     Case: 09-50114      Document: 00511102432         Page: 1    Date Filed: 05/06/2010




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

                                                  FILED
                                                                             May 6, 2010

                                        No. 09-50114                        Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.


R.N. PETE HOLLOWAY

                                                   Defendant-Appellant




                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 7:08-CR-73-7


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Appellant R.N. Pete Holloway was convicted by a jury of conspiracy to
possess with intent to distribute more than fifty grams of cocaine base.1 21
U.S.C. §§ 841 & 846 (2006). Appellant’s principal argument on appeal is that
there was insufficient evidence to prove beyond a reasonable doubt that he
conspired with others to distribute cocaine base.                  Finding the evidence


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            Cocaine base is also known as “crack cocaine.”
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insufficient to sustain the conspiracy conviction, we reverse the district court’s
decision denying the motion for judgment of acquittal.
       I.      BACKGROUND
       In 2007, Midland Police Department (MPD) Detectives Matt Davis and Ed
Marker began investigating a crack cocaine ring by utilizing informants and
controlled drug buys.2        At that time, James Howard was the leader of an
organization that distributed crack cocaine in Midland, Texas. Dodionne Watson
was Howard’s girlfriend and distributed crack cocaine for him. After several
controlled drug buys were made from Howard and Watson, police obtained a
search warrant for Howard’s residence and discovered the “largest amount” of
crack cocaine that Detective Davis had ever seen.
       The investigation revealed that Howard and Watson supplied crack
cocaine to James Lee, James Warren, Corey Mitchell, Rachel Reese, Jeff
Roberson, Richard Shelton, and Appellant.               These individuals sold varying
amounts of crack cocaine in Midland, near the intersection of Illinois and Lee
Streets. This area, near “Billy Gordon’s” or “BG’s restaurant” and a cab stand,
was called “the Flats,” which was known for its high volume of crack cocaine
trafficking.
       On April 23, 2008, a federal grand jury returned an indictment charging
Appellant with a single count of conspiring to possess with intent to distribute




       2
         Detective Davis testified that a “controlled buy” occurs when a confidential informant
wears a recording device and the police “maintain constant surveillance of this individual as
they make a purchase from the target.”

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fifty or more grams of cocaine base in violation of §§ 841 & 846.3 Appellant and
Tamara Royals, who was charged with conspiracy in a separate indictment, were
tried by a jury. The jury found Appellant guilty as charged but found Royals not
guilty. The district court sentenced Appellant to life imprisonment pursuant to
21 U.S.C. § 841(b)(1)(A)(iii). He now appeals.
       II.    SUFFICIENCY OF THE EVIDENCE
       Appellant argues that the evidence was insufficient to support his
conviction for conspiracy to distribute cocaine base under § 846. Specifically, he
contends that the evidence was insufficient to show the existence of an
“agreement” with respect to the distribution of cocaine base. Appellant avers
that although witnesses testified that they saw him selling drugs, none of the
witnesses “testified regarding any agreement they had to sell crack with [him],
and not one testified about any agreement that [he] had with any other person
in this regard.” He further contends that no evidence was adduced showing that
he “purchased or sold large amounts of crack, which would indicate knowledge
among any parties involved that the crack [he] was buying was intended for
distribution.” Rather, Appellant maintains that the evidence merely reflected
“purchases of crack cocaine in personal use quantities with the occasional
reselling of unused portions,” for which he “made a few dollars.” He contends
that such evidence is insufficient to support a conviction under § 846.
       To convict Appellant under § 846, “the government must prove: 1) the
existence of an agreement between two or more persons to violate federal


       3
           The indictment charged that Appellant conspired with Warren, Shelton, Reese,
Cottrell, and “other persons known and unknown to the grand jury” to possess with intent to
distribute cocaine base.

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narcotics laws; 2) the defendant’s knowledge of the agreement; and 3) the
defendant’s voluntary participation in the agreement.”          United States v.
Gonzales, 79 F.3d 413, 423 (5th Cir. 1996). “A conspiracy agreement may be
tacit, and the trier of fact may infer an agreement from circumstantial evidence.”
United States v. Inocencio, 40 F.3d 716, 725 (5th Cir. 1994) (internal quotation
marks and citations omitted).        “A defendant may be convicted on the
uncorroborated testimony of a co-conspirator who has accepted a plea bargain
unless the coconspirator’s testimony is incredible.” United States v. Booker, 334
F.3d 406, 410 (5th Cir. 2003). A jury may also consider factors such as “concert
of action” and presence among, or association with, coconspirators. United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994) (internal quotation marks
and citations omitted). “A jury may find knowledgeable, voluntary participation
from presence when it would be unreasonable for anyone other than a
knowledgeable participant to be present.” United States v. Martinez, 190 F.3d
673, 676 (5th Cir. 1999). However, mere presence or association alone are not
sufficient to support a conspiracy conviction. See United States v. Brito, 136 F.3d
397, 409 (5th Cir. 1998).
      Because Appellant made a motion for judgment of acquittal at the close of
the government’s case, the standard of review is whether “a rational trier of fact
could have found that the evidence established the essential elements of the
offense beyond a reasonable doubt.” United States v. Lopez, 74 F.3d 575, 577
(5th Cir. 1996). This Court considers “the evidence, all reasonable inferences
drawn therefrom, and all credibility determinations in the light most favorable
to the prosecution.” Id. This Court does not weigh the evidence or assess the
credibility of witnesses. Id. “The evidence need not exclude every reasonable

