UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30421
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH O. PAYNE; TOMMY RIGMAIDEN; ELIJAH MARTIN, JR.,
Defendants-Appellants.
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No. 95-30478
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TIMOTHY WAYNE RIGMAIDEN,
Defendant-Appellant.
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No. 95-31277
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDERICK CAPTAIN,
Defendant-Appellant.
Appeals from the United States District Court
For the Western District of Louisiana
November 11, 1996
Before REYNALDO 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
possessing 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, 116 S. Ct. 501 (1995);
accordingly, we reverse the firearm convictions and vacate the
sentences on those counts. Finding that the evidence is sufficient
2
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 count of possession with intent to
distribute crack, one count of attempted distribution of crack, and
one count of possession 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
3
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 possession 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 Rigmaiden1
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.
1
Because Payne, Martin and Tommy Rigmaiden were tried
separately from Timothy Rigmaiden, to avoid confusion we will
discuss the facts from each trial separately.
4
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.
2
“Two thirties” is drug trade parlance for two $30 “rocks”
of crack.
5
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.
3
A “contract agent” is an individual who, while not a
commissioned peace officer, performs undercover police work for a
law enforcement agency. The individual is paid according to the
number of drug transactions he conducts.
6
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 would have found these defendants guilty beyond a
reasonable doubt.” United States v. Velgar-Vivero, 8 F.3d 236, 239
(5th Cir. 1993), cert. denied, 114 S. Ct. 1865 (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 (1992).
7
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.3d 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 bargain of promise of leniency, unless the
testimony is incredible or insubstantial on its face.” United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied,
115 S. Ct. 1825 (1995). The testimony in this case is not
“incredible or insubstantial on its face.”
8
There is sufficient evidence to support the conspiracy
convictions of Payne, Martin and Tommy Rigmaiden. The evidence
establishes that all three men sold drugs in Mossville and that all
three had dealings with Lutcher. Payne met with Khoury, one of
Lutcher’s partners, and the circumstances of the meeting allow the
inference that a drug transaction took place. Payne’s comment to
Lutcher that “I am low,” coupled with Lutcher’s response, allow the
inference that Lutcher supplied crack to Payne. Martin and Payne
sold drugs together out of Martin’s house. Martin also bought
crack directly from Lutcher. Tommy Rigmaiden sold drugs for
Lutcher and Payne. This evidence is sufficient to support the
conspiracy convictions.
Possession with Intent to Distribute -- Payne and Martin
Payne contends that the evidence is insufficient to convict
him of possession with intent to distribute crack. The drugs in
this count are the two rocks of crack found on Martin’s nightstand
when he was arrested. A co-conspirator may be held liable for
crimes committed by a co-conspirator in furtherance of the
conspiracy. United States v. Crain, 33 F.3d 480, 486 n.7 (5th Cir.
1994) (citing Pinkerton v. United States, 66 S. Ct. 1180, 1183
(1946)), cert. denied, 115 S. Ct. 1142 (1995). The evidence
established that Payne and Martin were co-conspirators, and
possession with intent to deliver is a crime in furtherance of the
conspiracy. Therefore, if Martin is guilty of possession with
intent to deliver, then so is Payne.
9
“To prove possession of a controlled substance with intent to
distribute, the government must prove beyond a reasonable doubt the
defendants possession of the illegal substance, knowledge, and
intent to distribute. The necessary knowledge and intent can be
proved by circumstantial evidence.” United States v. Rodriguez,
993 F.2d 1170, 1175 (5th Cir. 1993), cert. denied, 114 S. Ct. 1547
(1994). While the amount of drugs possessed is admittedly small,4
the jury could infer intent to distribute from the fact that Martin
and Payne regularly dealt crack out of Martin’s house, the location
where the drugs were found. Cf. United States v. Onick, 889 F.2d
1425 (5th Cir. 1989) (intent to distribute inferred even though
amount of drugs was small due to the presence of drug distribution
paraphernalia). Drawing all inferences in favor of the guilty
verdict, a reasonable juror could find that Martin possessed the
two rocks of crack with the intent to distribute them. Therefore,
the evidence is sufficient to support Payne’s and Martin’s
convictions.
