USA v. Michael Owens

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10358
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00009-TCB-RGV-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL OWENS,
DWAYNE TYRONE COGGINS
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Georgia
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(February 3, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Michael Owens and Dwayne Tyrone Coggins appeal their convictions for
conspiring to use a communication facility to facilitate the possession of a
controlled substance with the intent to distribute, and for using a communication
facility to facilitate the possession of a controlled substance with the intent to
distribute, 21 U.S.C. §§ 843(b), 846. After review,1 we affirm Owens’ and
Coggins’ convictions.
I. DISCUSSION
A. Owens’ and Coggins’ arguments
Owens contends the Government failed to introduce sufficient evidence to
convict him of conspiring to use a communication facility to facilitate the
possession of a controlled substance with the intent to distribute, because by the
time he was involved in the Government’s investigation, the drugs were already
removed from Coggins’ nephew’s home, and the nephew was gone. Also, he
argues the Government failed to introduce sufficient evidence to convict him of the
use conviction, because by the time he called the nephew, the nephew already
knew the information he told him.
Coggins asserts the evidence was insufficient to convict him, because he did
not make the possession of any drugs for distribution easier. There was no
1 We review the sufficiency of the evidence de novo, viewing the evidence and all
reasonable inferences in favor of the Government and the jury’s verdict. United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005).
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evidence his nephew had drugs when he called, and if he did, he already had
possession before he called. The Government did not provide evidence his nephew
and the other drug dealers distributed any drugs as a result of his calls, and
Coggins did not receive anything of value for his actions nor was he involved in
any drug transactions. Coggins argues the Government stretches “facilitate” in 21
U.S.C. § 843(b) beyond its appropriate reading.
B. Sufficiency of the evidence – Conspiracy conviction
Conspiracy requires proof beyond a reasonable doubt that: (1) “there existed
an agreement between two or more persons” to commit the underlying crime; and
(2) “the defendant knowingly and voluntarily participated in that agreement.”
United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006). A defendant’s
knowing participation in a conspiracy may be established through proof of
surrounding circumstances such as acts committed by the defendant which
furthered the purpose of the conspiracy. See United States v. Parrado, 911 F.2d
1567, 1571 (11th Cir. 1990). The government does not need to demonstrate the
existence of a formal agreement. United States v. Gold, 743 F.2d 800, 824 (11th
Cir. 1984). To sustain a conviction for a violation of 21 U.S.C. § 841(a)(1) based
on possession with intent to distribute, the government must establish:
(1) knowledge; (2) possession; and (3) intent to distribute. United States v.
Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008).
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To sustain a conviction under 21 U.S.C. § 843(b), the government must
show that the defendant knowingly and intentionally used a communications
facility, e.g., a telephone, to facilitate the commission of a narcotics offense. See
United States v. Mertilus, 111 F.3d 870, 872 (11th Cir. 1997). To prove
facilitation, “the [g]overnment must show that the telephone call comes within the
common meaning of facilitate-to make easier or less difficult, or to assist or aid.”
United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985). Where a defendant
is not convicted of the underlying felony, a conviction under § 843(b) may not be
sustained because there is no felony to facilitate. United States v. Arrow, 739 F.2d
549, 550 (11th Cir. 1984).
There was sufficient evidence that Owens and Coggins conspired to use a
telephone to aid the nephew’s continued possession of narcotics with the intent to
distribute. Viewing the evidence and all reasonable inferences in favor of the
Government and the jury’s verdict, evidence showed that Owens and Coggins
agreed to use a telephone to aid the nephew’s continued possession of narcotics
with the intent to distribute and did so knowingly and voluntarily. Id. The
wiretapped phone calls, telephone toll records, pole camera footage of the nephew
removing drugs from his home, and Owens’ and Coggins’ interviews introduced at
trial showed they knowingly and voluntarily agreed with each other, the nephew’s
mother, and the nephew to warn him over the telephone about police activity at the
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nearby fire station, so he could remove his drugs from his home. See Arbane, 446
F.3d at 1228.
