United States v. Toler

United States Court of Appeals,

Eleventh Circuit.

No. 96-2827.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffery Jerome TOLER, Duane Roshell, John Thomas Williams, Reuben Bernard Averhart,
Victor Moorer, Keith Coleman, Christopher Gulley, Ursula Strong, Traci Mathis, Melody Dianne
Fontenot, Defendants-Appellants.

June 30, 1998

Appeals from the United States District Court for the Northern District of Florida. (No. 95-03089-
30/RV), Roger Vinson, Judge.

Before BLACK and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

BARKETT, Circuit Judge:

Ten appellants—Reuben Averhart, Keith Coleman, Melody Fontenot, Christopher Gulley,

Traci Mathis, Victor Moorer, Duane Roshell, Ursula Strong, Jeffery Jerome Toler, and John

Williams—appeal their convictions for conspiracy to possess with intent to distribute cocaine and

cocaine base.1 We find no reversible error in the numerous claims raised by appellants Averhart,

Coleman, Fontenot, Gulley, Moorer, Roshell, Toler, and Williams and, therefore, affirm their

convictions without further discussion. See 11th Cir. Rule 36-1.2 As Traci Mathis and Ursula

Strong's challenges to the sufficiency of the evidence supporting their convictions for conspiracy

1
Melody Fontenot was also convicted of one substantive count of possession with intent to
distribute cocaine and cocaine base.
2
They allege, in various combinations, that their convictions should be vacated based on: (1)
fatal variance, (2) juror misconduct, (3) violation of Batson v. Kentucky, (4) omission of a
buyer-seller jury instruction, (5) sufficiency of the evidence, (6) prosecutorial misconduct, and
(7) prejudicial joinder. Several appellants also challenges their sentences.
present more difficult cases, we address their claims in greater detail below. For the reasons that

follow, we affirm Strong's conviction but reverse Mathis' conviction.

I. DISCUSSION

"Conspiracy is an inchoate offense, the essence of which is an agreement to commit an

unlawful act." Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616

(1975). The agreement is the "essential evil at which the crime of conspiracy is directed," and

"agreement remains the essential element of the crime." Id. at 777 n. 10, 95 S.Ct. at 1290 n. 10.

We note that in some instances, our caselaw has used a shorthand analytic template: a

three-prong test which asks whether "(1) an agreement existed among two or more persons; (2) ...

the defendant knew of the general purpose of the agreement; and (3) ... the defendant knowingly

and voluntarily participated in the agreement." United States v. High, 117 F.3d 464, 468 (11th

Cir.1997).3 Approaching the offense of conspiracy in this fashion may be helpful in multi-defendant

conspiracy cases—where there exists an initial core group of conspirators and the government seeks

3
This test seems to have its origin in this circuit in Causey v. United States, 352 F.2d 203, 207
(5th Cir.1965). Sometimes the test is recited differently, and, in somewhat circular fashion, uses
the term "conspiracy" to define the components of a conspiracy. See, e.g., United States v.
Calderon, 127 F.3d 1314, 1326 (11th Cir.1997) (requiring proof that "(1) a conspiracy existed;
(2) appellants knew of the essential objectives of the conspiracy; and (3) appellants knowingly
and voluntarily participated in the conspiracy"); United States v. Mejia, 97 F.3d 1391, 1392
(11th Cir.1996) (same), cert. denied, --- U.S. ----, 117 S.Ct. 1016, 136 L.Ed.2d 893 (1997);
United States v. Kelly, 888 F.2d 732, 740 (11th Cir.1989) (same). However, it is clear that this
formulation employs the term "conspiracy" interchangeably with "agreement" and is not meant
to efface the centrality of the agreement element of conspiracy.

This tripartite formulation has become so commonplace that we have, on
occasion, lapsed into misbranding its three prongs "elements" of the crime of conspiracy.
See, e.g., United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994); United States v.
Hernandez, 896 F.2d 513, 518 (11th Cir.1990); United States v. Vera, 701 F.2d 1349,
1357 (11th Cir.1983); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1979)
(en banc).

2
to link peripheral players' subsequent joinder in the scheme—but it is somewhat redundant and

incomplete. It is axiomatic that the existence of an agreement necessarily implies knowledge of the

object of the agreement and the voluntary expression of assent to participate in its objectives.

Moreover, the second and third "prongs" of the test really speak to the type of evidence that might

be used to infer the defendant's agreement, that is, evidence of the defendant's knowledge of the

alleged scheme and evidence of the defendant's participation in the scheme. Additionally, the test

does not mention the essential element of a conspiracy that the object of the agreement must be

illegal.

