     Case: 10-60992     Document: 00511947000         Page: 1     Date Filed: 08/06/2012




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

                                                                            FILED
                                                                           August 6, 2012
                                       No. 10-60992
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee

v.

WILLIAM MICHAEL WARD; MARC ANTHONY BAZALDUA; LANORA
CHANTE MANNING,

                                                  Defendants–Appellants


                   Appeals from the United States District Court
                      for the Northern District of Mississippi
                             USDC No. 2:09-CR-106-4


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        William Michael Ward, Mark Anthony Bazaldua, and Lanora Chante
Manning appeal from their convictions for conspiring to possess, and possessing,
with intent to distribute a detectable amount of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C), and § 846. The defendants principally argue that the
trial evidence was insufficient to support their convictions because it showed
only that they intended to defraud purchasers by selling them bricks of fake
cocaine made of Bisquick.          Yet the trial evidence revealed that, to entice

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60992

prospective buyers to purchase the fake cocaine, the defendants intended to
distribute samples of real cocaine. Accordingly, we AFFIRM their convictions.
                                        I.
      In July 2009, a federal grand jury returned a two count indictment against
Ward, Bazaldua, Manning, and Charlous Deral Brown. Count One charged
conspiracy to possess with intent to distribute a mixture and substance
containing a detectable amount of cocaine hydrochloride, a Schedule II narcotic
controlled substance, in violation of 21 U.S.C. § 846. Count Two charged
possession with intent to distribute a mixture and substance containing a
detectable amount of cocaine in violation of § 841(a)(1) and (b)(1)(C). Co-
conspirator Brown pleaded guilty, and in April 2010, the remaining three co-
conspirators were tried by jury.
      At trial, Brown testified as a cooperating witness and stated that he had
participated in a scheme with Ward, Bazaldua, and Manning to sell fake cocaine.
Brown explained that, as part of the scheme, the co-conspirators had planned to
place packets of real cocaine into wrapped bricks of Bisquick; the real cocaine
would be provided as a purported sample of their wares, in case a potential
buyer wanted to test a brick.
      According to Brown’s testimony, after they had agreed to participate in the
scheme, Bazaldua rented a vehicle in Houston, Texas with money given him by
Manning. Bazaldua also obtained an ounce of real cocaine, which Manning was
responsible for safekeeping. Brown, Bazaldua, and Manning then traveled to
Tunica, Mississippi, and upon their arrival went to a casino. There, the “stick
man” at a craps table—who happened to be a confidential information
(CI)—indicated to Brown that he was interested in purchasing cocaine. The CI
gave Brown his phone number and they arranged for Brown to provide the CI
a sample. When the CI phoned Brown the next morning, Brown and Bazaldua
retrieved five grams of real cocaine from Manning and went to meet the CI at a
gas station off the highway. They passed the sample of real cocaine to the CI.

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      Brown and Bazaldua then set out to gather Bisquick and other materials
for their rendevous with Ward, the designated fake-brick builder. Eventually,
the team set up shop at a hotel, and in their hotel room, Ward proceeded to wrap
several bricks of Bisquick. Brown, meanwhile, retrieved a small packet of real
cocaine from Bazaldua and Manning, who were in the hotel lobby, and returned
to the room. Ward hollowed out a portion of one of the fake bricks and inserted
the packet of real cocaine. Soon thereafter, law enforcement agents descended
on the hotel. The agents seized five bricks of fake cocaine, including the one
brick loaded with real cocaine. They also arrested Brown and seized real cocaine
from his pocket.
      At trial, the Government’s chemistry and narcotics expert testified that
four of the bricks contained no controlled substance, but the fifth brick contained
a small packet of real cocaine—10.19 grams. The Government’s expert further
testified that the small bag from Brown’s pocket contained 11.13 grams of
cocaine. According to the expert, both packets of real cocaine appeared to
contain pure cocaine that had not been cut with adulterants.
      After the close of the Government’s case, Bazaldua, Ward, and Manning
moved for a judgment of acquittal on the grounds that (1) the evidence only
showed that the defendants intended to distribute fake cocaine, and (2) while the
indictment charged the defendants with conspiring to possess and possessing a
“mixture and substance” containing cocaine, the evidence adduced by the
Government showed that the real cocaine at issue was pure and had not been
mixed with anything else. The district court denied the motions. Following the
close of the defendants’ cases, the defendants renewed their motions for a
judgment of acquittal, but their motions were denied. The jury ultimately found
each of the defendants guilty on both counts of the indictment: conspiracy to
possess and possessing with an intent to distribute a mixture and substance
containing a detectable amount of cocaine. On appeal, the defendants contest
the sufficiency of the evidence to support their convictions, arguing again that

