     Case: 18-30307      Document: 00514970397         Page: 1    Date Filed: 05/24/2019




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

                                                                                 FILED
                                      No. 18-30307                           May 24, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

AKARI WILLIAMS,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CR-153-1


Before WIENER, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Akari Williams was convicted by a jury of conspiracy to “distribute and
possess with the intent to distribute 500 grams or more of a substance
containing a detectable amount of methamphetamine” and of “knowingly and
intentionally possess[ing] with the intent to distribute 500 grams or more of a
substance containing a detectable amount of methamphetamine.” Williams
was sentenced to 188 months imprisonment on each count, to be served


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30307
concurrently, followed by 5 years of supervised release. Although Williams’s
codefendants were ultimately acquitted based on the district court’s post-trial
reconsideration and granting of their earlier, timely pretrial motion to
suppress the search of a methamphetamine package and its fruits, the district
court determined that Williams failed to timely submit his motion to suppress
and overruled his motion to join his codefendants’ motion. The district court
further determined that, on the merits of the motion, Williams lacked Fourth
Amendment standing to assert a right to privacy in the package. Williams
appeals, arguing that there was insufficient evidence to convict him and that
the district court erred by denying his motion to suppress and allowing
introduction of evidence that Williams was involved in orchestrating the
shipment of other packages from California to Houma, which Williams claims
was inadmissible. We AFFIRM.
                                       I
      In May 2014, the owner of a UPS store in Riverside, California opened a
package she believed to be suspicious and likely a drug package. She later
testified that she reported approximately one suspicious package to law
enforcement per month, and would receive a reward of $50 per package. She
also testified that she would often open such packages herself. The store owner
believed the instant package was suspicious because it was overly taped and
was expensive to ship.    The store owner cut the package open, noticed a
chemical odor, and called the San Bernardino County Sheriff’s Department.
      A deputy sheriff responded to the call. After obtaining a warrant, the
deputy opened the package and found paint cans wrapped in cellophane that
contained more than three pounds of methamphetamine. Because the package
was destined for Houma, Louisiana, the Deputy contacted local law
enforcement in the area. They agreed that the package should be shipped to
Louisiana.
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      When the package arrived in Houma, deputies executed a controlled
delivery to the address listed on the package. Officers placed a microphone
and iPhone inside the package.     Those items would alert them when the
package was opened and would capture images of whoever opened it. The
package, addressed to John Lirette, was delivered to his address by an
undercover agent, where it was accepted by an individual the agents identified
as Kerry John Lirette. Lirette got in his car with the package and drove to a
house less than a quarter of a mile away. Inside that house, Williams and
Lirette opened the box a few moments later, triggering the alert to law
enforcement. Williams’s cousin, who was in the house at the time, testified
that Lirette walked into the house with the package and into a room with
Williams separate from other rooms in the house. After opening the package,
Williams and Lirette went toward the bathroom while Williams said “Man,
flush it. Flush it,” and Lirette responded that he could not open the paint can
in which the drugs were stored. A SWAT team then moved in and detained
everyone inside the home, including Lirette and Williams, and recovered the
drugs law enforcement had delivered as well as several weapons and cash.
      During the raid, law enforcement also seized Williams’s cell phone. After
obtaining a warrant, law enforcement searched the cell phone and found text
messages between Williams’s phone and the phone number listed on the
shipping label of the package. These text messages included the tracking
number and payment information for the methamphetamine package law
enforcement had just delivered. The other phone number in this exchange
belonged to Philips Thompson, who police intercepted when he landed at the
New Orleans airport on his return from Los Angeles.         After obtaining a
warrant to search Thompson’s cell phone, police found tracking numbers for
other packages.


