United States v. Ross

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 93-1875
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUDOLPH WINSTON ROSS, JR., and
HUMPHREY BROCK, JR.,

Defendants-Appellants.

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Appeal from the United States District Court
for the Northern District of Texas
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(June 29, 1995)

Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.

LAY, Circuit Judge:

Humphrey Brock, Jr., and Rudolph Winston Ross, Jr., were

indicted in a seventy-count indictment along with thirty-two other

named individuals. Both Brock and Ross were charged under count 1

of the indictment with participating in a conspiracy, occurring

from August 6, 1992, through February 10, 1993, for possessing with

intent to distribute fifty grams or more of cocaine base (crack).

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Brock was also

indicted in nine other substantive counts of distribution,

including four counts of distribution of cocaine base within 1,000

feet of a public elementary school. 21 U.S.C. §§ 841(a)(1),

1
Honorable Donald P. Lay, Senior Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
841(b)(1)(C) and 860(a); 18 U.S.C. § 2. Ross was indicted for one

substantive count involving a sale of .62 grams of cocaine base.

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Brock and Ross were tried

together, and a jury convicted them on all the counts with which

they were charged.2 They now appeal their convictions.3 We affirm

their convictions on the substantive counts of distribution. We

reverse and vacate Ross's conspiracy conviction on count 1, but

affirm Brock's conviction under that count.

FACTS

Lisa Ramsey, serving as an undercover narcotics agent for the

Jones County Sheriff's Department in Abilene, Texas, made 106

narcotics purchases over a nine to ten-week period in a six-block

area of Abilene, Texas. Two of the persons who made sales to her

she identified as Brock and Ross.

Ramsey testified that she made purchases from Brock on October

20 and 28, and on November 3 and 5. The government had audio and

visual recordings of all of these transactions.4 During these

sales, the record shows that Brock was associated with Shariel

Sanchez and Nathaniel Green;5 Ramsey testified that Brock and Green

2
Other defendants either pled guilty or were dismissed; some
of the defendants are allegedly fugitives.
3
Ross had a prior drug conviction and he was sentenced to
240 months imprisonment. Brock was sentenced to 120 months
imprisonment.
4
Because of the placement of the concealed camera,
participants were not always captured on film. Similarly, the
audio recordings were inaudible or incomplete at times.
5
On October 20th, Ramsey met Nathaniel Green, and he
directed her to drive around the corner. She started to pull out

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when Humphrey Brock hollered at her. She stopped and Brock got
in her truck and asked her what she was looking for. Ramsey said
she wanted to buy five "rocks" (pieces of crack), and Brock
directed her to pull around the corner. At that moment, by
prearranged plan, agents of the Abilene Police Department stopped
them. These agents testified the man with Ramsey identified
himself as Humphrey Brock. They also made a courtroom
identification of him.

After the police released them, Ramsey and Brock drove away.
Brock asked Ramsey if she was still interested in buying five
rocks. She said yes. Brock gave her two rocks he had hidden in
his mouth and directed her to drive to where he could get more.
Ramsey explained that Brock did not have the money to buy the
crack and needed Ramsey's money first. Ramsey gave him $100 and
Brock got out of the truck, returning shortly with two more
rocks. Ramsey made a courtroom identification of Brock and
provided a foundation for admitting recordings of her
conversations with Brock in the truck.

Ramsey recounted another purchase of crack from Brock on
October 28, 1992, again in the same area. Brock had gotten into
the truck when Nathaniel Green approached. Ramsey said she was
making a deal with Brock and drove to where Brock directed her.
Again, Brock took $100 from Ramsey, left the truck, and returned
shortly with five rocks. The government introduced an audio
recording of this transaction too. Ramsey identified Brock from
a photo lineup of six-similar looking men on October 21, after
her first purchase of crack from him on the 20th.

