UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-50248
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
ANTHONY LAMONE MISHER, RICKY E. LEVI,
RODNEY EARL HESLIP, and KEITH O. COBB
Defendants-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
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October 30, 1996
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
This appeal arises from a drug conspiracy which operated in
Waco, Texas, from 1989 to 1993. All the appellants were convicted
and sentenced on indictments arising from this conspiracy. More
specifically, all the appellants were convicted for conspiring to
possess and distribute cocaine in and about the Waco area.
Additionally, appellants Cobb and Levi were also convicted for
conspiring to launder money from the proceeds they received out of
the drug conspiracy. All the appellants challenge both their
convictions and their sentences.
I. Facts and Summary of Proceedings
In January 1994, a federal grand jury, sitting in the Waco
Division of the Western District of Texas, filed the second
superseding indictment (“the indictment”) involved in the instant
case. Count one of the indictment charged Appellants Anthony
Lamone Misher, Ricky E. Levi, Rodney Earl Heslip, and Keith O.
Cobb, as well as Clemond E. Busby, and Gerald D. Hicks, Jr.1 and
others known and unknown to the Grand Jury, with conspiring to
possess cocaine with the intent to distribute it, in violation of
21 U.S.C. § 846, and actually distributing it, in violation of 21
U.S.C. § 841(a)(1). Count two charged Appellant Cobb and Natalie
Annique Bradshaw2 with conspiring to launder money by using funds
they knew to be the proceeds of illicit drug trafficking to
purchase a 1984 Jaguar in such a way as to disguise the nature,
location, source, ownership, and control of the drug proceeds, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i). In Count Three of the
indictment, the grand jury charged Appellant Levi and Gerald D.
Hicks, Jr.3, with laundering money in the same fashion as Appellant
Cobb had been charged in Count Two. A jury convicted all the
appellants as charged in their indictments.
The district court sentenced Misher to serve 360 months in
1
Neither Busby nor Hicks is a party to this appeal. Hicks
pled guilty to Count Three of the indictment and Busby pled guilty
to Count Four. They testified for the government at trial.
2
Bradshaw is not a party to this appeal.
3
See note 1, supra.
2
prison and four years of supervised release. It also ordered him
to pay a $50 special assessment and a $3,000 fine.
The district court sentenced Levi to serve 300 months in
prison and five years on supervised release on Count One of the
indictment; he was sentenced to 240 months in prison and three
years of supervised release on Count Three. The court ordered the
sentences on Count Three to be served concurrent to those on Count
One. It also imposed a $100 special assessment and a $3,000 fine.
Heslip was ordered to serve a 120-month imprisonment term
followed by five years of supervised release for his conviction on
Count One of the indictment. The court imposed a $50 special
assessment and a $2,000 fine, as well.
Cobb was sentenced to 400 months in prison and five years of
supervised release on Count One; he was ordered to serve 360 months
in prison and three years of supervised release on Count Two. The
court ordered the terms to be served concurrent to each other. It
also ordered Cobb to pay a $100 special assessment and a $10,000
fine.
Cobb was the hub of a drug conspiracy which included all of
the appellants. He established his drug trade in Waco and competed
for business with another drug dealer by the name of Keith Dancer.
Cobb and Dancer were the “two top-notch drug dealers” in Waco.
Misher sold cocaine for Cobb and was present three or four
times when Cobb sold cocaine to others. In fact, Misher and Cobb
sold cocaine as a team. At one point in time, Cobb gave Misher a
Cadillac.
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Levi and Cobb also dealt cocaine together. Cobb sold cocaine
in the presence of Levi; Levi received cocaine from Cobb; Cobb
taught a witness how to manufacture crack cocaine in Levi’s
kitchen; Levi went so far as to tell a witness that he and Cobb had
a bunch of crack houses in Waco.
Heslip sold cocaine as well. He was also associated with
Cobb, both directly and indirectly. Indirectly, Heslip worked for
Cobb. This is evidenced by the fact that Heslip was driving a car
from which Misher sold three ounces of cocaine and was fully aware
of this transaction. Directly, his relationship went beyond drug
trafficking. Heslip was Cobb’s half-brother.
II. Discussion
A. Sufficiency of the evidence
1. Standard of review
A conviction must be allowed to stand if, after viewing the
evidence in the light most favorable to the prosecution, the
reviewing court finds that a rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 309; 99 S.Ct. 278
(1979).
2. Rodney Earl Heslip
Heslip challenges the sufficiency of the evidence to support
his conviction on Count One: Conspiracy to possess and distribute
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cocaine and distributing cocaine.
