*2 JOHNSON, Before BARKSDALE and DeMOSS, Judges. Circuit DeMOSS, Judge: Circuit Defendant-appellants Charles Crain and Tony Watkins were by convicted for possess and of co- caine with base the intent to distribute. We affirm Watkins’ convictions and sentence on counts, both and conspira- we affirm Crain’s cy However, conviction. we reverse Cram’s supported by conviction as not evidence, sufficient and we vacate Crain’s sentence and remand his case the trial resentencing. court for
FACTS challenge Because this case involves a evidence, the facts are cousin, stated here in detail. Watkins’ Car- Woodward, Sep- los testified at trial that on 12, 1992, Abilene, Texas, tember Watkins “go pick up borrowed Woodward’s car to girlfriend.” gave his cousin $60 the use of the car. cousin, Thomp-
Defendant Crain’s Michael son, was called to the stand at trial Thompson Crain’s defense counsel. testified September Thompson that on and Abilene, Crain were at a friend’s house in up p.m. and Watkins showed at about go asked Crain he wanted to to Fort Worth agreed, with him. Crain de- men, along, cided to too. come The three fives, who had known each other all their together rode in the borrowed car and ar- p.m. rived Fort Worth at about 8 evening. They went to the house of Watkins’ along speaking girlfriend, Crystal, troopers, who was there with the DPS “Mike, this,” Thompson, Thompson, “Buzzy,” roommate. said to hide her Buzzy played Thompson replied, hiding nothing, “I ain’t Crystal and dominoes while you got gonna phone calls. Soon me bent. I ain’t touch it. I Watkins made several *3 thereafter, person messing Thompson and a ain’t it.” Antonio Harris testified over, at the house.1 Wat- that Watkins then reached hid the named “Chub” arrived kins, drugs “up went outside. After under the seat” on Harris and Chub the driver’s minutes, side, straight.” back in- five or ten Watkins came then “set back “Man, They corn. are side and said bull Willey troopers DPS and Tone testified you ready tripping, go. man. Let’s Are car, got Trooper that of after Crain out Watkins, go? go.” Thomp- Let’s Crain and Willey step him asked to the rear of the p.m., or 10 son left the house at about 9:30 vehicle and out of traffic. The other two they through drive-through and went at in trooper men remained the ear. The asked heading Taco Bell before back to Abilene. proof Crain for his driver’s license and of They in spent only had about two hours Fort insurance. Crain did not have a driver’s driving they Worth. Crain was the car when him, provided license with but he his name in started back to Abilene. Watkins was and date of proof birth. When asked about seat, passenger Thompson front and rode in insurance, of Crain stated that the car was seat, sleeping part back time. not his and indicated that the officer should 13,1992, midnight September trooper, Just after talk to Watkins. The other Steve Tone, Department Safety troopers up passenger Texas of Public walked to the front win- Jimmy Willey stopped Tone Steve dow and asked Watkins for identification and speed mph. car proof after radar indicated a of 90 the vehicle’s of insurance. Watkins testimony, items, According Thompson’s supplied obtaining proof as the both over, being pulled glove compartment. car was the three men had from insurance the car’s up Thompson point, Trooper a brief conversation. woke At this Tone returned to the say, patrol began running when he heard Watkins “DPS officer.” car and a radio check Watkins, point, patrol At that ear behind using them on both Crain and Watkins’ lights flashing. began with its As Crain identification and Crain’s name and birth over, said, Meanwhile, pull only thing Trooper Willey “The we are date. asked going get speeding.” is a ticket for Wat- Crain where he had been. Crain said that said, “No, got got dope.” I I kins this. this the three men had been Fort Worth visit- Thompson point, ing that until that said he and a friend named Antonio Harris. While insurance, talking Crain did not know that Watkins had to Watkins about drugs Thompson Trooper separately with him. or Either Crain Tone had asked Watkins “Man, yours. I they said to Watkins: that is where he had been. Watkins said that nothing going don’t know You about it. are had been to Fort an Worth attend aunt’s to have to deal with that.” As Crain was After funeral. the radio checks were run on officers, getting out of troopers the car to talk to both Watkins and both re- Watkins, ‘Well, he said to it or hide some- turned to the car and confronted about Crain thing.” discrepancy While Crain was outside the car Trooper the stories.2 said, seat, Thompson 1. admitted on