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      Williams   was    charged   by   superseding    indictment,   along    with
codefendants Lirette and Thompson, on methamphetamine distribution
charges. Williams was charged on Counts One and Three. Count One alleged
a conspiracy, beginning prior to May 1, 2013, to “distribute and possess with
the intent to distribute 500 grams or more of a substance containing a
detectable amount of methamphetamine” in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A), and 21 U.S.C. § 846. Count Three alleged that “[o]n or about
May 30, 2014 . . . Williams . . . did knowingly and intentionally possess with
the intent to distribute 500 grams or more of a substance containing a
detectable amount of methamphetamine,” in violation of § 841.
      Thompson, Williams’s codefendant, moved to suppress the evidence
stemming from the search of the May 2014 methamphetamine package.
Lirette adopted the motion, but Williams failed to do so. The district court
denied the motion to suppress, ultimately concluding that the UPS store owner
was not acting as an agent of the government at the time of the search, and
therefore no Fourth Amendment protections attached. The district court later
granted a request from Lirette to sever his trial from Thompson’s and
Williams’s.
      Thompson and Williams proceeded to a four-day jury trial in November
2016. After the Government concluded its case in chief, Thompson reurged his
earlier pretrial motion to suppress and also moved for judgment of acquittal.
As to the motion to suppress, Thompson argued that “some very significant
additional facts have come to the floor in this trial”; namely, the UPS store
owner’s testimony regarding her practice of opening packages she found
suspicious, which she would report to law enforcement and for which she
received rewards. Williams’s trial counsel also orally moved for a judgment of
acquittal and stated that “[w]e adopt[] and join in the motions as well.” The
district court denied these motions from the bench. After deliberation, the jury
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                                  No. 18-30307
found both defendants guilty. Williams then filed a motion for judgment of
acquittal and for a new trial, arguing that sufficient evidence to convict was
not presented to the jury and that “the evidence presented in this case was
unlawfully seized and should have been suppressed prior to trial.” The district
court denied the motion. The court reversed course on its earlier finding that
the UPS store owner was not acting as a government agent and that her search
of the package did not implicate the Fourth Amendment, explaining that
additional evidence at trial called into question the court’s earlier denial of the
motion. Based on that information, the court reconsidered its earlier rulings
as to the other defendants and granted (1) Thompson’s motion to suppress and
for a new trial and (2) Lirette’s motion to suppress.        However, the court
concluded that because Williams failed to move for suppression before trial,
and because there was no good cause for his late filing, he was barred from
seeking to suppress the evidence at this stage. The district court also stated
that “[e]ven if the [c]ourt were to consider Williams’ motion to suppress as
timely, . . . Williams does not have Fourth Amendment standing to seek
suppression of the evidence resulting from, or as a result of, the search of the
package.” The district court concluded that there was sufficient evidence to
support the jury’s guilty verdict.          Williams timely appealed following
sentencing and entry of a final judgment.
      Williams raises three issues on appeal. First, he argues that there was
insufficient evidence to convict him of both the conspiracy charge and the
possession with intent to distribute charge and that the district court therefore
should have granted his motion for judgment of acquittal or new trial. Second,
Williams contends the district court should have granted his motion to
suppress. Third, he argues that the district court should not have allowed
testimony regarding what he terms as “other packages” allegedly sent between
Thompson and Williams. We address each of these arguments in turn.
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                                      No. 18-30307
                                           II
      When, as here, the defendant has moved for a judgment of acquittal, we
review a sufficiency-of-the-evidence challenge de novo.            United States v.
Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018). In reviewing for sufficiency, we
view “the evidence in the light most favorable to the government to determine
whether the government proved all elements of the crimes alleged beyond a
reasonable doubt.” United States v. Castaneda-Cantu, 20 F.3d 1325, 1330 (5th
Cir. 1994) (citation omitted).        While “a conviction will be affirmed if ‘any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt,’” we will not affirm a conviction that is based “on
‘mere suspicion, speculation, or conjecture, or on an overly attenuated piling of
inference on inference.’” Gonzalez, 907 F.3d at 873 (citations omitted).
      To prove the methamphetamine distribution conspiracy charged in
Count One, the Government was required to establish at trial: “(1) the
existence of an agreement between two or more persons to possess with intent
to distribute [the charged amount], (2) that [Williams] knew of the conspiracy
and intended to join it, and (3) that he participated in the conspiracy.” United
States v. Mitchell, 484 F.3d 762, 768–69 (5th Cir. 2007) (citations omitted).
This court has noted that “[t]he jury may infer any element of conspiracy from
circumstantial evidence.” United States v. Zamora-Salazar, 860 F.3d 826, 832
(5th Cir. 2017) (cleaned up). Thus, the agreement element “may be inferred
from concert of action,” the voluntary participation element “from a collocation
of   circumstances,”     and    the     knowledge    element   “from      surrounding
circumstances.”        Id.   (cleaned    up).    For   Count    Three’s    charge   of
methamphetamine possession with intent to distribute, the Government had
to prove: “(1) knowledge, (2) possession, and (3) intent to distribute the
controlled substance.” United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th