In order to sustain appellant’s convictions for a drug
conspiracy, the evidence must establish beyond a reasonable doubt
that: (1) there existed an agreement between two or more persons
to violate narcotics laws; (2) the appellant had knowledge of the
agreement; and (3) he voluntarily participated in it. United
States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996). Merely
placing a defendant in a “climate of activity that reeks of
something foul” is not enough to support a conspiracy conviction.
United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995) (quoting
United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)).
Nevertheless, a jury may infer each element of a conspiracy from
circumstantial evidence: “an agreement to violate narcotics laws
may be inferred from concert of action.” United States v.
Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert. denied, 114
S.Ct. 2150 (1994). In fact, a defendant need only have a minor
role in the conspiracy once it is shown that he voluntarily agreed
to participate. United States v. Castillo, 77 F.3d 1480, 1493 (5th
Cir. 1996), cert. denied, ___ S.Ct. ___, 1996 WL 442629. His
presence and association with other members of a conspiracy, when
supported by other evidence, may be used to support the finding of
a conspiracy. United States v. Casilla, 20 F.3d 600, 603 (5th
Cir.), cert. denied, 115 S.Ct. 240 (1994); Cardenas, 9 F.3d at
1157.
As mentioned above, the government showed that Heslip sold
cocaine. (13 R. 907). Two individuals, Luis Sais and Clemond
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Busby, testified that they purchased drugs from Heslip. More
specifically, Busby testified that he purchased “six or seven
rocks” from Heslip. (11 R. 533-534). Sais also bought crack
cocaine from Heslip. (12 R. 726). Furthermore, Heslip was driving
his car from which he knew Misher was selling cocaine. (13 R. 906-
907). In searching Heslip’s car, the phone number to a pager owned
by Cobb was found by the police. (10 R. 153; 14 R. 1329). Several
receipts and documents belonging to Cobb were also found in
Heslip’s possession. (11 R. 236-249). During the execution of a
search warrant at Heslip’s residence, the police found and seized
a .22 caliber Marlin rifle (11 R. 263), cocaine-cutting
paraphernalia (11 R. 264), a shotgun (11 R. 266), and other
traditional crack-manufacturing supplies (11 R. 266-267).
As Cobb is Heslip’s half-brother, the probative value of this
evidence concerned us at first glance. However, after reviewing
the record, reading the briefs, and listening to appellant’s
argument, we find that the jury was presented with more than
sufficient evidence so that a rational trier of fact could have
found the essential elements of his conviction beyond a reasonable
doubt.
2. Misher, Levi, and Cobb - Conspiracy
The remaining three appellants also contend that the
evidence presented at trial was insufficient to uphold their
conspiracy convictions. However, the record is replete with
evidence as to Misher, Levi, and Cobb’s conspiracy and distribution
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convictions. Given the standard of review as dictated above, the
case law behind conspiracy to possess and distribute and
distributing cocaine, and a thorough review of the record,
appellants’ arguments and briefs, we must uphold the lower court’s
conspiracy convictions of these three defendants as charged.
3. Levi and Cobb - Money Laundering
To obtain a conviction for money laundering, the government
must show that a defendant: (1) knowingly conducted a financial
transaction; (2) that involved the proceeds of an unlawful
activity; (3) knowing that the transaction was in whole or in part
to conceal the nature, the location, the source, the ownership, or
the control of the proceeds of an unlawful activity. 18 U.S.C. §
1956(a)(1)(B)(1).
The grand jury indicted Cobb for purchasing a 1984 Jaguar in
violation of 18 U.S.C. § 1956. In support of this indictment the
government presented evidence to show that Cobb had purchased the
automobile for $14,500 in cash. (13 R. 1181). In fact, Cobb came
in to the dealership carrying the money in a small suit case. (13
R. 1181). The money which he purchased the car with consisted
mainly of small bills, including ones, fives, tens, and twenties.
(13 R. 1182). Furthermore, the name put on the car’s title was
fictitious. (13 R. 1183-1186). Although the government did not
show that the money came from drug trafficking, it did present
evidence as to Cobb’s dealings in narcotics. It also introduced
evidence that all of these practices are common methods of
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operation for drug dealers. (10 R. 52-54). From this, a
reasonable juror could conclude that the car was bought with
proceeds from drug sales and the car was paid for in cash to
conceal the source of those funds.
