UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-30421

UNITES STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KENNETH O. PAYNE; TOMMY RIGMAIDEN; ELIJAH MARTIN, JR.,

Defendants-Appellants.

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No. 95-30478

UNITES STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TIMOTHY WAYNE RIGMAIDEN,

Defendant-Appellant.

*******************************************************************2 No. 95-31277

UNITES STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FREDERICK CAPTAIN,

Defendant-Appellant.

Appeals from the United States District Court

For the Western District of Louisiana

November 11, 1996

Before REYNALDO GARZA, JOLLY and DeMOSS, Circuit Judges:

DeMOSS, Circuit Judge.

We consider three consolidated appeals from five individuals

convicted of various counts of conspiracy to distribute, and

distribution of, cocaine base (“crack”) in the La ke Charles,

Louisiana area. Two of the defendants were also convicted of

possessing a firearm in relation to a drug-trafficking transaction.

The government admits that the firearm convictions cannot stand in

light of Bailey v. United States

, 116 S. Ct. 501 (1995);

accordingly, we reverse the firearm con victions and vacate the

sentences on those counts. Finding that the evidence is sufficient3

to support the other convictions and that the district court

c ommitted no reversible error, we affirm the judgments of the

district court on all other counts.

BACKGROUND

Procedural Background

Kenneth Payne, Tommy Rigmaiden, Elijah Martin, Jr., T imothy

Rigmaiden and Frederick Captain were charged, along with eight

other individuals, in a 2 5 count indictment. All of the charges

concerned a crack distribution ring operating in Mossville,

Louisiana, a community near Lake Charles.

Frederick Captain plead guilty to one count of distribution of

crack, and the remaining charge against him was dismissed. He was

sentenced to 78 months imprisonment. Captain filed a motion to

vacate his sentence pursuant to 28 U.S.C. § 2255, which the

district court denied. Captain appeals the denial of his motion.

Payne, Mar tin and Tommy Rigmaiden were tried together and

convicted on all counts. Payne and Martin filed motions for

acquittal, which were denied. Payne was convicted of one count of

conspiracy to possess with intent to distribute crack, four counts

of distribution of crack, two count of possession with intent to

distribute crack, one count of attempted distribution of crack, and

o ne count of possession of a firearm in relation to a drugtrafficking crime. He was sentenced to 78 months on each of the

non-firearm counts, to run concurrently. He was sentenced to 60

months on the firearm count, to run consecutive to the other1 Because Payne, Martin and Tommy Rigmaiden were tried

separately from Timothy Rigmaiden, to avoid confusion we will

discuss the facts from each trial separately.

4 counts. Martin was convicted of one count of conspiracy to possess

with intent to distribute crack, four co unts of distribution of

crack, one count of possession with intent to distribute crack, and

one c o unt of possession of a firearm in relation to a drug

trafficki ng crime. He was sentenced to 27 months on each of the

non-firearm counts, to run concurrently. He was sentenced to 60

months on the firearm count, to run consecutive to the other

counts. Tommy Rigmaiden was convicted of one count of conspiracy

to possess with intent to distribute crack and three counts of

distribution of crack. He was sentenced to 97 months on each of

the counts, to run concurrently.

Due to the illness of his attorney, Timothy Rigmaiden was

tried separately. He was convicted of one count of conspiracy to

possess with intent to distribute crack and one count of

distribution of crac k. He was sentenced to 30 months on each

count, to run concurrently.

Facts as to Payne, Martin and Tommy Rigmaiden 1

This case involves a crack distribution network in Mossville

Louisiana. The leader of the network, and the principal source of

cocaine in the Mossville area, was Benjamin Lutcher. Lutcher would

travel to Houston, Texas to purchase crack, which he would then

sell in Mossville with the help of his many associates, including

Payne, Martin and Tommy Rigmaiden.2 “Two thirties” is drug trade parlance for two $30 “rocks”

of crack.