Distribution of Crack -- Martin
Martin maintains that the evidence is insufficient to support
his conviction on the four counts of distribution of crack. These
counts stem from the four drug buys which the undercover agent made
from Payne. As discussed above, the evidence is sufficient to find
that Martin and Payne were co-conspirators. Payne’s sale of crack
4
Two rocks of crack is certainly consistent with personal
use. See, e.g., United States v. Gibbs, 904 F.2d 52, 58-59 (D.C.
Cir. 1990) (15.5 grams of cocaine consistent with personal use).
10
to the undercover agent was in furtherance of the conspiracy. In
addition, Martin was present during at least two of these sales
and, at Payne’s direction, retrieved the crack from his house.
Thus, the evidence is sufficient to support Martin’s conviction on
four counts of distribution of crack.
Possession of Firearm -- Payne and Martin
Payne and Martin challenge their convictions for possession of
a firearm in relation to a drug-trafficking crime, 18 U.S.C. §
924(c). The government concedes that in light of Bailey v. United
States, 116 S. Ct 501 (1995), their convictions cannot stand.
Accordingly, the two § 924(c) convictions are reversed and the
consecutive sentences of 60 months each to Payne and Martin are
vacated.
Conspiracy -- Timothy Rigmaiden
Timothy Rigmaiden claims that there is a variance between the
indictment and the evidence at trial. He contends that the
indictment alleges one large conspiracy, while at trial the
evidence showed several smaller conspiracies. He argues that there
is no evidence linking him to Lutcher and that conspiracy. Timothy
11
points out that the alleged conspiracy fits neither within the
“wheel”5 nor “chain”6 theory of conspiracies.
To prevail on a variance claim a defendant must show (1) a
variance between the evidence at trial and the indictment and (2)
that his substantial rights were prejudiced. United States v.
Gaytan, 74 F.3d 545, 552 (5th Cir.), cert. denied, 64 U.S.L.W.
(1996). Timothy Rigmaiden fails on the first prong of his variance
claim because the evidence at trial did not vary from the
indictment. The evidence at trial showed only one conspiracy.
Timothy may be correct that the conspiracy in this case does
not fit neatly into either the wheel or chain theory. He obtains
no relief from that fact, however, because our Circuit has rejected
such artificial categories in analyzing conspiracies.7 As Judge
Brown said over 20 years ago, “[c]onspiracies are as complex as the
versatility of human nature and federal protection against them is
not to be measured by spokes, hubs, wheels, rims, chains or any one
or all of today’s galaxy of mechanical molecular or atomic forces.”
United States v. Perez, 489 F.2d 51, 59 n.11 (5th Cir. 1973).
5
Kotteakos v. United States, 328 U.S. 750 (1946). A wheel
conspiracy involves a central “hub” figure, whose associates are
the “spokes.” The spokes know that they are working for the hub.
6
Blumenthal v. United States, 332 U.S. 539 (1947). In a
chain conspiracy, several “links” lead linearly from a source.
Each link may not know the entire chain, but the links eventually
lead back to the source.
7
"Finding that they impede rather than facilitate analysis
of the ‘single conspiracy-multiple conspiracy’ issue, we eschew
utilization of figurative analogies such as ‘wheels,’ ‘rims’ and
‘hubs,’ which are often used to describe the nature of complex
conspiracies.” United States v. Morris, 46 F.3d 410, 415 n.2 (5th
Cir.), cert. denied, 115 S. Ct. 2595 (1995).
12
In reviewing a variance claim, we have said that:
We must affirm the jury’s finding that the
government proved a single conspiracy unless the
evidence and all reasonable inferences, examined in
the light most favorable to the government, would
preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt.
United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989).
