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

                                                 FILED
                                                                           January 6, 2010

                                       No. 09-50040                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JOSHUARON ANTWIONNE STANDIFER, also known as Joshua Antwion
Standifer

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:08-CR-74-2


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Joshuaron Antwionne Standifer (“Appellant”) brings several
challenges to his conviction for conspiracy to possess with intent to distribute
crack cocaine. We AFFIRM.
                                   I. BACKGROUND
       On March 28, 2008, police officers in Waco, Texas, participated in an
undercover drug buy between Appellant, his cousin Jeremy Standifer (“Jeremy”)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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and a confidential paid informant named Denny Boyd (“Boyd”). Boyd set up the
buy with Jeremy, arranging to purchase 40 grams of crack cocaine for $2,000.
The meeting took place in the parking lot of a Walmart in Copperas Cove, Texas.
During the course of his drive to the Walmart parking lot Boyd had a series of
phone conversations with Jeremy about their progress on the drive and where
they would meet. Boyd testified that he spoke mainly to Jeremy but that he
spoke once directly to Appellant.
      When Appellant and Jeremy arrived at the Walmart they pulled up next
to Boyd’s car, and Appellant gestured that they should go over to the side of the
building, around a Hollywood Video store. Both vehicles parked, and Jeremy
exited the car and removed an envelope from the “breather cap” in the motor of
the car in which the cousins had arrived. According to Boyd, Appellant stayed
in the car and was looking around the area while Jeremy removed the drugs.
Jeremy got in Boyd’s car and asked Boyd if he had the money. Boyd showed
Jeremy a roll of bills and asked to see the drugs. Jeremy showed Boyd that the
envelope contained crack cocaine. Boyd began to count out the money, and then
the officers came in and arrested Jeremy, Appellant, and Boyd.
      Appellant and Jeremy were charged in a superseding indictment with one
count of aiding and abetting possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2, and
one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B)(iii). At trial Boyd testified as to his interactions
with the defendants and his observation of what took place during the exchange.
In addition, the Government presented as a witness a prisoner, Mark Johnson
(“Johnson”), who testified that he became acquainted with Appellant in prison
and that Appellant had told him that he and Jeremy went out of town on a drug
deal “to serve an undercover,” and that although the police had a “phone tap”
they had “nothing on him” because “the phone wasn’t in his name.” Johnson also

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testified that Appellant told him they had agreed to deliver 56 grams of crack
but had only brought 47 to the buy, and that they thought they could “get over”
on Boyd because he was a drug user and wouldn’t have a scale with him. A crime
lab technician testified at trial that the envelope contained 26.41 grams of crack
cocaine. Records from the Motel 6 in Waco were introduced to prove that Jeremy
had rented rooms at the motel during the time that Boyd had been staying there.
The arresting officer testified that two cell phones were found in the car in which
Appellant and Jeremy had arrived at the scene of the buy. The phone records of
calls made to and from those phones were admitted as business records at trial.
      The jury returned a verdict of not guilty on the count of aiding and
abetting possession with intent to distribute but a verdict of guilty on the count
of conspiracy to commit possession with intent to distribute. The district court
sentenced Appellant to 110 months of imprisonment and five years of supervised
release. Appellant timely appealed.
                                 II. ANALYSIS
      Appellant challenges his conviction on several grounds. First, he argues
that the evidence was insufficient to support the conviction. Second, he argues
that his acquittal on the charge of aiding and abetting possession with intent to
distribute is inconsistent with his conviction for conspiracy to possess with
intent to distribute. Finally, Appellant challenges two of the district court’s
evidentiary rulings. We address each issue in turn.
      Appellant argues that the evidence was insufficient to support his
conviction for conspiracy to possess with intent to distribute. We review a
challenge to the sufficiency of the evidence supporting a conviction de novo.
United States v. Harris, 566 F.3d 422, 435 (5th Cir. 2009). We review the
evidence “in the light most favorable to the verdict, deferring to the reasonable
inferences of fact drawn by the trial court,” and any conflicts in the evidence
must be resolved in favor of the jury’s verdict. United States v. Lee, 217 F.3d 284,

