United States v. Sylvester

REVISED September 21, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 18, 2009
No. 08-30586
Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

DONALD SYLVESTER, also known as Big

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Donald Sylvester seeks to overturn his murder conviction, arguing that the
district court erred in allowing the prosecution to use–in its case-in-chief–
statements Sylvester made during failed plea negotiations, when he, as a
condition to negotiations, knowingly and voluntarily waived his right to object
to such use.
I
This case springs from a large-scale drug conspiracy in Houston and New
Orleans that ended with the apprehension of all key members and the murder
of a federal witness, Demetra Norse. At the time of her death in June 2003,
 No. 08-30586

Norse was set to testify against a member of the conspiracy, Tamara Durand.
Nearly a year later, the government obtained a warrant for the arrest of
Sylvester for the murder. Soon thereafter, Sylvester voluntarily surrendered.
Accompanied by his attorney at the time, Sylvester met prosecutors at the
United States Attorney’s Office in the Eastern District of Louisiana, and was
advised of his Miranda rights and informed that he was under arrest for murder
and various gun and drug charges. An Assistant United States Attorney,
Maurice Landrieu, played an audio recording in which a member of the drug
conspiracy, Terrance Lash, identified Sylvester as Norse’s killer. (A jury later
convicted Lash for arranging the murder.)1 Landrieu also confronted Sylvester
with a description of the killer and the killer’s car from a 911 call, as well as
evidence obtained during a pre-arrest search of Sylvester’s car: cocaine, a
newspaper that noted Norse’s killing, and rap lyrics describing a similar murder.
Landrieu then explained that the Attorney General had the discretion to
seek capital punishment for the murder of a federal witness, but proposed that,
in return for a full confession that could be used against Sylvester in court if
there were a trial, and cooperating in the case, Landrieu would ask permission
from the Attorney General to seek life imprisonment instead.
After consulting with his attorney, Sylvester waived objection to the
admission of incriminating statements at trial in the event that plea
negotiations failed and the parties proceeded to trial. Landrieu made the
promised recommendation to the Attorney General, but shortly after the

1
Lash did not testify at Sylvester’s trial because he later recanted his story, and pled
not guilty at his own trial for arranging for Norse’s murder. United States v. Terrance Lash,
Criminal No. 03-135 (E.D. La.). At Sylvester’s trial, the tape recording was played for the jury,
but with a limiting instruction that it be considered only as probative of Sylvester’s state of
mind during the plea meeting, and not for the truth of the matter asserted.

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meeting, Sylvester changed his mind, decided to go to trial, and requested new
counsel, whom the court appointed.2
Pursuant to Federal Rule of Evidence 410, Sylvester moved to suppress
statements he had made during plea negotiations. The district court conducted
a full evidentiary hearing and, after post-hearing briefing, denied Sylvester’s
motion. In its order, the district court found Sylvester’s waiver to be knowing
and voluntary, and allowed the use of his plea statements in the government’s
case-in-chief.
With that order in hand at trial, the government introduced Sylvester’s
confession in its case-in-chief, as well as other evidence of his guilt including:
descriptions of the killer matching Sylvester from two eyewitnesses; an
eyewitness description of the killer’s gold Ford sedan matching Sylvester’s;
records of numerous phone calls between Sylvester and Lash leading up to the
murder, including one ten minutes before, as well as phone calls between the two
later that night. The prosecution also introduced evidence of various items
seized from Sylvester’s car including photographs of him together with Lash, rap
lyrics describing a murder similar to Norse’s, a newspaper with an article
describing recent local murders (Norse’s among them), and cocaine. In addition,
Durand, now a government witness herself, testified that Sylvester regularly
purchased cocaine from Lash, dealt drugs, and was the heir-apparent to the
conspiracy’s New Orleans operations. Other drug conspiracy cohorts testified.
For example, Shelton Roberts related that Lash called him after the murder
asking to borrow his truck (phone records indicate this was two minutes after

2
Landrieu then petitioned the Attorney General for permission to seek the death
penalty. The petition was denied.

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Sylvester had called Lash), and that after Lash returned with the truck, he told
Roberts that Norse was dead. During the time Roberts said Lash was in his
truck, phone records show that Lash made two calls to Sylvester.
Sylvester testified on his own behalf, disavowing involvement with the
murder, while admitting to knowing Lash and trafficking “kilos” for him.
A jury convicted Sylvester on multiple felony counts, all stemming from
the same factual matrix of murder and narcotics trafficking. The district court
sentenced him to concurrent life sentences on seven counts, and concurrent
terms of years on three others.