5 One witness, Deborah Malbrough, testified t hat the house in

which she liv ed was used for selling crack. In exchange for

permission to sell drugs out of the house, the dealers would leave

some crack for Malbrough and her boyf riend. Malbrough testified

that Payne engaged in drug transactions with Lutcher’s associates

at her house. Specifically, Payne met with Khoury Thomas, a

partner of Lutcher who “always had dope with him.” When they met

they went into the back room of the house where, Malbrough

surmised, they engaged in a drug transaction. She came to this

conclusion because “that’s all that went on over there.” Malbrough

also testified that M artin came to the house to buy drugs from

Lutcher, often buying over $100 worth of crack.

Albert Ho lmes, another partner of Lutcher, testified to a

meeting between Lutcher and Payne outside a Mossville convenience

store. Payne told Lutcher, “I am low.” Lutcher then wrote down a

telephone number and gave it to Payne.

An undercover police agent bought crack from Payne four times

from June to August 1993. The evidence established that Payne and

Martin sold crack together outside of Martin’s house. On one

occasion, Payne asked Martin to go into the house and “get two

thirties.” 2 Martin then entered the residence and returned with an

item, which was later determined to be crack, which he handed to

Payne, who gave it to the agent.3 A “contract agent” is an individual who, while not a

commissioned peace officer, performs undercover police work for a

law enforcement agency. The individual is paid according to the

number of drug transactions he conducts.

6 On a separate occasion, Payne and Martin both approached the

agent outside Martin’s house. Payne then instructed Martin to go

back into the house and get two rocks. Martin came back within a

minute and handed Payne an object, wh ich he handed to the agent.

The object was later determined to be crack.

When Martin was arrested the police found a loaded .45 semiautomatic handgun and two rocks of crack on the nightstand in his

bedroom.

Tommy Rigmaiden was a drug user who sold crack to support his

habit. He would often sell crack for other dealers, keeping a

small amount for himself as payment. Malbrough testified that

Tommy sometimes sold crack for Lutcher. She also testified that

Payne and Tommy sometimes sold crack together. Malbrough further

testified tha t Tommy sold drugs for Payne. Tommy admitted to an

FBI agent that he sold crack to support his habit . Undercover

police agents bought crack from Tommy three times in December 1993.

Facts as to Timothy Rigmaiden

Z avier Lewis, an undercover “contract agent” 3 fo r the

Calcasieu Parish Sheriff’s Office, testified that he bought crack

from Timothy Rigmaiden in October 1993. This crack sale is the

basis for the distribution of crack count.7

Several witnesses testified that they bought crack from

Timothy. Deborah Malbrough testified that Timothy Rigmaiden sold

crack with his cousins, Frederick and Damien Captain. No witness

testified that Timothy Rigmaiden ever had dealings with Lutcher;

several witnesses testified that Timothy Rigmaiden had no

involvement with Lutcher.

Malbrough testified that Frederick Captain and Lutcher met at

her house on one occasion. When Frederick Captain entered a back

room where Lutcher was he had no drugs. “And when he came out of

the room, he did have dope.”

DISCUSSION

Conspiracy -- Payne, Martin and Tommy Rigmaiden

Payne, Martin and Tommy R igmaiden argue that there is

insufficient evidence to sustain their convictions for conspiracy

to distribute crack. In a sufficiency review, we must determine

whether viewing the evidence and the inferences therefrom “in a

light most favorable to the jury’s guilty verdicts, a rational

trier of fact would have found these defendants guilty beyond a

reasonable doubt.” United States v. Velgar-Vivero , 8 F.3d 236, 239

(5th Cir. 1993), cert. denied

, 114 S. Ct. 1865 (1994). In denying

Payne ’s and Martin’s motions for acquittal, the district court

passed on the sufficiency of the evidence. We review the denial of

the motion for acquittal de novo

, applying the same standards as in

a general sufficiency review. United States v. Sanchez , 961 F.2d

1169, 1179 (5th Cir.), cert. denied , 506 U.S. 918 (1992).8

The elements of a drug conspiracy are: “(1) the existence of

an agreement between two or more persons to violate narcotics law;

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

def endant’s voluntary participation in the agreement.” U nited

States v. Gonzalez , 76 F.3d 1339, 1346 (5th Cir. 1996). “A jury

m ay infer the elements of a conspiracy conviction fro m

circumstantial evidence: an agreement to violate narcotics law may

be inferred from concert of action. Knowledge of the conspiracy

may be inferred from a collection of circumstances.” United States

v. Leal

, 74 F.3d 600, 606 (5th Cir. 1996) (internal quotations and

citations omitted).