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288 (5th Cir. 2000). This standard of review remains the same whether the
evidence is direct or circumstantial. United States v. Bryant, 770 F.2d 1283, 1288
(5th Cir. 1985). The elements of conspiracy to possess cocaine with intent to
distribute under the statutes charged in this case are (1) an agreement with one
other person to possess with intent to distribute at least five grams of cocaine;
(2) defendant’s knowledge of the agreement, and (3) defendant’s voluntary
participation in the conspiracy. United States v. Percel, 553 F.3d 903, 910 (5th
Cir. 2008) (listing elements where amount required is 5 kilograms); 21 U.S.C.
841(b)(1)(B)(iii) (identifying quantity requirement of 5 grams). Agreement may
be inferred from circumstantial evidence. Percel, 553 F.3d at 910.
      Appellant argues that the evidence was insufficient because (1) Boyd, the
confidential informant, was not credible, and (2) mere presence is insufficient to
support a conviction for conspiracy. As to Boyd, Appellant argues that Boyd was
not credible because he was a drug user (Boyd’s drug use came out at trial and
Appellant’s counsel cross-examined him about it) and because he was confused
about the dates of the arrest. It is well-established that credibility judgments
about witnesses are the province of the fact-finder – in this case, the jury. United
States v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998). We “must accept all
credibility choices that tend to support the jury’s verdict.” United States v.
Saenz, 747 F.2d 930, 936 (5th Cir. 1984). The lapses, if they are such, that
Appellant identifies are minor inconsistencies and a reasonable jury could have
found Boyd credible.
      Appellant is correct that mere presence or association cannot support a
conviction for conspiracy. See United States v. Bermea, 30 F.3d 1359, 1552 (5th
Cir. 1994). But in this case there was far more than mere presence. The evidence
showed that Appellant and Jeremy drove to meet Boyd together, and, based on
his conversation with Boyd and his overheard instruction that they would arrive
in 10 minutes, the evidence further showed that Appellant knew they were

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driving to meet someone in a Walmart parking lot. Upon arrival Appellant told
Boyd the cars should drive to a more secluded area of the parking lot. Although
Appellant stayed in the car while Jeremy delivered the drugs, he saw Jeremy
pull an envelope out of a hidden area of the car under the trunk and get into
Boyd’s car, and Boyd testified that Appellant appeared to be keeping watch
while the transaction took place. Boyd also testified that he had seen Appellant
and Jeremy in possession of marijuana and crack cocaine before the day in
question. Further, a prison inmate, Johnson, testified that Appellant had
discussed the case with him and admitted to participating in the deal. This
evidence was sufficient for a reasonable jury to find Appellant guilty of
conspiracy beyond a reasonable doubt.
       Appellant next argues that his acquittal on the aiding and abetting charge
is inconsistent with his conviction on the conspiracy charge. “In considering
whether alleged inconsistent verdicts may be reconciled, we view the evidence
in the light most favorable to upholding the jury’s decision by a finding of
consistency.” Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 343 (5th Cir. 2001).
Inconsistent verdicts do not generally require reversal of a criminal conviction.
United States v. Sylvester, 143 F.3d 923, 930 (5th Cir. 1998). This court has
specifically held that “even if the counts [are] overlapping, the law does not
require consistency of verdict between the separate counts.” United States v.
Pena, 949 F.2d 751, 755 (5th Cir. 1991) (citing United States v. Powell, 469 U.S.
57, 65 (1984)).1 The verdicts in this case are not necessarily inconsistent at all:

       1
         The two charges at issue in this case are (1) aiding and abetting (acquittal) and (2)
conspiracy (conviction). To prove aiding and abetting the Government must show that the
defendant: “(1) associated with a criminal venture; (2) participated in the venture; and (3)
sought by action to make the venture successful. To be guilty of possession with intent to
distribute, the defendant must have aided and abetted both the possession and the intent to
distribute.” United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005) (citations omitted). To
prove conspiracy, the Government must show (1) an agreement with at least one other person
to possess with intent to distribute, (2) defendant’s knowledge of the agreement, and (3)
defendant’s voluntary participation in the conspiracy. Percel, 553 F.3d at 910.