II
Sylvester’s appeal presents an issue of first impression in this court:
whether the government may use a defendant’s statements made in the course
of plea negotiations in its case-in-chief, when the defendant, as a condition to
engaging in negotiations with the government, knowingly and voluntarily
waived all rights to object to such use.3 The district court agreed with the
government’s contention that Sylvester’s waiver is enforceable. Our review of
this legal question is de novo.4

A

3
The parties agree that the statements at issue were made during plea negotiations
and that Sylvester made them knowingly and voluntarily.
4
Whether Rule 410 is waivable with respect to the use of plea statements in the
government’s case-in-chief is a legal conclusion, reviewed de novo. While the government is
correct that a district court’s admission of evidence, if objected to, is reviewed for abuse of
discretion, de novo review of attendant legal issues is a component part of that abuse of
discretion review. Koon v. United States, 518 U.S. 81, 100 (1996).

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Ordinarily, under Federal Rule of Evidence 410 and Federal Rule of
Criminal Procedure 11(f),5 statements made by a defendant during plea
negotiations are inadmissible at trial.6 These Rules address both individual and
systemic concerns in their attempt “to permit the unrestrained candor which
produces effective plea discussions.”7 Most rights afforded criminal defendants,
including these, are not inalienable, however. In the seminal case of United
States v. Mezzanatto, seven members of the Supreme Court held that a criminal
defendant can waive Rule 410 protection and make otherwise excludable plea
statements admissible at trial “absent some affirmative indication that the
agreement was entered into unknowingly or involuntarily.”8 Notwithstanding
this broad pronouncement, the Court in Mezzanatto upheld a more limited
waiver than Sylvester’s, one that allowed the government to use statements
made in plea negotiations to impeach the defendant if he testified at trial, and
five justices expressed doubt as to whether a waiver could be used to admit the
defendant’s statements in the government’s case-in-chief. Two dissenters

5
Federal Rule of Criminal Procedure 11(f) (formerly 11(e)(6)) is substantively identical
and merely states that the admissibility of plea statements is governed by Federal Rule of
Evidence 410.
6
FED. R. EVID. 410 (“Except as otherwise provided in this rule, evidence of the following
is not, in any civil or criminal proceeding, admissible against the defendant who made the plea
or was a participant in the plea discussions: . . . (4) any statement made in the course of plea
discussions with an attorney for the prosecuting authority which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn.”).
7
FED. R. CRIM. P. 11 Advisory Committee’s Note (1979) (internal citations omitted).
8
513 U.S. 196, 210 (1995).

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disavowed waiver entirely,9 while three justices concurred to raise the question
of whether “a waiver to use such statements in the case-in-chief would more
severely undermine a defendant’s incentive to negotiate,” thereby presenting a
more pressing public policy justification for disallowing waiver.10
Now presented with a case-in-chief waiver, however, we can find no
convincing reason for not extending Mezzanato’s rationale to this case. Justice
Thomas, writing for the Mezzanatto majority, set forth a framework for
analyzing plea-statement waiver. He first discerned a “background presumption
that legal rights generally, and evidentiary provisions specifically, are subject
to waiver by voluntary agreement of the parties.”11 Thus, without affirmative
indication that Congress intended to proscribe waiver of statutory protections,
including evidentiary rules, voluntary agreements to waive these protections are
presumptively enforceable.12 As for Rules 410 and 11(e)(6), Justice Thomas
found no indication of congressional disfavor toward waiver, either in the rules’
text or in their attendant Advisory Committee’s Notes.13 Against this backdrop,
Justice Thomas then explained that courts should examine the public policy
justifications, if any, for departing from the norm. In Mezzanatto, he looked to

9
Id. at 218 (Souter, J., dissenting) (expressing concern that a defendant who gives such
a waiver “will be unable even to acknowledge his desire to negotiate a guilty plea without
furnishing admissible evidence against himself then and there”).
10
Id. at 211 (Ginsburg, J., O’Connor, J., and Breyer, J., concurring).
11
Id. at 203–04. Cf. 2 J. WEINSTEIN, ET AL, WEINSTEIN’S EVIDENCE par. 410[05] (1994).
(“Rules 410 and 11(e)(6) ‘creat[e], in effect, a privilege of the defendant.”)
12
Id.
13
Id. at 208 n.5.

