F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 26 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
CLAYTON SHANNON FANCHER,
Petitioner-Appellant,
No. 98-6296
v. (D.C. CIV-98-496-L)
(Western District of Oklahoma)
LENORA JORDAN,
Respondent-Appellee.
ORDER AND JUDGMENT*
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
Petitioner-appellant Clayton Fancher was convicted after a jury trial in the District
Court of Oklahoma County, Oklahoma, of conspiring to traffic methamphetamine and
trafficking methamphetamine. The Oklahoma County District Court sentenced him to
two concurrent 27 ½ year sentences. After the Oklahoma Court of Criminal Appeals
affirmed his conviction and sentence, Mr. Fancher filed a petition for a writ of habeas
corpus in the United States District Court for the Western District of Oklahoma pursuant
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
to 28 U.S.C. § 2254.
In his federal habeas petition, Mr. Fancher asserted the following claims: (1) that
the conspiracy conviction should be vacated because the information failed to allege that
he committed an overt act in furtherance of the conspiracy; (2) that there was insufficient
evidence to support the conspiracy charge because the prosecution failed to prove that
there was any agreement to traffic methamphetamine; (3) that there was insufficient
evidence to support the substantive count of trafficking methamphetamine because
accomplice testimony was not corroborated; and (4) that there was insufficient evidence
to support the substantive methamphetamine count because the state failed to prove that
the substance Mr. Fancher sold was methamphetamine.
The district court rejected all of these claims, see Rec. docs. 14, 17, and denied Mr.
Fancher’s application for a certificate of appealability, see id. doc. 22. Mr. Fancher now
seeks to appeal the district court’s ruling on his fourth claim, arguing that the court erred
in concluding that there was sufficient evidence to prove that the substance in question
was methamphetamine.1
In order to support a conviction for drug possession, the state need not present
direct evidence. United States v. Baggett, 890 F.2d 1095, 1096 (10th Cir. 1989).
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
2
However, when “the Government fails to seize and analyze the chemical composition of
the alleged narcotic substance, there must be enough circumstantial evidence to support
an inference that the defendant actually did possess the drugs in question.” Id. This
circumstantial evidence may include:
“evidence of the physical appearance of the substance . . . ,
evidence that the substance produced the expected effects
when sampled by someone familiar with the illicit drug,
testimony that a high price was paid in cash for the substance,
evidence that transactions involving the substance were
carried on with secrecy or deviousness, and evidence that the
substance was called by the name of the illegal narcotic by the
defendant or others in [her] presence.”
Id. (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1984)).
In this case, the respondent has acknowledged that the prosecution did not
introduce direct evidence at trial regarding the chemical composition of the substance
distributed by Mr. Fancher in December 1989. However, the respondent has identified
circumstantial evidence supporting the inference that the substance in question was
methamphetamine. In particular, a government informant testified that he was familiar
with the effects of methamphetamine, that he used the substance involved in the
December transaction, and that the substance affected him in a way that he associated
with methamphetamine. Additionally, the state presented evidence that Mr. Fancher
resold a large quantity of the substance to a buyer at a price commensurate with the price
offered for methamphetamine and that the buyer never questioned the identity of the
substance. We agree with the magistrate judge and the district court that this
3
circumstantial evidence is constitutionally sufficient to support Mr. Fancher’s conviction
for trafficking in methamphetamine.
Accordingly, we deny Mr. Fancher’s application for a certificate of appealability
and dismiss this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
4