United States v. Hazel Lyons, Judith Price, Terry Reese, A/K/A Terrance Towns, Angela Reese

CARNES, Circuit KRAVITCH Before Judge. HILL, Circuit Judges, and Senior HILL, Judge: Senior Circuit Reese, Reese, Terry Angela Appellants Price and Ha- Judith Terrance a/k/a for con- appeal their convictions Lyons zel distribute possess with intent spiracy to of 21 U.S.C. in violation crack cocaine (Count I), 841(a)(1) § § U.S.C. in violation of crack cocaine and distribution II-VIII). 841(a)(1) (Counts § U.S.C. appeal their sentences. also and Towns and sen- and Towns’ convictions Reese’s opinion. See affirmed without tences are 36-1. 11th Cir.R. her denial of as error the Price asserts ap- judgment acquittal. motion for judge’s to instruct refusal peals the trial testimony disregard a co-defendant’s

jury to following rea- (Lyons). For the against her Price and sons, the convictions affirm Lyons.1 assignments of error. Lyons’ other Price’s or 1. We find merit house, I. up STANDARDS OF REVIEW After Reese went King Price drove to a which was review the We away parked five minutes in the lot. Keller, evidence de novo. United States v. Smith entered the rear seat of Reese’s car. Cir.1990), cert. de Reese offered to sell Smith worth of $700.00 nied, 978, 1628, 499 U.S. cocaine, agent crack but the asked for more. (1991). L.Ed.2d 724 We look at the evidence question There is no that Price both saw the light in govern most favorable to the crack cocaine and was well aware of the ment, with all reasonable inferences and taking place. nature transaction There is credibility government’s choices made in the question that Reese was aware of Price’s uphold In favor. order to the district court’s presence during this otherwise clandestine judgment acquittal denial of a and the Indeed, transaction. Reese made no effort verdict, jury’s guilty this court need conclude drug dealing to conceal the from Price. only that a reasonable fact finder could have that found the evidence established the de After Smith told Reese that he wanted to guilt beyond fendant’s a reasonable doubt. purchase an additional worth of $1000.00 Id. cocaine, again crack accompanied Price Reese to the agent crack house. The who reviewing In requested the denial of a surveilling house, was the crack Willie Lee instruction, we consider whether that Hawkins, testified that he observed the red (1) instruction: was a correct statement of house, Omni return to the crack park (2) law; adequately was not in covered again in the same location. All three of the (3) given jury; the instructions to the con Price, occupants, Towns, Reese and exited an cerned issue so substantive that its omis the car. Hawkins all walking saw three start impaired sion ability present the accused’s towards the door of the crack house. Haw- (4) defense; proper dealt with an issue kins moved towards the crack in house ly jury. before the If Appellant alleging adjacent yard, by got but the time he near elements, error cannot show one of these door, the front all that he then observed was the district court did not commit reversible exiting Reese the house. Then he saw all Jennings, error. United v. States three re-enter the car and drive off towards Cir.1993). Burger King. Agent Smith testified that he saw them II. ANALYSIS Burger return to King. Reese and Price A. Judith Price dropped Towns off there and drove around briefly parking before across the street. presented against evidence Price at Price They remained the car with Reese. the trial of this case separate involved two could see Towns and parking Smith Price, Reese, crack cocaine transactions. approached lot. Towns Smith’s car and in- present Towns were at the first such formed him “things that were slow” and he transaction at agent which undercover Timo- (Towns) only had worth of crack $700 thy purchased cocaine; Smith cocaine that Reese had offered to sell earlier co-conspirators these same three appeared day. purchased Smith the crack co- again on a second occasion to sell crack caine. agent cocaine to Smith. 29, 1992,

