UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 99-30401 ____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENARD SMITH,
Defendant-Appellant.
Appeal from the United States District Court For the Eastern District of Louisiana District Ct. No. 97-145L
June 30, 2000
Before POLITZ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Renard Smith appeals his conviction and sentence for conspiracy to possess with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 846. For the reasons set forth below, we
affirm.
I
Between approximately 1992 and 1997, the Drug Enforcement Agency (“DEA”) investigated
the activities of Richard Pena, the leader of a drug-trafficking organization known as the “Pena
organization.” In 1997, Pena was arrest ed, and documents seized during his arrest—including a
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. phone log containing the names of Pena associates and family members—led DEA agents to David
Singleton, an officer in the New Orleans Police Department (“NOPD”). Singleton’s involvement with
the Pena organization included kidnaping two individuals who were later murdered by other members
of the organization and numerous drug transactions. In investigating Singleton, the DEA also
received information that Renard Smith, also a New Orleans police officer and, for a period of time,
Singleton’s partner in the Special Operations Division, Narcotics Enforcement in Public Housing,
Crime Prevention, had accompanied Singleton to the kidnaping of Richard Curtis.1
After further investigation into his involvement with the Pena organization, Smith was tried
on a three-count indictment charging him with conspiracy to possess cocaine hydrochloride with
intent to distribute,2 kidnaping in aid of racketeering, and using a firearm in connection with a crime
of violence. At trial, several government witnesses testified as to Smith’s presence at, and/or
participation in, various drug transactions. Smith was convicted of the conspiracy charge, but the jury
could not reach an agreement as to the kidnaping and weapons charges. These charges were
subsequently dismissed on the motion of the government. Smith was sentenced to life imprisonment,
and he filed this timely appeal.
II
After the close of evidence, but before the case was submitted to the jury, the government
requested that the court poll the jury to determine if any of the jurors was acquainted with any of the
defense witnesses. The motion was motivated by the fact that a list of defense witnesses had been
unavailable prior to trial, and because the government believed that one of the defendant’s character
witnesses, Bishop Paul S. Morton, had nodded to one of the jurors after he left the witness stand.
1 Curtis was later murdered by members of the Pena organization. 2 Count One of the indictment (“The Cocaine Conspiracy”) charged, in part, that “[b]eginning at a time unknown, but prior to in or about April 1992, and continuing until on or about April 17, 1997. . . Renard Smith, a/k/a “Zoo”, did knowingly and intentionally combine, conspire, confederate and agree with Richard R. Pena, Eduardo Pena, Johnny Pena, Jorge Rodriguez, David Singleton, and other persons known and unknown to the Grand Jury, to possess with the intent to distribute cocaine hydrochloride.”
-2- That jury member had been a congregant of Bishop Morton’s for approximately three years.
Although the juror told the court that her relationship with Bishop Morton would not af fect her
decision in the case, the judge removed her from the jury and replaced her with an alternate juror. In
explaining his ruling, the judge stated:
I’ve heard it, I looked at the lady as she testified under oath, testified before us here. I’m concerned frankly, that she is a member of the congregation. . . . And the person that she knew is an individual who took the stand and either during direct examination or cross examination, indicated that he believed the defendant.
The defendant’s position is diametrically opposed to the evidence. The question of credibility is a crux of this particular case. In order for this juror to find this defendant guilty, she must find that he lied. But not only that he lied, but that her pastor is either a poor judge of the people in his congregation or that he is wrong in some way, shape or form. And I know that she will try to do her best, but I think that it just seems to me that that burden on her is just an impossible one to bear.
. . . And I t hink the fair thing to do, and I just feel after listening to the woman, after talking with her, I feel that the only fair thing to do is to exclude her for cause, and I am going to do so. And ask that [the alternate juror] take her place.
. . . After listening to the witness and watching her demeanor, it’s my view that it’s imposing too great a burden for her. That’s my ruling.
