United States v. Drones

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-20813 Summary Calendar _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

JANADRICK KEMONT DRONES

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas (H-95-CR-125-3) _________________________

July 2, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

The government indicted Janadrick Kemont Drones and several

others with conspiracy to possess cocaine base with the intent to

distribute, aiding and abetting the possession of cocaine base with

intent to distribute, and using and carrying a firearm in relation

to a drug-trafficking crime. During Drone’s jury trial, the

district court granted his motion for a judgment of acquittal

regarding the firearms offense, but denied the motion regarding the

drug-trafficking claims. The jury subsequently found Drones guilty

of committing the drug-trafficking offenses. Several days

following the jury’s verdict, the district court concluded that its

previous ruling denying the motion for judgment of acquittal on the

drug-trafficking offenses was erroneous and acquitted Drones of

those charges. The government filed a timely notice of appeal to

the district court’s order of acquittal.

II.

The government argues that the district court erred by

granting acquittal for Drones in the drug-trafficking offenses and

contends that there was sufficient evidence to support the

conclusion of Drones’s guilt of the conspiracy and aiding-and-

abetting charges beyond a reasonable doubt.

The duty of a district court in ruling on a post-verdict

motion for acquittal is to determine, viewing the evidence in the

light most favorable to the government, whether the evidence could

2 be accepted by a jury as adequate and sufficient to support the

conclusion of the defendant’s guilt beyond a reasonable doubt.

United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert.

denied, 506 U.S. 918 (1992). An appellate court reviews the trial

court’s granting of a motion for acquittal de novo, applying the

same standard as the court below. Id. Neither the trial court,

nor the appellate court, may substitute its own subjective

interpretation of the evidence for that of the jury’s. United

States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.), cert. denied, 446

U.S. 945 (1980) (cited by Sanchez, 961 F.2d at 1179). However, if

the evidence supports equally or nearly equally a theory of

innocence, the district court will not have erred in entering a

judgment of acquittal. Sanchez, 961 F.2d at 1180.

To establish guilty of a drug conspiracy, the government must

prove beyond a reasonable doubt the existence of an agreement to

possess with intent to distribute an illicit substance, the

defendant’s knowledge of the agreement, and his voluntary

participation in it. United States v. Lewis, 902 F.2d 1176, 1180-

81 (5th Cir. 1990). It is not necessary for the government to

prove an express, explicit agreement; a tacit, mutual agreement

will suffice to prove a conspiracy. United States v. Prieto-Tejas,

779 F.2d 1098, 1103 (5th Cir. 1986). The government sustains its

burden by showing that the defendant was aware of the unlawful

agreement and was somehow associated with the plan to promote its

3 success. United States v. Fernandez-Rogue, 703 F.2d 808, 814-15

(5th Cir. 1983).

A person who associates in a criminal venture, participates in

the venture, and engages in conduct designed to make the venture

succeed is guilty of aiding and abetting under 18 U.S.C. § 2.

United States v. Murray, 988 F.2d 518, 522 (5th Cir. 1993).

“‘Association’ means that the defendant shared the criminal intent

of the principal. ‘Participation’ means that the defendant engaged

in some affirmative conduct designed to aid the venture.” Id.

When a drug defendant is accused of aiding and abetting possession

with the intent to distribute, the government also must prove the

above three elements of aiding and abetting with respect to both

possession and intent to distribute. See United States v.

Longoria, 569 F.2d 422, 425 (5th Cir. 1978).

Gregory Haire, a sergeant investigator with the Texas

Department of Public Safety, testified that at approximately 1:00

p.m. on April 25, 1995, he directed two confidential informants

(CIs) as they negotiated a purchase of 18 ounces of crack cocaine

over the telephone. The CIs received two phone calls after paging

the sellers. Haire recorded both phone calls. Haire never

obtained the telephone numbers the CIs used to page the crack

cocaine sellers.

Haire stated that, at the drug transaction’s designated

meeting place, he observed Drones sitting in the driver’s seat of

4 a 1995 White Mustang convertible, his codefendant, Vernon Paul

Freddie (Vernon), sitting in the front passenger seat, and his

other codefendant, Arnold Joseph Freddie (Arnold), sitting in the

rear of the vehicle. Haire also stated that the drugs were located

in the front right floorboard area. Haire testified that when the

backup officers came in to make the arrests, Drone moved as if to

run, but Haire grabbed him in a choke hold and wrestled him to the

ground.

Haire testified that he designated Drones as one of the

speakers in the transcripts of the recorded phone calls after he

recognized Drones’s voice at his arrest as one of the speakers in

the taped phone calls. On cross-examination, Haire clarified that

he determined Drones was one of the voices on the tapes after Haire

had listened to the tapes following Drones’s arrest.