The defendants claim that the government’s witnesses are not

credible. They point to the facts that many of the witnesses were

crack addicts and most had entered plea agreements with the

government, agreeing to testify in return for favorable treatment.

However, “non-credibility is gene rally not a sound basis for

alleging insufficiency of the evidence; it is the jury’s function

to determine credibility.” United States v. Polk , 56 F.3d 613, 620

( 5th Cir. 1995); s ee also Sanchez

, 961 F.3d at 1179-80. We have

held that “a guilty verdict may be supported only by the

uncorroborated testimony of a coconspirator, even if the witness is

interested due to a plea bargain of promise of leniency, unless the

testimony is incredible or insubstantial on its face.” United

States v. Bermea

, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied

,

115 S. Ct. 1825 ( 1995). The testimony in this case is not

“incredible or insubstantial on its face.”9

There is sufficient evidence to support the conspiracy

convictions of Payne, Martin and Tommy R igmaiden. The evidence

establishes that all three men sold drugs in Mossville and that all

three had dealings with Lutcher. Payne met with Khoury, one of

Lutcher’s partners, and the circumstances of the meeting allow the

inference that a drug transaction took place. Payne’s comment to

Lutcher that “I am low,” coupled with Lutcher’s response, allow the

inference that Lutcher supplied crack to Payne. Martin and Payne

sold drugs together out of Martin’s house. Martin also bought

crack directly from Lutcher. Tommy Rigmaiden sold drugs for

Lutcher and Payne. This evidence is sufficient to support the

conspiracy convictions.

Possession with Intent to Distribute -- Payne and Martin

Payne contends that the evi dence is insufficient to convict

him of possession wit h intent to distribute crack. The drugs in

this count are the two rocks of crack found on Martin’s nightstand

when he was arrested. A co-conspirator may be held liable for

crimes committed by a co-conspirator in furtherance of the

conspiracy. U

nited States v. Crain

, 33 F.3d 480, 486 n.7 (5th Cir.

1994) ( citing Pinkerton v. United States

, 66 S. Ct. 1180, 1183

(1946)), cert. denied

, 115 S. Ct. 1142 (1995). The evidence

e stablished that Payne and Martin were co-conspirators, and

possession with intent to deliver is a crime in furtherance of the

conspiracy. Therefore, if Martin is guilty of possession with

intent to deliver, then so is Payne.4 Two rocks of crack is certainly consistent with personal

use. See, e.g.

, United States v. Gibbs , 904 F.2d 52, 58-59 (D.C.

Cir. 1990) (15.5 grams of cocaine consistent with personal use).

10 “To prove possession of a controlled substance with intent to

distribute, the government must prove beyond a reasonable doubt the

defendants possession of th e illegal substance, knowledge, and

intent to distribute. The necessary knowledge and intent can be

proved by circumstantial evidence.” U nited States v. Rodriguez

,

993 F.2d 1170, 1175 (5th Cir. 1993), cert. denied

, 114 S. Ct. 1547

(1994). While the amount of drugs possessed is admittedly small, 4

the jury could infer intent to distribute from the fact that Martin

and Payne regularly dealt crack out of Martin’s house, the location

where the drugs were found. Cf

. United States v. Onick , 889 F.2d

1425 (5th Cir. 1989) (intent to distribute inferred even though

amount of drugs was small due to the presence of drug distribution

paraphernalia). Drawing all inferences in favor of the guilty

verdict, a re asonable juror could find that Martin possessed the

two rocks of crack with the intent to distribute them. Therefore,

the evidence is sufficient to support Payne’s and Martin’s

convictions.

