                     IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT
                                   ____________________

                                        No. 99-20920
                                    ____________________



                              UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellant,

                                             VERSUS

                                STEVON TODD MCCARTER,

                                                      Defendant-Appellee.


                               ___________________________

                         Appeal from the United States District Court
                    for the Southern District of Texas, Houston Division.
                                    No. H-99-CR-37-SS
                             ____________________________
                                     February 23, 2001

Before DAVIS, BARKSDALE, and WOOD, Jr.*, Circuit Judges.

PER CURIAM:**

       On July 14, 1999, McCarter was convicted by a jury of conspiracy to possess with

intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and with possession of


       *
        Circuit Judge of the Seventh Circuit, sitting by designation.
       **
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
cocaine and aiding and abetting in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.

McCarter filed a motion for judgment of acquittal, or, in the alternative, moved for a new

trial. The district court dismissed McCarter’s motion for judgment of acquittal, stating

that when viewing the evidence in a light most favorable to the verdict, “the jury could

have found beyond a reasonable doubt that McCarter knew kilo quantities of cocaine

were in the cooler when he participated in the theft . . . .” However, the district court

granted McCarter’s motion for a new trial. The government appeals. McCarter concedes

that jurisdiction exists under 18 U.S.C. § 37311 and 28 U.S.C. § 1291 and does not

contest the timeliness of the government’s appeal.2

       When the district court grants a motion for new trial, we determine whether the

district court’s ruling was supported by the record, and review for an abuse of discretion.

United States v. Robertson, 110 F.3d 1113, 1116-17 (5th Cir. 1997). However, although

the district court’s discretion is broad, there are limits. Id. at 1118. “The court may not

reweigh the evidence and set aside the verdict simply because it feels some other result



       1
        18 U.S.C. § 3731 provides in pertinent part:
       In a criminal case an appeal by the United States shall lie to a court of appeals from
       a decision, judgment or order of a district court . . . granting a new trial after verdict
       or judgment . . . except that no appeal shall lie where the double jeopardy clause of
       the United States Constitution prohibits further prosecution.
       2
         McCarter filed a cross-appeal reiterating the argument that the evidence was insufficient to
convict and asserting that double jeopardy would bar a new trial. The government filed a motion to
dismiss the cross-appeal for lack of jurisdiction due to the fact that the governm ent’s appeal was
interlocutory and not from a final order. This court granted the motion and dismissed the cross-
appeal. See United States v. O’Keefe, 128 F.3d 885, 890 (5th Cir. 1997) (“18 U.S.C. § 3731 []
governs interlocutory appeals by the government from orders granting new trial.”).

                                                  -2-
would be more reasonable.” Id. (citation omitted). “The evidence must preponderate

heavily against the verdict, such that it would be a miscarriage of justice to let the verdict

stand.” Id. (citation omitted). In this case, the district court noted that the evidence

concerning McCarter’s knowledge of the drugs was all circumstantial and

“preponderate[d] heavily against the verdict.” The district court concluded that while

“the evidence is legally sufficient, it would be a miscarriage of justice to let this verdict

stand.”

        To establish a violation under 21 U.S.C. §§ 8413 and 846,4 the government was

required to prove beyond a reasonable doubt (1) the existence of an agreement between

two or more persons to possess with the intent to distribute cocaine, (2) the defendant’s

knowledge of the unlawful purpose of the agreement, (3) the defendant’s intention to join

in the agreement, and (4) the defendant’s voluntary participation in the conspiracy.

Court’s Instructions to the Jury, p. 14 (R. at 301); see Robertson, 110 F.3d at 1118-19.

McCarter concedes his involvement in the conspiracy but maintains he never knew drugs

were being stolen along with the money.5



        3
         21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance . . . .”
        4
         21 U.S.C. § 846 provides, “Any person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties as those described for the offense, the
commission of which was the object of the attempt or conspiracy.”
        5
        In his motion for a new trial, McCarter did not raise the issue of severance. Therefore, he
has waived that argument. See, c.f., United States v. Wylie, 919 F.2d 969, 978 (5th Cir. 1990).

                                                  -3-
       The government presented evidence that there was a conspiracy to steal drugs and

money on January 7, 1999, which involved a Drug Enforcement Administration (“DEA”)

confidential informant (“CI”) who was a drug courier and had previously been arrested

for possession of over two kilograms of cocaine. The CI was to inform the DEA about

drug trafficking deals. The CI met Edward Dewayne Russell (“Russell”) (McCarter’s co-

defendant) when she was employed in the entertainment business. Both Russell and

McCarter worked for Rap-a-Lot Records. Russell (frontman for the conspiracy) had been

under investigation by the DEA for drug trafficking since July 1998.

       In approximately October 1998, after seeing the CI speaking to some well-known

drug traffickers, Russell told the CI that if she “ever wanted to make some real money, let

me know.” The CI understood Russell to mean that he had a scheme to steal money

and/or drugs from the drug dealers. (There was cumulative evidence presented about

Russell’s requests on this topic.) In December 1998, the CI proceeded with the DEA plan

to involve Russell in a theft. The CI told Russell two drug couriers she knew were

coming to town and that she would assist Russell in robbing them. The planning between

the CI and Russell continued, eventually evolving to robbing the dealers of both the

money and the drugs they were to purchase. (Later conversations repeatedly confirmed

the fact that it was to be a robbery of both money and drugs.) Russell informed the CI

that he planned to bring Cedric Rodgers (“Rodgers”) into the deal. Rodgers was a

Houston police officer and McCarter’s cousin.

