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

                                                 FILED
                                                                           October 6, 2009

                                       No. 08-61004                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

HOWARD EARL JONES,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 1:07-CR-105-2


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Howard Earl Jones appeals his conviction for conspiracy to possess with
intent to distribute 5 grams or more but less than 50 grams of crack cocaine. We
affirm.
                                   I. BACKGROUND
A.     Summary of the Facts
       On November 2, 2006, at ten o’clock in the morning, Renada Davis and his
brother, Deadrick Franklin, pulled into the Springwater Street Apartments in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-61004

Moss Point. They stopped their gold Chevrolet Malibu next to a green Toyota
Camry. Howard Earl Jones exited the passenger side of the Camry, leaving his
girlfriend inside, and climbed into the backseat of the Malibu to engage in a drug
transaction. Two Moss Point police officers, Lieutenant Lamar Underwood and
Officer Terrance Gray, were on routine patrol in the area when they saw the
Malibu turn into the back of the apartment complex. Because there had been
reports of drug transactions in those apartments, the officers followed the
Malibu into the parking lot. Officer Gray recognized the occupants of the Malibu
as persons involved in drug activity.
       As the officers were pulling up behind the stopped Malibu, Jones’s
girlfriend sped away in the Camry, and Davis began driving the Malibu forward
to the end of the parking lot. Officer Gray yelled at them to stop the car. Davis
continued driving 20 to 30 feet, then abruptly stopped, exited, and began fleeing
on foot. Lieutenant Underwood fired his taser and disabled Davis. Upon seeing
Davis run, Jones also exited from the backseat and fled. Lieutenant Underwood
again fired his taser, but only one of the probes hit Jones, who escaped. During
his flight, Jones dropped a $100 bill to the ground. Franklin remained in the
Malibu, where he was arrested after being found with crack cocaine and $2,777
in cash.
       During a search of the area, the officers discovered crack cocaine on the
ground next to the car door from which Jones had exited, on Franklin’s person,
and on the ground where Davis had fallen. The drug laboratory later confirmed
that the substances recovered were crack cocaine with a net weight of 157.7
grams. A black baseball cap was recovered near Davis’s person.1 The officers


       1
         Jones now asserts that the black baseball cap was not included on the government’s
evidence list or introduced at trial, and that it was material to his case. The only relevance
of the baseball cap is in determining how much of the 157.7 grams of crack cocaine was in
Davis’s possession. Because Jones was acquitted of the possession charge, the black baseball
cap’s absence has no effect on his appeal.

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also found a .38 caliber derringer belonging to Davis in the front seat of the
Malibu, a black handgun on the floor in the backseat, two digital scales, and a
notebook containing names and dollar amounts. The notebook contained an
entry for “Man–Man.”
      At trial, Franklin testified on behalf of the government pursuant to a plea
agreement.    He testified that the notebook recorded debts owed to Davis.
Franklin also testified that the notebook entry for “Man–Man” referred to Jones,
and that Jones was seeking to purchase a 63-gram “pie” of crack cocaine.
Franklin testified that the scales were used for weighing cocaine powder and
crack cocaine. He further testified that Davis had placed crack cocaine into the
black baseball cap before exiting the Malibu. With regard to contact with Jones
in the past, he testified that Jones had purchased “pies” of crack cocaine from
Davis in 2006 but prior to the November incident. Franklin testified that Jones
did not pay up front for the crack cocaine, but that Davis “fronted” the pies, and
Jones would pay the cost out of his ultimate sales. Davis had died before trial
and was unavailable to testify.
      The government also called to the stand a Drug Enforcement Agency
agent, who testified that the notebook was consistent with a drug ledger.
Derrick Hurst, like Franklin, testified pursuant to a plea agreement. Hurst
confirmed that Jones went by the nickname “Man–Man,” and that he had
purchased 28-gram “cookies” of crack cocaine from Jones in 2001. He further
testified that Jones’s supplier was arrested in 2001, and Jones thereafter had to
find a different supplier.
      After the government rested its case, Jones testified in his own defense
that he was a drug user but that he had not dealt crack cocaine since he was
younger. He claimed that he planned to purchase a user amount of crack
cocaine from Davis for about $20 or $30, but that the transaction had not been
consummated before the police officers arrived at the scene. He claimed that he