On agent May Smith called again agreed Reese requesting Reese worth of agent $1000.00 crack meet Burger Smith in King park- approximately cocaine. At p.m. 2:00 ing Reese lot to sell him crack Shortly cocaine. drove her red Omni to arrived, Reese, 3107 Carter Street after Smith and Price which was agents known to the undercover together arrived in the red Omni. The car as a “crack house” where Reese stopped and others vicinity parking lot. drugs. secured Price was with got car, the Towns out of the walked over and parked which just on the street entered Smith’s car. When Towns showed front of the crack cocaine, house. Smith the crack he was arrested. govern- required. The ing participation Price as Reese and arrested agents Other that an King. ment, proved must have in this away from the they drove per- two or agreement existed between viewing evidence concedes Price drugs distribute illegally possess sons favorable light most in the voluntarily knowingly and and that Price knew that Price to find jury was free “the conspiracy. See joined participated in the it was doing, knew what Reese Sullivan, reason, nothing United States and, for whatever illegal, however, that be- argues, it.” about that she no direct cause there was negotia- drug deal into the entered either conspir drugs, “mere

tions, her over or handed however, proved direct acy, need “contribut- two occasions on these presence” States, v. 315 U.S. Glasser United evidence. her criminal venture.” nothing to Reese or ed (1942); 80, 60, 86 L.Ed. 680 62 S.Ct. jury not find insists that She Vera, That she had a F.2d at 701 1357. any conspiratori- anything to further she plan the other purpose and with common to further intended objective, or that she al a may from “devel conspirators be inferred objective. any such of circumstances.” opment and collocation court’s conclu- objects to the Price district drug trafficking is one at such Id. Presence merely spectator a was not that “she sion permissi a It raises of those circumstances. added) (emphasis knowledge” guilty without conspira participation inference of ble allows of this circuit asserts law of her cy. the inference While sym- “knowing, and even a have been her to con her and association from being culpable spectator”, without pathetic, to convict alone does suffice spirators not more than was no co-conspirator. She as a her, proba material and the inference is “a asserts, observer, and, is “observation an may consider factor that tive no crime.” Igle v. reaching verdict.” United States its of cases which relies on a line She Cir.1990). (11th sias, 1524, F.2d 1527 915 with a co- held that close association have have observed that: We illegal presence at conspirator or mere ... estab- cases the evidence most [i]n itself, is, by insufficient evi drugs sale of presence un- presence but lishes not mere to a conviction dence In circumstances. particular set of der a drugs. e.g. See possess and distribute determining the the task of such a case Perez-Tosta, 1552, 36 F.3d States v. United by not aided of the evidence (11th Cir.1994); v. United States 1557-58 pres- of the “mere ritualistic invocation (11th Cir.1987), Bell, 272, cert. 275 Rather, requires it exam- ence” rubric. 1747, 1013, denied, 100 108 486 S.Ct. U.S. circumstances, proved of all the ination Adams, (1988); v. States L.Ed.2d 210 United whether determine including presence, to denied, (11th Cir.1986), cert. 799 F.2d 665 jury could infer from them a reasonable 2464, 1070, 107 873 95 L.Ed.2d S.Ct. 481 U.S. Cruz-Valdez, doubt know- beyond a 773 and find reasonable (1987); v. States United denied, (11th Cir.1985), 1541, ing participation. cert. intentional F.2d 1544 1272, 1049, 106 580 89 L.Ed.2d 475 Cruz-Valdez, 1545. 773 at F.2d Bain, 1480, (1986); F.2d v. 736 United States denied, (11th Cir.1984), 469 U.S. cert. 1485 not need Culpable participation (1984); 340, 937, 275 L.Ed.2d 105 S.Ct. 83 when the defen may even great. Guilt exist 1349, Vera, F.2d 1357 v. States United not only role and does plays a minor dant Cir.1983). (11th conspiracy. Unit details of the know all the Badolato, F.2d ed States v. presence, Mere Price is correct. Cir.1983). Furthermore, who a defendant sympathetic observa knowledge, even guilty of a crime is and abets commission aids to fall this court have all been held tion Espi States principal. a United guilty as support her proof required short no-Perez, showing A of know- in this case. conviction judge properly The trial instructed the She and the others exited the car and walked gave Later, in this case. as to this law He towards the house. she chose to re- following instruction: turn with Reese and Towns to the King. permitted Her deliberate return Judith Price and Hazel have each jury to only infer that she not knew she was merely they asserted associated with deal, present at a but that she intended others who have been involved conspiratorial objective to contribute to the charged merely crimes and that each was by assisting Reese in countersurveillance.2 alleged

