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that this opinion should not be published and is not precedent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

1 United States Court of Appeals

Fifth Circuit



## FILED

March 28, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-30145

UNITED STATES OF AMERICA

Plaintiff - Appellee,

VERSUS

LARRY GLEN WYCHE,

Defendant - Appellant.

Appeal from the United States District Court

For the Western District of Louisiana, Shreveport

(00-CR-50085-1)

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM: *

BACKGROUND

Appellant Larry Glenn Wyche (“Wyche”) was indicted for

conspiracy to possess with intent to distribute more than 50 grams

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 8462

(Count One), for aiding and abetting the possession with intent to

distribute more than 50 grams of methamphetamine, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two), and criminal

forfeiture under 21 U.S.C. § 853 (Count Three). On August 30,

2001, after a three-day jury trial, a j ury found Wyche guilty of

the first count, but was undecided on the second count, and the

jury also found that the property described in Count Three was

subject to forfeiture. Wyche now appeals raising several issues.

The relevant facts, established at trial are as follows.

Wyche was in the business of putting on rodeos and bull riding

contests and raising bucking stock to lease or sell to rodeo

proprietors. The family business, called the Diamond L Ranch and

Rodeo Company, operated out of Adair County, Oklahoma, where Wyche

lived.

Ernest Mathes, a resident of Doyl ine, Louisiana, bought

methamphetamine from Wyche on five or six occasions b eginning in

January 1995. On at least two of those occasions, Wyche met Mathes

at an Oklahoma convenience store and sold him one pound of

methamphetamine for $20,000.00. On another occasion they met at an

Arkansas convenience store an d exchanged $10,000.00 for one-half

pound of methamphetamine. At trial, Mathes testified that he knew

methamphetamine was available by calling Wyche and using the code

word “bulls” for methamphetamine. Mathes is not a cattle raiser or

rodeo proprietor and has had no association with bulls.

In three phone calls, recorded by the government, in late 19963

Mathes asked Wyche whether the bulls were in. In each call, Wyche

said they were not in yet but he expected them soon. In a fourth

and final call, Wyc he gave up on the bulls coming in and said he

could not “find nothing to do nothing with.”

Sammy Slayter, who testified while awaiting sentencing for

possession with the intent to distribute more than 50 grams of

methamphetamine, was introduced to Wyche when a man named K ipper

Glazer took him and Mathes to buy dru gs from Wyche in late 1995.

On several of occasions, Slayter sold methamphetamine in Louisiana

that Mathes had purchased from Wyche. Slayter received a share of

the profit in exchange for a his work selling the methamphetamine.

Starting in 1996 and co ntinuing to 1999, Slayter began

traveling to Oklahoma alone to purchase methamphetamine directly

from Wyche. Slayter would make the trip every 2-3 weeks and would

purchase ap proximately 4 ounces for approximately $5,000.00. In

recorded phone conversations, Slayter and Wyche appeared to use the

code word “bulls” for methamphetamine; however, in at least one

conversation Slayter, who testified that he liked to ride bulls and

occasionally worked for the Diamond L Ranch and Rodeo Company, and

Wyche appear to be discussing actual bulls.

David McCarty, who testified while awaiting s entencing on a

drug selling conviction, met Wyche through Slayte r and purchased

drugs from Wyche on three to five occasions . On one occasion

Slayter picked up the drugs from Wyche for McCarty.

DEA Agent Michael Hembry testified at Wyche’s t rial. On4

cross-exa mination he conceded that no methamphetamine was found

when Wyche’s house was searched. On re-direct, the prosecutor

asked Agent Hembry whether any drugs were found, and Agent Hembry

answered yes. Wyche immediately moved for a mistrial. The court

denied the motion. Outside the jury’s presence, the court stated

that Wyche had opened up the subject by asking wether

methamphetamine was f ound, but the court also instructed the

prosecution to move on to another subject. The court declined

Wyche’s request that the jury be admonished because the court

believed such an admonishment would be counterproductive and draw

more attention to the subject. Then Wyche’s lawyer, on re-cross

examination had Agent Hembry disclose that the drug found was

marijuana and that the agent had no personal knowledge of the

finding and that there was no evidence to prove that the substance

found was marijuana. At the close of the government’s case and at

the close of all the evidence, Wyche un successfully moved for

judgment of acquittal.

During deliberations, the jury sent a note to the court asking

for an explanation of the difference between Counts One and Two of

the indictment. The court responded, over Wyche’s objection, by

giving the ju ry copies of the relevant statutes. The jury found

Wyche guilty of Cou nt One but was undecided on Count Two. The

court immediately moved to the forfeiture phase of the trial, and

both sides rested on the evidence they had already presented. The5

jury found that the property alleged in Count Three was subject to

forfeiture. After the jury verdict, Wyche unsuccessfully moved for

judgment of acquittal.

