     Case: 16-10460      Document: 00513943837         Page: 1    Date Filed: 04/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fif h Circuit

                                      No. 16-10460                                   FILED
                                                                                  April 7, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                 Plaintiff-Appellee

v.

DARRIUS KING,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:14-CR-89-2


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
       Darrius King appeals his convictions for conspiracy to manufacture,
distribute, and possess with the intent to distribute marijuana in violation of
21 U.S.C. § 846 and possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A). King’s convictions arise out of a
“marijuana grow operation,” whereby King conspired with codefendants, Zayid
Waters and Kiffer Hudson, to grow marijuana plants in Waters’s house and
eventually sell marijuana for profit. He contends that (i) the evidence was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-10460

insufficient to support his convictions; (ii) the district court erred in its
instructions to the jury; and (iii) the district court erred in admitting evidence
of a prior act and the Government improperly elicited testimony concerning
the prior act and also improperly referenced the prior act in its closing
argument.
I.    King’s Sufficiency of the Evidence Claims
      King moved for a directed verdict after the Government rested, which
the district court denied. However, he failed to renew his motion at the close
of the evidence or after the jury returned its guilty verdict. As a result, he
waived any objection to the denial of his motion, see United States v. Robles-
Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989), and our review of his insufficient
evidence claims is for plain error only, see United States v. Delgado, 672 F.3d
320, 330-31 (5th Cir. 2012) (en banc). Under that standard, an insufficiency of
evidence claim “will be rejected unless the record is devoid of evidence pointing
to guilt” or contains evidence on a key element of the offense that “is so tenuous
that a conviction [would be] shocking.” Id. (citation omitted).
King’s Conspiracy Conviction
      In order to prove that a defendant is guilty of conspiracy to distribute
drugs under § 846, the Government “must prove beyond a reasonable doubt”:
(i) “the existence of an agreement between two or more persons to violate
narcotics laws”; (ii) “knowledge of the conspiracy and intent to join it”; and (iii)
“voluntary participation in the conspiracy.” United States v. Peters, 283 F.3d
300, 307 (5th Cir. 2002). “The jury may infer any element of this offense from
circumstantial evidence.” United States v. Lechuga, 888 F.2d 1472, 1476 (5th
Cir. 1989). The record in this case was not devoid of evidence establishing that
King was guilty of conspiracy. Through the testimony of King’s coconspirator,
Waters, the Government presented evidence that King and Waters agreed to



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form a 50/50 partnership to grow and sell marijuana, with King tasked with
the growing of the plants and Waters tasked with the distribution and sales of
the marijuana. Although King generally denied the existence of a conspiracy,
the jury was free to reject King’s version of the events and adopt the version
established by the Government’s witnesses. See United States v. Al-Kurna,
808 F.2d 1072, 1075 (5th Cir. 1987). Accordingly, we affirm King’s conviction
on this ground.
King’s Firearm Possession Conviction
      Section 924(c) provides for an enhanced sentence for any person who
“during and in relation to any . . . drug trafficking crime . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm.”
§ 924(c)(1)(A). Possession of a firearm can be established by, among other
things, “joint occupancy of a place where a firearm is found, combined with
some evidence of the defendant’s access to and knowledge of the firearm.”
United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009). Further, the
Government must establish that such possession “actually furthered the drug
trafficking offense.” United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th
Cir. 2000).
      The record is not devoid of evidence that King had constructive
possession of the firearms. The Government presented evidence that King
jointly occupied the grow house and that King had knowledge of and access to
the firearms. The record is also not devoid of evidence that King’s possession
furthered a drug trafficking offense. The Government presented evidence that
the purpose of the firearms was primarily to protect the grow house and the
marijuana plants. Although King generally denied living at the grow house
and having knowledge of the firearms, the jury was free to reject King’s version
of the events and adopt the version established by the Government’s witnesses.



