IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-1092
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAY DALE SPEER and WILLIAM ROBERT WEEKS, JR.,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Texas
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(August 22, 1994)
Before KING and SMITH, Circuit Judges, and KAZEN,1 District Judge.
KAZEN, District Judge:
Defendants, Ray Dale Speer ("Speer") and William Robert Weeks,
Jr. ("Weeks"), appeal from their convictions for (1) felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2)
possession with intent to distribute approximately 30 grams of
cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) carrying or
using a firearm, a F.I.E. .32 caliber semiautomatic pistol, during
and in relation to the commission of a drug trafficking offense, in
violation of 21 U.S.C. § 924(c)(1). Defendants present three
1
District Judge of the Southern District of Texas, sitting by
designation.
common issues for review. They both challenge the trial judge's
refusal of a tendered jury instruction on their defense to the
cocaine charge, as well as the admission of expert testimony and
the sufficiency of the evidence on that same issue. Additionally,
Speer appeals the trial judge's excusal of a seated and sworn juror
while Weeks appeals the sufficiency of the evidence on his firearm
convictions and a sentencing enhancement under 18 U.S.C. § 924(e).
We have concluded that none of the issues warrant reversal.
I.
Background
The following recitation of facts reflects the evidence as
viewed in the light most favorable to the jury's verdict. See
United States v. Willis, 6 F.3d 257, 264 (5th Cir. 1993). Ron
Wooten ("Wooten"), an undercover officer with the Tarrant County
Narcotics Intelligence Coordination Unit, put out word on the
street that he had an ounce of cocaine for sale. On April 14,
1992, Wooten met with paid informant Ray Stovall ("Stovall"),
Rebecca Smith ("Smith"), and Karen Lindstrom ("Lindstrom"), an
undercover officer with the Fort Worth Drug Task Force to discuss
the potential sale of cocaine to Smith and a friend of Smith's,
Beth Pierce ("Pierce"). Wooten agreed to meet with Smith, Stovall
and Pierce later that day in the Burrus Food Store parking lot in
River Oaks, Texas, once the prospective purchasers obtained the
money to make the purchase. Stovall went with Smith to Pierce's
apartment to check about the money.
Pierce did not have the money at the apartment, so she
2
telephoned Speer and told him to bring it over and come with them
to River Oaks. Speer arrived with the money. Meanwhile Weeks came
to the apartment but left after a brief stay. Stovall needed to
drop off a pickup truck before the trip to River Oaks, so Pierce,
Speer and Smith followed him in Pierce's car. Although the four
intended to proceed to the Burrus parking lot, they returned to the
apartment and left Pierce there because she was feeling ill. In
the interim, Weeks had returned to the apartment and, at Speer's
request, Weeks drove the group to River Oaks in Pierce's car.
Wooten was waiting in the Burrus parking lot when the group
arrived, and Weeks parked the car next to Wooten's pickup. Speer
was in the front passenger seat next to Weeks, while Smith and
Stovall were in the back seat. Wooten approached and talked to
Weeks through the driver's window. During the conversation, he
observed a handgun under Speer's inner right thigh. When Wooten
asked about the presence of the "heat," Weeks volunteered that it
was "there to assure that [Wooten] was not going to rip him off."
Wooten then asked Weeks to come to the back of Wooten's pickup,
where they both leaned into the bed of the truck over the top of
the tailgate. Wooten produced the cocaine and Weeks attempted to
weigh it, without success, on scales he had brought with him.
After being assured by Wooten that the cocaine would "weigh heavy,"
Weeks gave Wooten the money and took the cocaine. Wooten gave the
arrest signal. Moments later, Weeks was arrested against the fence
at the rear of the pickup. Speer and Smith were arrested after
being pulled out of the car. The gun, scales and cocaine were
3
found in the car.
II.
Jury Charge
Defendants Weeks and Speer were convicted of possessing
cocaine with the intent to distribute under 21 U.S.C. §841(a)(1)
and 18 U.S.C. §2. Both Defendants appeal the trial judge's
omission of the following tendered jury charge on their defense:
If you find that Beth Pierce, Rebecca Smith, Ray Speer
and/or William Weeks, Jr. acted in concert, that is
jointly, with one another in the purchasing of the
cocaine alleged in the indictment, and that the cocaine
was for their group without further distribution
purposes, you must find the defendants not guilty of
possession of cocaine with the intent to distribute.