Haire also testified that he never obtained a second tape of

Drones’s voice to allow researchers to definitively determine if

Drones’s voice was one of the voices in the phone call. Haire

stated that, although he could have done more to identify the

voices on the tapes, he did not do so because he believed it was

not important.

Haire discovered that Violet Walker rented the Mustang from

Budget Rental Car but never talked to her to discover to whom she

loaned the car. Haire testified that he saw the keys in the

ignition when he observed the Mustang, but could not contradict the

assertion that they were in Arnold’s pocket.

5 After pleading guilty to the charged drug-trafficking crimes,

Vernon testified that he encountered Drones in the parking lot of

a Burger King restaurant, and that he had not seen Drones in a year

prior to that meeting. Vernon introduced Drones to his brother,

Arnold, who was near Vernon’s white Mustang. Vernon testified that

only his brother and he were in the Mustang when it arrived at the

Burger King, and that his brother was driving the car. Vernon and

Drones walked to the car to write down Drones’s phone number when

the CI walked up to the car and got in the driver’s seat. After

Vernon weighed an ounce of crack cocaine for the CI, the CI got out

of the car. At all times, Drones was standing by the back of the

car.

After pleading guilty to the drug-trafficking offenses, Arnold

testified that his brother introduced him to Drones at the Burger

King parking lot. Arnold stated that Drones was standing by the

rear of the car when Vernon and the CI got into the front of the

car and weighed the crack cocaine. Arnold stated that Drones was

still standing by the rear of the car when Haire came up to the

Mustang. Arnold affirmed it was his beeper number on the

recordings and that he had previously had a telephone conversation

with the CI which resulted in the arrangement of a drug

transaction, that he knew that a drug transaction was going to

occur in the parking lot, and that he was sitting in the backseat

of the car to be able to see everything in his role as bodyguard.

Arnold specifically testified that Drones was not a party to the

6 drug transaction, that he was not in the car, and that he did not

recognize Drones’s voice on the tape recordings of the phone calls.

Krisna Brown, Drones’s wife, testified that the night previous

to Drones’s arrest, they had spent the night at a motel. On the

tape recordings, one of the CIs told the person Haire identified in

the tape as Drones that the CIs were willing to meet at a motel.

Brown testified that she left at 8:00 a.m. and spent the rest of

the day with Drones at her sister’s house, which did not have a

phone. Brown testified that Drones left her company at about 4:30

p.m. to get something to eat and that she believed he went to a

Burger King.

The government contends that the tape recorded conversations,

coupled with Haire’s identification of Drones as one of the

speakers in the conversations and Arnold’s admission that he

participated in the taped conversations was sufficient to support

a finding that Drones entered into an agreement with Arnold to sell

cocaine. The government asserts that Drones’s presence at the

scene of the transaction corroborated Haire’s voice identification

and that the jury could infer Drones’s knowing participation in the

transaction from a cumulation of the factors combined with Drones’s

presence at the scene and his attempted flight.

This case presents a close question whether the evidence,

viewed in the light most favorable to the government, supports

Drones’s conviction for conspiracy to possess cocaine base beyond

a reasonable doubt. Apparently, the jury considered Haire’s

7 testimony, which included his identification of Drones’s voice and

presence in the car with the drugs, to be more credible than the

testimony of Drones’s codefendants and alibi witness. This

credibility choice must stand. See Varkonyi, 611 F.2d at 85. Yet,

Haire could not link Drones with the phone numbers used to arrange

the drug transaction. See United States v. Velgar-Vivero, 8 F.3d

236, 240 (5th Cir. 1993), cert. denied, 114 S. Ct. 2715 (1994)

(Government’s failure to link defendant with phone numbers used to

execute drug deal one of factors in reversing conspiracy conviction

for insufficient evidence).

However, giving the jury’s credibility choices their due

weight, the evidence appears to support the jury verdict beyond a

reasonable doubt. Haire’s testimony demonstrated Drones’s

involvement in the drug-transaction arrangements with Arnold and

placed him in the car with the drugs at the appointed transaction

site. Through this testimony the jury could believe that Drones

was aware of an unlawful agreement and that he was associated with

the plan to promote his success. See Fernandez-Rogue, 703 F.2d at

814-15. Because the evidence, accepted by the jury as adequate,

was sufficient to support the conclusion of Drones’s guilt beyond

a reasonable doubt, the district court erred by granting Drones’s

motion for a judgment of acquittal. See Sanchez, 961 F.2d at 1179.

See Varkonyi, 611 F.2d at 85.