Thus, the elements of the offense of conspiracy under 21 U.S.C. § 846 are: (1) an agreement

between the defendant and one or more persons, (2) the object of which is to do either an unlawful

act or a lawful act by unlawful means. See United States v. Parrado, 911 F.2d 1567, 1570 (11th

Cir.1990) ("To support a conspiracy conviction under 21 U.S.C. § 846, the government must prove

that there is an agreement by two or more persons to violate the narcotics laws."); 2 Wayne R. La

Fave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4 at 60 (1986).

Because the crime of conspiracy is "predominantly mental in composition," United States

v. Shabani, 513 U.S. 10, 16, 115 S.Ct. 382, 386, 130 L.Ed.2d 225 (1994), it is frequently necessary

to resort to circumstantial evidence to prove its elements. Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) ("Participation in a criminal conspiracy need not be proved

by direct evidence; a common purpose and plan may be inferred from a "development and

collocation of circumstances.' "); United States v. Gold, 743 F.2d 800, 824 (11th Cir.1984) (" "The

very nature of conspiracy frequently requires that the existence of an agreement be proved by

inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.'

3
") (quoting United States v. Ayala, 643 F.2d 244, 248 (5th Cir. Unit A 1981)) (brackets omitted).

Consequently, the government need not demonstrate the existence of a "formal agreement," Gold,

743 F.2d at 824, but may instead demonstrate by circumstantial evidence " "a meeting of the minds

to commit an unlawful act.' " United States v. Awan, 966 F.2d 1415, 1434 (11th Cir.1992) (quoting

United States v. Parker, 839 F.2d 1473, 1478 (11th Cir.1988)).4

In addition, the government must prove the conspiracy it charged in the indictment rather

than some other conspiracy. The government must show an "interdependence" among the alleged

co-conspirators in order to prove that the indicted conspiracy was a single unified conspiracy as

opposed to a series of smaller, uncoordinated conspiracies. United States v. Coy, 19 F.3d 629, 634

(11th Cir.1994) (citing United States v. Harrison, 942 F.2d 751, 756-57 (10th Cir.1991)).

Moreover, the government's proof must be beyond reasonable doubt. This means that "when

the sufficiency of the evidence to support any criminal conviction, including conspiracies, is

challenged on appeal, the correct standard of review is substantial evidence ... viewed in the light

most favorable to the government." United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir.1979)

4
It is this requirement of an agreement to participate in a criminal scheme that distinguishes
conspiracy from the related offense, aiding and abetting. See Iannelli, 420 U.S. at 777 n. 10, 95
S.Ct. at 1290 n. 10 (noting that "agreement remains the essential element of the crime [of
conspiracy], and serves to distinguish conspiracy from aiding and abetting which, although often
based on agreement, does not require proof of that fact"). As we have explained in the past,

[t]he essence of conspiracy is proof of a conspiratorial agreement while aiding
and abetting requires there be a "community of unlawful intent" between the aider
and abettor and the principal. While a community of unlawful intent is similar to
an agreement, it is not the same. Thus, a defendant may wittingly aid a criminal
act and be liable as an aider and abettor, but not be liable for conspiracy, which
requires knowledge of and voluntary participation in an agreement to do an illegal
act.

United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980) (citation omitted).

4
(en banc) (emphasis in original).5 In Malatesta, our en banc Court addressed the misperception from

prior caselaw that the government only needed "slight evidence" to support a conspiracy conviction:

The "slight evidence" rule as used and applied on appeal in conspiracy cases since 1969
should not have been allowed to worm its way into the jurisprudence of the Fifth Circuit.
It is accordingly banished as to all appeals hereafter to be decided by this Court.

Id. (emphasis in original).

After Malatesta, several panels have again used the term "slight evidence" in conspiracy

cases. See United States v. Calderon, 127 F.3d 1314, 1324, 1326 (11th Cir.1997) (stating that "

"once the government establishes the existence of the underlying conspiracy, it only needs to come

forward with slight evidence to connect a particular defendant to the conspiracy' " but also that a

reasonable guilty verdict must stand "if there is substantial evidence to support it") (quoting United

States v. Harris, 20 F.3d 445, 452 (11th Cir.1994)) (brackets omitted); United States v. Gates, 967

F.2d 497, 499 (11th Cir.1992) (stating that "[o]nce the existence of a conspiracy is established, only

slight evidence is necessary to connect a particular defendant to the conspiracy" while recognizing

that "[t]he evidence is sufficient when there is substantial evidence to support the conviction");

United States v. Clavis, 956 F.2d 1079, 1085 (11th Cir.1992) (stating that "[o]nce the existence of

a conspiracy is established, only slight evidence is necessary to connect a particular defendant to the

conspiracy"), modified, 977 F.2d 538, 539 (11th Cir.1992); United States v. Orr, 825 F.2d 1537,

1542 (11th Cir.1987) (same). However, in Clavis, the panel later withdrew the reference to the

"slight evidence" standard, recognizing that it is inconsistent with the dictate in Malatesta that there

must be " "substantial evidence' connecting an appellant to a conspiracy." United States v. Clavis,