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three potential rationales for overriding the presumption of waivability. He
rejected each.
Perhaps chief among these concerns is the integrity of the judicial system.
Yes, “[t]here may be some evidentiary provisions that are so fundamental to the
reliability of the fact-finding process that they may never be waived,” but, as
Justice Thomas reasoned, “enforcement of agreements like respondent’s plainly
will not have that effect.”14 This is because “admission of plea statements for
impeachment purposes enhances the truth-seeking function of trials and will
result in more accurate verdicts.”15 When the prosecution seeks to enforce a
waiver allowing it to use plea statements for impeachment, the defendant
“[u]nder any view of the evidence . . . has made a false statement, either to the
prosecutor during the plea discussion or to the jury at trial.”16 “[M]aking the
jury aware of the inconsistency will tend to increase the reliability of the verdict
without risking institutional harm to the federal courts.”17
Nor is waiver at odds with Rule 410's goal of encouraging voluntary
settlement, an argument that had persuaded the court of appeals. Mezzanatto
cautions that focusing solely on the defendant’s incentives to plead guilty, as the
court of appeals did, “completely ignored the other essential party to the
transaction: the prosecutor.”18 Even if waiver discourages some defendants from
negotiating, “it is also true that prosecutors may be unwilling to proceed without

14
Id. at 204.
15
Id.
16
Id. at 205.
17
Id.
18
Id. at 207.

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it.”19 Instead of precluding negotiation over an issue “[a] sounder way to
encourage settlement is to permit the interested parties to enter into knowing
and voluntary negotiations without any arbitrary limits to their bargaining
chips.”20
And, while defendants do face considerable pressure to plead guilty and
to abandon many rights, Justice Thomas rejected the notion that waiver
agreements invite prosecutorial overreaching and abuse.21 He explained that
our criminal justice system presents many such loaded decisions for
defendants–indeed the plea bargaining process necessarily exerts such
pressure–and, absent specific evidence that the agreement was entered into
unknowing or involuntarily, courts cannot infer abuse of prosecutorial
bargaining power.22
Sylvester requests we draw a line between the waiver in Mezzanatto and
his own. His arguments, however, fail to convince. Instead, Mezzanatto’s
reasoning lights upon little ground for finding an analytically coherent boundary
between waivers for purposes of impeachment or rebuttal and waivers for the
prosecution’s case-in-chief. At least four circuits, including the Second, Third,

19
Id.
20
Id. at 208. A defendant may himself introduce his own plea statements, and indeed,
the Rules themselves contemplate such a result in permitting the admission of statements
made “in any proceeding wherein another statement made in the course of the same . . . plea
discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it.” Id. at 205–06 (quoting FED. R. EVID. 410(i)) (emphasis added by
Mezzanatto) (internal quotation marks omitted). “Thus, the plea-statement Rules expressly
contemplate a degree of party control that is consonant with the background presumption of
waivability.” Id.
21
Id. at 210.
22
Id.

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Seventh, and Ninth, already countenance rebuttal waivers, allowing use of a
defendant’s plea statements if the defendant presents any evidence at trial that
contradicts his plea statements.23 Going further, Justice Souter’s Mezzanatto
dissent (in which Justice Stevens joined) saw no principled limit to the Court’s
approach to waiver: “[i]f objection can be waived for impeachment use, it can be
waived for use as affirmative evidence.”24 Whether a sincere statement, or
rhetorical flourish, we agree with Justice Souter on that account–as do two sister
circuits.
Of the pair, the D.C. Circuit’s explanation is the more complete. (Although
also countenancing a limitless waiver, the Eighth Circuit’s opinion in United
States v. Young asked only whether the defendant made it knowingly and
voluntarily–ignoring any potential limits of Mezzanatto’s holding–and does not
provide this court with much persuasive pillaring).25 In United States v. Burch,
the D.C. Circuit analyzed and then discarded the two primary arguments
Sylvester now presents for restricting Mezzanatto’s reach: that it would
undermine Congress’s attempt to promote candid plea negotiations, in part
because case-in-chief waivers will have a markedly greater impact on the

23
What constitutes contradictory evidence varies by circuit and the language of a
particular plea agreement. United States v. Hardwick, 544 F.3d 565, 570 (2008) (permitting
waiver for rebuttal purposes); United States v. Velez, 354 F.3d 190 (2d Cir. 2004) (same);
United States v. Rebbe, 314 F.3d 402 (9th Cir. 2002) (same); United States v. Krilich, 159 F.3d
1020 (7th Cir. 1999) (same).
24
Id. at 217 (Souter, J. and Stevens, J., dissenting).
25
223 F.3d 905, 911 (2000). In an unpublished (and non-dispositive) opinion, this court
has also enforced a waiver that “did not limit the government’s ability to use [the defendant]’s
statements” but this provision was only triggered on the defendant’s breach, and the court
relied in part on contract principles. United States v. Davila, 55 F.3d 632, 1995 WL 313937
(5th Cir. May 2, 1995).