On November 3, 1992, Ramsey found Brock in the same area
together with Shariel Sanchez (Booby) and Nathaniel Green. Brock
approached and Ramsey said she was looking for ten rocks. Brock
went to Sanchez and Green and spoke with them. All three men
came up to Ramsey's truck. Sanchez got in and gave Ramsey eleven
rocks. She paid him and he said he would "take care of" Brock
and Green. During the exchange Green and Brock remained by the
truck. At one point Green said "I got you from the back" which
Ramsey said meant he was looking out for police officers. Ramsey
further explained that because Brock and Green had gotten her to
stop and buy from Sanchez, they were entitled to something from
the sale.

On November 5, 1992, Ramsey found Brock, Sanchez, and Green
in the same area. Nathaniel Green waived her down and Ramsey
told him she wanted ten rocks. Green went to Brock and Sanchez
and the three returned to Ramsey's truck. Sanchez got in while
Green and Brock stayed by Ramsey's side. Sanchez gave Ramsey
eleven rocks, and Sanchez gave him $200. During this
transaction, Green told Ramsey he had heard she had gotten "a bad

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"hustled" crack for Sanchez by running out to passing vehicles and

negotiating sales. These transactions led to the convictions of

Brock under the counts alleged. Brock challenges the sufficiency

of the evidence for his conviction under count 1, the court's

failure to give a multiple conspiracy instruction, and the court's

denial of a request for a continuance.

Ramsey's testimony concerning Ross's distribution count

related to a single purchase of .62 grams of crack from him.

Ramsey testified that on October 12, 1992, she was driving in the

North 13th and Ash area when she saw two men she knew as Mark

Sessions and Torrance (also called Shon or Deshon) Lee. She saw

Sessions hand Lee something and then Lee approached her truck,

displaying four rocks of crack in his hand. Ramsey was negotiating

to purchase the crack for $80 when another man, dressed in a long

sleeve, white shirt and dress black pants and shoes, came up. He

too "showed [her] four rocks of crack cocaine, and tried to talk

[her] into buying his rocks rather than Deshon Lee's" also for $80.

Ramsey wanted to buy crack from both men, but did not have the

correct bills. She testified:

Ramsey: I had a $10[0] bill and like three 20s, so I
paid Shon Lee with three 20s. And I couldn't
make change for rocks, so Lee said they would
make change.

Q: And to your knowledge, did they make change
after you consummated the deal, or do you

deal the other day" when she attempted to buy crack from another
source. Brock and Green told her to come to their part of town
because they "always have his [Sanchez's] stuff." Ramsey said
the Brock and Green "hustled" crack for Sanchez, that is, they
ran out to passing vehicles and negotiated sales.

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 know?

Ramsey: I don't know if any money passed hands, but
Lee gave me $20 and I handed Ross the $100.

Ramsey then identified "Ross" as defendant Rudolph Ross.

Her testimony continued:

Q: Was there any discussions [sic] had on how the
money was to be changed out or change given,
if you recall?

Ramsey: Lee just told me that he would make the
change; not to worry about it. They would
take care of it.

Ramsey then provided the foundation for the admission of the

audio and video tapes of the transaction. She also told about a

photo lineup consisting of six similarly featured males from which

she had identified Ross on the 15th of October.

Ross challenges his identification by Ramsey, the sufficiency

of the evidence to sustain his conspiracy conviction, the court's

refusal to sever his trial from Brock's trial, and the adequacy of

the court's findings for sentencing.

I. Brock

A. Sufficiency of the Evidence

Brock contends the evidence was not sufficient to convict him

on the conspiracy count, count 1. He argues that no testimony

connected him to Lee or Ross and that Ramsey's testimony concerning

the purchases involving Brock suggest that Brock was competing with

Green, not conspiring with him.

We find the evidence established that Brock was a member of

the charged conspiracy to distribute cocaine base. Ramsey's

detailed testimony of her dealings with Brock, Green, and Sanchez

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clearly support the government's contention that Brock "hustled"

cocaine base for Sanchez. Even assuming Green and Brock competed

on certain sales to Ramsey, the evidence shows they both obtained

their cocaine base from the same source.