5
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

5
977 F.2d 538, 539 (11th Cir.1992) (quoting United States v. Bulman, 667 F.2d 1374, 1377 (11th

Cir.1982) (in turn interpreting Malatesta)).6

To the extent that the phrase "slight evidence" suggests that a conviction can be obtained

by less than evidence of guilt beyond a reasonable doubt, as recognized in Malatesta, that would be

contrary to the long-established principle of due process that all criminal convictions must be proved

by "evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of

every element of the offense," Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61

L.Ed.2d 560 (1979). See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d

368 (1970) (holding that "the Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he

is charged").7 Thus, to be constitutional, the phrase "slight evidence" must be interpreted to refer

not to the quantum of evidence necessary to support a conspiracy conviction but, instead, to the

extent of a defendant's connection to the conspiracy or to the other conspirators. That is to say, for

example, that notwithstanding that there may be a large number of co-conspirators, a defendant's

guilt can be established if his or her contact extends to only a few or even one of the co-conspirators

6
A new outgrowth of the "slight evidence" standard is the proposition that the evidence
necessary to link a defendant to a conspiracy is "a "minimal threshold' that may be passed on
either direct or circumstantial evidence." Calderon, 127 F.3d at 1326 (quoting Harris, 20 F.3d at
452).
7
Other courts have also cautioned against the misuse of the use of the phrase "slight evidence"
in conspiracy cases. See United States v. Burgos, 94 F.3d 849, 861-62 (4th Cir.1996) (en banc),
cert. denied, --- U.S. ----, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997); United States v. Durrive,
902 F.2d 1221, 1225-29 (7th Cir.1990); United States v. Marsh, 747 F.2d 7, 12-13 (1st
Cir.1984); United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977); see also Jon O. Newman,
Beyond "Reasonable Doubt", 68 N.Y.U. L.Rev. 979, 994-95 (1993); Note, Connecting
Defendants to Conspiracies: The Slight Evidence Rule and the Federal Courts, 64 Va. L.Rev.
881, 893-95 (1978).

6
so long as the agreement, with its concomitant knowledge of the general scope and purpose of the

conspiracy and the defendant's intent to participate in achieving its illegal ends, is proven beyond

a reasonable doubt. Likewise, a defendant can be convicted even if his or her participation in the

scheme is "slight" by comparison to the actions of other co-conspirators. In other words, as with all

criminal charges, each element of a conspiracy must also be proven as to each defendant beyond a

reasonable doubt; the law simply recognizes that all co-conspirators need not play identical roles

in perpetuating the unlawful agreement.

Thus, in reviewing a conviction for sufficiency of the evidence, we examine the evidence

de novo in the light most favorable to the government, to determine whether a reasonable jury could

have concluded beyond a reasonable doubt that the defendant was guilty of the crimes charged.

United States v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir.1995). A verdict of guilty must stand

if there is substantial evidence to support it "unless no trier of fact could have found guilt beyond

a reasonable doubt." United States v. Lyons, 53 F.3d 1198, 1202 (11th Cir.1995).

A. The Conspiracy in This Case

The proven conspiracy in this case involved the purchase of cocaine by five Pensacola men

and several assistants from primary suppliers in Miami and Texas and the conversion of that cocaine

into cocaine base ("crack") for the ultimate purpose of distributing crack on the streets of Pensacola

through a loosely organized network of lower level buyer-sellers. Rod Savage, a co-defendant who

pled guilty before trial, was a central figure in the conspiracy, along with his friends Marcus McCall,

Anthony McCall, and Marcus Clark, among others. The government's theory of Ursula Strong and

Traci Mathis' involvement in the conspiracy was that Strong, Savage's live-in girlfriend, assisted

Savage's drug activities in various ways, including moving cash hidden in their apartment to another

7
location at his request, and that Mathis permitted Savage to use her apartment as a place to cook and

store crack.

B. Ursula Strong

At the time of trial, Ursula Strong was a nineteen-year-old high school graduate studying

at a local junior college to become a registered nurse. R17:2524-25. Strong met Rod Savage in

1993, when she was seventeen. Savage was twenty-three at the time. Savage and Strong began

dating and eventually became engaged. Id. at 2526. In April 1995, they began living together in

an apartment across the street from the junior college Strong was attending. Id. at 2525-26. The

indictment charged that she conspired with Savage and others during this time to possess crack

cocaine with the intent to distribute it.

To prove its case against Strong, the government presented the testimony of two witnesses,

several documents, and over a dozen intercepted telephone conversations,8 primarily between Strong

and Savage. Viewed in the light most favorable to the government, the evidence reflected the

following. In one conversation Savage called Strong at home to tell her to get all of the "trash" in

the apartment from a series of hidden places and to take it to her mother's house. Ex. 63-B-T.

