United States v. Thomas

• Decision Date: 02 August 2012
• Docket Number: No. 10–50982.,10–50982.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Chedowry THOMAS; Henry Davis; Woodrow Chapman, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

690 F.3d 358

UNITED STATES of America, Plaintiff–Appellee,

v.Chedowry THOMAS; Henry Davis; Woodrow Chapman, Defendants–Appellants.

No. 10–50982.

United States Court of Appeals,Fifth Circuit.

Aug. 2, 2012.

Joseph H. Gay, Jr., Asst. U.S. Atty., Angela Sandoval Raba (argued), Asst. U.S. Atty., San Antonio, TX, for Plaintiff–Appellee.

John Leo Williams (argued), John David Gates (argued), Kathleen Salome Smith, Cori Ann Harbour–Valdez (argued), Harbour Law Firm, P.C., El Paso, TX, for Defendants–Appellants.

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

Before SMITH, GARZA and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Chedowry Thomas, Henry Davis, and Woodrow Chapman were tried on counts of conspiracy to possess with intent to distribute a controlled substance and attempt to possess with the intent to distribute a controlled substance. All three appellants were convicted on the conspiracy count. The jury determined that, with respect to Thomas and Davis, the offense involved five kilograms or more of cocaine. Thomas and Davis were also convicted of attempt to possess with the intent to distribute five kilograms or more of cocaine. Chapman was acquitted on the attempt count. All three appealed. We AFFIRM all three judgments of conviction on conspiracy, but we REVERSE the judgments for attempt on the basis of improper venue.

FACTUAL AND PROCEDURAL HISTORY

In March 2008, a confidential source, Victor Jimenez, began working with Ray Thompson, a Special Agent of the Drug Enforcement Administration. The investigation centered on Bernardo Favela, a resident of El Paso, suspected of cocaine and marijuana distribution. Jimenez received information that Favela wanted to deliver 15 kilograms of cocaine to or near St. Louis, Missouri. After notifying Thompson, Jimenez agreed to transport the cocaine to Missouri and stated that he needed to leave on November 23, 2008 to take a legitimate load to Chicago. Favela told Jimenez to call him back later that day to see if he was able to arrange the job. When the call was made, Jimenez was told everything was ready and he should pick up the cocaine from Favela's home in El Paso.

After obtaining the box of cocaine from Favela's residence, Jimenez met with Thompson and other DEA agents who were conducting surveillance. The box contained 15 bundles that weighed a total of 37 pounds. A field test demonstrated that the substance tested positive for cocaine. Thompson took possession of the cocaine and arranged a controlled delivery with DEA agents in Missouri. Jimenez, a truck driver, left that night with a legitimate load to drive from El Paso to Missouri. Thompson flew to Missouri the following day with the cocaine. While Jimenez was on the road, Favela called to give him the name of a contact, “Mr. T,” a number to call, and a location to which the cocaine was to be delivered. Instead of St. Louis, Favela told Jimenez to take the cocaine to Charleston, Missouri.

While Jimenez was driving, the DEA agents prepared bundles of sham cocaine with 22 grams of authentic cocaine to resemble the bundles of cocaine Jimenez received in El Paso. The sham cocaine was placed in a red duffel bag and given to Jimenez when he arrived in Missouri. Jimenez then took the bag to a truck stop and called the number given to him by Favela. Jimenez had a number of conversations with Favela and other conversations with another man about the delivery of the cocaine. At trial, Chapman's former supervised-release officer, Nicholas Bobo, identified the voice on the phone calls as that of Chapman. During the conversations, Jimenez discussed the location of the transfer, the exchange of money, and the people involved. After several conversations, Jimenez went into the truck-stop restaurant and encountered two men, one with a gold tooth wearing running clothes and another with long hair. Jimenez asked the man wearing running clothes for Mr. T and was directed to a blue van parked next to the restaurant. Jimenez then returned to his truck to receive further instructions from Thompson.

Upon direction from the man on the phone and confirmation from Thompson, Jimenez placed the red duffel bag of sham cocaine in the van. A man in the driver's seat of a blue Cadillac parked next to the blue van instructed Jimenez to open the door to the backseat of the car and retrieve a black duffel bag. The passenger in the Cadillac was the man with the gold tooth and running clothes. Jimenez returned to his truck and met Agent Thompson at the next exit where they opened the black bag to find $16,000. Jimenez was to receive $12,000 and $4,000 was to be sent to Favela.