present during 2 of the trans- actions, partici- was an active neither 8th, May arranged after Smith another pant charged in the crimes and did not “buy,” Reese, again up showed participate agreement enter into and in an Burger King Although with Reese. possess drugs with intent to distribute sale occurred outside Reese’s the simi- guilty. and therefore are not And even larity sales, of the circumstances of the two though they may knowing spec- have been voluntary presence again, sup- they guilty, (emphasis tators are add- ports jury’s beyond conclusion that ed) reasonable only present, doubt Price was not knowing but she willing partici- Evidence need not be inconsistent pant in conspiracy.3 Perez-Tosta, the See 36 every hypothesis with except reasonable that (evidence F.3d at prior 1557 of acts can guilt jury of in order be sufficient. The jury’s findings bolster that defendant was not among free to choose reasonable construc merely bystander) (citing United States v. tions of the evidence. United States v. Adams, (agreement 799 F.2d at 672 and (11th 1545, Christopher, 923 F.2d 1553 Cir. knowing participation logical are inferences 1991). This standard remains the same to be drawn when accompanies defendant whether the evidence is direct or circumstan transactions). codefendant drug to two Gonzalez, tial. v. United States 719 F.2d (11th 1516, Cir.1983), denied, 1521 cert. 465 foregoing The facts also a reason 1037, 1312, U.S. 104 S.Ct. 79 L.Ed.2d 710 able inference that Price committed act (1984). jury’s The verdict must stand unless which possession furthered the of cocaine guilt beyond trier of fact could have found with the intent in to aid the commission of Battle, a reasonable doubt. United States offense, the required as to convict her of 992, 892 F.2d aiding abetting and possession the of cocaine with intent to distribute. United States v. Viewing against the evidence her in Perez, (11th Cir.), denied, 922 F.2d 782 cert. light government, the most favorable the 1223, 2840, 501 111 S.Ct. 115 L.Ed.2d jury in reasonably the this case could con (1991) (aiding abetting theory). and clude that Price “guilty was more than a Riding in Reese’s car on two occasions and 29, spectator.” April accompanied On she accompanying twice Reese to the crack house Reese to the crack house to secure the crack were sufficient actions under the circum agent cocaine present Smith. She was stances. during Reese’s car meeting the initial with Burger King Smith in parking the lot. She presence” Evidence of “mere alone is not negotiations both see and hear Reese’s sufficient to charges. convict of these But question, with Smith. There is no presence indeed is no present virtue. One who is concedes, Price pres that she knew she was company at —or in the clearly of those en- ent at a accompanied deal. She gaged Reese ice; skating deals is on thin in— to the crack drugs. house to secure more and one knowing whose and willful police 2. A officer testified acquitted that he conducted aeri- charges 3. Price was of the involved in VI, 29, helicopter, April al surveillance Count from a distribution on 1992. that the The however, charge, may adduced on that employed method dropping Reese off be considered the on other counts. See driving long way park- the around the block and Rosenthal, 1214, United States v. ing was, Burger King, across the street the 1986), denied, Cir. cert. 480 U.S. opinion, in his countersurveillance. (1987). 94 L.Ed.2d 692 meeting The crack cocaine. grams of drop 5.184 into over crosses jury. played for the videotaped and penitentiary. ice into the through that however, not, agent once; Lyons the were but merely present may have been videotape. visible on the of this twice, all the circumstances under the credulity, as it case,4 our strains day, agent called Reese. that Later rejected Price’s defense The jury’s. agent and phone. The Lyons answered they convicting her as presence” in “mere buying larger amounts Lyons discussed do, not disturb and we shall were entitled county. He to sell in another crack cocaine that conviction. request with Lyons to discuss this told Reese. Lyons Hazel B. its rested After infor- the confidential March Regard- her own behalf. on Reese testified purchasing about mant contacted that, meeting, she stated ing telephone to the Pursuant crack cocaine. agent, she meeting first after the day, under- conversation, on same agent had as the acquired crack cocaine informant confidential agent cover Lyons re- requested, which after she Reese, person identi- Lyons, and met with parking lot. She stated to the turned parking lot. Burger King “Roy” as at the fied cocaine did not hand Roy got out made and Introductions were Lyons and it in the car with agent, left but gave him agent $1000. ear. Reese’s The agent got into car. dropped bag and paper Roy out a took brown judge im- trial Lyons contends agent’s car. the driver’s seat it into request that he instruct properly refused her co- grams of crack bag 14.4 contained any of jury they could not consider car. got Reese’s Roy then back caine. arriving testimony against her Reese’s during the ear remained States cites United their verdict. She and meeting videotaped was The the deal. Cir.1993) Thomas, jury. played for the jury may not con- a proposition for the Reese agent the called testimony against the defendant’s sider one Burger at the They agreed to meet again. has co-defendant the co-defendant because Lyons and arrived King parking lot. testimony other. of the over the no “control” agent purchased ear. in Reese’s The following language from Lyons the recites Lyons $500, Reese and for told cocaine and Thomas: purchase wished to a who that he had friend to testi- of a ... “the decision codefendant crack cocaine. of another worth $500 subject to is not fy produce witnesses and ... is such nor control the minutes defendant’s Lyons After ten and left. power government’s the testimony within parking lot. Reese the they returned to Consequent- joint in a trial.” the to command going she was inside the said exited a defendant to hold ly, is no reason agent get there King, the and told testimony which he over responsible for agent so and Lyons. The back seat control. agent has no Lyons gave the handed $500. evidence, is, by but frequently proven not direct adopted appears to have dissent