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(1) the evidence only showed that they intended to distribute fake cocaine and
(2) the evidence did not show that they conspired to possess or possessed a
“mixture or substance” containing real cocaine.
                                       II.
      Because the defendants each moved for a judgment of acquittal both at the
close of the Government’s case and at the close of all of the evidence, they have
preserved their sufficiency claim for appellate review. See United States v.
Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).        Accordingly, we review to
determine whether a rational jury could have found the essential elements of the
offenses of conviction beyond a reasonable doubt. See United States v. Lopez-
Moreno, 420 F.3d 420, 437–38 (5th Cir. 2005). We do “not evaluate the weight
of the evidence or the credibility of the witnesses, but view the evidence in the
light most favorable to the verdict, drawing all reasonable inferences to support
the verdict.” United States v. Delgado, 256 F.3d 264, 273–74 (5th Cir. 2001).
                                      III.
      To establish a conspiracy to distribute a controlled substance, the
Government must prove beyond a reasonable doubt: “(1) the existence of an
agreement between two or more persons to violate narcotics laws; (2) the
defendant[s’] knowledge of the agreement; and (3) [their] voluntary participation
in the conspiracy.” United States v. Valdez, 453 F.3d 252, 256–57 (5th Cir.
2006).   To establish possession of a controlled substance with intent to
distribute, the Government must prove beyond a reasonable doubt that the
defendants had (1) knowledge, (2) possession of a controlled substance, and (3)
an intention to distribute the controlled substance. Delgado, 256 F.3d at 274.
      On appeal, the defendants challenge the sufficiency of the evidence
proving that they intended to distribute cocaine. The defendants argue that the
trial evidence only showed that they intended to defraud purchasers by selling
them fake cocaine; the purpose of their scheme and their intention was to
swindle drug users and dealers out of their money, not to violate narcotics laws.

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      But this argument entirely ignores a central component of the overall
scheme to which the defendants all agreed: their intention to distribute real
cocaine samples to prospective buyers. The evidence showed that, in furtherance
of this scheme, Bazaldua and Manning transported real cocaine from Houston
to Tunica. While in Tunica, the co-conspirators kept the cocaine close, in case
they would need it to facilitate a deal. Indeed, Brown and Ward retrieved real
cocaine from Bazaldua and Manning and inserted it into Ward’s fake brick;
according to Brown’s testimony, the point of such loading was to distribute the
real cocaine as a sample. Brown even testified, and the defendants do not
dispute on appeal, that Bazaldua and Brown retrieved a five-gram bag of cocaine
from Manning and distributed this sample of real cocaine to the CI. When
viewed in the light most favorable to the Government, such trial evidence would
allow a rational jury to conclude that the defendants had conspired to possess
and possessed with an intent to distribute real cocaine in the form of samples.
      To be sure, the factual scenario presented by this case is somewhat
unusual. In the typical case, a defendant will conspire to possess and possess
with an intent to distribute cocaine in order to directly secure a monetary payoff.
Here, the defendants conspired to possess and possessed with an intent to
distribute cocaine in order to indirectly secure a monetary payoff—by tricking
prospective buyers into paying for boxes of Bisquick. Both scenarios, however,
showcase the same culpable conduct: an intention to distribute real cocaine. The
Bisquick is merely a red herring.
      Plainly, an intention to distribute a sample of real cocaine is still an
intention to distribute real cocaine. Conspiracy to possess and possession with
intent to distribute any amount of cocaine, however small, is punishable under
21 U.S.C. §§ 841 and 846. See United States v. Pineiro, 377 F.3d 464, 466 (5th
Cir. 2004) (noting that § 841(b)(1)(C) establishes maximum sentences for any
amount of cocaine less than 500 grams), vacated on other grounds by Pineiro v.
United States, 543 U.S. 1101 (2005). In United States v. Gordon, for example,

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this court relied on a sample to uphold the defendants’ convictions for knowingly
distributing cocaine, in violation of § 841(a)(1), against a sufficiency of the
evidence challenge. 876 F.2d 1121, 1124–25 (5th Cir. 1989). Although the
defendants in Gordon argued that they had not delivered the 500 grams of
cocaine charged in the indictment, we found that they had delivered a sample
of that cocaine to a special agent posing as a cocaine buyer, and we concluded
that the mere provision of the sample was enough to sustain their convictions
for simple distribution. Id. at 1125 (“[Q]uantity is not an element of the crimes
proscribed by §§ 841(a)(1) and 846 and need only be proved when the
Government seeks an enhanced penalty.”) (internal quotation marks omitted).1
Likewise in this case, the small quantity of cocaine at issue will not avail Ward,
Bazaldua, or Manning.           The trial evidence showing that the defendants
conspired to possess and possessed with intent to distribute samples of cocaine
was sufficient to allow a rational jury to conclude that the defendants conspired
to possess and possessed with intent to distribute real cocaine.
       In addition, although Bazaldua and Manning contend that the distribution
of pure cocaine could not support their convictions because the indictment
alleged that they conspired to possess and possessed a “mixture and substance”
containing cocaine, the evidence needed only to establish beyond a reasonable
doubt that they conspired to possess and possessed with intent to distribute a
Schedule II “controlled substance” to support their convictions. 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). Pure cocaine is such a controlled substance. § 812(c).


       AFFIRMED.




       1
          See also United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973) (noting that
“a ‘sale’ is not required” to establish distribution under § 841(a)(1)).

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