“Among the factors to be considered in determining whether a single
conspiracy was proven by the government are (1) the existence of a
common goal, (2) the nature of the scheme, and (3) whether the
participants overlapped.” Gaytan, 74 F.3d at 552.
There was a common goal in this case. Timothy Rigmaiden,
Frederick Captain (“Captain”), and Lutcher shared the common goal
of selling crack in Mossville.
In determining the nature of the scheme, we inquire as to
whether “the activities of one aspect of the scheme are necessary
or advantageous to the success of another aspect or to the overall
success of the venture. . . .” Morris, 46 F.3d at 416. Here,
Lutcher was the leader of the conspiracy, the man who supplied the
crack. He sold crack to Captain, who, along with Timothy, sold to
users in Mossville. The success of each party was essential to the
success of the overall venture. If Lutcher delivered no crack to
Captain, then he and Timothy could not sell. Likewise, if Captain
and Timothy did not sell crack, Lutcher would not have a
distribution system.
Finally, there were overlapping participants in the various
dealings. Lutcher sold to Captain who worked with Timothy. There
is no evidence that Timothy personally had dealings with Lutcher.
13
Indeed, they may never have met. Nonetheless, to establish an
overlap, “[t]he government does not have to establish that the
sellers and purchases knew each other or knew what each was doing.”
Morris, 46 F.3d at 416.
The jury could have found that there was only one conspiracy.
Therefore, there is no variance between the indictment and the
proof at trial.
Impeachment of Contract Agent -- Timothy Rigmaiden
At trial, Timothy Rigmaiden attempted to impeach the contract
agent, Zavier Lewis, by inquiring as to whether Lewis had been
arrested for distribution of cocaine shortly before becoming a
contract agent. The district court refused to allow this line of
questioning, saying that Timothy could not impeach a witness with
arrests for which that witness was not convicted. Timothy made an
offer of proof, stating that he was not offering the testimony as
evidence of the contract agent’s character, but rather, as evidence
of his motive to work for law enforcement.8 Specifically, Timothy
wanted to show that because of his arrest, Lewis had a motive to
cooperate with the police.
8
Federal Rule of Evidence 404(b) provides that while
“evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person . . . it may, however, be
admissible for other purposes such as proof of motive. . . .”
14
Timothy contends that the district court’s refusal to allow
this questioning violated his Sixth Amendment right to confront
witnesses. Restrictions on the scope of cross-examination rest
within the sound discretion of the trial judge and those
restrictions are reviewed for abuse of discretion. United States
v. Campbell, 49 F.3d 1079, 1085 (5th Cir.), cert. denied, 116 S.
Ct. 201 (1995). The Sixth Amendment does not guarantee the right
to unlimited cross examination. United States v. Wallace, 32 F.3d
921, 926 (5th Cir. 1994). In determining whether the district
court abused its discretion, “the relevant inquiry is whether the
jury had sufficient information to appraise the bias and motives of
the witness.” United States v. Tansley, 986 F.2d 880, 886 (5th
Cir. 1993).
Even if the district court abused its discretion by not
allowing the cross-examination of Lewis, the error was harmless,
and thus does not require reversal. Fed. R. Crim. P. 52(a) (“Any
error . . . which does not affect substantial rights shall be
disregarded.”). Timothy was given the opportunity to, and did,
cross-examine Lewis at length regarding Lewis’ bias towards him.
Timothy adduced evidence that he had often beat up Lewis when they
were younger. Lewis admitted that even years later he still was
troubled by those beatings.
Lewis was the only witness who testified that Timothy sold the
drugs. Timothy’s theory is that because of his biases and
motivations, Lewis had reason to say it was Timothy who sold the
drugs, when in reality it was another. The evidence of the drug
15
conviction did not give Lewis a reason to lie about Timothy,
though; it only gave him a reason to cooperate with the police. If
Lewis had a reason to lie about Timothy, it was because of the
beatings, of which the jury heard ample evidence. Even after
considering this evidence of bias, the jury still credited Lewis’
testimony and found Timothy guilty. Therefore, Timothy’s
substantial rights were not affected. United States v. Hamilton,
48 F.3d 149, 155 (5th Cir. 1995) (“[S]o much additional impeachment
evidence was admitted in this case that further impeachment of [the
witness] with the pending . . . charges could not have affected the
trial so as to prejudice [the defendant’s] substantial rights.”);
see also United States v. Livingston, 816 F.2d 184, 191 (5th Cir.
