United States v. Siverand

* 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this opinion should not be published and is not precedent except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
Fifth Circuit
F I L E D
January 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41668
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHEILA MITCHELL SIVERAND,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-282-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Sheila Mitchell Siverand appeals her 21 U.S.C. § 856(a)(2)
jury conviction for maintaining a property for the purpose of
unlawfully distributing and using crack cocaine. She makes the
following arguments: (1) her conduct did not constitute a
violation of 21 U.S.C. § 856(a)(2), as amended in 2003; (2) the
evidence was insufficient to support her conviction; (3) the
Government withheld evidence in violation of Brady v. Maryland,

-- 1 of 3 --

No. 04-41668
-2-
373 U.S. 83 (1963); and (4) the district court engaged in
judicial misconduct. We affirm.
Siverand’s contention that, as amended, 21 U.S.C.
§ 856(a)(2) was intended to apply only to club owners, rave
promoters, or persons who profit from the sale and use of drugs
is not supported by either the plain language of the statute or
the legislative history. See 21 U.S.C. § 856(a)(2)(2005); H.R.
CONF. REP. No. 108-66, at 68 (2003); United States v. Orellana,
405 F.3d 360, 366 (5th Cir. 2005). We therefore reject her
contention that the charged conduct did not fall within the ambit
of the statute.
We further hold that evidence of Siverand’s collection of
“yard fees” from the dealers who sold crack from her yard
supported a finding that she “intentionally . . . made available
for use, . . . [a] place for the purpose of unlawfully . . .
distributing or using a controlled substance,” and we therefore
reject her sufficiency-of-the-evidence argument. See 21 U.S.C.
§ 856(a)(2); United States v. Chen, 913 F.2d 183, 190 (5th Cir.
1990). We also reject Siverand’s Brady claim; the Government’s
at-trial disclosure of Leroy Washington’s recantation did not
violate Brady. See United States v. Walters, 351 F.3d 159, 168
(5th Cir. 2003).
Siverand’s contention that the district court’s supplemental
jury instructions, to which she did not object, were inconsistent
with its written charge and, therefore, confused the issue of

-- 2 of 3 --

No. 04-41668
-3-
intent is not borne out by our reading of the record. She has
therefore not demonstrated error, plain or otherwise. See United
States v. Partida, 385 F.3d 546, 559 (5th Cir. 2004). Finally,
the complained-of remark made by the district court was not so
prejudicial that it denied Siverand a fair trial. See United
States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994).
AFFIRMED.

-- 3 of 3 --