FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 11, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12235

Non-Argument Calendar

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D.C. Docket No. 05-00156-CR-ORL-22-KRS

UNITED STATES OFAMERICA,

 

Plaintiff-Appellee, 

versus

RICKY JEROME REDDICK, JR.,

JEFF LEWIS HOUSTON,

 Defendants-Appellants. 

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Appeals from the United States District Court

for the Middle District of Florida

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(April 11, 2007)

Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Defendants-Appellants Ricky Jerome Reddick, Jr. and Jeff Lewis Houston

appeal their convictions after a jury trial for conspiracy to possess with intent to
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distribute 50 grams or more of cocaine base, 21 U.S.C. § 846, and possession with

intent to distribute 50 grams or more of cocaine base, 21 U.S.C. § 841(a)(1),

(b)(1)(A) and 18 U.S.C. § 2. No reversible error has been shown; we affirm.

During their joint trial, Reddick and Houston each moved for a judgment of

acquittal at the close of the government’s case. Reddick’s lawyer moved “for

judgment of acquittal on [Fed.R.Crim.P.] 29.” When Houston’s lawyer moved for

a judgment of acquittal, he argued that Houston was only a spectator in the drug

sale between Reddick and a confidential informant (“CI”) and that Houston’s

participation (for which he was “paid $40 of crack cocaine”) was limited to

driving Reddick on the day of the drug sale. The district court denied both

motions. Houston then presented a case in his defense; Reddick did not. Houston

did not renew his motion for judgment of acquittal after all evidence was

presented.

On appeal, Reddick asserts that the government did not prove that he joined

a conspiracy with Houston because the government did not present sufficient

evidence of an agreement between Reddick and Houston to possess with intent to

distribute a controlled substance. Houston argues that he was a spectator to

Reddick’s drug transaction with the CI and that he was not involved in a

conspiracy with Reddick.
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We first address the standard used to review Reddick’s and Houston’s

claims. Because Houston did not renew his motion for judgment of acquittal after

presenting his case at trial, we will reverse his conviction only for manifest

injustice. See United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994)

(explaining that when defendant “failed to renew his motion for judgment of

acquittal at the end of all of the evidence, his conviction must be affirmed unless a

manifest miscarriage of justice would result” because “a defendant’s decision to

present his case after denial of a motion for judgment of acquittal operates as a

waiver of his objection to the denial of his motion for acquittal”). “This standard

requires [us to determine] that the evidence on a key element of the offense is so

tenuous that a conviction would be shocking.” United States v. Greer, 440 F.3d

1267, 1271 (11th Cir. 2006) (quotation omitted).

About Reddick, the government argues that -- instead of applying de novo

review, as we would do for a preserved challenge to the denial of a motion for

judgment of acquittal -- we should review Reddick’s claim only for plain error. 

The government asserts that Reddick’s failure to offer reasons to the district court

in support of his motion did not preserve his argument for a judgment of acquittal

based on insufficient evidence. Even assuming that Reddick preserved his

argument, we decide, for the reasons that will be discussed, that his claim fails.
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When we review the sufficiency of the evidence, we draw all reasonable

inferences in the light most favorable to the government. United States v.

Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002). “To sustain a conviction for

conspiracy to possess cocaine with intent to distribute, the government must prove

beyond a reasonable doubt that (1) an illegal agreement existed; (2) the defendant

knew of it; and (3) the defendant, with knowledge, voluntarily joined it.” United

States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005), cert. denied, 126 S.Ct.

1635 (2006) (quotation omitted). Direct evidence of a conspiracy is not required;

and the government “need prove only that [Defendant] knew the general nature

and scope of the conspiracy.” United States v. Pineiro, 389 F.3d 1359, 1368 (11th

Cir. 2004). Participation in a conspiracy can be inferred from “a development and

collocation of circumstances.” United States v. McDowell, 250 F.3d 1354, 1365

(11th Cir. 2001) (citations omitted). “Although mere presence at the scene of a

crime is insufficient to support a conspiracy conviction, presence nonetheless is a

probative factor which the jury may consider in determining whether a defendant

was a knowing and intentional participant in a criminal scheme.” Id.

In this case, the government showed that a conspiracy existed between

Reddick and Houston to possess 50 grams or more of cocaine base with intent to

distribute. In his own car, Houston drove Reddick to pick up the CI (who had
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offered to buy crack cocaine from Reddick), took Reddick and the CI to Reddick’s

home (from where Reddick left to obtain cocaine hydrochloride), and drove

Reddick and the CI to the apartment where crack cocaine “cookies” were

produced. In the apartment’s kitchen, Reddick prepared a boiling mixture

containing cocaine hydrochloride; he eventually removed the mixture from its pot

and allowed it to harden. Houston later came into the kitchen; and Reddick told

him, “got two more, Jeff,” which Houston acknowledged. Houston observed a

cookie that Reddick had laid out to dry; and Houston gathered plastic bags to

prepare to package the cookies. While in the apartment, Houston put a cookie into

his clothes; and he argued with Reddick about the crack cocaine Houston would

receive. 

Viewing the evidence in the light most favorable to the government, we

conclude that a reasonable jury could find Reddick and Houston guilty of

conspiracy to possess cocaine base with intent to distribute. The district court did

not err in denying Reddick’s and Houston’s motions for judgment of acquittal on

this basis.

Reddick next argues that the government offered insufficient evidence that

he conspired to, and actually did, possess with intent to distribute cocaine base. 
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He contends that, at best, the government proved that he manufactured cocaine

base.

“To sustain a conviction for possession of a controlled substance with intent

to distribute, the government must show that a defendant knowingly possessed the

controlled substance with the intent to distribute it.” Hernandez, 433 F.3d at 1333

(quotation omitted). “Intent to distribute may be inferred from the amount of [the

drug] involved.” United States v. Sarmiento, 744 F.2d 755, 761 (11th Cir. 1984). 

Here, Reddick produced 65 grams of cocaine base, which had a purchase

price of $2,000. Special Agent Russell Baer of the Drug Enforcement

Administration testified that a “typical user amount” of cocaine base would be .1

to .2 grams, selling in $10 to $20 increments. We conclude that sufficient

evidence was presented at trial to support a finding of Reddick’s possession with

intent to distribute cocaine base.

We affirm Reddick’s and Houston’s convictions.

AFFIRMED.