United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 9, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41071
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JULIA MAY DAWES, TOM FRANKLIN MORRIS,
and STEVEN WAYNE PAYNE,
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Texas
(04-CR-92)
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5th Cir. R. 47.5, the Court has
determined that this opinion should not be published and
A grand jury indicted Appellants Julia Dawes
(“Dawes”), Steven Payne (“Payne”), and Tom Morris
(“Morris”), among others, for their roles in a drug
manufacturing and distribution ring in Paris, Texas. The
Appellants were charged with one count of conspiring to
manufacture, distribute, and possess methamphetamine in
violation of 21 U.S.C. § 841(a)(1). The Appellants were
tried together and found guilty by a jury on February 1,
2005.2 The Appellants assert various claims of error. Finding
no reversible error, we affirm.
I. Facts and Background
On June 29, 2004, the government unsealed an
is not precedent except under the limited circumstances
set forth in 5th Cir. R. 47.5.4.
2
The indictment additionally charged Morris with
possession with the intent to distribute approximately
1.2 grams of methamphetamine. The jury convicted him
of that charge as well.
2
indictment naming twelve individuals as co-conspirators in
an alleged methamphetamine manufacturing and
distribution operation. Among those named were the
Appellants, and they proceeded to a joint jury trial.
According to trial testimony from a government
investigator, Richard Dixon was the “hub” of the conspiracy
and the Appellants, at different times, supplied Dixon with
methamphetamine for personal use and resale. Dixon,
having already plead guilty, testified against the Appellants
at their trial. He stated that he purchased
methamphetamine from Julia Dawes from the middle of
2001 until November, 2002. Dixon further testified that he
initially purchased small amounts from Dawes for his
personal use, but after about four months, he began to buy
more substantial quantities to sell. Dixon estimated that he
purchased approximately 250 grams from Dawes.
3
Dixon went on to testify that he started buying
methamphetamine from Payne in February 2003. He stated
Payne supplied him with about one ounce (approximately
28 grams) per month until March 2004, totaling between
300 and 400 grams. Dixon also testified he was aware that
Payne supplied others with methamphetamine as well.
Regarding Morris, Dixon further testified that he was
acquainted with him and at different times he both sold and
purchased methamphetamine from Morris, although it
appears from the testimony that the quantities were small.
Dixon also bought and sold drugs to Cody Berry, who was
at Morris’s house the day he was arrested.
In addition to Dixon’s testimony, the government
presented other evidence of Appellants’ involvement in the
conspiracy. For example, Toby Tidwell testified that he
purchased methamphetamine from Dawes at her home on
4
a number of occasions, often two to three times per week.
While at her home he witnessed Dawes in possession of
five to eight ounces (approximately 140 to 224 grams) of
methamphetamine. He stated that over the span of three to
four months he purchased about five ounces
(approximately 140 grams) from Dawes. He also testified
that he facilitated a transaction where Dawes sold $2,000
worth of methamphetamine to another person. In addition,
Andrea Allen and Richard Aubrey both testified against
Dawes. Aubrey testified he witnessed Dawes use
methamphetamine and possess at least one ounce. Allen’s
testimony primarily corroborated the testimony of Dixon
and Tidwell. Also, upon Dawes’s arrest, police discovered
small amounts of methamphetamine on her person and in
her house.
The government presented additional evidence against
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Payne as well. At trial the government showed a video of
Payne admitting responsibility for 750 to 1,400 grams of
methamphetamine. Additionally, witnesses Tony Freelen,
Keri Pinalto, and Angela Pendergraft all testified they
received methamphetamine from Payne. In particular,
Pinalto stated she purchased an “eight ball” (equal to about
four grams) of methamphetamine from Payne several times
per month between March 2003 and February 2004.
The evidence against Tom Morris included both witness
testimony and physical evidence. Following a confidential
informant’s purchase of methamphetamine at Morris’s
house, police searched the house and found baggies of
methamphetamine along with drug paraphernalia,
including scales. A number of witnesses testified they
purchased methamphetamine from Morris, including Donald
Benton, who purchased approximately 18.5 grams from
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Morris during 2004. In addition, Crystal King testified she
witnessed a friend buy between two and three eight balls
on one occasion.
