United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-20612
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE SWEAT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02–CR-368-5
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Terrance Sweat appeals his convictions of possession with
intent to distribute five grams or more of cocaine base, aiding
and abetting possession with intent to distribute five grams or
more of cocaine base, and conspiracy to possess with intent to
distribute five grams or more of cocaine base. We affirm the
convictions.
Sweat and four co-defendants were indicted as a result of an
undercover investigation of drug distribution activities in
*
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that this opinion should not be published and is not precedent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.
No. 03-20612
-2-
Huntsville, Texas. DEA Agent Ronald Patrick Starks was
introduced to Sweat via a Confidential Source (“CS”). Starks
testified about three transactions in which Sweat sold him crack;
all three transactions were arranged via the CS.
On February 12, 2002, Starks, Sweat, and the CS met at a
Quick Pic grocery store in Huntsville to complete a sale of
cocaine base. Sweat arrived at the Quick Pic riding as a
passenger in a green Neon driven by his girlfriend. Sweat
signaled for Starks and the CS to follow him. Starks and the CS
followed the Neon to Sweat’s girlfriend’s trailer. After leaving
Sweat at her trailer, his girlfriend drove away. Inside the
trailer, Sweat went to a kitchen drawer and retrieved a pill
bottle containing several rocks of crack cocaine. Starks picked
several rocks and gave Sweat $160. This transaction was not
subject to the indictment in this case and the jury was given a
limiting instruction.
On February 20, 2002, Sweat and Starks planned to meet at
the CS’s trailer on Thompson Street in Huntsville. Starks
arrived at the trailer first and observed Sweat arrive in a car
driven by one of his co-defendants, Quentin Plattenburg. Sweat
was riding in the front passenger seat and when Starks walked up
to the passenger window to speak to Sweat, he saw what appeared
to be a crack cocaine cookie sitting on the right side of Sweat’s
lap. Starks purchased the cookie for $550. A third transaction
No. 03-20612
-3-
occurred between Sweat and Starks at the CS’s trailer; however,
Plattenburg was not involved in this transaction.
Starks characterized Plattenburg as being “involved” in the
deal because he was in a position to see and hear the deal, and
he watched the deal. Plattenburg did not say anything; however,
he did nod his head as a greeting to Starks. Although the trial
evidence consisted of three transactions between Sweat and
Starks, Plattenburg was involved in only the February 20
transaction. No evidence was presented as to Sweat’s source of
the crack. Jose Valles, a Huntsville police officer, testified
that he had seen Sweat “hanging out” with his co-defendants but
conceded that he had not observed them engaging in drug dealing
activities together.
Normally, this court reviews a challenge to the sufficiency
of the evidence to determine whether “a rational trier of fact
could have found that the evidence established guilt beyond a
reasonable doubt.” United States v. Barton, 257 F.3d 433, 439
(5th Cir. 2001) (citation omitted).
However, because Sweat did not move for a judgment of
acquittal, this court reviews only for whether there was a
manifest miscarriage of justice. United States v. Pierre, 958
F.2d 1304, 1310 (5th Cir. 1992) (en banc). A manifest
miscarriage of justice exists when the record is devoid of
evidence pointing to guilt or when the “evidence on a key element
No. 03-20612
-4-
of the offense was so tenuous that a conviction would be
shocking.” Id. (citation omitted).
To establish a conspiracy, the Government must prove the
existence of an agreement between two or more persons to violate
the narcotics laws, knowledge of the agreement, and voluntary
participation in the conspiracy. United States v. Booker, 334
F.3d 406, 409 (5th Cir. 2003). The agreement may be tacit and
may be inferred from circumstantial evidence. Id. Proof of mere
association with persons involved in criminal activity without
more is not sufficient to establish participation in a
conspiracy. United States v. Smith, 203 F.3d 884, 887 (5th Cir.
2000). Similarly, mere knowing presence is not sufficient to
establish knowledge of or participation in a conspiracy. United
States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988).
Under the manifest miscarriage of justice standard of
review, the evidence was sufficient to convict Sweat of the
conspiracy count. The jury could have inferred from the
testimony concerning the events of February 20 both the existence
of a tacit agreement between Plattenburg and Sweat and their
knowledge of and voluntary participation in the agreement.
Plattenburg assisted Sweat in the furtherance of the conspiracy
by driving Sweat to the CS’s trailer on February 20 and observing
the deal while the crack cookie sat in plain sight on Sweat’s
lap. Sweat arguably would not have allowed Plattenburg to
accompany him on the February 20 transaction were Plattenburg not
No. 03-20612
-5-
“in on” the conspiracy. Indeed, Sweat could have conducted the
transaction in the CS’s trailer while Plattenburg waited in the
car. It thus cannot be said that the record is devoid of
evidence of a conspiracy between Sweat and Plattenburg. See
Pierre, 958 F.2d at 1310.
To secure a conviction for aiding and abetting, the
Government must prove that the defendant: “(1) associated with
the criminal enterprise; (2) participated in the venture; and (3)
sought by action to make the venture succeed.” United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994). The evidence
supporting a conspiracy conviction typically supports an aiding
and abetting conviction. Id.
To support Sweat’s conviction for aiding and abetting
Plattenburg’s possession with intent to distribute, Sweat must
have aided and abetted both the possession of the crack and the
intent to distribute it. See United States v. Delagarza-
Villarreal, 141 F.3d 133, 140 (5th Cir. 1997). Thus, to support
Sweat’s conviction, the evidence must show that Plattenburg had
actual or constructive possession of the crack. See id.
Constructive possession “is the knowing exercise of, or the
knowing power or right to exercise dominion and control over the
proscribed substance.” United States v. Richardson, 848 F.2d
509, 512 (5th Cir. 1988) (quotation and emphasis omitted).
“Constructive possession may be shown by ownership, dominion or
control over the contraband itself, or dominion or control over
No. 03-20612
-6-
the premises or the vehicle in which the contraband was
concealed.” Id. (quotation and emphasis omitted). Plattenburg
exercised control over the car where the February 20th sale
occurred.
While we have found constructive possession in cases where
the contraband was more inaccessible to the driver than the crack
was to Plattenburg in this case, “we have hesitated to rely
solely on control of the vehicle, even over an extended trip, and
our affirmance of conviction[s] has been influenced by such
additional factors as the suspicious nature of the trip and
circumstances evidencing a consciousness of guilt on the part of
the defendant.” Id. Here the evidence shows that the crack was
in plain view throughout the sale, and there is no indication
that Plattenburg did not know that he was transporting crack
cocaine. Therefore, under the manifest miscarriage of justice
standard of review, the evidence supports a jury finding that
Plattenburg had constructive possession of the crack cocaine sold
in the February 20 transaction. The intent to distribute can be
inferred from the quantity of crack distributed. Consequently,
the evidence was also sufficient to support Sweat’s conviction
for aiding and abetting Plattenburg’s possession of crack with
intent to distribute.
Finally, we note that the February 12 transaction occurred
in Sweat’s girlfriend’s trailer and that Sweat retrieved the
crack, which was in a pill bottle, from her kitchen drawer.
No. 03-20612
-7-
However, this transaction was not subject to the indictment in
this case and the jury was given a limiting instruction.
Accordingly, Sweat’s aiding and abetting conviction must be
affirmed.
Sweat additionally argues for the first time on appeal that
the provisions in 21 U.S.C. § 841(a) and (b) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Sweat
acknowledges that his argument pursuant to Apprendi is foreclosed
by United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),
but seeks to preserve it for further review.
AFFIRMED.