     Case: 11-10116     Document: 00511792673         Page: 1     Date Filed: 03/19/2012




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

                                                                            FILED
                                                                          March 19, 2012
                                     No. 11-10116
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MICHELLE YVETTE LEE; TIMOTHY STEPHEN LEE,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-144-2


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Timothy Stephen Lee and Michelle Yvette Lee were convicted by a jury on
two counts of possession with intent to distribute methamphetamine, with the
respective dates of the offenses being March 2, 2010, and July 16, 2010. The
district court sentenced Timothy Lee to concurrent terms of life in prison and
Michelle Lee to concurrent terms of 360 months in prison. At his request,
Timothy Lee is proceeding pro se on appeal.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10116

      Timothy Lee argues that the district court erred in denying his motion to
suppress the warrantless search of his blue truck on July 16, 2010. On appeal
from the denial of a motion to suppress evidence, we review the district court’s
factual findings for clear error and its conclusions of law de novo. United States
v. Pack, 612 F.3d 341, 347 (5th Cir.), cert. denied, 131 S. Ct. 620 (2010). Drug
Enforcement Agency (DEA) special agents had the Lees under surveillance for
the purpose of executing arrest warrants for both of them and search warrants
for their residence at 1304 Chestnut Road. As the Lees, in a blue truck,
attempted to back out of their driveway, the agents blocked their way and
arrested both of them. After her arrest, Michelle Lee told the special agent that
there was a large amount of methamphetamine in a backpack in the truck. The
district court found and Timothy Lee does not dispute that Michelle Lee’s
statement provided the special agent with probable cause that the truck
contained methamphetamine.        The Supreme Court has stated that, “[f]or
constitutional purposes, we see no difference between on the one hand seizing
and holding a car before presenting the probable cause issue to a magistrate and
on the other hand carrying out an immediate search without a warrant. Given
probable cause to search, either course is reasonable under the Fourth
Amendment.” Chambers v. Maroney, 399 U.S. 42, 52 (1970). Accordingly,
Timothy Lee has not shown that the district court erred in denying his motion
to suppress.
      The Lees make a series of allegations that the district court erred in its
evidentiary rulings. We review a district court’s evidentiary rulings for abuse
of discretion subject to harmless-error analysis. United States v. Cantu, 167
F.3d 198, 203 (5th Cir. 1999). Government exhibit 14 was an e-mail found on a
laptop computer that showed a message sent from Michelle Lee’s account which
contained a list of names and dollar amounts. The defense objected to this
exhibit as hearsay and as being unduly prejudicial under Federal Rule of
Evidence 403. On appeal, Michelle Lee and Timothy Lee argue that the district

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court erred in admitting this evidence. Timothy Lee also argues that the district
court erred in admitting, over hearsay objections, exhibits 16, 17, 19, 20, 21, and
22, which were other notes and notebooks containing lists of names and dollar
amounts. The hearsay component of these arguments is without merit because
none of the challenged exhibits were offered to prove the truth of the information
they contained. See United States v. Charles, 366 F. App’x 532, 542-43 (5th Cir.
2010).
      With respect to the e-mail, Rule 403 provides that the “court may exclude
relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” To prevail on a Rule 403 argument, the appellant must show that the
district court’s ruling was “a clear abuse of discretion.” United States v. Curtis,
635 F.3d 704, 716 (5th Cir.) (internal quotation marks and citation omitted), cert.
denied, 132 S. Ct. 191 (2011). “‘Unfair prejudice’ as used in rule 403 is not to be
equated with testimony that is merely adverse to the opposing party.” Brazos
River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006). Neither Lee
explains how admission of this e-mail, albeit unfavorable, was unfair. They have
not shown that the district court abused its discretion in admitting this
document. Timothy Lee also argues that other notes and notebooks (exhibits 16,
17, 19, 20, 21, and 22) should have been excluded under Rule 403, but this
alleged error was not preserved by an objection at trial. “[W]here the defendant
did not object to the evidence on the basis presented on appeal, [this court]
review[s] the district court’s evidentiary ruling for plain error.” United States
v. Williams, 620 F.3d 483, 488-89 (5th Cir. 2010), cert. denied, 131 S. Ct. 1534
(2011). Timothy Lee has not shown any unfair prejudice resulting from the
admission of lists of names and dollar amounts.
      As part of his attack on the admissibility of the lists of names and dollar
amounts, Timothy Lee argues that the testimony given by officers Travis

