United States v. Wright

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2001
• Docket: 00-50559
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50559 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOYLAN BARSHUN WRIGHT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CR-85-1 -------------------- June 15, 2001

Before REAVLEY, JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Toylan Barshun Wright appeals his conviction of conspiracy

to possess with the intent to distribute more than 50 grams of

cocaine base, and of aiding and abetting the possession with the

intent to distribute more than 50 grams of cocaine base. Wright

contends that the evidence was not sufficient to support his

convictions.

Because Wright moved for a judgment of acquittal at the

close of the Government’s case and reurged the motion at the

conclusion of all the evidence, we will affirm if “a rational

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50559 -2-

trier of fact could have found that the evidence established the

essential elements of the offense beyond a reasonable doubt.”

United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).

The Government was required to prove three elements in order

to obtain the conviction for conspiracy to possess with intent to

distribute: 1) the existence of an agreement between two or more

persons to violate federal narcotics laws; 2) the defendant’s

knowledge of the agreement; and 3) the defendant's voluntary

participation in the agreement. United States v. Gonzales, 79

F.3d 413, 423 (5th Cir. 1996). Circumstantial evidence is

sufficient to prove the existence of a conspiracy, the elements

of which “may be inferred from the development and collocation of

circumstances.” Id. (internal citations and quotation marks

omitted). The jury may consider factors such as “concert of

action” and presence among, or association with, drug

coconspirators, United States v. Bermea, 30 F.3d 1539, 1551 (5th

Cir. 1994) (internal quotation marks and citations omitted),

although mere presence and association alone are not sufficient

to support a conspiracy conviction. See United States v. Brito,

136 F.3d 397, 409 (5th Cir. 1998). An explicit agreement need

not be proven; the agreement may be tacit. United States v.

Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997).

Wright was the driver of a vehicle containing a

distributable quantity of cocaine base and related drug

paraphernalia. When the vehicle was stopped for a minor traffic

offense, Wright failed to pull over immediately; once stopped,

Wright immediately exited the vehicle, exhibited nervousness, and No. 00-50559 -3-

engaged the police officer while a co-conspirator discarded the

illegal drugs beside the vehicle. After his arrest on an

outstanding warrant, Wright displayed an active interest in the

ongoing police investigation, which eventually discovered the

discarded cocaine base. A small quantity of cocaine base was

found in the backseat of the police vehicle where Wright had been

seated, and a field test of Wright’s clothing returned a positive

result for cocaine. Considering the evidence and all reasonable

inferences drawn therefrom in the light most favorable to the

prosecution, a rational trier of fact could have found that the

Government established the essential elements of the offense

beyond a reasonable doubt. See Lopez, 74 F.3d at 577.

Wright challenges his conviction for aiding and abetting on

the grounds that the evidence was insufficient to establish that

he possessed more than 50 grams of cocaine base or possessed more

than is consistent with personal use. “The essential elements of

an aiding and abetting claim are (1) association with a criminal

drug venture, (2) participation in the venture, and (3) action by

the defendant that, in some way, tries to make the venture

succeed.” United States v. Drones, 218 F.3d 496, 505 (5th Cir.

2000) (citation omitted). Possession is not an essential element

of the offense. “A defendant may be convicted of aiding and

abetting the offense of possession with intent to distribute a

controlled substance even if he did not have actual or

constructive possession of the substance.” United States v.

Gonzales, 121 F.3d 928, 936 (5th Cir. 1997). Evidence supporting No. 00-50559 -4-

a conspiracy conviction is generally sufficient to support an

aiding and abetting conviction. See id.

Considering the evidence adduced at trial, a rational jury

could have found that Wright – who drove a vehicle which

contained at least one co-conspirator, a distributable quantity

of “crack” cocaine, and related drug paraphernalia; who failed

immediately to bring the vehicle to a halt when stopped by a

police cruiser for a traffic violation; who, upon exiting the

vehicle, exhibited nervousness and engaged the police officer

while occupants of the vehicle disposed of contraband; and whose

clothing tested positive for cocaine – was associated with,

participated in, and took actions to help a “crack” cocaine

distribution venture succeed.

AFFIRMED.