UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-60269
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWON GARDNER; JOHN BRADLEY WARREN,
also known as Brad,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:98-CR-59-4-B-D)
_________________________________________________________________
___________________________
June 1, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Primarily at issue is the sufficiency of the evidence for the
drug conspiracy convictions of Antwon Gardner and John Bradley
Warren. We AFFIRM.
I.
In September 1998, a superseding indictment charged Appellants
and 12 others with 24 counts of federal drug trafficking
violations. Count One charged conspiracy to possess with intent to
distribute crack cocaine, from January 1994 through June 1998, in
1
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
violation of 21 U.S.C. § 846. The remaining counts charged varying
defendants with distribution of crack cocaine during the same
period, in violation of 21 U.S.C. § 841. In addition to the
conspiracy charge, Gardner and Warren were charged with one and
three counts, respectively, of aiding and abetting the distribution
of crack cocaine.
The other defendants pleaded guilty, including the kingpin,
Dorsey, who agreed to testify for the Government. (Dorsey received
a 20-year sentence, subject to a possible reduction for
“substantial assistance”, pursuant to United States Sentencing
Guidelines § 5K1.1.)
In January 1999, a jury found Appellants guilty on all counts.
Gardner, classified as a career offender, was sentenced to 360
months imprisonment; Warren, with a lower criminal history
category, to 262 months.
II.
Appellants contest the sufficiency of the evidence for their
convictions, the district court’s ruling the Government did not
violate Brady v. Maryland, 373 U.S. 83 (1963), and the amount of
drugs attributed to them for sentencing purposes.
A.
For their conspiracy convictions, pursuant to FED. R. CRIM. P.
29 and as required for our usual standard of review for a
sufficiency challenge, Gardner and Warren moved for judgment of
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acquittal at the close of the Government’s evidence, and renewed
the motions post-trial. Accordingly, the evidence is sufficient
if, examined in the light most favorable to the jury verdict, “a
rational trier of fact could have found ... guilt beyond a
reasonable doubt”. United States v. Martinez, 190 F.3d 673, 676
(5th Cir. 1999) (citation omitted).
For his distribution conviction, Gardner’s post-trial Rule 29
motion is minimal, to say the least. However, we will, dubitante,
review it under our usual standard. But, because Warren did not
make the requisite Rule 29 motion for his distribution convictions,
our review is confined to whether “the record is devoid of evidence
pointing to guilt, or ... the evidence on a key element of the
offense [is] so tenuous that a conviction would be shocking”.
United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en
banc)(internal quotation marks and citation omitted).2
2
Of course, we, not the parties, determine our standard of
review. Nevertheless, we expect the parties, especially the
Government, to state the correct standard. They did not do so for
the distribution convictions.
3
1.
Appellants insist the Government offered no evidence they and
any alleged co-conspirator pooled resources, shared profits, or
engaged in joint activity indicating their participation in the
conspiracy. At most, according to Appellants, they merely had a
buyer-seller relationship with Dorsey, the kingpin.
For a drug trafficking conspiracy, the Government must prove,
beyond a reasonable doubt, an agreement between two or more persons
to violate the narcotics laws; knowledge of the agreement;
intention to participate in it; and actual participation. See,
e.g., United States v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993).
“The jury may infer any element ... from circumstantial evidence”,
United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989), such
as “a combination of close relationships or knowing presence”.
United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998).
Knowledge and participation can be inferred from “a single act”.
Maseratti, 1 F.3d at 338. And, although a buyer-seller
relationship, by itself, is not sufficient proof of a conspiracy,
“evidence of such activity goes to whether the defendant intended
to join” it. Id. at 336.
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a.
(1)
While the evidence established that Gardner’s brother, Zeb
Gardner, was Dorsey’s “partner”, Barbara Cowan testified that,
when, to procure crack, Dorsey’s girlfriend contacted Zeb Gardner
on Cowan’s behalf, Zeb Gardner “sent” Appellant Gardner, who sold
Cowan 1/16th of an ounce. And, Dorsey testified that: he
regularly sold cocaine to Gardner; he sold it to him at a cheaper
price; he and Zeb Gardner “fronted” Gardner (usually this means
supplied drugs on consignment, see United States v. Alfaro, 919
F.2d 962, 963 n.1 (5th Cir. 1990); but, Dorsey testified he did not
expect to be repaid); and, around Christmas 1996 or 1997, they
“gave” Gardner two ounces of crack cocaine, worth about $4,000, so
he could sell it and buy Christmas gifts for his children.
