IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30684
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LEE DERUISE, also known as T T;
FREDERICK D. STEMLEY,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana
USDC No. 98-CR-225
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December 6, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:1
Kenneth Deruise and Frederick Stemley were convicted of one
count of conspiring to possess marijuana with intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court
denied their motions for judgment of acquittal and for a new trial.
Deruise was sentenced to three years’ probation and a $2000 fine.
Stemley was sentenced to sixty-three months’ imprisonment, five
years’ supervised release, and a $3000 fine. We affirm both
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this opinion should not be published and is not precedent except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.
convictions, but vacate Stemley’s sentence and remand for
resentencing.
I
On appeal, the defendants contend that the district court
erred in failing to grant their Rule 29 motions for acquittal based
on insufficient evidence, and that there was a material variance
between the indictment and the evidence at trial. They also argue
that the district court erred in admitting into evidence 103 pounds
of marijuana that FBI agents seized on September 8, 1998, after the
conspiracy charged in the indictment had ended2 and after the
indictment was returned.3
Deruise claims that the district court allowed improper
impeachment of him. On cross-examination, Deruise testified that
he had used marijuana only once. The district court allowed the
prosecutor to elicit rebuttal testimony from New Orleans policemen
who said that they had arrested Deruise twice for possession of
marijuana in August 1998, although neither arrest resulted in a
conviction. Further, Stemley argues that the district court erred
under Apprendi v. New Jersey, 530 U.S. 466 (2000), in imposing a
sentence above the statutory maximum in the absence of a jury
finding as to the quantity of marijuana involved, and that the
2
The indictment charged a conspiracy between the dates of
“about May 1998, and continuing through July 1998.”
3
The indictment was returned on September 4, 1998.
2
district court sentenced him for more marijuana than he is
accountable for under the sentencing guidelines.
II
A
We begin with the Rule 29 motions for acquittal. We review
the denial of a Rule 29 motion de novo. United States v. Restrepo,
994 F.2d 173, 182 (5th Cir. 1993).
To prove a conspiracy under 21 U.S.C. § 846 in this case, the
government must show: (1) the existence of an agreement between
two or more persons to possess and distribute drugs in violation of
federal narcotics laws; (2) that the defendant knew of the
agreement; and (3) that the defendant voluntarily participated in
the agreement. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.
1991) (citations omitted). These elements may be proved by
circumstantial evidence, and “[c]ircumstances altogether
inconclusive, if separately considered, may, by their number and
joint operation . . . be sufficient to constitute conclusive
proof.” United States v. Roberts, 913 F.2d 211, 218 (5th Cir.
1990) (quotation marks and citations omitted).
In sum, the government’s principal evidence against Deruise,
that is, the evidence to prove that he was part of a conspiracy to
possess and distribute marijuana, consisted of: testimony from an
FBI agent and a co-conspirator that the word “t-shirt” as used in
the recorded conversations was one of the code words for cocaine or
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marijuana; that Deruise called Norman Scott and asked for “t-
shirts” or otherwise sought drugs through code words; and that
Deruise arranged to purchase one pound of marijuana and requested
an additional three pounds. Deruise insists that he asked for t-
shirts because he really wanted t-shirts.
The jury heard all the evidence and could reasonably conclude
that Deruise was knowingly involved in a conspiracy to possess and
distribute marijuana. A co-conspirator “need not know all the
details of the unlawful enterprise, or know the exact number and
identity of all the co-conspirators, so long as in some fashion he
or she knowingly participates in the larger conspiratorial
objectives.” United States v. Greenwood, 974 F.2d 1449, 1456 (5th
Cir. 1992). We have held that the common goal of deriving personal
gain from the illicit business of buying and selling cocaine
constitutes a single conspiracy. See United States v. Morris, 46
F.3d 410, 415 (5th Cir. 1995). There was sufficient evidence to
show that Deruise shared such a common goal, and that he
voluntarily agreed with Scott to possess and distribute marijuana.
We therefore affirm his conviction.
B
Stemley also filed a Rule 29 motion for acquittal, which the
district court denied. The evidence against Stemley is strong.
The government presented evidence that (1) Stemley placed eleven
phone calls to Scott, one of which related to purchasing
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“chickens,” a code word for marijuana, and others relating to
leaving drug money for Scott to pick up or paying drug money to
Scott directly; (2) Stemley purchased two pounds of marijuana from
Scott on July 5, 1998; (3) Stemley purchased five pounds of
marijuana from Scott on July 22; (4) Stemley arranged to leave drug
profits at Scott’s home for another person to pick up; and (5)
three co-conspirators testified that they had seen Stemley and
Scott together.