B. Jury Instructions

Brock contends it was error for the court to deny his request

for an instruction on multiple conspiracies and on this basis his

conviction under count 1 should be reversed under United States v.

Irwin, 793 F.2d 656, 662 (5th Cir.), cert. denied, 479 U.S. 991

(1986). He argues that nothing conclusively linked Ross's sale of

crack to him and that in the first two of his sales to Ramsey, he

was clearly competing with Green, not conspiring with him.6

Brock timely requested the instruction, and we review only

whether his request had any evidentiary support. Castaneda-Cantu,

20 F.3d 1325, 1334 (5th Cir.), cert. denied, 113 S. Ct. 1390

(1993). To decide whether there was a single conspiracy or whether

there were multiple conspiracies, we consider the times, places,

persons, offenses charged, and overt acts involved. United States

v. Greer, 939 F.2d 1076, 1087 (5th Cir. 1991), cert. denied, 113 S.

Ct. 1390 (1993); United States v. Marable, 578 F.2d 151, 154 (5th

Cir. 1978).

The drug sales were all made in a relatively short period of

time. The sales all took place in the same small area of Abilene.

Brock and Green appeared together repeatedly. They told Ramsey

6
Alternatively, Brock argues there was a material variance
between the indictment and the evidence in that the evidence was
insufficient to show a single conspiracy.

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they dealt drugs for Sanchez and they participated in two sales of

cocaine base by Sanchez to Ramsey. Count 1 charged one overall

conspiracy to sell cocaine base and the other counts charged Brock

with specific sales of cocaine base. The evidence does not support

the theory that Brock was only involved in separate conspiracies

unrelated to the conspiracy charged in count 1. See Castaneda-

Cantu, 20 F.3d at 1334-35. Accordingly, the court properly denied

Brock's requested jury instruction.

C. Continuance

Brock states the government provided him with poor quality

audio and video tapes of the drug transactions which were

inadequate for his expert to use in voice comparison tests. At

5:30 p.m. the day before trial, the government told Brock's counsel

that with high-tech amplification techniques, it was possible to

hear a male voice identifying himself as Humphrey Brock on one of

the tapes. Accordingly, the government was going to change the

contents of one of the transcripts used at trial from "inaudible"

to "Humphrey Brock, Jr. of 466 Northway." Brock asserts that if he

had been granted a continuance, his expert could have experimented

with the government's equipment and made voice comparisons.

We do not believe the court abused its discretion in denying

the continuance. See United States v. Magana-Arevalo, 639 F.2d 226

(5th Cir. Unit A Mar. 1981). The tape concerned involved the

October 20th sale when Ramsey and Brock were stopped by prearranged

plan and questioned by police officers. An officer testified that

Brock identified himself at that time. The officer also identified

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Brock in court. The revised transcript thus gave the jury no new

information. A denial of a request for a continuance is not "an

abuse of discretion unless the movant shows that he was seriously

prejudiced by the denial." United States v. Khan, 728 F.2d 676,

681 (5th Cir. 1984). Because the revised transcript gave the jury

no new information and because the court instructed the jury that

what they heard on the tape trumped whatever they read in the

transcript, we do not find that Brock was prejudiced.

II. Ross

A. Proof of Identity

Ross argues the evidence was insufficient to identify him as

the man in the white shirt who sold cocaine base to Ramsey. Only

Agent Ramsey's testimony linked him to the sale, and she did not

know his name until afterwards. Ramsey's report described Ross as

a black male and described the clothes he was wearing but did not

mention his height, age, or weight. Ross insists that no

reasonable juror could have found sufficient evidence to convict

him.

