                                        United States Court of Appeals
                                                 Fifth Circuit
                                              F I L E D
IN THE UNITED STATES COURT OF APPEALS
         FOR THE FIFTH CIRCUIT               December 16, 2004

       ))))))))))))))))))))))))))         Charles R. Fulbruge III
                                                  Clerk
             No. 03-31098

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       UNITED STATES OF AMERICA

          Plaintiff-Appellee

                  vs.

          JAMES EDWARD PARKS

         Defendant-Appellant

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             No. 04-30011

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       UNITED STATES OF AMERICA

          Plaintiff-Appellee

                  vs.

              HOYLE WOOD

         Defendant-Appellant

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             No. 04-30012

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       UNITED STATES OF AMERICA

          Plaintiff-Appellee

                  vs.

        ANTHONY MORRIS JOHNSON

         Defendant-Appellant
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                             No. 04-30021

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                       UNITED STATES OF AMERICA

                          Plaintiff-Appellee

                                  vs.

                          STEVEN HOYLE WOOD

                         Defendant-Appellant


          Appeals from the United States District Court
              for the Western District of Louisiana


Before REAVLEY, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     This is a drug conspiracy case involving four Defendants-

appellants: Anthony Johnson, James Parks, Steven Wood, and Hoyle

Wood (“Defendants”).    All Defendants challenge the district

court’s denial of their motions to suppress a Federal Express

(“FedEx”) package containing crystal methamphetamine.    Defendant

Parks additionally challenges the propriety of venue in the

Western District of Louisiana; the sufficiency of the evidence to

support his conviction; and the admission of a DEA agent’s



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                   1
testimony, which he claims violated Brady v. Maryland.    Parks

also claims that a note passed from the trial judge to the jury

improperly induced the jury to find Parks guilty.   Because none

of these arguments have merit, we will affirm the convictions of

all four Defendants.

I. Background

     On August 27, 2002, FedEx employee Ernest Stroud was working

as a “gatekeeper” at the Shreveport, Louisiana terminal for

FedEx.   Gatekeepers deal with problem packages.   Stroud came into

possession of a package sent on the Grand Cane route that had

been returned because there was no legible address or telephone

number and no tracking information.   Stroud opened the package in

order to find an address, or other identifying information, which

would allow FedEx to deliver the package.   The ends of the

package were open, and it contained what Stroud described as some

“crystalized, powdery, white looking stuff.”   Stroud believed the

substance to be crystal methamphetamine and turned the box over

to his manager, Corey Young.   Young testified that when the

address on a package cannot be read, FedEx procedure is for an

employee to open the package in the hopes of finding

correspondence with an address or phone number.    Young testified

that the contents resembled little pieces of ice or crystals.

Stroud told Young that he believed the substance to be crystal or

“ice” methamphetamine.



                                 2
     That day, Young received a call from a woman who was

hysterically searching for a package.    The caller was later

identified as Lauren Wommack.    Wommack told Young that she would

lose her job if she did not get the package that day.    Young told

Wommack to come to the facility before 8pm and FedEx would

attempt to locate the package.

     Young recalled that about a month or two prior, Agent Webb

of the Drug Enforcement Agency (“DEA”) had asked him to be on the

lookout for any packages addressed to Lauren Wommack of Grand

Cane.   When Young realized that the hysterical caller might be

Wommack, he called Agent Webb.

     Agent Webb, the Shreveport Police, and Young then

orchestrated a controlled delivery of the package.    Young

repackaged the contents for delivery.    Wommack arrived at the

FedEx terminal and handed one of the workers a slip of paper

containing the tracking number of the package and the phone

number of Steven Wood.   While Wommack waited for the package,

Shreveport police cars pulled into the parking lot.    Because of

the police presence, Wommack refused to sign for the package.

After tests confirmed that the package contained methamphetamine,

Wommack was arrested.

     Wommack cooperated with police.    She told them that the

package was addressed to her but she had instructions from

Anthony Johnson to deliver the contents to Hoyle and Steven Wood



                                  3
(collectively “the Woods”).    Pursuant to a police directive,

Wommack made plans to meet with Johnson at a Holiday Inn in

Minden, Louisiana.   When Johnson arrived, he was arrested.     The

Woods were also arrested based on information police learned from

Wommack.

