood urged in...

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  • U.S. v. Branch
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 Agosto 1996
    ...dissent would, perhaps, be justified in exploiting this dissonance. Mathews, however, resolved the matter. Indeed, in United States v. Stowell, 953 F.2d 188 (5th Cir.), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992), and cert. denied, 506 U.S. 902, 113 S.Ct. 292, 121 L.E......
  • U.S. v. Bradfield
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 14 Mayo 1997
    ...90 S.Ct. 435, 24 L.Ed.2d 425 (1969).14 Nations, 764 F.2d at 1080.15 91 F.3d 699, 712-13 (5th Cir.1996).16 See also United States v. Stowell, 953 F.2d 188, 189 (5th Cir.), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992).17 Mathews, 485 U.S. at 63, 108 S.Ct. at 886 (citatio......
  • U.S. v. Lopez
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Diciembre 1992
    ...to be a member of a single conspiracy. United States v. Stowell, 947 F.2d 1251, 1258-59 (5th Cir.1991), rehearing denied, 953 F.2d 188 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992). Additionally, the time when a member joined the conspiracy or ......
  • U.S. v. Bradfield, 94-60730
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 9 Enero 1997
    ...90 S.Ct. 435, 24 L.Ed.2d 425 (1969).12 Nations, 764 F.2d at 1080.13 91 F.3d 699, 712-13 (5th Cir.1996).14 See also United States v. Stowell, 953 F.2d 188, 189 (5th Cir.), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992).15 Mathews, 485 U.S. at 63, 108 S.Ct. at 886 (citatio......
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