cross-examination that Crain and "The man front what he, they Well, Crain and Watkins all knew before went why say is he afraid of? did he that?” and drug to Fort Worth that was a said, "Well, Antonio Harris Crain I don’t know. There ain't no point, Thompson dealer. At one referred to Har- afraid, you reason for him to be know. He “Capone.” ris as got claims—he has an ID. You can do an ID him, "Well, replied, why check on too.” Tone that, Trooper initially Tone testified when con- trial, are the stories like that?” At defense after discrepancy, fronted with the Crain said the oth- exchange tape, counsel related the on the Tone lying” er two "must be were because exchange testified that he "inferred" from that During Trooper scared. cross-examination thought lying. that Crain Watkins was Both Tone, however, counsel for Watkins confronted troopers large portions testified that of the traffic videotape night, with the Tone of that in which stop videotape were inaudible. explicitly Crain does not state that Watkins was "lying.” tape, On the Tone came back around to Trooper Tone then told opened the rear door of Watkins and Tone then went ear, Thomp- get from Thompson obtained identification out of the car because the son, passenger, and asked both Wat- going the rear passenger officers were to search the if all three men had been kins and compartment. Thompson testified that at Trooper Tone testified to a funeral. point he did not know that Crain had story Thompson repeated the consented to the search. Watkins and been to Watkins’ the three of them had Thompson got out of the car and went to Trooper Tone funeral in Fort Worth.3 aunt’s stand at the rear of the car as instructed. they had been had said told them Crain standing remained at the rear of the friend, know visiting and that Crain didn’t car, where he had been for about 30 minutes a funeral. After a few sec- anything about initially stopped. During since the car was *4 onds, maybe responded that Crain the two search, Trooper the Tone found a brown Dur- with them. gone hadn’t to the funeral paper bag lodged under the driver’s bucket time, testified, all three ing this the officers seat, gearshift, between the seat and the appeared “nervous.” men by underneath the rail which the seat slides bag then asked Crain for con- Trooper Tone forward and back. The had been twist- car,” and almost up “sticking to “look inside the sent ed and rolled and was out” two thereafter, Trooper Willey also immediately to three inches from underneath the seat. ear.4 consent to search the asked Crain for Trooper bag testified that the would Tone they what officers did not tell Crain The easy all have been within reach of three search, they nor looking for in the did were passengers attempted the car. Tone to any questions possible about ask Crain bag by pulling it out from the remove Troop- weapons other contraband. drugs, or bag caught top, but the was underneath the pretrial suppression Tone testified at a er pull top it seat and he could not out from the sought consent to hearing that the officers tearing Trooper without it. Tone thus re- (1) for three reasons: search the ear bag pulling moved it out from under that both Crain and Wat- radio cheek showed bag opened then and found seat. He (2) histories, all three men had criminal kins containing plastic bag a a whitish rock sub- trying they “like were appeared nervous proved to crack cocaine stance that later be (3) they something,” and had told differ- hide government’s laboratory crime base. gone ing had stories about reason that the rock-like substance witness testified response officers’ to the Fort Worth. weighing 80-pereent-pure cocaine base search, hesitat- request consent to Crain for Clark, grams. Special Agent FBI Tom 21.51 moment, car did repeated then that the ed a testifying government, stated that belong or both officers told not to him. One $4,000 worth more than grams of cocaine is car, that, operator of the as the Crain street, and that of such an on the then said could consent to the search. Crain normally indicate an intent to amount would care,” “I something to the effect of “I don’t distribute. mind,” Although “go or ahead.” both don’t Thompson were arrested. All three men bor- troopers aware that Watkins had were charged federal violation. was not ear from a relative and that Wat- rowed the on both indicted two and Crain were supplied proof of insurance for the kins had (1) conspiracy possess cocaine counts: car, for con- trooper asked Watkins neither (2) distribute; and the intent base with given ear. Crain was not sent to search the the intent to possession of cocaine base with not sign, form to and he was a consent held on Febru- A trial was distribute.5 right to refuse con- informed that he had jury found both defen- ary and the sent. 841(a)(1); § 21 U.S.C. say they U.S.C. had 5. 