We review the charge omission for abuse of discretion. United
States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir. 1993). The
trial court is given wide latitude "in determining what
instructions are merited by the evidence presented." Id. However,
where the court "refuse[s] a charge on a defense theory for which
there is an evidentiary foundation and which, if believed by the
jury, would be legally sufficient to render the accused innocent,
this court presumes that the lower court has abused its
discretion." Id.
Defendants rely on the case of United States v. Swiderski, 548
F.2d 445 (2d Cir. 1977), for the proposition that if persons are
acting "in concert" to obtain drugs for their own use, they cannot
be guilty of possession with intent to distribute. The Swiderski
court expressly limited its holding "to the passing of a drug
between joint possessors who simultaneously acquired possession at
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the outset for their own use." Id. at 450-51. This Circuit has
never adopted the Swiderski doctrine nor have we found that any
other circuit has done so. In United States v. Young, 655 F.2d 624
(5th Cir. 1981), we found Swiderski inapplicable to a defendant
who, while negotiating the sale of cocaine, was also sampling it.
Id. at 627. In United States v. Pool, 660 F.2d 547 (5th Cir.
1981), without mentioning Swiderski by name, we observed that the
statutorily prohibited distribution of drugs may, "in appropriate
circumstances," refer to the distribution of a controlled substance
from one conspirator to another. Id. at 561.
In a factual situation very similar to the instant case, the
Ninth Circuit declined to follow Swiderski. See United States v.
Wright, 593 F.2d 105, 108 (9th Cir. 1979). There the defendant was
given money by a friend and asked to procure heroin so that the two
might use it together. The defendant left the friend's dwelling,
procured the heroin, and returned to the friend, whereupon they
"snorted" it together. Id. Expressly without endorsing Swiderski,
the Ninth Circuit found it inapplicable because the two users in
question had not purchased the substance simultaneously. Instead
the defendant "operated as the link between the person with whom he
intended to share the heroin and the drug itself." Id. The Wright
court noted this language from Swiderski itself: "The agent who
delivers to his principal performs a service in increasing the
distribution of narcotics. Without the agent's services the
principal might never come into possession of the drug." Id.,
quoting Swiderski, 548 F.2d at 541.
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We also need not pass on the validity of the Swiderski
doctrine because, just as in Wright, the doctrine does not apply to
the facts of this case. The evidence here shows that only Weeks
and perhaps Speer and Smith, could be said to have "simultaneously"
acquired possession of the cocaine. It is undisputed that at least
some of the cocaine was intended by the trio to be subsequently
distributed to Pierce, who was not at or near the scene of the
transaction. Accordingly the trial court did not abuse its
discretion in declining to give the proffered instruction.
III.
Expert Testimony
Defendants contend that the trial court erred in admitting the
expert testimony of DEA Agent Lunt ("Lunt"), because his testimony
exceeded the limitation of Fed.R.Evid. 704(b)2 or alternatively,
that his testimony was an impermissible use of "profile" evidence
as substantive evidence of guilt. "We review a trial judge's
admission of evidence under an abuse of discretion standard."
United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992).
Agent Lunt is a twenty-year-plus veteran of the DEA who has
been involved in several hundred drug arrests involving both large
and small amounts of drugs. He was not involved in the arrest of
2
Rule 704(b) states:
No expert witness testifying with respect to
the mental state or condition of a defendant
in a criminal case may state an opinion or
inference as to whether the defendant did or
did not have the mental state or condition
constituting an element of the crime charged
or of a defense thereto. Such ultimate issues
are matters for the trier of fact alone.
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the Defendants. The following are excerpts from Lunt's direct
examination, which the court allowed over both defense counsels'
objections:
Government: Agent Lunt, pursuant to the testimony in
this case that individuals have taken possession of 30
grams of cocaine, now, from that, do you have an opinion
as to what a person being in possession of cocaine would
be consistent with or not consistent with?
. . .
Lunt: It is my opinion that a person in possession of 30
grams of cocaine is consistent with narcotic trafficking.
In my experience, it is not consistent that a person that
would purchase 30 grams of cocaine would purchase that
for his own personal use.
. . .
Government: Agent Lunt, in this case there's been
testimony that during the buy in which the defendants
bought 30 grams of cocaine from an undercover officer,
one of the defendants pulled out a scale that weighs in
grams. Pursuant to your expertise, do you have an
opinion regarding what that would be consistent with,
that person pulling out scales and buying a weight [sic]
in 30 grams?