After hearing the evidence, the jury found each
Appellant guilty of conspiracy. The jury additionally found
Morris guilty of possession with the intent to distribute 1.2
grams of methamphetamine. The Appellants each received
substantial sentences. The court sentenced Dawes to 151
months’ imprisonment, Payne to 121 months, and Morris to
350 months. Each timely appealed raising several claimed
errors, many of which do not require discussion. However,
each Appellant argues it was error for the jury to consider
co-conspirator actions in reaching the 500 gram threshold,
as opposed to considering their actions separately. We
consider each Appellant’s argument on this issue in turn.
II. Discussion
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A. Julia Dawes
Dawes claims there is a variance between the
indictment and the evidence presented at trial. She
contends the indictment alleges one large conspiracy
involving more than 500 grams of methamphetamine, but
the evidence at trial showed only several smaller
conspiracies. She argues that because, at most, she was
involved in a small conspiracy that amounted to less than
500 grams, her conviction cannot stand. To prevail on a
variance claim Dawes must show (1) a variance between
the indictment and the evidence at trial, and (2) that her
substantial rights were prejudiced. See United States v.
Payne, 99 F.3d 1273, 1279 (5th Cir. 1996). Because we find
no variance, we need not consider prejudice to Dawes’s
substantial rights.
Dawes argues the government alleged a large
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overarching conspiracy but proved several smaller
conspiracies. To determine whether the government proved
a single conspiracy we consider (1) the existence of a
common goal, (2) the nature of the scheme, and (3) the
overlapping of the participants in the various dealings.
United States v. Morris, 46 F.3d 410, 415 (5th Cir. 1995). In
considering these factors, “we must affirm the jury's
finding that the government proved a single conspiracy
unless the evidence and all reasonable inferences,
examined in the light most favorable to the government,
would preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt.” Id. (internal
quotation marks and alterations omitted).
a. Common Goal
“Where the evidence demonstrates that all of the
alleged co-conspirators directed their efforts towards the
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accomplishment of a single goal or common purpose, then
a single conspiracy exists. United States v. Richerson, 833
F.2d 1147, 1153 (5th Cir. 1987). We have broadly defined
this factor. See, e.g., Morris, 46 F.3d at 415; see also
Richerson, 833 F.2d at 1153 (collecting cases that
emphasize our expansive application of this factor). Also,
we have often found that personal gain from selling drugs
is a common goal. See Morris, 46 F.3d at 415 (“The common
goal of everyone involved, the suppliers, [the cocaine
distributor], and the purchasers, was to derive personal
gain from the illicit business of buying and selling
cocaine.”); see also Payne, 99 F.3d at 1280 (finding the
participants had the common goal of selling crack).
Dawes’s role for over a year was to sell drugs to Dixon
that he could re-sell to others. Dawes thus shared a
common goal with other co-conspirators--profiting from the
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continued operation of Dixon’s drug business. Under our
broad definition, we find this element satisfied.
b. Nature of the Scheme
The proper inquiry is whether “the activities of one
aspect of the scheme are necessary or advantageous to the
success of another aspect or to the overall success of the
venture, where there are several parts inherent in a larger
common plan.” Morris, 46 F.3d at 416. In other words,
when an “agreement contemplates bringing to pass a
continuous result that will not continue without the
continuous cooperation of the conspirators to keep it up,
then such agreement constitutes a single conspiracy.” Id.
at 415-16 (quotation omitted).
If we consider the Appellants’ actions only in relation
to each other, and ignore the actions of other co-
conspirators, it could be argued they participated in
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unrelated transactions that were not part of a larger
scheme. For example, the evidence showed that Dawes and
Payne supplied Dixon with methamphetamine at different
times and never agreed to cooperate with each other.
However, we must look at the entire conspiracy and
determine if the activities of one aspect of the scheme were
necessary or advantageous to the success of another aspect
or to the overall success of the venture. See Morris, 46 F.3d
at 416. It is clear that Appellants’ primary activity--
supplying drugs--was advantageous to the overall success
of Dixon’s drug distribution business. Thus, we find that
Appellants’ activities were advantageous to the overall
success of the venture.
c. Overlapping of Participants in the Various
Dealings.