     Johnson also cooperated with police and agreed to make phone

calls to his buyers.   Some of these conversations were taped.

One of the taped conversations with James Parks was lost before

trial and is now the subject of Parks’s Brady challenge.

     DEA agents in Tennessee assisted in a controlled delivery

from Johnson to Parks.   Agents searched Parks’s residence

pursuant to a warrant obtained before, but executed after, the

delivery.   They found a piece of paper with Johnson’s phone

number and the tracking number of the FedEx package sent in the

controlled delivery.   Parks was then arrested.

     Wommack, Johnson, Parks, and the Woods were indicted on one

count of conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a) and 846.

Johnson was also charged with an additional count of possession

with intent to distribute.    Wommack cooperated with police,

pleaded guilty, and is not a party to this appeal.

     All four remaining Defendants filed motions to suppress the

drugs seized from the FedEx package addressed to Wommack.     The

district court denied their motions.    Johnson and the Woods all



                                  4
pleaded guilty, reserving their right to appeal the denial of

their motions to suppress.   That is the only issue they have

raised on appeal.

     Parks tried his case to a jury and was convicted.      In

addition to challenging the denial of his motion to suppress,

Parks challenges his conviction on four additional grounds.

II. Whether the District Court Properly Denied Defendants’
Motions to Suppress

     A. Standard of Review

     When a district court denies a defendant’s motion to

suppress on Fourth Amendment grounds, we review the district

court’s fact findings for clear error and its conclusion as to

the constitutionality of the search de novo.     United States v.

Runyan, 275 F.3d 449, 456 (5th Cir. 2001).     We view the facts in

the light most favorable to the prevailing party.     Id.   The

defendant has the burden of proving a Fourth Amendment violation

by a preponderance of the evidence; once the defendant has met

this burden, the burden shifts to the government to prove that an

exception to the exclusionary rule applies.1    See id.

     B. Discussion

          1. Standing of Parks, Steven Wood, and Hoyle Wood

     Even if a search is unreasonable, for the exclusionary rule

to apply in favor of a particular defendant he must prove that


     1
      The government has not alleged that any exception applies
to the facts of this case.

                                 5
his own Fourth Amendment rights were violated.     Rakas v.

Illinois, 439 U.S. 128, 133 (1978) (“Fourth Amendment rights are

personal rights which ... may not be vicariously asserted.”).

The government concedes that Johnson, as the sender of the FedEx

package, had a reasonable expectation of privacy in its contents.

Therefore, only the standing of Parks and the Woods is at issue

in this case.

     The Defendants first claim that the government waived its

standing challenge because it did not raise the issue before the

district court.    The seminal case on waiver of standing is

Steagald v. United States, 451 U.S. 204 (1981).     In Steagald, the

Supreme Court held that “[t]he Government ... may lose its right

to raise [the standing issue on appeal] when it has made contrary

assertions in the courts below, when it has acquiesced in

contrary findings by those courts, or when it has failed to raise

such questions in a timely fashion during the litigation.”     Id.

at 209.    In United States v. Irizarry, however, we distinguished

the situation where the government waives its challenge to a

defendant’s standing from the situation where the defendant does

not carry its burden of proof on the standing issue in the first

place.    673 F.2d 554, 556–57 (5th Cir. 1982).   In that case, we

stated:

     We realize that the government did not challenge [the
     defendant’s] standing, either before the trial court or
     on appeal. That fact, however, does not alone bring us
     within the rule of [Steagald v. United States], in

                                  6
     which a defendant’s standing was held to be beyond
     further challenge. In [Steagald] the government failed
     to challenge facts from which the defendant’s standing
     could reasonably have been inferred. In this case,
     [the defendant] never carried his initial burden of
     offering facts from which a court might reasonably
     infer his standing.

Id. (citations omitted); United States v. Torres, 32 F.3d 225,

229 (7th Cir. 1994) (“The government does not waive its right to

challenge a defendant’s standing when no facts were adduced at

the hearing from which the government could reasonably have

inferred the existence of the defendant's standing.”).

     Here, the Defendants have not alleged any Steagald-like

behavior on the part of the government.   Accordingly, the

government has not waived its standing challenge, and we will

consider the issue.