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See Al-Kurna, 808 F.2d at 1075. Accordingly, we affirm King’s conviction on
this ground.
II.    Improper Jury Instruction Claim
       A properly preserved challenge to a jury instruction is reviewed for abuse
of discretion and we consider “whether the instruction, taken as a whole, is a
correct statement of the law and whether it clearly instructs jurors as to the
principles of law applicable to the factual issues confronting them.” United
States v. Aldawsari, 740 F.3d 1015, 1019 (5th Cir. 2014) (internal quotation
marks and citation omitted). Even if jury instructions are erroneous, we will
not reverse if, “in light of the entire record, the challenged instruction could
not have affected the outcome of the case.” United States v. Demmitt, 706 F.3d
665, 675 (5th Cir. 2013) (internal quotation marks and citation omitted).
       In its initial jury instruction on the § 924(c) count, the district court
explained that the jury “may find [King] guilty of” this count “even though [he]
may not have participated in any of the acts which constitute the offense” if (1)
it found King guilty on the drug conspiracy charge and (2) a co-conspirator
committed the § 924(c) offense “in furtherance of or as a foreseeable
consequence of that conspiracy.”      During deliberations, the jury sent the
district court a question on this instruction: “Does the word ‘may’ mean this is
at the jury’s discretion to decide? OR Are we requested to find the defendant
guilty?” The district court responded in writing, explaining that there were
two ways the jury could find King guilty of the § 924(c) charge. First, the jury
could find beyond a reasonable doubt that King “knowingly possessed a firearm
in furtherance of the conspiracy.”      Second, the jury could find beyond a
reasonable doubt that another individual “knowingly possessed a firearm in
furtherance of, or as a reasonable consequence, of the [drug] conspiracy.” If it
so found, it was “required to find [King] guilty on [the § 924(c) charge].”



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Likewise, if it found King not guilty of the drug conspiracy or had a reasonable
doubt that another individual possessed the firearm in furtherance of, as a
foreseeable consequence of the drug conspiracy, it was “required to find [King]
not guilty on [the § 924(c) charge].” King contends that the district court’s use
of the word “required” in its written response “improperly directed a verdict of
guilty.”
      Under the Supreme Court’s holding in Pinkerton v. United States, 328
U.S. 640 (1946), a defendant who is a party to a conspiracy may be convicted
of the substantive offense committed by another member of the conspiracy, so
long as such substantive offense was committed in furtherance of the
conspiracy and while the defendant was a member of the conspiracy. Id. at
647. In considering Pinkerton liability, this court has held that “[o]nce the
conspiracy and a particular defendant’s knowing participation in it has been
established beyond a reasonable doubt, the defendant is deemed guilty of
substantive acts committed in furtherance of the conspiracy by any of his
criminal partners.” United States v. Basey, 816 F.2d 980, 997 (5th Cir. 1987)
(emphasis added) (quoting United States v. Michel, 588 F.2d 986, 999 (5th Cir.
1979)); see also United States v. Johnson, 575 F.2d 1347, 1366-67 (5th Cir.
1978). In Basey, this court cited with approval language instructing a jury that
if “‘they were satisfied beyond a reasonable doubt that a conspiracy existed and
that a defendant was one of the members of it, then that defendant assumed
the responsibility for the acts and statements of all other members made in
furtherance of the conspiracy.’” 816 F.2d at 998 (quoting United States v.
Michel, 588 F.2d at 999 n.13).
      In this case, the district court’s instruction that the jury was “required”
to find King guilty of Waters’s substantive offense of possessing a firearm if
the Pinkerton conspiracy prerequisites were met was not meaningfully