“The more interconnected the various relationships
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are, the more likely there is a single conspiracy.” Morris, 46
F.3d at 416. However, it is not required that each
conspirator participate in every transaction. Id. “A single
conspiracy exists where a ‘key man’ is involved in and
directs illegal activities, while various combinations of other
participants exert individual efforts toward a common
goal.” Id.
The evidence at trial did not directly link Dawes to the
other Appellants, but it did link her to other co-
conspirators, most notably Dixon and Toby Tidwell. It was
clearly established that Dawes sold methamphetamine to
Dixon and Tidwell and was acquainted with a number of the
other co-conspirators. The evidence also connected Payne
and Morris to others in the conspiracy.
Dixon was the “key man” and directed a drug
distribution ring, and Dawes, among others, exerted
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individual efforts towards a common goal of furthering that
business for her own benefit. See id. Thus, we find this
element satisfied.
Based on the foregoing, and examining the evidence
and all reasonable inferences in the light most favorable to
the government, we find a reasonable jury could have
concluded the government proved one conspiracy.
The result is that the well-known Pinkerton rule applies
to the Appellants’ actions. See Pinkerton v. United States,
328 U.S. 640 (1946). Under that rule reasonably
foreseeable actions of co-conspirators can be attributed to
Dawes, even if she did not know about them. See United
States v. Wilson, 105 F.3d 219, 221 (5th Cir. 1997). Despite
Dawes’s argument to the contrary, it was reasonable for
her to foresee that Dixon would purchase
methamphetamine from other suppliers. Thus, a reasonable
14
jury could find that Dawes’s direct involvement, coupled
with the reasonably foreseeable actions of her co-
conspirators, resulted in her responsibility for 500 grams,
as alleged in the indictment.
B. Steven Payne
Payne moved for a judgment of acquittal below and
argues on appeal that the government presented
insufficient evidence that he knew of, or participated in, a
conspiracy. When a defendant has moved for a judgment of
acquittal, we review challenges to the sufficiency of the
evidence by determining whether a rational jury could have
found the elements of the offense beyond a reasonable
doubt, when the evidence is viewed in the light most
favorable to the verdict. United States v. Patterson, 431
F.3d 832, 836 (5th Cir. 2005).
The thrust of Payne’s argument is that even if the
15
government proved a conspiracy, it did not prove he was
involved. However, the evidence at trial established Payne’s
significant involvement in a large-scale methamphetamine
ring. Payne himself admitted being responsible for up to
1,400 grams of methamphetamine. Further, Dixon testified
he purchased between 300 and 400 grams from Payne.
Based on this evidence a rational jury, even considering
Payne’s transactions alone, could have found that he was
responsible for 500 grams of methamphetamine.
C. Tom Morris
Morris argues the district court erred by not responding
to a question posed by the jury during its deliberations.3 In
deciding how to respond to a question posed by the jury,
the district court enjoys wide latitude. United States v.
3
The other Appellants raise this issue as well. We
note that Morris does not challenge the sufficiency of the
evidence tying him to the conspiracy.
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Stevens, 38 F.3d 167, 170 (5th Cir. 1994); see United
States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985) (“the
necessity, extent, and character of any supplemental
instructions to the jury are matters within the discretion of
the district court.) (emphasis added) (internal quotation
marks omitted).
The court’s response to the jury question in this case
was a note requiring them to consider the original
instructions. In response to a jury question it is acceptable
for the court to refer the jury to the original instructions as
long as they contain an accurate statement of the law. See
United States v. Arnold, 416 F.3d 349, 359 n.13 (5th Cir.
2005). Here, we are satisfied the original instructions
contained an accurate statement of the law and that the
court acted within its wide discretion. Thus, find no error.
After reviewing Appellants’ other claims of error, the
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briefs and the record, and after consulting the applicable
law, we find no reversible error. Accordingly, we affirm.
AFFIRMED.
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