     Parks’s claimed connection to the FedEx package is that its

search led to the arrest of Johnson, whose cooperation led to the

arrest of Parks.   The Woods are similarly situated: neither were

listed as an addressee on the package, but Wommack testified that

she had instructions from Johnson to deliver the contents of the

package to the Woods.   Neither connection is sufficient.

     It is well-settled that a defendant’s status as a co-

conspirator, without more, is not enough to confer standing on

him for Fourth Amendment purposes.   United States v. Padilla, 508

U.S. 77, 81 (1993).   No Defendant has articulated facts which

would bring his case outside the purview of this rule.   Moreover,


                                 7
our decision in United States v. Pierce, 959 F.2d 1297 (5th Cir.

1992), is directly on point.      There, Evans presented a package to

an American Airlines employee, McAdams, at LAX airport for

shipment to Tyler, Texas.     Id. at 1299.         Evans told McAdams that

the package contained an iron, but McAdams was suspicious because

the package was too light to contain an iron.            Id.   He opened it

after Evans left, and upon discovering cocaine, alerted

authorities who arranged for a controlled delivery to Crumpton.

Id. at 1299.   Crumpton was arrested when she picked up the

package at the Tyler airport.       Id. at 1300.       Pierce, who had

driven Crumpton to the airport and who was waiting for her in the

car, was also arrested.     Id.

     Addressing Pierce’s claim that the search at LAX violated

the Fourth Amendment, we stated:

     It is uncontested that the package (with cocaine) was
     neither sent by, nor addressed to, Pierce. Arguably, a
     defendant who is neither the sender nor the addressee
     of a package has no privacy interest in it, and,
     accordingly, no standing to assert Fourth Amendment
     objections to its search. And 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 it was addressed to,
     and received by another——[Crumpton].

Id. at 1303 (citations omitted).            Because Pierce’s “only

[admitted] interest in suppressing the package and its contents

[was] to avoid its evidentiary force against him,” we rejected

his Fourth Amendment claim.       Id.       Both the Fourth and Seventh



                                        8
Circuits have also rejected the Fourth Amendment challenges of

similarly-situated defendants on standing grounds.    See United

States v. Givens, 733 F.2d 339, 341–42 (4th Cir. 1984); United

States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988)(both holding

that a defendant who was neither the sender nor the addressee of

the package lacked standing to contest the legality of its

search).   Here, neither Parks, Steven Wood, nor Hoyle Wood have

any interest in the FedEx package other than avoiding its

evidentiary force against them.    They lack standing to challenge

the search.    Accordingly, we affirm their convictions.

           2. Fourth Amendment Violation

     After Wommack refused to accept the FedEx package, law

enforcement opened it and conducted field tests on it, confirming

that the crystalized powder was, indeed, methamphetamine.

Johnson argues that the opening of the package and the testing of

its contents were unreasonable searches that violated the Fourth

Amendment.    We disagree.

     This case is controlled by the Supreme Court’s opinion in

United States v. Jacobsen, 466 U.S. 109 (1984), a case with

similar facts.2   First, “Jacobsen directs courts to inquire

whether the government learned something from the police search

that it could not have learned from the private searcher’s



     2
      Johnson argues that his case is distinguishable from
Jacobsen in several ways. We find those arguments unavailing.

                                  9
testimony and, if so, whether the defendant had a legitimate

expectation of privacy in that information.”      United States v.

Runyan, 275 F.3d 449, 459–61 (5th Cir. 2001).     Here, when law

enforcement officers initially opened the package, they did not

learn anything other than that it contained white powder.       FedEx

employees Stroud and Young, who had previously viewed the

package’s contents, would have been able to testify to as much.

See Jacobsen, 466 U.S. at 119 (“Respondents do not dispute that

the Government could utilize the Federal Express employees’

testimony concerning the contents of the package.”).     This

initial intrusion into Johnson’s privacy, if any, did not exceed

the scope of the private search that had already taken place.

See id.   Under Jacobsen, this act was not a search within the

meaning of the Fourth Amendment.     Id.

     Second, Jacobsen squarely held that field tests which can

only detect that a substance is a particular drug (be it cocaine

or methamphetamine), but cannot detect what that substance is if

the test results are negative, are not searches.      Id. at 123.

