UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 98-30709
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT CYPRIAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
December 3, 1999
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether throwing a three-year-old child
toward arresting officers, in an attempt to avoid apprehension for
drug trafficking, falls within the “child-use” conduct proscribed
by 21 U.S.C. § 861(a)(2) (unlawful to “use ... a person under
eighteen years of age to assist in avoiding ... apprehension for”
drug trafficking). Convicted by a jury for conspiracy to possess
with intent to distribute cocaine base, for the corresponding
substantive offense, and for the earlier-described child-use, Scott
Cyprian does not contest his intent to distribute conviction. He
does contest his conspiracy and child-use convictions, contending
that § 861(a)(2) does not apply to the action he took with his
child; that there was insufficient evidence to convict him for
either offense; and that there was a prejudicial variance between
the indictment and the proof. We AFFIRM.
I.
On 20 February 1998, Melinda James, at Cyprian’s behest, met
with undercover DEA Agent Honore and, for $6,000, sold him a
quarter kilogram of cocaine base (crack). Part of the transaction
was recorded.
Approximately two weeks later, James met with Special Agent
Sewell. After listening to part of the recording of her sale to
Agent Honore, James agreed to serve as a confidential informant to
assist in Cyprian’s arrest.
On 19 March, James met with Cyprian; he informed her that he
had crack for sale. James called Special Agent Sewell, who
instructed her to make a crack sale, through Cyprian, to the
undercover Agent. James contacted Cyprian to arrange the sale; at
the last minute, Cyprian decided to accompany James in her vehicle
to the sale, and brought his three-year-old child.
DEA Agents stopped the vehicle and ordered Cyprian to exit.
Cyprian, who had his child in his lap, exited slowly, threw his
child at the Agents, and fled. He was quickly apprehended. And,
upon Cyprian’s jacket being searched, 250 grams of crack were
found.
In March 1997, as one of three indicted co-conspirators,
Cyprian was charged with conspiracy to possess with intent to
distribute crack, in violation of 21 U.S.C. § 846; possession with
intent to distribute crack, in violation of 21 U.S.C. § 841(a)(1);
- 2 -
and using his child to assist in avoiding apprehension by a federal
law enforcement official for the intent to distribute charge, in
violation of 21 U.S.C. § 861(a)(2).
A jury trial was held in April 1998. At the conclusion of all
the evidence, Cyprian moved for a judgment of acquittal; it was
denied. He was convicted on all counts; his two co-defendants,
acquitted. In denying Cyprian’s post-verdict, second motion for
judgment of acquittal, the district court held, inter alia, that §
861(a)(2)’s language was unambiguous; and that Cyprian’s “use” of
his child fell within the conduct proscribed by the statute.
Cyprian was sentenced, inter alia, to 262 months imprisonment.
II.
Cyprian does not challenge his possession with intent to
distribute conviction. For the other two, he claims evidentiary
insufficiency, and a prejudicial variance between the indictment
and the proof; in addition, for the § 861(a)(2) conviction, that
his actions with his child could not violate the statute. We
address the statutory issue first.
A.
Section 861, originally codified as 21 U.S.C. § 845b, was
enacted as part of
[t]he Juvenile Drug Trafficking Act of 1986,
Pub. L. No. 99-570, 100 Stat. 3207-10 (1986),
[which] represents a congressional recognition
of the troublesome societal problem created
when drug traffickers seek to include minors
in their illegal activities. As an
acknowledgment of the facts that youths are
easily susceptible to outside pressures and in
an attempt to deter criminals from including
minors as participants in their illegitimate
- 3 -
activities, Congress enacted several new
offenses with enhanced penalty provisions.