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had not yet spoken to Davis or Franklin before the police officers disrupted the
transaction. His mother testified that she had witnessed the incident and
observed small rocks flying out of the Malibu’s windows, but that she did not see
Jones throw anything while fleeing from the police.        Jones’s nephew also
testified that he did not see Jones throw anything, but that Jones went by the
nickname “Man–Man.”
B.    Procedural History
      Jones was indicted on three counts. The first count charged him with
conspiracy to possess with intent to distribute 50 grams or more of cocaine base
(crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. The second count
charged him with knowingly and intentionally possessing with intent to
distribute 50 grams or more of crack cocaine under 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. The third count, a notice of forfeiture under 21 U.S.C. § 853(p), was
dismissed at the beginning of trial on the government’s motion. Franklin was
also indicted on the same charges, but he agreed to a plea bargain that required
him to testify in Jones’s trial.
      Jones moved pretrial to suppress the drugs and other evidence obtained
from the Malibu as the fruits of an unreasonable search. The district court
deferred ruling until trial. At trial, it found that there was no seizure of the
Malibu when the officers pulled up behind it, so no probable cause or reasonable
suspicion was necessary. The court further determined that the officers had
reasonable suspicion to detain the Malibu and its occupants based on the two
cars being next to each in an area with high drug traffic, on the Camry speeding
away, and on the Malibu driving 20 to 30 feet away from the officers’ car. It
concluded that when Davis and Jones fled the scene, the officers were justified
in seizing them and the evidence at the scene.
      Jones moved for a judgment of acquittal when the government rested its
case and again at the close of all the evidence. The court denied both motions,

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and submitted jury instructions relating to the possession and the conspiracy
charges. After the jury withdrew to deliberate, it asked additional clarifying
questions to the court. The court referred the jury back to the instructions each
time. The jury returned a verdict of not guilty on the charge of possession with
intent to distribute, but found Jones guilty of conspiracy to possess with intent
to distribute five grams or more but less than 50 grams of crack cocaine. The
district court denied Jones’s motions for judgment of acquittal and new trial2 and
sentenced Jones to 360 months’ imprisonment, five years’ supervised release,
and a $100 special assessment.
      Jones now appeals, asserting as grounds for relief error in the denial of his
motion to suppress, his motion to dismiss, his motions for judgment of acquittal,
and his motion for new trial. He also contends the additional instructions to the
jury were confusing or exerted undue influence, leading to an erroneous jury
verdict.
                                  II. ANALYSIS
A.    Motion to Suppress
      Jones asserts that the officers unreasonably seized the Malibu and its
occupants when the officers approached them in the apartment complex. Jones
contends that the officers had no reasonable suspicion or probable cause and
that the district court erred in not suppressing the crack cocaine found in the
parking lot and the Malibu. The government responds that the initial approach
was not a seizure, and that reasonable suspicion and probable cause were not
necessary. It argues that Davis’s and Jones’s conduct after the initial approach
gave rise to reasonable suspicion to seize Davis, Jones, and any contraband on




      2
       The renewed motion for judgment of acquittal was titled as a Motion for Judgment
Notwithstanding the Verdict. Both parties regard that motion as a renewed motion for
judgment of acquittal, and we will analyze it accordingly.