Johnson has not asserted that the field tests conducted in this

case could determine what the powder actually was, if it was not

methamphetamine.   Therefore, the tests conducted here were also

not searches within the meaning of the Fourth Amendment.

     Jacobsen requires us to reject Johnson’s Fourth Amendment

argument.   We therefore affirm his conviction.


                                10
III. Parks’s Additional Arguments

     Parks asks us to reverse his conviction on four additional

grounds.

     A. Venue

     Parks first argues that venue was improper in the Western

District of Louisiana.   We generally review venue questions for

abuse of discretion, but since “[a] district court by definition

abuses its discretion when it makes an error of law,” the

standard of review is effectively de novo.   United States v.

Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002) (quoting Koon v.

United States, 518 U.S. 81, 100 (1996)).

     Parks was charged with conspiracy to possess with intent to

distribute a certain amount of methamphetamine.   Therefore, venue

is determined under 18 U.S.C. § 3237(a), which provides:

     (a) Except as otherwise expressly provided by enactment
     of Congress, any offense against the United States
     begun in one district and completed in another, or
     committed in more than one district, may be inquired of
     and prosecuted in any district in which such offense
     was begun, continued, or completed.
          Any offense involving the use of the mails,
     transportation in interstate or foreign commerce, or
     the importation of an object or person into the United
     States is a continuing offense and, except as otherwise
     expressly provided by enactment of Congress, may be
     inquired of and prosecuted in any district from,
     through, or into which such commerce, mail matter, or
     imported object or person moves.

18 U.S.C. § 3237(a) (2000).   Under § 3237(a), then, Parks can be

prosecuted in any district in which the conspiracy began,

continued, or was completed, even if he has never set foot in

                                11
that district.   United States v. Caldwell, 16 F.3d 623, 624 (5th

Cir. 1994); Hyde v. United States, 225 U.S. 347, 362 (1912).

     Parks argues that because the jury found him guilty of

conspiracy to possess/distribute more than 5 grams of

methamphetamine, instead of the 50 grams for which he was

indicted, the jury must have based its decision solely on the

controlled delivery transaction from Johnson in Mississippi to

Parks in Tennessee.   According to Parks, since none of the acts

relating to the controlled delivery took place in the Western

District of Louisiana, he could not be tried there.

     Yet Parks was convicted of being part of the overall

conspiracy; the jury just limited his liability to a lesser

amount of methamphetamine than that charged.   Moreover, multiple

overt acts took place in the Shreveport area: methamphetamine was

sent to Shreveport where Wommack attempted to pick it up; Wommack

told police that during the summer of 2002, Johnson had sent

approximately eight shipments of methamphetamine to her in

Shreveport; Johnson met with Wommack in Minden, Louisiana, where

he was arrested; and while cooperating with police, Johnson made

several phone calls to Parks from the Shreveport area.   See

United States v. Caldwell, 16 F.3d 623, 625 (5th Cir.

1994)(holding that venue was proper in the district where calls

were received); United States v. Strickland, 493 F.2d 182, 187

(5th Cir. 1974) (upholding venue in the Northern District of


                                12
Georgia on account of telephone calls made to and from Atlanta).

Accordingly, we reject Parks’s venue challenge.

     B. The Sufficiency of the Evidence

     Parks claims that there was insufficient evidence that he

intended to distribute the drugs.     The standard of review for a

sufficiency challenge is whether “a rational trier of fact could

have found that the evidence establishes the essential elements

of the offense beyond a reasonable doubt.”     United States v.

Brugman, 364 F.3d 613, 615 (5th Cir. 2004) (quoting United States

v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003)).     We review the

evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices to be made in

support of the jury's verdict.   Id. (citing United States v.

Bass, 310 F.3d 321, 325 (5th Cir. 2002)).    The evidence need not

exclude every reasonable hypothesis of innocence, and the jury is

free to choose among reasonable interpretations of the evidence.

Id. (citing United States v. Perrien, 274 F.3d 939–40 (5th Cir.

2001)).

     Johnson testified at trial that he had sent methamphetamine

to Parks on two or three different occasions, and that Parks was

getting the drugs for another individual named Andy.    When

Johnson was arrested, officers found an airbill showing that a

“Randy Johnson” had sent a FedEx package to “J. Parks.”    Johnson

also testified that during one telephone conversation, he told


                                 13
Parks that “glass” (crystal methamphetamine) was on its way and

Parks responded, “I thought you sent the regular” (powder

methamphetamine).   According to Johnson’s testimony, Parks then

stated, “But there isn’t that much of that [“glass”] up here so

that’s okay.”