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willingness of defendants to participate in such negotiations; and that more
expansive waivers undermine the reliability of the fact-finding process.
Although Burch considered a somewhat distinct factual scenario in dismissing
these arguments, we find both unavailing in Sylvester’s case as well.26
B
Principal among Sylvester’s claims is his assertion that allowing
defendants to fully waive the protections of Rules 11(e)(6) and 410 would
undermine the policy of encouraging plea bargaining. On a first look, this
appears to have force; Congress accepted Rules 11(e)(6) and 410 with their goal
of permitting candid plea discussions, serving personal as well as institutional
interests. On closer inspection, however, we agree with Burch that “any
argument relying on [congressional] intent [to promote candor] is too weak to
justify refusing to allow use of . . . plea statement[s] in the government’s case-in-
chief.”27 Mezzanatto, for its part, explained that impeachment waivers do not
undermine these efforts, and we see no reason why this rationale should not
extend to case-in-chief waivers as well. Though “sanctioning waivers for the use
of plea statements in the prosecution’s case-in-chief, as opposed to impeachment
or rebuttal, could have a markedly greater impact on the willingness of

26
156 F.3d 1315, 1322–23 (D.C. Cir. 1998) (considering statements made in the
defendant’s written plea agreement and during subsequent debriefing sessions as covered by
the protections of Rules 410 and 11(e)(6) (now 11(f))).
27
Id. at 1321.

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defendants to participate in such negotiations,”28 neither Sylvester nor case law
has provided any supporting reason why this may be so.29
Instead, it seems unlikely to us that any significant number of defendants
would draw fine distinctions as to whether statements made in the course of plea
negotiations could be used in the government’s case-in-chief or only for
impeachment and rebuttal.30 Even with such an exacting decisionmaker, the
choice is somewhat illusory.
As both the Second and Seventh Circuits have observed, a rebuttal waiver
might be worded so broadly as to allow admission of plea statements in the
government’s case-in-chief; in other words, “rebuttal” will sometimes mean the
countering of factual assertions made during defense counsel’s opening
statement or cross-examination of government witnesses.31 For example, in
United States v. Barrow, the Second Circuit endorsed a rebuttal waiver that
permitted introduction of the defendant’s plea statements to contradict any
factual assertions made by the defense at any stage of criminal prosecution,
including during opening statements.32 In Barrow, defense counsel’s opening
made it clear that his theory was one of mistaken identity, in the process
pointing the finger at another putative suspect and triggering the rebuttal

28
Id. at 1322.
29
See id. (finding case law similarly unavailing).
30
Cf. id.(“Lacking any evidence to the contrary, it seems unlikely that most defendants
would draw fine distinctions as to whether statements made in the course of or after the plea
proceeding could be used in the government’s case-in-chief or only in rebuttal.”)
31
United States v. Barrow, 400 F.3d 109, 117 n.7 (2d Cir. 2005); Krilich, 159 F.3d at
1025.
32
Barrow, 400 F.3d at 114.

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waiver.33 The Third Circuit has also held a rebuttal waiver activated on cross-
examination of government witnesses, when the inquiries were “aimed at
inferring” that others committed the crime, contrary to the defendant’s plea
statements.34
With a rebuttal waiver then, “a defendant can open the door to
introduction of proffer statements as easily on the government’s case-in-chief .
. . . as on his own case.”35 If a defendant opens this door during the government’s
case-in-chief and then “rests without presenting any direct evidence, the only
opportunity the government will have to rebut the evidence elicited . . . will be
on its direct case.”36 This circumstance left the Second Circuit unconvinced that
admission of plea statements in the government’s case-in-chief necessarily
constitutes error; rather, it determined that “the critical issues for purposes of
determining admissibility should be whether defendant’s waiver does explicitly
apply . . . and whether he has, in fact, triggered the waiver.”37
These sister-circuit approaches accord with our own treatment of so-called
“similar act evidence.” Where it is apparent that the defendant will dispute the

