United States v. Daniels

• Decision Date: 17 July 2013
• Docket Number: No. 12–30413.,12–30413.
• Citation: 723 F.3d 562
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Ramon Terrell DANIELS; JeCarlos Montrae Carter; Tenisha Deshea Carter; Antonio Demetrious Furlow; Gransihi Deon Mims, also known as Granshi; Auburn Thomas, also known as Big, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

723 F.3d 562

UNITED STATES of America, Plaintiff–Appellee

v.Ramon Terrell DANIELS; JeCarlos Montrae Carter; Tenisha Deshea Carter; Antonio Demetrious Furlow; Gransihi Deon Mims, also known as Granshi; Auburn Thomas, also known as Big, Defendants–Appellants.

No. 12–30413.

United States Court of Appeals,Fifth Circuit.

July 17, 2013.

Josette Louise Cassiere, Assistant U.S. Attorney, Allison Duncan Bushnell, U.S. Attorney's Office, Shreveport, LA, for Plaintiff–Appellee.

Stephen H. Shapiro, Jefferson, LA, Patricia Ann Gilley, Gilley & Gilley, Attorneys at Law, Shreveport, LA, Douglas Lee Harville, Harville Law Firm, L.L.C., Billy James Guin, Jr., Billy J. Guin, Jr., L.L.C., Betty Lee Marak, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, G. Warren Thornell, Shreveport, LA, for Defendant–Appellant.

Before KING, DAVIS, and ELROD, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendants Ramon Daniels, JeCarlos Carter, Tenisha Carter, Antonio Furlow, Gransihi Mims, and Auburn Thomas appeal their convictions and sentences for conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii). Defendants argue that the evidence at trial was insufficient to support the jury's verdict that the conspiracy involved five kilograms or more of cocaine. We find that there is insufficient evidence to support the finding that defendants conspired to distribute more than five kilograms of cocaine. But, because drug quantity is not an essential element of a conspiracy offense we reverse only as to the drug quantity finding, as there was sufficient evidence to support the conspiracy conviction. We are unpersuaded by defendants' other claims of error. Thus we AFFIRM in part, and VACATE and REMAND in part with instructions to resentence defendants for conspiracy to distribute cocaine under 21 U.S.C. § 841(b)(1)(B)(ii).

I. FACTS AND PROCEEDINGS

In late summer 2009, the FBI began an investigation of an illegal drug trafficking organization that obtained cocaine in Dallas, Texas, and distributed it in Shreveport, Louisiana, and the surrounding area. A confidential informant (CI) came forward and informed law enforcement that he could purchase cocaine from Lionel Pugh, who received cocaine from JeCarlos Carter, a resident of Dallas and the leader of the organization. From October 2009 to July 2010, the CI regularly made controlled purchases of cocaine from Pugh.

Officers continued to monitor Pugh. In February 2010, they installed a pole camera to view Pugh's home and activities around his home. Officers also began to maintain regular surveillance in teams to follow the individuals observed at Pugh's residence. Surveillance teams followed many of these individuals to locations other than Pugh's residence. Investigating officers also obtained a Title III wiretap on Pugh's cell phone.

Officers expanded their investigation beyond Pugh as it became apparent that Pugh was giving more information to the CI regarding his sources of cocaine. With the information officers acquired, they applied for a wiretap on JeCarlos's cell phone.¹ Officials later obtained a wiretap on a second cell phone belonging to JeCarlos. With the aid of the information that Pugh provided to the CI, and through the use of the various wiretaps and the pole camera, officers were able to conduct detailed surveillance of the defendants' drug trafficking activities in Dallas and Shreveport and were able to determine approximately when Pugh would be obtaining cocaine.

Over the course of the investigation, officers learned about the general structure of the organization and the roles the various members played. JeCarlos resided in Dallas and obtained quantities of cocaine in Dallas from an individual named Thomas Mejorado. Upon receiving cocaine from Mejorado, JeCarlos utilized the services of Auburn Thomas, a Dallas resident, who would drive from Dallas to the Shreveport area to deliver the cocaine on behalf of JeCarlos. Thomas would deliver cocaine to Pugh, to defendants Antonio Furlow and Gransihi Mims, and to others, including Rodney Theus, Christopher Larry, and an individual called “Seebo.” The investigation revealed that Furlow and Mims coordinated drug deals with JeCarlos, and distributed cocaine that JeCarlos sent to Shreveport with Thomas. Officers also learned that defendant Tenisha Carter, JeCarlos's sister, resided with Furlow and would store and distribute cocaine on behalf of JeCarlos. The investigation further revealed that defendant Ramon Daniels, a friend of JeCarlos, was involved in the organization. Officers recorded cell phone conversations between JeCarlos and Daniels relating to drug deals, and they identified Daniels accompanying JeCarlos during various transactions involving cocaine.

