     Case: 14-31219      Document: 00513107146         Page: 1    Date Filed: 07/07/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31219
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 7, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

QUENSHEY N. MITCHELL, Also Known as Rafiki Smith,
Also Known as Q. Mitchell, Also Known as Cuz Mitchell,

                                                 Defendant–Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-297-1




Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *

       Quenshey Mitchell was convicted by a jury of conspiracy to distribute


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31219

and possession with intent to distribute heroin, 21 U.S.C. § 846; conspiracy to
tamper with a witness, 18 U.S.C. § 1512(k); witness tampering, 18 U.S.C.
§ 1512; conspiracy to retaliate against a witness, 18 U.S.C. § 1513(f); retalia-
tion against a witness, 18 U.S.C. § 1513; and conspiracy to obstruct an official
proceeding, 18 U.S.C. § 1512(k). He was sentenced to life imprisonment on
counts one through five, 240 months of imprisonment on count six, supervised
release for 10 years on count one, three years of supervised release on the
remaining counts, and restitution of $18,000.

       Mitchell contends that the evidence was insufficient to support his con-
viction on counts two through five related to the murder of the cooperating
witness, Christina Williams, because the record is “devoid of any evidence that
Defendant was present at the murder scene or that he ever discussed her mur-
der with anyone.” Mitchell does not dispute that the government established
his guilt on the heroin conspiracy in count one. He claims that the proof of his
connection to the murder on July 29, 2010, depended entirely on tying him to
his use of the telephone number ending in 5545 on that night. He asserts that
the government’s reliance on telephone records and “Historical Cell Site Analy-
sis” is based purely on speculation without adequate evidentiary support and
does not establish his involvement in the murder beyond a reasonable doubt.
He concludes that a judgment of acquittal should have been granted as to
counts two through five and a new trial granted as to counts one and six
because of the prejudicial impact of trying the heroin conspiracy and the
related obstruction-of-justice charge with the murder charges. 1

      “[R]eviewing courts must affirm a conviction if, after viewing the



      1 Mitchell has failed to brief any argument related to his request for a new trial on
counts one and six, so he has waived that issue. United States v. Stalnaker, 571 F.3d 428,
439-40 (5th Cir. 2009).


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evidence and all reasonable inferences in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d
299, 301 (5th Cir.) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)), cert. denied, 135 S. Ct. 170 (2014). Mitchell made the same arguments
in timely filed post-verdict motions for a judgment of acquittal or new trial,
thus preserving de novo review of this issue. See FED. R. CRIM. P. 29(c); United
States v. Allison, 616 F.2d 779, 784 (5th Cir. 1980).

      A conspiracy conviction does not depend on the identification of the co-
conspirators, and co-conspirators do not need to be identified as long as evi-
dence supports the conclusion that a co-conspirator did exist and that the
defendant did conspire with him. United States v. Moree, 897 F.2d 1329, 1332
(5th Cir. 1990). The agreement forming the basis of a conspiracy is rarely
expressed and often cannot be proved by direct evidence and so may be inferred
from circumstantial evidence. United States v. Duncan, 919 F.2d 981, 991 (5th
Cir. 1990). The conspiracy counts required proof that Mitchell and at least one
other person had an agreement to kill Williams with the intent to prevent her
cooperation as a witness or to retaliate against her for her cooperation, that
Mitchell knew of the unlawful purpose of the agreement, and that an overt act
was undertaken by one of the conspirators toward carrying out the object of
the conspiracy. See United States v. Contreras, 950 F.2d 232, 238 (5th Cir.
1991); Vargas-Ocampo, 747 F.3d at 303. Counts three and five charged Mit-
chell with aiding and abetting the same offenses. A conviction of aiding and
abetting requires proof that the elements of the substantive offense occurred
and that the defendant associated with the criminal venture, purposefully par-
ticipated in the criminal activity, and sought by his actions to help it succeed.
United States v. Pringler, 765 F.3d 445, 449 (5th Cir. 2014), cert. denied,



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135 S. Ct. 1000 (2015).

      Mitchell’s arguments selectively acknowledge only a portion of the evi-
dence and dismiss the circumstantial, yet highly significant, cell phone toll rec-
ords and Historical Cell Site Analysis evidence. Mitchell concedes that the
evidence established his motive to kill Williams. He contends that the govern-
ment failed to connect him “in any meaningful way to telephone numbers 5545,
1816 and 4943.”

      To the contrary, however, the recurring presence of the same fictitious
934 Avocado Avenue address on subscriber records of phones utilized by Mit-
chell during his drug-trafficking activities and during the murder, coupled
with Los Angeles Police Detective Sean Hansen’s analysis of the cell tower
usage of phone numbers ending in 5545, 1816, and 4943 during July 2010, suf-
ficiently identified Mitchell as the user of those phones. The 1916 iPhone num-
ber subscribed in Mitchell’s name was included by Hansen in his cell site analy-
sis as a known Mitchell telephone that used cell towers in similar places and
at similar times as the 5545 and 4943 telephones during July 2010 and shortly
before and on the evening of the murder.

      Williams’s cell phone was in contact, immediately before her murder,
with two telephone numbers, 5545 and 1816, subscribed in false names with
the same fictitious Avocado Avenue address. The telephone toll records and
historical cellular tower activity for these two numbers revealed that 1816
made its last two telephone calls to a third number, 4943, immediately before
and after a 911 call was made reporting the murder.          The cellular tower
analysis of 1816 revealed it to have been in the immediate vicinity of the mur-
der scene at the time of the killing. The cellular tower analysis revealed that
phone 4943 was in the Marina del Rey area of Los Angeles at the time of the
murder. Melony Salvage, Mitchell’s girlfriend, testified that Mitchell told her


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he had texted Williams the night of her murder and that he was in Marina del
Rey that evening. Further, other telephones linked to Mitchell, including 1916,
Mitchell’s iPhone subscribed in his name, showed cellular tower activity con-
sistent with Mitchell’s travel to Marina del Rey that evening. This evidence
allowed the jury to reasonably infer that Mitchell was the user of 5545 and
4943 on the night of the murder.

      This evidence, along with Mitchell’s threats to Williams’s father regard-
ing what happens to snitches, allowed the jury reasonably to infer that Mitchell
conspired with an unknown third person to lure Williams to a meeting where
she was murdered while Mitchell remained in phone contact with that person
while Mitchell was in Marina del Rey. The evidence is sufficient to demon-
strate beyond a reasonable doubt that Mitchell conspired with and aided and
abetted at least one other person to kill Williams on the night of July 29, 2010.

      AFFIRMED.




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