This evidence was sufficient for the jury to conclude that
Gardner’s relationship with Dorsey was not simply one of buyer-
seller, but that, instead, he “knew of and agreed to the overall
objective of the conspiracy”. United States v. Posado-Rios, 158
F.3d 832, 860 (5th Cir. 1998). See, e.g., United States v.
Freeman, 164 F.3d 243, 247 (5th Cir. 1999) (mother’s
unquestioningly accepting package (containing crack) for her son
from stranger, presence of crack in clear plastic bag in dining
room hutch, and crack, money, weapons and scales in garage, was
sufficient evidence to support her conspiracy conviction).
5
(2)
Concerning Warren, Cowan testified she saw Dorsey and Warren
cutting up crack cocaine, packaging it, and counting money. Dorsey
testified Warren went with him to Memphis to secure 18 ounces of
cocaine from Dorsey’s supplier, and then to Zeb Gardner’s Memphis
apartment, where Dorsey “cooked” it into crack, and Warren helped
package it. In addition, Dorsey testified he made no profit from
his sales to Warren, charging him only the wholesale price; and he
and Warren, along with other co-conspirators, pooled money to
obtain a better deal. This evidence is more than sufficient to
show Warren knowingly and actively participated in the conspiracy.
b.
Regarding the conspiracy evidence, Appellants assert, for the
first time in their reply brief, that: the district court erred in
refusing to instruct the jury on the “buyer-seller defense”; and
there was an unconstitutional variance between the charged 14-
member conspiracy and the proof at trial.
Generally, we do not review issues not raised in an
appellant’s opening brief. See, e.g., Dufrene v. Browning-Ferris,
Inc., 207 F.3d 264, 268 (5th Cir. 2000). If we choose to review
the issues, our review, at most, would be limited to that for plain
error. In short, while not required to even review this issue,
we will examine it for plain error. Under that limited standard,
we will not exercise our discretion to correct an error unless it
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is “clear” or “obvious”, “affect[s] substantial rights”, and
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings”. See United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994) (en banc).
(1)
Appellants maintain the district court should have granted
their requested instruction explaining that a buyer-seller
relationship alone is insufficient for conspiracy. The court’s
conclusion that its conspiracy instruction covered the buyer-seller
defense was not plain error.
(2)
Likewise, Appellants have not shown plain error regarding the
claimed variance. See United States v. Morgan, 117 F.3d 849, 858-
59 (5th Cir. 1997) (where indictment alleges single conspiracy, but
evidence shows multiple conspiracies and defendant’s involvement in
at least one of them, there is no variance affecting defendant’s
substantial rights).
2.
Regarding their sufficiency challenges to their distribution
convictions, Appellants claim the evidence gives equal, or nearly
equal, support to a theory of innocence. As noted, for Gardner’s
one distribution conviction, we will apply the usual standard of
review, examining the evidence in the light most favorable to the
verdict, and “concentrate on whether the [jury] made a rational
7
decision to convict or acquit”. United States v. Jaramillo, 42
F.3d 920, 923 (5th Cir. 1995) (citation omitted). But, as
discussed, and because Warren failed to move for judgment of
acquittal on his three distribution convictions, the far more
narrow “no evidence” standard of review applies.
It goes without saying that the “jury is the arbiter of” a
witness’ credibility. United States v. Cravero, 530 F.2d 666, 670
(5th Cir. 1976). As hereinafter discussed, Appellants’ contentions
concern the jury’s credibility calls, and, therefore, fail.
a.
Gardner’s one distribution charge (aiding and abetting)
concerned his 11 December 1997 sale of 1/16th of an ounce of crack
cocaine to Mike Morrison, who solicited it on behalf of Mary
Stewart (informant) and Emily Vance (undercover Agent). A
defendant aids and abets by “sharing the requisite criminal intent”
to distribute drugs. Jaramillo, 42 F.3d at 923. Morrison pleaded
guilty to aiding and abetting the sale.
Gardner urges that: as a “hopeless drug addict”, Morrison’s
testimony concerning the circumstances of the sale is confusing and
contradictory; the testimony by Stewart and Vance demonstrates only
that they paid for and received drugs from Morrison, not Gardner;
and there was no direct evidence to corroborate Morrison’s
testimony that Gardner stored drugs in a hiding place at his home.
As discussed, this decision was for the jury.
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b.
Warren’s distribution charges concern his three sales to
Government informants. Barbara Cowan testified she bought $300
worth of crack from him on 15 March 1998; Stewart, $300 worth on 13
March and $400 worth on 8 April 1998.
Warren claims the testimony by Cowan, Stewart, and two Agents
who surveilled the sales was confusing and contradictory. He notes
the court allowed the jury to view (but not take to the jury room)
the transcript of a taped conversation between Stewart and Warren
during one of the sales, that was arguably inaccurate due to the
poor quality of the tape. Needless to say, the record is not
devoid of evidence supporting the conviction. In any event, again,
this decision was for the jury.