On appeal, Smith contends that the district court erred in removing the seated juror absent a finding
that she was “unable or unqualified to perform her duties.” Fed. R. Crim. P. 24(c)(1) (“An alternate
juror, in the order called, shall replace a juror who becomes or is found to be unable or disqualified
to perform juror duties.”). We review a district court’s decision to release a juror for abuse of
discretion. See United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992) (“[I]t is within the
trial judge’s sound discretion to remove a juror whenever the judge becomes convinced that the
juror’s abilities to perform his duties becomes impaired.”) (quoting United States v. Domiquez, 615
F.2d 1093, 1095 (5th Cir. 1980)); United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978)
(“[T]he trial judge, in his sound discretion, may remove a juror and replace him with an alternate
juror whenever facts are presented which convince the trial judge that the juror’s ability to perform
his duty as a juror is impaired.”) (emphasis in original). “We will not disturb the trial judge’s decision
to release a juror unless we find that it prejudiced the defendant or another party. Prejudice occurs
-3- in these circumstances when a juror is discharged without factual support or for a legally irrelevant
reason.” Huntress, 956 F.2d at 1312.
Here, the trial judge’s removal of the juror fell within the wide range of discretion afforded
him in the issue of juror replacement. See United States v. Giarratano, 622 F.2d 153, 157 (5th Cir.
1980). His statement explaining his release of the juror indicates a legitimate concern that the juror
would be unable to remain impartial. This belief was based not only upo the juro r’s status as a n
member of Bishop Morton’s congregation, but also on the judge’s interpretation of the juror’s
demeanor when she testified that she would be able to render an impartial decision even in light of
the Bishop-congregant relationship. Cf. United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995)
(“[W]e have only an insentient record before us. The trial court is in a far better position to judge
the mood at trial and the predilections of the jury.”); Wicker v. McCotter, 783 F.2d 487 (5th Cir.
1986) (holding that determinations of juror bias during voir dire are primarily made by the trial court
because they “depend in great degree on the trial judge’s assessment of the potential juror’s demeanor
and credibility, and on his impressions about that venireman’s state of mind”). In light of the trial
court’s clearly-articulated factual basis for dismissing the juror, Smith is unable to demonstrate
prejudice resulting from the removal. See Huntress, 956 F.2d at 1312.3 Accordingly, we will not
disturb the trial judge’s ruling.
III
We next consider Smith’s contention that there was insufficient evidence to support his
conspiracy conviction. In reviewing the sufficiency of the evidence supporting a jury verdict, “we
determine whether, viewing the evidence and the inferences that may be drawn from it in the light
most favorable to the verdict, a rational jury could have found the essential elements of the offenses
3 We also reject Smith’s contention that Fed. R. Crim. P. 24(c)(1) mandates an express finding on the record that a juror is “unable or disqualified to perform juror duties.” We have never before required such a finding, and Smith is unable to cite to any cases in which we require, or even suggest, that the propriety of a trial judge’s dismissal hinges upon the language used in excusing a seated juror. To the extent that Rule 24 requires the judge to explain why he believes that an individual is unable to serve as juror in a particular case, the judge in this case has clearly done so.
-4- beyond a reasonable doubt.” United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995). In doing
so, “[w]e must accept credibility choices that support the jury’s verdict, and we may not reweigh the
evidence.” United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999) (internal citation omitted).
In order to establish a conspiracy, “the government must prove beyond a reasonable doubt
that: (1) an agreement existed between two or more persons to accomplish unlawful ends; (2) the
defendant had knowledge of the agreement; and (3) the defendant voluntarily participated.” United
States v. Montgomery, 210 F.3d 446, 449 (5th Cir. 2000). The agreement may be implicit such that
the jury can infer its existence from circumstantial evidence. See id.; see also United States v.
Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992) (holding that elements of a conspiracy can be
proven by circumstantial evidence). Furthermore, in considering a conspiracy charge, “[t]he jury may
rely on presence and associat ion, along with other evidence[,] thus [] proof of an overt act in
furtherance of the conspiracy is not required.” Montgomery, 210 F.3d at 449. Smith concedes that
the go vernment proved the existence of a conspiracy, but argues that “the evidence regarding
defendant’s knowledge and participation in this conspiracy [] is unreliable, legally irrelevant and/or
exceedingly sparse.”
Here, several witnesses testified at trial that Smith was present during and/or a participant in,
numerous drug transactions between 1992 and 1995. Pena’s former girlfriend, Heather Watkins,
testified that she first saw Smith one evening in 1995, when he met with Singleton and Pena in a park
behind the Audubon Zoo. During that meeting, Watkins testified, Smith left his NOPD vehicle and
spoke with Singleton and Pena. A few months later, Watkins delivered between seven and ten
kilograms of cocaine for and picked up money from Singleton in a parki ng lot. During the
transaction, Smith sat in the passenger seat of Singleton’s car.
Next, Ernest Coleman testified that he received drugs from Singleton approximately once a
month for three years. Coleman further testified that Singleton was a drug supplier for others,
including Smith. Singleton told Coleman that Smith was a “delinquent payer.” On two occasions,
Coleman drove with Singleton to Smith’s apartment to try to collect outstanding debts. Coleman
-5- remained in the car while Singleton went up to Smith’s apartment and collected what Coleman
“assumed to be drug profits.”
Edward Tyrone Yancey testified that in between 1992 and 1994, he did several “jack jobs”
with Singleton and Smith.4 Yancey stated that he would call Singleton and arrange for him to pull
over another drug dealer in his car. Yancey would then take the dealers drugs and/or his money. On
two occasions, when Yancey met Singleton to arrange a jacking, Smith was in Singleton’s NOPD
vehicle. Both officers subsequently stopped a designated vehicle and took the occupant’s money.
Yancey also testified that at one point, Smith gave him ten pounds of marijuana to sell.
Finally, Singleton testified that between 1992 and 1997, he and Smith were involved in
numerous drug and money “jackings” as well as other drug transactions. He further stated that
between 1995 and 1997, Pena supplied him and Smith with drugs that they, in turn, gave to other
drug dealers to sell. Singleton also identified Smith’s nickname on a drug ledger that had been seized
by FBI agents at the time of his arrest.
Drawing all inferences in favor of the jury verdict and accepting the credibility determinations
that support the jury’s conviction, the totality of the evidence presented by the government is clearly
sufficient for a rational juror to find, beyond a reasonable doubt, that Smith was not an innocent
bystander, but rather that he knew of and voluntarily participated in a conspiracy to distribute
cocaine. See Cyprian, 197 F.3d at 740.5
4 A “jack job” involved Singleton and Smith stopping a drug dealer and taking either his drugs (for subsequent distribution) or his money. 5 Smith contends that we should discredit all of the testimony linking him to the drug conspiracy because it “came from the testimony of confessed criminals, trading their testimony for favorable treatment from the government.” Smith is correct that, at trial, the jury was informed that Watkins, Coleman, Singleton, and Yancey had each pleaded guilty to various charges arising out of activities with the Pena organization. The jury was also informed that the witnesses’ plea agreements required full and truthful cooperation with the government in its case against Smith. “It is well settled, however, that a conviction may rest solely upon the uncorroborated testimony of an accomplice, even one who has chosen to cooperate with the government in exchange for leniency, as long as the testimony is not insubstantial on its face.” United States v. Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998). Here, Smith fails to demonstrate that any of the witnesses testified to facts that they “could not possibly have observed or to events which could not have occurred under the laws of nature.” Id. (defining what constitutes “incredible” testimony as a matter of law). Accordingly, we leave the
-6- IV
Smith next contends that a variance existed between the indictment, which alleged a single
conspiracy, and the evidence adduced at trial, which established the existence of two separate
conspiracies. Specifically, he contends that because Yancey was never linked to the Pena organization
or the conspiracy charged in the indictment, his testimony concerning the two jack jobs and the
marijuana sale related to a separate and uncharged conspiracy offense. We will reverse a conviction
based upon a “fatal variance” only if “the evidence at trial varied from what the indictment alleged,
and the variance prejudiced the defendant’s substantial rights.” United States v. Jensen, 41 F.3d 946,
956 (5th Cir. 1995).