We review the evidence in the light most favorable to the

verdict, United States v. Sparks, 2 F.3d 574, 579 (5th Cir. 1993),

cert. denied, 114 S. Ct. 720 (1994), and on our review of the

record, we find Ramsey had a more than adequate opportunity to

observe Ross. Her report described his clothing in detail and she

was able to identify him later from a photographic lineup. The

jury had sufficient basis to conclude Ross was one of the men who

sold Ramsey crack on October 12.

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 B. Proof of Conspiracy

Ross contends the government presented evidence that he and

Lee competed for Ramsey's business, not that they were part of a

common plan to sell cocaine base. Ramsey only testified that she

and Lee agreed Ross would make change for Lee. She did not mention

any agreement between Lee and Ross. Thus, Ross argues the evidence

was insufficient to convict him of conspiring to sell cocaine base

under count 1.

We review a challenge to sufficiency of the evidence in light

of the evidence and the inferences "most favorable to the

government and determine[] whether a rational trier of fact could

have found--beyond a reasonable doubt--that the government proved

the defendant's guilt on each element of the charged offense."

United States v. Crane, 33 F.3d 480, 485 (5th Cir. 1994), cert.

denied, 115 S. Ct. 1142 (1995). In a drug conspiracy case, the

prosecution must prove beyond a reasonable doubt that a conspiracy

existed, and that the accused knew of it and knowingly and

voluntarily joined it.7 United States v. Bright, 550 F.2d 240, 242

(5th Cir. 1977). We will not readily infer a defendant's knowledge

and decision to join a conspiracy. United States v. White, 569

F.2d 263, 267 (5th Cir.), cert. denied, 439 U.S. 848 (1978). A

defendant's mere association with a conspirator is not by itself

7
In a drug conspiracy case, there is no need to prove an
overt act in furtherance of the conspiracy in a prosecution, such
as this one, under the Drug Control Act, 21 U.S.C. § 841. United
States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986);
United States v. Kupper, 693 F.2d 1129, 1134 (5th Cir. 1982).

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sufficient. United States v. Fitzharris, 633 F.2d 416, 423 (5th

Cir. 1980), cert. denied, 451 U.S. 988 (1981).

Considering the evidence in the light most favorable to the

verdict, we find there was insufficient evidence to convict Ross on

the conspiracy count, count 1. Ramsey's testimony established that

on October 12 Ross independently sold her four rocks of crack

containing .62 grams of cocaine base. At the time of this

transaction, Lee also sold Ramsey a similar quantity of cocaine

base for $80. As earlier discussed, Ramsey did not have the proper

change to pay both men and according to her, Lee and Ross said they

would make change among themselves. She then gave Lee three $20

bills and Ross a $100 bill and Lee gave her back $20.8

We do not, however, find sufficient evidence to convict Ross

of participating in a conspiracy to distribute fifty or more grams

of cocaine under count 1. No testimony linked Ross to the four

sales in which Brock and Green participated. No testimony linked

Ross to Sanchez. The government contends that the fact Ross sold

crack at the same location as Brock is evidence of his membership

in the crack distribution conspiracy headed by Sanchez. However,

"[i]t is well established that even actual presence at the scene of

the crime is not sufficient" proof of membership and participation

in a conspiracy. United States v. Sacerio, 952 F.2d 860, 864 (5th

8
The evidence is confusing in this regard. If Ramsey's
statement is true, she paid Ross $100 and received back $20 from
Lee, leaving Lee with $40. Why Lee would give her $20 is
unclear. Ramsey would then have only paid $140 for both
purchases, although each man wanted $80. Ramsey may have
misstated what occurred. Perhaps Ross paid Lee $20 from the $100
he received from Ramsey.