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                                       No. 18-30307
Cir. 2017) (quotation and citation omitted). Again, “[t]he necessary knowledge
and intent can be proved by circumstantial evidence.” Id. (cleaned up).
        The government elicited extensive testimony from the investigators who
had apprehended Williams following the discovery of the May 2014
methamphetamine package. A cooperating witness present at the house at the
time the package was opened testified that Lirette and Williams took the
package to a separate room, and that, when they discovered that the package
was bugged, Williams instructed Lirette to “flush it.”                  After searching
Williams’s house and cell phone, police discovered text messages with
Thompson that discussed this methamphetamine shipment as well as several
other shipments that, although not shown to contain methamphetamine, were
also shipped from California to Houma at the same time that Thompson
travelled back and forth between California and Houma. Further, two of
Williams’s cousins, each of whom was incarcerated based on separate drug
convictions, testified that they obtained methamphetamine from Williams for
resale, confirmed that Thompson and Williams worked together to sell
methamphetamine, and testified about other instances of Williams awaiting
large       deliveries   of     methamphetamine       or   making      large    sales    of
methamphetamine. Williams’s argument that the evidence was insufficient to
convict him fails, as it largely attacks the propriety of reasonable inferences
the jury was entitled to make based on its assessment of witness credibility
and circumstantial evidence. 1 See Chapman, 851 F.3d at 378 (argument that




        1We also reject Williams’s argument that the evidence in this case is in equipoise
regarding guilt or innocence, and that this requires reversal. This court has abandoned the
rule requiring reversal in such a situation. See United States v. Vargas-Ocampo, 747 F.3d
299, 302–03 (5th Cir. 2014) (en banc) (abandoning the “equipoise rule” and reiterating that
the standard is whether “considering the evidence and all reasonable inferences in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt”).
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                                         No. 18-30307
adverse witnesses testified pursuant to plea agreements was inapposite, as “we
accept all credibility determinations by the jury, with few exceptions”);
Zamora-Salazar, 860 F.3d at 832 (jury may draw inference of agreement from
“concert of action”).
       Given this extensive evidence, the district court did not err in denying
Williams’s motion for acquittal.
                                               III
       Williams also challenges the district court’s denial of his motion to
suppress the May 2014 methamphetamine package and the fruits of its search.
Williams concedes that his motion to suppress was untimely, but argues that
the district court should have considered it anyway. Williams also contends
that the district court’s alternative holding—that Williams lacked Fourth
Amendment          standing      to    challenge       the     unlawful      search      of   the
methamphetamine package—was in error. 2
                                                A
       Williams’s challenge of the district court’s refusal to consider his
untimely motion to suppress fails. Federal Rule of Criminal Procedure 12(b)(3)
requires that motions to suppress “must be raised by pretrial motion if the
basis for the motion is then reasonably available and the motion can be
determined without a trial on the merits.” FED. R. CRIM. P. 12(b)(3). “If a party
does not meet the deadline for making a Rule 12(b)(3) motion, the motion is
untimely. But a court may consider the defense, objection, or request if the