Distribution of Crack -- Martin

Martin maintains that the evidence is insufficient to support

his conviction on the four counts of distribution of crack. These

counts stem from the four drug buys which the undercover agent made

from Payne. As discussed above, the evidence is sufficient to find

that Martin and Payne were co-conspirators. Payne’s sale of crack11

to the undercover agent was in furtherance of the conspiracy. In

addition, Martin was present during at least two of these sales

and, at Payne’s direction, retrieved the crack from his house.

Thus, the evidence is sufficient to support Martin’s conviction on

four counts of distribution of crack.

Possession of Firearm -- Payne and Martin

Payne and Martin challenge their convictions for possession of

a firearm in relation to a drug-trafficking crime, 18 U.S.C. §

924(c). The government concedes that in light of Bailey v. United

States

, 116 S. Ct 501 (1995), their convictions cannot stand.

Accordingly, the two § 924(c) convictions are reversed and the

consecutive sentences of 60 months each to Payne and Martin are

vacated.

Conspiracy -- Timothy Rigmaiden

Timothy Rigmaiden claims that there is a variance between the

indictment and the evidence at trial. He contends that the

indictment all eges one large conspiracy, while at trial the

evidence showed several smaller conspiracies. He argues that there

is no evidence linking him to Lutcher and that conspiracy. Timothy5 Kotteakos v. United States

, 328 U.S. 750 (1946). A wheel

conspiracy involves a central “hub” f igure, whose associates are

the “spokes.” The spokes know that they are working for the hub.

6 Blumenthal v. United States

, 332 U.S. 539 (1947). In a

chain conspiracy, several “links” lead linearly from a source.

Each link may not know the entire chain, but the links eventually

lead back to the source.

7 "Finding that they impede rather than facilitate analysis

of the ‘single conspir acy-multiple conspiracy’ issue, we eschew

utilization of figurative analogies such as ‘wheels,’ ‘rims’ and

‘hubs,’ which are often used to describe the nature of complex

conspiracies.” U nited States v. Morris

, 46 F.3d 410, 415 n.2 (5th

Cir.), cert. denied , 115 S. Ct. 2595 (1995).

12 points out that the alleged conspiracy fits neither within the

“wheel” 5 nor “chain” 6 theory of conspiracies.

To prevail on a varia nce claim a defendant must show (1) a

variance between the evidence at trial and the indictment and (2)

that his substantial rights were prejudiced. U nited States v.

Gaytan

, 74 F.3d 545, 552 (5th Cir.), cert. denied

, 64 U.S.L.W.

(1996). Timothy Rigmaiden fails on the first prong of his variance

claim because the evidence at trial did not vary from the

indictment. The evidence at trial showed only one conspiracy.

Timothy may be correct that the conspiracy in this case does

not fit neatly into either the wheel or chain theory. He obtains

no relief from that fact, however, because our Circuit has rejected

such artificial categories in analyzing c onspiracies. 7 As Judge

Brown said over 20 years ago, “[c]onspiracies are as complex as the

versatility of human nature and federal protection against them is

not to be measured by spokes, hubs, wheels, rims, chains or any one

or all of today’s galaxy of mechanical molecular or atomic forces.”

United States v. Perez , 489 F.2d 51, 59 n.11 (5th Cir. 1973).13

In reviewing a variance claim, we have said that:

We must affirm the jury’s finding that the

government proved a single conspiracy unless the

evidence and all reasonable inferences, examined in

the lig ht most favorable to the government, would

preclude reasonable jurors from finding a single

conspiracy beyond a reasonable doubt.

United States v. DeVarona

, 872 F.2d 114, 118 (5th Cir. 1989).

“Among the factors to be considered in determining whether a single

conspiracy was proven by the government are (1) the existence of a

common goal, (2) th e nature of the scheme, and (3) whether the

participants overlapped.” Gaytan , 74 F.3d at 552.

There was a common goal in this case. Timothy Rigmaiden,

Frederick Captain (“Captain”), and Lutcher shared the common goal

of selling crack in Mossville.