Officer Jeffrey Wagner, who was advised to be on the lookout for the van and the Cadillac, encountered the vehicles traveling on a county road. He began to pursue the vehicles at 120 miles per hour to overtake the Cadillac, which was behind the van. The van ran off the side of the road and overturned. The driver exited the van and got into the passenger seat of the Cadillac, which then continued for about 150 yards before stopping. Wagner identified the driver of the van as Davis and the driver of the Cadillac as Thomas. Wagner also identified Davis as wearing a blue and red athletic suit on that day. A search of the van recovered the red duffel bag with 15 bundles of sham cocaine.

Thomas, Davis, and Chapman were tried with a fourth defendant, Clark, in the United States District Court for the Western District of Texas for conspiracy and for attempt to possess with intent to distribute cocaine. Appellants raise a total of seven issues.

DISCUSSION

I. Sufficiency of the Evidence

Thomas, Davis, and Chapman all argue that there was insufficient evidence to establish they entered into a conspiracy to possess with intent to distribute cocaine. All three moved for acquittal at the close of the government's case and renewed the motion after evidence was presented in defense. We review the denial of a Rule 29 motion for a judgment of acquittal de novo. United States v. Xu, 599 F.3d 452, 453 (5th Cir.2010). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation marks and citation omitted).

“To establish a conspiracy [under 21 U.S.C. § 846], the government must prove that: (1) an agreement existed between two or more persons to violate federal narcotics law, (2) the defendant knew of the existence of the agreement, and (3) the defendant voluntarily participated in the conspiracy.” United States v. Ochoa, 667 F.3d 643, 648 (5th Cir.2012). “An express agreement is not required; a tacit, mutual agreement with common purpose, design, and understanding will suffice.” United States v. Zamora, 661 F.3d 200, 209 (5th Cir.2011) (quotation marks and citation omitted).

“[C]ircumstantial evidence may establish the existence of a conspiracy, as well as an individual's voluntary participation in it.” United States v. Curtis, 635 F.3d 704, 719 (5th Cir.2011) (quotation marks and citation omitted). The jury can “infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others.” Id. (quotation marks and citation omitted). While mere presence at the scene or association with co-conspirators is insufficient, they are factors that may be considered “in finding conspiratorial activity.” United States v. Gonzales, 79 F.3d 413, 423 (5th Cir.1996).

A. Davis

Davis argues that the government failed to present evidence demonstrating a shared objective to distribute the drugs or any evidence beyond a buyer-seller relationship. Specifically, Davis argues that the government did not present circumstantial evidence typical of conspiracy cases such as prolonged cooperation between Davis and his codefendants, a credit agreement, or an established distribution system.

“[A] buyer-seller relationship, without more, will not prove a conspiracy ....” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir.1993). “The rule shields mere acquirers and street-level users, who would otherwise be guilty of conspiracy to distribute, from the more severe penalties reserved for distributers.” United States v. Delgado, 672 F.3d 320, 333 (5th Cir.2012) (en banc). The receipt of drugs without payment is “ ‘strong evidence’ of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.” United States v. Posada–Rios, 158 F.3d 832, 860 (5th Cir.1998).

The government presented evidence from which the jury could infer that the defendants were fronted the drugs. Thompson testified that one kilogram of cocaine was worth $17,000 to $18,000 in El Paso and would increase in value as it was transported away from El Paso. Based on his testimony, the total amount of the cocaine was worth at least $255,000. The duffel bag contained only $15,995 in cash. From this, the jury could infer that Thomas, Davis, and Chapman received the drugs without full payment.

The government also presented evidence from which the jury could infer that Davis acted in concert with Chapman, Thomas, and Favela. Jimenez testified that he asked a man in running clothes for “Mr. T” and that the man directed him to the van parked next to the restaurant. A government agent who followed Jimenez into the truck stop testified that he saw Davis in the store at the same time wearing a jogging-type suit. The jury could reasonably infer that it was Davis with whom Jimenez spoke in the truck stop. Further, Jimenez testified that the man in the running clothes was the passenger in the Cadillac when he was told to open the back door and retrieve the duffel bag of money. Davis then drove the van from the truck stop and, after the van overturned, ran to the Cadillac driven by Thomas. Finally, Davis, as driver of the van, was entrusted...