       2 Williams also argues that his trial counsel was ineffective for failing to raise the
suppression issue in a timely manner, but we decline to reach this issue on direct appeal.
Instead, we apply “[t]he general rule in this circuit . . . that a claim for ineffective assistance
of counsel cannot be resolved on direct appeal when the claim has not been raised before the
district court since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (quoting United
States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)).
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                                  No. 18-30307
party shows good cause.” FED. R. CRIM. P. 12(c)(3). Although we have not ruled
on the standard of review of a district court’s finding of lack of good cause under
Rule 12(c)(3), we typically review determinations of whether a justification
exists to excuse a deadline for abuse of discretion and see no reason to depart
from that practice here. See, e.g., United States v. Mesquiti, 854 F.3d 267, 275
(5th Cir. 2017) (reviewing district court ruling on motion for continuance for
abuse of discretion); Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir.
2013) (same for showing of good cause why service of process was untimely);
Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th Cir. 1992) (same for
determination of timeliness of motion to intervene). Williams has not shown
that the district court abused its discretion in determining he lacked good
cause for failing to file the motion to suppress before trial, along with the other
defendants.
      A showing of good cause requires a defendant to show both cause and
prejudice. See Davis v. United States, 411 U.S. 233, 242–43 (1973) (suggesting
predecessor to current rule requires showing of diligence and actual prejudice);
United States v. Fry, 792 F.3d 884, 888 (8th Cir. 2015) (“Under Rule 12(c)(3),
as amended December 1, 2014, a court may consider an issue not timely raised
under Rule 12(b)(3) only upon a showing of ‘good cause,’ which requires a
showing of cause and prejudice”). The district court found that “[w]ell before
trial, Williams was aware that the package was opened by the UPS store
owner, and that the evidence collected during, and as a result of, that search
would be used to establish his involvement in the charged conspiracy.” The
district court also noted that “Williams and his counsel were, or should have
been, aware of [codefendants’] suppression motions and the hearing the Court
held . . . given the large number of filings related to the motion on the record.”
For these reasons, the district court determined that “Williams was fully aware


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                                  No. 18-30307
of the facts upon which the suppression motion was based, and . . . he otherwise
offers no reason for his untimely filing, there is no ‘good cause.’”
      Williams argues that the district court erred in finding he lacked good
cause because the Government did not object at the time that he attempted to
join his codefendants’ reurged motion at trial, and because it was unfair for the
district court to reconsider his codefendants’ motion to suppress without taking
up his untimely motion. Despite these arguments, we perceive no abuse of
discretion in the district court’s determination that Williams knew or should
have known of his codefendants’ pretrial motion to suppress and was aware
early on in the proceedings of the facts underlying the suppression motion. The
record indicates that Williams’s counsel was served with Thompson’s motion
to suppress and Lirette’s motion to adopt the suppression motion and that the
discovery submitted with Thompson’s motion reflects that the relevant police
reports provided by the Government included references to the UPS store
owner’s opening of the package before reporting it to law enforcement. Thus,
Williams had adequate notice of his codefendants’ pretrial motion to suppress
and its underlying reasons.       Accordingly, we affirm the district court’s
determination that Williams lacked good cause for his failure to file his motion
to suppress prior to trial.
                                        B
      Even when a motion to suppress is untimely, we have reviewed the
merits of a suppression challenge for plain error. See Vasquez, 899 F.3d at 373.
To establish plain error, Williams “must prove an error that was clear or
obvious, rather than subject to reasonable dispute,” that the error “affect[ed]
his substantial rights,” by “affect[ing] the outcome of the district court
proceedings.” Id. (cleaned up). Once these elements are established, we have
“discretion to remedy the error,” which we ordinarily exercise “only if the error


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                                  No. 18-30307
seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Id. (cleaned up).
      Here, the Government argues Williams lacks standing. Williams has the
burden of demonstrating standing to seek suppression by establishing that he
had “‘a legitimate expectation of privacy in the invaded place.’” See United
States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v.
Hernandez, 647 F.3d 216, 219 (5th Cir. 2011)). While “[s]tanding does not
require ownership of the invaded area,” “a defendant’s standing depends on 1)
whether the defendant is able to establish an actual, subjective expectation of
privacy with respect to the place being searched or items being seized, and 2)
whether that expectation of privacy is one which society would recognize as
objectively reasonable.” Id. (cleaned up).
      The district court concluded that Williams lacked an expectation of
privacy in the package containing methamphetamine because he was neither
the sender nor addressee of the package, nor was the package addressed to a
fictional addressee that served as Williams’s alter ego.        In reaching the
conclusion that Williams therefore lacked an expectation of privacy, the
district court relied on statements in our precedent that “[a]rguably, a
defendant who is neither the sender nor the addressee of a package has no
privacy interest in it,” and that “it may well be that even if Pierce claimed that
he was the intended recipient of the package, this would not confer a legitimate
expectation of privacy,” because he was not the addressee of the package.
United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir. 1992). Accordingly, under
our case law, whether a person who is neither the sender nor addressee of a
package has a reasonable expectation of privacy in a package is “subject to
reasonable dispute,” and therefore is not plain or obvious. See Puckett v.
United States, 556 U.S. 129, 135 (2009).