1987).
Acceptance of Responsibility -- Timothy Rigmaiden
Timothy argues that the district court erred in not reducing
his sentence because he accepted responsibility. U.S.S.G. § 3E1.1.
He contends that the district court refused to grant him the
reduction because he exercised his right to trial.
The district court found that there was no evidence that
Timothy accepted responsibility. “Whether a defendant has accepted
responsibility for a crime is a factual question and the standard
of review is even more deferential than clear error.” United
16
States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). The district
court did not err in its determination that Timothy was not
entitled to a § 3E1.1 reduction.9
Habeas Corpus -- Frederick Captain
Frederick Captain appeals the district court’s denial of his
habeas corpus petition. 28 U.S.C. § 2255. Captain’s § 2255 motion
is based on two grounds: (1) the district court erred in its
application of the sentencing guidelines and (2) his trial counsel
was ineffective.
Captain argues that the district court improperly applied the
sentencing guidelines because he was not given a reduction for
acceptance of responsibility and the amount of drugs attributed to
him was too large. The district court correctly held that
Captain’s claims that the guidelines were improperly applied are
not cognizable under § 2255:
Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a
narrow range of injuries that would not have been
raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice. Non-
constitutional claims that could have been raised
on direct appeal but were not may not be asserted
in a collateral proceeding. [Captain] was
sentenced within the guideline range and did not
appeal the sentence. A district court’s technical
application of the Guidelines does not give rise to
a constitutional issue.
9
We have held that § 3E1.1 does not violate the Sixth
Amendment. United States v. White, 869 F.2d 822, 826 (5th Cir.),
cert. denied, 490 U.S. 1112 (1989).
17
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)
(internal citations omitted).
To prevail on a claim of ineffective assistance of counsel, a
petitioner must show that: (1) his counsel’s actions fell below an
objective standard of reasonableness and (2) the ineffective
assistance of counsel prejudiced him. Strickland v. Washington,
466 U.S. 669 (1984); Bryant v. Scott, 28 F.3d 1411, 1414 (5th Cir.
1994). We review counsel’s conduct with great deference, “strongly
presuming that counsel has exercised reasonable professional
judgment.” Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir.
1986), cert. denied, 479 U.S. 1030 (1987). In the context of a
guilty plea, prejudice is present if there is reasonable
probability that absent counsel’s errors the defendant would not
have entered a guilty plea and would have insisted on a trial.
Mangum v. Hargett, 67 F.3d 80 (5th Cir. 1995), cert. denied, 116 S.
Ct. 957 (1996). Given the much greater sentence that Captain would
have received had he been convicted at trial, it is unlikely that
absent any errors by his counsel he would have proceeded to trial.
Captain also argues that his counsel was ineffective because
he failed to object at sentencing. A failure to object, however,
does not establish a claim of ineffectiveness of counsel. United
States v. Kaufman, 858 F.2d 994, 1006 (5th Cir. 1988), cert.
denied, 493 U.S. 895 (1989). Captain also contends that his
counsel was ineffective because counsel did not advise him to
appeal his sentence. Reviewing the record and the briefs, we agree
with the district court that Captain did not carry his burden of
18
showing that his counsel’s representation was unreasonable and that
he was prejudiced. The district court did not err in denying
Captain’s § 2255 motion.
CONCLUSION
The firearms convictions of Payne and Martin under 18 U.S.C.
§ 924(c) are REVERSED pursuant to Bailey v. United States, 116. S.
Ct. 501 (1995), and their respective sentences of 60 months are
VACATED. The judgments of the district court are AFFIRMED in all
other respects.
19