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their persons. Lastly, it claims that Jones lacks standing to challenge the
officers’ search of the Malibu.
      We review de novo a district court’s legal conclusions under the Fourth
Amendment, and its factual findings for clear error. United States v. Zavala,
541 F.3d 562, 573–74 (5th Cir. 2008). A district court’s finding that a seizure has
or has not occurred is a factual determination that we review for clear error.
United States v. Mask, 330 F.3d 330, 334 (5th Cir. 2003). “‘A factual finding is
not clearly erroneous if it is plausible in light of the record as a whole.’” Zavala,
541 F.3d at 574 (quoting United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001) (per curiam)).        “A district court’s legal conclusions, including
determinations of reasonable suspicion and probable cause, are reviewed de
novo.” Id. We consider the entire record in the light most favorable to the
government, United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007), and may
affirm on any basis supported by the record, United States v. Taylor, 482 F.3d
315, 318 (5th Cir. 2007).
      We first address the evidence collected from outside of the Malibu. “[A]
person has been ‘seized’ within the meaning of the Fourth Amendment only if,
in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” United States v. Mendenhall,
446 U.S. 544, 554 (1980) (Stewart, J.). A police officer’s show of authority does
not effectuate a seizure unless the person yields or the officer applies physical
force to restrain movement. California v. Hodari D., 499 U.S. 621, 626–28
(1991). Accordingly, items discarded by a fleeing suspect are abandoned and
may be seized without reasonable suspicion or probable cause where the suspect
has not yet been seized. Id. at 629. Once a person has been seized, that seizure
is unreasonable unless based on reasonable suspicion that a person has been, is,
or is about to be engaged in criminal activity. United States v. Vickers, 540 F.3d
356, 360 (5th Cir. 2008). The determination of reasonable suspicion is made “in

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light of the totality of the circumstances confronting a police officer, including all
information available to the officer at the time of the decision to stop a person.”
United States v. Silva, 957 F.2d 157, 160 (5th Cir. 1992).
      Applying these rules, Jones was not seized when the officers initially
approached the vehicle; the only issue is whether Jones was seized when he was
hit by a single taser probe. In Silva, an officer went to a person’s residence to
execute a felony arrest warrant; Silva was a passenger in the person’s truck in
the driveway. Id. at 158. The officer blocked the driveway with his patrol car,
and Silva exited the truck and began to walk away. Id. When the officer called
for Silva to halt, Silva broke into a run; the officer briefly touched Silva’s
shoulder before Silva got away, discarding a firearm before ultimately being
apprehended by another officer. Id. We declined to consider whether the brief
touching constituted a seizure, instead holding that discovery in the company of
a suspected felon and flight from officers after being ordered to halt created
reasonable suspicion justifying seizure of Silva and the firearm. Id. at 161.
      Here, in addition to the fact that Officer Gray recognized all the occupants
of the Malibu as involved in drug activities, the record shows that the apartment
complex had been the subject of drug complaints.             Furthermore, Jones’s
girlfriend, Davis, and Jones all fled at the sight of police. Compare Illinois v.
Wardlow, 528 U.S. 119, 124–25 (2000) (finding reasonable suspicion where “an
area [was] known for heavy narcotics trafficking” and the suspect made an
“unprovoked flight upon noticing the police”). We agree with the district court
that no seizure occurred when the officers initially approached the Malibu, and
that the officers had reasonable suspicion for a detention when Davis and Jones
fled from the area. Because Jones abandoned the $100 bill and any crack
cocaine he may have carried, the police officers were justified in seizing those
items of evidence.



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      We next address the evidence collected from inside the Malibu. The
government contends that Jones lacks standing to challenge the seizure of the
two firearms, the notebook, the scales, and any crack cocaine seized from within
the Malibu. A defendant has standing to contest the validity of a search if a two-
pronged test is met: (1) the defendant must “establish an actual, subjective
expectation of privacy with respect to the place being searched or items being
seized”; and (2) “that expectation of privacy [must be] one which society would
recognize as reasonable.” United States v. Kye Soo Lee, 898 F.2d 1034, 1037–38
(5th Cir. 1990). “Typically, a passenger without a possessory interest in an
automobile lacks standing to complain of its search because his privacy
expectation is not infringed.” United States v. Roberson, 6 F.3d 1088, 1091 (5th
Cir. 1993). It is clear from this precedent that Jones, as a momentary passenger
in a parked automobile, had no expectation of privacy in the Malibu and lacks
standing to challenge the evidence seized from the Malibu.
      Neither Davis nor Jones was initially seized, and any subsequent seizure
was justified by reasonable suspicion. Jones lacks standing to object to the
seizure of evidence from the Malibu. The district court did not err in denying
Jones’s motion to suppress the crack cocaine and drug paraphernalia.
B.    Sufficiency of the Evidence
      Jones filed motions for judgment of acquittal at the close of the
government’s evidence and at the close of all the evidence. He also filed a motion
for a new trial after the jury rendered its verdict. He claims error in the denial
of these motions. Those motions challenge the sufficiency of the evidence, and
we analyze them together.
      We review de novo the denial of a motion for judgment of acquittal. United
States v. Bellew, 369 F.3d 450, 452 (2004). “[O]ur standard of review is whether,
viewing the evidence in the light most favorable to the government, a rational
trier of fact could have found the essential elements of the offense beyond a