B.
Appellants contend the Government’s failure to notify them of
its motion to continue sentencing Morrison and Dorsey until after
trial was a Brady violation. Gardner maintains also that
Morrison’s testimony on this issue was misleading, in violation of
Napue v. Illinois, 360 U.S. 264, 269-70 (1959). Appellants’
motions for dismissal were denied.
Under Brady, due process is denied when the Government
withholds requested evidence, including impeachment evidence, that
is material and favorable to the accused. Thompson v. Cain, 161
F.3d 802, 806 (5th Cir. 1998) (citations omitted). See United
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States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is “material”
under Brady when there is “a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have
been different”. Allridge v. Scott, 41 F.3d 213, 217 (5th Cir.
1994). Likewise, under Napue, due process is violated when the
Government “knowingly uses perjured testimony at trial or allows
untrue testimony to go uncorrected”. Faulder v. Johnson, 81 F.3d
515, 519 (5th Cir. 1996).
The district court’s Brady and Napue rulings are reviewed de
novo. See Felder v. Johnson, 180 F.3d 206, 211 (5th Cir. 1999)
(Brady); United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.
1997) (Napue).
The issue of Morrison’s sentencing arose during his cross-
examination by Gardner’s attorney:
Q: It is the Government, the United States
Attorney that has to ask the Court for the
downward departure, isn’t it?
A: [Morrison] I have not been promised
anything.
....
Q: ... My question is that they told you,
you have to provide information to them that
they deem to be substantial assistance before
they will ask the Court to cut your sentence;
isn’t that correct?
A: To my knowledge.
Q: And you have not been sentenced in this
case yet, have you?
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A: No.
Q: Has ... the government agreed to delay
your sentencing until after you testify in
this case?
A: I don’t know. I cannot really say what –
[Government Prosecutor]: Objection, Your
Honor, I know [Gardner’s attorney] knows that
the timing of the sentence is entirely within
the discretion of the Court and we have
nothing to do with it.
THE COURT: Objection sustained. Of
course, the witness does not know about those
things anyway.
(Emphasis added.)
Gardner contends that, because the Government represented it
had “nothing to do with” the timing of Morrison’s sentencing (when,
in fact, it had filed a motion to delay), Gardner did not learn of
it until after the close of the evidence, and the jury was misled.
Warren asserts that, because the court sustained the Government’s
objection to Gardner’s questioning of Morrison on this issue, law
of the case prevented him from similarly questioning Dorsey.
The Government responds that: the prosecutor did not know the
continuance motion had been filed, having joined the prosecution
immediately before trial; if he had known about the motion, he
would not have objected; Appellants’ counsel recognized the
prosecutor made an honest mistake; and the prosecutor acknowledged
his mistake to the court, as well as to the jury in the
Government’s closing argument.
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The Government maintains also that there was no suppression
because its motion was in the public record prior to trial, and
Appellants became aware of it before the trial ended; and its
motion was not material, but cumulative, because Morrison and
Dorsey each testified that they had not yet been sentenced, and
that they were aware of the possibility of the Government filing a
§ 5K1.1 motion on their behalf. It asserts that: because Morrison
testified he did not know the motion had been filed, its filing had
no effect on his credibility because his testimony was truthful;
both Morrison and Dorsey were thoroughly questioned by Appellants’
counsel; and the court allowed Appellants to include the § 5K1.1
issue in their closing arguments. It additionally notes that
Appellants could have asked to recall Morrison and Dorsey for
further cross-examination, but failed to do so.
Obviously, the Government’s mistaken objection is most
regrettable, if not intolerable. Such lapses must not be repeated.
Nevertheless, Appellants have not demonstrated a Brady or Napue
violation, especially in the light of the Government’s explaining
its mistake to the jury, the court’s allowing Appellants to address
the issue in their respective closing arguments, and Appellants’
not attempting to recall Morrison and Dorsey.
C.
Finally, concerning the drug amounts used for base offense
level calculations, Appellants claim the district court erred in
12
adopting the fact-findings and sentencing recommendations in their
Pre-Sentence Investigation Reports (PSR), which they contend
improperly included drugs sold by other co-conspirators. Gardner
objected to the amount attributed to him by the PSR; Warren failed
to do so. Accordingly, our review differs for each Appellant.
1.
Notwithstanding his PSR-objection, Gardner did not offer
evidence in support at sentencing. His objection to the PSR
calculation was overruled.