The evidence is clearly sufficient to permit a rational jury
to find him guilty as a participant in a conspiracy to possess and
distribute drugs in violation of federal narcotics law. We
therefore find no error in the district court’s denial of Stemley’s
Rule 29 motion.
III
Deruise also argues that the district court allowed improper
impeachment testimony of him relating to alleged previous
possession of marijuana. Although we have doubts as to the
admissibility of this testimony under Federal Rules of Evidence 403
and 404, we hold that it was harmless given the other evidence
against Deruise.
IV
Deruise and Stemley further contend that the district court
abused its discretion in admitting into evidence the 103 pounds of
marijuana seized on September 8, 1998. They argue this was not
5
relevant evidence under Federal Rule of Evidence (“FRE”) 401, and
that it was unduly prejudicial evidence of other bad acts under
Federal Rules of Evidence 403 and 404(b) and United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc). The defendants
objected to the admission of this evidence at trial, and we review
the district court’s evidentiary ruling on this matter for an abuse
of discretion. United States v. Navarro, 169 F.3d 228, 232 (5th
Cir. 1999), cert. denied, 528 U.S. 845 (1999).
“‘Other act’ evidence is ‘intrinsic’ when the evidence of the
other act and evidence of the crime charged are ‘inextricably
intertwined’ or both acts are part of a ‘single criminal episode’
or the other acts were ‘necessary preliminaries’ to the crime
charged.” United States v. Williams, 900 F.2d 823, 825 (5th Cir.
1990). Such evidence is admissible to complete the story of a
crime by proving the immediate context of events in time and place.
United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. 1981).
Intrinsic evidence does not implicate Rule 404(b), and
“consideration of its admissibility pursuant to Rule 404(b) is
unnecessary.” United States v. Garcia, 27 F.3d 1009, 1014 (5th
Cir.), cert. denied, 513 U.S. 1009 (1994). We believe this
evidence was intrinsic, in that it was part of the single
conspiracy to possess and distribute marijuana charged by the
government, i.e., part of a “single criminal episode.” Although
the indictment charged a conspiracy from May through July 1998,
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evidence seized after these dates can be probative of that
conspiracy. Thus there is no need to consider FRE 404(b).
Further, although the evidence here was seized after the return of
the indictment, we have previously upheld the admission of evidence
seized after the alleged conspiracy had ended and the indictment
had been returned. See United States v. Navarro, 169 F.3d 228,
231-33 (5th Cir. 1999). Thus it was not an abuse of discretion to
admit the marijuana simply because it was seized after the return
of the indictment.
We must also consider whether the admission of the marijuana
into evidence was unduly prejudicial under FRE 403. The parties
point to United States v. Torres, 685 F.2d 921 (5th Cir. 1982) and
to Navarro. In Torres, the district court admitted evidence of
“sample transactions” that occurred prior to the dates alleged in
the indictment, because the evidence of the sample transactions and
the evidence of the charged conspiracy were “inextricably
intertwined” and formed a “natural and integral” part of the
surrounding circumstances. 685 F.2d at 924. In Navarro, the
district court admitted evidence of drugs seized in January 1997,
even though the alleged conspiracy ended in September 1996. The
court concluded that the 1997 evidence “demonstrated the structure
of the drug organization, as well as the continuing contact
between” the defendants. 169 F.3d at 233.
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The evidence here was part of the single conspiracy alleged,
and demonstrated its nature and scope. It was probative, and given
its intrinsic nature was not unduly prejudicial. We hold that the
district court did not abuse its discretion in admitting this
evidence.
V
The defendants also assert that there was a material variance
between the indictment and the evidence presented at trial, and
that they were prejudiced by this. The second superseding
indictment alleged that the defendants conspired “with each other
and with other persons known and unknown to the Grand Jury . . . .”
The defendants claim that at most the government proved individual
two-person conspiracies, and not the umbrella conspiracy alleged in
the indictment. The defendants raised this objection at trial.
“To prevail on a material variance claim, these defendants must
prove (1) a variance between the indictment and the proof at trial,
and (2) that the variance affected their substantial rights.”
United States v. Morgan, 117 F.3d 849, 858 (5th Cir.), cert.
denied, 522 U.S. 987 (1997).
“With variance, our concern is whether the indictment,
assuming it has otherwise alleged the elements of the offense, has
so informed a defendant that he can prepare his defense without
surprise and has protected him against a second prosecution for the
same offenses.” United States v. Cochran, 697 F.2d 600, 604 (5th
8
Cir. 1983) (citation omitted). The indictment in this case
informed the defendants of the charge of conspiracy to possess and
distribute marijuana, the dates of the conspiracy and the identity
of the other named defendants. We are convinced that the
defendants in this case were sufficiently informed of the nature of
the case and were protected against a second prosecution.