Levi was also convicted of laundering money by purchasing a
1964 Chevrolet pick-up truck with proceeds from drug sales. He
also purchased this truck with bills of small denominations, tens
and twenties. (11 R. 378-379). Levi contends that Hicks was the
only witness who presented evidence that Levi had bought the Chevy
pick-up, and that all other evidence indicated that the car was
actually purchased by Hicks. (11 R. 377-379). Nevertheless, it is
the jury’s job to assess the credibility of the witnesses. United
States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995). Moreover, the
truck was found in Levi’s garage during a search of his residence.
We find that a reasonable juror could find that Hicks’ testimony
and the location of the truck were sufficient evidence to determine
that the truck belonged to Levi. Similarly, the same jurors could
find that this purchase came from drug proceeds and it was paid for
in cash in order to conceal the source of those funds.
B. Procedure and Evidence
1. Misher - Combining drug conspiracy count with money laundering
count
Misher, who was only indicted under count one, conspiracy to
distribute cocaine, contends that he was prejudiced by the district
court's failure to sever the drug conspiracy count from the two
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money laundering counts. Because Misher did not move for severance
or object at trial to the joinder of the defendants, this court
must apply the plain error standard. United States v. Carreon, 11
F.3d 1225, 1240 (5th Cir. 1994). Under plain error review, the
petitioner must show that: (1) error occurred; (2) the error was
clear or obvious; and (3) the error affected the petitioner's
substantial rights. United States v. Upton, 91 F.3d 677, 686 (5th
Cir. 1996); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994)(en banc)(citing United States v. Olano, 507 U.S. 725,
730-37 (1993)), cert. denied, 115 S.Ct. 1266 (1995). We have noted
that the Supreme Court has added what amounts to be a fourth
factor: a reviewing court "need not exercise its discretion to
correct the error unless it seriously affects the fairness,
integrity, or public reputation of judicial proceedings." Upton,
91 F.3d at 686; Jobe, 77 F.3d at 1476.
Misher claims that because much of the evidence introduced
would not have been admissible against him in a separate trial, he
has been deprived of a fair trial. Nevertheless, the district
court gave proper jury instructions, clearly noting that each count
was to be considered separately, that the case of each defendant
should be considered individually, and that the verdict of one
defendant does not affect the guilt of the others. (16 R. 1934).
In conspiracy cases, the general rule is that persons indicted
together should be tried together. A defendant can only obtain a
reversal for failure to sever if he can demonstrate "compelling
prejudice against which the trial court was unable to afford
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protection." United States v. Fields, 72 F.3d 1200, 1215 (5th
Cir.)(quoting United States v. Pofahl, 990 F.2d 1456, 1483 (5th
Cir.), cert. denied, 510 U.S. 898(1993)), cert. denied, ___ S.Ct.
___, 1996 WL 183444 (1996). Here, the cautionary instructions were
sufficient to protect the appellant from prejudice.
Misher also notes that while the verdict form did have a
separate guilty or not guilty answer blank for each of the
substantive counts, it did not contain a separate answer blank
concerning whether the conspiracy charge was proved. (2 R. 330).
While a separate blank for the conspiracy charge may have been of
some value, it is not mandated. United States v. Sherrod, 964 F.2d
1501, 1514 & n.30 (5th Cir. 1992)(noting that a verdict form that
had an answer blank as to whether the conspiracy charged was proved
beyond a reasonable doubt to have existed helped to clarify jury's
role), cert. denied, 507 U.S. 975 (1993). Therefore, the district
court did not commit plain error by joining the drug conspiracy
count with the money laundering count.
2. Cobb and Heslip - refusal to introduce affidavit and permit
cross-examination
During the trial, defense counsel for Cobb attempted to
introduce an affidavit that was submitted in support of the search
warrants used in this case. The lower court sustained the
prosecution's objection to the relevancy of the affidavit.
Heslip's attorney attempted to cross-examine the affiant,
Detective Moore, about statements made in the affidavit. The court
10
sustained the prosecution's objection to the relevancy of the
testimony. Heslip's defense counsel wished to introduce evidence
that Moore listed the persons he believed to be part of the
conspiracy in the affidavit, but failed to include Heslip.
Cobb and Heslip contend that the affidavit should have been
admitted as a prior inconsistent statement, under Federal Rule of
Evidence 613(b). The government contends that the district court
did not abuse its discretion, because Moore's opinion regarding the
member of the conspiracy, as evidenced in the search warrant, has
little relevance to his opinion regarding the members of the
conspiracy at the trial that occurred one and one-half years after
the affidavit was prepared.
As contemporaneous objections were made to these rulings, we
will reverse only if the district court abused its discretion.
United States v. Martinez, 962 F.2d 1161, 1164 (5th Cir. 1992).