. . .
Lunt: That possession of scales is consistent with
narcotic trafficking.
. . .
Lunt: From my experience, I think it would be
inconsistent for a user to carry a scale around.
Following these responses, Lunt explained the grounds for these
opinions, describing in some detail his previous experience with
drug arrests.
The benchmark case involving Rule 704(b) is United States v.
Dotson, 817 F.2d 1127 (5th Cir. 1987), aff'd in pertinent part on
reh'g, 821 F.2d 1034 (1987), which involved a tax evasion charge.
In Dotson, a panel of this Court found that the district court did
not abuse its discretion in permitting the following expert
testimony:
In 1983, again, [Dotson's net worth] increased again
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forty thousand dollars, almost the same amount it did in
1981 through the period, so they are consecutive
increases, which lead me to believe that Mr. Dotson's net
worth and/or his equity was increasing through the
period. This is indicative, and based on my experience
shows to me, that he willfully and intentionally
increased his income knowing full well that he had not
reported the taxes due thereon.
Id. at 1132. The Dotson court acknowledged that the second quoted
sentence was on the "borderline" between a forbidden opinion on the
"ultimate legal issue" and a mere explanation of the expert's
analysis of facts which would tend to support a jury finding on the
ultimate issue. Id. The court found it noteworthy that "the focus
of the government's questions was on facts that might support the
jury's acceptance of an inference of intent... [and] the responses
of the expert were also focused on the evidence, rather than
addressing the ultimate issue forbidden by rule 704." Id. The
court also considered that the appellant did not renew an earlier
objection when the questionable statement was made. Id. It
concluded that, "viewed in the context of that otherwise
straightforward portion of [the expert's] examination," an
interpretation of the sentence in favor of the government was more
reasonable. Id.
This Court has since cited Dotson for the proposition that
Rule 704(b) is not strictly construed and prohibits only a direct
statement of the defendant's intent. United States v. Triplett,
922 F.2d 1174, 1182 (5th Cir.), cert. denied, 500 U.S. 945, 111
S.Ct. 2245, 114 L.Ed.2d 486 (1991); United States v. Masat, 896
F.2d 88, 93 (5th Cir 1990). Similarly, in United States v. Moore,
997 F.2d 55, 57-58 (5th Cir. 1993), without expressly mentioning
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Rule 704(b), we upheld the testimony of an expert who "never
testified explicitly as to the defendants' intent or state of
mind."
Agent Lunt's statements in this case do not cross the
"borderline" defined in Dotson. We conclude that his testimony can
more accurately be characterized as an analysis of the evidence in
the light of his special knowledge as an expert in the area of
narcotics trafficking. The district court did not abuse its
discretion in admitting this testimony.3
IV.
Excusal of Juror
Defendant Speer contends that the record lacks factual support
for the trial judge's decision to excuse a seated and sworn juror.
"[I]t is within the trial judge's sound discretion to remove a
juror whenever the judge becomes convinced that the juror's
abilities to perform his duties become impaired." United States v.
Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992), cert. denied, __
U.S. __, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993), citing United
States v. Dominguez, 615 F.2d 1093, 1095 (5th Cir. 1980). This
Court will not disturb the trial judge's decision unless there is
3
We also disagree that Lunt's testimony was an impermissible use of profile evidence.
Profile evidence is "a compilation of characteristics which aid law enforcement officials in
identifying persons who might be trafficking in illegal narcotics." Williams, 957 F.2d at 1242.
Lunt explained the meaning of physical evidence--cocaine and scales--found at the scene of the
transaction. There is no issue of identity here. See, e.g., United States v. Robinson, 978 F.2d
1554, 1564 (10th Cir. 1992), cert. denied, _____ U.S. ____, 113 S.Ct. 1855, 123 L.Ed.2d 478
(1993) (discussion of profile evidence inappropriate because testimony related to direct
evidence).
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prejudice to the defendant or another party. Huntress, 956 F.2d at
1312.
Before the commencement of trial in this case, seated and
sworn juror Yu-Mei Corley ("Corley") informed the court that she
had a scheduling conflict the following day. When the district
judge questioned her regarding the nature of the conflict, Corley
first responded that she thought "they wouldn't pick on me because
of my English problem, and plus I have appointment tomorrow."