During her testimony, Strong explained that "trash" referred to money. R17:2552. In the

conversation, when she asked Savage why he wanted her to do this, he responded that he had "a bad

feeling" and that there were some "crackers" around him all morning. Ex. 63-B-T. Marcus Clark,

an indicted co-conspirator, testified that "crackers" referred to police. R15:1820. Strong

presumably did as Savage instructed because an agent posted outside her residence saw her leave

with two bags shortly after the call. R7:43-44.

8
We do not recount all of these conversations here.

8
 Several hours later, Savage called Strong and indicated that the reason he told her to "get that

stuff" to her mother's house was that he had been busy all day seeing various people about

"business" and that he did not "feel right" after having seen certain people "riding" by the park. Ex.

63-C-T. Other testimony at trial established that most of the drugs Savage distributed were sold near

a Pensacola park. The jury thus could have inferred that Savage was in fact referring to his fear that

he or his co-conspirators might get caught dealing drugs by police patrolling the park area. At trial,

Strong explained that she thought by "crackers" Savage meant white people, and that if Savage was

so scared by seeing certain white people that he wanted her to take all of their money from their

apartment and move it to her mother's house, she would "just do what he told me to." R17:2578-79.

Another phone call, almost identical to the first one, but nearly a month later, seems to have

involved a similar situation. Ex. 65-A-T. In this call, Savage appears to have been in an agitated

state. He asked Strong for someone's phone number and instructed her to get money from

underneath some shirts in his closet, inside his tennis shoe, behind his baby picture in the living

room, and under a lamp, and said, "and you know what to do with it."

In another conversation, Strong reported to Savage that while she was at the beauty salon

frequented by co-defendant Marcus McCall's wife, someone asked Strong if the rumor was true that

Savage was a "big drug dealer." Ex. 58-A-T; R17:2589. Strong explained that she told the woman

to mind her own business. Savage responded that gossip like that upset him, and Strong agreed,

saying that she was worried that her aunt and mother might find out. At the end of the conversation,

Savage told Strong that he had warned her to "stay out of the damn hair shops" because the women

there "run[ ] their ... mouths." Strong concurred, adding that she would have to be "crazy" to be "in

there talking."

9
 On another occasion, Strong was recorded commiserating with a girlfriend about not

receiving enough money from their boyfriends. Ex. 43-B-T. After noting that her friends Makita

and Tanya, who was the girlfriend of one of the McCall brothers,9 had the same problem, Strong

complained that their boyfriends should collect what was owed them and boasted that she would not

be scared to confront people who owed money, agreeing with her girlfriend that they should "hurt

'em some" to show that they had better pay. Ex. 43-B-T. On another occasion, in the midst of an

argument with Savage about their relationship, Strong said that she was "risking" herself for him

because she was "in the midst of all this" and that he wanted her to be on his side whenever anything

"go[es] down." Ex. 111-A-T at 5.

In a conversation with another co-conspirator, Marcus Clark, Strong responded in the

affirmative to Clark's inquiry regarding whether the Lemox Book Store sold "chemistry stuff" and

gave him directions as to its location. Ex. 64-A-T. Finally, in a conversation recorded between

Savage and Clark, Savage asked Strong to "put the chain on that door" while Savage proceeded to

talk to Clark about some "garbage" or "thing" Savage had in a bowl. Ex. 59-A-T.

Cooperating witness Calvin Avery, a convicted drug dealer, testified that on one occasion

when Strong came over to his apartment with the McCall brothers' wife and girlfriend for a party

and he went upstairs to make a drug sale on two or three occasions, Strong told him that he did not

have to hide what he was doing from her because her "old man does the same thing, sells dope." Id.

at R14:1668, 1683-89. Strong denied saying this.

9
It is unclear whether Tanya was Marcus McCall's girlfriend or his brother Anthony McCall's
girlfriend. Compare R14:1686-87 (testimony of Calvin Avery) with R17:2591-92 (testimony of
Ursula Strong). However, both McCalls were participants in the conspiracy and pled guilty to
the charge.

10
 The government also introduced documentary evidence against Strong. Strong's address

book contained some notations of numbers and letters in one location, but Strong denied writing

them or knowing what they meant. R17:2538-39. The government contended in its closing

argument that these notations were "count figures of cash" R19:3267. The government also

introduced the titles and other documents pertaining to several automobiles and a motorcycle that

Savage used. See id. at 2532-33. The titles were held in the names of various people, including

Ursula Strong's. Id. at 2607. Strong testified that she did not know Savage placed the motorcycle

in her name. Id. at 2537.

Strong maintained at trial, and reiterates now, that she had no idea Savage was a drug dealer.