United States v. Curry, 902 F.2d 912, 915-16 (11th Cir. 1990)
(emphasis added), cert. denied, 498 U.S. 1091 (1991). Section
861(a) provides:
It shall be unlawful for any person at least
eighteen years of age to knowingly and
intentionally–
(1) employ, hire, use, persuade, induce,
entice, or coerce, a person under eighteen
years of age to violate any provision of this
subchapter or subchapter II of this chapter;
(2) employ, hire, use, persuade, induce,
entice, or coerce, a person under eighteen
years of age to assist in avoiding detection
or apprehension for any offense of this
subchapter or subchapter II of this chapter by
any Federal, State, or local law enforcement
official....
(Emphasis added.)
The requisite mens rea for conviction under § 861 (“unlawful
for any person at least eighteen years of age to knowingly and
intentionally” conduct proscribed acts with “person under eighteen
years of age” (emphasis added)) is, of course, addressed to the
person charged (here, Cyprian, the person at least 18 years of
age), not the non–charged person under 18 years of age (here, his
three-year-old child). See, e.g., United States v. Williams, 922
F.2d 737 (11th Cir.), cert. denied, 502 U.S. 892 (1991); United
States v. Valencia-Roldan, 893 F.2d 1080 (9th Cir.), cert. denied,
495 U.S. 935 (1990). Cyprian does not assert otherwise.
Instead, Cyprian contends that his § 861(a)(2) conviction for
“using” his child to avoid apprehension is invalid, because his
- 4 -
child did not purposefully act to so assist Cyprian. Cyprian’s
contention is based, in part, on the word “use” being in series
with “employ, hire, ... persuade, induce, entice, or coerce”, all
suggesting that the minor is being paid, forced, or otherwise
caused to act with volition to assist another, even if the youth is
not aware that he is involved in the illegal activity.
Cyprian urges that this aspect — not aware of illegal action
— is what keeps § 861(a)(2) from being redundant with § 861(a)(1),
which uses the same verbs concerning a person over 18 years of age
causing another under that age “to violate” the drug trafficking
laws. Obviously, in order to make this construction of subpart
(a)(2) plausible, Cyprian concomitantly advances a restricted,
uncommon definition of “use”; he maintains that it means “taking
advantage of a juvenile’s lack of intellect or reasoning ability”.
For starters, had Congress intended this extremely narrow
definition, it would, and could easily, have said so. In any
event, the Government counters that volitional conduct by a
juvenile is involved in subpart (a)(1), not in (a)(2); and that
this is what prevents redundancy between these subparts.
This appears to be an issue of first impression for our court.
We turn first, of course, to the plain language of the statute.
E.g., Bailey v. United States, 516 U.S. 137, 145 (1995); Greyhound
Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978); Moosa v.
INS, 171 F.3d 994, 1008 (5th Cir. 1999). Again, subpart (a)(2)
provides, in relevant part, that it is “unlawful for any person at
least eighteen years of age to knowingly and intentionally ... use
- 5 -
... a person under eighteen years of age to assist in avoiding ...
apprehension for [a drug trafficking] offense ... by any ... law
enforcement official”. (Emphasis added.)
Of course, the normal definition of “use” is a far cry from
that urged by Cyprian for subpart (a)(2). Black’s Law Dictionary
1540 (7th ed. 1999) defines “use” as “[t]he application or
employment of something”. Similarly, “use” is defined in Webster’s
Ninth New Collegiate Dictionary 1299 (9th ed. 1990) as the “act or
practice of employing something; ... a method or manner of
employing ... something”.
As discussed in Bailey, 516 U.S. at 145 (definition of “use”
in 18 U.S.C. § 924(c)(1), which concerns using or carrying a
firearm in a drug trafficking crime), “these various [dictionary]
definitions of ‘use’ imply action and implementation”. And, as
pointed out in Bailey, in addition to looking to the plain meaning,
we look to “placement and purpose in the statutory scheme”, and
“assume that Congress intended each of its terms to have meaning”.
Id. Along this line, “[w]e assume that Congress used two [or more]
terms because it intended each term to have a particular,
nonsuperfluous meaning”. Id. at 146.