After questioning Corley at length, neither the judge nor any of
the three attorneys present could discern the purpose of her
appointment.4 When asked if she had trouble communicating in
English, Corley stated "I understand but sometimes they have to
repeat two or three times and make it more understand." She also
stated that she had to repeat herself to be understood by others.
Over Speer's objection, the judge excused Corley because he
believed that the other jurors would not be able to communicate
with her and that she "probably would detract from [the jury
process] by causing difficulty in the deliberations." The judge
replaced Corley with a duly selected alternate juror. The record
adequately supports the judge's determination that Corley's ability
to perform her duties as a juror were impaired by her inability to
understand or communicate effectively in English. Accordingly, we
find no abuse of discretion.
4
Speer's attorney conceded that he could not understand
Corley's explanation about her conflicting appointment, but
nevertheless argued that Corley could understand English and that
the "other jurors can be patient enough to make sure that she has
an independent voice in this matter."
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V.
Sufficiency of Evidence
"In reviewing a verdict challenged on the sufficiency of the
evidence, this Court views the evidence, whether direct or
circumstantial, and all reasonable inferences drawn from the
evidence, in the light most favorable to the jury's verdict...[to]
determine whether `a rational trier of fact could have found that
the evidence established the essential elements of the offense
beyond a reasonable doubt'." Willis, 6 F.3d at 264 (citations
omitted).
A. § 841(a)(1) Convictions
Both Defendants challenge the sufficiency of the evidence
underlying their convictions for possession of cocaine with intent
to distribute. Weeks specifically challenges the possession
element of the offense. Pointing to the fact that the cocaine was
ultimately found in the car, Weeks argues that he could not have
been in possession of it. Based on evidence that the arrests
occurred quickly and that he was found against a fence where the
cars were parked, he maintains that it would have been a physical
impossibility for him to have received the cocaine and place it in
the Pierce car before the arrest. He suggests that officer Wooten
never gave him the cocaine but instead planted it in the car. On
the other hand, Wooten unequivocally testified that he gave the
cocaine to Weeks in exchange for money. He also testified that he
and Weeks were standing between the two cars when the arrest signal
was first given. The various testimonies describing the time lapse
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between the arrest signal and the arrests were obviously only
estimations. The jury was free to believe Wooten's testimony and
could have concluded from Weeks' own proximity to the car that he
was the person who thereafter placed, or tossed, the cocaine
inside. The evidence was sufficient to support a finding that
Weeks had actual possession of the cocaine.
Both defendants challenge the sufficiency of the evidence on
the intent-to-distribute element. While conceding that at least
some of the cocaine was intended for distribution to Both Pierce,
the defendants argue that such distribution would be insufficient
as a matter of law under the Swiderski doctrine. For reasons
discussed in Part II, supra, we reject that argument. The
defendants also contend that the opinion testimony of Agent Lunt
concerning a possible wider distribution plan was legally
insufficient for reasons we have discussed and also rejected in
Part III, supra. We conclude that the evidence was sufficient to
sustain the convictions of both defendants for possession with
intent to distribute cocaine.
B. Weeks' § 922(g)(1) Conviction
Defendant Weeks challenges the sufficiency of the evidence
that, as a felon, he knowingly possessed a firearm, observing that
he did not own the vehicle in which the weapon was found, he was
not present when Speer obtained the weapon and had no access or
control over the weapon or over Speer, who actually possessed the
gun. Knowing possession of the firearm is an essential element for
conviction under §922(g)(1). United States v. Murray, 988 F.2d
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518, 521 (5th Cir. 1993). Possession may be actual or
constructive. United States v. Perez, 897 F.2d 751, 754 (5th Cir.
1990), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141
(1990). Constructive possession is the "exercise of, or the power
or right to exercise dominion and control over the item at issue
and may be shown by dominion over the vehicle in which the item is
located." Id.; see United States v. Orozco, 715 F.2d 158, 161 (5th
Cir. 1983)(constructive possession of weapon located in trunk where
defendant-passenger did not own vehicle, but had kept it at his
home).
We recently upheld a jury's finding of constructive possession
of a firearm by a felon who was the driver of a vehicle, where the
firearm was found under the driver's seat, and the defendant had
matching ammunition on his person. United States v. Prudhome, 13
F.3d 147, 149 (5th Cir.) cert. denied, ___ U.S. ___, 114 S.Ct.