The district court acted within its discretion in concluding that
Moore's testimony was consistent with his affidavit, and,
therefore, the affidavit would not serve to impeach his testimony.
Moore had one and one-half years to change his opinion regarding
the scope of the conspiracy. There is no evidence that anything
contained in the affidavit directly contradicted Moore's testimony.
Therefore, the district court's ruling is not grounds for reversal.
3. Cobb and Levi - Admission of testimony regarding prior bad acts
The trial court allowed Eric Anzaldua to testify that he had
sold significant quantities of marijuana to Cobb and Levi. Defense
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counsel failed to object to the testimony. Therefore, the district
court's ruling is only reviewed for plain error.
We apply a two-pronged test to determine the admissibility of
evidence under Fed. R. Evid. 404(b). First, the evidence must be
relevant to an issue other than the defendant's character. Second,
the evidence must have probative value that is not substantially
outweighed by undue prejudice. See United States v. Beechum, 582
F.2d 898, 911 (1978)(en banc), cert. denied, 440 U.S. 920 (1979).
Evidence of other crimes is admissible to show "proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed. R. Evid.
404(b). A defendant places his intent in issue when he has pled
not guilty in a drug conspiracy case and, therefore, evidence of
past drug transactions can be used to establish criminal intent.
United States v. Wilwright, 56 F.3d 586, 589 (5th Cir.)(noting that
"it is settled in this Circuit that Rule 404(b) permits the
admission of other crime evidence when a defendant places his
intent at issue in a drug conspiracy case by pleading not guilty"),
cert. denied, 116 S.Ct. 345 (1995).
Step two of the test requires that the testimony not be unduly
prejudicial. We have held that under the Rules of Evidence, there
is a strong presumption that probative evidence should be admitted.
United States v. Leahy, 82 F.3d 624, 637 (5th Cir. 1996)(noting
that "while some danger of prejudice is always present, exclusion
of extrinsic evidence based on its prejudicial effect ‘should occur
only sparingly.’") (quoting United States v. Pace, 10 F.3d 1106,
12
1115 (5th Cir. 1993), cert. denied, 114 S.Ct. 2180 (1994)). Given
that the district court's ruling is only reviewed for plain error,
the appellants face a difficult burden. We have held that
admission of similar evidence was not erroneous, even under the
abuse of discretion standard. Wilwright, 56 F.3d 586 (holding that
evidence of defendant's participation in prior drug sales was not
unduly prejudicial); United States v. Bermea, 30 F.3d 1539, 1562
(5th Cir. 1994), cert. denied, 115 S.Ct. 1113 (1995)(noting that
the Fifth Circuit has "frequently held in drug offense cases that
evidence of a defendant's extrinsic drug offenses is admissible").
Therefore, admission of the evidence was not reversible error.
C. Sentences
1. Standard of review
We review the district court’s application of sentencing
guidelines de novo, and review the district court’s factual
findings for clear error, giving deference to the district court’s
application of the guidelines to the facts. United States v. West,
58 F.3d 133, 137 (5th Cir. 1995).
2. Cobb
Cobb’s main argument centers around the allegation that the
district court erred in its calculation of the amount of crack
cocaine to be used in determining Cobb’s sentence because it
miscounted the quantity of drugs involved in various drug
transactions.
13
The presentencing report attributed 1.325 kilograms of crack
cocaine to Cobb. 510.3 grams of this total weight were included
based on testimony given by Kenneth Cross. Cross testified that he
had sold Cobb 18 ounces of powder cocaine and that Cobb converted
one or two ounces of the powder cocaine to crack cocaine in an
effort to test and see if the powder cocaine produced a sufficient
amount of crack cocaine when converted. (12 R. 796-797). While
there is evidence from which the court could conclude that Cobb
eventually converted all of the powder to crack cocaine, there is
no evidence that the conversion would produce eighteen ounces of
crack. However, even if Cobb’s contentions are correct and the
510.3 grams of crack were eliminated from the quantity which the
district court calculated his sentence, his offense level would be
unchanged. Thus, although the error was clear, it was harmless.
3. Misher, Levi, Heslip, and Cobb
All of the appellants challenge the calculation of their
sentences for various reasons. However, after reviewing the record
in accordance with the standard of review, the sentencing
guidelines, each party’s briefs and arguments, we find that all the
sentences should stand. The only argument which merited discussion
was the above argument posed by Cobb.
III. Conclusion
Based on the foregoing, we AFFIRM the convictions and
sentences of all Appellants.
14
AFFIRMED.
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