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Cir. 1992) (quoting United States v. Gutierrez, 559 F.2d 1278,

1280-81 (5th Cir. 1981)). See also United States v. Manotas-Mejia,

824 F.2d 360, 364 (5th Cir.), cert. denied, 484 U.S. 957 (1987).

Although apparently Ross assisted Lee in making change for Ramsey

when she purchased the crack from Lee, and Lee was indicted as a

member of the Sanchez-led conspiracy, Ross "may not be convicted

merely on a showing that he associated with individuals

participating in a conspiracy," or by evidence that merely places

him at the scene of another person's criminal act.9

The government argues that Ross, by assisting Lee, became a

member of Lee's conspiracy with Sanchez, Brock and Green. The

government can only arrive at that conclusion by making an

inference upon an inference10 and "[w]hen the government attempts

to prove the existence of a conspiracy by circumstantial evidence,

each link in the inferential chain must be clearly proven." United

States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982). We think the

mere act of making change, albeit for an illegal transaction,11 does

9
United States v. Gomez, 776 F.2d 542, 549 (5th Cir. 1985)
(citing United States v. Galvan, 693 F.2d 417, 419 (5th Cir.
1982); United States v. Jackson, 700 F.2d 181, 185 (5th Cir.),
cert. denied, 464 U.S. 842 (1983); United States v. Fitzharris,
633 F.2d 416, 423 (5th Cir. 1980), cert. denied, 451 U.S. 988
(1981); United States v. White, 569 F.2d 263, 268 (5th Cir.),
cert. denied, 439 U.S. 848 (1978)).
10
The government argues the indictment alleged Lee conspired
with Green and this allegation links Ross with the others. An
indictment, however, is not evidence.
11
The government's theory in White, 569 F.2d at 267, was
that because a husband sold heroin to a confidential informant
and because the informant said he spoke separately with both the
husband and the wife about dealing heroin for them, there was
sufficient proof that the husband and wife were conspirators in a

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not provide proof beyond a reasonable doubt that Ross was a member

of a greater conspiracy, dealing with fifty grams or more of

cocaine base. The evidence does not justify a mandatory sentence

for Ross of 240 months in prison. Ross's conviction under count 1

must be reversed.

C. Severance

Ross and Brock were charged in the indictment with a joint

conspiracy. A joint trial was therefore proper under Fed. R. Crim.

P. 8(b). The issue we now face in view of our holding that there

was insufficient evidence to convict Ross of conspiracy is whether

in light of the conviction of the single count of distribution,

Ross should have had his motion for severance granted under Rule

14. The Supreme Court has rejected "a hard-and-fast" formula that,

when a conspiracy count fails, joinder is error as a matter of

law." Schaffer v. United States, 362 U.S. 511, 516 (1960). Ross

must show he was prejudiced by the joinder and we find his

conviction for the separate sale on October 12 to Ramsey was not

prejudiced by joinder with Brock. Although we find the conspiracy

count fails, the court repeatedly instructed the jury in

instructions reinforced by statements by defense counsel, not to

allow evidence against one defendant to work against another. We

find that these instructions cured any prejudicial effects of

heroin-dealing endeavor. This Circuit reversed the conspiracy
convictions because a close association is insufficient to prove
a conspiracy and because "[d]rug transactions alone do not
constitute a conspiracy . . . ." Id. at 268. Similarly here the
government cannot connect Ross to a grand conspiracy merely by
showing Ross and Lee associated to make contemporaneous sales of
cocaine base to Ramsey.

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joinder. See Zafiro, 113 S. Ct. 933, 938-39 (1993); Schaffer v.

United States, 362 U.S. at 516; United States v. Stouffer, 986 F.2d

916, 924 (5th Cir.), cert. denied, 114 S. Ct. 115 (1993).

We find insufficient evidence of prejudice to Ross from his

joint trial with Brock with respect to Ross's conviction on the

distribution count. However, in view of our vacating Ross's

conviction of the conspiracy count, Ross must be resentenced.

We affirm the district court's judgment of conviction as to

Brock; we vacate Ross's conviction as to count 1 relating to the

conspiracy charge; we affirm Ross's conviction on count 42 relating

to the distribution of cocaine base on October 12; we vacate Ross's

sentence by the district court and remand to the district court for

purposes of resentencing Ross on count 42.

IT IS SO ORDERED.

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