United States v. Dawes

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 9, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-41071

UNITED STATES OF AMERICA,

Plaintiff-Appellee, VERSUS

JULIA MAY DAWES, TOM FRANKLIN MORRIS, and STEVEN WAYNE PAYNE,

Defendants-Appellants.

Appeals from the United States District Court For the Eastern District of Texas (04-CR-92)

Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and A grand jury indicted Appellants Julia Dawes

(“Dawes”), Steven Payne (“Payne”), and Tom Morris

(“Morris”), among others, for their roles in a drug

manufacturing and distribution ring in Paris, Texas. The

Appellants were charged with one count of conspiring to

manufacture, distribute, and possess methamphetamine in

violation of 21 U.S.C. § 841(a)(1). The Appellants were

tried together and found guilty by a jury on February 1,

2005.2 The Appellants assert various claims of error. Finding

no reversible error, we affirm.

I. Facts and Background

On June 29, 2004, the government unsealed an

is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 2 The indictment additionally charged Morris with possession with the intent to distribute approximately 1.2 grams of methamphetamine. The jury convicted him of that charge as well. 2 indictment naming twelve individuals as co-conspirators in

an alleged methamphetamine manufacturing and

distribution operation. Among those named were the

Appellants, and they proceeded to a joint jury trial.

According to trial testimony from a government

investigator, Richard Dixon was the “hub” of the conspiracy

and the Appellants, at different times, supplied Dixon with

methamphetamine for personal use and resale. Dixon,

having already plead guilty, testified against the Appellants

at their trial. He stated that he purchased

methamphetamine from Julia Dawes from the middle of

2001 until November, 2002. Dixon further testified that he

initially purchased small amounts from Dawes for his

personal use, but after about four months, he began to buy

more substantial quantities to sell. Dixon estimated that he

purchased approximately 250 grams from Dawes.

3 Dixon went on to testify that he started buying

methamphetamine from Payne in February 2003. He stated

Payne supplied him with about one ounce (approximately

28 grams) per month until March 2004, totaling between

300 and 400 grams. Dixon also testified he was aware that

Payne supplied others with methamphetamine as well.

Regarding Morris, Dixon further testified that he was

acquainted with him and at different times he both sold and

purchased methamphetamine from Morris, although it

appears from the testimony that the quantities were small.

Dixon also bought and sold drugs to Cody Berry, who was

at Morris’s house the day he was arrested.

In addition to Dixon’s testimony, the government

presented other evidence of Appellants’ involvement in the

conspiracy. For example, Toby Tidwell testified that he

purchased methamphetamine from Dawes at her home on

4 a number of occasions, often two to three times per week.

While at her home he witnessed Dawes in possession of

five to eight ounces (approximately 140 to 224 grams) of

methamphetamine. He stated that over the span of three to

four months he purchased about five ounces

(approximately 140 grams) from Dawes. He also testified

that he facilitated a transaction where Dawes sold $2,000

worth of methamphetamine to another person. In addition,

Andrea Allen and Richard Aubrey both testified against

Dawes. Aubrey testified he witnessed Dawes use

methamphetamine and possess at least one ounce. Allen’s

testimony primarily corroborated the testimony of Dixon

and Tidwell. Also, upon Dawes’s arrest, police discovered

small amounts of methamphetamine on her person and in

her house.

The government presented additional evidence against

5 Payne as well. At trial the government showed a video of

Payne admitting responsibility for 750 to 1,400 grams of

methamphetamine. Additionally, witnesses Tony Freelen,

Keri Pinalto, and Angela Pendergraft all testified they

received methamphetamine from Payne. In particular,

Pinalto stated she purchased an “eight ball” (equal to about

four grams) of methamphetamine from Payne several times

per month between March 2003 and February 2004.

The evidence against Tom Morris included both witness

testimony and physical evidence. Following a confidential

informant’s purchase of methamphetamine at Morris’s

house, police searched the house and found baggies of

methamphetamine along with drug paraphernalia,

including scales. A number of witnesses testified they

purchased methamphetamine from Morris, including Donald

Benton, who purchased approximately 18.5 grams from

6 Morris during 2004. In addition, Crystal King testified she

witnessed a friend buy between two and three eight balls

on one occasion.