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“To convict [the appellant] of conspiracy, the jury did not have to find that he
participated in the actual sale . . . . It had to find that he entered into an
agreement to participate in that sale, and there was sufficient evidence for it to
so conclude.” United States v. Fontenette, 1994 WL 93273, at *3 (5th Cir. March
9, 1994) (unpublished). Even if they were inconsistent however, we will not
generally reverse inconsistent verdicts, because they “may simply be a reflection
of the jury’s leniency.” Pena, 949 F.2d at 755. See also United States v. Pereira,
1997 WL 681129, at *5 (5th Cir. Oct. 10, 1997) (unpublished) (upholding
conviction on conspiracy and acquittal on aiding and abetting on the grounds
that inconsistent verdicts are to be tolerated because they may result from jury
nullification or compromise). We see no reason to reverse the conviction in this
case.
        Finally, Appellant brings two evidentiary challenges. We review
evidentiary rulings for abuse of discretion. United States v. Parsee, 178 F.3d 374,
379 (5th Cir. 1999). If we find abuse of discretion, we will apply a harmless error
analysis. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). Error is
harmless unless it substantially prejudices a defendant’s rights. Id.
        Appellant’s first contention is that the district court abused its discretion
by admitting into evidence telephone records that were obtained from Sprint and
corresponded to the phone numbers of two phones found in the front seat of the
car in which Appellant and Jeremy arrived at the scene of the crime. Appellant
challenges both the relevancy and the authentication of these records. Neither
objection has merit. The phones were found in the front seat of the car in which
Appellant and Jeremy arrived at the scene, and there was testimony by
Appellant that he had spoken on a cell phone his cousin had handed him during
the drive and testimony by the confidential informant, Boyd, that he had spoken
to Appellant and Jeremy during their drive. The phone records tended to
corroborate that testimony and admitting them was therefore not an abuse of

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discretion as to relevancy. Appellant also argues that the records were not
properly authenticated because the phone was not in his name. The phone,
however, was found in the car that Appellant and Jeremy drove to the scene of
the drug deal and Appellant admitted to speaking on the phone. It was not an
abuse of discretion to consider the records properly authenticated. Even if the
district court had abused its discretion as to relevancy or authentication, or both,
the error would be harmless given the wealth of evidence against Appellant. See
Morgan, 505 F.3d at 339.
      Appellant’s second evidentiary contention is that the district court abused
its discretion in excluding a statement made by Jeremy that Appellant was not
involved in the crime. (The statement was allegedly made verbally at the time
of the arrest and later in a written statement). Appellant argues that the
statement should have been admitted as a statement against penal interest. A
statement will be admitted under the “against penal interest” exception to the
hearsay rule if certain conditions are met: “(1) The declarant must be
unavailable; (2) The statement must so far tend to subject the declarant to
criminal liability that a reasonable person in his position would not have made
the statement unless he believed it to be true; and (3) The statement must be
corroborated by circumstances clearly indicating its trustworthiness.” United
States v. Dean, 59 F.3d 1479, 1492 (5th Cir. 1995); see also Fed. R. Evid.
804(b)(3).
      Appellant attempted to call Jeremy to testify, but Jeremy invoked his 5th
Amendment right not to testify. Jeremy was therefore clearly unavailable. Fed.
R. Evid. 804(a)(1); see also United States v. Briscoe, 742 F.2d 842, 846 (5th Cir.
1984). This statement, however, was not clearly against penal interest, because
while it tended to exculpate Appellant it did not necessarily inculpate Jeremy.
More importantly, even if the district court did abuse its discretion in admitting
the statement, the error was harmless. Appellant drove with Jeremy to the site

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of the drug deal, encouraged the informant to move to a more secluded area of
the parking lot, kept watch while the drug deal happened, and later confessed
in detail to a jailhouse informant. Appellant was therefore not substantially
prejudiced by any error in the exclusion of this statement. See Morgan, 505 F.3d
at 339.
                             III. CONCLUSION
      For these reasons we AFFIRM the judgment of the district court.




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