To give “use” in subpart (a)(2) the meaning advanced by
Cyprian — “taking advantage of a juvenile’s lack of intellect or
reasoning ability” — would render the word superfluous. This
strained meaning would be subsumed within other methods proscribed
by subpart (a)(2), such as “persuade, induce, or entice”. To adopt
- 6 -
Cyprian’s definition of “use” would be contrary not only to well-
known rules of statutory construction, but to common sense as well.
In sum, there is no ambiguity. Accordingly, the rule of
lenity, urged by Cyprian, does not apply. See, e.g., Muscarello v.
United States, 524 U.S. 125, 118 S. Ct. 1911, 1919 (1998); United
States v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999);
Curry, 902 F.2d at 915 (as discussed infra, construing § 861(a)(2)
and finding no ambiguity concerning “using” a youth).
Here, the actor is Cyprian. As found by the jury, discussed
infra, he “knowingly and intentionally” “used” his three-year-old
child as a projectile to distract the Agents, and then fled. In
short, he used his child “to assist in avoiding ... apprehension”,
as proscribed by § 861(a)(2).
Our interpretation of this subpart is consistent with that by
the Eleventh Circuit in Curry, noted supra. There, two co-
conspirators were attempting to purchase cocaine. While en route,
their automobile broke down; they called the under-eighteen nephew
of one co-conspirator to bring his vehicle to them. The co-
conspirators utilized the truck to transport the drugs, with the
youth remaining in the vehicle as a passenger. In affirming the
subpart (a)(2) conviction of one co-conspirator, the court held:
“A reasonable inference for the jury to draw from this evidence is
that [the co-conspirators] believed that using a vehicle would
assist them in avoiding detection and arrest”; and “that the
individual they chose for this task ... was” under 18 years of age.
Id. at 916.
- 7 -
The Eleventh Circuit held that this was sufficient for a
subpart (a)(2) conviction for the proscribed “use” of a child. Id.
Although the Curry court apparently was not presented with the
definition of “use” issue advanced here by Cyprian for subpart
(a)(2) purposes, we read Curry to be consistent with our rejection
of the quite strained interpretation urged by Cyprian.
B.
Cyprian contests the evidentiary sufficiency for his
conspiracy and child-use convictions. Because he timely moved for
judgment of acquittal on these counts, see, e.g., United States v.
Pankhurst, 118 F.3d 345, 351 (5th Cir.), cert. denied, ___ U.S.
___, 118 S. Ct. 630 (1997), we review such claims “in the light
most favorable to the jury’s verdict and affirm if a rational trier
of fact could have found that the government proved all essential
elements of a crime beyond a reasonable doubt”. United States v.
Brito, 136 F.3d 397, 408 (5th Cir.), cert. denied, ___ U.S. ___,
118 S. Ct. 1817 (1998). In so doing, all reasonable inferences are
drawn in support of the verdict. E.g., United States v. Guerrero,
169 F.3d 933, 939 (5th Cir. 1999). Likewise “[w]e must accept
credibility choices that support the jury’s verdict, and we may not
reweigh the evidence”. Id. (emphasis added).
1.
Concerning the charged child-use, Agent Sewell testified that
Cyprian “threw the boy back over towards [the officers], which at
the point when we tried to catch the kid, he took off running”.
Likewise, Agent Scott testified that Cyprian “lunged the child
- 8 -
toward us and took off running”. Officer Caminita referred to
Cyprian “throwing a baby to the ground head first”; James testified
that Cyprian “threw him down”.
This is sufficient, to say the least, for a rational juror to
find, beyond a reasonable doubt, that Cyprian used the child in
order to attempt to avoid apprehension for drug trafficking. For
example, one reasonable inference by such a juror would be that
Cyprian hoped the Agents would delay pursuing him in order to
attend to the child.
2.