     In United States v. Medina, we upheld a conspiracy

conviction on the sole testimony of a co-conspirator, stating

that “[a]s long as it is not factually insubstantial or

incredible, the uncorroborated testimony of a co-conspirator,

even one who has chosen to cooperate with the government in

exchange for non-prosecution or leniency, may be constitutionally

sufficient evidence to convict.”     161 F.3d 867, 872–73 (5th Cir.

1998) (quoting United States v. Westbrook, 119 F.3d 1176, 1189

(5th Cir. 1997)).   Where the co-conspirator’s testimony is not

factually impossible or incredible, the jury’s decision to

believe the testimony must be respected.     Id. at 873; United

States v. Landerman, 109 F.3d 1053, 1067–68 (5th Cir. 1997);

United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992).

Here, Johnson’s testimony was sufficient to support the jury’s

finding that Parks intended to distribute the drugs.

     C. Brady Challenge

     After Johnson was arrested, he made several phone calls to

his buyers, including Parks, that were taped by police.    One phone

call to Parks was inexplicably lost by the government before


                                14
trial.    A DEA agent who heard the taped conversation testified to

its contents at Parks’s trial.     Parks claims that the agent’s

testimony violated Brady v. Maryland, 373 U.S. 83 (1963), because

he did not discuss a drug transaction on the missing tape,

contrary to the agent’s testimony.

     Prosecutorial suppression of material evidence favorable to

an accused violates due process.        Brady, 373 U.S. at 87 (1963).

To succeed on a Brady challenge, a defendant must prove three

things: (1) that the evidence was favorable, (2) that the state

suppressed the evidence, and (3)that the evidence was material.

United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000).       Parks

cannot meet this test.

     Specifically, Parks has not alleged any misconduct on the

part of the government, i.e., that the government suppressed the

tape.    In United States v. Lassiter, we rejected a defendant’s

Brady challenge because “[the defendant] ha[d] not claimed that

the prosecution suppressed evidence, only that the prosecution

lost evidence.”   819 F.2d 84, 86 (5th Cir. 1987).      That is all

Parks alleges here.   We therefore reject his Brady challenge.

     D. Note from Trial Judge to Jurors

     During jury deliberations, the jury sent a note to the judge

stating, “We need some direction.       Please come to the jury room.”

In response, the judge sent a handwritten note to the jury, which

stated:


                                   15
     I am sorry I can’t do as you ask. If you write your
     questions I will first consult with the lawyers before I
     answer. Then I will answer in writing——so if I do it
     wrong it will be in the record for the appeals court. Or
     we can bring you back into the court room.

(Emphasis added).    Parks claims that the portion of the note

referring to the appellate court improperly induced the jury to

find Parks guilty.

     The four cases cited by Parks are not on point.   Those cases

concern a trial judge’s ex parte communication with a juror; as

Parks concedes, however, that was not the case here.    See United

States v. Gypsum, 438 U.S. 422, 460 (1978) (warning of the dangers

inherent in a judge’s ex parte communication with jurors); United

States v. Peters, 349 F.3d 842, 846–47 (5th Cir. 2003) (reversing

the defendants’ convictions where trial judge met ex parte with a

juror because of the risk that the judge insisted on a verdict);

United States v. Cowan, 819 F.2d 89, 91 (5th Cir. 1987) (reversing

the defendant’s conviction after the judge met ex parte with each

juror about the jury’s obligation to reach a verdict); Demetree v.

United States, 207 F.2d 892, 896 (5th Cir. 1953) (reversing a

defendant’s conviction after the judge bargained with jury

foreperson ex parte that if the jury returned guilty verdict the

defendant would only get probation or a fine).    The government

responds that the judge’s note was merely an explanation to the

jury that all correspondence must be in writing.    The government

has the better argument.   Accordingly, we affirm Parks’s


                                  16
conviction.

IV. Conclusion

     For the foregoing reasons, we AFFIRM the convictions of all

Defendants.

AFFIRMED.




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