A variance exists if the defendant was charged with one conspiracy, but the evidence at trial
established multiple conspiracies. See United States v. Pena-Rodriguez, 110 F.3d at 1120, 1126 (5th
Cir. 1994). In determining the number of conspiracies demonstrated at trial, we consider (1) the
existence of a “common goal, (2) the nature of the scheme, and (3) an overlapping of participants in
the various transactions.” Jensen, 41 F.3d at 956.
Smith contends that the Pena organization and the “jack job conspiracy” had two separate
goals; one that sought profit through selling cocaine, and another that sought profit through robbery.
He further argues that the nature of the two schemes differed in that while “the Pena organization
operated through a fairly complex system of couriers and dealers,” the jack job conspiracy was of the
“old-fashioned ‘stick-up’ variety.” Finally, he contends that the participants in the two conspiracies
did not overlap.
The government responds that the proof at trial demonstrates that (1) the co-conspirators
had a common goal to “derive personal gain through drug-related activities,” (2) the nature of the two
schemes at issue was the same, and (3) there was sufficient overlap of participants in both plans given
Singleton’s key role in the two schemes. We need not, however, render a determination on the
existence of a variance because even if one is assumed, we find that Smith is unable to demonstrate
task of assessing the credibility of the witnesses to the jury.
-7- that any such variance affected his substantial rights. See Pena-Rodriguez, 110 F.3d at 1127
(pretermitting finding on existence of variance where defendants could not demonstrate effect on
substantial rights); see also Jensen, 41 F.3d at 956 (ho lding that successful fatal variance claim
required defendant to show both variance and effect on substantial rights).
We have “long held that when the indictment alleges the conspiracy count as a single
conspiracy, but the government proves multiple conspiracies and a defendant’s involvement in at least
one of them, then clearly there is no variance affecting the defendant’s substantial rights.” Cyprian,
197 F.3d at 741 (quoting Pena-Rodriguez, 110 F.3d at 1128). While this rule is not absolute, see
Pena-Rodriguez, 110 F.3d at 1128, here, Smith fails to show that he falls outside the general rule.
More specifically, because the government presented sufficient evidence to prove Smith’s
involvement with both the Pena o rganization and the jack job scheme with Yancey, Smith fails to
show reversible error under joinder and severance principles. See id. at 1129 (instructing court to
“look to the law of joinder and severance to determine whether the appellants’ substantial rights were
affected”); see also United States v. Morgan, 117 F.3d 849, 859 (5th Cir. 1997). Second, the
evidence presented at trial was easy for the jury to understand such that we have little doubt that it
was confused as to Smith’s role in each scheme. See id. at 1129 (finding that fact that verdicts “did
not turn on particularly complex evidence that was likely to confuse the jury” supported a finding that
any alleged variance was not fatal). Given Smith’s inability to prove that the alleged variance
affected his substantial rights, his fatal variance claim must fail. See Morgan, 117 F.3d at 859; Pena-
Rodriguez, 110 F.3d at 1129.
V
At trial, in response to a defense objection, the court limited Yancey’s testimony to the time
period of the charged conspiracy. Yancey then testified about both the jackings involving Smith and
an occasion on which Smith asked him to sell ten pounds of marijuana. Relying on his contention that
these alleged acts were not part of the Pena conspiracy, Smith now contends that Yancey’s testimony
-8- regarding these crimes was extrinsic evidence admitted in violation Fed. R. Evid. 404(b).6 We
review the district court’s decision to admit extrinsic evidence under Rule 404(b) for abuse of
discretion.7 See United States v. LeBaron, 156 F.3d 621, 624 (5th Cir. 1998). In doing so, we
apply the two-prong test set out in United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).