4. The this We have cited by evi- evidence. is no circumstantial argument there direct that because negoti- above, dis- the deal The dissent into it is axiomatic. dence that ations, entered law drugs, is no there over the or handed which Price under the circumstances misses presence. against mere proof than her her other "proof” and noas present at the two deals presence” expands rule position the “mere This "based Price's conviction we affirm states that by proof direct requirement for evidence. ato probative value of circum- nothing.” But the on case, does not the dissent no We know of of law just as "clear” rule is evidence stantial one, jury's says verdict that the point to which presence to mere requiring more than as that evi- supported by may circumstantial not be evidence The circumstantial Price. convict law, many drug If that is the dence. the level certainly at least to rises this case wrongfully affirmed have been convictions title, that Price ..." jot, iota of evidence "one law. that is not the past. But court in the this Participation participated this crime. facilitated be, drug conspiracy can in a 703, quoting Lyons’ 987 F.2d at United States v. Rule 29 motion made at the end of Belt, government’s the immediately case was properly denied. Thomas, however, Lyons reliance on misplaced. only is That case holds that a Thomas, Unlike court in the we are not who, govern at end defendant of the being disapprove asked to inclusion case-in-chief, makes a ment’s Rule 29 motion subsequently introduced evidence into the adjudication of the of the judge’s trial consideration of a reserved Rule evidence, right has a to have that motion contrary, 29 motion. being On the we are resolved on the of the basis evidence holding asked to extend the of Thomas be- If only record at that time. there were one yond the context of a Rule 29 motion to defendant, and the evidence at the close of jury’s disallow a any consideration of co- insufficient, government’s case was testimony. Lyons defendant urges us to con- granted motion would be and the defendant clude holding of Thomas is that a guilty. found defendant exposed never be to the con- sequences testimony over which she has guards against Thomas case where no “control”. subsequent testimony might co-defendant’s supply “missing govern- links” in the obviously so, This is not the law. If case, permitting judge ment’s thus the trial defendant would ever be convicted of against resolve a reserved Rule 29 motion Furthermore, crime. even limit- moving defendant. Thomas holds that a ed testimony, context of co-defendant Thom- subsequent testimony co-defendant’s cannot prohibits as testimony consideration of such supply If, be allowed to missing those links. only in the court’s consideration of a Rule at government’s case-in-chief, the end of the motion at government’s made the close of the adjudication a defendant moves for an however, case. jury, The is free to consider case, sufficiency of that the defendant has a all they evidence the record at the time right to have motion resolved on the receive the case.5 basis of the evidence in the record government’s The apart time, if judge even the trial ruling reserves testimony Reese’s was sufficient to allow the until a later time. go jury. case to free consider all during evidence introduced here, That is not the issue however. they trial when deliberate. The In denial of produced ample Lyons’ request jury for a instruction to the evidence before the close of sup its case to contrary not error. was port guilty a verdict. agent The testified to Lyons’ presence at the March April 27 and The Lyons convictions of Price and are buys. 21 crack cocaine Videotapes showed AFFIRMED. Lyons arriving meetings at those with Reese in agent car. The her testified that CARNES, Judge, Circuit in concurring personally handed him the crack cocaine at part dissenting part: and in meeting the April second on 21. He further telephone testified to his conversation with I concur majority’s with the holding that Lyons regarding buying larger amounts of the convictions and sentences of Hazel crack cocaine to sell in county. Lyons, Terry Reese, another Terrance a/k/a ro, 5. is not This the first time that a defendant right has the Court noted that the to a fair trial testimony noticed that her co-defendant’s right does not include the to exclude relevant prejudicial long recognized to her. We have competent and evidence. The Court observed prejudice joint such is inherent trial the of normally that “[a] defendant would not be enti- co-defendants, precisely several the de- because tled testimony the exclude of a former co- strategy testimony fensive and of one co-defen- defendant if the district court did their sever may damage dant another. trials, why and we see no reason and relevant Nevertheless, Supreme the Court has held that competent testimony prejudicial merely would be monitored, prejudice carefully must such because the witness is also a Id. codefendant.” States,-U.S.-, v. United forbidden. Zafiro at-, 113 S.Ct. at 938. (1993). 113 S.Ct. 122 L.Ed.2d 317 In Zafi- 8, 1992, May on is that she was to Price due to be Angela Reese are affirmed. spite of majority’s merely present. hold- In the lack of evi- However, from the I dissent any was involved in crime presented sufficient dence that Price the ing that date, jury conviction. convicted that occurred on that the to sustain Judith evidence possessing cocaine of two counts of crack her the evi- of reviewing the “In intent to distribute on date. with the inquiring dence, limited to Court narcotics of these counts related to the One whether, and draw- construing the evidence house, while the other seized from the credibility choices ing all inferences narcotics from Towns’s count involved the favor, any reasonable the Government’s agent’s car on that drug transaction the guilty ] the be- have found defendant date. United States yond a reasonable doubt.” Newton, 44 The also convicted Price of drawing all reviewing the record and After and to possess with intent to distribute gov- in the credibility choices inferences However, there crack cocaine. distribute favor, supports only the evidence ernment’s relating to her involvement was no evidence following facts. relevant conspiracy, in such a other than the occasions of her mere on the two 29, 1992, Price sat April Judith by Ange- discussed. a ear driven passenger seat of front stopped that car at a crack Reese

