                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2004

USA v. Tannassee
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1196




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Recommended Citation
"USA v. Tannassee" (2004). 2004 Decisions. Paper 717.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/717


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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 03-1196

                          UNITED STATES OF AMERICA

                                           v.

                            CECIL ROHAN TANNASSEE,

                                                Appellant

                       _________________________________

                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                  District Judge: The Honorable Thomas N. O'Neill, Jr.
                               (D.C. No. 02-cr-00344-01)
                       _________________________________

                        Submitted under Third Circuit LAR 34.1
                                  on March 26, 2004

              Before: FUENTES, SMITH and GIBSON,* Circuit Judges

                                 (Filed: May 10, 2004)

                              ______________________

                              OPINION OF THE COURT
                              _______________________

GIBSON, Circuit Judge.

      Cecil Rohan Tannassee appeals the district court’s judgment convicting him of one


      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
count of conspiracy to distribute and possess with intent to distribute five kilograms or

more of cocaine in violation of 21 U.S.C. § 846 (2000). He does not appeal the 168-

month sentence imposed by the district court. Tannassee argues that the government did

not present sufficient evidence of the existence of a conspiracy and that he was prejudiced

by the ineffective assistance of his trial counsel. We affirm the district court’s judgment.

With respect to Tannassee’s ineffective assistance of counsel claim, we deny it without

prejudice to his ability to raise the claim in a collateral proceeding.

       Tannassee was convicted by a jury, and our review of the sufficiency of the

evidence in this situation is highly deferential. We do not weigh the evidence or

determine the credibility of the witnesses. United States v. Hodge, 321 F.3d 429, 439 (3d

Cir. 2003). We must view the evidence in the light most favorable to the government, id.,

and “we will overturn a jury verdict only when the record contains no evidence,

regardless of how it is weighted, from which the jury could find guilt beyond a reasonable

doubt.” United States v. Thayer, 201 F.3d 214, 218-19 (3d Cir. 1999) (internal quotation

and citation omitted).1




       David Lopez was a cooperating witness who testified about his cocaine purchases

from Tannassee. Lopez, who resided in Reading, Pennsylvania, traveled to Lehigh Acres,


       1
        Tannassee moved for judgment of acquittal at the close of the government’s case
and at the conclusion of the evidence, contrary to the government’s assertion. Our review
is therefore not for plain error, as the government urges.

                                               2
Florida in the fall of 2000 to search for a new cocaine supplier. He met Tannassee, who

operated a small site construction business in Lehigh Acres, and told him of his search.

After Lopez returned to Pennsylvania, Tannassee called him and said he was on his way

with “half a key” of cocaine. Tannassee and Lopez met at a motel where Tannassee gave

him a suitcase filled with 500 grams of cocaine. Lopez took the cocaine to his home,

where Matthew Folk met him and paid him $15,000 for it. Lopez, in turn, gave $13,000

to Tannassee. Lopez flew to Florida in January 2001 to get another 500 grams of cocaine

from Tannassee. Tannassee rented a car for Lopez to drive himself back to Pennsylvania.

Once home, he sold the cocaine to Folk for $15,000. As Lopez was returning the rental

car to Florida, he was stopped for speeding in South Carolina. In their search of the car,

police found and seized $15,865 in the trunk. While he was seated in the patrol car,

Lopez called Tannassee on his cell phone and they discussed what he should say about

the money and his need for bail.

       Over the next three months, Tannassee made four more deliveries to Lopez

totaling more than 6 kilograms of cocaine. Lopez was arrested in his home on April 3,

2001 after he showed Folk some of the cocaine he had received from Tannassee. Folk

had been arrested for selling cocaine one week earlier and had agreed to wear transmitting

and recording devices when he visited Lopez. Following their arrests, both Lopez and




                                             3
Folk agreed to testify against Tannassee. Both had entered plea agreements 2 and been

sentenced before Tannassee’s trial. Lopez received a sentence of five years, which was at

most one-third of his possible sentence. Folk was sentenced to 24 months, while he faced

a possible sentence of five years.

          Tannassee alleges that the government failed to prove that a conspiracy existed and

that the evidence surrounding his interactions with Lopez proved nothing more than a

buyer-seller relationship between them. However, we conclude that the government

introduced sufficient evidence of the elements of a conspiracy between Tannassee and

Lopez. The record includes evidence of a unity of purpose between them, their shared

intent to achieve a common goal, and an agreement that they would work together toward

that goal. See United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001).

          Tannassee correctly states that a conspiracy is not proved merely with evidence of

sales agreements that form a buyer-seller relationship. Rather, the government must show

that the coconspirators had some other goal that they agreed to work toward. See United

States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). This evidence may be entirely

circumstantial. Id. Here, the evidence showed that Lopez was looking for someone who

could consistently supply him with cocaine that he could resell, that Tannassee knew that

Lopez had ready buyers for the cocaine he would supply, and that Tannassee allowed




          2
              The record does not reveal the specific charges to which either Lopez or Folk pled
guilty.

                                                  4
Lopez to have the cocaine without paying for it because he trusted Lopez to pay him as

soon as he sold it. Folk was Lopez’s biggest customer, and Tannassee met Folk on more

than one occasion when he brought cocaine.

       With respect to Folk, Tannassee asserts that the government proved no conspiracy

with him or Lopez. Although the indictment refers to both Lopez and Folk, the

government needed only to prove that Tannassee conspired with one of them in order to

obtain a conviction. Pressler, 256 F.3d at 149 (“The Government needed to show only

that [the defendant] conspired with ‘someone--anyone.’” (quoting United States v.

Obialo, 23 F.3d 69, 73 (3d Cir. 1994)). Viewing the evidence in the light most favorable

to the government, we conclude that the record contains sufficient evidence from which a

jury could convict Tannassee of conspiracy to distribute and possess with intent to

distribute cocaine.

       Tannassee also argues on this direct appeal that we should consider his claim of

ineffective assistance of trial counsel. He alleges that his trial counsel failed to argue the

sufficiency of evidence of a conspiracy, and that he put Tannassee on the stand and

introduced character evidence without seeking to prevent the introduction of Tannassee’s

prior convictions. The record before us is inadequate for the purpose of evaluating

Tannassee’s claim, and we therefore deny it without prejudice to his right to raise it on

collateral attack pursuant to 28 U.S.C. § 2255 (2000). United States v. Thornton, 327

F.3d 268, 271-72 (3d Cir. 2003).



                                              5
       We will affirm the judgment of the district court. We will dismiss Tannassee’s

claim of ineffective assistance of trial counsel without prejudice to his right to bring the

claim in a collateral attack under 28 U.S.C. § 2255.




                                              6