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Eddleman and Cyrus Crum, which characterized the lists as drug ledgers, was
inadmissible opinion testimony under Federal Rule of Evidence 701. As defense
counsel did not object to this testimony, the plain-error standard of review
applies. See United States v. Espino-Rangel, 500 F.3d 398, 400 (5th Cir. 2007).
This testimony was brief, was based on the officers’ experience, and merely
explained the significance of the evidence. Timothy Lee has shown no plain
error in admission of the testimony.
      Timothy Lee also argues that all of the above alleged evidentiary errors
combined to require reversal. Although it is possible that multiple errors, which
would not result in reversal individually, can combined to deny a defendant a
fair trial, this case does not present that situation because no error has been
shown. See United States v. Williams, 264 F.3d 561, 572 (5th Cir. 2001).
      The propriety of the jury instruction as to deliberate ignorance is
challenged by Timothy Lee. We review the decision to use a deliberate ignorance
instruction under an abuse of discretion standard. United States v. Nguyen, 493
F.3d 613, 619 (5th Cir. 2007). The deliberate ignorance instruction should be
infrequently used and is proper only if the accused “claims a lack of guilty
knowledge and the proof at trial supports an inference of deliberate
indifference.” United States v. McElwee, 646 F.3d 328, 341 (5th Cir. 2011)
(internal quotation marks and citation omitted).        Any error in giving the
instruction is harmless if substantial evidence showing actual knowledge was
adduced at trial. Id. Any possible error in this instruction was rendered
harmless by the evidence showing Timothy Lee’s actual knowledge of the
methamphetamine.
      Michelle Lee argues that the evidence produced at trial was insufficient
to support conviction on either count of possession with intent to distribute
methamphetamine. A preserved challenge to the sufficiency of the evidence is
reviewed de novo. See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.
2000). Although Michelle Lee moved for a judgment of acquittal after the

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Government rested its case, she failed to renew the motion at the close of all
evidence.      Accordingly, her sufficiency claim is reviewed for “a manifest
miscarriage of justice, which is found if the record is devoid of evidence pointing
to guilt.” United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002) (internal
quotation marks and citation omitted). The elements of possession with intent
to distribute a controlled substance are (1) knowing, (2) possession of a controlled
substance, (3) with the intent to distribute it. United States v. Ortega Reyna,
148 F.3d 540, 543-44 (5th Cir. 1998). Possession may be joint among several
people.     See United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996)
(interpreting “possession” as an element of 21 U.S.C. § 841(a)(1)). Intent to
distribute may be inferred when the evidence shows that a large quantity of
drugs is involved. See United States v. Guanespen-Portillo, 514 F.3d 393, 396-97
(5th Cir. 2008). The record is not devoid of evidence of guilt on each element,
and Michelle Lee has not shown a manifest miscarriage of justice in her
convictions.
      Timothy and Michelle Lee challenge the drug quantity calculated by the
district court based on the information contained in the presentence report
(PSR). The district court’s determination of the quantity of drugs attributable
to a defendant for purposes of U.S.S.G. § 2D1.1 is a factual finding made under
the preponderance of the evidence standard. United States v. Betancourt, 422
F.3d 240, 246-47 (5th Cir. 2005). This court gives “considerable deference” to
such factual findings, reversing them “only if they are clearly erroneous.” Id. at
246. (internal quotation marks and citations omitted). Neither Lee has shown
that the district court’s factual findings were clearly erroneous.
      AFFIRMED.




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