Additionally, whether the evidence shows one or multiple
conspiracies is a question of fact for the jury. Morgan, 117 F.3d
at 858. The evidence and analysis in Part II of the opinion
demonstrate that the jury could reasonably find one conspiracy. We
therefore hold that there was no material variance between the
indictment and the proof at trial.
VI
Stemley also contends that the district court erred in
sentencing him, and raises three sentencing issues. “We review
factual findings made by a district court for sentencing purposes
under the clearly erroneous standard, and review the district
court's legal application of the United States Sentencing
Guidelines [] de novo.” United States v. Franklin, 148 F.3d 451,
459 (5th Cir. 1998). However, Stemley failed to object to the
Presentence Investigation Report’s (“PSR”) or the district court’s
marijuana calculations at the sentencing hearing. When a defendant
raises a sentencing issue for the first time on appeal, we review
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for plain error only. United States v. Vasquez-Zamora, 253 F.3d
211, 213 (5th Cir. 2001).
A
Stemley first contends that the district court miscalculated
the quantity of marijuana delivered to Scott. The district court
accepted the PSR’s finding that Alexander Cruz delivered 375 pounds
of marijuana to Scott. However, at trial Cruz only testified to
delivering between 290 and 310 pounds of marijuana, and Eugene
Haynes testified to delivering four pounds of marijuana to Scott.
Even if this is an error, it is harmless. Under the United States
Sentencing Guidelines, 375 pounds of marijuana and 314 pounds of
marijuana (or 170.1 kilograms and 142.4 kilograms, respectively)
fall under the same sentencing level. See U.S.S.G. § 2D1.1(c)
(Drug Quantity Table) (offenses involving between 100 kilograms and
400 kilograms of marijuana fall under Level 26).
B
Stemley also contends that the district court erred in holding
him accountable for the total quantity of drugs attributable to the
conspiracy. However, when sentencing a defendant involved in a
drug trafficking conspiracy, the quantity to be considered for
sentencing purposes includes both the drugs with which the
defendant was directly involved and the drugs that can be
attributed to him through the conspiracy. United States v. Brito,
136 F.3d 397, 415 (5th Cir.), cert. denied, 523 U.S. 1128, 524 U.S.
10
962, 525 U.S. 867 (1998). Additionally, “involvement in a
conspiracy is presumed to continue and will not be terminated until
the co-conspirator acts ‘affirmatively to defeat or disavow the
purpose of the conspiracy.’” United States v. Pofahl, 990 F.2d
1456, 1484 (5th Cir.), cert. denied, 510 U.S. 898, 996 (1993).
There is no evidence that Stemley acted to withdraw from the
conspiracy. We hold that the district court did not err in holding
Stemley accountable for the total quantity of marijuana
attributable to the conspiracy.
C
The government concedes that Stemley’s sentence must be
modified in the light of Apprendi v. New Jersey, 530 U.S. 466
(2000). “If the government seeks enhanced penalties based on the
amount of drugs . . . , the quantity must be stated in the
indictment and submitted to a jury for a finding of proof beyond a
reasonable doubt . . . .” United States v. Doggett, 230 F.3d 160,
164-65 (5th Cir. 2000) (applying Apprendi). This Court has
clarified that “[t]he decision in Apprendi was specifically limited
to facts which increase the penalty beyond the statutory maximum .
. . .” Id. at 166. The government’s position at trial was that
the conspiracy involved approximately 1000 pounds (or 453.6
kilograms) of marijuana, which would have resulted in a prison term
of at least five but not more than forty years. See 21 U.S.C. §
841(b)(1)(B)(vii) (“In the case of a violation . . . involving . .
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. 100 kilograms or more of . . . marijuana . . . such person shall
be sentenced to a term of imprisonment which may not be less than
5 years and not more than 40 years.”).
Because this drug quantity was not alleged in the indictment,
the government concludes that the maximum term of imprisonment
would be sixty months followed by at least two years of supervised
release, consistent with an unspecified quantity of marijuana in
the indictment. See 21 U.S.C. § 841(b)(1)(D) (“In the case of less
than 50 kilograms of marihuana, . . . such person shall . . . be
sentenced to a term of imprisonment of not more than 5 years.”).
Because Stemley was sentenced to sixty-three months’ imprisonment
and five years’ supervised release, the government agrees that
Stemley’s sentence is the result of plain error and must be
modified accordingly.
IV
We AFFIRM Deruise’s and Stemley’s convictions, but VACATE
Stemley’s sentence and REMAND for resentencing consistent with this
opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART
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