21 testified that he did 3. 846; funeral; trooper only 841(b)(l)(B)(iii); § § 18 U.S.C. to a he told the 21 U.S.C. been they had been to Fort Worth. § 2. testimony, by According Trooper Tone’s search, the was asked for consent to time Crain stopped for about 30 minutes. car had been Richard, Cir.1993). both counts. dants on The district 994 F.2d A sentencing hearing April person joint court held a who has control over an automo may give sentenced to 140 bile valid 1993. Watkins was months consent to its search. count, Crain, concurrently. Varona-Algos, run on each States (5th Cir.) (driver’s convictions, prior consent to who had several was sen- search vehi against passenger offender” to 262 cle valid tenced as “career months who later claimed count, owner), denied, concurrently. on each to run Both be vehicle’s cert. 484 U.S. 929, 108 appeal (1987); Watkins and Crain their convictions see Morales, also United sentences. (3d Cir.1988) (driver authority
399-400 had vehicle, to consent to search and search ISSUES against passenger valid who had leased Watkins claims the district court vehicle). We therefore conclude that denying suppress erred in his motion to as the driver of the vehicle with Watkins’ during evidence obtained the vehicle search.6 permission, enough authority had to consent sufficiency challenges evi- to the search. him dence to convict of both the offense and the offense. Watkins (2) that, Watkins claims even challenges of the evidence to *5 valid, troopers Crain’s consent was ex conspiracy. convict him of Both defendants scope ceeded the opening the consent sentencing also raise issues. Crain contends closed container inside the car. Watkins ar improperly the district court “double gues stated, troopers because the never prior calculating counted” convictions when implied, they or looking even what were for Crain’s offense level. Watkins claims that he car, reasonably could have improperly opportunity was denied the general inferred that Crain’s consent would plea bargain “accept responsibili- and thus to include open paper bag consent to a closed ty” Sentencing under the Guidelines. However, shoved under the seat. Florida v. Jimeno, 1801, 500 111 U.S. S.Ct.
DISCUSSION
1803-04,
(1991),
states that
police do not
separately request per
have to
Suppress
Motion to
Evidence From Search
mission to search each closed container in a
pretrial
Watkins
sup-
made
motion to
vehicle,
general
and that the driver’s
consent
press all evidence obtained from the search
to a search of the car includes consent to
of the car he had borrowed from his cousin.
paper bag
examine a
on the floor of the car.
appeal,
The motion was denied. On
Watkins
Id. at
111
at
S.Ct.
1803-04. Jimeno also
arguments
why
makes three
as to
the co-
suspect
right
*6
questioning
or hinted
held
that extensive
government proved
guilt
the defendant’s
on
totally
pur
to the
about matters
unrelated
charged
each element of the
offense. United
pose
stop may
of a routine traffic
violate the
(5th
Velgar-Vivero,
236,
States v.
239
See, e.g.,
Fourth Amendment.
United States
Cir.1993),
nom.,
cert. denied sub.
Rivas-Cor-
(10th
Guzman,
F.2d
864
1519
Cir.
—
States,
-,
dova v. United
U.S.
114
1988).
po
But this Circuit holds that mere
S.Ct.
With
questioning
lice
does not constitute a seizure.
mind,
these
considerations
we turn to the
Shabazz,
Further,
993
at 436.
F.2d
when
against
paid
evidence
Watkins. Watkins
$60
questioning
place
takes
while officers are
car,
trip
to borrow the
initiated the
to Fort
waiting
computer
for the results of a
check—
Worth and recruited Crain and
to
and therefore does not extend the duration
accompany
permission,
him. With Watkins’
stop
questioning
of the
does not violate
—the
driving.
Thompson’s
Crain assisted
the
Shabazz,
Terry. See
Sufficiency
Evidence as
especially
We are
reluctant
infer
to Crain —Possession
by
possession
constructive
of contraband
one
occupant
in
regard
possession
to the
when there is evidence
the rec
With
count,
beyond
linking
government
prove
explicitly
must
a
ord
the contraband to an
(1) possessed
occupant. Mergerson, 4
at
reasonable doubt that Crain
other
F.3d
349
(2)
(3)
belonged
illegal drugs;
knowingly;
(pawnshop receipt
gun
showed that
did so
Elwood,
drugs.
co-occupant
to distribute the
of bedroom rather than defen-
intended
cases,
participates
possession
a
alone will not sustain the
In some
defendant who
in
-
denied,
Sotelo."),
conspiracy may
guilty
charge against
a
be "deemed"
of substan
cert.
