     Case: 11-50002     Document: 00511677731         Page: 1     Date Filed: 11/28/2011




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

                                                                            FILED
                                                                        November 28, 2011
                                     No. 11-50002
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMES CASEY MCDANIEL; CLIFFORD RANDALL POGUE, also known as
Clifford Randall Poque,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:10-CR-67-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendants-Appellants James Casey McDaniel and Clifford Randall Pogue
appeal their convictions for conspiracy to possess with intent to distribute
methamphetamine. McDaniel asserts that the evidence was insufficient to
establish a conspiracy.        Pogue similarly contends that the evidence was
insufficient to establish his participation in the conspiracy. McDaniel’s former
girlfriend testified that McDaniel and Pogue had a storage unit where she


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50002

purchased methamphetamine from McDaniel.           Other witnesses confirmed
buying and using the drug at the storage building, including a witness who
observed a friend meeting there with Pogue and McDaniel and returning to his
vehicle with seven to fourteen grams of methamphetamine. Another witness
testified that he used Pogue as an intermediary in his drug transactions with
McDaniel and that he paid off his drug debt to McDaniel by working on Pogue’s
mother’s car.
      When the evidence, all reasonable inferences therefrom, and all credibility
determinations are viewed in the light most favorable to the government, see
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), the evidence, although
circumstantial, was sufficient for a reasonable trier of fact to find beyond a
reasonable doubt that a tacit, mutual agreement existed between McDaniel and
Pogue for the common purpose of possessing methamphetamine with intent to
distribute. See United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005);
United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995). The jury’s
construction was reasonable, and we will not second-guess it. See United States
v. Williams, 264 F.3d 561, 576 (5th Cir. 2001); United States v. Zuniga, 18 F.3d
1254, 1260 (5th Cir. 1994).
      McDaniel and Pogue also challenge the sufficiency of the evidence to show
that the substance allegedly distributed contained a detectable amount of
methamphetamine, inasmuch as no physical evidence was recovered. Each
person who testified about his or her drug transactions with McDaniel and
Pogue was a regular user of methamphetamine with sufficient personal
knowledge to identify it. Their testimony was sufficient to allow a reasonable
factfinder to find this element beyond a reasonable double. See Jaramillo, 42
F.3d at 922-23.
      Finally Pogue and McDaniel contend that the district court erred by
denying their motions for dismissal under the Speedy Trial Act. Pogue asserts
that three continuances sought by the government did not toll the limitation

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                                  No. 11-50002

period. McDaniel asserts that the government’s third motion for a continuance
did not toll the limitation period.
      The 70-day window under the Speedy Trial Act began on April 15, 2010,
when the appellants made their initial appearance before the district court. See
United States v. Parker, 505 F.3d 323, 326 (5th Cir. 2007). The limitation period
ran for three days, until April 19, 2010, when McDaniel filed a motion for leave
to file additional pre-trial motions. The district court granted that motion on
April 23, 2010. See United States v. Harris, 566 F.3d 422, 429 (5th Cir. 2009).
Another 44 days passed before June 7, 2010, when McDaniel filed a motion to
continue the trial date. The district court granted that motion and set the trial
date for August 2, 2010. The court excluded from the speedy trial calculation the
period from June 8, 2010, to August 2, 2010, ruling that the continuance served
the ends of justice and outweighed speedy trial concerns because it allowed
McDaniel time to prepare for trial. See United States v. Westbrook, 119 F.3d
1176, 1186 (5th Cir. 1997). Likewise, the time between McDaniel’s July 21,
2010, motion in limine to exclude evidence of extraneous offenses and the
hearing on the motion on October 18, 2010, also was excludable. See United
States v. Santoyo, 890 F.2d 726, 728 (5th Cir. 1989). Accordingly, even if the
government’s motions did not toll the 70-day limitation period, only 47 non-
excludable days passed before the trial began on October 19, 2010. The district
court did not err in denying the motions to dismiss.
      AFFIRMED.




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