According to her testimony, she thought he earned a living making mailboxes with his father. While

Strong's version of events finds some support in the testimony of Marcus Clark and Eric Savage that

Rod Savage went to great lengths to shelter Strong from the truth, see R15:1854; R16:2011, the jury

was entitled to disbelieve their testimony and Strong's explanations in light of other evidence that

could support the opposite conclusion.

We conclude that the record, viewed in the light most favorable to the government, contains

sufficient evidence from which the jury could find beyond a reasonable doubt that Strong agreed to

participate with Savage and his co-conspirators, albeit in a minor way, in the sale of crack cocaine.

Her conviction is, therefore, affirmed.

C. Traci Mathis

Unlike the evidence against Strong, a detailed review of the evidence presented against

Traci Mathis, even when viewed in the light most favorable to the government, fails to show beyond

11
a reasonable doubt that Mathis agreed to participate in a conspiracy to possess and distribute crack

cocaine.

The evidence at trial revealed the following. Mathis is a certified nurse's aide and the single

mother of a young girl. Although Mathis rented an apartment on Guidy Lane in Pensacola,

R18:2695-96, she and her daughter spent most of their time at Mathis' mother's house on Aaron

Drive because Mathis relied on her mother to help care for her daughter and because Mathis was

afraid to live alone. Id. at 2698-99.

Mathis gave the following uncontradicted testimony about her relationship with Rod Savage.

Mathis' brother, Larry, introduced her to Savage in 1987. R18:2700. Although Mathis and Savage

dated briefly in June 1994, they did not develop a romantic relationship. Id. Until Larry Mathis got

married in April 1995, Savage was in the habit of dropping by the Mathis residence at Aaron Drive.

Id. at 2703. However, after Larry got married, Savage stopped visiting, and Mathis did not see

Savage from April until October 1995, when Savage showed up at the Aaron Drive residence and

asked Mathis if he could stay in her apartment for a few days because he had had a fight with his

girlfriend. R18:2703-04, 2669-70. Mathis acceded to his request and gave him a key, but told him

not to turn on her television or have any guests over and to pay her electricity bill and turn off her

central air and heat when he left. Id. at 2704. Mathis thought Savage would stay there for two or

three days, but after that time passed, Savage did not return the key. Id. On November 3, Mathis

encountered Savage and asked him for the key back, but he claimed that he had lost it. Id. at 2707.

Consequently, she had the locks to her apartment changed the following day. Id.

The bulk of the government's evidence against Mathis consisted of five intercepted

conversations between her and Savage, all initiated by Savage, which took place between November

12
22 and December 9, 1995. In the first call, on November 22, Savage asked Mathis why she changed

the lock on the door to her apartment and told her that he needed to get "something" out of the

apartment. Ex. 42-B-T at 9. Mathis asked Savage: "What you got in there?" When Savage

responded, "some bowls," Mathis, obviously angry, repeated three times that he was not getting

them. Id. Mathis then expressed anger at Savage for bringing someone who was "hot" over to her

apartment. Id. at 9-10. Mathis also told Savage to pay the electricity bill (of about $50.00), and that

once he did, she would let him come to the apartment to pick up his "stuff." Id. at 11. She added

that she did not trust him anymore. Id. Mathis also complained that he had messed up her silverware

and kitchen furniture. Id. at 12.

At trial, Mathis testified that the "hot" person to whom she referred in this conversation was

Marcus McCall, whom she knew was a drug dealer. R18:2707. She said that she suspected that

McCall had been in her apartment because one day when she was driving home from work, she

observed Savage and McCall driving on Guidy Lane. Id. at 2704-05.

Savage called Mathis back less than twenty minutes after the first call. Ex. 42-C-T. He

requested that she give him a key to the new locks. Id. at 14. She adamantly refused, adding that

he was "always tryin[g] to use [her]." Id. In the third call, on November 24, Savage called Mathis

at her apartment. Ex. 43-A-T. Mathis informed him that she was over there and that he could "come

get [his] bowls." He asked her if the bowls had a thick blue ring around them, and she confirmed

that they did. Id.

Mathis testified that on December 6, she went back to her apartment with her friend Dwight

Anderson. They encountered Savage in the apartment.10 Savage explained that he was looking for

10
It is unclear how Savage gained access to the apartment.

13
something of his that he left in the bedroom. R18:2725. Both Mathis and Anderson testified that

they observed him go over to the refrigerator/freezer and count something inside before he left.

R18:2685-86, 2725.

The fourth call occurred the next day, December 7. Ex. 52-A-T. Savage called Mathis at her

mother's house in the early afternoon and told Mathis that he was missing one of those "th[i]ngs."

Id. at 1. She responded that he would not get it back until he brought her "five hundred dollars." Id.