la Reese. majority’s conclusions about The and, while Price remained house May lack a April 29 and events approach the vehicle to Reese exited the example, For foundation the evidence. the ear to an- building. After Reese drove 29,1992, majority concludes that on location, government agent entered other house “accompanied Reese to the crack vehicle, and Price ob- back seat agent to secure the crack Smith” cocaine selling agent Reese $700-worth served drugs.” Majority op. at “to secure time, During that Price never cocaine. But there is no evidence that Price 1202. anything any drugs, or did spoke, handled purpose of se- to that location for the went drug transaction. After that facilitated the cocaine, curing evidence that she nor an addition- agent asked Reese secure any cocaine. She was never seen secured cocaine, Price remained al $1000-worth entering leaving the crack house. The picked up passenger in the car as Reese she was evidence establishes is that most the for more co- Towns and as Reese searched merely present outside the house. During rejoining agent. caine before facts attrib- majority’s rendition of the cocaine, again search for Reése’s example, For Price actions of Reese. utes to house, and stopped the car at the crack that, up majority says Reese went “After Reese, Price, Towns exited the car. house, to a and Price drove However, observing special agent DEA away King was five minutes which or exit the trio never saw Price enter 1200, that, lot,” at and parked in the id. house, that and there is no evidence dropped Towns off there and Price “Reese jury, acquitted Price of the did. The briefly parking around before and' drove crack cocaine on charge that she distributed street,” It is undis- id. at 1200. across the 29, 1992, .only charge substantive Price was the driver. puted that Reese was to that date. against her related the driv- merely It was Reese passenger. a May in Reese’s car as Price sat to the er, passenger, who drove not Price the drug conspirators conducted another off, and King, dropped Towns who agent’s in car. No evidence transaction government does parked car. The who any Price saw cocaine on this indicates that otherwise, could it. nor not contend occasion, any she over- nor is there Price majority that because drug The also states relating to the any conversation heard Burger King Reese and certainly returned to is no evidence transaction. There intended to infer “she a anything facilitate the that she did to by objective conspiratorial shows as contribute All that the evidence transaction. 1206

