IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50754
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN KEITH SPRATT; LEONARD EARL DAVIS,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
(W-96-CR-89-5)
_________________________________________________________________
June 9, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Defendants-appellants Brian Keith Spratt and Leonard Earl
Davis appeal their convictions and sentences for conspiracy to
possess with intent to distribute cocaine and attempted possession
with intent to distribute cocaine pursuant to 21 U.S.C. §§
841(a)(1) and 846. We affirm.
Davis and Spratt argue that there was insufficient evidence of
an agreement between them or anyone else to possess with intent to
distribute cocaine. The evidence is sufficient to show, beyond a
reasonable doubt, that Davis and Spratt had an agreement to possess
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
with intent to distribute the cocaine. See United States v.
Bermea, 30 F.3d 1539, 1551-52 (5th Cir. 1994). Any testimony by
Davis to the contrary (i.e., that he did not make an agreement with
Alvarado or that Spratt did not say anything) is an issue of fact
to be decided exclusively by the jury based upon the credibility of
the witnesses. Such testimony does not create an issue as to the
sufficiency of the evidence. See United States v. Garcia, 995 F.2d
556, 561 (5th Cir. 1993). Spratt’s statement to Alvarado about
“rocking up” the cocaine makes it clear that he and Davis had
agreed to obtain the cocaine and turn it into crack for
distribution.
Davis and Spratt argue that the evidence is insufficient to
show beyond a reasonable doubt that they attempted to possess with
intent to distribute the cocaine. Spratt and Davis traveled to the
Fandango bar carrying almost $18,000, participated in negotiations
for the purchase of a kilogram of cocaine for $18,500, promised
that they could quickly obtain more money to buy two more kilograms
of cocaine if the first one was good, and were walking out to
Alvarado’s vehicle to take possession of the cocaine to determine
its quality when they were arrested. All that remained was for
them actually to take possession. The evidence was sufficient to
show that Spratt and Davis intended and had taken a substantial
step toward the commission of the crime of possession with intent
to distribute cocaine. See United States v. August, 835 F.2d 76,
78 (5th Cir. 1987).
Davis and Spratt argue that the trial court erred in
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instructing the jury on constructive possession. The instruction
did not result in reversible error because it was at worst
surplusage. It posed no danger of misleading the jury to convict
on a theory not supported by the evidence. United States v.
Kington, 875 F.2d 1091, 1098 (5th Cir. 1989).
Davis argues that the trial court erred in overruling his
objections to the court’s failure to give a jury instruction on the
law of the defense of entrapment. Upon review of the entire
record, Davis has failed to show lack of predisposition or
government inducement. The district court did not abuse its
discretion in not giving the instruction. See United States v.
Branch, 91 F.3d 699, 712-13 (5th Cir. 1996), cert. denied sub nom.,
117 S. Ct. 1466 (1997), and cert. denied, 117 S. Ct. 1467 (1997);
United States v. Ivey, 949 F.2d 759, 768-69 (5th Cir. 1991).
Davis argues that the district court erred in overruling his
objections to evidence that he did not have a sales permit and that
the cellular telephone was a clone. Davis’s defense was based in
part upon his assertion that he was in the business of buying junk
cars, repairing them, and reselling them, which he offered as his
explanation of why he was carrying such a large amount of cash.
Whether he had a permit to do so is relevant to the credibility of
his asserted defense. Regarding the cellular telephone, the trial
court gave a limiting instruction that the telephone evidence was
being offered to show what phone numbers were called from that
telephone and that the jury should not consider whether the
telephone was stolen. After a review of the record and the
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district court’s instructions to the jury during the trial and
before deliberations, we find that the district court did not abuse
its discretion in admitting either type of evidence or in denying
a mistrial. See United States v. Coleman, 78 F.3d 154, 156-57 (5th
Cir.), cert. denied, 117 S. Ct. 230 (1996); United States v.
Limones, 8 F.3d 1004, 1007-08 (5th Cir. 1993).
Davis and Spratt argue that the district court erred in basing
their sentences on three kilograms of powder cocaine instead of one
kilogram. Davis told Alvarado that he had brought money for only
one kilogram of cocaine, but that if the cocaine was good, he could
get the money to purchase the additional two kilograms within an
hour. “That the agreement was subject to a condition does not make
it any less an agreement.” United States v. Grassi, 616 F.2d 1295,
1302 (5th Cir. 1980). The district court did not clearly err in
sentencing Davis and Spratt based upon three kilograms of powder
cocaine. See United States v. Mergerson, 4 F.3d 337, 345-46 (5th
Cir. 1993).
Spratt argues that the district court erred in failing to
grant his request for a two-level adjustment for a minor role in
the offense. Spratt was going to take part in converting the
powder cocaine into crack to determine its quality, which was a
central part of the conspiracy. The district court did not clearly
err in denying the adjustment. See United States v. Mitchell, 31
F.3d 271, 278-79 (5th Cir. 1994).
AFFIRMED.
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