United States v. Derrow

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 14, 2000
• Docket: 99-40568
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-40568 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL JOSEPH DERROW; DARON LOUIS RICHARDSON,

Defendants-Appellants. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:98-CR-6-9 _________________________________________________________________

April 13, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Michael Joseph Derrow and Daron Louis Richardson appeal their

jury convictions. Derrow argues that there was insufficient

evidence proving that he possessed with intent to distribute crack

cocaine in the Eastern District of Texas as alleged in count three

of the indictment. Derrow also raises a general objection that the

district court abused its discretion when it allowed testimony

about Derrow’s drug activities in Nebraska, Arkansas, Alabama, and

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Louisiana, which he states were not alleged in the indictment

counts. Richardson argues that there was insufficient evidence

establishing that he was part of the conspiracy to possess with

intent to distribute crack cocaine.

Derrow’s argument that there was insufficient evidence that he

possessed crack cocaine in the Eastern District of Texas, as

opposed to the Southern District of Texas (Houston) where he dealt

his drugs, is a venue challenge. Derrow did not raise this issue

at any time in the trial court, and he has thus waived this issue.

See United States v. Solomon, 29 F.3d 961, 964 (5th Cir. 1994); see

also United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984).

Derrow’s plea of not guilty to the conspiracy charge placed at

issue his intent to commit the offenses, and evidence of his drug

offenses in other states was admissible to prove this element. See

United States v. Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996); Fed.

R. Evid. 404(b). Also, the district court gave the jury a limiting

instruction as to how to view the testimony regarding Derrow’s

other dealings, thus, mitigating the potential for prejudice from

such evidence. See United States v. Bailey, 111 F.3d 1229, 1234

(5th Cir. 1997).

The trial record reveals that there was sufficient evidence

demonstrating the existence of a conspiracy to possess with intent

to distribute crack cocaine, Richardson’s knowledge of the

conspiracy, and his willing participation in the conspiracy. See

2 United States v. Broussard, 80 F.3d 1025, 1030-31 (5th Cir. 1996).

Richardson’s argument is without merit.

The convictions of both Derrow and Richardson are

A F F I R M E D.