33
Id. at 117. Similarly, in his opening statement, Sylvester’s attorney urged that his
client had no involvement whatsoever in Norse’s murder, instead claiming that another
individual had been hired by Lash and committed the murder. We decline to characterize this
as triggering “rebuttal,” however, because the government’s incipient introduction of
Sylvester’s confession may have dictated this defense strategy, and in any event, the
prosecution referenced the confession in its opening statement.
34
Hardwick, 544 F.3d at 571 (“One can otherwise present a position through
arguments of counsel alone, [and] it is easy to see how a position can be presented by evidence
developed on cross-examination and elaborated by counsel.”)
35
Barrow, 400 F.3d at 117, n.7.
36
Id.
37
Id.

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issue of intent, we allow the introduction of similar act evidence in the
government’s case-in-chief, even though it is normally only admissible on
rebuttal.38
From this perspective, case-in-chief waivers serve two salient prosecutorial
functions that broad rebuttal waivers cannot. First, case-in-chief waivers allow
the prosecution to use the defendant’s plea statements in an opening statement.
Second, they admit plea statements even if the defendant limits his defense to
credibility impeachment of government witnesses or essentially declines to wage
any defense at all. These differences may well be cognizable in an abstract, ex
post sense, but Sylvester has not convinced us that they have in practice or
would in theory persuade any significant number of defendants to refuse a case-
in-chief waiver, in favor of one limited to use in rebuttal.39 That now, with the
clarity of hindsight, he might wish for a different consequence, does not demand
upending a knowing and voluntary agreement.40

38
United States v. McMahon, 592 F.2d 871, 876 (5th Cir. 1979) (“But where it is evident
at the outset that intent will be an issue at trial, we have held that admission of the extrinsic
offense in the government’s case in chief does not constitute grounds for reversal. Under the
circumstances of this case where appellant, prior to trial, appeared before the Grand Jury and
denied hiring Barboa and Avilucia to transport aliens appellant’s defense could be anticipated
and it was clear that intent would be an issue at trial.”) (internal citations omitted).
39
Krilich, 159 F.3d at 1025 (internal quotation marks omitted).
40
See id. at 1026. (explaining, in the context of Rule 401 waiver, that “no party to a
contract has Humpty Dumpty’s power over language either directly or through the gambit that
unanticipated consequences render the agreement ‘involuntary’” and a “defendant’s
understanding of the consequences of his waiver need not be perfect” to be knowing and
voluntary) (emphasis in original).

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We acknowledge that Burch, and a few district court opinions to have
relied on it,41 involved waivers “executed as a result of plea negotiations”
(whereas Sylvester waived his rights as a precondition to negotiations), and
securing a waiver at a negotiation’s outset might present a more difficult
question.42 That being said, any heightened concern about too severely
undermining a defendant’s incentives to negotiate is diminished by Mezzanatto
itself, which also involved a waiver as a precondition to plea discussions. And,
of course, Sylvester does not argue that he suffered any hesitation in pleading
guilty with such a waiver; his hesitation, if any, arose only after he had obtained
the benefit of his bargain. So to the extent Sylvester’s waiver was of a personal
right, it was complete.
C
As for Sylvester’s second argument, which reaches for structural
support–that refusing to allow case-in-chief waivers will enhance or protect the
reliability of the fact-finding process–we are similarly unpersuaded. Sylvester’s
path would lead us farther from the truth, not closer. If anything, to ignore
relevant evidence of culpability simply because that evidence was discovered
during the course of plea negotiations would arguably undermine the truth-
seeking function of our criminal justice system. While in theory an innocent
defendant might execute such a waiver (and thus inject false statements into the
admissible record), the benefit of evaluating as much relevant evidence as
possible outweighs the mere possibility of such danger, and will, on balance,

41
See, e.g., United States v. Mitchell, 2009 WL 1393138, (D. Utah May 18, 2009);
United States v. El-Amin, 268 F. Supp. 2d 639, 642 (E.D. Va. 2003); United States v. Fabricius,
1996 WL 705888, *3 (N.D.N.Y. Dec. 3, 1996).
42
Burch, 156 F.3d at 1322.

