                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                  UNITED STATES COURT OF APPEALS              November 24, 2003
                           FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 02-51117
                          Summary Calendar



                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
                               versus

                         WESLEY J. CRAWFORD,

                                                  Defendant-Appellant.


           Appeal from the United States District Court
                 for the Western District of Texas
                          (SA-00-CR-625-2)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges

PER CURIAM:*

     Following a jury trial, Wesley J. Crawford was convicted

of aiding and abetting possession, with intent to distribute, of

more than 50 grams of cocaine base, in violation of 18 U.S.C. § 2

and 21 U.S.C. § 841(a)(1).     He was sentenced, inter alia, to 20

years imprisonment.    Crawford appeals his conviction on several

grounds.

     Crawford’s trial and conviction followed a trial in which he

was acquitted on a conspiracy count but which resulted in a mistrial


     *
       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this opinion should not be published and is not precedent except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.
on the aiding and abetting count.       Crawford maintains his retrial

subjected him to double jeopardy and that the Government should have

been collaterally estopped from retrying him.            Assuming, without

deciding, that these contentions were not waived by Crawford’s

failure to raise them in district court prior to the second trial,

they are without merit.

      First, the retrial for aiding and abetting did not subject

Crawford to double jeopardy, because the retrial was necessitated

by the inability of the jurors in the first trial to reach a verdict

on that count.     See United States v. Deerman, 837 F.2d 684, 689 (5th

Cir.), cert. denied, 488 U.S. 856 (1988); Grogan v. United States,

394 F.2d 287, 289 (5th Cir. 1967), cert. denied, 393 U.S. 830

(1968).   Second, Crawford has not shown that the retrial violated

the collateral-estoppel doctrine, because the elements of aiding and

abetting were not necessarily decided by his previous acquittal on

conspiracy to possess and distribute narcotics.           United States v.

Nelson, 599 F.2d 714, 716 (5th Cir. 1979).        Although Nelson noted

that the Government would be estopped from presenting evidence at

a second trial that indicated a conspiracy which it failed to prove

at the first trial, Crawford has not appealed the introduction of

any evidence at his second trial which tended to prove a conspiracy.

Id.

      Crawford’s    contention   that   the   district    court   erred   in

denying his motion for disclosure of the identity of a confidential


                                    2
informant involved in the drug investigation also fails.       That

motion was made, and denied, prior to the first trial; the record

does not reflect that Crawford renewed it prior to the second.    A

retrial following a mistrial is both in purpose and in effect a new

trial.   United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997).

Therefore, motions and objections must be renewed to have effect in

the retrial.    Id. at 220.   Palmer noted, however, that written

motions for disclosure of the informant made before the first trial

may have more long-lasting effect than a simple objection.   Id. at

221.     Such long-lasting effects are irrelevant here, however,

because the district judge in the first trial later ordered the

Government to reveal the name of the informant.

       Crawford further contends that the prosecutor made improper

comments during closing argument that presented facts outside of the

evidence and misled the jury on the applicable law.   In a claim for

prosecutorial misconduct, we first ask whether the prosecutor’s

comments were improper and, if so, whether they prejudiced the

defendant’s substantive rights. E.g., United States v. Duffaut, 314

F.3d 203, 210 (5th Cir. 2002). Crawford asserts that the prosecutor

suggested to the jury that mere presence among drug conspirators is

enough to make an individual part of a conspiracy.    Crawford does

not cite to the record to support this point, however; and the

record does not reveal that the prosecutor made such a statement.

The other comments about which Crawford complains — he was the


                                 3
source of the drugs and that he tried to hide them — were not

improper because the prosecutor was merely urging those inferences

and conclusions she wished the jury to draw from the evidence.   See

United States v. Washington, 44 F.3d 1271, 1278 (5th Cir.), cert.

denied, 514 U.S. 1132 (1995); United States v. Webb, 950 F.2d 226,

230 (5th Cir. 1991).        There was no prosecutorial misconduct.

Duffaut, 314 F.3d at 210.

     Finally, Crawford challenges the sufficiency of the evidence

to support his conviction.     Crawford’s counsel made a motion for

acquittal based on insufficient evidence only after the jury had

retired to deliberate; but, pursuant to Federal Rule of Criminal

Procedure 29(a), this motion should have been made earlier — at the

close of the evidence.     When a motion for acquittal is untimely,

“the sufficiency of the evidence challenge is reviewed only to

determine if the defendant’s conviction constitutes a manifest

miscarriage of justice”.     United States v. Griffin, 324 F.3d 330,

356 (5th Cir. 2003).   A manifest miscarriage of justice occurs only

if there is no evidence to support a finding of guilt.        United

States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002).         Here,

Crawford’s conviction does not constitute a manifest miscarriage of

justice.   Even assuming the motion was timely, under the usual

standard of review, the evidence was sufficient.

     Crawford was charged with aiding and abetting the possession

of cocaine with the intent to distribute.       To convict on this


                                   4
charge, the Government had to prove beyond a reasonable doubt that

Crawford associated himself with the criminal venture, participated

in it, and sought by his action to make it succeed.    E.g., United

States v.   Cartwright, 6 F.3d 294, 300 (5th Cir. 1993).        The

evidence showed that the informant negotiated the sale of four

ounces of crack cocaine with Rick Shoels, Crawford’s co-defendant.

The informant contacted Shoels by dialing the number to Crawford’s

cellular telephone. Shoels and Crawford arrived in the same vehicle

to meet the informant at the agreed upon time. Upon approaching

Shoels’ vehicle, police found two ounces of crack cocaine on the

center console, just inches from where Crawford’s left knee would

have been located. Police found more crack cocaine on the passenger

side floorboard pushed slightly under the seat, where Crawford’s

feet had been located.    At trial, an officer testified that he

recognized Crawford due to a prior cocaine arrest and that, when

another person accompanies a dealer to a drug sale, it is often

because the second person is the source of supply or a co-seller who

is present to protect his own interests.

                                                        AFFIRMED




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