assisting in ing presence eountersurveiUanee.” Id. other than mere and associa majority justification at 1202. The offers no tion. leap that whatsoever deductive other majority spite The in recog- does so of its than a footnote reference to the fact that showing knowing partic- nition that “[a] passenger— Reese the driver —not Price the ipation required,” and that in order to be engaged in what officer believed was affirmance, entitled to an dropped countersurveillance when Reese off proved agreement “must have that an existed 1202 n. 2. Towns. Id. at There is evi- persons illegally between two or more any engaged dence at all that Price coun- possess drugs and distribute and that Price tersurveillance. knowingly voluntarily joined partici- 8, 1992, incident, May As for the the ma pated conspiracy.” Majority op. jority similarity states “the the cir Beyond presence 1201. Price’s mere at the sales, cumstances of the two and Price’s vol transactions, “proof’ there is no untary presence again, supports jury’s conspiracy she was involved in a to sell beyond conclusion that a reasonable doubt drugs. Beyond presence, her mere there is only present, but she was a jot, tittle, not one or iota of evidence that knowing willing participant the con anything Price did participate to facilitate or spiracy.” Majority However, op. at 1202. crime. majority authority propo cites no for the problem is not one of the nature of the twice, merely present sition that if one is a evidence—whether circumstantial or direct— knowing can infer and willful involve quantity. but of A partic- its defendant’s drug conspiracy.* ment in a proposi Such ipation in certainly a crime can proven tion runs counter to this circuit’s well-estab evidence, enough circumstantial if there is presence lished rule that “[m]ere is insuffi today, however, it. Until the decisions of knowing cient participation to establish in a squarely this Court consistently had held conspiracy, as is mere association with con presence that evidence of mere without addi- spirators.” Sullivan, United States v. tional evidence—whether circumstantial or (11th 1215, 1218 Cir.1985) (citation omit prove direct —is beyond insufficient to a rea- ted); Newton, (“Asso see also F.3d at 922 participation sonable doubt in a crime. coconspirator ciation with a is insufficient to presence Even when a defendant’s has prove participation conspiracy. in a At a accompanied by been raising circumstances minimum, willfully the defendant must asso suspicions than those attendant way ciate himself in some with the criminal presence in this we still have willfully participate

venture and in it as he held the evidence insufficient to in something would he bring wished to Hernandez, conviction. In United States v. (citation omitted)); about.” United States v. (11th Cir.), denied, 896 F.2d 513 cert. 1561, Cir.1994) Young, 39 F.3d 858, (“It 112 L.Ed.2d 125 association, is axiomatic that mere with (1990), explained: more, out give cannot rise to a conviction.”); Perez-Tosta, Essentially, government’s against United States v. case Cir.1994) (“The Giral consists of presence Aqui- Giral’s inference of no’s car Aquino and at the trunk when conspirators Garcia, association with package alone does not delivered the Giral’s convict.”). suffice to recognizing walking away Even while catching eye, after Garcia’s law, however, majority clear rule of talking Giral’s phone, to a dead and Giral’s still affirms Price’s conviction prior based on noth conviction of possession. cocaine Yet * majority counts, focuses on the considering possession jury when the the supporting conspiracy evidence Price's convic- must have attributed the crack cocaine to Price tion, possessing not her conviction for presumed crack co- aas result of her involvement with the caine with the drug conspiracy. intent to distribute it. For that Because there is insufficient reason, my insufficiency focus is on the of participated the evidence to find that she in the con- evidence spiracy, to the possession conviction. Price’s conviction for with However, any because no evidence indicates link intent to distribute crack cocaine should be re- between Price and the crack cocaine in this versed as well. conspira- in furtherance of the Aquino or surveillance with association mere Giral’s prove cy. does not transaction presence at the conspiracy.... part was a of