On July 18, 2010, the Government observed Thomas arriving at Pugh's residence and saw Pugh retrieve a bundle from Thomas's car. Pugh left his home, and officers stopped him, read him his Miranda rights, and offered him an opportunity to cooperate in their investigation. Pugh accepted the offer to cooperate and consented to a search of his home. This search resulted in the seizure of approximately three-quarters of a kilogram of cocaine. Later, the Government monitored calls between JeCarlos and Pugh that confirmed that Thomas had delivered this cocaine on behalf of JeCarlos. During these calls JeCarlos arranged to meet with Pugh to pick up the money for the cocaine.

On July 20, 2010, Pugh and JeCarlos met in a Home Depot parking lot. The Government provided Pugh with $22,000 in a bag to give to JeCarlos as payment for the cocaine. Immediately after Pugh placed the bag of drug money in JeCarlos's car, federal agents arrived at the scene. The agents detained the occupants of the car: JeCarlos, his adolescent son, and Daniels. After JeCarlos indicated that he would not cooperate with the investigation into Mejorado's drug distribution scheme in Dallas, the agents arrested JeCarlos and Daniels.

In March 2011, the grand jury returned a superceding indictment charging each of the defendants with conspiracy to distribute and to possess with intent to distribute five kilograms or more of a mixture and substance containing a detectable amount of powder cocaine in violation of 21 U.S.C. §§ 841(a)(1), ²(b)(1)(A)(ii),³ and 846⁴(Count 1). In the superceding indictment, certain members of the conspiracy were charged with substantive counts of possession with intent to distribute powder cocaine on various dates under 21 U.S.C. § 841(a)(1), and (b)(1)(B)(ii)⁵ or (b)(1)(C)⁶ (Counts 2–4, 6, 7, and 10) ⁷; other conspirators were charged with the unlawful use of a communication facility in violation of 21 U.S.C. § 843(b) (Counts 5, 8, and 9).⁸

All six defendants proceeded to trial by a jury. At trial, the Government presented various types of audio and visual evidence of the charged offenses, including photographs of alleged drug deals that occurred on multiple dates between certain defendants; recordings of phone conversations pertaining to cocaine deals between various defendants, and between defendants and Pugh; and text messages sent between the defendants regarding cocaine distribution. Various Government witnesses testified, including the law enforcement officers who engaged in surveillance of defendants in Dallas and the Shreveport area; officers who prepared and supervised the preparation of the wire transcripts; the chemists who analyzed the narcotics obtained throughout the investigation; and Pugh, who offered context for various photographs and wire intercepts, and explained the involvement of certain defendants in the conspiracy. Agent Russell Sarpy also testified about the meaning of various terms typically used in drug trafficking organizations.

The jury heard testimony about twelve controlled purchases of cocaine in which the CI bought varying quantities of cocaine from Pugh between October 2009 and July 2010—for a total quantity of 750.8 grams—and the Government introduced this seized cocaine into evidence. The jury further heard that the Government seized 784.5 grams of cocaine from Pugh's residence on July 18, 2010, and the Government entered this quantity of cocaine into evidence. ⁹ Thus, in total, the Government physically seized, and introduced in evidence before the jury, 1.535 kilograms of cocaine.

At the end of the Government's case, each defendant made a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, which was denied. JeCarlos, Furlow, and Mims then presented their cases. Thomas, Daniels, and Tenisha did not present cases. At the close of evidence, only Furlow renewed his Rule 29 motion. At the conclusion of the eight day trial, the jury found the defendants guilty of all the offenses with which they were charged in the superceding indictment.

Prior to sentencing, the district court conducted a hearing on drug quantity in which all defendants participated. At the hearing, the district court noted that the jury had found all of the defendants guilty of conspiring to distribute five kilograms or more of cocaine. Believing that not making a drug quantity finding as to each defendant could lead to problems on appeal, or could cause future complications depending on potential revisions to the sentencing guidelines, the defendants, led by Thomas, urged the court to make such findings. The defendants also acknowledged that the five kilogram amount was found by the jury beyond a reasonable doubt, and was a floor for sentencing purposes. In response to the defendants' concern regarding drug quantity, the Government agreed to stipulate that the offenses involved five kilograms of cocaine. All defendants agreed to stipulate to this amount for the limited purpose of sentencing. Each defendant also reserved his or her right to argue sufficiency of the evidence on appeal with respect to the quantity of cocaine...