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                                  No. 18-30307
                                        IV
      Finally, Williams contends that evidence of “other packages” should not
have been submitted to the jury.       Williams did not object at trial to the
introduction of this evidence, so we review for plain error. See United States
v. Williams, 620 F.3d 483, 488–89 (5th Cir. 2010) (“[W]here the defendant did
not object to the evidence on the basis presented on appeal, we review the
district court’s evidentiary ruling for plain error.”). The evidence at issue
consisted of text messages between Thompson’s and Williams’s cell phones, in
which the two exchanged addresses and tracking numbers for packages sent
from California to Houma at the same time that Thompson flew back and forth
between California and Louisiana.         The shipments at issue occurred in
December 2013, January 2014, and February 2014. The Government contends
this evidence was intrinsic to the conspiracy and therefore not subject to
Federal Rule of Evidence 404(b) restrictions and, alternatively, survives
scrutiny under Rule 404(b).
      “Rule 404(b) is not implicated if the . . . evidence was intrinsic to the acts
for which [Williams] was charged.” United States v. Stephens, 571 F.3d 401,
410 (5th Cir. 2009). Evidence is intrinsic “when the evidence of the other act
and evidence of the crime charged are ‘inextricably intertwined’ or both acts
are part of a ‘single criminal episode’ or the other acts were ‘necessary
preliminaries’ to the crime charged.” United States v. Watkins, 591 F.3d 780,
784 (5th Cir. 2009) (quoting United States v. Williams, 900 F.2d 823, 825 (5th
Cir. 1990)).   “And, plainly, acts committed in furtherance of the charged
conspiracy are themselves part of the act charged and therefore qualify as
intrinsic evidence.” United States v. Ceballos, 789 F.3d 607, 621 (5th Cir. 2015)
(cleaned up). When, on the other hand, evidence is extrinsic to the charged
offense, this court applies “the two-step test outlined in United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).”           United States v.
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                                 No. 18-30307
Stephens, 571 F.3d 401, 410–11 (5th Cir. 2009). First, the court asks whether
“the extrinsic offense evidence is relevant to an issue other than the
defendant’s character,” and second, whether it “possess[es] probative value
that is not substantially outweighed by its undue prejudice” or any other part
of Rule 403. Id. (cleaned up).
      The evidence of other acts that Williams challenges might reasonably fit
within either category. Even assuming the evidence is extrinsic, as Williams
contends, the district court’s decision to admit the other acts under Rule 404(b)
was not plain error, as the evidence was clearly relevant to Williams’s intent
and knowledge, and to demonstrating how the conspiracy worked.               See
Ceballos, 789 F.3d at 621 (no plain error where extrinsic evidence “at least
arguably serv[ed] a permissible evidentiary purpose under Rule 404(b)”).
Moreover, the district court instructed the jury on the limitations of Rule
404(b) evidence and instructed them that “[t]he defendants are not on trial for
any act, conduct, or offense not alleged in the indictment.” See United States
v. Waldrip, 981 F.2d 799, 805 (5th Cir. 1993) (examining district court’s failure
to sua sponte provide a limiting instruction with respect to specific extrinsic
evidence for plain error and finding that “although we cannot fairly say that
the evidence of prior conduct was not damaging, it was not so damaging as to
require us to reverse on the basis of plain error”). Because the district court
instructed the jury that Williams was only on trial for “act[s], conduct, or
offense[s]” alleged in the indictment and instructed as to the limited use of
evidence regarding acts “similar to those charged in the indictment, but which
were committed on other occasions,” any error by the district court in admitting
evidence of other acts was not plain or obvious. See Puckett, 556 U.S. at 135;
Waldrip, 981 F.2d at 805–06.
                                      ***
      For these reasons, the judgment of the district court is AFFIRMED.
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