The pre-sentencing report determined a sentencing range to be

188-235 months, and Wyche moved for a downward departure on the

ground that his a ge (then 62) and poor health would mean that he

would likely die while in prison. The district court denied the

motion and sentenced Wyche to 212 months in prison and 5 years of

supervised release.

On appeal Wyche challenges the sufficiency of the evidence

supporting his conviction, the court’s giving the statutes to the

jury in response to the jury’s questions, the denial of his motion

for mistrial, the admission of evidence pertaining to phone calls

between Wyche and government witn esses, the sufficiency of the

evidence supporting the forfeiture, and the refusal of the district

court to grant a downward departure to his sentence.

DISCUSSION

I. Whether the evidenc e was sufficient to support Wyche’s

conviction for conspiracy to possess with intent to distribute

more than 50 grams of methamphetamine.

“In reviewing a challenge to the sufficiency of the evidence,

we must determine whether a rational jury could have found that the

evi dence established guilt beyond a reasonable doubt on each

element of the offense, drawing all reasonable inferences from the

evidence and viewing al l credibility determinations in the light6

most favorable to the verdict.” United States v. Solis , 299 F.3d

420, 445 (5th Cir. 2002). “To sustain a conviction for conspiracy

under 21 U.S.C. § 841, the government must prove beyond a

reasonable doubt: (1) the existence of an agreement between two or

more persons to violate n arcotics law; (2) the defendant’s

knowledge of the agreement; and (3) the defendant’s voluntary

participation in the agreement.” Id . at 445 (internal quotations

and citations omitted). The jury may infer these elements from

circumstantial evidence. Id . at 446.

Wyche argues that the evidence shows, at most, the he had a

buyer-seller relationship with the witnesses, which is insufficient

to prove a conspiracy. The government counters that the evidence

shows more than a mere buyer-seller relationship because Wyche sold

a substantial amount of drugs in standardized quantities on

repeated occasions over an extended period of time to the same

individuals who in-turn resold those drugs. According to the

government, the jury could infer from this evidence that there was

an agreement to possess with the intent to distribute. S ee United

States v. Berry

, 133 F.3d 1020, 1023 (7th Cir. 1998) (finding

“[e]vidence of a conspiracy, as opposed to a buyer-seller

relationship, may include transactions involving large quantities

of drugs, prolonged cooperation between the parties, [and]

standardized dealings . . . .”).

Although, evidence of a buyer-sel ler relationship does not7

e stablish the existence of a conspiracy, this evidence can

demonstrate the defendant’s role in a conspiracy. U nited States v.

McKinney

, 53 F.3d 664, 672 (5th Cir. 1995); United States v.

Thomas

, 12 F.3d 1350, 1365 (5th Cir. 1994); United States v.

Maseratti

, 1 F.3d 330, 336 (5th Cir. 1993). For example, in D irect

Sales Co. v. United States

, 319 U.S. 703 (1943), the Supreme Court

upheld the conspiracy conviction of a mail-or der wholesale drug

corporation that sold morphine to a small-town physici an in

unusually large q uantities, frequently, and over an extended

period. Id . at 713. The court held that when the evidence shows

the defendant was “working in prolonged cooperation” with the

distributors in order to “supply [them] with [their] stock in trade

. . . [t]he step from kno wledge to intent and agreement may be

taken.” Id.

In the present case, the government had evidence of prolonged

cooperation by Wyche to supply the witnesses with the stock they

needed so they could carry on their drug trade. Therefore, a

rational jury could have inferred from the evidence that Wyche was

guilty beyond a reasonable doubt and the district court did not err

in refusing to grant Wyche’s motion of acquittal.

II. Whether the district court abused its discretion in giving the

jury a copy of the applicable statutes and whether this action

constructively amended the indictment.

The Court review s a challenge to jury instructions only for

abuse of discretion. U nited States v. Dien Duc Huynh , 246 F.3d8

734, 738 (5th Cir. 2001). “A district court has broad discretion

in framing the instructions to the jury and this Cou rt will not

reverse unless the instructions taken as a whole do not correctly

reflect the iss ues and law.” I d

. (citations omitted). “When a

jury expresses confusion and difficulty over an issue the trial

court has an obligation to ‘clear t hem away with concrete

accuracy.’” United States v. Carter , 491 F.2d 625, 633 (5th Cir.

1974) (quoting Bollenbach v. United States

, 326 U.S. 6 07, 613

(1946)).

Wyche contends that providing a copy of the relevant statutes

confused the jury because it: (1) duplicated what was already

instructed; (2) added the unnecessary language in § 846 regarding

attempt; and, ( 3) unnecessarily informed the jury that the

conspiracy count would be penalized the same as if it were a

substantive count. The government responds that the reason for

providing the statutes was to help the jury differentiate between

the two counts, conspiracy and aiding and abetting.

Assuming that simply giving a copy of the relevant statute to

the jury can be considered a supplement instr uction, nothing in

those instructions misstated the law. The fact that the statutes

provided some extra information concerning attempt and the

punishment of conspiracy is irrelevant because the jury was

instructed that Wyche could only be convicted of the crimes charged

in the indictment. Therefore, the instructions as a whole did9

reflect the issues and the law in this case and the court did not

abuse its discretion.