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hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable constructions of the
evidence.” Id.
      We now review the witnesses’ trial testimony. The government’s first
witness was Detective Davis. Davis testified that during their investigation they
did not attempt to make a controlled buy from Appellant.                    Indeed, Davis
admitted on cross-examination that he did not know Appellant.                         The
government’s next witness, James Lee, who was serving a 188-month sentence
for distributing crack cocaine, never mentioned Appellant in his testimony.
      The government also called Warren, a codefendant in the same indictment
with Appellant, who had previously pleaded guilty to the instant conspiracy
charge. Warren testified that on a typical day he would obtain “15 quarters”
from Howard and sell them in the Flats. He also testified that he once sold a
quarter ounce of crack 4 to Appellant but he did not know what Appellant did
with the cocaine.
      MPD Lieutenant Seth Hermann testified that many drug dealers are also
drug users who sell crack to support their own habit. However, Hermann did
not mention Appellant in his testimony. The next witness, Corey Mitchell, who
had previously pleaded guilty to conspiring to distribute crack cocaine, did not
mention Appellant.
      MPD Officer Dolan testified that the MPD worked with DEA agents. On
one occasion, DEA Agent Conan Becknell interviewed Appellant while Dolan
was present. During this interview, Appellant admitted that he purchased small


      4
          Quarter ounces of crack cocaine are sometimes referred to as “quarters.”

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amounts of crack cocaine approximately five times from Watson in 2007.
Appellant told them he was using crack cocaine but he would sometimes “make
a few dollars off of it.” Watson never told Appellant where she obtained the
crack cocaine. However, he later heard that Watson was working with Warren
and Howard, the leader of the crack distribution ring.
      Elvin Mackey, who was serving a sentence for conspiring to sell cocaine,
testified that although he observed Appellant selling crack cocaine, Appellant
was “no big-time drug dealer. It was, like, maybe once a month.” Mackey,
however, was an “everyday person.” Mackey also testified the younger dealers
“compete with each other” and that the older dealers, including Appellant, take
turns selling crack cocaine to the buyers on the street.
      Rachel Reese had previously pleaded guilty to distributing crack cocaine
and was awaiting sentencing. Reese testified that she typically received a
quarter ounce of crack cocaine once or twice per week from Howard. Reese also
testified that she bought crack cocaine from Appellant during the relevant time
period. She was a crack cocaine addict and admitted that she was in the Flats
five to seven days a week. In contrast to Mackey’s estimate, she testified that
she observed Appellant conducting transactions “[m]aybe two, three times a
week.”
      Jeffrey Roberson, who had pleaded guilty to distributing crack cocaine,
testified that he bought crack cocaine from Howard about two times a month.
Roberson never mentioned Appellant in his testimony.
      Richard Shelton was charged as a codefendant in the same indictment
with Appellant and had previously pleaded guilty to the conspiracy charge.
Shelton testified that he sold crack cocaine for Howard in the Flats. Shelton

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further testified that he observed Appellant buy crack cocaine from Watson on
two occasions. Although he did not observe Appellant hand her any money, he
knew that Watson did not “front dope.”      Shelton never observed Appellant
selling drugs.
      Detective Marker testified that he interviewed Watson during his
investigation of this case. During this interview, Watson stated that she sold
Appellant crack cocaine a quarter ounce at a time. Watson further stated “it was
not very often” that she sold crack cocaine to Appellant. Detective Marker
testified that during his investigation he never encountered anyone who had
bought drugs from Appellant.
      On appeal, Appellant admits that he purchased “personal use” quantities
of crack cocaine and that he used some of the crack cocaine and resold some.
Nonetheless, he contends that there is insufficient evidence to prove beyond a
reasonable doubt that he conspired with anyone to distribute drugs. We agree.
      Although direct evidence of an agreement is not required, there must be
some evidence to support the charge of conspiracy.      See Inocencio, 40 F.3d at
725. For example, evidence that a defendant purchased drugs on consignment
would provide “‘strong evidence’ of membership in a conspiracy because it
indicates a strong level of trust and an ongoing, mutually dependent
relationship.” United States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998).
Here, however, there is no evidence that Appellant purchased drugs on
consignment.
      Additionally, we have stated that evidence may be sufficient to prove a
conspiracy to distribute drugs if it demonstrates that the seller knows that the
buyer will resell the drug purchases, “especially when each party has a stake in

