*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-21141

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELICIA ARMSTEAD,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-00-CR-257-2)

_________________________________________________________________

October 23, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Felicia Armstead appeals her convictions for conspiracy to

distribute cocaine base (crack) and cocaine powder and for

possession with the intent to distribute more than 50 grams of

crack. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a), (b)(1), 846.

Armstead challenges the sufficiency of the evidence on the

substantive, but not the conspiracy, count. She contends that the

evidence fails to show that she possessed with the intent to

distribute crack or that she aided and abetted codefendant Guy

Williams’ possession of the crack. Thus, criminal liability can
2

ensue only through coconspirator liability. See Pinkerton v.

United States, 328 U.S. 640, 647-48 (1946); United States v.

Wilson, 105 F.3d 219, 221 (5th Cir.)(“a party to a conspiracy may

be held liable for the substantive offenses of a co-conspirator as

long as the acts were reasonably foreseeable and done in

furtherance of the conspiracy regardless of whether he had

knowledge of or participated in the substantive acts”), cert.

denied, 522 U.S. 847 (1997). Armstead asserts that such liability

is not supported by the evidence because the evidence fails to

demonstrate that the large amount of cocaine and the manufacturing

of crack by Williams were reasonably foreseeable to her. 

In reviewing the sufficiency of the evidence, we must

determine “whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt”. United

States v. Pineda-Ortuno, 952 F.2d 98, 102 (5th Cir.), cert. denied,

504 U.S. 928 (1992). The evidence is viewed “most favorably to the

government, drawing all reasonable inferences and credibility

choices in favor of supporting the jury’s verdict”. Id.

Officer Seymour testified that Williams had been known as a

drug trafficker since 1992; and Officer Seymour knew Armstead to

have frequented 209 4th Street, a crack house, for approximately

eight to nine years. Armstead testified that she had known

Williams, her boyfriend, for six to seven years. The audio and

visual recordings revealed Armstead was involved in the drug

trafficking activity coming from 209 4th Street. Armstead was at

the residence on the night in question. The police seized items

from the kitchen of the vacant residence, items which are known to
3

be used in manufacturing crack. Based on this evidence, and

drawing all reasonable inferences and credibility choices in favor

of the verdict, a reasonable jury could have found beyond a

reasonable doubt that Williams’ possession of crack at 209 4th

Street was reasonably foreseeable to Armstead. Accordingly, the

evidence was sufficient to convict Armstead of the substantive

count.

Concerning her conspiracy conviction, Armstead contends that

the district court’s charge failed to instruct the jury properly on

the drug conspiracy as alleged in the indictment, which included an

allegation of an overt act related to Armstead. She asserts that

the district court’s rejection of her proposed instruction, and

thus, the district court’s failure to instruct the jury concerning

the alleged overt act, amounted to an impermissible constructive

amendment of the indictment. Armstead concedes that her position

is unsupported by authority. 

We review for an abuse of discretion the rejection of a

requested jury instruction. United States v. Morrow, 177 F.3d 272,

292 (5th Cir.), cert. denied, 528 U.S. 932 (1999). It is

reversible error to reject an instruction “only if the requested

jury instruction ‘(1) was a substantially correct statement of the

law, (2) was not substantially covered in the charge as a whole,

and (3) concerned an important point in the trial, the omission of

which seriously impaired the defendant’s ability to present an

effective defense’”. Id. (quoting United States v. Asibor, 109

F.3d 1023, 1034 (5th Cir.), cert. denied, 522 U.S. 902 (1997)). It

is “‘reversible error per se if there has been a modification at
4

trial of the elements of the crime charged’”. United States v.

Nuñez, 180 F.3d 227, 230-31 (5th Cir. 1999)(quoting United States

v. Salinas, 601 F.2d 1279, 1290 (5th Cir. 1979)). 

“[A] jury instruction as to an overt act need not be given for

an indictment charging conspiracy to violate the Drug Control Act,

21 U.S.C. §§ 841 and 846”. United States v. Brown, 692 F.2d 345,

348 (5th Cir. 1982). Thus, the indictment was not constructively

amended by the lack of an instruction covering overt acts of the

cocaine conspiracy. Therefore, the rejection of Armstead’s

proposed instruction was not an abuse of discretion. 

AFFIRMED