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reasonable doubt.” United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998).
Our review is “highly deferential to the verdict,” and we view the evidence “in
the light most favorable to the government with all reasonable inferences and
credibility choices made in support of a conviction . . . .” United States v. Redd,
355 F.3d 866, 872 (5th Cir. 2003) (internal quotation marks omitted). Denial of
a motion for a new trial challenging the verdict as against the weight of the
evidence is reviewed for abuse of discretion. United States v. Fuchs, 467 F.3d
889, 909 (5th Cir. 2006).
      To prove conspiracy to distribute a controlled substance, three elements
must be proved: “(1) an agreement between two or more persons to violate the
narcotics laws; (2) the defendant’s knowledge of the agreement; and (3) the
defendant’s voluntary participation in the conspiracy.” United States v. Thomas,
348 F.3d 78, 82 (5th Cir. 2003) (internal quotation marks omitted). Jones
challenges the first element, asserting the evidence is insufficient to prove there
was an agreement. “‘An express agreement is not required; a tacit, mutual
agreement with common purpose, design, and understanding will suffice.’”
United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007) (quoting United States
v. Infante, 404 F.3d 376, 385 (5th Cir. 2005)). “[E]ach element of the crime may
be established by circumstantial evidence.” Infante, 404 F.3d at 385. The fact
that Franklin and Hurst testified pursuant to plea agreements is a factor that
the jury can consider in determining credibility, but it does not disqualify their
testimony. See United States v. Burns, 526 F.3d 852, 860 (5th Cir. 2008) (“[I]t
is up to the jury to judge the credibility of witnesses who receive favorable
treatment from the Government to testify.”).
      We cannot conclude that the evidence was insufficient for a reasonable
juror to find a conspiracy. The large quantity of crack cocaine found at the
scene, combined with the weighing scales, justified a finding that a large-scale
drug transaction was occurring. A reasonable juror could also have found that

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Jones was going to receive the crack cocaine on credit, and the $100 was not
conclusive of the amount he agreed to purchase. Franklin also testified that
Jones had purchased from Davis before, so an agreement may be inferred in the
present circumstances even though negotiations had not occurred before police
officers arrived at the scene. Several witnesses testified that Jones went by the
nickname “Man–Man,” a name which was found in Davis’s notebook. In light of
these facts, we cannot conclude that the jury’s verdict was against the weight of
the evidence.
C.     Brady Violations
       Jones claims the government violated Brady v. Maryland, 373 U.S. 83
(1963), and United States v. Bagley, 473 U.S. 667 (1985), by failing to provide
him with potentially exculpatory evidence in its possession. He claims his due
process rights were violated because he was not given access to the handwritten
notes from the police interview of Franklin, and because the government failed
to preserve the baseball cap recovered at the scene and Davis’s gold Malibu. The
government responds that none of those items of evidence is material.
       We review allegations of Brady violations de novo. Infante, 404 F.3d at
386.   To prevail on a Brady claim, Jones must show three things: “(1) the
prosecution did not disclose evidence; (2) the evidence was favorable to the
defense; and (3) the evidence was material—i.e., there is a reasonable probability
that if the government had disclosed the evidence, the result of the proceeding
would have been different.” Id.; see United States v. Moore, 452 F.3d 382,
387–88 (5th Cir. 2006) (“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (internal quotation marks omitted)). The
government is required to disclose impeachment evidence under Brady. Bagley,
473 U.S. at 676.
       While on the stand, Franklin testified that Davis had placed crack cocaine
into a black baseball cap. He also testified that he told this to a police officer