After confirming that she only had one "thing," Savage inquired whether she had "mess[ed] with the

rest of it." Mathis responded, "Rest of what?" and then explained that she had gotten "so mad with

[him]" the night before that she went to her apartment and took "one and brought it" to her mother's

house. Id. at 2. When Savage said he would come by to retrieve it, she reiterated, "You better bring

my five hundred dollars." Id. Mathis testified that her threat was merely a bluff designed to get

Savage to pay her something because she wanted him to make good on his earlier promise to buy

her daughter a VCR for Christmas. R18:2728.11 The dollar amount she chose, she said, was

random. Id.

Five hours later, Savage called Mathis to complain that he was afraid that her cousin, who

Savage evidently thought had overheard something Mathis said, was going to be spreading word that

Savage is "sellin[g]." Ex. 62-A-T. Mathis told him not to worry about her cousin. Id. Savage then

11
Traci's sister, Debra Mathis, testified to having heard Traci and Savage discuss this VCR on
several occasions. R18:2674-75. She also testified that she was present in the apartment on
December 9, 1995 when Traci and Savage had the phone conversation in which Traci told him to
pay her $500. Id. at 2682. Debra Mathis believed that Traci was referring to money for the
purchase of a VCR. Id. at 2683. Dwight Anderson also testified that he was present during a
conversation between Traci and Savage sometime in November 1995 in which Traci asked
Savage whether he was still going to buy her daughter a VCR for Christmas. Id. at 2687, 2693.

14
accused Mathis of taking "something" that belonged to him. Mathis disagreed with him and asked

him why he was treating her this way. Id. The conversation then shifted to other subjects.

The final call, on December 9, 1995, was not transcribed. R18:2972; Gov. Br. at 28

(quoting Ex. TM-114). Savage told Mathis that there were three bags in the refrigerator, but Mathis

maintained that she only saw two. Id. She told him that he knew she did not take "that shit" and

added, "What am I going to do with it?" Id. He repeated that there were "three in the bag," and she

replied that there were only "two." Id.

In addition to playing recordings of these intercepted calls, the government also introduced

the testimony of co-defendants Marcus McCall and Leroy Coleman. Rod Savage was never called

to testify. McCall testified that he accompanied Savage to Mathis' apartment on one occasion in

1995 in order to cook four ounces of cocaine into crack. R14:1601.12 However, McCall also

testified that Mathis was not present at the apartment during any of the twenty minutes or so that

they were there and that he and Savage themselves brought bowls, beakers, and baking soda with

them to accomplish the task. Id. at 1601-03, 1613.

Leroy Coleman testified that he accompanied Savage to Mathis' apartment on approximately

five occasions "sometime between June and November" 1995 to "check on cocaine" but that Mathis

was never present. Id. at 1618-20.13 He said that he actually went inside the apartment on only two

12
McCall initially testified that this event occurred in the "early part of [19]95," R14:1604, but
later admitted on cross-examination that it could have happened in the later part of 1995 as well.
Id. at 1614.
13
Although Coleman testified on direct examination that he went to Mathis' apartment on five
occasions for the purpose of checking on cocaine, it is unclear from his responses to questions on
cross-examination whether some of those visits involved social gatherings rather than drug
business. See R14:1649, 1663.

15
occasions. Id. at 1618. Coleman testified that in November 1995, Mathis told him to tell Savage

that Savage could no longer store his "stuff" at her apartment. Id. at 1621, 1650. He testified that

Mathis told him to tell Savage that if Savage did not pay her she would change the locks to the

apartment. Id. at 1621-22. Coleman then offered his opinion that Mathis was mad because Savage

had not paid her any money for storing cocaine. Id. However, during cross-examination Coleman

acknowledged that he had no facts upon which to base this opinion. Id. at 1650-51.

Viewing this evidence in the light most favorable to the conviction, as we must, it does not

demonstrate beyond a reasonable doubt that Mathis agreed with Savage to let him manufacture and

store crack cocaine in her apartment. In fact, the evidence at trial completely belied any assertion

that Mathis agreed to facilitate the ends of the conspiracy. Mathis gave Savage a key to her

apartment some time in late October. When Savage refused to return the key on November 3, she

had the locks changed the next day. The only way that Mathis' locking Savage out of her apartment

could be construed as consistent with an ongoing agreement between the two of them is if Mathis

acted in an attempt to force Savage to comply with his end of some bargain which he had not kept.

The only evidence that might conceivably support this inference is Leroy Coleman's testimony that

Mathis "was mad because Rod hadn't g[iven] her any money for storing cocaine over there."