counts,
-,
1410,
(1994);
possession,
by a
114 S.Ct.
L.Ed.2d 82
tive
such as
committed
128
that,
Basey,
Basey
co-conspirator
conspiracy.
at a
in
of the
487 dant); Pigrum, inference,” also upon see United States 922 which it cannot do. Infer- (5th Cir.), F.2d 255-56 cert. denied sub. stop ences must point. at some Even under States, nom. Allen v. United 500 U.S. our strict standard of review for insufficiency (1991); 114 L.Ed.2d 468 claims, we conclude that a jury rational could Onick, United States v. 889 F.2d 1429- not have found on this record that Crain was (5th Cir.1989) (both reversing count. As we stated convictions when evidence linked co-occu case, in a recent pant, defendants, drugs rather then “[ajlthough the strict nature of this stan- premises). ease, As we stated in a recent dard demonstrates our reluctance to inter- recognize in “We other cases we have verdicts, fere with this ease is an indicated that mere dominion over vehi- example why appeal courts of must not cle which in is can [contraband] found lead completely responsibility abdicate for re- to an inference of possession. constructive viewing jury verdicts.” But ... while dominion over the vehicle Ragan, 24 F.3d certainly help government’s case, will Cir.1994). stated, For the reasons we hold it alone cannot pos- establish constructive that the evidence was insufficient to convict of [contraband] session found vehi- Crain for possession of cocaine in- with the cle, particularly in the face of evidence that tent to distribute. strongly suggests that someone else exer- cised dominion and control the [con- over “Double-Counting” in Crain’s Sentence traband].” Crain claims that the trial court erred Wright, United States v. overruling objections his presentence to his (5th Cir.1994) (citations omitted). With re- Crain, report. who was sentenced aas “ca- gard government prove did reer 4B1.1, § offender” under U.S.S.G. con- sufficient “circumstantial posses- indicium of tends C tt the sentencing court “double- “something sion”—the else ... besides mere prior counted” his in setting convictions joint occupancy” require prove we —which base offense level and history his criminal possession. Mergerson, constructive However, category. because we remand addition, at 349. “countervailing evi- Crain’s ease to the trial court for resentenc- Watkins, drugs dence” links the not Crain: ing light opinion, of this we do not address “Capone” Watkins —not Crain —talked to the “double-counting” argument.8 “Chub.” Watkins —not Crain —decided when would leave three Abilene when Attempt Bargain Watkins’ to Plea depart would from Fort Worth. Watkins trial, government Before offered announced, got the one who “I this Crain and opportunity Watkins an to enter dope,” get Thompson it, tried to who to hide joint plea into a agreement. Crain would not ultimately and who it stuffed under Crain’s agree plead guilty. government re jurors seat. Even chose to disbelieve fused to allow Thompson’s plea-bargain Watkins to indi testimony, “their is not *8 disbelief vidually. Watkins claims that proof beyond to this refusal tantamount a reasonable unjustly opportunity denied him accept doubt” that the to knowingly possessed Crain co- responsibility caine for his with the intent to actions and a distribute it. See receive Velgar-Vivero, 8 F.3d sentence under Velgar- § at 241. in reduction U.S.S.G. 3E1.1. As Vivero, jury’s government The gov- “the conclusion counters that that the there is no proved guilt right ernment beyond plea bargain, [Crain]’s a constitutional to a rea- and the prosecutor sonable doubt plea bargain was unreasonable a need not offer a as matter Onick, 1429, of law.” As in prefer go 889 F.2d at or she we would to to trial. Weather suspect jury 545, that the speculated Bursey, 560, “must v. have 429 U.S. 97 ford conviction,” 846, (1977). into a addition, [Crain] piling “inference In resentencing In authority by the trial court should including exceeded Commission its holding consider our us, in United States v. drug conspiracy Bellazeri- convictions in list of offenses (5th Cir.1994) (vacating 702 status). trigger that career offender sentence, holding Sentencing defendant’s that 488 BARKSDALE, erroneously RHESA HAWKINS argument note that Watkins’
we
part
in
and
Judge, concurring
rela- Circuit
a
there is
cause-and-effeet
that
assumes
dissenting
part:
in
guilty and receiv-
pleading
tionship between
acceptance of
two-point reduction
ing the
majority’s
of all
resolution
I concur
the
Sentencing Guidelines
The
responsibility.
holding
the
evidence
one issue —its
but
The
rejected
position.