“To be admissible, (1) the extrinsic evidence must be relevant to an issue other than the defendant’s
character and (2) the probative value of the evidence may not be substantially outweighed by undue
prejudice.” United States v. Sharpe, 193 F.3d 852, 868 (5th Cir. 1999) (citing Beechum, 582 F.2d
at 911).
Smith argues that Yancey’s testimony “served no legitimate purpose under Federal Rules of
Evidence Rule 404(b).” We disagree. Yancey’s testimony—which concerned other drug sales and
thefts during the period in which the conspiracy was alleged to exist—was relevant to prove both
Smith’s knowledge of the drug co nspiracy and his intention to possess and distribute crack with
Singleton. See Fed. R. Evid. 404(b); United States v. Wilwright, 56 F.3d 586, 589 (5th Cir. 1995)
(“It is settled in this Circuit that Rule 404(b) permits the admission of other crime evidence when a
defendant places his intent at issue in a drug conspiracy case by pleading not guilty.”); see also United
States v. Richardson, 168 F.3d 836, 839 n. 9 (5th Cir. 1999) (“Even under the more stringent
6 Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b). 7 The government presents a persuasive argument that testimony regarding these crimes was not extrinsic but rather part of the charged conspiracy. We need not, however, resolve this question since, even assuming that such evidence was extrinsic, Smith is unable to show that it was (1) irrelevant and (2) more prejudicial than probative. See Sharpe, 193 F.3d at 868.
-9- standard of abuse of discretion, we have frequently held that evidence of the defendant’s extrinsic
drug offenses is admissible, and that the probative value of such evidence is not substantially
outweighed by its prejudicial effect.”).8 Furthermore, Smith fails to argue, let alone prove, that the
prejudicial effect of Yancey’s testimony outweighed its probative value. See Sharpe, 193 F.3d at 868;
Beechum, 582 F.2d at 911. Accordingly, the district court did not abuse its discretion in admitting
Yancey’s testimony.
VI
At Smith’s sentencing hearing, the district court adopted the recommendation in the
presentence report (“PSR”) and set Smith’s base level offense at forty-three. The judge also, inter
alia, denied Smith’s objections concerning the amount of cocaine to be attributed to him and his
request for a downward departure based upon Smith’s minor role in the conspiracy. He then imposed
a sentence of life imprisonment. We review the district court’s interpretation and application of the
sentencing guidelines de novo. See United States v. Gallardo-Trapero, 185 F.3d 307, 323 (5th Cir.
1999). We review the court’s factual findings for clear error. See id.
Smith first argues that the court erred in attributing to him the entire amount of cocaine
attributed to the conspiracy where the evidence presented at trial could only support a finding that
four kilograms of cocaine—the amount listed under Smith’s nickname in Singleton’s drug
ledger—were specifically attributable to him. The government responds that the entire 742 kilograms
8 Smith also argues that he “was given no notice whatsoever of the [government’s] intention to use evidence of extrinsic crimes not related in anyway [sic] to the conspiracy charged.” See Fed. R. Evid. 404(b) (requiring the prosecution in a criminal case, upon request of the accused, to provide reasonable notice of the general nature of extrinsic evidence it intends to introduce at trial). The government provided reasonable notice of its intention to introduce Yancey’s testimony regarding the jackings in its “Notice of Intent to Introduce ‘Similar Act’ Evidence Pursuant to Rule 404(b),” which stated that the government would introduce evidence to show that “[d]uring the course of the conspiracy alleged in Count 1 of the Superseding Indictment, on 12 or more occasions, Smith and his co-conspirator David Singleton used their status as New Orleans Police Officers to extort and/or steal cocaine and/o r money from other drug dealers.” To the extent that the notice may not have provided reasonable notice of the government’s intention to present testimony concerning the alleged requested marijuana sale, Smith fails to show, or cite case law to support, how—particularly in light of the trial court’s clear instructions to the jury about the proper use of extrinsic evidence—he was prejudiced by the alleged lack of notice.