that he omitted). (citation at 1559 The evidence Id. favor- light in the most Viewing the facts underlying Price’s conviction is even more can surmise government, we able to the Perez-Tosta, no tenuous than that because may Aquino with association that Giral’s any demonstrates that Price did criminal, presence that Giral’s have been furthering thing which had the effect of have been of the crime could the scene conspiracy. See also United States v. Ville conspira- of his involvement because (11th Cir.1990) gas, 911 F.2d 628-31 might abrupt departure cy, that Giral’s argument (rejecting government that defen caught he on to because have occurred knowing countersurveillance showed dant’s Garcia, hoped to avoid ar- guilty and was denied, conspiracy), cert. rest, in this case intent and that Giral’s 977, 111 L.Ed.2d intent in identical to his could have been (1991). con- crime for which he was the narcotics presence loophole The mere rule is not a however, find, cannot victed 1985. We technicality drug con- designed or to benefit proved beyond a rea- government that criminals, spirators and other but -instead a member of that Giral was sonable doubt as protect cherished freedoms such serves a kilo- particular conspiracy to sell public places right present our to be gram two of cocaine to Garcia. please with- to associate whomever omitted). (citations Here, the Id. at 519-20 punishment. In- prosecution out fear claim that in addition to government does not rule, Mentioned, into the however well roads any suspi- engaged in being present Price may ultimately threaten those freedoms. Of activity talking into a dead as cious —such course, right present one has the to be government presented no phone —and purpose facilitating anywhere for the drug previous link Price to evidence to others for criminal crime or to associate with crimes. functioned, But law has purposes. Perez-Tosta, recently, we re- More function, require that should continue to of a defendant who had versed the conviction establish, only prove government not but separate linked to present at two events been doubt, presence beyond a reasonable occasion, conspiracy. On one purpose. a criminal and association were for pro- only present was but also defendant not about. That what the mere rule is is keys, registration, insurance duced co-conspirators a truck when two binder for case Price did not It is true that in this with concealed com- met to transfer trucks conspiracy or affirmatively act to thwart the of a cocaine partments and to discuss details crime. The record reflects prevent the Perez-Tosta, La- 36 F.3d at 1558. transfer. Price, pregnant, months eight who was ter, present in a car with the defendant was alert nor did she not flee from the car co-conspirators as one drove the the two oc- drug transaction was authorities that a “erratically” co-conspirators and as the two However, charged with curring. she was not Id. “eountersurveillance.” We conducted felony, drug crimes. misprision of a but with following: concluded the insufficiency despite convicted She was guilty. prove ignore the the evidence could not [A] reasonable appli- equally said in Hernandez possibility that What we [the doubts raised we can surmise dupe in’ cable to this case: unwitting his defendant] was and Towns with Reese conspiracy. Price’s association that furthered the sole action criminal, and that Furthermore, may have been in the absence of evi- of two transac- presence at the scene himself was on defendant] dence that [the involvement lookout, because of tions have been a reasonable could factfinder conspiracy; in a but no reasonable presence in co- [the mere [his] infer proved conclude that the car that defen- conspirator’s] [the rental doubt. beyond a reasonable engaged in counter- knowingly dant] was given society have much to the As a thing drugs,

war on but one we should not the fundamental constitutional

sacrifice is or woman

principle that no man except upon proof

convicted of a crime be-

yond doubt. a reasonable Lynn LOVINS,

Terrie Plaintiff-

Appellant, LEE, Individually

Earl D. and in his offi capacity

cial as the former Sheriff of County, Shadix,

Douglas Ronald H. In

dividually capacity and in his official as Deputy

the former Chief Sheriff of County,

Douglas Douglas County, J.R.

Allen, Individually and in his official

capacity Deputy Douglas as Sheriff of

County, Huey, Individually Michelle capacity Deputy

in her official as Sher Douglas County, Defendants-Ap

iff of

pellees.

No. 94-8580. Appeals,

United States Court of

Eleventh Circuit. 6, 1995.

June Barnes,

Roy E. Browning Tanksley Barnes Casurella, Marietta, GA, & appellant. for Sanders, O’Quinn,Margaret Michael A. E. Williams, Atlanta, GA, O’Quinn Barnhart & appellees. BARKETT, Before CARNES and Circuit *, Judges, and GIBSON Senior Circuit Judge.

* Gibson, Floyd Honorable R. Senior U.S. Circuit tion. Circuit, Judge Eighth sitting by designa- for the

Case Details

Case Name: United States v. Hazel Lyons, Judith Price, Terry Reese, A/K/A Terrance Towns, Angela Reese

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 2, 1995

Citation: 53 F.3d 1198

Docket Number: 93-4502

Court Abbreviation: 11th Cir.