After hearing the evidence, the jury found each

Appellant guilty of conspiracy. The jury additionally found

Morris guilty of possession with the intent to distribute 1.2

grams of methamphetamine. The Appellants each received

substantial sentences. The court sentenced Dawes to 151

months’ imprisonment, Payne to 121 months, and Morris to

350 months. Each timely appealed raising several claimed

errors, many of which do not require discussion. However,

each Appellant argues it was error for the jury to consider

co-conspirator actions in reaching the 500 gram threshold,

as opposed to considering their actions separately. We

consider each Appellant’s argument on this issue in turn.

II. Discussion

7 A. Julia Dawes

Dawes claims there is a variance between the

indictment and the evidence presented at trial. She

contends the indictment alleges one large conspiracy

involving more than 500 grams of methamphetamine, but

the evidence at trial showed only several smaller

conspiracies. She argues that because, at most, she was

involved in a small conspiracy that amounted to less than

500 grams, her conviction cannot stand. To prevail on a

variance claim Dawes must show (1) a variance between

the indictment and the evidence at trial, and (2) that her

substantial rights were prejudiced. See United States v.

Payne, 99 F.3d 1273, 1279 (5th Cir. 1996). Because we find

no variance, we need not consider prejudice to Dawes’s

substantial rights.

Dawes argues the government alleged a large

8 overarching conspiracy but proved several smaller

conspiracies. To determine whether the government proved

a single conspiracy we consider (1) the existence of a

common goal, (2) the nature of the scheme, and (3) the

overlapping of the participants in the various dealings.

United States v. Morris, 46 F.3d 410, 415 (5th Cir. 1995). In

considering these factors, “we must affirm the jury's

finding that the government proved a single conspiracy

unless the evidence and all reasonable inferences,

examined in the light most favorable to the government,

would preclude reasonable jurors from finding a single

conspiracy beyond a reasonable doubt.” Id. (internal

quotation marks and alterations omitted).

a. Common Goal

“Where the evidence demonstrates that all of the

alleged co-conspirators directed their efforts towards the

9 accomplishment of a single goal or common purpose, then

a single conspiracy exists. United States v. Richerson, 833

F.2d 1147, 1153 (5th Cir. 1987). We have broadly defined

this factor. See, e.g., Morris, 46 F.3d at 415; see also

Richerson, 833 F.2d at 1153 (collecting cases that

emphasize our expansive application of this factor). Also,

we have often found that personal gain from selling drugs

is a common goal. See Morris, 46 F.3d at 415 (“The common

goal of everyone involved, the suppliers, [the cocaine

distributor], and the purchasers, was to derive personal

gain from the illicit business of buying and selling

cocaine.”); see also Payne, 99 F.3d at 1280 (finding the

participants had the common goal of selling crack).

Dawes’s role for over a year was to sell drugs to Dixon

that he could re-sell to others. Dawes thus shared a

common goal with other co-conspirators--profiting from the

10 continued operation of Dixon’s drug business. Under our

broad definition, we find this element satisfied.

b. Nature of the Scheme

The proper inquiry is whether “the activities of one

aspect of the scheme are necessary or advantageous to the

success of another aspect or to the overall success of the

venture, where there are several parts inherent in a larger

common plan.” Morris, 46 F.3d at 416. In other words,

when an “agreement contemplates bringing to pass a

continuous result that will not continue without the

continuous cooperation of the conspirators to keep it up,

then such agreement constitutes a single conspiracy.” Id.

at 415-16 (quotation omitted).

If we consider the Appellants’ actions only in relation

to each other, and ignore the actions of other co-

conspirators, it could be argued they participated in

11 unrelated transactions that were not part of a larger

scheme. For example, the evidence showed that Dawes and

Payne supplied Dixon with methamphetamine at different

times and never agreed to cooperate with each other.