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who had made handwritten notes. Those handwritten notes were subsequently
typed into a report, which was furnished to Jones. The typed report specifically
referred to the black baseball cap. Jones argued below that the handwritten
notes may have differed from the typed report.        He now claims that the
handwritten notes conflicted with the typed report. Jones does not offer any
support for this claim, reducing it to a “vague assertion[ that] do[es] not
establish any exculpatory evidence, let alone a reasonable probability that such
evidence affected the outcome of the trial.” Moore, 452 F.3d at 388. Although
Jones alleges that the handwritten notes conflicted with Franklin’s testimony,
he offers no further explanation of what the conflict was or how it would have
been material. We do not find a Brady violation in such conclusory allegations.
      Nor did the government’s failure to produce the black baseball cap
constitute a Brady violation. Jones claims that the cap’s absence precluded
effective impeachment of the officers as to why they attributed drugs found
outside the car to him. However, the crime of conspiracy to possess a controlled
substance does not require actual possession of a controlled substance. See
United States v. Ballard, 586 F.2d 1060, 1065 n.11 (5th Cir. 1978) (“[A] jury may
find a defendant guilty of conspiracy without finding her guilty of the
substantive crimes which were the objects of the conspiracy.”). Jones discussed
the cap during closing argument, but those arguments sought to show that Jones
never possessed the cap or any crack cocaine the cap might have contained.
Those arguments thus relate to the charge of possession with intent to
distribute—a charge of which Jones was acquitted—and are not material to the
crime of conspiracy—for which he was convicted—which did not require
possession of any crack cocaine.
      Jones next argues that he was prevented from effectively impeaching the
police officers in arguing the suppression issue by not being able to examine the
Malibu. He claims that the Malibu’s windows were tinted, and thus the officers

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could not have known there were three persons inside the vehicle. Whether the
Malibu’s windows were tinted relates solely to whether the officers had
unreasonably seized Jones, Davis, and Franklin; it has no bearing on the crime
of conspiracy. In addition, both Jones and Franklin were available to testify to
whether the Malibu’s windows were tinted, so any error would have been
harmless. See United States v. Garcia, 917 F.2d 1370, 1375 (5th Cir. 1990)
(noting that an alleged Brady violation is harmless where “the defense was able
to adequately prepare his case”). More importantly, there was no seizure of the
vehicle until after Davis and Jones began fleeing, and thus it is irrelevant how
accurately the police officers perceived the Malibu’s passengers. We find that
the Malibu was not material under Brady.
       Because Jones has not demonstrated that the handwritten notes, the
baseball cap, or the Malibu were material to the charge of conspiracy, the district
court correctly rejected his claim of error based on a violation of Brady.
D.     Jury Instructions
       Jones contends that the district court’s supplemental instructions to the
jury were confusing and exerted undue influence on the jurors’ minds, causing
them to make a finding of guilt they otherwise would not have made.3 We
perceive no such influence. The court’s responses referred the jury back to the
original instructions. If anything, the supplemental instructions (together with
the original instructions) inured to Jones’s advantage by permitting the jury to
convict him of the lesser-included offense of conspiracy to possess with the intent
to distribute between 5 grams and 50 grams of crack cocaine. Jones’s objection
to the supplemental jury instructions is without merit.




       3
         In the portion of his brief relating to the jury instructions, Jones also makes several
arguments challenging the sufficiency of the evidence. As we explained above, there was
sufficient evidence to convict Jones of conspiracy to possess with the intent to distribute.

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                           III. CONCLUSION
     We conclude that Jones’s claims of error are without merit. Accordingly,
the judgment of the district court is AFFIRMED.




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