R14:1621. As we have indicated, this testimony represented Coleman's gloss on Mathis' reported

statement that she was going to change the locks on her apartment unless Savage paid her and

removed his "stuff." However, there is no factual basis for Coleman's opinion because, as Coleman

admitted, Mathis never said anything about drugs in their conversation, id. at 1650-51, and there is

no evidence that she knew, prior to the time she changed the locks, that Savage kept cocaine in her

apartment. Coleman, on the other hand, had seen drugs at Mathis' apartment while there with

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Savage to "check on cocaine," but, as he admitted, Mathis was never present on any of those

occasions. Moreover, as the electronic surveillance evidence suggests, the payment Mathis

mentioned may have been for the electricity bill she claimed Savage had agreed to pay. See Ex. 42-

B-T. Coleman's opinion testimony is also inconsistent with Mathis' conduct captured in the

government's recordings. If Mathis were indeed interested in securing payment for allowing Savage

to store drugs in her apartment, one would not expect her to permit Savage to retrieve his belongings

without paying her. However, after initially telling Savage that he could not retrieve his "stuff" until

he paid her electricity bill, Mathis eventually invited Savage to come to her apartment to retrieve

his "bowls" without any demand for payment. See Ex. 43-A-T. It was not until two weeks later,

when Mathis encountered Savage in her apartment and he accused her, the following day, of taking

one of his "things," that she demanded $500 in exchange for its return. In sum, Coleman's testimony

alone is insufficient to support the inference that Mathis changed the locks to force compliance with

a preexisting agreement because his testimony lacks a factual foundation and is at odds with the

government's electronic surveillance evidence.

The government's case against Mathis, then, depends entirely upon her demand that Savage

pay her $500 for the "thing" she took from the refrigerator. Viewing the evidence in the light most

favorable to the government, we assume that the "thing" she took was cocaine. The government

took the position at trial that Mathis' act of ransoming the cocaine evidenced, "in and of itself," a

prior agreement by which Savage would pay Mathis for the use of her apartment. R19:3261, 3265.

We cannot conclude that the government's inferential leap suffices to cross the chasm of

proof beyond a reasonable doubt that Mathis agreed to join the conspiracy. Although Mathis' action

might support a conviction for criminal blackmail, unlawful possession of drugs, or another criminal

17
act, it could hardly be termed to be an act in furtherance of Savage's conspiracy. In fact, it would

be directly at odds with Savage's conspiracy. Indeed, even where the act in question appears to

further the objective of a conspiracy, not every such act provides a sufficient basis to demonstrate

the actor's concurrence in the agreement. As the Supreme Court explained in a case involving the

illegal sale of prescription drugs, "one does not become a party to a conspiracy by aiding and

abetting it, unless he knows of the conspiracy; and the inference of such knowledge cannot be

drawn merely from knowledge the buyer will use the goods illegally." Direct Sales Co. v. United

States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943). The same holds true where

the goods sold are illegal narcotics; " "the existence of a simple buyer-seller relationship alone does

not furnish the requisite evidence of a conspiratorial agreement.' " United States v. Brown, 872 F.2d

385, 391 (11th Cir.1989) (quoting United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir.1984));

United States v. Solomon, 686 F.2d 863, 877 (11th Cir.1982). Assuming for the purpose of

discussion that Mathis knew of the essence of Savage's conspiracy to distribute drugs, the

government would still have had to show that Mathis affirmatively agreed to participate in that

scheme. See Direct Sales Co., 319 U.S. at 713, 63 S.Ct. at 1270 (permitting the inferential "step

from knowledge to intent and agreement" where the government had proven "more than

knowledge"). This the government has not done in this case.

Although the evidence need not exclude every reasonable hypothesis of innocence in order

to sustain a guilty verdict, as we have noted, we cannot sanction a conspiracy conviction predicated

on "conjecture." See United States v. Hardy, 895 F.2d 1331, 1335 (11th Cir.1990); United States

v. Kelly, 888 F.2d 732, 741 (11th Cir.1989). Accordingly, Mathis' conviction must be reversed.

II. CONCLUSION

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 For the foregoing reasons, we AFFIRM the convictions and sentences of Reuben Averhart,

Keith Coleman, Melody Fontenot, Christopher Gulley, Victor Moorer, Duane Roshell, Ursula

Strong, Jeffery Jerome Toler, and John Williams, and we REVERSE and VACATE the conviction

of Traci Mathis.

AFFIRMED in part and REVERSED in part.

HENDERSON, Senior Circuit Judge, specially concurring:

I concur in the majority opinion authored by Judge Barkett and write separately to emphasize

my concerns about the sufficiency of the evidence against Traci Mathis. This necessitates a brief

summary of the evidence against that particular defendant.

At the time of these events, Mathis was a nurse's aide and the mother of a young daughter.

While she leased an apartment on Guidy Lane in Pensacola, she and her daughter spent most of their

time at Mathis' mother's house on Aaron Drive in the same city. Mathis' brother had introduced her

to Rod Savage, the central figure of this conspiracy, in 1987. Until her brother married, Savage was

in the habit of dropping by the Mathis household on Aaron Drive. Mathis and Savage apparently

dated briefly in 1994 but were never romantically involved at any time.