Regarding the conspiracy conviction, the evidence included
recorded telephone conversations between James and Cyprian, and the
testimony of James, a co-conspirator in the 20 February 1999 sale
to Agent Honore. James provided a detailed account of the
conspiracy, and identified Cyprian as its leader and the source of
the crack cocaine that she sold on at least three occasions. This
is sufficient for a rational juror to find, beyond a reasonable
doubt, that Cyprian conspired to sell crack cocaine.
C.
Cyprian maintains that there was a prejudicial variance
between the charged conspiracy and the conspiracy for which he was
convicted. In order “to obtain a reversal based upon the alleged
variance”, Cyprian “must show the variance affected [his]
substantial rights”. United States v. Thomas, 12 F.3d 1350, 1358
(5th Cir.), cert. denied, 511 U.S. 1095 (1994). “The concerns
underlying our cases on variance are to ensure that [, inter alia,]
- 9 -
the indictment notifies a defendant adequately to permit him to
prepare his defense”. United States v. Hernandez, 962 F.2d 1152,
1159 (5th Cir. 1992). In this regard, our court has “long held
that when the indictment alleges the conspiracy count as a single
conspiracy, but the government proves multiple conspiracies and a
defendant’s involvement in at least one of them, then clearly there
is no variance affecting the defendant’s substantial rights”.
United States v. Pena-Rodriguez, 110 F.3d 1120, 1128 (5th Cir.)
(emphasis added) (quoting United States v. Faulkner, 17 F.3d 745,
762 (5th Cir.), cert. denied, 513 U.S. 870 (1994)), cert. denied,
___U.S.___, 118 S. Ct. 72 (1997).
As part of this claim, Cyprian asserts that a multiple
conspiracy instruction should have been given. But, in district
court, he neither raised his variance claim nor requested the
instruction. See, e.g., United States v. Sharpe, No. 97-60263,
1999 WL 962025, at *12 (5th Cir. 20 Oct. 1999); United States v.
Lokey, 945 F.2d 825, 832-33 & n.n.1, 2 (5th Cir. 1991); FED R. CRIM.
P. 30 (“No party may assign as error any portion of the charge or
omission therefrom unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to
which that party objects and the grounds of the objection.”
(emphasis added)).
Moreover, it is unclear from Cyprian’s brief whether, for the
first time on appeal, he is raising the claimed variance, or
contesting the failure to give the instruction, or both. No
- 10 -
authority need be cited for the rule that points on appeal are
abandoned if not briefed adequately.
In the light of Cyprian’s oral argument, however, it appears
that his challenge concerns the failure to give the instruction.
And, he conceded at oral argument that, because this issue is being
raised belatedly, we review only for plain error. Under this quite
narrow standard of review, if such failure was a “clear” or
“obvious” error that affects “substantial rights”, we have
discretion to correct such forfeited error if it affects the
fairness, integrity, or public reputation of judicial proceedings.
E.g., United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc), cert. denied, 513 U.S. 1196 (1995).
In urging plain error for such failure, Cyprian contends that,
because the other two named conspirators were acquitted, there was
no one with whom he could conspire. But, the indictment shows
otherwise:
Beginning at a time unknown, but
continuing until on or about March 19, 1997,
in the Eastern District of Louisiana and
elsewhere, the defendants, SCOTT CYPRIAN,
KEVIN SILVAN, and PAT CARNEY, did knowingly
and intentionally combine, conspire,
confederate and agree with each other and with
others known and unknown to the Grand Jury, to
possess with the intent to distribute a
quantity of cocaine base (“crack”)....
(Emphasis added.) As discussed supra, the indictment’s unnamed
conspirator is James, and the conspiracy includes the 20 February
1999 sale to Agent Honore.
The indictment charges one conspiracy involving Cyprian, the
two named (and acquitted) co-conspirators, and an unnamed co-
- 11 -
conspirator, James. The 20 February sale is within the charged
time frame. Therefore, there was no error, much less plain error,
in not giving the now-urged multiple conspiracy instruction.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
- 12 -