UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30324
Summary Calendar
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United States of America,
Plaintiff-Appellee,
versus
Lorenzo Jefferson,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Louisiana
(CR-94-50069)
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October 27, 1995
Before KING, SMITH and BENAVIDES, Circuit Judges.
Per Curiam*:
Lorenzo Jefferson ("Jefferson") appeals from a jury verdict
finding him guilty of conspiracy to possess crack cocaine with the
intent to distribute and use of a firearm during and in relation to
the commission of a drug-trafficking crime in violation of 21
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
U.S.C. §§ 841, 846 and 18 U.S.C. § 924(c). Jefferson challenges
the sufficiency of the evidence to support his convictions. We
affirm.
II. BACKGROUND
In early October 1993, the Shreveport Police Department
received complaints that drugs were being sold at a residence
located at 6900 Lavender Street. The police contacted a
confidential informant, who agreed to go to the house and purchase
crack cocaine. After the informant successfully purchased crack,
the investigation continued. On October 13, 1993, Deputy U.S.
Marshal Andre Fuller went undercover and purchased drugs from
Jefferson and his roommate, Cedric McKeaver ("McKeaver"), at the
residence.
On May 19, 1994, agents executed arrest and search warrants at
the home on Lavender Street. As agents approached the home, they
encountered and arrested Jefferson, who appeared to be attempting
to run. McKeaver was arrested inside the home. The search yielded
approximately 245 grams of crack cocaine, forty-three grams of
marijuana, two handguns, and two rifles.
Jefferson and McKeaver were indicted on five counts. McKeaver
pleaded guilty and testified for the Government at Jefferson's
trial. The jury returned guilty verdicts on Counts I (conspiracy
to possess crack cocaine with intent to distribute), III
(possession with intent to distribute crack cocaine), and V
(knowingly using and carrying a firearm during and in relation to
a drug-trafficking crime). Jefferson appeals, challenging the
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sufficiency of the evidence to support the jury's verdict in Counts
I and V of the indictment.1
II. DISCUSSION
In reviewing the sufficiency of the evidence, this Court
determines whether, viewing the evidence and the inferences that
may be drawn therefrom in the light most favorable to the verdict,
a rational jury could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Charroux, 3 F.3d
827, 830-31 (5th Cir. 1993). The evidence need not exclude every
rational hypothesis of innocence or be wholly inconsistent with
every conclusion except guilt, provided that a reasonable trier of
fact could find the evidence establishes guilt beyond a reasonable
doubt. United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th
Cir.), cert. denied, 112 S. Ct. 2952 (1992). Juries are "free to
choose among all reasonable constructions of the evidence."
Charroux, 3 F.3d at 831 (quoting United States v. Chaney, 964 F.2d
437, 448 (5th Cir. 1992)). In addition, a reviewing court must
accept all credibility choices that tend to support the jury's
verdict. United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.
1991).
Jefferson contends that the evidence was insufficient to
establish that McKeaver and he engaged in a conspiracy to possess
crack cocaine with the intent to distribute. See 21 U.S.C. §§ 841,
846. To prove that Jefferson was involved in a conspiracy, the
1
Jefferson does not contest the jury's verdict on Count III of
the indictment.
3
Government must establish that (1) a conspiracy to possess
narcotics with the intent to distribute existed; (2) the defendant
knew of the conspiracy; and (3) the defendant voluntarily
participated in the conspiracy. United States v. Bermea, 30 F.3d
1539, 1551 (5th Cir. 1994), cert. denied, 115 S. Ct. 1113, 1825
(1995).
The indictment alleged that "[f]rom on or about October 8,
1993 and continuing to on or about May 19, 1994, . . . the
defendants, Cedric McKeaver and Lorenzo Jefferson, did knowingly
and intentionally conspire" to possess crack with the intent to
distribute. Jefferson contends that his conviction for conspiracy
is invalid because McKeaver testified that the cocaine found in the
house during the May 19th search belonged solely to Jefferson and
that Jefferson and he had no agreement to sell that cocaine
together.
The Government correctly asserts, however, that McKeaver's
testimony established that a conspiracy existed within the time
period alleged in the indictment. McKeaver testified that he and
Jefferson had sold "dope" together on many occasions during that
time period. He testified that each contributed money for the drug
purchases and that they split the profits on their sales. He also
admitted that the crack cocaine sold to Agent Fuller on October 13,
1993 could have been "both of ours."
Although McKeaver also testified that the cocaine found during
the search belonged to Jefferson alone and that he and Jefferson
did not always sell crack cocaine together, his testimony about the
sales in which Jefferson and he participated jointly was "not
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incredible or otherwise insubstantial on its face." United States
v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993). The jury, as final
arbiter of the credibility of the witnesses, was entitled to
believe McKeaver's testimony regarding the numerous occasions on
which he and Jefferson sold crack cocaine together. See id.
The record provides other evidence from which the jury could
have reasonably inferred that a conspiracy existed within the time
frame alleged in the indictment. Agent Fuller testified that he
purchased crack from McKeaver and Jefferson on October 13, 1993.
His testimony indicates that each was substantially involved in the
sale. Viewing the evidence in the light most favorable to the jury
verdict, we conclude that the evidence was sufficient to support
the conviction for conspiracy to possess crack cocaine with the
intent to distribute. See Charroux, 3 F.3d at 830-31.
Jefferson also challenges his firearms conviction. See 18
U.S.C. § 924(c). To establish an offense under section 924(c), the
Government must demonstrate that Jefferson: (1) used or carried a
firearm during and in relation to (2) an underlying drug-
trafficking crime. United States v. Munoz-Fabela, 896 F.2d 908,
911 (5th Cir.), cert. denied, 498 U.S. 824, 111 S. Ct. 76, 112 L.
Ed.2d 49 (1990).2 Although the Government must show that the
firearm played an integral part in the felony, the weapon need not
2
By not challenging his conviction for possession of crack
cocaine with the intent to distribute, which offense was based on
the crack cocaine found in the home at the time the firearms were
seized, Jefferson essentially concedes that the second element of
the section 924(c) test is satisfied. See Munoz-Fabela, 896 F.2d
at 911 (concluding that possessing with the intent to distribute
constitutes a drug-trafficking offense).
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actually be used or brandished. Id. The Government may meet its
burden by showing that the weapon facilitated or could have
facilitated the drug-trafficking offense. United States v. Capote-
Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 112 S.
Ct. 2278 (1992).
Jefferson's argument for reversal relies solely on McKeaver's
testimony that the weapons found in the home were used for hunting.
The jury, however, was free to reject this testimony based upon a
conclusion that it was not credible. See United States v.
Bustamante, 45 F.3d 933, 940 (5th Cir. 1995), petition for cert.
filed, 64 U.S.L.W. 3069 (U.S. July 5, 1995) (No. 95-60); United
States v. Anderton, 679 F.2d 1199, 1202 (5th Cir. 1982).
Testimony at trial established that ammunition, two handguns,
a rifle, and an "assault-type" rifle were found at the home during
the search. The presence of firearms in the home of a defendant
where drugs, money, and ammunition are also found is sufficient to
establish use of the firearm as an integral part of a drug-
trafficking offense. Capote-Capote, 946 F.2d at 1104; see United
States v. Thomas, 12 F.3d 1350, 1362 (5th Cir.), cert. denied, 114
S. Ct. 1861, 2119 (1994). In addition, Jefferson testified that
one gun, which police found under his mattress, was used "for
protection." This evidence provides sufficient support for the
jury's verdict that the firearms were used during and in relation
to a drug-trafficking offense.
Jefferson's convictions are affirmed.
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