In determining the nature of the scheme, we inquire as to

whether “the activities of one aspect of the scheme are necessary

or advantageous to the success of another aspect or to the overall

success of th e venture. . . .” M orris

, 46 F.3d at 416. Here,

Lutcher was the leader of the conspiracy, the man who supplied the

crack. He sold crack to Captain, who, along with Timothy, sold to

users in Mossville. The success of each party was essential to the

success of the overall venture. If Lutcher delivered no crack to

Captain, then he and Timothy could not sell. Likewise, if Captain

and Timothy did not sell crack, Lutcher would not have a

distribution system.

Finally, there were overlapping p articipants in the various

dealings. Lutcher sold to Captain who worked with Timothy. There

is no evidence that Timothy personally had dealings with Lutcher.8 Federal Rule of Evidence 404(b) provides that while

“evidence of other crimes, wrongs or acts is not admissible to

prove the character of a person

. . . it may, however, be

admissible for other purposes such as proof of motive. . . .”

14 Indeed, they may never have met. Nonetheless, to establish an

overlap, “[t]he government does not have to establish that the

sellers and purchases knew each other or knew what each was doing.”

Morris , 46 F.3d at 416.

The jury could have found that there was only one conspiracy.

Therefore, there is no variance between the indictment and the

proof at trial.

Impeachment of Contract Agent -- Timothy Rigmaiden

At trial, Timothy Rigmaiden attempted to impeach the contract

agent, Zavier Lewis, by inquiring as to whether Lewis had been

arrested for distribution of cocain e shortly before becoming a

contract agent. The district court refused to allow this line of

questioning, saying that Timothy could not impeach a witness with

arrests for which that witness was not convicted. Timothy made an

offer of proof, stating that he was not offering the testimony as

evidence of the contract agent’s character, but rather, as evidence

of his motive to work for law enforcement. 8 Specifically, Timothy

wanted to show that because of his arrest, Lewis had a motive to

cooperate with the police.15

Timothy contends that the district court’s refusal to allow

this questioning violated his Sixth Amen dment right to confront

witnesses. Restrictions on the scope of cross-examination rest

within the sound discretion of the trial judge and those

restrictions are reviewed for abuse of discretion. United States

v. Campbell

, 49 F.3d 1079, 1085 (5th Cir.), c ert. denied , 116 S.

Ct. 201 (1995). The Sixth Amendment does not guarantee the right

to unlimited cross examination. U nited States v. Wallace

, 32 F.3d

921, 926 (5th Cir. 1994). In determining whether the district

court abused its discretion, “the relevant inquiry is whether the

jury had sufficient information to appraise the bias and motives of

the witness.” U

nited States v. Tansley , 986 F.2d 880, 886 (5th

Cir. 1993).

Even if the district court abused its discretion by not

allowing the cross-examination of Lewis, the erro r was harmless,

and thus does not require reversal. Fed. R. Crim. P. 52(a) (“Any

error

. . . which does not affect sub stantial rights shall be

di sregarded.”). Timothy was given the opportunity to, and did,

c ross-examine Lewis at length regarding Lewis’ bias towards him.

Timothy adduced evidence that he had often beat up Lewis when they

were youn ger. Lewis admitted that even years later he still was

troubled by those beatings.

Lewis was the only witness who testified that Timothy sold the

drugs. Timothy’s theory is that because of his biases and

motivations, Lewis had re ason to say it was Timothy who sold the

drugs, when in reality it was another. The evidence of the drug16

conviction did not give Lewis a reason to lie about Timothy,

though; it only gave him a reason to cooperate with the police. If

Lewis had a reason to lie a bout Timothy, it was because of the

beatings, of which the jury heard ample evidence. Even after

considering this evidence of bias, the jury still credited Lewis’

testimony and found Timothy guilty. Therefore, Timothy’s

substantial rights were not affected. United States v. Hamilton

,

48 F.3d 149, 155 (5th Cir. 1995) (“[S]o much additional impeachment

evidence was admitted in this case that further impeachment of [the

witness] with the pending

. . . charges could not have affected the

trial so as to prejudice [the defendant’s] substantial rights.”);

see also United States v. Livingston , 816 F.2d 184, 191 (5th Cir.