However, we must look at the entire conspiracy and

determine if the activities of one aspect of the scheme were

necessary or advantageous to the success of another aspect

or to the overall success of the venture. See Morris, 46 F.3d

at 416. It is clear that Appellants’ primary activity--

supplying drugs--was advantageous to the overall success

of Dixon’s drug distribution business. Thus, we find that

Appellants’ activities were advantageous to the overall

success of the venture.

c. Overlapping of Participants in the Various

Dealings.

“The more interconnected the various relationships

12 are, the more likely there is a single conspiracy.” Morris, 46

F.3d at 416. However, it is not required that each

conspirator participate in every transaction. Id. “A single

conspiracy exists where a ‘key man’ is involved in and

directs illegal activities, while various combinations of other

participants exert individual efforts toward a common

goal.” Id.

The evidence at trial did not directly link Dawes to the

other Appellants, but it did link her to other co-

conspirators, most notably Dixon and Toby Tidwell. It was

clearly established that Dawes sold methamphetamine to

Dixon and Tidwell and was acquainted with a number of the

other co-conspirators. The evidence also connected Payne

and Morris to others in the conspiracy.

Dixon was the “key man” and directed a drug

distribution ring, and Dawes, among others, exerted

13 individual efforts towards a common goal of furthering that

business for her own benefit. See id. Thus, we find this

element satisfied.

Based on the foregoing, and examining the evidence

and all reasonable inferences in the light most favorable to

the government, we find a reasonable jury could have

concluded the government proved one conspiracy.

The result is that the well-known Pinkerton rule applies

to the Appellants’ actions. See Pinkerton v. United States,

328 U.S. 640 (1946). Under that rule reasonably

foreseeable actions of co-conspirators can be attributed to

Dawes, even if she did not know about them. See United

States v. Wilson, 105 F.3d 219, 221 (5th Cir. 1997). Despite

Dawes’s argument to the contrary, it was reasonable for

her to foresee that Dixon would purchase

methamphetamine from other suppliers. Thus, a reasonable

14 jury could find that Dawes’s direct involvement, coupled

with the reasonably foreseeable actions of her co-

conspirators, resulted in her responsibility for 500 grams,

as alleged in the indictment.

B. Steven Payne

Payne moved for a judgment of acquittal below and

argues on appeal that the government presented

insufficient evidence that he knew of, or participated in, a

conspiracy. When a defendant has moved for a judgment of

acquittal, we review challenges to the sufficiency of the

evidence by determining whether a rational jury could have

found the elements of the offense beyond a reasonable

doubt, when the evidence is viewed in the light most

favorable to the verdict. United States v. Patterson, 431

F.3d 832, 836 (5th Cir. 2005).

The thrust of Payne’s argument is that even if the

15 government proved a conspiracy, it did not prove he was

involved. However, the evidence at trial established Payne’s

significant involvement in a large-scale methamphetamine

ring. Payne himself admitted being responsible for up to

1,400 grams of methamphetamine. Further, Dixon testified

he purchased between 300 and 400 grams from Payne.

Based on this evidence a rational jury, even considering

Payne’s transactions alone, could have found that he was

responsible for 500 grams of methamphetamine.

C. Tom Morris

Morris argues the district court erred by not responding

to a question posed by the jury during its deliberations.3 In

deciding how to respond to a question posed by the jury,

the district court enjoys wide latitude. United States v.

3 The other Appellants raise this issue as well. We note that Morris does not challenge the sufficiency of the evidence tying him to the conspiracy. 16 Stevens, 38 F.3d 167, 170 (5th Cir. 1994); see United

States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985) (“the

necessity, extent, and character of any supplemental

instructions to the jury are matters within the discretion of

the district court.) (emphasis added) (internal quotation

marks omitted).

The court’s response to the jury question in this case

was a note requiring them to consider the original

instructions. In response to a jury question it is acceptable

for the court to refer the jury to the original instructions as

long as they contain an accurate statement of the law. See

United States v. Arnold, 416 F.3d 349, 359 n.13 (5th Cir.

2005). Here, we are satisfied the original instructions

contained an accurate statement of the law and that the

court acted within its wide discretion. Thus, find no error.

After reviewing Appellants’ other claims of error, the

17 briefs and the record, and after consulting the applicable

law, we find no reversible error. Accordingly, we affirm.

AFFIRMED.