In October 1995, Savage went by the Aaron Drive house to seek Mathis' permission to stay

in her Guidy Lane apartment for a few days because he had had a fight with his girlfriend. Mathis

agreed and gave him a key to the apartment. On November 3, 1995, Mathis encountered Savage and

asked for the return of her key. Savage told her that he had lost it. Mathis had the locks changed

the next day.

The bulk of the government's case against Mathis consisted of five intercepted conversations

between Savage and her, all initiated by Savage, between November 22 and December 9, 1995. In

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the first call, Savage protested that she had changed the lock and told her he needed to get something

out of the apartment. Mathis apparently reacted angrily to this news but said that, after he paid a

$50.00 electricity bill, he could get his "bowls." In a second call about 20 minutes later, Savage

again asked for a key to the apartment but Mathis declined. On November 24, 1995, Savage called

Mathis at the apartment and she told him that he could come get his bowls.

Mathis testified that she went to her apartment on December 6, 1995 with a friend, where

they encountered Savage. (It is not clear from the evidence how Savage gained access to the

apartment.) She observed Savage go to the refrigerator/freezer and count some of its contents before

he left the apartment. The fourth call came the following day. Savage called Mathis to complain

that he was missing one of his "things." She responded that he would not get it back until he paid

her $500.00. Mathis and several other witnesses testified that the money was for a VCR Savage had

agreed to buy Mathis' daughter for Christmas. During the final call on December 9, 1995, she and

Savage disagreed about the number of "bags" in the refrigerator. Marcus McCall and Leroy

Coleman recalled that they went with Savage to Mathis' apartment on several occasions to prepare

or obtain cocaine. They both testified, however, that Mathis was never there on any of those

occasions and that they had brought all the bowls and other paraphernalia needed to prepare the

drug.

Mathis was charged and convicted for conspiracy to possess with intent to distribute crack

cocaine. She was not charged with possession of cocaine, although apparently that was the

substance in the bowl belonging to Savage that she took at one point. The government contends that

Mathis' act of demanding payment for the bowl she removed from the refrigerator is evidence of a

prior agreement that Savage would pay her for the use of her apartment to cook the crack cocaine.

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While the majority opinion notes that the government's evidence might establish criminal blackmail

or unlawful possession of drugs, it does not establish beyond a reasonable doubt that Mathis joined

the unlawful conspiracy charged in the indictment.

In my view, this is a very close case. To support a conviction for conspiracy, the government

must establish beyond a reasonable doubt that a conspiracy existed, that the defendant knew of the

essential objectives of the conspiracy and that the defendant knowingly and voluntarily participated

in the conspiracy. See United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir.1997). Mathis'

conduct over the period of several weeks from late October to early December 1995 may be said to

have shown that she knew of the conspiracy but is not evidence that she agreed to aid its objectives.

Changing the locks immediately after Savage told her he had lost the key and then refusing to give

him a new key certainly can not be viewed as furthering the objectives of the conspiracy. Moreover,

even her demand for payment of the $500.00 before returning the bowl was not in furtherance of the

conspiracy's objectives. To the contrary, it seems to constitute only interference with the business

of the conspiracy. At some point after she changed the locks, Mathis may have become aware of

what Savage had been doing in her apartment. That is not proof that her conduct was in pursuit of

the objectives of the conspiracy.

To sustain the conviction, we must examine the evidence de novo in the light most favorable

to the government to determine whether a reasonable jury could have concluded beyond a

reasonable doubt that Mathis was guilty of conspiring to possess with intent to distribute cocaine.

U.S. v. Lopez-Ramirez, 68 F.3d 438 (11th Cir.1995). I do not believe the government's evidence

against Mathis was sufficient to meet that burden.

BLACK, Circuit Judge, concurring in part and dissenting in part:

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 I concur except as to Traci Mathis. Upon review of the testimony at trial and the taped

conversations between Savage and Mathis, I believe the Government presented sufficient evidence

to support the jury's verdict against Mathis. Further, the jury was entitled to disbelieve Mathis'

testimony at trial and use that testimony as substantive evidence against her. United States v.

Brown, 53 F.3d 312, 314-15 (11th Cir.1995) (citations omitted). As we stated in Brown, "when a

defendant chooses to testify, [s]he runs the risk that if disbelieved the jury might conclude the

opposite of [her] testimony is true." Id. at 314 (internal quotations and citations omitted).

Although the evidence presented at trial was sufficient to support Mathis' conviction, I am

sympathetic with the result that the majority would reach because the sentencing guidelines appear

unduly harsh as applied to Mathis in this case.1 It is unfortunate the district court did not have the

discretion it had pre-guidelines.

1
It appears from the judgment that the district court judge shared this view and departed three
levels under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 to reflect what he described as Mathis'
"marginal guilt" and "lack of participation in furtherance of the conspiracy."

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