1987).

Acceptance of Responsibility -- Timothy Rigmaiden

Timothy argues that the district court erred in not reducing

his sentence because he accepted responsibility. U.S.S.G. § 3E1.1.

He contends that the district court refused to grant him the

reduction because he exercised his right to trial.

The district court found that there was no evidence that

Timothy accepted responsibility. “Whether a defendant has accepted

responsibility for a crime is a factual question and the standard

of review is even more deferential than clear error.” U nited9 We have held that § 3E1.1 does not violate the Sixth

Amendment. United States v. White , 869 F.2d 822, 826 (5th Cir.),

cert. denied , 490 U.S. 1112 (1989).

17 States v. Spires , 79 F.3d 464, 467 (5th Cir. 1996). The district

court did not err in its determination that Timothy was not

entitled to a § 3E1.1 reduction. 9

Habeas Corpus -- Frederick Captain

Frederick Captain appeals the district court’s denial of his

habeas corpus petition. 28 U.S.C. § 2255. Captain’s § 2255 motion

is based on two grounds: (1) the district court erred in its

application of the sentencing guidelines and (2) his trial counsel

was ineffective.

Captain argues that the district court improperly applied the

sentencing guidelines because he was not given a reduction for

acceptance of responsibility and the amount of drugs attributed to

him was too large. The district court correctly held that

Captain’s claims that the guidelines were imprope rly applied are

not cognizable under § 2255:

Relief under 28 U.S.C. § 225 5 is reserved for

transgressions of constitutional rights and for a

narrow range of injuries that would not have been

rais ed on direct appeal and would, if condoned,

result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised

on direct appeal but were not may not be asserted

in a collateral proceeding. [Captain] was

sente nced within the guideline range and did not

appeal the sentence. A district court’s technical

application of the Guidelines does not give rise to

a constitutional issue.18

United States v. Vaughn

, 955 F.2d 367, 368 (5th Cir. 1992)

(internal citations omitted).

To prevail on a claim of ineffective assistance of counsel, a

petitioner must show that: (1) his counsel’s actions fell below an

objective sta ndard of reasonableness and (2) the ineffective

assistance of counsel prejudiced him. S trick land v. Washington

,

466 U.S. 669 (1984); Bryant v. Scott

, 28 F.3d 1411, 1414 (5th Cir.

1994). We review counsel’s conduct with great deference, “strongly

presuming that counsel has exercised reasonable professional

judgment.” L ockhart v. McCotter

, 782 F.2d 1275, 1279 (5th Cir.

1986), cert. denied

, 479 U.S. 1030 (1987). In the context of a

guilty plea, prejudice is present if there is reasonable

probability that absent counsel’s errors the defendant would not

have entere d a guilty plea and would have insisted on a trial.

Mangum v. Hargett

, 67 F.3d 80 (5th Cir. 1995), cert. denied

, 116 S.

Ct. 957 (1996). Given the much greater sentence that Captain would

have received had he been convicted at trial, it is unlikely that

absent any errors by his counsel he would have proceeded to trial.

Captain also argues that his counsel was ineffective because

he failed to object at sentencing. A failure to object, however,

does not establish a claim of ineffectiveness of counsel. United

States v. Kaufman

, 858 F.2d 994, 1006 (5th Cir. 1988), cert.

denied

, 493 U.S. 895 (1989). Captain also contends that his

couns el was ineffective because counsel did not advise him to

appeal his sentence. Reviewing the record and the briefs, we agree

with the district court that Captain did not carry his burden of19

showing that his counsel’s representation was unreasonable and that

h e was prejudiced. The district court did not err in denying

Captain’s § 2255 motion.

CONCLUSION

The firearms convictions of Payne and Martin under 18 U.S.C.

§ 924(c) are REVERSED pursuant to Bailey v. United States

, 116. S.

Ct. 501 (1995), and their respective sentences of 60 months are

VACATED . The judgments of the district court are AFFIRMED in all

other respects.