1866, 128 L.Ed.2d 487 (1994). Here, defendant Weeks was the driver
of a vehicle in which the front-seat passenger was in visible
possession of a firearm. When undercover agent Wooten questioned
the presence of the firearm, Weeks himself responded that it was in
the vehicle so that he would not be "ripped off." We conclude that
this is sufficient evidence that Weeks was in constructive
possession of the weapon in violation of § 922(g)(1).
C. Weeks' § 924(c) Conviction
Under this section, the Government was required to prove 1)
that Weeks committed the drug-trafficking crime of possession with
the intent to distribute cocaine and, 2) that he knowingly used or
13
carried the firearm, 3) during and in relation to that crime. See
Willis, 6 F.3d at 264. Actual possession or use of the firearm is
not necessary; it need only have been "available to provide
protection to the defendant in connection with his engagement in
drug trafficking." Id. citing United States v. Mora, 994 F.2d
1129, 1140-41 (5th Cir.) cert. denied, ___ U.S. ___, 114 S.Ct. 417,
126 L.Ed.2d 363 (1993).
We have already found the evidence sufficient to prove that
Weeks possessed cocaine with intent to distribute. However, Weeks
disputes the sufficiency of the evidence that he knowingly used or
carried the firearm. The "carrying" requirement of Section 924(c)
is met where a defendant operates a vehicle knowing the firearm is
in the car. United States v. Ruiz, 986 F.2d 905, 910 (5th Cir.)
cert. denied, ___ U.S. ___, 114 S.Ct. 145, 126 L.Ed.2d 107 (1993);
United States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert.
denied, __ U.S. __, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992). Weeks'
response to the undercover agent's question regarding the purpose
of the weapon supports a finding that he knew that the weapon was
in the vehicle when he operated it, therefore "carrying" the weapon
under Ruiz.
Weeks next disputes that there is sufficient evidence of a
relationship between the firearm and the drug trafficking crime,
apparently because the firearm was in the vehicle while the
transaction took place outside. We have previously held that a
reasonable jury could conclude that a shotgun, displayed in the
rear window of a pickup truck used to deliver marijuana, served to
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protect the defendant "in the course of distributing the
marihuana." United States v. Coburn, 876 F.2d 372, 375 (5th Cir.
1989). Here, the visibility of the firearm, as well as Weeks'
statement about the purpose of the weapon, establishes that it was
intended to serve as protection in relation to the drug trafficking
offense. Accordingly, we find that there was sufficient evidence
in the record to sustain Weeks' conviction on 924(c).
VI.
Enhancement of Weeks' Sentence
Defendant Weeks appeals the enhancement of his sentence under
18 U.S.C. §924(e). We review the sufficiency of proof of prior
convictions de novo. United States v. Martinez-Cortez, 988 F.2d
1408, 1410 (5th Cir.) cert. denied, ___ U.S. ___, 114 S.Ct. 605,
126 L.Ed.2d 570 (1993). There is no dispute that Weeks has
numerous prior felony convictions: 1978 in Georgia (burglary),
1982 in Matagorda County, Texas (burglary of habitation); 1988 in
Houston (robbery); 1988 in Montgomery County, Texas (burglary of
habitation); 1988 in Houston (burglary of a building). Contrary to
Weeks' argument, burglary is a crime of violence for purposes of §
924(e). United States v. Blankenship, 923 F.2d 1110, 1118 (5th
Cir.) cert. denied, 500 U.S. 954, 111 S.Ct. 2262, 114 L.Ed.2d 714
(1991). Weeks also appears to argue that his burglary convictions
should be lumped together because they should be considered "one
continuous course of criminal conduct." This position is also
contrary to Fifth Circuit precedent. In U.S. v. Washington, 898
F.2d 439, 440 (5th Cir.), cert. denied, 498 U.S. 842, 111 S.Ct.
15
122, 112 L.Ed.2d 91 (1990), the activities underlying the prior
convictions were committed within a few hours of each other, at the
same location and against the same victim. We held that because
the defendant "successfully completed" and "safely escaped" the
first robbery, with an intervening period devoid of criminal
activity before committing the second robbery, the convictions were
based on distinct criminal episodes. Id. at 442. The incidents
underlying Weeks' various convictions are months, days and even
years apart. We conclude that the district court properly counted
each of Weeks' prior convictions separately.
For the foregoing reasons, Weeks' and Speer's convictions and
Weeks' sentence are AFFIRMED.
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