United States v. Andrews

953 F.2d 1312, 1992 WL 15064
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 19, 1992
DocketNos. 89-7445, 89-7589
StatusPublished
Cited by75 cases

This text of 953 F.2d 1312 (United States v. Andrews) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Andrews, 953 F.2d 1312, 1992 WL 15064 (11th Cir. 1992).

Opinion

CLARK, Senior Circuit Judge:

BACKGROUND

In January, 1987, based on information given by Michael Funches, the Federal Bureau of Investigation opened an investigation into the crack cocaine commerce in Pritchard, Alabama. Funches became a paid confidential information source in March, 1987. Over the course of the next year and a half, he provided the FBI with information as to the extent of the drug trade in a seven block neighborhood in Pritchard.

This information showed that Daryon Sharp led the loose organization’s crack cocaine trade in this seven block area. Funches sold drugs for Daryon Sharp from late 1985 to late 1986, but when he started using the crack himself, Daryon Sharp pulled away from him and started relying more on Bruce Montgomery. Bruce Montgomery and Jerome Watkins became “lieutenants,” or second in command. The lieutenants delivered drugs from Daryon Sharp to Alvin Taylor, Jr., Ricardo Crimes, Melvin Wayne Sharp, Wayne Crenshaw, and Michael Howard, who in turn sold them on the streets daily. Chester Sharp, Daryon’s cousin, allowed his home to be used to cook powder cocaine into its crack form and occasionally sold drugs. Herman Hill, who later became a government informant, tested the quality of the crack Dar-yon Sharp cooked. Chris Andrews and Albert Earl Shearls both sold drugs themselves, and acted as “runners”, taking crack for others out to buyers who drove up in automobiles, and bringing back the money.

Daryon Sharp received his supply from his cousin Leon Sharp, and a person named “Fred.” He in turn supplied the others who then sold it on the street. Profits were split between supplier and seller. There was also a loose specialization, different people selling in different quantities depending partly on their hierarchy in the organization. For example, Daryon Sharp and Bruce Montgomery largely sold “cookies” weighing an ounce. Michael Howard and Chris Andrews sold “sixteenths”, consisting of approximately a gram of crack. Taylor sold street sized “halves” consisting of half a gram of crack. Shearls, Crimes, Melvin Wayne Sharp and Michael Howard sold “twenty-five cent pieces” consisting of a quarter of a gram of crack.

On December 20, 1988, a grand jury indicted nineteen people in an eighteen count indictment. Counts one to sixteen alleged different acts of possession and distribution against individual defendants. Count seventeen alleged that all the defendants conspired to possess with intent to distribute cocaine. Count eighteen sought forfeiture of various property owned by the defendants.

Herman Hill, Jerome Watkins, Michael Watkins, Bruce Montgomery and Wayne Crenshaw plead guilty to the conspiracy and to various, assorted counts of possession and distribution of cocaine. The trial against Andrews, Shearls, Crimes, Melvin Wayne Sharp, Anderson, Chester Sharp, Taylor, Michael Howard, and Lula Sharp Smith, Daryon’s mother, proceeded on March 17, 1989.

Daryon Sharp was not tried with the others because he was a fugitive at the time of the first trial. He surrendered to law enforcement authorities on July 6, 1989, and went to trial with Mack McMillan on December 6, 1989. During the course of the trial, the government dismissed one possession charge against Sharp, and all charges against McMillan.

[1318]*1318Appeals from both the trials have been consolidated.

DISCUSSION

A. Sufficiency of Evidence

All the defendants argue that the evidence was insufficient to convict them of the conspiracy as well as the substantive counts. In reviewing the sufficiency of the evidence supporting a jury verdict of guilty, “[w]e must view the evidence in the light most favorable to the government, accepting all reasonable inferences which support the verdict, and affirm the conviction if a reasonable trier of fact could conclude that the evidence establishes guilt beyond a reasonable doubt.”1

To support a conviction for conspiracy to possess cocaine with intent to distribute, the government must prove beyond a reasonable doubt that 1) a conspiracy to possess cocaine with intent to distribute existed between two or more persons, 2) the defendant knew of the conspiracy, and 3) the defendant knowingly and voluntarily became a part of this conspiracy.2 The government need not prove that the defendant knew all the details of the conspiracy, but must prove at least that he or she knew the essential nature of the conspiracy.3 Thus, a defendant may be guilty of conspiracy even if he or she joined it midway, or played only a minor role in the total scheme.4

A conspiracy may be proved both by direct and circumstantial evidence. Although “[c]lose association with a mere co-conspirator or mere presence at the scene of the crime is insufficient evidence of knowing participation in a conspiracy,” this “knowing participation ... may be established through proof of surrounding circumstances such as acts committed by the defendant which further the purpose of the conspiracy.”5 We will thus uphold a conviction “when the circumstances surrounding a person’s présence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him.”6

The defendants’ challenges to the sufficiency of evidence rely heavily on the argument that Michael Funches, the government’s chief witness, is a paid informant and admitted drug user. Admittedly, some of Funches’ testimony is contradictory. The credibility of a witness, however, is the sole province of the jury. An appellate court will not overturn a jury's decision to believe a witness.7

Although the indictment charged the defendants with conspiracy to possess with intent to distribute five to twenty kilograms of cocaine, the government did not have to prove this actual amount beyond a reasonable doubt to uphold the convictions. Quantity is not included as an element of the crime of conspiracy under 21 U.S.C. § 841(a)(1). Proof of quantity becomes relevant at the sentencing phase.8

[1319]*1319B. Sentencing

The base offence level for sentencing purposes under the U.S. Sentencing Guidelines for a conviction of conspiracy involving a controlled substance is the same as if the object of the conspiracy was completed.9 In a jointly undertaken criminal activity or conspiracy, a defendant is sentenced pursuant to his relevant conduct. Under the sentencing guidelines, this relevant conduct includes, “all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would otherwise be accountable.”10 Relevant acts in a conspiracy are those a defendant procured, counseled, or which were otherwise reasonably foreseeable by the defendant, but not acts in the conspiracy that were not within the scope of the defendant’s agreement.11

This circuit has held that for conspiracy, the standards for sentencing under section 1B1.3 of the U.S. Sentencing Guidelines roughly approximate the substantive standards detailed by the Supreme Court in Pinkerton v. United States.12 The Supreme Court’s holding in Pinkerton

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Bluebook (online)
953 F.2d 1312, 1992 WL 15064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-andrews-ca11-1992.