To warrant vacating his sentence, Gardner must show the
district court violated a law, incorrectly applied the Sentencing
Guidelines, or imposed an unreasonable sentence beyond the
applicable Guidelines range. Maseratti, 1 F.3d at 339 (citing 18
U.S.C. § 3742(e)). The court’s application of the Guidelines is
reviewed de novo; its fact-finding, for clear error. See, e.g.,
United States v. Hull, 160 F.3d 265, 268 (5th Cir. 1998). The drug
quantity attributed to a defendant at sentencing is a fact-finding.
Maseratti, 1 F.3d at 340 (citing United States v. Ponce, 917 F.2d
841, 842 (5th Cir. 1990), cert. denied, 499 U.S. 940 (1991)).
The scope of a defendant’s relevant conduct for sentencing is
addressed in U.S.S.G. § 1B1.3(a)(1). See Hull, 160 F.3d at 268.
Under § 1B1.3(a)(1)(A), “[a] co-conspirator is accountable for his
own conduct”, as well as, under subpart (B), for “the foreseeable
acts of his co-conspirators committed in furtherance of the
13
conspiracy”. Maseratti, 1 F.3d at 340 (citation omitted; emphasis
added); see Hull, 160 F.3d at 268.
“Participation in a conspiracy, however, does not
automatically give rise to co-conspirator liability under §
1B1.3(a)(1)(B).” Hull, 160 F.3d at 269. Instead, the court is
required to “make particularized findings” regarding the scope of
agreement and foreseeability. Id. (citations omitted).
The PSR held Gardner accountable for over 1.5 kilograms of
crack cocaine. The drug quantity table in U.S.S.G. § 2D1.1 is
maximized at that amount. Gardner claims the bulk of the
Government’s evidence concerned his sale of only 1/16th of an
ounce. He asserts that others’ distribution was not “reasonably
foreseeable”, claiming the evidence showed that, at most, he shared
a common source of supply (Dorsey) with other street level drug
dealers.
The Government counters that the PSR properly attributed 1.5
kilograms to Gardner because, based on the evidence of his
involvement in the conspiracy, it was reasonably foreseeable; and,
in the alternative, the evidence showed his personal involvement
with at least that amount. It points to evidence that Dorsey and
Zeb Gardner regularly supplied Gardner with one-half ounce to one
ounce quantities of crack cocaine from at least late 1996 until
July 1998 (when Dorsey was arrested on drug charges); and
14
Morrison’s testimony that he saw a stash of crack cocaine at
Gardner’s home.
The record reflects Gardner’s personal involvement with at
least 1.5 kilograms. In addition to the district court’s fact-
findings with regard to the above-discussed evidence, which were
not clearly erroneous, Dorsey testified that, in 1994, he obtained
drugs in Memphis up to three times a week or more, and regularly
sold a half-ounce, or an ounce, of it to Gardner.
One ounce equals 28.35 grams. See U.S.S.G. § 2D1.1. If
Dorsey sold Gardner a half-ounce three times a week in 1994, or 78
ounces for that year alone, the amount totals more than 2200 grams,
well over 1.5 kilograms. Again, this amount does not even include
the additional amounts in the 1996-98 period.
The evidence being more than adequate to support Gardner’s
personal involvement with at least 1.5 kilograms, we need not
address whether the district court’s adoption of the PSR’s
reasonable foreseeability finding was clearly erroneous. See
United States v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995)
(demonstration of personal involvement renders foreseeability
inquiry moot).
2.
As noted, Warren did not object, either to the PSR or at
sentencing, to the drug amount attributed to him. Therefore, as he
concedes in his reply brief, our review is only for plain error, as
15
described supra. See United States v. McCaskey, 9 F.3d 368, 376
(5th Cir. 1993) (plain error review applicable when defendant fails
to object to PSR or at sentencing). Fact issues that could have
been resolved by the district court are not plain error. Id.
Warren contends that: the Government did not demonstrate
other co-conspirators’ conduct was reasonably foreseeable; and,
therefore, his sentence was plain error. However, we need not
address this contention, because there was ample record evidence of
his personal involvement with more than 1.5 kilograms of crack
cocaine.
For example, Dorsey testified that: beginning in 1996 or
1997, Warren began buying an ounce, and then four and one-half,
nine, or 18 ounce quantities on a regular basis; and, after Dorsey
became Warren’s main supplier, Dorsey went to Memphis once or twice
a week to supply him with nine to 18 ounces, until Dorsey’s arrest
in July 1998. Further, the PSR “is considered reliable”, United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); and, because
Warren did not object to it or attempt to rebut its findings, the
court’s adoption of the facts contained in it, without further
inquiry, was not plain error. United States v. Puig-Infante, 19
F.3d 929, 943 (5th Cir. 1994).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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