Regarding the nephew’s possession of drugs with the intent to distribute,
Owens and Coggins knew that the nephew was a drug dealer who had a stash
house near the fire station. On May 8th, Coggins did not want his warning to be
detected by police, so he advised his nephew’s mother that his nephew’s phone
may be tapped. As the object of their conspiracy, Owens’ and Coggins’ calls
allowed the nephew to avoid surveillance, seizure of his drugs, and possible arrest.
The calls let the nephew know he was a target of the police’s investigation and he
needed to take immediate steps to avoid the police. The nephew’s drug trafficking
continued until he was arrested on May 28th.
In sum, there was sufficient evidence such that a reasonable trier of fact
could conclude that Owens and Coggins were guilty beyond a reasonable doubt for
conspiring to use a communication facility to facilitate the possession of a
controlled substance with the intent to distribute, and that Owens and Coggins
were not entitled to a judgment of acquittal, so we affirm in this respect.
C. Sufficiency of the evidence – Use conviction
There was also sufficient evidence that Coggins and Owens violated 21
U.S.C. § 843(b). As noted above, evidence showed Owens and Coggins
knowingly and intentionally used a telephone to aid the nephew and other drug
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dealers in coordinating their efforts to possess drugs with the intent to distribute.
See Mertilus, 111 F.3d at 872. To facilitate the possession of drugs with the intent
to distribute, Owens called the nephew on May 8th and confirmed what the
nephew’s mother had told the nephew about the police’s location and reinforced
that the nephew was under investigation. See Rivera, 775 F.2d at 1562. Owens
also assisted the nephew by telling him to remove the drugs from his home. Id.
After Owens called the nephew, news of the investigation spread among the drug
dealers in the area creating a “ripple effect,” which helped them to avoid detection
and coordinate their drug trafficking. See id. The police were concerned about
this “ripple effect” because of the expense of wiretaps, the safety of officers, and
the potential destruction of evidence. As evidence of the “ripple effect,” the drugs
the nephew removed from his home on May 8th were never found, one drug dealer
got rid of his cell phone, and another drug trafficker that fled has not been found.
Also, to facilitate the possession of drugs with the intent to distribute,
Coggins’ call on April 8th placed his nephew and other drug dealers on notice that
law enforcement officers were investigating them. This call included the location
of law enforcement, so his nephew could avoid the seizure of his drugs and
potentially his own arrest. This call made it easier for his nephew and other drug
dealers to continue to traffic drugs, which evidence showed they did because drugs
were found in his nephew’s home when he and other drug dealers were arrested in
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late May. See Rivera, 775 F.2d at 1562; Mercer, 541 F.3d at 1076. Also, after
Coggins’ call on April 8th, law enforcement officers’ ability to dismantle the drug
organization by conducting surveillance and gathering evidence was negatively
impaired, because the agents could no longer be covert and safe at the Spaulding
County fire stations. For example, on April 8th, law enforcement left the area near
the fire station immediately and surveillance was suspended for the day because
their position had been compromised.
Thus, there was sufficient evidence such that a reasonable trier of fact could
conclude that Owens and Coggins were guilty beyond a reasonable doubt of using
a communication facility to facilitate the possession of a controlled substance with
the intent to distribute, and that Owens and Coggins2 were not entitled to a
judgment of acquittal. See Garcia, 405 F.3d at 1269.
II. CONCLUSION
We affirm Owens’ and Coggins’ convictions.
AFFIRMED.
2 Coggins argues for the first time on appeal that the rule of lenity should apply because
the meaning of “facilitate” in § 843(b) is ambiguous. The rule of lenity is inapplicable here,
because there is not a “grievous ambiguity or uncertainty” in § 843(b). See United States v.
Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008) (explaining in order to invoke the rule of lenity,
there must be a grievous ambiguity or uncertainty in the statute). We have defined “facilitate” to
mean “to make easier or less difficult, or to assist or aid.” See Rivera, 775 F.2d at 1562.
Moreover, while making phone calls to set up misdemeanor drug sales may not violate § 843(b),
see Abuelhawa v. United States, 556 U.S. 816, 818 (2009), Coggins did more than that here,
which was sufficient to violate § 843(b). See e.g., United States v. Russo, 796 F.2d 1443, 1463-
64 (11th Cir. 1986) (affirming a § 843(b) conviction where the telephone call facilitated efforts
to conceal the drug source and crimes).
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