expressly
have
posses-
Crain for
to convict
was not sufficient
that a
commentary
states
to section 3E1.1
correctly our
majority describes
The
sion.
is evi-
plea before trial
guilty
defendant’s
of review
and deferential standard
narrow
accepted responsi-
that he or she has
dence
a
of the
when confronted
enters
bility,
a “defendant who
but
jury’s guilty verdict
challenge: a
evidence
adjustment as a
to
not entitled
an
plea is
if,
viewing the evi-
“after
must be sustained
§
commen-
3E1.1
right.”
of
matter
U.S.S.G.
to the
light
most favorable
dence
(1993);
v.
tary
see
n. 3
also
trier of fact
could
prosecution,
rational
Faubion,
In ad-
229
of the
the essential elements
have found
al-
that he was not
dressing
claim
Watkins’
doubt.” Jackson
beyond a
crime
reasonable
probation
accept responsibility,
to
lowed
99 S.Ct.
Virginia, 443
v.
officer noted
(1979) (citation omitted;
2789,
fied.11 drugs of under completely
Crain’s seat was not hidden —the
bag protruded inches, out two to for three
clearly grasp. within Crain’s
Through Thompson’s testimony,
may have “countervailing evi- introduced
dence” which tended to link Watkins to the
drugs, Maj. 487; however, op. at that evi- UNITED America, of STATES automatically dence does not dissociate Crain Plaintiff-Appellee, drugs.12 from the example, majority For does not address fact that Crain and Reay MACKAY, Jamie Kevin Neil a/k/a possess drugs.13 Watkins could jointly Carpenter, Defendant-Appellant. however, disturbing, Most is its sole reliance upon Thompson’s testimony disregard No. 93-1406. clearly supports evidence which jury’s Appeals, Thompson verdict. Court testified after Crain Fifth Circuit. exited the car troopers, to talk with the placed drugs seat; under Crain’s Sept. 1994. however, credibility seriously ques- Regardless, goes tioned.14 it saying without credibility the issue of jury, is for the
not this court.
Confronted with this of the evi- challenge, majority
dence
fails to adhere
placed
the strict limitation
upon appellate
notes,
majority
Thompson
11. As the
joint
general
was not a
venture and
conduct ... sufficient
defendant. Neither Crain nor Watkins testified.
jury finding beyond
to warrant a reasonable
rea
possession
joint.”
sonable doubt that
Sub
fact,
out,
majority
points
Thompson
as the
sequent
suggest
may
cases
that this
be the outer
napping
was
was
on the
seat
back
when the vehicle
edge
permitting finding possession.
for
See Unit
stopped. Obviously,
asleep,
while
he could
Duke,
(5th
ed States v.
391 n. 3
not have heard or understood
conversation
1970);
Savinovich,
Cir.
but
United States v.
had,
may
Watkins and Crain
cfi
have
to include
(9th Cir.) ("if
there is a ration
drugs.
about
attributing
al basis for
interest
the contraband
possibility
13. made the
instructions
party
relationship
to one
because of
with anoth
joint possession
may
clear: "You
find that the
er,
knowledge
a trier of fact can
sufficient
infer
present
you
element of
...
is
find
support
possession"),
to
denied,
conviction
cert.
beyond a reasonable
doubt
the defendants
488 U.S.
102 L.Ed.2d
possession,
had actual or constructive
either
here, but,
present
These factors are
added).
jointly
(emphasis
alone or
with others”
evidence,
light
in the
of the other
are not neces
possession,
As for constructive
the instruction
sary
resolving
to consider in
this issue.
who,
provided
person
although
that "[a]
not in
possession, knowingly
actual
power
has both the
being
14.Besides
related to
intention,
had
time,
given
and the
at a
to exercise
record, and,
initially
an extensive criminal
when
thing,
directly
dominion or control
or
over
either
through
person
persons,
troopers,
interviewed
another
or
failed to
is then in
mention
constructive
of it."
originally
possessed
drugs
States,
Eason v.
*10
placed
then
them under Crain's seat.
Cir.1960),
friendship,
held
“evidence
close
notes
has the
to limit
caine should have been excluded from evi-
scope
chooses,
of his consent as he
but
dence:
case,
this
attempted
none of the three men
(1)
scope
Circuit,
Watkins claims
Crain did limit the
of the search. This
authority
Jimeno,
enough
not have
over
relying
the car to