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different from our prior holdings that—if the Pinkerton prerequisites were
met—a defendant is “deemed guilty” of or has “assumed the responsibility for”
the substantive offense. See Basey, 816 F.2d at 997-98 (quoting Michel, 588
F.2d at 999 n.13). The crux of both is that, if the jury makes the requisite
predicate findings on the elements of Pinkerton liability, it has a duty to find
the defendant guilty of the offense. Further, the district court also explicitly
provided the jury the conditions under which it was “required” to find King not
guilty on the § 924(c) count, thereby eliminating any possible interpretation
that its instruction was mandating a finding of guilt on this count. The D.C.
Circuit relied in part on the explicit recognition of what was required for a
finding of not guilty in holding that a similar jury instruction was proper.
United States v. Pierre, 974 F.2d 1355, 1357—58 (D.C. Cir. 1992) (per curiam).
Similarly here, by including both the conditions of guilt and innocence, “[t]he
instruction neither directed a guilty verdict nor placed inhibitions on the jury’s
right to acquit [the defendant].” Id. at 1357. Rather, the district court’s
written response simply instructed the jury that it had a duty to find King
guilty if the government proved beyond a reasonable doubt every element of
the § 924(c) count. Thus, the district court’s instruction to the jury was a
correct statement of the law and instructed the jury as to the principles of law
applicable to the relevant facts. See Aldawsari, 740 F.3d at 1019. Accordingly,
the district court’s instruction did not constitute an abuse of discretion. See
Basey, 816 F.2d at 999 (holding that there was no abuse of discretion because
the Pinkerton instruction “expressed the Pinkerton principle at least as clearly”
as prior decisions).
III.    Improper Admission of Evidence Claim
        On direct examination, the Government asked Waters to explain how he
knew that King was knowledgeable about growing marijuana.                 Waters



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responded by testifying, among other things, that King “had an operation in
Houston and growing, and then he came from there to help grow here.” On
appeal, King argues that evidence of King’s involvement in a prior grow
operation constituted evidence of a prior act and was inadmissible under
Federal Rule of Evidence 404(b).         He also argues that the Government
improperly elicited the testimony concerning the prior grow operation and
improperly used the evidence at trial.
      In a conspiracy case, evidence is considered intrinsic if it is “relevant to
establish how the conspiracy came about, how it was structured, and how each
[participant] became a member.” United States v. Lokey, 945 F.2d 825, 834
(5th Cir. 1991) (citing United States v. Nichols, 750 F.2d 1260, 1264-65 (5th
Cir. 1985)).   Because King did not object to the admission of the subject
evidence or the Government’s subsequent use of the evidence, our review of the
admission of the evidence is for plain error. See United States v. Burton, 126
F.3d 666, 671 (5th Cir. 1997); United States v. Webb, 463 F.2d 1324, 1328 (5th
Cir. 1972). To show plain error, King must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009).
      King has not established that the district court committed plain error in
admitting the evidence concerning his prior involvement in a grow operation
in Houston. The evidence in question was intrinsic to the conspiracy offense
and not subject to the requirements of Rule 404(b), because it provided
background information necessary for a jury to understand the structure of the
conspiracy, the nature of the conspiratorial relationship between Waters and
King, and how the conspiracy came about. See United States v. Rice, 607 F.3d
133, 141 (5th Cir. 2010); United States v. Miranda, 248 F.3d 434, 440-41 (5th
Cir. 2001); United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992). In any



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event, the district court’s admission of the subject evidence was harmless in
light of the other evidence presented at trial. See Rice, 607 F.3d at 140-41.
      King has also not established that the Government committed plain
error by impermissibly eliciting Waters’s testimony concerning the Houston
grow operation or using the evidence at trial. Waters’s testimony concerning
the grow operation was in response to a generic question from the Government
asking why Waters believed that King was knowledgeable about growing
marijuana. Waters volunteered the response about King’s involvement in the
prior operation.   Once Waters testified about his understanding of King’s
involvement in the prior grow operation, there was sufficient evidence in the
record to provide a good faith basis for the Government to question subsequent
witnesses whether they knew anything about King’s involvement in a prior
grow operation. See United States v. Davis, 609 F.3d 663, 681 (5th Cir. 2010).
Likewise, Waters’s testimony provided a proper foundation for the
Government to reference King’s involvement in a prior grow operation in its
closing argument. See United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.
2008).
      AFFIRMED




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