Further, because Wyche did not allege that the indictment had

been amended when the copy of the relevant statutes was given to

the district court, we review his claim in this respect for plain

error. Again Wyche alleges that by giving the jury a copy of

§ 846, which makes unlawful conspiracy and attempt, the dis trict

court allowed the jury to find him guilty of attempt, a crime not

charged in the indictment. The district court, however, never

instructed the jury as to attempt but rather stated that Wyche was

only on trial for crimes charged in the indictment. The statutes

were given to clarify the difference between aiding and abetting

and conspiracy, the only issues that the court instructed the jury

on. Therefore, the indictment was never amended and hence there

can be no plain error.

III. Whether the district court abused its discretion in denying

Wyche’s motion for mistrial.

We review the denial of a motion for mistrial on the basis of

prosecutorial misconduct for abuse of discretion. U nited States v.

Castillo

, 77 F.3d 1480, 1497 n.33 (5th Cir. 1996) (citations

omitted). The Court must determine whether the prosecutor’s remark

was improper and if so whether the remark “affected the substantial

rights of the defendant.” United States v. Gallardo-Trapero , 185

F.3d 307, 320 (5th Cir. 1999).

Wyche argues that the prosecutor’s question about the finding10

of drugs was improper. The government responds that the question

was invited and even if improper there was no prejudice.

The district court found t hat the remark concerning the

finding of marijuana was not prejudicial and this Court defers to

the district court’s assessment of prejudice. S ee United States v.

Millsaps

, 157 F.3d 989, 993 (5th Cir. 1998). Accordingly, even if

the remark was improper, the court found there was no prejudice and

also that a cautionary instruction was unnecessary and likely more

detrimental. Therefore, the court did not abuse its discretion in

denying Wyche’s motion for mistrial.

IV. Whether the court abused its discretion in admitting evidence

concerning recorded phone conversations between Wyche and the

government’s witnesses.

This Court reviews evidentiary rulings for abuse of

discretion, and even if this Court finds an abuse of discretion, we

review the error under the harmless error doctrine. U nited States

v. Sharpe , 193 F.3d 852, 867 (5th Cir. 1999).

The district court admitted into evidence audio tapes of phone

calls between Wyche and the government’s witnesses, transcripts of

those calls, and a CD-ROM that allowed the jur y to read the

transcripts contemporaneously while listening to the audio tapes.

Wyche contends that admitting the three forms of e vidence was

cumulative and he had not been provided a copy of the audio tapes

until the weekend before the trial and therefore there was a

discovery violation and the tapes should not have been admitted.11

The decision to admit a transcript to aid in understanding an

audio recording is within the discretion of the trial court,

subject to the issuance of a proper limiting instruction. United

States v. Larson

, 722 F.2d 139, 144 (5th Cir. 1983). The district

court gave a limiting instruction that the transcript was only to

aid the jury in following the conversation and identifying the

speakers and that whether the transcript was correct or incorrect

the jury was to make its own determination after listening to the

tapes. As to the CD-ROM, the court found it to be an acceptable

rendition of the tapes and transcript and a more simplified way to

hea r the conversation and read the transcript simultaneously.

Further, the district court determined that there was testimony

that Wyche’s counsel had been given the audio tapes earlier than

Wyche claimed and moreover there was no prejudice to Wyche in

admitting the tapes. Accordingly, having the tapes, transcripts,

and CD-ROM was useful and not prejudicial and there was no finding

of a discovery violation that prejudiced Wyche and, therefore, the

district court did not error in admitting the tapes into evidence.

V. Whether the evidence was sufficient to support forfeiture.

Wyche argues that, for the same reasons the evidence was

insufficient to support the conspiracy conviction, the evidence was

insufficient to support the forfeiture. Wyche fails to brief any

arguments independent from the arguments made that the evidence was

insufficient to support the conspiracy conviction. For the same12

reasons w e rejected his sufficiency challenge to the conspiracy

conviction we also reject his sufficiency challenge to the finding

of forfeiture.

VI. Whether the court erred in not granting Wyche a downward

departure in his sentence.

Under 18 U.S.C. § 3742(a), this Court only has jurisdiction to

review a failure to depart downward a defendant’s sentence if the

district court mistakenly believed that it could not depart

downward. U

nited St ates v. Brace , 145 F.3d 247, 263 (5th Cir.

1998). Wyche asserts that the district court failed to recognize

that age and physical infirmity are “ encouraged” bases for

departure. The record does not support Wyche’s argument. Nothing

in the transcript of the sentencing hearing indicates that the

court believed it could not depart downward and likewise the

government never argued that the court lacked the authority to

depart downward. Therefore, the sentence cannot be reviewed.

CONCLUSION

Having considered the record, the parties’s brief s and oral

arguments, the jury verdict and the decisions of the district court

are affirmed. AFFIRMED