-10- was foreseeable to Smith because he knew of the size and breadth of the Pena organization.
“In a drug conspiracy case, sentencing must take into account the drugs with which the
defendant was directly involved but also those that can be attributed to him as part of his ‘relevant
conduct’ under § 1B1.3 of the Sentencing Guidelines.” Id. at 325. Relevant conduct includes “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly taken criminal
activity.” Id. (quoting United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov.
1998)). Here, there is sufficient evidence in the record that Smith knew that Singleton was receiving
large quantities of cocaine from Pena and that he was not the only member of the Pena organization.
The government need not prove that Smith was aware of the exact quantity of drugs involved in the
Pena organization, only that he could foresee the “general breadth” of the conspiracy.” See United
States v. Duncan, 191 F.3d 569, 576-77. Accordingly, the district court did not clearly err in
determining that Smith could have reasonably foreseen the the full amount of cocaine attributable
to the conspiracy for which he was convicted. See Gallardo-Trapero, 185 F.3d at 325 (“The district
court’s determination of relevant conduct is a factual finding that we review for clear error.”).
Smith next contends that the district court erred in assessing his base level offense at forty-
three. Sentencing in a drug conspiracy is guided by USSG § 2D1.1, which includes a cross reference
providing that “[i]f a victim was killed under circumstances that would constitute murder under 18
U.S.C. § 1111 had such killing taken place withing the territorial or maritime jurisdiction of the
United States, apply § 2A1.1 (First Degree Murder).” See USSG § 2D1.1(d)(1). USSG § 2A1.1,
in turn, provides simply “Base Offense Level: 43.” In determining whether or not to apply a cross-
reference in a conspiracy case, a district court must take into account “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3.
Here, the court determined that Smith, as a participant in a drug conspiracy, could reasonably
foresee the murder of rival drug dealers like Curtis .9 Such a finding is not clearly erroneous where,
9 In denying Smith’s objection to the PSR, the district court found that there was:
a nexus between the kidnaping, murder, and drug conspiracy. Both
-11- as here (1) there is substantial evidence that Smith participated in the kidnaping and delivery of Curtis
to Pena, and (2) the kidnapings and murders are listed as activities related to the conspiracy in the
indictment.
Lastly, Smith argues that the district court erred in declining to apply a downward departure
from the sentencing guidelines based upon the minor role that Smith placed in the conspiracy. Under
U.S.S.G. § 3B1.2(b), a district court must reduce a defendant’s base level offense if the defendant
was a “minor participant” in the crime for which he was convicted. See U.S.S.G. § 3B1.2(b). Here,
where the evidence clearly indicates that Smith was as culpable as the average participant in the
conspiracy—if not more so due to his employment as a police officer—the district court correctly
determined that Smith failed to prove that his role in the conspiracy was minor. See United States
v. Brown, 54 F.3d 234, 241 (5th Cir. 1995) (finding that defendant did not play minor role where he
was not “substantially less culpable” than the average participant in the conspiracy); id. (holding that
defendant bears the burden of proving his minor role in the offense by a preponderance of the
evidence).
VII
For the foregoing reasons, we affirm Smith’s conviction and sentence.
the kidnaping and murder occurred during the commission of the offense of conviction and are listed as activities of the cocaine conspiracy in Count 1 of the indictment. Furthermore, the murder was reasonably foreseeable as a result of the jointly undertaken criminal activity. The Court finds that because the murder was within the scope of the offense of conviction and with the authority provided by the sentencing guidelines the defendant’s correct sentencing level of 43 is the murder guideline at U.S.S.G. 2A1.1.
-12-