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the success of the other’s business, suggesting a substantial degree of
cooperation and partnership rather than a series of isolated and sporadic
transactions.”   United States v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993)
(internal quotation marks and citation omitted). In the case before us, the
evidence does not demonstrate that the individuals who sold drugs to Appellant
knew that he would resell the drugs.         Watson, who distributed drugs for
Howard, the leader of the drug ring, told police it was “not very often” that she
sold crack cocaine to Watson. Watson further told the police that she sold
Appellant only a quarter ounce of crack cocaine at a time, which, according to
trial testimony, is consistent with personal use of the drug. On one occasion,
Appellant bought a quarter ounce from Warren, who testified that he did not
know what Appellant did with the cocaine. We are not aware of any evidence
demonstrating that the individuals who sold drugs to Appellant knew the drugs
were to be resold.
      Further, the government may prove an agreement by demonstrating the
coconspirators’ concert of action with respect to distribution of drugs. United
States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007). In Mitchell, this Court
rejected the contention that the evidence merely demonstrated that “there were
numerous buyer[-]seller relationships, not that there was a conspiracy.” Id.
There, the defendants agreed to:       (1) purchase crack cocaine together for
distribution; (2) drive to Dallas together; and (3) “have [a co-conspirator]
conduct the transaction . . . on behalf of all three of them.” Id. They also “agreed
on a method of transporting the drugs . . . for distribution.” Id. Based on the
evidence of the defendants’ concert of action, we held that the jury could have
inferred that the defendants had an agreement to distribute drugs. Id. In the

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case at bar, the evidence does not demonstrate that Appellant acted in concert
with other drug dealers.
      The government argues that Mackey’s testimony that the older drug
dealers had an understanding because they “took turns” selling on the street
demonstrates evidence of concert of action and suggests substantial cooperation.
In support of this argument, the government cites United States v. Featherson,
949 F.2d 770 (5th Cir. 1991). Similar to the instant case, the defendant in
Featherson argued that he “had no association with the other defendants and
that he was not involved with their drug transactions.” Id. at 774-75. We
rejected his argument, stating as follows:       “Featherson had drug-related
conversations with [codefendant] Ray, had drug-related contacts with Ray,
accepted referrals from Ray and had an apartment . . . near those frequented by
[his codefendants].” Id. at 775. We acknowledged that the evidence was “less
overwhelming” compared to the evidence against Featherson’s codefendants but
we nonetheless found it sufficient. Id.
      Here, in contrast, there is insufficient evidence of any concert of action
between Appellant and any co-conspirator with respect to distributing crack
cocaine—other than a buyer-seller relationship, which, “by itself, is insufficient
to show conspiratorial activity.” Posada-Rios, 158 F.3d at 860. We conclude that
Mackey’s testimony with respect to the drug dealers’ implicit agreement to take
turns selling drugs merely demonstrates “conscious parallelism,” which is
insufficient to establish a conspiracy in a civil case.    See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 548–49, 553–54 (2007) (holding that an allegation of
conscious parallelism or parallel business conduct, without factual allegations
“suggesting agreement,” does not state a claim with respect to antitrust

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conspiracy); Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 961 F.2d
1148, 1158–59 (5th Cir. 1992) (explaining that mere proof of “conscious
parallelism” or parallel business behavior is insufficient to prevail on a claim for
antitrust conspiracy).
       Finally, we have found insufficient evidence of a conspiracy to distribute
drugs when the evidence showed that a married couple sold drugs separately to
a confidential informant. United States v. White, 569 F.2d 263, 267 (5th Cir.
1978). We opined that the “bits and pieces of evidence” were no more than
speculation of a conspiracy, explaining that “[d]rug transactions alone do not
constitute a conspiracy.” Id. at 267, 268. See also United States v. Villasenor,
894 F.2d 1422, 1425–30 (5th Cir. 1990) (explaining that, although the evidence
was sufficient to sustain the conviction for possession with intent to distribute
drugs, the conviction for conspiracy must be reversed because the evidence did
not establish an agreement with any co-conspirators). Similarly, in the instant
case, we conclude that the evidence does not prove beyond a reasonable doubt
that Appellant had an agreement with any other person to distribute crack
cocaine. Although the evidence was sufficient to convict Appellant of possession
with intent to distribute cocaine, the government obtained Appellant’s conviction
based on a conspiracy charge. Accordingly, we reverse Appellant’s conviction
based on insufficient evidence to sustain his conspiracy conviction.5
       For the above reasons, the conviction is REVERSED and judgment of
acquittal is RENDERED.



       5
        Appellant raises other issues; we decline to address them in light our holding that the
evidence is insufficient to sustain his conviction.

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