       On January 6, 1999 (one day before the robbery), the CI and Russell spoke on the

                                            -4-
telephone twice and met in person to finalize the robbery plans. Russell discussed a

possible scenario where one of Russell’s associates would approach the targeted victims

and talk to them in a Puerto Rican accent. Evidence was presented that McCarter and

Rodgers had previously planned to steal $30,000 in drug money. In that plan, McCarter

spoke to the victim using a Puerto Rican accent. The scheme collapsed when

unsuspecting fellow officers stopped to assist Rodgers in his “arrest” of McCarter and

defeated Rodgers plan to confiscate the money. Also on January 6, there were four phone

calls from McCarter to Russell.

       On the day of the robbery, one of the ten calls made by the CI to Russell was at

6:38 p.m., at which time she gave Russell the location of the motel and the room number

where she and the supposed victims were waiting. At 7:06 p.m., Russell called McCarter.

At 7:20 p.m., McCarter paged Rodgers, and shortly thereafter spoke with Russell on the

phone. Russell then called the CI to tell her he was sending someone over to the motel to

check out the area. He told the CI he was sending over “Cash” (McCarter’s nickname),

whom the CI knew. Russell told the CI that McCarter was the “engineer.” McCarter

concedes that it was understood he was “more of an engineer,” and not someone without

“experience.” Russell asked the CI for all the location information and told her he would

pass it on to McCarter. The CI testified that she understood it was McCarter who was to

be in control of the robbery.

       McCarter called Russell again and then paged Rodgers a second time at 7:32 p.m.

At about 8:00 or 8:30 p.m., DEA agents arrived with the CI at the location and placed a

                                           -5-
cooler with six kilograms of cocaine and $90,000 of serialized bills inside a motel room

with the CI. Approximately twenty minutes later, the CI called Russell and told him

everything was ready. At 9:22 p.m., Russell spoke with McCarter on the telephone. At

10:08 p.m., McCarter spoke with Russell, and at 10:10 p.m., Russell called the CI, at

which time she told Russell that “her people” had purchased the cocaine. She also told

him the “money and food” were in the motel room in an ice cooler. At 10:18 p.m.,

McCarter paged Rodgers again. At 10:37 p.m., one of the co-conspirators paged

McCarter and at 10:45 p.m., McCarter spoke with the co-conspirator on the telephone.

McCarter admits that the circumstantial evidence suggests that Russell contacted

McCarter, who in turn enlisted two other co-conspirators who would actually commit the

theft.

         Russell spoke with the CI at 10:53 p.m. and asked if “the money was in the cooler,

too.” The CI testified that she understand him to be asking if the money was in the cooler

in addition to the cocaine, and she told him “everything” was in the cooler. Russell told

her they were about 30 seconds away. The DEA then observed a black Volvo and a

maroon Camaro pull in front of an appliance store near the motel. The cars pulled next to

each other for a short time, at which time they seemed to be having a conversation. The

Volvo then drove to the motel with the Camaro following. Russell called the CI at 10:57

p.m. and she testified that Russell acknowledged someone was with him and she

understood that Russell was talking to someone about what was to happen. The Volvo

pulled into the motel parking lot at about 10:59 p.m. McCarter was driving with Russell

                                             -6-
in the passenger seat. Two other co-conspirators, one of whom McCarter had spoken

with earlier, were in the Camaro. The two co-conspirators in the Camaro ran to the motel

room and took the cooler.

       Given McCarter’s close involvement in the conspiracy, his leadership role, and his

frequent consultations with Russell on the planning and execution of the robbery, it is not

unreasonable for the jury to conclude that McCarter was aware of all aspects of the

conspiracy, and, more specifically, that there would be a double benefit of both money

and drugs. It is not unreasonable to infer that as one of the planners, McCarter was aware

that they had to allow for additional time in order for the fictitious drug purchasers to

locate and purchase the drugs they supposedly had told the CI they wished to acquire.

Testimony and recorded conversations confirm that Russell intended to arrive after the CI

informed him that the drugs were also in the motel room. Even at such a late point in

time as when Russell and McCarter were in the car together traveling to the motel to

commit the robbery and Russell had conversations with the CI about “everything” being

in the cooler, if they had not already concluded so, the jury could reasonably have

inferred that McCarter was listening to the conversations and was aware that both money

and drugs were to be taken.

       In response to McCarter’s motion for a new trial, the district court concluded that

the evidence was legally sufficient to support the jury’s conviction. The government is

not required to offer only direct evidence. See Robertson, 110 F.3d at 1119. We trust

that the jury carefully followed the instructions in weighing the evidence and arriving at

                                             -7-
its verdict.6 See Opper v. United States, 348 U.S. 84, 95 (1954) (“Our theory of trial

relies upon the ability of the jury to follow instructions.”). Even though circumstantial,

we conclude that there was sufficient evidence for a rational jury to find all of the

elements of the crime beyond a reasonable doubt and cannot say that the jury’s verdict

was against the weight of the evidence, or constituted a miscarriage of justice. See id.

Therefore, we reverse the district court’s order of a new trial and remand with

instructions to reinstate the jury’s verdict of guilty.

       REVERSED AND REMANDED.




       6
        McCarter was also charged with being a felon in possession of ammunition under 18 U.S.C.
§ 922(g). The jury found him not guilty of that charge.

                                               -8-