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enhance the reliability of a fact-finder’s conclusions.43 Presumably a defendant
who is actually guilty will still seek the benefit of his bargain, and remain candid
even after making a waiver, lest his deception invalidate his bargained-for
agreement.
D
As Sylvester concedes, this is not a case of fraud or coercion; instead, he
made the waiver knowingly and voluntarily in the presence of counsel, while
obtaining the benefit of his bargain when the prosecutor requested a maximum
punishment of life imprisonment.
Though we have no occasion to labor on this front, we pause briefly to note
that Mezzanatto specifically encourages “case-by-case inquiries into whether
waiver agreements are the product of fraud or coercion.”44 As obvious as this
statement may be, we mention it only to cabin Sylvester’s appeal from those of
future defendants and make plain that we do not hold today that disparity in
bargaining power will never render a plea-statement waiver involuntary.
While even “gross disparity” in relative bargaining power does not mean
waiver is “inherently unfair and coercive,”45 we are not prepared to say that rank
difference in individual cases cannot render the defendant’s plea involuntary.
We acknowledge the proposition that “to the extent that there is a disparity

43
See Mezzanatto, 513 U.S. at 204–05 (citing Note, Contracts to Alter the Rules of
Evidence, 46 HARV. L. REV. 138, 142–43) (1933) (“[A] contract to deprive the court of relevant
testimony. . . stands on a different ground than one admitting evidence that would otherwise
have been barred by an exclusionary rule. One contract is an impediment to ascertaining the
facts, the other aids in the final determination of the true situation.”) (footnote omitted)).
44
Mezzanatto, 513. U.S. at 210.
45
Id.

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between the parties’ bargaining positions, it is likely attributable to the
Government’s evidence of the defendant’s guilt,” but also must note that this
rule of thumb is not invariably true.46 The hazard of an impulsive and
improvident response to a seeming but unreal advantage might prove coercive,
as might misrepresentations or manufactured evidence that overbear the will of
the defendant with a meaningful defense. But nothing of the sort is alleged
here, and given the die cast by Mezzanatto, we can find no reason to discern
between the waiver countenanced in that case and Sylvester’s.
Finally, despite the reality that allowing waiver in circumstances where
the government could not prove one or more elements of an offense without the
defendant’s statement presents a distinct line for possible limitation of waiver,
the argument is not made here and the sweep of Mezzanatto’s language offers
little hope for such line drawing by inferior courts–a line that only the high court
can draw, in a case where the contention is made.
III
Because Sylvester’s statements made during plea negotiations were
properly admitted at trial, we need not reach Sylvester’s argument that, absent
those statements, the government lacked sufficient evidence to convict him of the
murder-related and gun possession charges. However, regardless of whether
those statements were properly admitted, Sylvester also urges that “[t]here is
not a shred of evidence” to support his cocaine conspiracy conviction.47 We
disagree.

46
Velez, 354 F.3d at 196.
47
Sylvester concedes that the government’s evidence was sufficient to support his
conviction for possession of cocaine.

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Sylvester moved for judgment of acquittal on all counts at the close of the
government’s case-in-chief, and again at the close of evidence. So, we review the
sufficiency of the evidence to determine whether a rational trier of fact could
have found the essential elements of the conspiracy offense beyond a reasonable
doubt.”48 We view the evidence in the light most favorable to the verdict.49
To convict a defendant of a drug conspiracy, a jury must find beyond a
reasonable doubt an agreement that entails violation of federal narcotics laws,
the defendant’s knowledge of the agreement and intent to join it, and his
voluntary participation in it.50 There is no overt act requirement.51 The jury
may rely upon circumstantial evidence,52 including evidence of presence and
association, though those factors alone are insufficient to prove conspiracy.53
Durand testified that Sylvester was a regular customer of Lash’s, and that
she and Lash were planning on handing the conspiracy’s New Orleans
operations over to Sylvester (and another conspirator, Eddie Fatheree, confirmed
that Durand and Lash were planning to do so). Sylvester himself, testifying at
trial, admitted that he knew Lash and had distributed and trafficked cocaine for
him. Although later attempting to re-cast his involvement as trafficking drugs

48
United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).
49
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d, 462 U.S. 356
(1983).
50
United States v. Peters, 283 F.3d 300, 307 (5th Cir. 2002); United States v. Ayala, 887
F.2d 62, 67 (5th Cir. 1989).
51
Peters, 283 F.3d at 307.
52
Id.
53
Id.; United States v. Lechuga, 888 F.2d 1472, 1477 (5th Cir. 1989).

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from a city other than Houston (and thus apparently implying that he trafficked
for a different conspiracy than the one charged), a rational trier of fact could still
have found the essential elements of the offense beyond a reasonable doubt.
For these reasons, we find no error on any plane.
AFFIRMED.

18